Fraser and Repatriation Commission - [2002] AATA 418

DECISION AND REASONS FOR DECISION [2002] AATA 418

ADMINISTRATIVE APPEALS TRIBUNAL Nº V1999/1370

Nº V2000/124

VETERANS' APPEAL DIVISION

Re: MURRAY McARTHUR FRASER
(deceased)

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       Mr B.H. Pascoe, Senior Member
Date:             31 May 2002
Place:            Melbourne

Decision:The Tribunal affirms the decisions under review.

(sgd) B.H. Pascoe
Senior Member
VETERANS' AFFAIRS –hypertension and atrial fibrillation – whether war-caused – date of accurate determination of hypertension – date of clinical onset – whether additional salt ingested – whether higher ingestion of salt service related
Veterans' Entitlements Act 1986
Repatriation Commission v Burge [2002] FCA 623
Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

31 May 2002 Mr B.H. Pascoe, Senior Member

These are applications to review decisions of the Veterans' Review Board ("VRB") which, on 18 August 1999, affirmed a decision of the respondent dated 15 August 1997 that the applicant's conditions of rheumatoid arthritis, bronchiectasis and hypertension were not war-caused and on 1 December 1999 affirmed the refusal by the respondent to accept the condition of atrial fibrillation as being war-caused.
The late veteran, Mr Fraser, died on 6 March 2000 after the applications had been lodged and his widow proceeded with the applications on behalf of his estate. At the hearing the applicant was represented by Mr D. Hyde, of counsel, and the respondent by Ms J. McCulloch, an advocate with the Department of Veterans' Affairs. Evidence was given by Mrs Fraser; Dr G. Wagner, cardiologist; Professor R. Harper, cardiologist; and Dr L. Walton, consultant psychiatrist. In addition to the documents provided by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act1975, the following documents were tendered by the parties:
Statement by Mrs Fraser dated 18 September 2000 – exhibit A1
Report by Dr B. Collins, pathologist, dated 20 October 2000 – exhibit A2
Report by Dr Collins dated 30 March 2001 – exhibit A3
Report by Dr Wagner dated 29 November 2001 – exhibit A4
Report WRITEWAY Research Services dated 28 August 2001 – exhibit A5
Clinical onset of Dr D. Chong, general practitioner – exhibit R1
Clinical onset of Dr Wagner – exhibit R2
Transcript of VRB hearing of 18 August 1999 – exhibit R3
Report of Professor Harper dated 18 September 2000 – exhibit R4
Report of Professor Harper dated 5 September 2001 – exhibit R5
Report WRITEWAY Research Services dated 2 August 2001 – exhibit R7
Report WRITEWAY Research Services dated 15 August 2001 – exhibit R8
Insurance proposal questionnaires – National Mutual Life Association of Australasia Limited 1947 and 1950 – exhibit R9

It was conceded for the applicant that the claims for the conditions of rheumatoid arthritis and bronchiectasis were not being pursued with the claims for the conditions of hypertension and atrial fibrillation remaining for consideration.

The late Mr Fraser served in the Australian Army from 19 November 1942 to 24 September 1946. This constitutes eligible war service under the Veterans' Entitlements Act 1986 ("the Act") and, as he served in…

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 Fraser and Repatriation Commission

Details

AGLC: Fraser and Repatriation Commission [2002] AATA 418
Case: [2002] AATA 418
Decision Date: 31 May 2002

CaseChat Overview and Summary

In the Administrative Appeals Tribunal, the applicant, Murray McArthur Fraser, deceased, sought a review of the decisions of the Veterans' Review Board which had affirmed the decision of the Repatriation Commission that his conditions of rheumatoid arthritis, bronchiectasis and hypertension were not war-caused, and the refusal to accept the condition of atrial fibrillation as being war-caused. The applicant's widow proceeded with the application on behalf of his estate following his death. The Tribunal was required to determine whether the applicant's hypertension and atrial fibrillation were caused by his war service.

The Tribunal considered the relevant Statements of Principles and whether a reasonable hypothesis existed that the applicant's hypertension and atrial fibrillation were caused by his war service. In particular, the Tribunal considered whether there was an accurate determination of hypertension before the clinical onset of atrial fibrillation, and whether the applicant ingested an additional 12 grams per day of salt for a continuous period of at least 6 months immediately before that accurate determination. The Tribunal found that there was no accurate determination of hypertension prior to 1984 and that the applicant did not ingest an additional 12 grams per day of salt for a continuous period of at least 6 months immediately before that accurate determination or the clinical onset of hypertension. As a result, the Tribunal affirmed the decisions under review.

The Tribunal's decision was based on the evidence presented by the applicant and the respondent, including evidence from the applicant's widow, medical experts, and the Department of Veterans' Affairs. The Tribunal found that the applicant's hypertension and atrial fibrillation were not caused by his war service and that the decisions of the Veterans' Review Board should be affirmed. The Tribunal also found that the applicant's condition of atrial fibrillation relied on a finding that hypertension was war-caused, and as such, the decision in relation to atrial fibrillation should also be affirmed.

Orders