McCabe and Repatriation Commission - [2008] AATA 753

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 753
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 2005/1075

VETERANS' APPEALS DIVISION )

Re JOHN THOMAS McCABE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Regina Perton, Member
Date26 August 2008
PlaceMelbourne

Decision The Tribunal affirms the decision under review.
(sgd) Regina Perton
Member

VETERANS' AFFAIRS ‑ veterans’ entitlements ‑ generalised anxiety disorder ‑ alcohol abuse ‑ hypertension ‑ whether conditions war-caused – whether entitled to pension at special rate
Veterans' Entitlements Act 1986 ss 9, 23, 24, 120(1), 196B(2)
Benjamin v Repatriation Commission (2001) 70 ALD 622
Lees v Repatriation Commission [2002] FCAFC 398
Re Stonehouse and Repatriation Commission [2004] AATA 707
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission vGorton (2001) 110 FCR 321
Repatriation Commission v Hill [2002] FCAFC 192
Repatriation Commission v Keeley (2000) 98 FCR 108
Stoddart v Repatriation Commission (2003) 197 ALR 283
White v Repatriation Commission [2004] FCA 633
REASONS FOR DECISION

26 August 2008   Regina Perton, Member

1.       John McCabe, who is now 62 years old, served in the Royal Australian Navy (the navy) from 6 January 1962 to 24 November 1967. During 1965 and 1966, he spent several periods in the Far East Strategic Reserve and in Vietnamese waters. These periods constitute operational service under the Veterans' Entitlements Act 1986 (the Act).
2.       Mr McCabe is currently receiving a disability pension at 90 per cent of the general rate. Mr McCabe suffers from a large number of medical conditions, several of which have been accepted by the Repatriation Commission (the Commission) as war‑caused conditions. On 7 September 2004, Mr McCabe submitted a claim for additional conditions to be accepted as war-caused. He is also seeking a special rate pension, which is a higher rate of pension, paid to a working-age recipient who is unable to work due to his accepted disabilities alone.
3.       Mr McCabe’s claim was rejected by the Commission on 29 June 2005. The Veteran’s Review Board (VRB) affirmed the decision on 26 October 2005. Mr McCabe lodged an application for review with the Tribunal on 29 November 2005.
WHAT ARE MR McCABE’S MEDICAL CONDITIONS?
4.       The Commission has accepted that Mr McCabe’s medical conditions of bilateral sensorineural hearing loss, bilateral tinnitus, chronic simple bronchitis and osteroarthrosis of the left knee are war-caused. The Commission rejected Mr McCabe’s claims that schizophrenia, chondromalacia left patella, appendicitis with operation, anxiety/depression, atrial fibrillation, generalised anxiety disorder, hypertension, skin problems and depressive disorder were war‑caused conditions.
5.       In the claim under consideration, Mr McCabe sought additional disability pension on the basis of nervous problems, blood pressure problems and skin problems. The Tribunal is required to determine to its reasonable satisfaction whether Mr McCabe suffers from any particular injury or disease (Benjamin v Repatriation Commission (2001) 70 ALD 622). There is no dispute that Mr McCabe suffers from generalised anxiety disorder, depressive disorder…

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 McCabe and Repatriation Commission

Details

AGLC: McCabe and Repatriation Commission [2008] AATA 753
Case: [2008] AATA 753
Decision Date: 26 August 2008

CaseChat Overview and Summary

McCabe brought a case against the Repatriation Commission in the Administrative Appeals Tribunal. McCabe argued that the Commission had failed to adequately compensate him for his service-related disabilities. McCabe contended that he was entitled to a higher compensation rate due to the severity of his disabilities and the impact they had on his ability to work.

The central legal issue before the Tribunal was whether the Repatriation Commission had correctly assessed and compensated McCabe for his disabilities. Specifically, the Tribunal needed to determine if the Commission had properly applied the legislative criteria in evaluating the extent of McCabe's disabilities and the appropriate compensation rate. McCabe argued that the Commission had undervalued his disabilities, while the Commission contended that it had followed the legislative guidelines correctly.

The Tribunal found that the Repatriation Commission had appropriately applied the relevant legislation in assessing McCabe's disabilities and determining his compensation. The Tribunal concluded that the evidence presented supported the Commission's decision, and that there was no basis to overturn the decision on appeal. The Tribunal rejected McCabe's arguments that his disabilities warranted a higher compensation rate, finding that the Commission's assessment was in line with the legislative criteria.

The Tribunal affirmed the decision of the Repatriation Commission, dismissing McCabe's appeal. The Tribunal found no grounds to alter the compensation rate determined by the Commission, and upheld the original decision as correct.

Orders

Orders of the court

The Tribunal affirms the decision under review.

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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