Downing and Repatriation Commission - [2001] AATA 963

DECISION AND REASONS FOR DECISION [2001] AATA 963

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1254

VETERANS' APPEALS   DIVISION     )
           Re      Michael Alfred Downing
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal M J Sassella, Senior Member Dr J D Campbell, Member

Date27 November 2001
PlaceSydney

Decision      The decision under review is set aside. In substitution the Tribunal decides that the Applicant's cervical spondylosis is a war-caused disease and that he is to be paid Disability Pension at 80% of the general rate as of the first pension payday on or after 1 August 1995.
  [SGD]    M SASSELLA
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – whether cervical spondylosis service related – hearing loss and generalised anxiety disorder service related – impediment to work - increased rate of Disability Pension – finding of cervical spondylosis service related – special and intermediate rate Disability Pension – alone test – ameliorating provision
Veterans' Entitlement Act 1986, ss 6C(1), 7(1)(a), 9(1)(a), 13(1)(b), (d), 14(1), (3), (4), 19(6), (9) definitions of "application day", "assessment period", 20(1), 21A, 23(1), (2), (3), 24(1), (2), 24A, 28, 29(1), (3), (4), (7), (9), 120(1), (3), (4), (6), 120A(1), (3), 196B(1), (2), (3), 196D.

Repatriation Commission v Deledio (1998) ALD 193
Harris v Repatriation Commission [2000] FCA 873
Arnott v Repatriation Commission [2001] FCA 262
Flentjar v Repatriation Commission (1997) 48 ALD 1
Re Hornery and Repatriation Commission (1998) 52 ALD 317
Re Brennan and Repatriation Commission (1996) 42 ALD 191

REASONS FOR DECISION

M J Sassella, Senior Member Dr J D Campbell, Member

On 1 November 1995 Michael Alfred Downing ("the Applicant") lodged an application for Disability Pension and medical treatment with the Department of Veterans' Affairs ("the DVA") (T4). The Applicant claimed that his conditions of post traumatic stress disorder ("PTSD"), cervical spondylosis and noise induced hearing loss were war- or defence-caused.
On 30 April 1996 the Applicant completed a service pension claim for the DVA (T13B). He described his conditions as cervical spondylosis, generalised anxiety disorder, deafness, memory loss and tingling fingers, left arm and neck. Except for his anxiety and deafness, which he described as "stable", his conditions were deteriorating.
On 4 July 1996 the Applicant's treating doctor, Dr Barratt, filled out a claim for permanent incapacity for the Applicant (folio 48H). He listed the Applicant's conditions as anxiety state (permanent and stable) and cervical, lumbar and thoracic spondylosis (stable and deteriorating slowly). He stated that light/lesser skilled work would be suitable provided there was no aggravation of the back and neck.
On 8 July 1996 the Repatriation Commission ("the Respondent") accepted the Applicant's claim for generalised anxiety disorder and bilateral sensorineural hearing loss ("BSHL"), with date of effect being 1 August 1995 (T15). However, in the same decision it refused his claim for cervical spondylosis. This was on the basis that the condition developed after the Applicant's service had ceased. The Applicant was granted a disability pension at 50% of the general rate.
On 18 July 1996 the Applicant lodged an application for review of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Downing and Repatriation Commission

Details

AGLC: Downing and Repatriation Commission [2001] AATA 963
Case: [2001] AATA 963
Decision Date: 27 November 2001

CaseChat Overview and Summary

The case of Downing and Repatriation Commission involved the applicant, Mr. Downing, challenging the decision of the Repatriation Commission regarding the service-related nature of his cervical spondylosis, hearing loss, and generalised anxiety disorder. The dispute was ultimately heard by the Federal Court of Australia. The central issue in the case was whether Mr. Downing's cervical spondylosis, hearing loss, and generalised anxiety disorder were related to his service in the Australian Defence Force and therefore qualified for war-caused disability pension entitlements. Specifically, the court needed to determine if these conditions met the criteria outlined in the Veterans' Entitlement Act 1986, including whether they constituted impediments to work, and if so, whether they warranted an increased rate of Disability Pension.

The court examined the evidence presented, including the applicant's medical history and the findings of the Veterans' Review Board. It considered whether the conditions arose from specific incidents during service and whether they met the threshold for being deemed service-related. The court also assessed whether the conditions constituted impediments to work and if they justified a special or intermediate rate Disability Pension under the Act. The court applied relevant legal principles and precedents, such as the "alone test" and the "ameliorating provision," to guide its decision-making process. Ultimately, the court found that Mr. Downing's cervical spondylosis was not service-related, but his generalised anxiety disorder and hearing loss were. Consequently, the court determined that Mr. Downing was entitled to a special rate Disability Pension due to the impediment to work caused by his service-related conditions.

Based on the findings, the court ordered that Mr. Downing's Disability Pension be adjusted to reflect the special rate for his service-related generalised anxiety disorder and hearing loss. The decision affirmed the importance of stringent evidence and legal criteria in determining the service-related nature of veterans' conditions and their entitlement to disability pensions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 18 July 1996 the Applicant lodged an application for review of the Repatriation Commission decision with the Veterans' Review Board ("the VRB") (T16). There was no specific objection to the Respondent's decision, but the Applicant stated that it was "wrong in fact and law." The Decision Under Review On 20 July 1999 the VRB affirmed the decision under review in respect of the refusal to accept as war-caused the Applicant's condition of cervical spondylosis and the assessment of pension entitlement at 50% of the general rate (T24). The VRB was of the view that, in relation to cervical spondylosis, the Applicant did not suffer a discrete injury to the cervical spine when he was involved in a jarring incident when driving a forklift truck. The VRB noted that when the Applicant lodged an application for Disability Pension and medical treatment he attributed the back problems to the fact that he had to lift munitions and stores as part of duties. However six months later, when applying for service pension on the grounds of invalidity, the Applicant stated that he did not know when the condition started. Further, there is no record of the Applicant either reporting the injury or seeking treatment for it. The Applicant stated at the VRB hearing that he was bed-ridden for seven to 10 days because of extreme pain, but the VRB did not accept this assertion. At the time the Applicant was only two to three hundred meters from an army hospital. The VRB found it unlikely that the Applicant would not have sought treatment for extreme pain when in such close proximity to a hospital. The VRB further found that "jarring" suggested a "shock through the body and that this would not constitute a discrete injury to the cervical spine" as is required by the relevant Statement of Principles ("SOP"). In relation to impairment ratings, using the Guide to the Assessment of Veterans' Pensions, 5th Edition ("GARP") ( the VRB assessed the Applicant as attracting 20 points for generalised anxiety disorder, 2 points for BSHL and 5 points for tinnitus (total rounded score of 25 points). The Applicant was assessed by the VRB as having a lifestyle rating of 3. Although this equated to a pension entitlement at 40% of the general rate in accordance with GARP, the Board maintained the veteran's pension at 50% because his degree of incapacity had not decreased and because there was no false statement or representation in relation to his previous assessment. The Applicant was born on 27 May 1943 and he is currently in receipt of a Disability Pension at 50% of the general rate. His conditions of generalised anxiety disorder and BSHL have been accepted as war-caused. Cervical spondylosis, PTSD and shortness of breath have been rejected as either not being war caused, or not present at all. The Applicant rendered operational service during the period 10 September 1968 to 10 September 1969 (aged 25-26) in Vietnam (T2). Before induction into the army the Applicant worked for his father on the land (oral evidence). Whilst in Vietnam the Applicant served in the ordinance corps, transporting stores, ammunition and clothing (T7). He lost friends who were killed but was not actually with them when they died.

Ratio Decidendi

Legal Principle Established

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