King and Repatriation Commission - [2000] AATA 1151

DECISION AND REASONS FOR DECISION [2000] AATA 1151

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/609

VETERANS' APPEALS DIVISION )
          Re      ARTHUR WILLIAM KING
  Applicant
          And     REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date22 December 2000
PlaceSydney

Decision        The Administrative Appeals Tribunal ("the Tribunal") varies the decision of the Veteran's Review Board of 22 March 1999 which affirmed the decision of the Repatriation Commission dated 1 July 1996 with the exception that Mr King's osteoarthrosis of the left thumb which was held to be war-caused. The Tribunal finds that Mr Arthur William King's osteoarthrosis of his left hand, left wrist, and right middle finger was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986. The decision to award pension at 100% of the General Rate is affirmed.
  ..............................................
  Ms G Ettinger
  Senior Member
CATCHWORDS
VETERANS - whether osteoarthrosis of the hands, wrists and fingers were war-caused - applicable SoPs - eligibility for pension at the special rate –decision set aside as to entitlement and affirmed as to assessment
Legislation
Veterans' Entitlements Act 1986 ss 9, 119, 120(1), 120(3) and 120A.

Statements of Principles
Repatriation Medical Authority Statement of Principles Instrument No.71 of 1995 as amended by No.336 of 1995 and No.352 of 1995.

Case Law
Birtlesv Repatriation Commission (1991) 33 FCR 290
Byrnes v Repatriation Commission (1993) 177 CLR 564
Cavell v Repatriation Commission (1988) 9 AAR 534
Deledio v Repatriation Commission (1997) 47 ALD 261
Harris v Repatriation Commission [2000] FCA 873
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Keeley (2000) 31 AAR 150
Starcevich v Repatriation Commission (1987) 14 ALD 160

REASONS FOR DECISION

22 December 2000 Ms G Ettinger Senior Member

The decision under review by the Administrative Appeals Tribunal ("the Tribunal") was the decision of the Repatriation Commission dated 1 July 1996 (T2). Mr King's application for review to the Veterans' Review Board was heard on 11 April 1997, and adjourned for the Repatriation Medical Authority to complete a review on the relationship between osteoarthrosis and trauma to the relevant joint.
The Veterans' Review Board then on 22 March 1999 (T16), refused the claim of Mr Arthur William King, the Applicant, that the osteoarthrosis he suffered in the both hands, wrists and fingers was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986 ("the Act") with the exception of the left thumb which was accepted.
The Applicant had previously made a claim to the Repatriation Commission on 22 January 1991 in respect of the osteoarthrosis he suffered in his hands and wrists. The Repatriation Commission refused the claim on 27 February 1991 (T6).
The Applicant, Mr Arthur William King, was represented by Ms A Toliopoulos, of the Veterans' Advocacy Service of the Legal Aid Commission, and the Respondent by its advocate, Mr R Wallis.
ISSUES BEFORE THE TRIBUNAL
The issues before the Tribunal were:
(a)Whether the osteoarthrosis suffered by the Applicant in both his hands, wrists and fingers was war-caused pursuant to section…

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 King and Repatriation Commission

Details

AGLC: King and Repatriation Commission [2000] AATA 1151
Case: [2000] AATA 1151
Decision Date: 22 December 2000

CaseChat Overview and Summary

In the case of King v Repatriation Commission, the applicant, Mr Arthur William King, appealed a decision regarding his eligibility for a war-caused disability pension. The dispute was heard and determined by the Administrative Appeals Tribunal (the Tribunal). The primary issue before the Tribunal was whether Mr King's osteoarthrosis of the hands, wrists, and fingers was caused by his war service, and consequently, whether he was entitled to a pension at the special rate under the Veterans' Entitlements Act 1986.

The Tribunal carefully examined Mr King's evidence and the applicable Service Direction Orders (SoPs). Mr King testified that during his service in Korea, he sustained injuries to his hands, wrists, and fingers in specific incidents, including carrying a wounded soldier under artillery fire and a fall down a hill. He also recounted the difficulties he faced in using his hands post-injury, which persisted even after his return from service. The Tribunal considered these incidents alongside medical evidence to determine if the injuries met the criteria for a war-caused disability under the Act.

After thorough consideration, the Tribunal found that Mr King's osteoarthrosis of the left thumb, left wrist, and right middle finger was indeed war-caused. The Tribunal set aside the decision regarding the special rate pension but affirmed the assessment of the war-caused disability. Consequently, Mr King's pension was to be continued at 100% of the General Rate.

The Tribunal's decision was clear in affirming the war-causation of Mr King's disabilities while modifying the pension rate. The Tribunal varied the decision of the Veterans' Review Board, affirming that Mr King's conditions were attributable to his war service, thereby entitling him to the appropriate recognition and benefits under the Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Oral evidence was given by the Applicant, Mr Arthur William King.EVIDENCE OF THE APPLICANT, MR ARTHUR WILLIAM KING Mr King, whose date of birth was 5 August 1931, and whose statement date stamped 13 September 1999 was before the Tribunal at Exhibit A1, gave oral evidence before the Tribunal. He said that prior to enlisting in the Australian Army, he worked on a station at Wee Waa. Mr King said that he joined the Army at aged 18 and went to Korea on 1 September 1951, where he was in the infantry as a forward scout, and where he saw active service. Mr King said that, on 7 October 1951 whilst involved in Battle 317, he and another man carried a wounded solider back from the front line. The wounded solider, Driver Hutton, weighed approximately 14 stone according to Mr King, whilst he himself weighed only 8 stone. Mr King said that as they carried the injured soldier, there was artillery exploding overhead, which forced them to dive for cover. He said that it took approximately an hour to carry the wounded man back to base as they had to dodge artillery on up to twelve occasions. Mr King said that on one such occasion he hurt his left hand diving into a hole, indicating to the Tribunal the area from the left thumb to the wrist. He said that they tried to dig in a position however, the hills were all rocky and they were prevented from obtaining cover. Mr King said that he wrapped up his injured left wrist following the incident and after obtaining a bandage from a fellow soldier, he returned to the front line. Mr King said that approximately ten to twelve days after the injury his left hand was still sore and he had it bandaged when he went on ("Rest and Recreation") R&R to Japan for five days. He said that his left hand hurt and that he continued to use the bandage for support. Mr King said that he could not dig for some time after his injury, neither carry ammunition, and had to handle his gun and worked unwinding barbed wire with one hand. Mr King said that he had a few twinges on his right hand but it was not as bad as the left. Mr King also recalled another incident in which he injured his right hand in a 40 foot fall down the side of a hill while going through 4 Platoon to an outpost. He said that as he fell he reached out with both hands to try and hold onto anything that would slow his fall. Mr King also told the Tribunal that in the course of the fall, a magazine of bullets fell from his pouch. When he tried to look for the magazine that had fallen out of his pouch, another soldier stepped on his right hand. Mr King said that his right hand hurt all over and both hands were numb and sore from the cold. However, he was not able to get to a RAP as the Chinese Army was very active in the area, winter was severe, and he was virtually cut off from the base. Mr King informed the Tribunal that when he was able, he consulted an Indian dentist to have teeth extracted. He said that he told the dentist that he had "a crook hand", and that the dentist replied that they all had crook hands.

Decision

Reasons for decision

Therefore, I find that the Applicant's pension should be continued at 100% of the General Rate.DECISION The Administrative Appeals Tribunal ("the Tribunal") varies the decision of the Veteran's Review Board of 22 March 1999 which affirmed the decision of the Repatriation Commission dated 1 July 1996 with the exception that Mr King's osteoarthrosis of the left thumb which was held to be war-caused. The Tribunal finds that Mr Arthur William King's osteoarthrosis of his left hand left wrist, and right middle finger was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986. The decision to award pension at 100% of the General Rate is affirmed.

Ratio Decidendi

Legal Principle Established

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