Jans and Repatriation Commission - [2006] AATA 974

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 974
ADMINISTRATIVE APPEALS TRIBUNAL №V2006/29
VETERANS’ APPEALS DIVISION

Re: FREIDA JOYCE JANS
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION
Tribunal: Miss E.A. Shanahan, Member
Date:16 November 2006
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) Miss E.A. Shanahan
Member

VETERANS’ AFFAIRS – widow’s pension claim – reasonable hypothesis – cause of death cerebral tumour – contributing cause bronchopneumonia – service-related cigarette smoking – possibility of chronic bronchitis – diagnosis of bronchial asthma - kind of death
Veterans’ Entitlements Act 1986
Statement of Principle Instrument № 17 of 2003
Statement of Principle Instrument № 30 of 2004
Statement of Principle Instrument № 85 of 2001
Brown v Repatriation Commission [2006] FCA 914
Cook v Repatriation Commission (2000) 106 FCR 448
Doolette v Repatriation Commission [1990] 21 ALD 489
Re Mattner v Repatriation Commission [2004] AATA 1326
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock [2003] 37 AAR 383
Repatriation Commission v Towns [2003] FCA 1262
Roscoe v Repatriation Commission [2003] FCA 1568

Suckling v Repatriation Commission (No 1) (2004) 79 ALD 571
REASONS FOR DECISION
16 November 2004 Miss E.A. Shanahan, Member
1. Mrs Frieda Joyce Jans submitted a claim for a widow’s pension on 17 May 2004. Her husband Norman Victor Jans had died on 22 May 1980 and his death certificate stated as the cause of death:
Bronchopneumonia - 4 days
Cerebral glioma – 18 months
Bronchial asthma – 20 years

Mrs Jans claim was rejected on 2 June 2004. This decision was affirmed by the Veterans’ Review Board (VRB) on 24 November 2005. Mrs Jans lodged an application for review of the VRB decision to the Administrative Appeals Tribunal on 11 January 2006.
BACKGROUND TO THE APPLICATION
2. The Veteran’s service in the Australian Army was between 27 April 1940 and 30 November 1942, 14 months of which was overseas. Thus the whole of his service was operational service for the purpose of the Veterans’ Entitlements Act 1986 (the Act). During his service the Veteran is said to have commenced smoking but ceased in approximately 1945. It is claimed that as a result of the smoking he developed chronic bronchitis. During the 1960s the Veteran was diagnosed as suffering from bronchial asthma with intermittent acute infections. In December 1978 the Veteran reported episodic tingling and alteration of sensation in the right side of his face and arm. These episodes continued intermittently and in December 1979 he developed right-sided weakness of the arm. Investigations eventually lead to the diagnosis of a large cerebral glioma (malignant tumour) on or about 20 March 1980. This tumour was assessed as inoperable. The Veteran developed right-sided weakness on 29 March 1980, and was found to have bi‑lateral papilloedema and acutely raised blood pressure; both of which are indicative of raised intra-cranial pressure. The Veteran was hospitalised on 29 April 1980 and died on 22 May 1980 at the age 63 years.
3. Mrs Jans first submitted a claim for…

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.

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Details

AGLC: Jans and Repatriation Commission [2006] AATA 974
Case: [2006] AATA 974
Decision Date: 16 November 2006

CaseChat Overview and Summary

Frieda Joyce Jans appealed to the Administrative Appeals Tribunal (AAT) against the Repatriation Commission's rejection of her claim for a widow's pension. Her husband, Norman Victor Jans, had died on 22 May 1980, with the cause of death listed as bronchopneumonia, cerebral glioma, and bronchial asthma. The Commission's decision to reject the claim was upheld by the Veterans' Review Board (VRB) on 24 November 2005. Mrs Jans submitted that her husband's service-related smoking led to chronic bronchitis, increasing his vulnerability to bronchopneumonia, which hastened his death. The Tribunal had to decide whether the hypothesis was reasonable and if Mrs Jans' husband's death was war-caused.

The Tribunal found that the hypothesis was reasonable as it aligned with the Statement of Principles (SoP) concerning chronic bronchitis and emphysema. However, the Tribunal accepted Professor Cade's opinion that the Veteran suffered from bronchial asthma rather than chronic bronchitis, as supported by the contemporaneous medical records. The Tribunal concluded that the Veteran's bronchial asthma was not war-caused, nor did it contribute to his death by terminal bronchopneumonia. Consequently, the Tribunal affirmed the decision under review, rejecting Mrs Jans' claim for a widow's pension.

Orders