Hobson and Repatriation Commission - [2007] AATA 1233

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1233
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200600153

VETERANS' APPEALS DIVISION )

Re EDWIN JOHN PATRICK HOBSON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member L Hastwell
Date16 April 2007
PlaceAdelaide

Decision
The Tribunal affirms the decision under review.

..............................................
L HASTWELL
(Senior Member)

CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – disability pension – rate of pension payable – special rate – combination of war-caused and non war-caused conditions – PTSD – alone test – degenerative condition of the spine – inconsistent prior statements made by applicant as to his medical condition – objective evidence points to back condition as a contributing factor to his decision to retire – not entitled to pension at the special rate – decision affirmed
Veterans’ Entitlements Act 1986 s 24
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Braund (1991) 23 ALD 591
Jackman v Repatriation Commission, Federal Court, 30 June 1997, 521/1996
Cavell v Repatriation Commission (1988) 9 AAR 534
Forbes v Repatriation Commission (2000) 101 FCR 50
Repatriation Commission v Hendy (2002) 76 ALD 47
REASONS FOR DECISION

16 April 2007 Senior Member L Hastwell

introduction
1. Edwin John Patrick Hobson (the applicant), is a veteran who served in the Australian Army (the Army) while undertaking national service. Between 1965 and 1967 he served in the armed forces in Malaysia. He currently suffers from the following accepted war-caused disabilities:
·bilateral sensorineural hearing loss
·bilateral tinnitus
·post-traumatic stress disorder (PTSD) with alcohol abuse (in remission)
·tinea

He also suffers from the following non war-caused disabilities:
·chronic solar skin damage
·lumbar spondylosis
·spondylolisthesis
·rotator cuff syndrome of both shoulders
·cervical spondylosis
·intervertebral disc prolapse at L4 – L5
·osteoarthrosis of the right knee
·stomach and gastro problems

2.      On 5 March 2003 the applicant lodged a claim with the respondent (the Commission) for an increase in his pension rate and he claimed for the further disabilities of lumbar spondylosis, intervertebral disc prolapse at L4-L5, spondylolisthesis and knee problems to be accepted as being war caused.
3.      On 1 July 2003 a delegate of the Commission rejected the claim that the additional disabilities were war-caused and increased the rate of pension payable to 100 percent. Upon review, the Veterans’ Review Board (VRB) in a reviewable decision dated 12 May 2006 varied the decision in relation to the claim for knee problems by substituting a diagnosis of osteoarthrosis of the right knee in lieu of “no incapacity found”. The VRB affirmed the decision under review in relation to all claimed disabilities and in relation to the assessment. Effectively, this left unchanged the original decision of the Commission.
4.      The applicant has applied to this Tribunal for review of the Commission’s decision insofar as it relates to the rate of assessment. The applicant does not seek a review of the decision insofar as it rejected his claim that certain disabilities were war-caused.…

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 Hobson and Repatriation Commission

Details

AGLC: Hobson and Repatriation Commission [2007] AATA 1233
Case: [2007] AATA 1233
Decision Date: 16 April 2007

CaseChat Overview and Summary

In the case of Hobson and the Repatriation Commission, the dispute centred on the rate of pension payable to the applicant, a former serviceman, who was claiming a special rate for his disability pension. The Full Federal Court was tasked with reviewing the decision of the Administrative Appeals Tribunal. The central legal issue was whether the applicant was entitled to a special rate disability pension, given that his medical conditions were a combination of both war-caused and non-war-caused elements.

The court had to determine if the applicant’s condition met the criteria for the special rate under the Veterans’ Entitlements Act 1986. Specifically, it was necessary to assess if the applicant’s post-traumatic stress disorder (PTSD) was the sole cause of his incapacity for work, as required by the "alone test". The applicant also suffered from a degenerative condition of the spine, and the court needed to examine the extent to which this condition contributed to his retirement and incapacity. Furthermore, the court scrutinised the applicant’s prior inconsistent statements regarding his medical condition and how these statements aligned with the objective medical evidence.

The court found that while the applicant had PTSD, the degenerative condition of his spine was also a significant factor in his decision to retire. The objective evidence suggested that the spinal condition contributed to his incapacity, and the applicant's inconsistent statements about his medical condition further undermined his claim for the special rate. Therefore, the court concluded that the applicant was not entitled to the special rate pension. The Tribunal’s decision was affirmed, upholding the Repatriation Commission's original assessment.

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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VETERANS' APPEALS DIVISION		)
Re		EDWIN JOHN PATRICK HOBSON