KRATZKE and REPATRIATION COMMISSION - [2010] AATA 333

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 333
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2964

VETERANS' APPEALS DIVISION )

Re MYRTLE KRATZKE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr S Karas, AO, Senior Member
Associate Professor J B Morley RFD, Member
Date7 May 2010
PlaceBrisbane

Decision
The Tribunal affirms the decision under review.

................[Sgd]..............................
Senior Member

CATCHWORDS
VETERANS’ ENTITLEMENTS – Pensions and benefits – Widow’s pension – Whether the veteran’s death was war-caused – No sufficient grounds to establish that the veteran’s injury or disease was war-caused – Decision affirmed.
Veterans' Entitlements Act 1986 (Cth) ss 8, 120, 120A, 196B,
Benjamin v Repatriation Commission (2001) 70 ALD 622
Fitzgerald v Penn [1954] HCA 74
Fogarty and Repatriation Commission [2003] FCAFC 136
Fogarty v Repatriation Commission [2002] FCA 1541
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission and Gosewinckel (1999) 59 ALD 690
REASONS FOR DECISION

7 May 2010 Mr S Karas, AO, Senior Member
Associate Professor J B Morley RFD, Member

BACKGROUND
1.      Myrtle Jessie Kratzke is the widow of the late veteran, Vivian Kratzke. Mr Kratzke was born on 5 November 1918, and rendered 'operational service', as that term is used in the Veterans' Entitlements Act1986 (Cth), in the Australian Army from January 1942 to October 1945, being posted for some of that time in Rockhampton and New Guinea.
2.      The late veteran's service documents show no evidence of him suffering any heart condition, nervous condition, or drinking problem during his eligible service. Pending his discharge he was medically examined, and found to be suffering from recurring dermatitis; however he was free of any other clinical condition, including any form of heart disease. It was recorded that he had suffered an injury to his right knee in July 1942. His blood pressure was recorded at 122/90.
3.      The material before us showed that the veteran had the "accepted" service related disabilities of bilateral sensorineural hearing loss, osteoarthrosis of the right knee, osteoarthrosis of the left knee, and lumbar spondylosis.
4.      He died in Greenslopes Hospital on 25 March 2008. His Death Certificate records that the veteran's cause of death was:
1(a) Myocardial infarction (b) Ischaemic heart disease

The durations of these conditions were recorded as:
(a) 24 hours (b) 10 years +

5.      On 3 June 2008, Mrs Kratzke submitted an application to the Repatriation Commission for the widow's pension on the basis that the veteran's death should be recognised as war-caused. In her Statement of Facts, Issues and Contentions of 28 January 2010, her solicitor has contended two alternative hypotheses:
·   The veteran experienced stressful war service, which led him to develop an alcohol consuming habit, which in turn led to his developing hypertension, which caused him to develop ischaemic heart disease leading to his death; or
·   Because of his war-caused osteoarthrosis of his knees, he was unable to undertake more than mildly strenuous physical activity for at least five years, and became obese, before the clinical worsening…

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 KRATZKE and REPATRIATION COMMISSION

Details

AGLC: KRATZKE and REPATRIATION COMMISSION [2010] AATA 333
Case: [2010] AATA 333
Decision Date: 7 May 2010

CaseChat Overview and Summary

The applicants, Kratzke and the Repatriation Commission, appeared before the Administrative Appeals Tribunal in a dispute concerning the eligibility of a widow’s pension under the Veterans’ Entitlements Act 1986. The primary issue was whether the veteran’s death was attributable to a war-related injury or disease. The applicants contended that the Commission’s decision to deny the pension was flawed, arguing that the Commission did not have sufficient grounds to conclude that the veteran’s condition was not war-caused.

The legal issues before the court involved interpreting the statutory provisions of the Veterans’ Entitlements Act, particularly sections 8, 120, 120A, and 196B, and determining the standard of proof required to establish a war-caused condition. The applicants relied on the case of Benjamin v Repatriation Commission to argue that the onus of proof was on the Commission to disprove the war-causation of the veteran’s condition. The court also considered relevant precedents such as Fitzgerald v Penn, Fogarty and Repatriation Commission, Fogarty v Repatriation Commission, Repatriation Commission v Deledio, and Repatriation Commission and Gosewinckel in assessing the sufficiency of the evidence.

The Tribunal found that the Commission had adequately discharged its burden of proving that the veteran’s condition was not war-caused. The evidence presented did not sufficiently establish that the veteran’s injury or disease was attributable to his war service. The court was satisfied with the Commission’s reasoning and the application of the relevant statutory provisions. Consequently, the Tribunal affirmed the decision of the Commission, holding that the applicants had not demonstrated that the Commission’s decision was unreasonable or unjust.

The Tribunal’s decision was final, affirming the Repatriation Commission's refusal of the widow’s pension. The applicants were not successful in their appeal, and the Commission’s decision remained in place.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.