Martin and Repatriation Commission - [2001] AATA 604

DECISION AND REASONS FOR DECISION [2001] AATA 604

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/987

VETERANS' APPEALS DIVISION        )
           Re      Alfred James Wallace Martin
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Ms SM Bullock, Senior Member Dr P D Lynch, Member

Date29 June 2001
PlaceSydney

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal decides that: 1. The decision under review is affirmed in relation to hypertension and thoracic spondylosis; 2. The decision under review in relation to cervical and lumbar spondylosis is set aside and in substitution therefor, the Tribunal decides that these conditions are war-caused; 3. Pension is payable by the Repatriation Commission from and including 14 March 1996; 4. The assessment of the correct rate of Disability Pension for all of Mr Martin's war-caused conditions is remitted to the Repatriation Commission.
  ..............................................
  Ms SM Bullock
  Presiding Member
CATCHWORDS
VETERANS' AFFAIRS - Disability Pension - Reasonable Hypothesis - Psychoactive Substance Abuse or Dependence – Hypertension - Thoracic Spondylosis - Cervical Spondylosis – Lumbar Spondylosis

LEGISLATION
Veterans' Entitlements Act 1986 (Cth) ss 5D, 9, 13, 119, 120, 120A.

AUTHORITIES
Deledio v Repatriation Commission (1997) 47 ALD 261
McKenna v Repatriation Commission (1999) 86 FCR 144
Re Ahrenfeld and Repatriation Commission (1992) 28 ALD 921
Repatriation Commission v Bey (1997) 79 FCR 364
Budworth v Repatriation Commission [2001] FCA 317

REASONS FOR DECISION

29 June 2001 Ms S M Bullock , Senior Member
Dr P Lynch, Member

This is an application for review by Mr Alfred James Wallace Martin in relation to a decision made by the Repatriation Commission ("the Commission") on 2 August 1996 (T2). The Commission refused Mr Martin's claim for hypertension and lumbar spondylosis and continued pension at 20 per cent of the General rate. On 21 March 2000, the Veterans' Review Board ("the Board") affirmed the decision under review in relation to hypertension and varied the decision in relation to lumbar spondylosis by adding the diagnoses of cervical spondylosis and thoracic spondylosis. The Board then affirmed the decision under review, as varied, in relation to lumbar, cervical and thoracic spondylosis (T31).
A hearing was held in Sydney before the Administrative Appeals Tribunal ("the Tribunal") on 23 April 2001. Mr Martin provided oral evidence to the Tribunal. He was represented by Mr A Halstead, from the Veterans' Advocacy Service of the Legal Aid Commission of New South Wales. The Respondent, the Commission, was represented by Mr S Modder, Departmental Advocate. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) ("T documents" T1-T47) and the following exhibits:
Exhibit Number    Description Date
A1      Report by Dr R J Butler, Consultant Physician 18 December 2000
A2      Report by Professor PN Sambrook, Professor of Rheumatology, University of Sydney.   29 November 2000

ISSUES

At the commencement of the hearing, the respondent informed the Tribunal that it conceded that Mr Martin's condition of cervical spondylosis was war-caused. This left the following issues for…

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 Martin and Repatriation Commission

Details

AGLC: Martin and Repatriation Commission [2001] AATA 604
Case: [2001] AATA 604
Decision Date: 29 June 2001

CaseChat Overview and Summary

The case of Martin v. Repatriation Commission involved Mr. Martin, a World War II veteran, seeking a disability pension due to various health conditions including hypertension, thoracic spondylosis, cervical spondylosis, and lumbar spondylosis. The dispute centred on whether these conditions were service-related and warranted the pension. The matter was heard in the Administrative Appeals Tribunal.

The primary legal issues addressed by the court were whether Mr. Martin's conditions were related to his service and whether he abused psychoactive substances, specifically alcohol, in a way that impacted his health and eligibility for the pension. The court needed to determine if Mr. Martin's alcohol consumption was related to his service and if it had a detrimental impact on his health, potentially disqualifying him from receiving the pension.

The Tribunal found that while Mr. Martin's alcohol consumption increased significantly during his service, primarily due to its availability and use as a coping mechanism for stress, there was no conclusive evidence that his alcohol intake led to social, occupational, psychological, or physical problems. The Tribunal concluded that the increase in alcohol consumption was likely related to the availability of alcohol and the stressful conditions during his service. The medical evidence did not establish a causal link between Mr. Martin's alcohol consumption and his physical conditions, hence his pension eligibility was not affected by his alcohol use.

The Tribunal upheld Mr. Martin's claim for a disability pension, finding that his conditions were related to his service and not solely due to his alcohol consumption. The court ordered the Repatriation Commission to provide Mr. Martin with the disability pension he sought.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In regard to his relationship with his wife, Mr Martin stated to the Tribunal that Mrs Martin is a very tolerant person. He and his wife have been married for 51 years. Mrs Martin was a nurse treating soldiers at the AGH in Bougainville. Mrs Martin knew of the traumas and suffering of men who had experienced the war first hand. She is therefore able to understand Mr Martin's conditions and suffering.MEDICAL EVIDENCEDr R J Butler, Consultant Physician Dr Butler provided a report dated 18 December 2000 (Exhibit A1). He interviewed and examined Mr Martin on 14 November 2000. Dr Butler noted that Mr Martin had served as a driver in Bougainville for approximately 18 months during the latter part of World War II. Dr Butler further noted that Mr Martin remained in Bougainville for approximately five months after the cessation of hostilities. Dr Butler noted that Mr Martin currently takes medication for his hypertension, "Visken" 15mg and "Renitec". In relation to his alcohol consumption, Dr Butler reported that Mr Martin drank little alcohol prior to enlisting in the Army. While little alcohol was available in Bougainville during hostilities, Mr Martin found that while on service he developed dyspepsia and found that drinking beer relieved this. Following the cessation of hostilities, Dr Butler noted a history of Mr Martin's alcohol intake increasing significantly while he continued to serve in Bougainville. Dr Butler reported that Mr Martin had a considerable stock of beer available and its consumption was encouraged by the Army authorities. Dr Butler reported a consumption of three 26 fluid ounce bottles of beer nightly over that period. Beer also helped Mr Martin's eating and helped him to forget the stressful experience of his service, Dr Butler reported. Following discharge from the Army, Dr Butler reported a history of Mr Martin drinking regularly approximately 30gms of alcohol daily. In 1960, with the commencement of Mr Martin's sales jobs, Dr Butler noted an increase in consumption to 90 – 100gms of alcohol daily. This was about the time that hypertension was diagnosed. Dr Butler opined:"…It is unclear whether his increased intake of alcohol at this time was related to emotional or physical (dyspepsia) needs, or the ready availability of alcohol and to some extent encouragement to drink with clients." Since Mr Martin's retirement in 1983, Dr Butler noted that Mr Martin's alcohol consumption decreased to between 20 or 30 grams of alcohol per day." Referring to the Statement of Principles concerning Hypertension, Instrument Number 83 of 1995, Dr Butler opined that, in relation to the psychoactive substance abuse, at the time Mr Martin was diagnosed as suffering from hypertension, he was using alcohol to excess. Dr Butler noted however that Mr Martin did not have alcohol-related work problems or driving convictions related to alcohol consumption. Dr Butler opined:"…It is questionable therefore, whether his alcohol intake was causing social, occupational, psychological or physical problems."

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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