Harper and Repatriation Commission (Veterans' entitlements) [2021] AATA 2806 (10 August 2021)
Division:VETERANS’ APPEALS DIVISION
File Number: 2019/3017
Re:Gary Harper
APPLICANT
Repatriation CommissionAnd
RESPONDENT
DECISION
Tribunal:Member Ward & Member Ormston
Date:10 August 2021
Place:Adelaide
The decision under review is affirmed.
......................[Sgnd]............................
Member Ward
CATCHWORDS
VETERANS’ AFFAIRS – Reliability of evidence – contemporaneous documents – pre-existing use of tobacco – allegations of bullying – evidence as to use of tobacco for three years prior to diagnosis – 3 pack-years – inconsistencies in claim documentation – Intervening SOP – decision under review affirmed
LEGISLATION
Military Rehabilitation and Compensation Act2004
Veterans Entitlements Act 1986
CASES
Knight v Repatriation Commission [2010] FCA 1134
Repatriation Commission v Gorton [2001] FCA 1194
SECONDARY MATERIAL
Statement of Principles concerning Gastro-oesophageal Reflux Disease No. 66 of 2013
Statement of Principles concerning Gastro-oesophageal Reflux Disease (Balance of Probabilities) No. 62 of 2021
REASONS FOR DECISION
Member Ward & Member Ormston
10 August 2021
The Applicant has a claim for compensation for a condition of gastro-oesophageal reflux disease (“GORD”). The Respondent has denied liability for the claim under the Veterans Entitlements Act 1986 (the “Act”).
The Applicant contends that the GORD was caused as a result of smoking, the amount of which was increased as a consequence of his service in the Royal Australian Air Force (RAAF).
The Respondent accepts that the Applicant’s RAAF service falls within the definition of ‘defence service’ for the purposes of s 68 of the Act, and that he meets the eligibility requirements for a pension under s 70 of the Act.
During the time that the claim was pursued by the Applicant, the appropriate Statement of Principles (“SOP”) pursuant to the Act and the Military Rehabilitation and Compensation Act 2004, was Gastro-Oesophageal Reflux Disease, No. 66 of 2013 (“SOP 66”). The claim has proceeded in accordance with that SOP. The hearing was conducted, and the parties addressed the Tribunal on the relevant facts in accordance with that SOP and the relevant law.
Whilst the Tribunal was considering its decision following addresses, the SOP was varied by a new SOP concerning Gastro-Oesophageal Reflux Disease (On the Balance of Probabilities) No. 62 of 2021 (“SOP 62”). It came into effect on 21 June 2021 after the hearing had finished but before the Tribunal had finalised its reasons. At the request of the Applicant, the matter was brought back on for further directions and argument in accordance with the appropriate SOP applicable to the matter on 15 July 2021. For the reasons set out below, it was considered that the new SOP no. 62 of 2021 was applicable to the primary dispute.
With regard to the claim, the reviewable decision rejecting the claim dated 31 January 2019 is affirmed. The reasons for this follow.
During further submissions, the parties agreed that where there had been an updated SOP during the course of a dispute, the process to be adopted was as follows:
7.1.The decision-maker was first to consider…
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- Case
- [2021] AATA 2806
- Decision Date
CaseChat Overview and Summary
The AAT was required to determine whether the applicant, Harper, had established that his current conditions were war-caused. Specifically, the Tribunal had to consider the reliability of the evidence presented regarding Harper's pre-existing use of tobacco and whether this use was sufficient to satisfy the requirements of the relevant Statement of Principles (SOP) for his conditions. The Tribunal also had to assess the impact of alleged bullying on Harper's claim.
The Tribunal found that while there was evidence of tobacco use for approximately three years prior to diagnosis, amounting to 3 pack-years, there were significant inconsistencies in Harper's claim documentation. The Tribunal concluded that the evidence did not sufficiently establish that Harper's conditions were war-caused under the applicable SOP. Consequently, the decision under review, which affirmed the denial of the claim, was affirmed.
Orders
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Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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