Harp and Repatriation Commission - [2007] AATA 1612

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1612
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/526

VETERANS' APPEALS DIVISION )

Re NEVILLE HARP

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member P McDermott, RFD
Brigadier Dr GJ Maynard, Member
Date31 July 2007
PlaceBrisbane

Decision
The Tribunal affirms the decision under review.

................[Sgd]..............................
Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – service in Royal Australian Navy – disability pension – claim for depressive disorder and alcohol abuse – applicant suffered an injury to his back prior to his operational service – Repatriation Commission has previously accepted claim for cervical spondylosis and lumbar spondylosis – Administrative Appeals Tribunal able to consider those facts afresh without affecting the applicant’s entitlement from the earlier determination – whether applicant’s back pain is connected to his depressive disorder – Statement of Principles – clinical onset – medical evidence – decision affirmed
Veterans’ Entitlements Act (Cth) s 120
Repatriation Commission v Cooke (1998) 52 ALD 1
Repatriation Commission v Smith (1987) 15 FCR 327
Langley v Repatriation Commission (1993) 30 ALD 8
REASONS FOR DECISION

31 July 2007      Senior Member P McDermott, RFD
     Brigadier Dr GJ Maynard, Member

Introduction
1.      Mr Neville Vincent Harp has made a claim that his conditions of depressive disorder and alcohol abuse are service related. We have to decide whether these conditions are service related.
Service
2.      Mr Harp served in the Royal Australian Navy from 10 February 1961 until 9 February 1981 and also from September 1988 until 26 June 1992.
3.      He has eligible war service from 19 August 1966 until 8 September 1966 in respect of his service in Malaysia, Singapore and Brunei.
4.      Mr Harp also rendered eligible defence service from 7 December 1972 until 9 February 1981 and from September 1988 until 26 June 1992.
Accepted conditions
5.      Mr Harp has accepted service-related conditions of cervical spondylosis and lumbar spondylosis.
6.      It would appear that the acceptance of his cervical spondylosis and lumbar spondylosis as being service related was based on an assumption that there must have been aggravation of the conditions during subsequent service. This is despite the fact that there is no report in the comprehensive medical records of an event that could be regarded as an aggravating factor.
7.      What is reported at the medical examinations that were conducted for various reasons during service is a chronology of the natural history of the cervical spondylosis and lumbar spondylosis.
Background
8.      Mr Harp contends that his depression and alcohol abuse conditions have arisen from his experiencing chronic pain in the neck and lower back that was caused by an accident in July 1966 when he had a fall on HMAS Parramatta while at Jervis Bay and injured his vertebral column. The injury, for which he was hospitalised, resulted in conditions of cervical spondylosis and lumbar spondylosis.
9.      The applicant contends that he used alcohol to ease the pain in his back that resulted from his fall.
10.     The accident that resulted in…

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 Harp and Repatriation Commission

Details

AGLC: Harp and Repatriation Commission [2007] AATA 1612
Case: [2007] AATA 1612
Decision Date: 31 July 2007

CaseChat Overview and Summary

In the case of Repatriation Commission and Cooke, the applicant, a former member of the Royal Australian Navy, sought a disability pension for a depressive disorder and alcohol abuse. The Administrative Appeals Tribunal was tasked with reviewing a decision made by the Repatriation Commission that denied the applicant's claim. The Commission had previously accepted the applicant's claim for cervical and lumbar spondylosis, conditions related to a back injury he suffered prior to his service. The primary legal issue before the Tribunal was whether the applicant's back pain was connected to his depressive disorder, which would determine his eligibility for a pension under the Veterans’ Entitlements Act.

The Tribunal examined the relevant provisions of the Act and previous cases to establish whether the connection between the back pain and the depressive disorder could be considered afresh. It found that the Tribunal could review these facts without affecting the applicant's entitlement from the earlier determination. The Tribunal also considered medical evidence and the applicant's statements about the clinical onset of his conditions. In doing so, it applied the principles from Langley v Repatriation Commission and Repatriation Commission v Smith, which guided the assessment of the connection between the applicant’s conditions and his military service.

After thorough analysis, the Tribunal concluded that the applicant's depressive disorder and alcohol abuse were not connected to his military service. The Tribunal affirmed the Repatriation Commission's decision, holding that the applicant was not entitled to a pension for these conditions. The Tribunal’s decision was based on the lack of sufficient evidence to establish a causal link between the applicant's back pain and his depressive disorder, as required by the applicable Statement of Principles.

The final orders of the Tribunal were to affirm the decision under review, denying the applicant's claim for a disability pension related to his depressive disorder and alcohol abuse.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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