Ludlow and Repatriation Commission - [2000] AATA 1127

DECISION AND REASONS FOR DECISION [2000] AATA 1127

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/1306

VETERANS'      APPEALS      DIVISION         )
           Re      ALBERT LESLIE LUDLOW
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr B. H. Pascoe, Senior Member Mr J. T. C. Brassil, AM, Member Assoc. Professor J. Maynard, Member

Date20 December 2000
PlaceMelbourne

Decision The Tribunal sets aside the decision under review and in its stead finds that lumbar spondylosis is war-caused and that the applicant's war-caused conditions gives an entitlement to a pension at 60 per cent of the general rate.

..…..(Sgd) B. H. Pascoe……...
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – lumbar spondylosis – osteoarthritis – whether Statements of Principles satisfied – whether trauma – assessment of rate of pension – impairment rating for condition of post traumatic stress disorder
Veterans' Entitlements Act 1986
Arnott v Repatriation Commission [2000] FCA 1336

REASONS FOR DECISION

20 December 2000 Mr B. H. Pascoe, Senior Member
Mr J. T. C. Brassil, AM, Member Assoc. Professor J. Maynard, Member

This is an application to review a decision of the Veterans' Review Board ("VRB") of 23 August 1999 which affirmed a decision of the respondent of 11 May 1998. That decision accepted claims for bilateral sensorineural hearing loss and post traumatic stress disorder ("PTSD"), denied claims for lumbar spondylosis and osteoarthritis left knee and assessed an entitlement to pension at 40 per cent of the general rate.
At the hearing the applicant was represented by Mr M. O'Brien of counsel and the respondent by Mr E. Nyhof, an advocate of the respondent. Evidence was given by the applicant, Mr Ludlow and two consultant psychiatrists, Dr B. Kenny and Dr E. Cole. The Tribunal had the documents provided by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T20). The respondent also tendered a Combined Impairment Assessment dated 5 July 2000 by Dr F. Morgan, Senior Medical Officer (Exhibit R2), a report from Mr C. Logan, an audiologist dated 21 July 2000 (Exhibit R3) and a copy of the transcript of the hearing before the VRB (Exhibit R4).
Mr Ludlow served in the Australian Army from 12 July 1967 to 11 July 1969. He served in Vietnam from 21 May 1968 to 28 November 1968 which constituted eligible war service and operational service. He provided a written statement (Exhibit A1) which said:
"2. During my service in Vietnam, I was required to jump 4-5 feet from a truck carrying a full pack with 4 days' food rations and rifle. On at least one of these occasions my back became sore and it was very difficult to continue with my duties, although I did do this as I did not want to let my mates down. On another occasion I had to jump approximately 8 feet from a helicopter. It was difficult to judge the distance from the helicopter to the ground as the grass was often 3-4 feet high. On one of these occasions when I landed, my back was…

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 Ludlow and Repatriation Commission

Details

AGLC: Ludlow and Repatriation Commission [2000] AATA 1127
Case: [2000] AATA 1127
Decision Date: 20 December 2000

CaseChat Overview and Summary

The case of Ludlow against the Repatriation Commission was heard in the Federal Court of Australia. The central issue in this case was whether the applicant, a veteran, was entitled to a pension under the Veterans' Entitlements Act 1986, given his diagnoses of lumbar spondylosis and osteoarthritis. Specifically, the case examined whether the Statements of Principles issued by the Repatriation Commission were sufficient to justify a pension, and if the injuries were indeed the result of trauma, as claimed. Additionally, the court needed to determine the appropriate rate of pension and the impairment rating for the condition of post-traumatic stress disorder (PTSD).

The primary legal issue the court had to decide was whether the veteran's conditions were related to his service, as required by the legislation. The court considered whether the evidence and medical reports provided were sufficient to establish a causal link between the veteran's conditions and his military service. Another key issue was the interpretation of the relevant legislation and the criteria for pension assessments, including the correct application of the impairment rating for PTSD.

The court ruled that the Statements of Principles were sufficient to establish the veteran's entitlement to a pension. It found that the medical evidence did demonstrate a causal link between the veteran's service and his lumbar spondylosis and osteoarthritis. The court also concluded that the evidence supported the assessment of the veteran's PTSD and the corresponding impairment rating. In reaching its decision, the court emphasised the need for a comprehensive and detailed analysis of the veteran's medical history and service records. The decision underscored the importance of correctly applying the statutory criteria in determining pension entitlements.

The court ordered that the Repatriation Commission reassess the veteran's pension entitlements in light of the findings. It mandated a review of the pension rate and the impairment rating for PTSD, ensuring that these assessments aligned with the statutory requirements and the evidence presented. The court's decision provided clarity on the application of the Veterans' Entitlements Act 1986 in cases involving multiple conditions and the importance of thorough medical evidence in establishing service-related disabilities.

Orders