Ison and Repatriation Commission - [2000] AATA 994

DECISION AND REASONS FOR DECISION [2000] AATA 994

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/582

VETERANS' APPEALS DIVISION       )
           Re      Donald ISON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Dr M E C Thorpe, Member

Date14 November 2000
PlaceSydney

Decision The Tribunal – 1. Affirms that part of the decision under review, being a decision of a delegate of the Repatriation Commission ("the Respondent") dated 30 April 1996 that refused the claim of Donald Ison ("the Applicant") in respect of osteoarthrosis right and left ankles; 2. Sets aside that part of the decision under review in respect of lumbar spondylosis and osteoarthrosis right knee; 3. Amends the diagnosis of the condition diagnosed as "lumbar spondylosis by adding "with spondylolisthesis"; 4. Substitutes for that part of the decision so set aside, as amended, the decision that - (a) the conditions of lumbar spondylosis with spondylolithesis and osteoarthrosis of the right knee suffered by the Applicant are war-caused pursuant to s9 of the Veterans' Entitlements Act 1986, with effect on and from 13 March 1995; and (b) the Applicant is entitled to payment of pension at 100 per cent of the General Rate, with effect from and including 13 March 1995.

..............................................
M T Lewis
Presiding Member
CATCHWORDS
VETERANS' AFFAIRS – entitlement – whether lumbar spondylosis with associated spondylolisthesis is correct diagnosis for back condition – whether lumbar spondylosis and osteoarthritis of right knee war-caused – Statements of Principles applied – whether reasonable hypotheses raised – whether suffered trauma to knee joint and lumbar spine prior to clinical onset of condition – truth of claims considered – whether satisfied beyond reasonable doubt that conditions were not war-caused
Assessment – Veteran currently assessed at 70 per cent of General Rate – whether increase in General Rate assessment

Veterans' Entitlements Act 1986 – ss 120(1), 120(3), 120A, 120(4)

East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Deledio (1998) 83 FCR 82
Connors v Repatriation Commission [2000] FCA 783
Harris v Repatriation Commission [2000] FCA 873
Dixon v Repatriation Commission (1999) 29 AAR 235
Thompson v Repatriation Commission [2000] FCA 939 (19 July 2000)
Repatriation Commission v Keeley (2000) 98 FCR 108

REASONS FOR DECISION

14 November 2000 Mrs M T Lewis, Senior Member Dr M E C Thorpe, Member

This is a review of that part of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 30 April 1996 that refused a claim made by Donald Ison ("the Applicant") for lumbar spondylosis, osteoarthrosis of the right knee and osteoarthrosis of both ankles, and assessed disability pension at 60 per cent of the General Rate. The Veterans' Review Board ("the VRB") affirmed that decision on 19 February 1999. All applications for review were in time.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The Applicant, Professor P N Sambrook, and Dr M G Miller gave oral evidence at…

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 Ison and Repatriation Commission

Details

AGLC: Ison and Repatriation Commission [2000] AATA 994
Case: [2000] AATA 994
Decision Date: 14 November 2000

CaseChat Overview and Summary

The matter before the court was between Ison, the applicant, and the Repatriation Commission, the respondent. The central issue was whether the applicant’s lumbar spondylosis with associated spondylolisthesis and osteoarthritis of the right knee were caused by his war service. The applicant contended that his conditions were war-caused and sought an increase in his current General Rate assessment of 70 per cent. The Repatriation Commission argued that the conditions were not war-caused, despite accepting that the applicant suffered from osteoarthritis of the right knee.

The court was required to decide whether the applicant’s claims about the causation of his conditions were reasonable hypotheses and whether the Repatriation Commission was satisfied beyond reasonable doubt that the conditions were not war-caused. This involved considering the evidence provided by the applicant about the nature of his duties during his war service and the incident that led to his knee injury. The court also had to assess whether the applicant had suffered trauma to his knee joint and lumbar spine prior to the clinical onset of his conditions.

The court found that the applicant had raised reasonable hypotheses about the causation of his conditions. The court held that the applicant’s duties, which involved kneeling for extended periods and carrying heavy equipment, could have contributed to the development of his lumbar spondylosis and spondylolisthesis. The court also found that the incident where the applicant injured his knee could have caused the onset of his osteoarthritis. The court held that the Repatriation Commission had not satisfied itself beyond reasonable doubt that the applicant’s conditions were not war-caused. Accordingly, the court found in favour of the applicant and ordered that the Repatriation Commission reassess the applicant’s entitlements.

The court also noted that the applicant’s current General Rate assessment of 70 per cent was not adequate to reflect the severity of his conditions and ordered that the assessment be increased. The court held that the applicant’s conditions had a significant impact on his daily life and required ongoing treatment and support. The court directed the Repatriation Commission to reassess the applicant’s entitlements and provide him with appropriate support and services.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Respondent accepts that the Applicant suffers from osteoarthritis of the right knee, but contends that condition was not caused by his war service.evidenceApplicant The Applicant said he was posted to 107 Field Battery, based in Nui Dat, South Vietnam, in 1970/71 as one of 7 gun crew members (who were subsequently reduced to 4) to support the infantry. His duties as a gunner were as a fire support base. He recalled being sent to approximately 22 fire support bases. In the first three to six months he travelled to those bases mainly by truck, and thereafter the majority of their deployments were by helicopter. The crew operated a 105mm Howitzer long barrel field gun. The Applicant explained that the Howitzer, with 105mm shells and cartridges in 1m cylinders attached underneath it, were airlifted by helicopter to the support base. He and one other member of the crew were then required to jump out of the helicopter from about 4 to 6 feet above the ground with their packs and a 105mm anti-personnel shell, in readiness to fire. He said his pack weighed about 45 to 50 pounds and the shells weighed approximately 25 to 30 kilograms each. The Applicant explained that when the gun was at a high angle, he was required to kneel for most of the time in order to load it. He said loading lasted for about 1 to 2 hours, during which time he loaded shells for about 10 to 15 minutes followed by a break for 5 to 10 minutes. He then swapped duties with one of the other members. In the last 6 months of his posting to Vietnam the Applicant recalled an incident where he hit his right knee on the ground after jumping from a helicopter on its way to a fire support base. He twisted his right ankle and felt pain immediately in his right knee. He said that half an hour later his knee began to swell. He said he remained on his knee for about 30 seconds and had difficulty getting up as he felt a sharp pain in the knee joint. He said that he was in pain for about 2 weeks after the incident. He had some initial bruising that eventually settled. The Applicant said that notwithstanding his injuries he continued performing his duties immediately after the incident, but changed duties with other gun crew members to the "on sights position" so that he did not have to bend and lift as much to load the breech of the gun. The Applicant said that the "sights position" was an easier job because one was always standing. He admitted the duties were difficult to do with his injury, but said that most of the time "it was not too bad". Moving to the sights position eased the pain. The Applicant said he reported the injury to the sergeant and the other members of the crew were also aware of the incident. Other than that, there was no one to whom he could report the incident and no medical assistance available in the vicinity. Further, because there were only five members in the crew by that stage, going back to base camp by helicopter was not an option because "you'd be letting the crew down and there was no one else to replace me at the time".

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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