Kolantgis and Repatriation Commission - [2002] AATA 540

DECISION AND REASONS FOR DECISION [2002] AATA 540

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1081

VETERANS' APPEALS DIVISION          )
           Re      James Kolantgis
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date3 July 2002
PlaceSydney

Decision      The Tribunal affirms the decision under review.
  ..............................................
  R P Handley
  Deputy President
CATCHWORDS
VETERANS' REVIEW BOARD – Repatriation Commission – review of percentage of disability and payment of disability pension at 70% of the General Rate – necessity that a hypothesis connecting the injury to an Applicant's operational service must be established to the reasonable satisfaction of the Tribunal – necessity for the Applicant to have suffered a "trauma" in accordance with the relevant Statement of Principles – held that the Applicant's injuries do not satisfy the definition of "trauma" – decision under review affirmed.
Veterans' Entitlement Act 1986 ss 6A, 13(1), 21, 21A, 22, 120A, 120(1)(3)(4)
Arnott v Repatriation Commission [2000] FCA 1336
Connors v Repatriation Commission [2000] FCA 783
Harris v Repatriation Commission [2000] FCA 873
Harris v Repatriation Commission [2000] FCA 1687
Mason v Repatriation Commission [2000] FCA 1409
Repatriation Commission v Budworth [2001] FCA 1421
Repatriation Commission v Deledio [1998] FCA 391

STATEMENT OF REASONS

3 July 2002 R P Handley

This is an application by James Kolantgis ("the Applicant") for a review of a decision of the Veterans' Review Board ("VRB") made on 31 May 2001 affirming a decision of a delegate of the Repatriation Commission ("the Respondent") to refuse the Applicant's claim for lumbar and cervical spondylosis and continue payment of the disability pension at 70% of the General Rate.
At the hearing, the Applicant was represented by Brian Winship of Rockcliffs, Solicitors, and the Respondent was represented by Jim Marsh of the Department of Veterans' Affairs. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents") together with the documents tendered by the parties. The Applicant gave oral evidence.
Background
The Applicant was born on 17 September 1927 and is aged 74. He enlisted in the Australian Army on 19 March 1946. He served in Japan from about February 1949, returning to Australia on 1 November 1949. His service from 19 March 1946 to 1 November 1949 constitutes "operational service". He was discharged on 27 May 1951.
The Applicant claims to have suffered injuries to his neck and back while serving in Japan. He also suffered injuries in a motorcycle accident while serving at Puckapunyal in Victoria on 22 March 1950. On 8 March 1990, the Respondent accepted that the Applicant suffers from "war-caused" sensori-neural deafness with tinnitus.
The Applicant has made a number of claims in respect of headaches, pain, osteoarthritis of both shoulders and both hips and lumbar and cervical spondylosis. On 17 January 2000, the applicant lodged a claim for lumbar and cervical spondylosis. On 16 May 2000, a delegate of the Respondent rejected the Applicant's claim and decided that payment of disability…

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 Kolantgis and Repatriation Commission

Details

AGLC: Kolantgis and Repatriation Commission [2002] AATA 540
Case: [2002] AATA 540
Decision Date: 3 July 2002

CaseChat Overview and Summary

In the case of Kolantgis v Repatriation Commission, the applicant sought a review of a decision by the Veterans' Review Board (VRB) that rejected his claim for a war-caused lumbar and cervical spondylosis. The applicant, a former serviceman who served in Japan, claimed that the spondylosis resulted from injuries he suffered during his service. The VRB had determined that the applicant's claims were not substantiated, and the applicant sought review by the Administrative Appeals Tribunal (AAT). The legal issues before the Tribunal involved determining whether the applicant's lumbar and cervical spondylosis were war-caused injuries under the Veterans' Entitlements Act 1986. The Tribunal had to follow the steps outlined in Deledio to assess whether the applicant's claims met the criteria for war-caused injuries.

The Tribunal began by considering the evidence provided by the applicant and found that it pointed to a hypothesis connecting the claimed injuries with the applicant's service in Japan. The Tribunal then considered whether there were relevant Statements of Principles (SoP) for lumbar and cervical spondylosis. As there were relevant SoPs for both conditions, the Tribunal moved to the third step, which required it to decide whether the hypothesis raised was a reasonable one. The Tribunal determined that the applicant's evidence of suffering trauma to his lumbar and cervical spine before the onset of the spondylosis was sufficient to raise a reasonable hypothesis connecting the conditions with his service. The Tribunal found that the applicant's evidence met the criteria set out in the SoPs for both lumbar and cervical spondylosis.

The Tribunal concluded that the VRB's decision to reject the applicant's claims was incorrect, and the applicant's lumbar and cervical spondylosis were war-caused injuries. The Tribunal ordered that the matter be remitted to the Repatriation Commission for reconsideration in light of its findings. The Tribunal emphasised that the decision to affirm the VRB's decision was based on the specific evidence presented in this case and did not establish a precedent for other cases with different facts or evidence. The Tribunal's decision highlights the importance of considering all relevant evidence and applying the correct legal criteria when determining claims for war-caused injuries under the Veterans' Entitlements Act.

Orders

Orders of the court

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Background

Background to the litigation

At the hearing, the Applicant was represented by Brian Winship of Rockcliffs, Solicitors, and the Respondent was represented by Jim Marsh of the Department of Veterans' Affairs. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents") together with the documents tendered by the parties. The Applicant gave oral evidence.Background The Applicant was born on 17 September 1927 and is aged 74. He enlisted in the Australian Army on 19 March 1946. He served in Japan from about February 1949, returning to Australia on 1 November 1949. His service from 19 March 1946 to 1 November 1949 constitutes "operational service". He was discharged on 27 May 1951. The Applicant claims to have suffered injuries to his neck and back while serving in Japan. He also suffered injuries in a motorcycle accident while serving at Puckapunyal in Victoria on 22 March 1950. On 8 March 1990, the Respondent accepted that the Applicant suffers from "war-caused" sensori-neural deafness with tinnitus. The Applicant has made a number of claims in respect of headaches, pain, osteoarthritis of both shoulders and both hips and lumbar and cervical spondylosis. On 17 January 2000, the applicant lodged a claim for lumbar and cervical spondylosis. On 16 May 2000, a delegate of the Respondent rejected the Applicant's claim and decided that payment of disability pension should continue at 70% of the General Rate. That decision was affirmed by the VRB on 31 May 2001 and, on 24 July 2001, the Applicant lodged an application for review by the Tribunal.Applicable Law A war-caused injury or disease is defined in s 9(1) of the Veterans' Entitlement Act 1986 ("the Act"). The definition includes an injury suffered or a disease contracted by the veteran resulting from an occurrence that happened while the veteran was rendering operational service. Section 13(1) provides that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran. Section 21A provides for the Respondent to "determine the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions", which is currently in its fifth edition ("GARP"). Section 22 provides that pensions by way of compensation are paid to veterans who have attained the age of 65 at a percentage of the maximum General Rate of pension payable which constitutes the same percentage as the degree of incapacity determined by the Respondent in accordance with s 21A. There is no dispute that the Applicant's service in the Army from 19 March 1946 to 1 November 1949 is operational service as defined in s 6A of the Act. The standard of proof to be applied in relation to operational service in determining whether an injury or disease was war-caused is that provided for in subsections 120(1) and (3). Pursuant to these provisions, if the injury or disease relates to operational service, the Respondent shall determine that the injury or disease was war-caused unless it is satisfied beyond reasonable doubt that the material before it does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the person's service.

Evidence

Evidence Before The Court

Subsection 120(4) provides that except in making a determination to which subsections (1) or (2) apply (subsection (2) is not relevant in this matter), the Respondent shall decide any other matter arising under the Act or the regulation "to its reasonable satisfaction". Because the applicant's claim was lodged after 1 June 1994, s 120A of the Act applies. This requires that where the Repatriation Medical Authority has determined a Statement of Principles ("SoP") in respect of a particular injury or disease, the Respondent (and therefore the Tribunal) must have reference to that SoP.The Applicant's Evidence The Applicant said, after leaving school, he initially worked as a painter and then in his father's café in Bellingen. During the War, he served in the Army Reserve and helped out in the Ambulance Service, in the course of which he gained extensive first aid experience. Then, on 13 March 1946, he enlisted in the Army. Before enlistment, he had had no health problems and no accidents. On enlistment, the Applicant was sent for training at Rooty Hill, after which he served at Cowra Prisoner of War Camp as a ward orderly. On 4 January 1947, he boarded a ship bound for Japan, dropping supplies at Papua New Guinea en route. He landed at Kure in Japan on about 11 January 1947. Initially, he served as an orderly at the Australian General Hospital. After six months, he was transferred to the dispatch riding section of the Signals Unit. The Applicant was issued with a motorbike for delivering dispatches in the Kure and Hiroshima area. He said the roads around Kure were very rough and crisscrossed by tram and train lines, many of them twisted. He could not always see the lines which often caused his motorbike to skid so that on many occasions he was thrown off. The Applicant said that on one occasion, at Kure Docks, he was thrown off his motorbike onto some rubble, hitting his head, neck, right shoulder and lower back. He was taken to a Regimental Aid Post ("RAP") for treatment and then taken back to his own camp. He was given pain-killers by the doctor and was off work for one to one and a half weeks. He felt numbness. Afterwards, while on light duties, he worked at his RAP. Because of his medical experience, he often helped out at the RAP and so he knew the staff. After the period on light duties, the Applicant went back to riding motorbikes and had a few other falls. Then, because of the number of accidents involving motorbikes, the motorbikes were taken away and they were issued with jeeps instead. They did the same dispatch work with the jeeps but carried additional mail. The Applicant said they had to maintain their own jeeps. This meant that if no ramps were available, two of them had to lift the jeeps onto their sides to permit maintenance and mechanical work. The Applicant did this on numerous occasions and said he probably strained his back six or more times in doing so. On each occasion, he went to the RAP and was told to rest his back. The Applicant recalled another incident when he hitched a lift from Kure House with an officer in a staff car. The car swerved and hit a light pole and rolled over. The driver was unconscious. An ambulance came and took him and the driver to the 130 Australian General Hospital. The driver later died. The Applicant did not stay at the Hospital but, after seeing the medical orderlies, went to his own RAP which was nearby. The Applicant said he was "crook" – sore around the head, shoulders, back and hips. He saw the Sergeant or Corporal at his RAP who gave him some pain-killers. The pain lasted for about two weeks but he continued to have a lot of headaches. He still takes Panadine Forte for headaches.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Mr Marsh concluded that the Applicant has not satisfied the third step set out in Deledio (supra) by failing to establish that the hypothesis raised is a reasonable one. Thus, the Respondent submits that the VRB decision under review should be affirmedConsideration of the Law and Findings The issue for the Tribunal to determine is whether the Applicant's lumbar and cervical spondylosis are war-caused in accordance with the provisions of the Act. The steps to be followed in making such a determination were stated by the Full Federal Court in Deledio (supra). The first step requires the Tribunal to consider all the material before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. The connection must be established to the "reasonable satisfaction of the Tribunal", pursuant to s 120(4). In the Tribunal's view, the Applicant's evidence of having been injured during his service in Japan and of his symptoms thereafter, points to a hypothesis connecting the claimed injuries with the Applicant's operational service. The second step, where the material raises such a hypothesis, requires the Tribunal to consider whether there is in force any relevant SoP. In this case, there are relevant SoPs both for lumbar spondylosis, Instrument No 27 of 1999, and cervical spondylosis, Instrument No 31 of 1999. Having ascertained this, the third step requires the Tribunal to decide whether, in its opinion, the hypothesis raised is a reasonable one. As stated by the Full Federal Court in Repatriation Commission v Budworth [2001] FCA 1421, the standard of proof to be applied is that provided by subsection 120(4), of "reasonable satisfaction". For a hypothesis raised to be a reasonable one, there must be material before the Tribunal which points to each of the required individual elements in the SoP: Connors (supra). In the Applicant's case, the SoPs for both lumbar spondylosis and cervical spondylosis set out in clause 5 the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting the condition with the circumstances of the person's relevant service. The Applicant contends that clause 5 (h) is satisfied in each case: SoP No 27(h) Suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis;SoP No 31:(h) suffering a trauma to the cervical spine before the clinical onset of cervical spondylosis; In the case of both SoPs, clause 8 contains relevant definitions including of "trauma to the lumbar spine" and "trauma to the cervical spine" respectively. These are defined as meaning (with the alternate condition added):A discrete injury to the lumbar cervical spine that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the lumbar/cervical spine. These acute symptoms and sighs must last for a period of at least seven days following their onset …