Garrett and Repatriation Commission

[2003] AATA 852

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 852

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2003/62

VETERANS' APPEALS  DIVISION		)
Re		PRAXEDES GARRETT

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms A F Cunningham (Part-time Member)

Date24 July 2003

PlaceHobart

Decision The decision under review is affirmed.

[Sgd A F Cunningham]

Part-Time Member

CATCHWORDS

Veterans’ Entitlements – whether death war-caused – no evidence connecting late veteran’s death with condition of osteoarthritis – Statement of Principle No 81 of 2001 – no reasonable hypothesis.

Veterans’ Entitlements Act 1986 - s8

REASONS FOR ORAL DECISION

24 July 2003 Ms A F Cunningham (Part-time Member)          

1. This is a statement of reasons for decision pursuant to s.43(2A) of the Administrative Appeals Tribunal Act 1975 in respect of a decision made on 24 July 2003.

2.      The applicant has appealed a decision of a delegate of the Repatriation Commission dated 18 July 2002 which rejected her claim for a pension in respect of the death of her late husband, Martin John Garrett.   The basis for the decision was that his death was not war-caused within the meaning of the Veterans’ Entitlements Act 1986 (“the Act”).   The decision was affirmed by the Veterans’ Review Board (VRB) on 18 February 2003.

3.      The hearing was conducted by telephone link to the applicant in the Philippines who gave oral evidence.   The respondent Commission was represented by Mr Castle who called no evidence.

4. The Tribunal had before it the T documents which were submitted pursuant to the provisions of s37 of the Administrative Appeals Tribunal Act 1975.  

5.      The following facts were agreed between the parties at the hearing:

(a)The applicant is the widow of the late Martin John Garrett (the deceased former veteran).

(b)The deceased former veteran served as a member of the Royal Australian Air Force between 17 February 1960 and 16 February 1966 and during this period rendered eligible service, which was operational service during the following periods:

(i)from 17 August 1964 to 24 march 1965 in Malaysia;

(ii)from 25 March 1965 to 19 May 1965 in Ubon, Thailand; and

(iii)from 20 May 1965 to 15 February 1966 in Malaya.

(c)The former veteran died on 4 December 1997 at the age of 57 years.

6.      The cause of the late veteran’s death as stated in the certificate of death (at T30) was “intracranial haemorrhage, massive with skull fracture, traumatic”.

7. The issue for the Tribunal to decide is whether the veteran’s death was caused by his service. Under the provisions of s8 of the Act:

“… the death shall be taken to have been war-caused if:

(a)       the death of the veteran resulted from an occurrence that happened

while the veteran was rendering operation service;

(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

…”.

8. As there was no dispute that the late veteran had rendered operational service, the requisite standard of proof is as set out in s120 of the Act. The Tribunal must accept that the veteran’s death was war-caused unless it can be satisfied beyond reasonable doubt that there is no ground for determining that it is war-caused.

9. Section 120A provides that as the claim was made after 1 July 1994, having been made on 26 June 2002, the reasonable hypothesis is to be determined according to any relevant Statement of Principle.

10.     The evidence was that the late veteran was suffering from osteoarthritis at the time of his death and the veteran was in receipt of a Centrelink pension in respect of this condition.

11.     However the Tribunal is not satisfied on the evidence before it that osteoarthritis was the cause of the veteran’s death.   The Tribunal only has the applicant’s evidence to this, who was not present at the time of the late veteran’s death, and neither does it seem was anyone else.

12.     The medical evidence does not cite osteoarthritis as being the cause of the veteran’s death, but rather “intracranial, haemorrhage, massive with skull fracture, traumatic”.

13.     There is insufficient evidence before the Tribunal to suggest that the cause of the veteran’s death was related to his osteoarthritis condition.

14.     Even if the Tribunal is wrong on this issue, there is no evidence linking the veteran’s condition of osteoarthritis with his service.

15.     The relevant Statement of Principle in relation to osteoarthritis is No. 81 of 2001.   The relevant factor is 5(j) which states:

“suffering a trauma to the affected joint before the clinical onset of osteoarthritis in that joint.”

16.     Trauma is subsequently defined in the same Statement of Principle which requires that the symptoms of pain, tenderness and either altered mobility or range of movement of the joint lasts for a period of at least 7 days following the onset.

17.     The only incident referred to by the applicant which occurred  during the late veteran’s period of service was that which occurred on 24 August 1965 when the late veteran suffered back strain after lifting a heavy piece from a shelf.   However the medical notes state that by 30 August 1965 the late veteran had responded well to conservative measures, he was “mobile, pain free, back now, discharged to duties”. (T4)

18.     This response does not meet the definition of trauma within the Statement of Principle in that  the symptoms did not last for at least 7 days.    Thus the provisions of the Statement of Principle has not been met.

19. The Tribunal is therefore satisfied beyond reasonable doubt that the material before does not raise a reasonable hypothesis within the meaning of the Act connecting the late veteran’s death to his service.

20.     For the above reasons the Tribunal affirms the decision under review.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing  24 July 2003
Date of Decision  24 July 2003
Counsel for the Applicant         Appeared on own behalf
Solicitor for the Applicant           
Counsel for the Respondent     Mr M Castle
Solicitor for the Respondent     Repatriation Commission