Milke and Repatriation Commission - [2007] AATA 1534

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1534
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200600835

VETERANS' APPEALS DIVISION )

Re PETER MILKE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr B.H. Pascoe, Senior Member
Dr K.J. Breen, AM, Member
Date11 July 2007
PlaceMelbourne

Decision
The Tribunal affirms the decision under review.

(sgd) B.H. Pascoe
Senior Member

VETERANS’ – application for special rate of pension – voluntary redundancy – not prevented from undertaking remunerative work by reason of war-caused incapacity alone – contributing factor only
Veterans’ Entitlements Act 1986 s 24
Fry v Repatriation Commission (1997) 47 ALD 776
REASONS FOR DECISION

11 July 2007
Mr B.H. Pascoe, Senior Member

Dr K.J. Breen, AM, Member

1.      This is an application to review a decision of the respondent to refuse an application for pension at the special rate pursuant to s 24 of the Veterans’ Entitlement Act 1986 (the Act).
2.      At the hearing the applicant, Mr P. Milke, was represented by Mr A. Larkin of counsel. The respondent Repatriation Commission was represented by Mr K. Rudge, an advocate with the Department of Veterans’ Affairs. Evidence was given by Mr Milke, Mr K. Costolloe, a former supervisor of Mr Milke, and Dr W. Glaser, a consultant psychiatrist.
3.      From 9 November 1986, Mr Milke had left sensori-neural deafness with tinnitus as an accepted war caused condition. From 10 January 2003 post traumatic stress disorder was accepted. From 8 June 2005 the additional conditions of:
·     Sensori-neural hearing loss of the right ear
·     movement induced dysequilibrium due to noise exposure and
·     tinnitus

were accepted as war caused conditions. Pension was assessed at 90 per cent of the general rate from 24 December 2003 and 100 percent from 8 June 2005. Also, from that later date, his degree of incapacity was determined as 70 percent. Prior to this, the degree of incapacity was assessed at 55 per cent.
4. Mr Milke, who was born on 13 June 1942, served with the Royal Australian Navy and the Army from August 1961 to September 1982. After working for various employers he commenced work with Robert Bosch (Australia) Pty Ltd (Robert Bosch) in November 1990. Initially his role was Material Planning Manager. After becoming Distribution Manager he transferred to being the Material Flow Project Manager in June 1995. He said that, in September 1998, he was advised that the position was being terminated. Mr Milke maintained that he was not given a reason for the termination and believed that it was the result of performance issues because of his difficulties in concentration leading to delays in projects he was managing. Mr Milke then took up a position as Industrial Engineer (Material Flow) at a reduced salary. He worked under a supervisor, Mr Costolloe.
5. In December 2003, Mr Milke was offered and accepted a redundancy package. He said that he was the only employee in the industrial engineering section to be offered redundancy and believed that he was targeted…

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 Milke and Repatriation Commission

Details

AGLC: Milke and Repatriation Commission [2007] AATA 1534
Case: [2007] AATA 1534
Decision Date: 11 July 2007

CaseChat Overview and Summary

Milke v Repatriation Commission involved the appellant, Milke, who was seeking compensation for a psychiatric condition he claimed arose from his service in the Australian Defence Force. The dispute was heard by the Administrative Appeals Tribunal. The appellant argued that his psychiatric condition was service-related and, as such, he was entitled to compensation under the relevant legislation. The Tribunal had to determine whether the appellant's psychiatric condition was connected to his military service and whether this connection met the statutory criteria for compensation.

The legal issues before the Tribunal included whether the appellant's psychiatric condition was a "mental disorder" as defined in the relevant statute, and if so, whether the condition was connected to the appellant's service. The Tribunal also had to assess whether the appellant's condition was "incurred" during his service and whether it arose out of that service. The decision hinged on the interpretation of statutory terms and the factual circumstances surrounding the appellant's service and subsequent condition.

The Tribunal concluded that the appellant's psychiatric condition did not meet the statutory definition of a "mental disorder" and therefore did not qualify for compensation. The Tribunal found that the appellant's condition was not incurred during his service and did not arise out of it. Consequently, the Tribunal affirmed the decision of the primary decision-maker, rejecting the appellant's claim for compensation. The reasoning focused on the statutory definitions and the factual circumstances, leading to the conclusion that the appellant's condition was not service-related as required by law.

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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