Lowe and Repatriation Commission - [2000] AATA 843

DECISIONS AND REASONS FOR DECISIONS

[2000] AATA 843

ADMINISTRATIVE APPEALS TRIBUNAL)
  Nº N97/597
VETERANS'      APPEALS       DIVISION)  Nº N98/1228
           Re:     SHARON KAYE LOWE

Applicant
And: REPATRIATION COMMISSION
Respondent
DECISIONS

Tribunal: Mrs H.E. Hallowes, Senior Member

Date:22 September 2000
Place:Sydney

Decisions: Entitlement – N97/597: The decision of the Repatriation Commission dated 16 January 1996, as varied by the Veterans' Review Board on 22 April 1997, is set aside. The Tribunal substitutes a decision that the applicant's generalised anxiety disorder is defence-caused. Entitlement – N98/1228: The decision of the Repatriation Commission dated 16 January 1996, which was affirmed by the Veterans' Review Board on 17 August 1998, is set aside. The Tribunal substitutes a decision that the applicant's ulcerative colitis is defence-caused. Rate: The applicant is entitled to be paid pension under section 22 of the Veterans' Entitlements Act 1986 ("the Act") at 80 per cent of the general rate for the period from 1 May 1995, being three months before the date on which she lodged her claim for pension until the date on which Dr A. Eyers operated on her bowel in 1996 and from that date, until 2 October 1997 when she ceased work, at 100 per cent of the general rate. From 2 October 1997 until such time as the Repatriation Commission determines that the applicant is incapacitated permanently or that she has a capacity to work for periods aggregating more than eight hours per week, she shall be paid pension under section 25 of the Act.
  (sgd) H.E. Hallowes
  Senior Member
VETERANS' AFFAIRS —   entitlement — ulcerative colitis, generalised anxiety disorder — whether connected with defence service — whether Statements of Principles apply ("SoPs") — whether SoPs uphold connection
  rate — whether entitled to temporary payment at special rate
Veterans' Entitlements Act 1986 ss.5D, 22, 25, 70, 120, 120B, 196B
Statement of Principles

Instrument Nº 49 of 1994 as amended by Instrument Nº 276 of 1995 —

concerning generalised anxiety disorder

Instruments Nº 145 of 1996 as amended by Instrument Nº 180 of 1996 —

concerning inflammatory bowel disease

Brew v Repatriation Commission (1999) 56 ALD 403
Gartrell v Repatriation Commission (2000) FCA 1228 (decided 9 August 2000)
Ogston v Repatriation Commission (1999) 29 AAR 89
Repatriation Commission v Bendy (1989) 10 AAR 323
Repatriation Commission v Keeley (2000) 31 AAR 150
Re McLeod-Dryden and Repatriation Commission (1998) 53 ALD 428

REASONS FOR DECISIONS

22 September 2000 Mrs H.E. Hallowes, Senior Member

The applicant seeks review of a decision of the Repatriation Commission, made on 16 January 1996, that her cervical spondylosis, osteoarthrosis of the left shoulder, ulcerative colitis and depressive disorder were not caused by her eligible defence service. On 22 April 1997 the Veterans' Review Board ("the VRB") consented to the withdrawal of the application, so far as it related to cervical spondylosis and osteoarthrosis of the left shoulder, substituted a diagnosis of generalised anxiety disorder for depressive disorder and affirmed the decision of the Repatriation Commission with respect to that disease. On 17 August 1998…

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 Lowe and Repatriation Commission

Details

AGLC: Lowe and Repatriation Commission [2000] AATA 843
Case: [2000] AATA 843
Decision Date: 22 September 2000

CaseChat Overview and Summary

This case concerns an appeal by Sharon Kaye Lowe against the Repatriation Commission's decision to reject her claim that her generalized anxiety disorder and ulcerative colitis were caused by her service in the Royal Australian Air Force. The Administrative Appeals Tribunal (AAT) was tasked with reviewing the Commission's decision and determining whether these conditions were indeed caused by her service. The Tribunal found that both conditions were defence-caused and substituted its decision for that of the Commission.

The primary legal issue before the AAT was whether the applicant's generalized anxiety disorder and ulcerative colitis were connected to her service in a material degree. The Tribunal had to consider the relevant statutory provisions and Statements of Principles (SoPs) to determine if the applicant's conditions met the criteria for being considered defence-caused. The Tribunal also had to assess the applicant's degree of incapacity and the rate of pension payable under the Veterans' Entitlements Act 1986.

The AAT found that the applicant's generalized anxiety disorder was defence-caused as it was connected to the stressful events she experienced during her service, including sexual harassment and the lack of appropriate clinical management for her ulcerative colitis. The Tribunal accepted the evidence of the applicant and the medical experts that her anxiety disorder was interrelated with her service experiences and the progression of her ulcerative colitis. Regarding the ulcerative colitis, the Tribunal concluded that the applicant's defence service contributed to the aggravation of her disease due to the inadequate clinical management she received during her service.

The AAT set aside the Repatriation Commission's decision and determined that the applicant's generalized anxiety disorder and ulcerative colitis were defence-caused. The Tribunal also determined the rates of pension payable to the applicant, finding that she was entitled to be paid pension at 80% of the general rate from three months before she lodged her claim until the date of her surgery in 1996, and at 100% of the general rate from that date until she ceased work in 1997. From 2 October 1997, the Tribunal found that she had been incapacitated by her defence-caused diseases and was unable to undertake remunerative work for periods aggregating more than eight hours per week.

The AAT's decision was based on a thorough examination of the evidence provided by the applicant and the medical experts, as well as the relevant statutory provisions and SoPs. The Tribunal found that the applicant's conditions met the criteria for being considered defence-caused and that her degree of incapacity justified the pension rates determined by the Tribunal.

Orders