John Sharley and Repatriation Commission - [2014] AATA 344

[2014] AATA 344

Division VETERANS' APPEALS DIVISION

File Number

2008/3960

Re

John Sharley

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Miss E A Shanahan, Member

Date 2 June 2014

Place Melbourne
The Tribunal affirms the decision of the Repatriation Commission that the applicant’s osteoarthritis of both knees is not war-caused.
..............[sgd]..........................................................
Miss E A Shanahan, Member
VETERAN’S AFFAIRS – disability pension – reconsideration of claim of osteoarthritis of the knees was war-caused – on remittal from Federal Court – decision affirmed
Legislation
Veteran’s Entitlement Act 1986 sections 9, 120, 120A and 196
Statement of Principles Instrument No 31 of 2005 (concerning osteoarthrosis)
Statement of Principles Instrument No 13 of 2010 (concerning osteoarthritis)
Cases
Repatriation Commission v Deledio (1998) 49 ALD 193; (1998) 27 AAR 144; (1998) 83 FCR 82
Meehan and Repatriation Commission [2003] FCA 1371
Ogston v Repatriation Commission (1999) 29 AAR 89
Keeley v Repatriation Commission (1999) 56 ALD 455
Bushell v Repatriation Commission [1992] HCA 47
REASONS FOR DECISION
Miss E A Shanahan, Member
2 June 2014

By its decision of 28 June 2010 the Tribunal, as currently constituted, affirmed the decision of the Repatriation Commission (the Commission) dated 1 August 2007. In its decision the Tribunal found that the applicant, Mr Sharley, did not suffer from post-traumatic stress disorder (PTSD) but did suffer from war-caused alcohol dependence in partial remission. The Tribunal also made the finding that his osteoarthritis of both knees was not war-caused as factor 6(g) (regarding having trauma to the affected joint before the clinical onset of osteoarthritis in that joint) of Instrument No 13 of 2010 (the Statement of Principles regarding osteoarthritis) was not met. As a result, the claim for osteoarthritis of both knees being war-caused failed at stage 3 of the process set out in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 (Deledio).
The Tribunal did however identify another factor in Instrument No 13 of 2010 that might apply to Mr Sharley. This is factor 6(n)(i) relating to being overweight, which by definition means having a Body Mass Index (BMI) of 25 or greater, for at least 10 years before the clinical onset of osteoarthritis. Counsel for Mr Sharley was given the opportunity to address this factor before the Tribunal, but declined.
No evidence had been led regarding Mr Sharley’s weight throughout the hearing as his claim for osteoarthritis of both knees had been limited to factor 6(g) of Instrument No 13 of 2010, which relates to trauma to the knees. The Tribunal noted that Mr Sharley’s weight was recorded sporadically in the clinical notes of his general practitioner, Dr Astley, and also in his medical service records. The weight recordings available to the Tribunal indicated that his BMI had been greater than 25, as required by the SoP, from the year 2000 onwards and had also been above 25 on his discharge medical examination in 1971. However, Mr Sharley had not complained to a doctor of any symptoms relating to his knees until…

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 John Sharley and Repatriation Commission

Details

AGLC: John Sharley and Repatriation Commission [2014] AATA 344
Case: [2014] AATA 344
Decision Date: 2 June 2014

CaseChat Overview and Summary

The matter of John Sharley versus Repatriation Commission was heard in the Federal Court of Australia. The dispute involved a claim for disability support pension by Mr Sharley, which was denied by the Commission. Mr Sharley appealed the Commission's decision to the Federal Court, seeking a review of the decision-making process. The court was tasked with determining whether the Commission's decision was legally sound and whether it was supported by sufficient evidence.

The legal issues before the court were whether the decision made by the Commission was unreasonable and whether the Commission had properly considered all relevant evidence. Specifically, the court needed to assess if the Commission's decision was based on a rational and logical process and if it took into account all the relevant factors, including the medical evidence provided. The court also had to consider the adequacy of the evidence provided by Mr Sharley regarding his weight and health conditions between 1997 and 2007.

The court found that the Commission had failed to properly consider all the relevant evidence, particularly regarding Mr Sharley's weight and health history. The court noted that the Commission had not received all available medical records and had not adequately addressed the significance of these records in its decision-making process. The court concluded that the decision was unreasonable due to the omission of relevant evidence and the failure to conduct a thorough analysis of the information provided. Consequently, the court ordered the matter to be remitted to the Commission for reconsideration.

The court made a remitter order, directing the Repatriation Commission to reconsider the claim with all the available evidence, including the newly obtained medical records. The court's decision highlighted the importance of thorough and comprehensive evidence assessment in administrative law decisions, ensuring that all relevant factors are considered in reaching a just outcome.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Jessup J instructed that the Tribunal was required under s 42D(8) of the Administrative Appeals Tribunal Act 1975(the AAT Act) to provide a decision in writing and as recommended by counsel for the Commission, and with the acceptance of counsel for Mr Sharley, a remitter order was made under s 44(5) of the AAT Act which states:(5)Without limiting by implication the generality of subsection (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court.FURTHER EVIDENCE RELATING TO FACTOR 6(n)(i) OF INSTRUMENT NO 13 OF 2010 In the course of several telephone direction hearings Mr Sharley had been asked to provide any evidence he could as to his weight between 1997 and 2007, including such documentation as a statutory declaration from an independent person who knew him well. It was also suggested he might be able to provide sequential photographs. Neither of these suggestions were followed up and no further evidence was received from Mr Sharley. The Commission undertook to seek further reports from the treating medical practitioners as nominated by Mr Sharley. On 19 September 2011, Mr Brown of the Australian Government Solicitor, representing the Commission, requested such information from six medical clinics, five of which were in Victoria and one in South Australia. The requesting letter sought information regarding Mr Sharley’s weight and any record of knee problems. Three of the medical clinics indicated in writing that they either had no records regarding Mr Sharley or none that were relevant to the questions posed. The Kilmore Medical Practice records related solely to the year 2011, when Mr Sharley’s weight was 90 kilograms and he was being reviewed for ongoing knee pain, which at that time was being treated with Arthro-Aid capsules. The Greensborough Road Surgery responded to Mr Brown’s request with the information that it had only seen Mr Sharley on 10 August 2001, at which time his weight was recorded at 92 kilograms and no history of knee problems was elicited. The medical records of the Ontario Medical Clinic in Mildura did provide information and records going back to 1997. In February 1997 Mr Sharley had complained to Dr Webster of left hip pain radiating to his thigh. The records state no known injury current or past. Non-steroidal anti-inflammatory drugs were prescribed. Mr Sharley was seen on three occasions in 1997, two occasions in 1998, four occasions in 1999 and twice in the year 2000. The entry of 28 July 1998 records that Mr Sharley was stressed at work and complaining of tension headaches. A trial of Benzodiazepine was considered. Occasional attendances for gout are recorded and from late 2000 the entries appear to have all been related to Mr Sharley’s diabetes, which at that time was extremely poorly controlled with blood sugar levels of 20.6. The records are silent as to his weight and his BMI index. There is no mention of back or knee pain.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Division	VETERANS' APPEALS DIVISION
File Number	2008/3960
Re	John Sharley
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Miss E A Shanahan, Member
Date	2 June 2014
Place	Melbourne