GILKINSON And REPATRIATION COMMISSION

[2010] AATA 23

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 23

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N 200600296

VETERANS' APPEALS  DIVISION		)
Re		DAVID GILKINSON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal M D Allen, Senior Member
Dr M E C Thorpe

Date15 January 2010

PlaceSydney

Decision The decision under review is AFFIRMED.

....................[sgd]..........................

M D Allen
  Presiding Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – Review of determination by Respondent that Applicant’s condition of sleep apnoea was not related to service.  Did material raise a reasonable hypothesis connecting the disease suffered by the Applicant and the circumstances of his operational service.  Did the circumstances of operational service make a material contribution to the cause or clinical worsening of the Applicant’s sleep apnoea.  Was the Tribunal satisfied beyond reasonable doubt operational services was not a contributing factor. 

LEGISLATION

Veterans Entitlements Act 1986 s6C196B 120A 120

CASES

Gilkinson v Repatriation Commission [2008] FCA 1441

Repatriation Commission v Yates (1995) 57 FCR 241

Repatriation v Milenz [2006] FCA 1436

Kattenberg v Repatriation Commission (2003) 73 ALD 365

Repatriation v Hawkins (1993) 18 AAR 93

Comcare v Canute (2005) 148 FCR 232

REASONS FOR DECISION

15 January 2010 M D Allen, Senior Member
Dr M E C Thorpe  

1.      On 6 May 2008 the Tribunal published its decision affirming the Respondent’s determination rejecting the Applicant’s claim to have sleep apnoea accepted as a war-caused disease.  See Gilkinson and Repatriation Commission [2008] AATA 364.

2.      That decision was appealed to the Federal Court and on 22 September 2008 Rares J set aside the Tribunal’s decision and directed the matter be remitted to the Administrative Appeals Tribunal (“AAT”) to be reheard. See Gilkinson v Repatriation Commission [2008] FCA 1441.

3.      At paragraph 28 of his judgement Rares J said:

“But, the Tribunal did not consider the effect of shift work.  There may have been other hypotheses or other ways of viewing Mr Gilkinson’s claim, had it done so. But, it did not do so and the Commission can now not uphold the erroneous decision of the Tribunal on that basis.  I am of opinion that the Tribunal made an error of law by failing to consider that hypothesis expressly in its reasons.  It did not find beyond reasonable doubt that the requirement that he undertake shiftwork did not contribute to Mr Gilkinson being obese.”

4.      When this matter came on for hearing the Applicant had expanded upon the grounds upon which he maintained his sleep apnoea was war-caused.  The Applicant maintained that the following hypotheses had been raised by material before the Tribunal, viz:

I.That there had been a clinical worsening of his sleep apnoea during service due to consumption of alcohol.

II.That operational service had led to weight gain such that he became obese and that in turn led to the onset of sleep apnoea or its clinical worsening;

III.That the Applicant’s war-caused disease of chronic sinusitis caused chronic obstruction of the upper airways which in turn caused, or contributed to the…