Hale and Repatriation Commission - [2002] AATA 18

DECISION AND REASONS FOR DECISION [2002] AATA 18

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1652

VETERANS' APPEALS DIVISON        )
           Re      BRIAN HALE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms N Bell, Member

Date16 January 2002
PlaceSydney

Decision The Tribunal affirms the decision under review.

[SGD] Ms N Bell
Member

CATCHWORDS
VETERANS' APPEALS – disability pension – osteoarthrosis of the ankles and right shoulder – whether condition is war-caused – whether material before the Tribunal points to a hypothesis connecting the veteran's osteoarthrosis with the circumstances of the his eligible war service – Statement of Principles relevant to the hypothesis – consistency between the hypothesis and the Statement of Principles – whether inflammatory joint disease was suffered prior to the clinical onset of osteoarthrosis – standard of proof in determining whether an inflammatiory joint disease was suffered – whether veteran received appropriate clinical management for inflammatory joint disease

Veteran's Entitlements Act 1986 – sections 9(1), 120, 120A
Statement of Principles Instrument No 41 of 1998, as amended by Statement of Principles Instrument No19 of 1999, concerning osteoarthrosis
Statement of Principles Instrument No 126 of 1996 concerning rheumatoid arthritis

Repatriation Commission v Yates (1995) 57 FCR 241
Repatriation Commission v Deledio (1998) 83 FCR 82
Harris v Repatriation Commission (2000) 62 ALD 174
Repatriation Commission v Cooke (1998) 90 FCR 307
McKenna v Repatriation Commission (1999) 86 FCR 144
Re Crowe and Repatriation Commission (1999) 28 AAR 548

REASONS FOR DECISION

Ms N Bell, Member

This is an application by Mr Brian Hale ("the Applicant") for review of the decision of the Repatriation Commission ("the Respondent") dated 19 November 1999 which refused the Applicant's claim in relation to hypertension, malignant neoplasm of the prostate, fracture of the jaw, rheumatism of the ankles and right shoulder and rhinitis. On 3 August 2000 the Veteran's Review Board ("VRB") affirmed the Respondent's decision in all respects except that in relation to that part of the decision concerning rheumatism of the ankles and right shoulder, the VRB changed the diagnosis of those conditions to osteoarthrosis of the ankles and right shoulder.
At the hearing before the Tribunal the Applicant was represented by Mr Paul Jones. The Respondent was represented by Ms Trina McConnell. Dr Sachdev gave evidence to the Tribunal by telephone.
The following written material was placed in evidence before the Tribunal:
Exhibit No     Description    Date
TD1     T-Documents
A1      Applicant's Statement of Facts and Contentions          19 September 2001
A2      Medical report from Dr M Benanzio        20 April 2001
A3      Medical report from Dr G Richards          15 August 2001
R1      Respondent's Statement of Facts and Contentions     26 September 2001
R2      Medical report from Dr A Sachdev          01 February 2001
R3      Supplementary report from Dr A Sachdev         22 February 2001
R4      Clinical notes from Dr B Perry
R5      Clinical notes from Dr D West

background

Mr Jones for the Applicant advised the Tribunal, and had previously put the Tribunal and Respondent on notice, that the Applicant suffers from prostate cancer, the disease has spread…

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 Hale and Repatriation Commission

Details

AGLC: Hale and Repatriation Commission [2002] AATA 18
Case: [2002] AATA 18
Decision Date: 16 January 2002

CaseChat Overview and Summary

In the matter of Hale and Repatriation Commission, the applicant sought to have his osteoarthrosis of the ankles and right shoulder deemed to be a war-caused condition, warranting a disability pension under the Veterans' Entitlements Act 1986. The Repatriation Commission, acting through the Administrative Appeals Tribunal, reviewed the application but upheld the initial decision denying the pension. The central issue was whether there was sufficient evidence to establish a reasonable hypothesis connecting the applicant's osteoarthrosis with his war service. This required the court to consider the consistency of the hypothesis with the relevant Statements of Principles, the existence of inflammatory joint disease prior to the onset of osteoarthrosis, and whether appropriate clinical management for such a disease was received.

The Tribunal meticulously examined the evidence, including medical reports and testimonies, to determine if the applicant had indeed suffered from inflammatory joint disease before the clinical onset of osteoarthrosis. The court applied the standard of proof as outlined in sections 120 and 120A of the Act, which requires the Commission to be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the disease was war-caused unless a reasonable hypothesis is supported by relevant Statements of Principles. The Tribunal concluded that there was no reasonable hypothesis connecting the applicant's osteoarthrosis with his war service and affirmed the decision under review.

The reasoning hinged on the absence of a material pointing to a reasonable hypothesis that the osteoarthrosis was war-caused, as well as the lack of evidence supporting the existence of an inflammatory joint disease prior to the clinical onset of osteoarthrosis. Additionally, the Tribunal noted that the applicant did not receive appropriate clinical management for such a disease. Consequently, the Tribunal upheld the Commission's decision, finding insufficient evidence to warrant a different outcome.

The Tribunal's decision was affirmed, and the applicant's claim for a disability pension related to his osteoarthrosis was rejected. The Tribunal's reasoning and findings were based on the lack of a reasonable hypothesis connecting the condition to his war service and the absence of necessary medical evidence.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Sections 120 and 120A of the Act are set out later in this Statement of Reasons.evidencedr benanzio Dr Benanzio in his report of 20 April 2001 (Exhibit A2) reports, following examination of the Applicant, that the Applicant was bedridden in 1946 for five weeks because of ache and swelling of the right shoulder and both feet. The Applicant was told he had rheumatic fever, and he progressively improved with some occasional residual discomfort. In 1947 he joined the Army as a volunteer and was assigned to Infantry in which he was sent to a camp. Within about five weeks he developed ache and cramps in the right shoulder and right foot and was taken to Concord Hospital where he was admitted for one week. His tonsils were removed and he was given medication and was sent home on leave. The Applicant returned to the camp for two or three weeks and his condition again improved, although he experienced a residual degree of discomfort. Dr Benanzio reported that in 1947 the Applicant was sent to Japan as a Medical Orderly in the Regimental Aid Post. Approximately one month after his arrival in Japan he again developed ache in the right shoulder and right foot. He was seen by the Medical Officer but no specific report was entered. He was, however, given medication. The Applicant reported to Dr Benanzio that he continued on normal duties and never took a day off, but continued to see the Medical Officer for medication. No x-rays were taken. In 1949 when he went back to Australia he was still experiencing ache but did not report this and his conditions were not reported on his discharge in February 1949. Dr Benanzio reported that at a certain stage the Applicant was seen by Dr Atkins, General Practitioner and prescribed gold salts medication. No specialist was consulted. Dr Benanzio provided the following opinion:"In 1946 this patient developed rheumatic pathology in the right shoulder and both feet. He improved, but he continued to experience a residual degree of discomfort.A flare-up of the condition occurred after joining the Army and being in a camp for about five weeks. He was transferred to Concord Hospital, as reported above.He continued to experience a degree of discomfort, but nevertheless he was sent to Japan where, after about one month, the condition flared up again. The irritation could have been caused by the cold weather. He was again seen by a Medical Officer, and from that time he continued to take medication prescribe by the Medical Officer.He managed his duties despite the residual symptoms, until he was sent back to Australia in 1949.After discharge from the Army he was put on specific treatment with gold salts.As reported to me, he had further flare-ups of complaints in the right shoulder and both feet until he retired in 1990….The orthopaedic diagnosis is of osteoarthritis in both shoulders and both ankles. With reference to your letter of 1st February 2001, I agree that Mr Hale developed "inflammatory joint disease" in the right shoulder and both ankles, and that such "inflammatory joint disease" contributed to the osteoarthrosis in his right shoulder and both ankles."dr g richards

Decision

Reasons for decision

It is therefore unnecessary to pursue the final step, summarised in Deledio [supra], of ascertaining whether there is, beyond reasonable doubt, no sufficient ground for determining that the Applicant's osteoarthrosis is war caused. In the absence of a reasonable hypothesis, the Applicant's osteoarthrosis cannot be found to be war caused.decision The Tribunal affirms the decision under review.I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, MemberSigned: ..................................................................................... AssociateDate/s of Hearing 10 August 2001 and 28 September 2001Date of Decision 16 January 2002 Solicitor for the Applicant Mr Paul JonesAdvocate for the Respondent Ms Trina McConnell

Ratio Decidendi

Legal Principle Established

Finally, Ms McConnell submitted that it was appropriate for the Tribunal to affirm the decision under review in relation to the Applicant's conditions of hypertension, malignant neoplasm, fracture of the jaw and rhinitis. Mr Jones expressed his agreement in relation to this last point.consideration It is convenient to set out the relevant provisions of sections 120 and 120A of the Act:"120 Standard of proof(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.Note: This subsection is affected by section 120A.…(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:(a) that the injury was a war-caused injury or a defence-caused injury;(b) that the disease was a war-caused disease or a defence-caused disease; or(c) that the death was war-caused or defence-caused;as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.Note: This subsection is affected by section 120A.(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.Note: This subsection is affected by section 120B.…120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles(1) This section applies to any of the following claims made on or after 1 June 1994:(a) a claim under Part II that relates to the operational service rendered by a veteran;…(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:(a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or(b) has declared that it does not propose to make such a Statement of Principles.(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:(a) a Statement of Principles determined under subsection 196B(2) or (11); or(b) a determination of the Commission under subsection 180A(2);that upholds the hypothesis.Note: See subsection (4) about the application of this subsection.(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of: (a) the kind of injury suffered by the person; or (b) the kind of disease contracted by the person; or (c) the kind of death met by the person;as the case may be."