Gall and Repatriation Commission (Veterans' entitlements) - [2017] AATA 397

Gall and Repatriation Commission (Veterans' entitlements) [2017] AATA 397 (29 March 2017)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2015/4811
Re:Michele Gall
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:29 March 2017
Place:Brisbane

I affirm the decision under review.
........................................................................
Deputy President Dr P McDermott RFD
CATCHWORDS
VETERANS’ AFFAIRS – veteran claim for disability pension for disabilities that not accepted as service related – veteran’s claimed defence-caused conditions of cervical spondylosis – no material that raises the necessary connection between the conditions and service – the current Statement of Principles does not support the connection – decision under review affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Repatriation Commission v Money [2009] FCAFC 11
SECONDARY MATERIALS
Statement of Principles concerning cervical spondylosis (Instrument No. 67 of 2014)
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
29 March 2017
INTRODUCTION

On 17 March 2014 the applicant lodged a claim form under the Veterans’ Entitlements Act 1986 (“the Act”) for ‘disability pension for disabilities that have not yet been accepted as service related’ under the Act.[1] The claim form included a reference to a ‘neck condition’ which has been taken to refer to cervical spondylosis and intervertebral disc prolapse at C6/C7.[2] On 14 April 2014 the respondent made a decision that these conditions were not related to service.[3] On 26 August 2015 this decision was affirmed by the Veterans’ Review Board (the “VRB”).[4] On 9 September 2015 the applicant made an application to the Administrative Appeals Tribunal to review the VRB decision on the basis that cervical spondylosis and intervertebral disc prolapse at C6/C7 are under the Act related to service.[5]
[1] Exhibit A, T-documents, T11
[2] Ibid at p. 71
[3] Exhibit A, T-documents, T13
[4] Exhibit A, T-documents, T2 at B2
[5] Exhibit A, T-documents, T1 at A2
SERVICE OF APPLICANT
The applicant served in the Australian Army Reserve full-time from 19 June 1989 to 19 December 1989, then from 22 January 1990 to 29 November 1990. The applicant served with the Australian Regular Army from 30 November 1990 to 10 November 2002.[6]
[6] Exhibit F, Certificate of Service Sergeant Michele Kerry Gall
Section 68 of the Act provides that “defence service” for the purpose of the Act is continuous full-time service rendered as a member of the Defence Force on or after 7 December 1972 and before the terminating date. The expression “terminating date” is defined in section 68 as the date on which the Military Compensation Act 1994 commences, which is noted as having commenced on 7 April 1994.
The applicant has eligible defence service which commenced on 22 January 1990 and concluded on the terminating date of 7 April 1994.[7]
[7] Exhibit A, T-documents, T2 at B3 and Exhibit F
BACKGROUND
On 19 May 1990 a medical report records that the applicant fell from the tray of a truck, hit her head and records that she believes she lost consciousness for a…

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.

Keep reading for free

Create a free CaseChat account to read Gall and Repatriation Commission (Veterans' entitlements) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] AATA 397
Decision Date: 29 March 2017

CaseChat Overview and Summary

The applicant, who had eligible defence service between 1990 and 1994, sought a disability pension for conditions claimed to be defence-caused, specifically cervical spondylosis and intervertebral disc prolapse. The Repatriation Commission had previously accepted liability for an intervertebral disc prolapse at C5/C6 based on a 1996 incident, and the applicant was in receipt of a disability pension at the 100% rate. The dispute before the Administrative Appeals Tribunal concerned whether the applicant's cervical spondylosis and the intervertebral disc prolapse were sufficiently connected to her defence service to warrant further entitlement under the *Veterans' Entitlements Act 1986* (Cth).

The Tribunal was required to determine whether the material before it raised a connection between the applicant's defence service and her claimed conditions, and whether there was in force a Statement of Principles that upheld the contention that these conditions were connected to that service on the balance of probabilities, as required by section 120B(3) of the Act. The applicant had experienced a head injury in 1990, which was noted as asymptomatic, and later reported neck pain following a 1996 incident. While liability for the disc prolapse was accepted based on the 1996 incident, the applicant's claim for cervical spondylosis and the broader connection of the disc prolapse to her defence service remained in contention.

The Tribunal found that the material before it did not establish the necessary connection between the applicant's defence service and the cervical spondylosis or the intervertebral disc prolapse. It noted that the current Statement of Principles did not support such a connection. Consequently, the Tribunal affirmed the decision under review, meaning the applicant's claim for further entitlement based on these conditions being defence-caused was not upheld.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicant has eligible defence service which commenced on 22 January 1990 and concluded on the terminating date of 7 April 1994.[7][7] Exhibit A, T-documents, T2 at B3 and Exhibit FBACKGROUND On 19 May 1990 a medical report records that the applicant fell from the tray of a truck, hit her head and records that she believes she lost consciousness for a short period.[8] On 20 May 1990 and 23 May 1990 the applicant attended for a review of her condition. The record made on 23 May 1990 notes that the head injury was “asymptomatic”.[9][8] Exhibit B at p. 3 and Exhibit C, Medical Report of 19 May 1990[9] Exhibit C, Medical Report of 20 and 23 May 1990 Prior to her discharge from the Australian Army the applicant was examined on 14 May 2002.[10] The medical examination record notation refers to “cervical spine injury - pain/stiffness since injury 96”.[11] On 23 October 2002 the applicant was examined by Dr Hislop, orthopaedic surgeon, who recorded that the applicant developed neck pain after an incident on 31 January 1996 when she was performing a fireman's carry.[12] The history taken by Dr Hislop included a reference to the 1990 truck incident but no significance was then given to that incident in relation to any neck pain.[13] [10] Exhibit A, T-documents, T16 at p. 144[11] Ibid[12] Exhibit A, T-documents, T6 at p. 13[13] Exhibit A, T-documents, T6 at p. 14 On 19 November 2002 a determination was issued under the Safety, Rehabilitation and Compensation Act 1988 to accept liability for the C5/C6 disc protrusion on the basis of the 1996 fireman’s carry incident.[14][14] Exhibit A, T-documents, T16 at p.91-92 On 13 March 2003 a delegate of the Repatriation Commission accepted the applicant's disability pension claim under the Act for intervertebral disc prolapse at C5/C6, lumbar spondylosis and scar on nose - disfigurement due to scar, and the disability pension was increased to 40% of the general rate with effect from 13 August 2002.[15] [15] Exhibit A, T-documents, T8 at p. 46 The entitlement of the applicant to disability pension has been reviewed on a number of occasions. The applicant is now in receipt of disability pension at the 100% rate with effect from 13 August 2013.LEGISLATION Section 120B(3) of the Act is set out as follows:120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles…(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war‑caused or defence‑caused only if:(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and(b) there is in force:(i) a Statement of Principles determined under subsection 196B(3) or (12); or(ii) a determination of the Commission under subsection 180A(3);that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.WHETHER CERVICAL SPONDYLOSIS IS RELATED TO SERVICE

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The other material before the Tribunal does not raise a connection between the applicant’s defence service under the Act and the cervical spondylosis condition or the intervertebral disc prolapse condition. DECISION I affirm the decision under review.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.