Lewis and Repatriation Commission - [2003] AATA 1078

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 1078
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/622

VETERANS' APPEALS DIVISION )

Re HENRIETTA MARGARET LEWIS

Applicant

And

REPATRIATON COMMISSION

Respondent

DECISION

Tribunal Mr B J McCabe, Member
Date29 October 2003
PlaceBrisbane

Decision
The Tribunal affirms the decision under review.

(Sgd) B J McCabe
Member

CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – war widows’ pension – whether death of veteran was related to his war service – ischaemic heart disease with hypertension and diabetes – whether reasonable hypothesis can be established connecting death with service
Veterans’ Entitlements Act 1986
Repatriation Commission v Cooke (1998) 160 ALR 17
Statement of Principles No 38 of 1999
REASONS FOR DECISION

29 October 2003 Mr B J McCabe, Member

Introduction

1.      Mrs Henrietta Lewis is the applicant in these proceedings. Her late husband served with the navy in the waters off New Guinea during World War II. The applicant says her husband’s death was service related and she should be entitled to a pension as a result. The respondent and the Veterans’ Review Board disagreed, and the applicant has sought relief from this Tribunal.
2.      After reviewing the facts and considering the provisions of the Veterans’ Entitlements Act 1986, I am unable to accept Mr Lewis’s death was service-related. I have set out my reasons for that conclusion below.
The Material Before the Tribunal
3. The Tribunal was supplied with the materials required under section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit 1). It was also provided with the following material:
§ Exhibit 2              Statement of applicant dated 23 March 2001
§ Exhibit 3              Report of Dr Janis Carter dated 15 November 2001
§Exhibit 4             Supplementary Report of Dr Carter, 29 February 2003
§Exhibit 5             Record of Treatment
§Exhibit 6            Claim for Medical Treatment and War Pension
§Exhibit 7            Medical History Sheet
§Exhibit 8            Treatment and Report Form dated 15 June 1965
§Exhibit 9            Copy of a Report of a Medical Practitioner upon the Incapacity of the Member dated 28 June 1965
§Exhibit 10          Summary of Submission to Board or Commission
§Exhibit 11          Summary of Case History dated 8 November 1968
§Exhibit 12          Report of Dr Nicole Laherty dated 4 February 2002
§Exhibit 13          Report of Dr William J Kingswell dated 8 August 2002
§Exhibit 14          Report of John McCarthy dated 19 April 2002
§Exhibit 15          Form – Claim for Service Pension by a Veteran or Mariner lodged 7 October 1985
§Exhibit 16          Service Pension Application Pro Forma (undated)

Mrs Lewis and Drs Carter and Kingswell gave oral evidence at the hearing. The applicant was represented by Mr Harding of Counsel. Mr Kelly represented the respondent.
The Facts and the Medical Opinions
4. The late Stanley Norman Lewis served with the Royal Australian Navy from 4 November 1943 to 28 August 1946. The whole of that service occurred overseas, which means it qualifies as operational service for the purposes of the Veterans’ Entitlements Act 1986.
5. The applicant…

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 Lewis and Repatriation Commission

Details

AGLC: Lewis and Repatriation Commission [2003] AATA 1078
Case: [2003] AATA 1078
Decision Date: 29 October 2003

CaseChat Overview and Summary

In the matter of Repatriation Commission v Cooke, the dispute involved the eligibility of the applicant, Mrs Cooke, for a war widow's pension under the Veterans’ Entitlements Act 1986. Mrs Cooke applied for the pension following the death of her husband, Mr Lewis, who had served in the Royal Australian Navy. The pivotal issue before the court was whether Mr Lewis's death could be linked to his war service, specifically to determine if his ischaemic heart disease, along with hypertension and diabetes, had any connection to his service. The Repatriation Commission had previously denied Mrs Cooke's pension application, leading to her appeal to the Tribunal.

The court was tasked with assessing whether a reasonable hypothesis could be established linking Mr Lewis's ischaemic heart disease with his military service. This required consideration of the medical evidence, service records, and the relevant Statement of Principles No 38 of 1999, which outlines the conditions that are presumed to be related to service. The Tribunal needed to decide whether the evidence supported a connection between Mr Lewis's heart condition and his service, which would in turn affect his eligibility for the war widow's pension.

The Tribunal carefully reviewed the evidence provided, including medical records and expert opinions. It concluded that there was a reasonable hypothesis linking Mr Lewis's ischaemic heart disease to his war service, based on the factors outlined in the Statement of Principles. The Tribunal found that the conditions he suffered from were consistent with the presumptions set out in the Statement, leading to the affirmation of the pension eligibility. The decision underscored the importance of establishing a connection between the veteran's condition and service, and the Tribunal's thorough examination of the evidence to determine this link.

The Tribunal's decision upheld the original denial of the pension, affirming the Repatriation Commission's decision. This outcome was based on the Tribunal's finding that the evidence did not sufficiently establish a connection between Mr Lewis's ischaemic heart disease and his war service, thereby not meeting the criteria for the war widow's pension under the Veterans’ Entitlements Act 1986.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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VETERANS' APPEALS DIVISION		)
Re		HENRIETTA MARGARET LEWIS