Gavan and Repatriation Commission - [2002] AATA 1182

DECISION AND REASONS FOR DECISION [2002] AATA 1182

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1547

VETERANS' APPEALS DIVISION          )
           Re      Noel John Gavan
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Date15 November 2002
PlaceSydney

Decision The Tribunal sets aside the decision under review and substitutes a new decision that the Applicant's osteoarthrosis of the left knee was war-caused. The Tribunal remits the matter to the Respondent to calculate the rate of disability pension payable, with effect from 21 September 1998.

..............................................
RP Handley
Deputy President
CATCHWORDS
Repatriation Commission –– Disability pension – whether localised osteoarthrosis of the left knee was a war-caused injury - necessity that a hypothesis connecting the injury claimed to an Applicant's operational service must be established to the reasonable satisfaction of the Tribunal – necessity for the Applicant to have suffered a "trauma" in accordance with the relevant Statement of Principles – held the Applicant's osteoarthrosis was war-caused – decision of the Respondent set aside – new decision that injury war-caused substituted.
Veterans Entitlement Act 1986 ss 120A, 120(1)(3)
Statement of Principles - Instrument No 81 of 2001
Budworth v Repatriation Commission and Benjamin v Repatriation Commission (S13/2002 (21 June 2002))
Benjamin vRepatriation Commission [2001] FCA 1879
Connors v Repatriation Commission [2000] FCA 783
Fuss vRepatriation Commission [2001] FCA 1529
Harris vRepatriation Commission [2000] FCA 1687
Knight vRepatriation Commission [2000] FCA 103
Norris v Repatriation Commission [2000] FCA 873
Repatriation Commission v Budworth [2001] FCA 1421
Repatriation Commission v Deledio [1998] FCA 391

REASONS FOR DECISION

15 November 2002 Mr RP Handley

This is an application by Noel Gavan ("the Applicant") for a review of a decision of the Veterans' Review Board ("VRB") made on 18 July 2001 affirming a decision of a delegate of the Repatriation Commission ("the Respondent") to refuse the Applicant's claim for lumbar spondylosis and osteoarthrosis of the left knee, thus continuing the Applicant's disability pension at 60% of the General Rate.
At the hearing, the Applicant was represented by Brian Winship, Solicitor, of Rockcliffs, Solicitors, and the Respondent was represented by Trina McConnell, Solicitor, of the Department of Veterans' Affairs. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents") together with the documents tendered by the parties. The Applicant gave evidence in person and Dr William Lennon gave evidence by conference telephone.
BACKGROUND
The Applicant was born on 7 August 1929 and is aged 73. He enlisted in the Royal Australian Air Force ("RAAF") on 8 December 1947 for 12 years. He re-enlisted on 8 December 1959 for five years, and then again on 8 December 1964 for a further 5 years. He was discharged on 20 January 1970 having attained the rank of Flight Sergeant. The Applicant's service in Malaya from 22 July 1952 to 17 July 1953 counts as "operational service". The Respondent has accepted the Applicant's claim in respect of sensori-neural deafness.

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 Gavan and Repatriation Commission

Details

AGLC: Gavan and Repatriation Commission [2002] AATA 1182
Case: [2002] AATA 1182
Decision Date: 15 November 2002

CaseChat Overview and Summary

The Applicant, Mr Gavan, sought a review of the decision by the Respondent, Repatriation Commission, to refuse his claim for a disability pension in respect of localised osteoarthrosis of the left knee, which he claimed arose from his operational service in Malaya. The dispute was brought before the Administrative Appeals Tribunal (AAT) by Mr Gavan, who was represented by Brian Winship, while the Respondent was represented by Trina McConnell. The Tribunal had before it the documents produced under section 37 of the Administrative Appeals Tribunal Act 1975, the T documents, and additional documents tendered by the parties. Mr Gavan provided evidence in person, and Dr William Lennon gave evidence by conference telephone.

The legal issues before the Tribunal were whether Mr Gavan's localised osteoarthrosis of the left knee was caused by his operational service in Malaya and whether the Tribunal was bound by the Statement of Principles (SoP) concerning osteoarthrosis, Instrument No 81 of 2001. The Tribunal needed to determine whether the hypothesis connecting Mr Gavan's injury to his operational service was established to the reasonable satisfaction of the Tribunal and whether Mr Gavan's injury met the criteria set out in the relevant SoP.

The Tribunal found that Mr Gavan's osteoarthrosis was war-caused, as he had suffered a "trauma" to his left knee during his operational service, as required by the SoP. The Tribunal held that the Respondent's decision to refuse Mr Gavan's claim for a disability pension in respect of his localised osteoarthrosis of the left knee was set aside. The Tribunal substituted a new decision that the injury was war-caused and ordered the Respondent to pay Mr Gavan a disability pension at the appropriate rate.

The Tribunal's decision was based on the evidence provided by Mr Gavan and Dr Lennon, as well as the relevant SoP. The Tribunal concluded that Mr Gavan had established the necessary connection between his operational service and his localised osteoarthrosis of the left knee, and that the injury met the criteria set out in the SoP. The Tribunal also noted that the Respondent was bound by the SoP when making its decision.

Orders

Orders of the court

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Background

Background to the litigation

At the hearing, the Applicant was represented by Brian Winship, Solicitor, of Rockcliffs, Solicitors, and the Respondent was represented by Trina McConnell, Solicitor, of the Department of Veterans' Affairs. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents") together with the documents tendered by the parties. The Applicant gave evidence in person and Dr William Lennon gave evidence by conference telephone.BACKGROUND The Applicant was born on 7 August 1929 and is aged 73. He enlisted in the Royal Australian Air Force ("RAAF") on 8 December 1947 for 12 years. He re-enlisted on 8 December 1959 for five years, and then again on 8 December 1964 for a further 5 years. He was discharged on 20 January 1970 having attained the rank of Flight Sergeant. The Applicant's service in Malaya from 22 July 1952 to 17 July 1953 counts as "operational service". The Respondent has accepted the Applicant's claim in respect of sensori-neural deafness. On 21 December 1998, the Applicant lodged a claim for disability pension in respect of peptic ulcer disease, localised osteoarthrosis of the left knee and lumbar spondylosis. On 26 March 1999, a delegate of the Respondent decided to refuse the Applicant's claims for localised osteoarthrosis of the left knee and lumbar spondylosis, but accepted his claim in respect of peptic ulcer disease with effect from 21 September 1998. The delegate also decided to continue the Applicant's disability pension at 60% of the General Rate. On 8 April 1999, the Applicant lodged an application for review in respect of the localised osteoarthrosis and lumbar spondylosis. On 8 May 1999, a review officer decided not to intervene and conduct an internal review. On a review of the decision of 8 April 1999 by the VRB on 18 July 2001, the VRB decided to affirm the decision. On 10 October 2001, the Applicant lodged an application with the Tribunal for a review of the VRB decision. Since then, the Applicant has decided not to press his claim in respect of lumbar spondylosis. On 5 December 2001, the Applicant lodged a further claim in respect of the severe refractory ulcerating oesophagitis and sceleroderma which the Applicant told the Tribunal had been accepted and his pension increased to 80% with effect from 5 December 2001 (A5).APPLICABLE LEGISLATION A war-caused injury or disease is defined in s 9(1) of the Veterans' Entitlement Act 1986 ("the Act"). The definition includes an injury suffered or a disease contracted by the veteran resulting from an occurrence that happened while the veteran was rendering operational service as defined in s 6. Section 13(1) provides that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran. Section 21A provides for the Respondent to "determine the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions", which is currently in its fifth edition ("GARP"). Section 22 provides that pensions by way of compensation are paid to veterans who have attained the age of 65 at a percentage of the maximum General Rate of pension payable which constitutes the same percentage as the degree of incapacity determined by the Respondent in accordance with s 21A. However, a veteran may be entitled to payment of pension at a higher Intermediate or Special Rate if certain criteria, set out in ss 23 and 24 respectively, are fulfilled.

Evidence

Evidence Before The Court

Subsection 120(4) provides that except in making a determination to which subsections (1) or (2) apply (subsection (2) is not relevant in this matter), the Respondent shall decide any other matter arising under the Act or the regulations "to its reasonable satisfaction". Because the Applicant's claim was lodged after 1 June 1994, s 120A of the Act applies. This requires that where the Repatriation Medical Authority ("RMA") has determined a Statement of Principles ("SoP") in respect of a particular injury or disease, the Respondent (and therefore the Tribunal) must have reference to that SoP. In Mr Gavan's case the parties agree that the relevant SoP concerning osteoarthrosis is Instrument No 81 of 2001.EVIDENCEThe Applicant's Oral Evidence The applicant said when he first enlisted in the RAAF at the age of 18 he was fit and healthy and had no disabilities. After completing his initial recruit training at Richmond Airbase, he was sent to Ballarat for eight months to train as a radio serviceman. He was then posted back to Richmond but later returned to Ballarat to undertake a radar mechanics course which lasted for 15 months. After returning to Richmond, in 1952 he was posted with RAAF 38 Squadron to Malaya. This squadron comprised Dakota aircraft used for transport supply. During the Malayan emergency, the squadron was sent to Royal Airforce Base ("RAF") Changi on Singapore Island to act as couriers. RAF Changi was a large base comprising a village, shopping centres and numerous buildings including a RAF Hospital. 38 Squadron was the only Australian squadron there. The Applicant has no specific recollection of the layout of the base (A1). He acknowledged that he had been hospitalised at Changi for a week in relation to another medical problem, but could not remember where the hospital was located. The Applicant said it was within the first couple of months of his being at Changi that he injured his left knee. He had removed a transmitter receiver from a Dakota in order to recrystalise it in the workship. Having completed this, he carried the receiver, a black box which weighed approximately 30 - 40 lbs, back to the aircraft. From the ground to the bottom of the door of the aircraft was about four to five feet. The Applicant balanced the black box on the bottom of the aircraft doorway, holding it with one hand while he stepped up onto the bottom rung of two metal framed steps suspended from the doorway. As he stepped from the bottom step to the top step, he missed his footing and slipped, his left knee hitting the bottom step heavily. He managed to keep one hand on the black box while he called for assistance from others working in the vicinity of the aircraft. The Applicant said he was carried to a vehicle which they called for and was taken to a Regimental Aid Post ("RAP"). He was examined, given heat treatment on the knee with a ray lamp, and the knee was bandaged. He was also given painkillers. He was taken back to his billet which was on the third floor of a building over the top of a canteen and a hall. There he was assisted up the stairs because he could not walk on the leg. He rested for the remainder of the day. His knee continued to swell over the next couple of nights and he had to loosen the bandage.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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