Masliczek and Repatriation Commission - [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…

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 Masliczek and Repatriation Commission

Details

AGLC: Masliczek and Repatriation Commission [2008] AATA 251
Case: [2008] AATA 251
Decision Date: 31 March 2008

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