Gosbee and Repatriation Commissioon - [2001] AATA 139

DECISION AND REASONS FOR DECISION [2001] AATA 139

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N1998/1758

VETERANS' APPEALS DIVISION       )
           Re      Frederick George GOSBEE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Dr J D Campbell, Member

Date26 February 2001
PlaceSydney

Decision      The Tribunal affirms that part of the decision under review, being the decision of a delegate of the Repatriation Commission dated 3 December 1997, that refused the claim of Frederick George Gosbee in respect of hypertension.
  ..............................................
  M T Lewis
  Presiding Member
CATCHWORDS
VETERANS' AFFAIRS – Entitlement – claim for hypertension – Statement of Principles applied – whether Veteran obese at the time of clinical worsening of hypertension – whether Veteran suffering from persistent obesity which developed and continued at least until the clinical worsening of hypertension – whether Applicant's accepted disabilities reduced his capacity to exercise - whether causal relationship between Veteran's defence service and his obesity

Veterans' Entitlements Act 1986 – ss 120(4) and 120B

Statement of Principles – Instrument No 84 of 1995 and Instrument No 26 of 1999

Re Olsen and Repatriation Commission [2000] AATA 909
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v McLean (1998) 50 ALD 149

REASONS FOR DECISION

26 February 2001 Mrs M T Lewis, Senior Member Dr J Campbell, Member

This is a review of a decision of a Delegate of the Repatriation Commission ("the Respondent") dated 3 December 1997 that determined that the claim by Frederick Gosbee ("the Applicant") for hypertension should be refused. The Applicant sought review of that decision by the Veterans' Review Board ('the VRB"), and on 30 September 1998 the VRB affirmed the decision. The Applicant lodged an application for review by this Tribunal on 7 December 1998. All applications for review were in time, and therefore the earliest date of effect is 15 July 1997 being a date not more than three months before the Applicant lodged his claim for hypertension.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The Applicant gave oral evidence at the hearing and tendered the following documents:

Clinical notes of Dr B J Collins, orthopaedist, dated 27 October 1980 and X-ray reports on the Applicant's right ankle dated 22 July 1977 and 24 October 1980 (exhibit A);
Report of Dr M Geoffrey Miller, consultant physician, dated 24 June 1999 (exhibit B);
Statement of Frederick George Gosbee dated 1 August 1999 (exhibit C).

The Respondent called Professor M F O'Rourke, cardiologist, to give oral evidence at the hearing, and tendered the following documents:

X-ray report on the Applicant's right ankle dated 4 August 1977 (exhibit 1);
Letter of referral to Professor M F O'Rourke from Australian Government Solicitor dated 14 August 2000, 2 reports of Professor O'Rourke dated 7 July 2000 and 21 August 2000 and Curriculum Vitae (exhibit 2);
Attachment "C" to referral letter from Australian Government Solicitor to Professor O'Rourke dated 14 August 2000 (exhibit…

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 Gosbee and Repatriation Commissioon

Details

AGLC: Gosbee and Repatriation Commissioon [2001] AATA 139
Case: [2001] AATA 139
Decision Date: 26 February 2001

CaseChat Overview and Summary

The matter before the court involved a claim by Gosbee, a veteran, for entitlement under the Veterans' Entitlements Act 1986. Gosbee sought compensation for hypertension, which he claimed was exacerbated by his service in the defence force. The Repatriation Commission was the respondent, tasked with determining the eligibility of Gosbee's claim based on specific criteria. The dispute centred on whether Gosbee was obese at the time of the clinical worsening of his hypertension, whether he suffered from persistent obesity which continued until the clinical worsening, and if his accepted disabilities reduced his capacity to exercise. Additionally, the court needed to establish whether there was a causal relationship between his defence service and his obesity.

The legal issues before the court included the interpretation and application of the Veterans' Entitlements Act 1986, specifically sections 120(4) and 120B, and the relevant Statement of Principles, namely Instrument No 84 of 1995 and Instrument No 26 of 1999. The court also considered precedent cases such as Re Olsen and Repatriation Commission, Repatriation Commission v Keeley, and Repatriation Commission v McLean to guide its decision. The primary concern was whether Gosbee's service-related disabilities, including his obesity, met the statutory requirements for compensation, particularly the causal link to his defence service and the impact on his health.

The court examined the evidence provided by Gosbee and the Commission, including medical records and expert opinions. It concluded that Gosbee was indeed obese at the time of the clinical worsening of his hypertension and that his obesity was persistent, developing and continuing until the clinical worsening. The court also found that Gosbee's accepted disabilities did reduce his capacity to exercise. However, it determined that there was no direct causal relationship between his defence service and his obesity. Consequently, the court ruled that Gosbee's claim for compensation regarding his hypertension was not eligible under the Veterans' Entitlements Act 1986.

The court ordered that Gosbee's claim for compensation related to his hypertension be dismissed. It held that the absence of a causal link between his service and his obesity meant that the statutory criteria for entitlement were not satisfied. The court's decision was based on a detailed analysis of the evidence and the applicable legal framework, ensuring that the entitlements were granted only where the statutory requirements were met.

Orders