Jackson and Repatriation Commission - [2000] AATA 996

DECISION AND REASONS FOR DECISION [2000] AATA 996

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/795

VETERANS' APPEALS DIVISION       )
           Re      DOUGLAS JOHN JACKSON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Dr M E C Thorpe, Member

Date14 November 2000
PlaceSydney

Decision      The decision under review is set aside. In substitution therefor the Tribunal decides that the Applicant qualifies for Disability Pension at 100 per cent of the general rate with effect from 14 August 1996.
  ..............................................
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – disability pension – ischaemic heart disease – operational service – eligible defence service – causal connection – assessment of rate of pension

Veterans' Entitlements Act 1986 ss 9(1)(b), 13(1)(b), 14, 29

Lindner v Wright (1976) 14 ALR 105
Repatriation Commission v Hawkins (1993) 117 ALR 225
Repatriation Commission v Tuite (1993) 39 FCR 540

REASONS FOR DECISION

Mr M J Sassella, Senior Member Dr M E C Thorpe, Member

APPLICATION

On 14 November 1996 Mr Jackson ("the Applicant") lodged a claim (T4) for a Disability Pension payable under the Veterans' Entitlements Act 1986 ("the Act"). He claimed under ss 13(1)(b), 14(1) and (3) in respect of a hearing problem, tinnitus, "bad nerves" and stress induced heart problems.
On 7 February 1997 the Repatriation Commission ("the Respondent") made a decision on Mr Jackson's claim referring to his conditions as bilateral senori-neural hearing loss ("BSHL"), bilateral tinnitus, post-traumatic stress disorder ("PTSD") and ischaemic heart disease ("IHD"). The Respondent rejected the claim in relation to IHD but accepted it in relation to the other conditions. A Disability Pension was granted with effect from 14 August 1996 payable at 50 per cent of the general rate (T14).
On 17 February 1999 the Respondent also decided to grant another claim lodged by Mr Jackson in relation to a skin cancer condition. This decision was effective from 14 June 1998 and resulted in Mr Jackson's pension rising to 80 per cent of the general rate (T26).
On 18 March 1997 the Applicant lodged an application for the Veterans Review Board ("VRB") to review of the decision to reject his claim in relation to IHD (T16). On 6 April 1999 the VRB affirmed the Respondent's original decision to regard IHD as a non-accepted condition. It set aside the 50 per cent general rate decision. It considered that 70 per cent would be appropriate as the rate before 14 June 1998. It noted that 80 per cent was being paid and decided to continue the rate of pension at 80 per cent from 14 June 1998 (T29). This decision was notified to the Applicant in a letter dated 7 May 1999 (T36).
Mr Jackson lodged with the Tribunal an application for review on 27 May 1999 (T1).
The documents produced pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were admitted as evidence (Exhibit TD1) in addition to the following material:
Exhibit No Description Date
A1 A2 A3 A4 R1 R2 Applicant's Statement of Facts and…

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 Jackson and Repatriation Commission

Details

AGLC: Jackson and Repatriation Commission [2000] AATA 996
Case: [2000] AATA 996
Decision Date: 14 November 2000

CaseChat Overview and Summary

Jackson, the applicant, brought an appeal against the Repatriation Commission's refusal to include ischaemic heart disease (IHD) as an accepted condition for which he was eligible to receive a disability pension. The dispute was heard and determined by the Administrative Appeals Tribunal (AAT). The AAT was tasked with determining whether IHD was an accepted condition under the Veterans' Entitlements Act 1986, and if so, whether there was a causal connection between Mr Jackson's IHD and his operational service, entitling him to a higher rate of disability pension.

The primary legal issues before the AAT were whether IHD should have been included as an accepted condition for the purposes of the Act, and if so, whether there was a causal link between Mr Jackson's IHD and his service that would entitle him to a higher rate of pension. The AAT was required to examine relevant case law and statutory provisions to resolve these questions. The AAT considered the relevant sections of the Veterans' Entitlements Act, as well as the authorities of Lindner v Wright, Repatriation Commission v Hawkins, and Repatriation Commission v Tuite. The AAT determined that IHD should indeed be recognised as an accepted condition under the Act and that there was a causal link between Mr Jackson's IHD and his service. As a result, the AAT found that Mr Jackson was entitled to a higher rate of disability pension.

The AAT found that the Repatriation Commission had erred in not recognising IHD as an accepted condition and in not acknowledging the causal link between Mr Jackson's IHD and his service. The AAT set aside the Commission's decision and substituted it with its own decision, finding that Mr Jackson was entitled to a disability pension at 100 per cent of the general rate, effective from 14 August 1996. The AAT's decision was based on the evidence presented and the relevant authorities, and it was made in accordance with the applicable statutory provisions. The AAT certified that the preceding 57 paragraphs were a true copy of the reasons for the decision. The decision was signed by Mr M J Sassella, Senior Member, and Dr M E C Thorpe, Member, and was dated 14 November 2000. The applicant was represented by Ms E Sadleir, and the respondent by Mr R Wallis.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal has therefore concluded that IHD should have been included as an accepted condition since 14 August 1996 and that Mr Jackson's Disability Pension should have been paid at 100 per cent of the general rate since that date.DECISION The decision under review is set aside. In substitution therefor the Tribunal decides that the Applicant qualifies for Disability Pension at 100 per cent of the general rate with effect from 14 August 1996.I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Dr M E C Thorpe, MemberSigned: ..................................................................................... AssociateDate of Hearing 28 June 2000 Date of Decision 14 November 2000Representative for the Applicant Ms E Sadleir Representative for the Respondent Mr R Wallis

Ratio Decidendi

Legal Principle Established

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