Giesen and Repatriation Commission - [2004] AATA 282

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 282
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/1345
VETERANS’ APPEALS DIVISION

Re: LEO GIESEN
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION
Tribunal:       G.D. Friedman, Member
Date:             17 March 2004
Place:            Melbourne
Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
Member

VETERANS’ AFFAIRS ‑ pension at special rate – various physical and psychiatric conditions ‑ substantial cause of inability to work
Veterans’ Entitlements Act 1986 ss24, 119
Cavell v Repatriation Commission (1988) 9 AAR 534
Fox v Repatriation Commission (1997) 45 ALD 317
Repatriation Commission v Hendy [2002] FCAFC 424
Sheehy v Repatriation Commission (1996) 41 ALD 205
REASONS FOR DECISION
17 March 2004  G. D. Friedman, Member
1.      This is an application by Leo Giesen (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 30 October 2002. The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 2 April 2002 that the applicant’s disability pension should be continued at 100 per cent of the general rate.
2.      At the hearing of this matter on 19 February 2004 and 5 March 2004 Mr D. De Marchi, solicitor, represented the applicant and Mr R. Fergusson, an advocate with the Department of Veterans’ Affairs, represented the respondent.
3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T302), together with two exhibits (Exhibits A1 and A2) lodged by the applicant and fourteen exhibits (Exhibits R1‑R14) lodged by the respondent.
BACKGROUND
4.      The applicant was born on 8 June 1941. He enlisted in the Australian Army (the army) on 12 December 1966 and was discharged on 21 July 1970. His service included service in Vietnam from 24 October 1967 until 24 November 1967. On 1 March 2002 the applicant lodged an application claiming post traumatic stress disorder (PTSD) and seeking an increase in the rate of pension payable for accepted disabilities. The respondent has accepted that the applicant's following disabilities are war-caused: generalised anxiety disorder, psychoactive substance abuse or dependence, chronic solar skin damage, colorectal adenomatous polyp, gastro‑oesophageal reflux disease, hypertension, irritable bowel syndrome, impotence, neurodermatitis and cerebral ischaemia. The respondent has rejected the applicant's following disabilities as being war-caused: mitral stenosis, lumbar‑sacral spondylosis, rheumatic heart disease, atrial fibrillation, benign prostatic hypertrophy, left ventricular dysfunction, chronic airflow limitation (no incapacity found), obesity and PTSD (no incapacity found).
5.      On 12 December 2002 the applicant applied to the Tribunal for review of the VRB decision.
6.      The issue before the Tribunal is whether the applicant’s inability to work was due to his accepted war‑caused disabilities to the extent that he is eligible for pension at the special rate.
EVIDENCE
7.      In a written statement dated 28 February 2003 (Exhibit A1) the applicant said that after leaving the army he returned to his trade as a boilermaker/welder. He said that he stopped working in 1980 because of his heart condition. He stated that in 1996 he obtained part‑time…

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 Giesen and Repatriation Commission

Details

AGLC: Giesen and Repatriation Commission [2004] AATA 282
Case: [2004] AATA 282
Decision Date: 17 March 2004

CaseChat Overview and Summary

Leo Giesen applied for a review of a decision made by the Veterans' Review Board, affirming a decision of a delegate of the Repatriation Commission that his disability pension should be continued at 100 per cent of the general rate. Giesen argued that he was ineligible for pension at the special rate because his inability to work was not substantially caused by his war-caused disabilities. The Tribunal needed to decide whether Giesen's inability to work was due to his accepted war-caused disabilities to the extent that he was eligible for pension at the special rate. The Tribunal considered the evidence and submissions made at the hearing. It found that the applicant's non-accepted conditions, together with the accepted conditions, had played a major role in preventing him from working more than eight hours per week. The Tribunal concluded that the war-caused disabilities were not the substantial cause of the applicant's inability to obtain remunerative work as required in s 24(2)(b) of the Veterans' Entitlements Act 1986. The Tribunal affirmed the decision under review.

Orders