Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 66
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/3093
Veterans' Affairs DIVISION ) Re JEFFREY BAIRD Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr Egon Fice, Member
Dr Kerry Breen, Member
Date1 February 2010
PlaceMelbourne
Decision The decision of the Veterans’ Review Board (VRB) dated 12 June 2007 in respect of Mr Baird’s claimed gastro-oesophageal reflux disease (GORD) is set aside. Instead, the Tribunal finds that Mr Baird’s GORD was war‑caused. The Tribunal affirms the decision of the VRB dated 12 June 2007 regarding Mr Baird’s rate of pension.
(sgd) Egon Fice
Member
CATCHWORDS – gastro-oesophageal reflux disease – diagnosis – clinical onset – solicitors instructions to expert – independence of expert – war-caused disease – alcohol consumption and smoking – intermediate and special rate of pension – remunerative work – cause and extent of incapacity – alone test
Veterans’ Entitlement Act 1986 ss 7, 9A, 13(1), 21(2),23, 24, 24A, 101(1), 120, 120(1),(2),(3) 120A, 120A(3), 196B(2), (11)
Statement of Principles concerning gastro-oesophageal reflux disease No 11 of 2005
Byrnes v Repatriation Commission (1993) 177 CLR 564
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (1999) 58 ALD 394
Government Insurance Office (NSW) v R J Green and Lloyd Pty Ltd (1966) 114 CLR 437
Law v Repatriation Commission (1980) 29 ALR 64
Lees v Repatriation Commission (2002) 125 FCR 331
Peacock v Repatriation Commission (2004) 40 AAR 143
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hendy (2002) 76 ALD 47
Walsh v Rother District Council [1978] 1 ALL ER 510
Wright v Repatriation Commission [2005] FCA 7
Chambers 21st Century Dictionary
REASONS FOR DECISION
1 February 2010 Mr Egon Fice, Member 1. Mr Jeffrey Baird served in the Australian Army (the army) between 29 September 1965 and 29 November 1967. He had operational service in South Vietnam between 2 April 1967 and 14 August 1967.
2. On 1 April 2005 Mr Baird lodged a claim for disability pension because he suffered gastro-oesophageal reflux disease (GORD), alcohol abuse and tinea. On 22 April 2005 Mr Baird lodged a further claim for what he described as heart problems. On 13 December 2005 a delegate of the Repatriation Commission (the Commission) determined that Mr Baird suffered GORD, alcohol dependence, tinea and ischaemic heart disease. The Commission accepted Mr Baird’s claims for tinea and ischaemic heart disease but rejected his claims for alcohol dependence and GORD. It also increased his rate of disability pension to 60 per cent of the general rate, with effect from 1 January 2005.
3. Dissatisfied with the Commission’s decision, Mr Baird sought a review by the Veterans’ Review Board (VRB). Mr Baird then applied to the Commission for an increase in his rate of disability pension to the special rate because his ischaemic heart disease had worsened. On 29 September 2006 a delegate…
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- Case
- [2010] AATA 66
- Decision Date
CaseChat Overview and Summary
The court had to decide whether Mr Baird's GORD was caused by his military service, thereby qualifying as a war-caused condition, and whether the VRB had correctly assessed the rate of pension. The primary issue was the causal link between Mr Baird’s GORD and his service, while a secondary issue involved the correctness of the pension rate already determined by the VRB.
The court meticulously reviewed medical evidence and the testimonies provided to determine the origin of Mr Baird’s GORD. It concluded that the evidence strongly suggested a connection between his military service and the onset of GORD, leading to the finding that the condition was indeed war-caused. While affirming the VRB’s decision on the rate of pension, the court found that the GORD was war-caused, overturning the VRB’s earlier decision on this point.
Orders
Orders of the court
The decision of the Veterans’ Review Board (VRB) dated 12 June 2007 in respect of Mr Baird’s claimed gastro-oesophageal reflux disease (GORD) is set aside. Instead, the Tribunal finds that Mr Baird’s GORD was war‑caused. The Tribunal affirms the decision of the VRB dated 12 June 2007 regarding Mr Baird’s rate of pension.
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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