Johnson and Repatriation Commission

[2004] AATA 57

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 57

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No Q2000/40

VETERANS' APPEALS DIVISION		)
Re		RITA PEACE JOHNSON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr I R Way, Member

Date23 January 2004 

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

...................(Sgd)......................

I R Way
  Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – war widows’ pension – whether death of veteran was caused by his war service – ischaemic heart disease – reasonable hypothesis cannot be established – decision affirmed

Veterans’ Entitlements Act 1986, ss 8, 13, 14, 120

Repatriation Commission v Cooke (1998) 160 ALR 17
Ferriday v Repatriation Commission (1996) 42 ALD 526
Repatriation Commission v Deledio (1998) 83 FCR 82

Budworth v Repatriation  Commission (2001) FCA 1421
ReCowie and Repatriation Commission [1999] AATA 334
Re Campbell and Repatriation Commission [2001] AATA 559
Re Lewis and Repatriation Commission [2003] AATA 1078
McKenna v Repatriation Commission (1999) 86 FCR 144

Re May and Repatriation Commission [2003] AATA 1216

REASONS FOR DECISION

23 January 2004 Mr I R Way, Member          

1. This is an application by Rita Johnson for review of a decision of the Repatriation Commission dated 28 July 1997 and affirmed by the Veterans’ Review Board (VRB) on 23 November 1999, which determined that the death of Mrs Johnson’s husband, Herbert Johnson (the veteran), was not war-caused within the meaning of section 8 of the Veterans’ Entitlements Act 1986 (the Act).

2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6) and other documentary evidence as follows:

§  Exhibit A1            Statement of Rita Johnson dated 23 October 2000

§  Exhibit A2            Statement of Malcolm Johnson dated 16 February 2001

§  Exhibit A3            Statement of Glenda Phillips dated 23 February 2001

§  Exhibit A4            Report of Dr Janis Carter dated 13 June 2002

§  Exhibit R1            Report of  Dr Mulholland dated 13 January 2003

3.       The applicant was represented by Mr A Harding and the respondent by Mr J Kelly.  The applicant gave oral evidence.  The applicant’s son, Mr M Johnson, and her daughter, Mrs G Phillips, gave oral evidence.  Dr Carter, Psychiatrist, gave evidence by telephone and Dr P Mulholland, Psychiatrist, gave oral evidence. 

4. Under section 13 of the Veterans’ Entitlements Act 1986 (“the Act”), the Commonwealth is liable to pay a pension by way of compensation to the dependants of a veteran, where the death of the veteran was war-caused. A dependant of a deceased veteran, including a widow (section 11), may make a claim to a pension under section 14 of the Act.

5.       The veteran was born on 22 December 1920 and served in the Australian Army from 14 August 1941 to 1 December 1943, including service overseas in Timor in late 1942 and early 1943.  As such the whole of his service is operational service. 

6.       The veteran died on 3 February 1997 at age 76, the cause of…