Masliczek and Repatriation Commission

Case [2008] AATA 251


Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 251

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V 200600704
VETERANS' APPEALS DIVISION  )

Re MIRON MICHAEL MASLICZEK

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:  G. D. Friedman, Senior Member

Date:31 March 2008

Place:Melbourne

Decision:

The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Senior Member

VETERANS' AFFAIRS – veterans’ entitlements – posttraumatic stress disorder – stressful events – whether condition diagnosed – osteoarthrosis of the fingers of right hand – hearing problems in right ear – whether conditions war-caused

Veterans' Entitlements Act 1986 ss 9, 120(1)

Benjamin v Repatriation Commission (2001) 70 ALD 622

Mines v Repatriation Commission (2004) 86 ALD 62

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hill [2008] FCA 50

REASONS FOR DECISION

31 March 2008 G. D. Friedman, Senior Member

1.        Miron Masliczek made an unsuccessful claim for disability pension on the basis that post-traumatic stress disorder (PTSD), osteoarthrosis of the fingers of the right hand and hearing problems in the right ear were related to his service in Vietnam, where he was a tailor in 3 Royal Australian Regiment.  Right inguinal hernia, bilateral tinnitus, ischaemic heart disease, sensorineural hearing loss of the left ear and diabetes mellitus were previously accepted by the respondent as war-caused.

2.        The issues before the Tribunal are:

·What is the legal framework?

·Does Mr Masliczek suffer from the claimed conditions?

·If so, is each condition war-caused?

WHAT IS THE LEGAL FRAMEWORK?

3.        Mr Masliczek served in the Australian Army as a National Serviceman from 28 September 1966 to 27 September 1968.  His service in Vietnam from 20 December 1967 to 20 February 1968 and from 5 April 1968 to 27 August 1968 was operational service under the Veterans’ Entitlements Act 1986. Section 9 of the Act provides that where an injury or disease results from an occurrence that happened while the veteran was rendering operational service or where it arose out of, or was attributable to that service, the injury or disease will be taken as being war-caused. Causation questions such as these, where a veteran has rendered operational service, are addressed by applying the standard of proof in s 120(1) of the Act. That requires decision-makers to determine that an injury or disease is war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.

4.        The Tribunal is first required to determine to its reasonable satisfaction whether Mr Masliczek suffers from any particular injury or disease (Benjamin v Repatriation Commission (2001) 70 ALD 622). In the circumstances of this case, where Mr Masliczek has rendered operational service, the issue of whether the diagnosed conditions were caused by operational service then is to be decided by reference to the four-step process identified in Repatriation Commission v Deledio (1998) 83 FCR 82:

1.        The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting…

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Masliczek and Repatriation Commission [2008] AATA 251
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[2008] AATA 251
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CaseChat Overview and Summary

Miron Masliczek lodged a claim for disability pension on the basis that post-traumatic stress disorder (PTSD), osteoarthrosis of the fingers of the right hand, and hearing problems in the right ear were related to his service in Vietnam. The Repatriation Commission had previously accepted that right inguinal hernia, bilateral tinnitus, ischaemic heart disease, sensorineural hearing loss in the left ear, and diabetes mellitus were war-caused. The Tribunal was required to determine whether the claimed conditions were related to his operational service and, if so, whether they were war-caused. The Tribunal found that Mr Masliczek did not suffer from PTSD and that his osteoarthrosis of the fingers of the right hand and hearing problems in the right ear were not war-caused. The Tribunal affirmed the decision under review.

The Tribunal found that Mr Masliczek did not suffer from PTSD as none of the events he described were traumatic as required for a diagnosis of PTSD. The Tribunal found that Mr Masliczek suffered from osteoarthrosis of the fingers of the right hand but was not satisfied that the condition was war-caused. The Tribunal found that Mr Masliczek suffered from hearing problems in the right ear but concluded that they were not war-caused. The Tribunal accepted the evidence of the audiologists that Mr Masliczek's hearing problems in the right ear were covered by the accepted disability of sensorineural hearing loss in the left ear.

Orders

Orders of the court

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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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