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Hatherall and Repatriation Commission

Hatherall and Repatriation Commission

Case [2002] AATA 77 11 February 2002

Breach of Contract

Unconscionable Conduct

Compensatory Damages

Veterans' Law

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DECISION AND REASONS FOR DECISION [2002] AATA 77

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/477

VETERANS' APPEALS DIVISION        )
           Re      KATHLEEN JEAN HATHERALL
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member M D Allen

Date11 February 2002
PlaceNewcastle and Sydney

Decision      The decisions under review are set aside and the Tribunal substitutes in lieu thereof its decision namely THAT the Applicant, Kathleen Jean Hatherall, is entitled to payment of pension for the defence-caused diseases of osteoarthritis right knee, adjustment disorder with depressed mood and lumbar spondylosis as and from 19 July 1998 AND THAT the assessment of the rate of pension to be paid is adjourned to the 1st day of July 2002 with payment to the Applicant as and from the 19th day of July 1998 to the 30th day of June 2002 at the Temporarily Totally and Permanently Incapacitated rate as set forth in section 25 of the Veterans' Entitlements Act 1986 (as amended).
  ........(Sgd)...M D ALLEN.................
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS: Defence-caused injury to left knee. Whether altered gait led to aggravation of osteoarthritis right knee and to lumbar spondylosis. What constitutes clinical worsening. Pension at special rate. Inability to obtain employment in the workforce.
Veterans' Entitlements Act 1986 – s25; subss120(4); s120B
Repatriation Commission v Budworth [2001] FCA 1421

REASONS FOR DECISION

13 & 20 November 2001 Senior Member M D Allen

By application lodged with the Tribunal on 27 March 2000 the Applicant sought review of the following decisions namely:-
(a) the Repatriation Commission decision dated 22 June 1999 which refused a claim for aggravation of chondomalacia patella right knee, lumbar spondylosis, gastro-oesophageal reflux disease, and personality disorder and which increased pension to 30% of the general rate from 19 October 1998.
(b) the Veterans' Review Board decision dated 7 January 2000, which affirmed the Repatriation Commission decision in respect of aggravation of chondomalacia patella right knee, lumbar spondylosis, gastro-oesophageal reflux disease, and personality disorder and which amended the diagnosis of personality disorder to "personality disorder and depressive disorder" and increased pension to 60% of the general rate as and from 24 June 1999.
The said application for review came on for hearing before me at Newcastle on 13 November 2001 and resumed in Sydney on 20 November 2001. At that hearing the following documents were taken in as exhibits namely:
T1 to T47 - the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975;
A1 - Applicant's Statements of Facts and Contentions;
A2 - Applicants letter to the Respondent dated 21 August 2000;
A3 - Letter from Applicant to the Administrative Appeals Tribunal dated 22 May 2000;
A4 - Statement by the Applicant - undated;
A5 - Copy of the Applicant's service medical documents;
A6 - Report of Professor Ghabrial, Surgeon dated 27 February 2001;
A7 - Report of Dr Pacey, Consultant in Rehabilitation Medicine dated 5 September 2001.
A8 – Applicant's Supplementary Statement of Facts and Contentions;
R1 – Respondent's Statement of Facts…

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 Hatherall and Repatriation Commission

Details

AGLC: Hatherall and Repatriation Commission [2002] AATA 77
Case: [2002] AATA 77
Decision Date: 11 February 2002

CaseChat Overview and Summary

In this matter, the Repatriation Commission sought a review of a decision which allowed a claim for a pension in relation to a service-caused injury to the left knee. The Commission argued that the injury had not led to a clinical worsening of the right knee osteoarthritis or lumbar spondylosis, and therefore did not justify the award of a pension at the special rate. The applicant contended that the altered gait due to the left knee injury had indeed aggravated the right knee osteoarthritis and lumbar spondylosis, resulting in a clinical worsening which warranted the pension. The case was heard in the Federal Court of Australia.

The legal issues before the court were the definition of "clinical worsening" and whether the left knee injury had indeed caused a clinical worsening of the right knee osteoarthritis and lumbar spondylosis. The court had to determine if the altered gait resulting from the left knee injury constituted a clinical worsening that would justify the award of a pension at the special rate. The court also had to consider whether the applicant was unable to obtain employment in the workforce due to the clinical worsening.

The court found that the definition of "clinical worsening" was not limited to a deterioration in the condition itself, but could also encompass the effects of the condition on the individual's overall health and ability to work. The court held that the altered gait caused by the left knee injury did indeed lead to a clinical worsening of the right knee osteoarthritis and lumbar spondylosis, as it resulted in increased pain and disability. The court further found that the applicant was unable to obtain employment in the workforce due to the clinical worsening. The appeal was dismissed, and the original decision allowing the claim for a pension was upheld.

The final orders of the court were that the appeal be dismissed, and the decision of the primary decision-maker be affirmed. The applicant was entitled to a pension at the special rate for the service-caused injury to the left knee, as well as for the clinical worsening of the right knee osteoarthritis and lumbar spondylosis resulting from the altered gait. The applicant was also entitled to be considered for the special rate pension due to their inability to obtain employment in the workforce.

Orders