Kerns and Repatriation Commission (Veterans' entitlements) - [2022] AATA 357

Kerns and Repatriation Commission (Veterans' entitlements) [2022] AATA 357 (2 March 2022)
Division:VETERANS’ APPEALS DIVISION
File Number(s): 2020/8077
Re:Michael Kerns
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Member W Frost
Date:2 March 2022
Place:Canberra

The decision under review is affirmed pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
.....................[sgd].......................................
Member W Frost
Catchwords
VETERANS’ ENTITLEMENTS – whether disease is ‘war caused’ – multiple myeloma – Oberon class submarine – benzene – statement of principles 69 – reasonable hypothesis – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) – ss 37, 43
Military Rehabilitation and Compensation Act 2004 (Cth)
Veterans’ Entitlements Act 1986 (Cth) - ss 5AB, 6DB, 7, 9, 13, 14, 68, 120, 120A, 175, 196B
Cases
Repatriation Commission v Deledio (1998) 83 FCR 82
Beezley v Repatriation Commission (2015) 150 ALD 11
Blain v Repatriation Commission [2017] FCA 114
Repatriation Commission v Hill [2002] FCAFC 192
Ellis v Repatriation Commission [2014] FCA 847
East v Repatriation Commission [1987] FCA 242
Dougherty and Repatriation Commission [2019] AATA 706
Bull v Repatriation Commission [2001] FCA 1832
Budge and Repatriation Commission [2014] AATA 276
Forrester v Repatriation Commission [2013] FCA 898
Repatriation Commission v Bey (1997) 79 FCR 364
Secondary Materials
Statement of Principles No 69 of 2012
Statement of Principles No 70 of 2012
Statement of Principles No 95 of 2021
Statement of Principles Bulletin No 189
REASONS FOR DECISION
Member W Frost
2 March 2022

The Applicant, Mr Michael Kerns, made a claim with the Department of Veterans’ Affairs (DVA) for a Disability Pension on the basis that his diagnosed multiple myeloma resulted from exposure to benzene during his service on Royal Australian Navy (RAN) submarines in the 1980s. A delegate of DVA refused Mr Kerns’ claim because they were not satisfied that his condition was related to his service. The Veterans’ Review Board (VRB) affirmed this decision and Mr Kerns applied to the Administrative Appeals Tribunal (Tribunal) for merits review.
Together with the submissions provided at the hearing, the Tribunal has considered all of the documents filed by the Repatriation Commission in this proceeding pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act)[1], the supporting documents filed in the proceeding by Mr Kerns and taken into evidence by the Tribunal[2] and the parties’ respective written submissions.
[1] Exhibits 1, 2 and 13.
[2] Exhibits 3 to 12.
ISSUE
The issue in this proceeding is whether Mr Kerns’ multiple myeloma was ‘war-caused’ pursuant to the Veterans’ Entitlements Act 1986 (VEA).
BACKGROUND
Mr Kerns is 60 years old.[3]
[3] Exhibit 1, T2, page 10.
On 29 June 1981, Mr Kerns enlisted in the RAN.[4]
[4] Exhibit 1, T4, page 26.
Between June 1981 and January 1982, Mr Kerns undertook general entry and other training and was promoted to the rank of ‘Seaman Underwater Control (Unqualified)’.[5]
[5] Exhibit 1, T5, page 29.
On 15 January 1982, Mr Kerns obtained the rank…

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

Case: [2022] AATA 357
Decision Date: 2 March 2022

CaseChat Overview and Summary

This matter concerned an appeal by Mr Kerns against a decision of the Repatriation Commission regarding his claim for a disability pension under the *Veterans’ Entitlements Act 1986* (VEA). The central dispute was whether Mr Kerns' diagnosis of multiple myeloma constituted a 'war-caused' disease for the purposes of the VEA. The case was heard by a Member of the Tribunal.

The legal issues before the Tribunal were whether Mr Kerns had rendered eligible war service and, crucially, whether his multiple myeloma was 'war-caused' within the meaning of the VEA. This required determining if there was a reasonable hypothesis connecting his diagnosed condition to the circumstances of his service, particularly his time serving on Oberon Class submarines in the Royal Australian Navy.

The Tribunal found that Mr Kerns had rendered eligible war service, specifically between 26 January 1983 and 27 October 1986, due to his operational service on submarines. However, the Tribunal concluded that the material before it did not raise a reasonable hypothesis linking Mr Kerns' multiple myeloma to the circumstances of his service. Applying the principles of the VEA, the Tribunal was not satisfied that the disease was 'war-caused', and therefore, Mr Kerns' claim for a disability pension was unsuccessful. The decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

The issue in this proceeding is whether Mr Kerns’ multiple myeloma was ‘war-caused’ pursuant to the Veterans’ Entitlements Act 1986 (VEA).BACKGROUND Mr Kerns is 60 years old.[3][3] Exhibit 1, T2, page 10. On 29 June 1981, Mr Kerns enlisted in the RAN.[4][4] Exhibit 1, T4, page 26. Between June 1981 and January 1982, Mr Kerns undertook general entry and other training and was promoted to the rank of ‘Seaman Underwater Control (Unqualified)’.[5][5] Exhibit 1, T5, page 29. On 15 January 1982, Mr Kerns obtained the rank of ‘Seaman Underwater Control (Qualified)’ and performed Seaman Duties, as follows:[6] Part of Ship – Employed as a seaman. Maintenance duties on metal surfaces and fittings. Painting, ropework, boatwork, anchorwork, berthing, rigging, underway replenishment and seamanship evolutions as directed by Part of Ship Petty Officer. Helmsmanship under the Supervision of the Quartermaster. Bosun’s Mate (Sea) – Assists the Quartermaster running the wheelhouse. Responsible for recording meteorological details in the rough log. Acts as runner for the Officer of the Watch. Bosun’s mate (Harbour) – Assists the Quartermaster running the ship’s daily routine, updates gangway log and incident books, maintains gangway and upperdeck security. Monitors and records meteorological instrument readings. [6] ibid., pages 29-31. Between May and December 1982, Mr Kerns undertook further training and on 8 December 1982, was promoted to ‘Able Seaman Underwater Control’.[7][7] ibid., page 31. On 25 January 1983, Mr Kerns was awarded a Submarine Badge.[8][8] ibid., page 31. From 26 January 1983 to 28 August 1983, a total of 30 weeks, Mr Kerns was posted to HMAS Otama, an Oberon Class submarine in the RAN.[9] During this time, Mr Kerns performed the following duties:[10]Sound Room Watchkeeper – Operation of submarine sonar equipment under the supervision of the Sound Room Petty Officer of the Watch.[9] ibid., page 34; T7, page 150.[10] Exhibit 1, T5, page 33. From 29 August 1983 to 26 October 1986, a total of 165 weeks, Mr Kerns was posted to HMAS Onslow, another Oberon Class submarine.[11] From August 1983, Mr Kerns undertook the following duties as a Seaman:[12] Refit watchkeeper – Carry out fire watchkeeper duties outside dockyard hours. Navigator’s Yeoman – Responsible for: recording and acknowledging receipt of charts and publications; recording receipt of all notices to mariners and transferring of such information to relevant record books; maintaining navigational warning message logs in co-operation with the ship’s communications department; ensuring that ship’s outfit of navigational charts, hydrographic publications and plotting material is corrected and maintained; preparing and providing charts, publications and plotting materials as directed by the Navigator and safe custody of permanent loan items and navigational instruments.[11] ibid., page 34; T7, page 150. [12] Exhibit 1, T5, page 33. From February 1985, Mr Kerns performed the following roles:[13]Sound Room Watchkeeper – Operation of submarine sonar equipment under the supervision of the Sound Room Petty Officer of the Watch.Casing Party – Line handling and seamanship duties during harbour stations and seamanship evolutions.[13] ibid., pages 33 and 35.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It follows from the above reasons that the material before the Tribunal does not raise a reasonable hypothesis connecting Mr Kerns’ multiple myeloma with the circumstances of the particular operational service he rendered with the RAN. As a result, Mr Kerns’ claim is unsuccessful. While the Tribunal’s decision will be a difficult one for Mr Kerns, it neither diminishes the nature of his significant medical condition nor his substantial service with the RAN and for this country. However, based on all the available evidence, the Tribunal is not satisfied that Mr Kerns’ multiple myeloma was ‘war-caused’ as required under the VEA for the Commonwealth to be found liable to pay him compensation by way of a Disability Pension.DECISION The decision under review is affirmed pursuant to subsection 43(1)(a) of the AAT Act.

Ratio Decidendi

Legal Principle Established

Accordingly, it was submitted by the Repatriation Commission, Mr Kerns’ application cannot succeed and the VRB decision under review should be affirmed. CONSIDERATIONDid Mr Kerns render eligible war service? It was not in dispute between the parties that Mr Kerns is a veteran who has rendered the requisite operational service under the VEA. Section 6DB of the VEA relevantly provides that a member of the Australian Defence Force is taken to have rendered operational service where they served full-time on a submarine for a period starting on or after 1 January 1978 and ending on or before 12 May 1997, the service was on ‘submarine special operations’, and the member has been awarded the Australian Service Medal with Clasp “SPECIAL OPS” for the special service. As set out above in these reasons, Mr Kerns enlisted with the RAN in 1981 and discharged in 1987. He was posted to Oberon Class submarines HMAS Otama from 26 January 1983 and HMAS Onslow from 29 August 1983 until 27 October 1986. Therefore, as required by the VEA, Mr Kerns rendered continuous full-time service on a submarine for a period between the years 1978 and 1997, specifically being from 26 January 1983 to 27 October 1986. Additionally, on 17 April 1983, Mr Kerns was awarded the Australian Service Medal with Special Operations Clasp in relation to his service. Accordingly, under section 6DB of the VEA, Mr Kerns’ service with the RAN from 26 January 1983 to 27 October 1986 is taken to be ‘operational service’. Mr Kerns’ other periods of service, from 29 June 1981 to 15 January 1983, and from 28 October 1986 to 28 June 1987, are deemed to be ‘defence service’ under subsection 68(1) of the VEA. Pursuant to subsection 7(1)(a) of the VEA, which provides that ‘a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service’, Mr Kerns is taken to have rendered eligible war service from 26 January 1983 to 27 October 1986.What is the kind of disease suffered by Mr Kerns? The Tribunal is satisfied, based on the medical evidence, that Mr Kerns has multiple myeloma. This condition was diagnosed by Dr Edwin Lee, Haematologist, in September 2019.[46] [46] Exhibit 1, T9, page 171. When was the clinical onset of the disease? The Tribunal finds, on the available evidence, that the clinical onset of Mr Kerns’ multiple myeloma was 1 June 2019, as he stated in the Claim for Disability Pension document lodged with DVA.[47] In this regard, the reported signs and symptoms of Mr Kerns’ multiple myeloma from June 2019, including lethargy, bone soreness and anaemia, were found by the Compensation Medical Advisor in January 2020 to be ‘entirely in keeping with the typical presentation of this disease condition’.[48] [47] ibid., page 162. [48] Exhibit 1, T13, page 194. What are the applicable steps to determine Mr Kerns’ claim for a Disability Pension? As previously stated in these reasons, the primary issue before the Tribunal is whether Mr Kern’s multiple myeloma was ‘war-caused’ pursuant to the VEA.