Lilley and Comcare and Repatriation Commission - [2003] AATA 738

CATCHWORDS – VETERANS’ AFFAIRS

– whether motor peripheral neuropathy defence caused – exposure to pesticides - whether applicant’s condition arose out of or attributable to defence service – whether claim should be assessed by reference to Statement of Principles made after Repatriation Commission’s decision but before decision reviewed by the Veterans’ Review Board – decision affirmed.

CATCHWORDS – COMPENSATION – exposure to pesticides - whether motor peripheral neuropathy arose out of or in the course of his employment –– decision affirmed.

Safety Rehabilitation and Compensation Act 1988 s. 124
Compensation (Commonwealth Government Employees’) Act 1930 ss. 4 and 9
Compensation (Commonwealth Government Employees’) Act 1971 ss. 5, 27 and 29
Veterans’ Entitlements Act 1986 ss. 5AB, 5Q, 9, 43, 68, 70, 120, 120A, 120B, 196, 196B, 196C, 196D, 196E, 196F, 196G, 196W, 196Y and 196Z
Acts Interpretation Act 1901 ss. 8, 46A, 48, 48A, 48B, 49 and 50
Commonwealth Workmen’s Compensation Act 1912

Workers’ Compensation Act 1926

State of New South Wales trading as New South Wales Department of Agriculture v Allen [2000] NSWCA 141

Seltsam Pty Limited v McGuiness [2000] NSWCA 29
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
O’Neill v Commonwealth Banking Corporation (1987) 75 ALR 154
Re Welsford and Commonwealth Banking Corporation (1984) 1 AAR 42
Australian Telecommunications Commission v Treloar (1989) 90 ALR 202

Johnston v Commonwealth of Australia (1982) 43 ALR 559

DECISION AND REASONS FOR DECISION [2003] AATA 738

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          V2000/103
GENERAL ADMINISTRATIVE DIVISION     )

Re WALTER JIM LILLEY

Applicant

And COMCARE

Respondent
V2001/434

Re WALTER JIM LILLEY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal: Deputy President S A Forgie
Dr P D Fricker (Member)

Associate Professor J H Maynard (Member)

Date: 1 August, 2003

Place: Melbourne

Decision: The Tribunal affirms:

1.a decision of a delegate of the respondent, Comcare, dated 23 October, 1999 to affirm an earlier determination dated 29 January, 1999; and
2.a decision of the respondent, the Repatriation Commission, dated 15 June, 1998 and affirmed by a decision of the Veterans’ Review Board dated 27 March, 2001.
S A FORGIE
Deputy President

REASONS FOR DECISION

On 28 January, 2000, the applicant, Mr Walter Jim Lilley, applied for review of a decision of a delegate of the respondent, Comcare, dated 23 October, 1999 to affirm an earlier determination dated 29 January, 1999. In that determination, Comcare disallowed Mr Lilley’s…

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: [2003] AATA 738
Decision Date: 1 August 2003

CaseChat Overview and Summary

The applicant, Mr Walter Jim Lilley, appealed against a decision of Comcare, a respondent, to disallow his claim for motor peripheral neuropathy. The appeal was heard together with another appeal against a decision of the Repatriation Commission, another respondent, to disallow his claim. The appeals were dismissed. Mr Lilley served in the Royal Australian Air Force from 1961 to 1986. His peripheral neuropathy was diagnosed in 1981. He alleged that it was caused by exposure to DDT and Malathion while he was in the Air Force. The Tribunal considered whether the peripheral neuropathy was caused by his service. The Tribunal did not find that Mr Lilley’s condition arose out of or was attributable to his service and so was not war-caused or defence-caused. The Tribunal also considered whether his employment by the Commonwealth was a contributing factor to his condition. It did not find that his employment was a contributing factor to his condition or to its aggravation or acceleration.

Orders