Miller and Repatriation Commission - [2007] AATA 2058

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2058
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200700052

GENERAL ADMINISTRATIVE DIVISION
)

Re STEPHEN MILLER

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr J D Campbell, Member
Date11 December 2007
PlacePerth

Decision The decision under review is affirmed.
.............[Sgd Dr J D Campbell]...........
Member

CATCHWORDS
Veterans Entitlements - accepted Disabilities - non accepted disability - claim for special rate - the 'Alone' test
LEGISLATION
Veterans Entitlements Act 1986, sections 5Q, 24
CASES
Cavell v Repatriation Commission [1988] 9 AAR 534
Flentjar v Repatriation Commission [1998] 48 ALD 1
Repatriation Commission v Hendy [2002] 76 ALD 47
REASONS FOR DECISION

11 December 2007 Dr J D Campbell, Member

1.      Mr Stephen Miller lodged a claim with the Repatriation Commission on 8 November 2005 for right and left shoulder conditions to be recognised as war caused or defence caused and for an increase in the rate of disability pension.
2.      On 31 January 2006 the Repatriation Commission determined that osteoarthrosis of the left shoulder and osteoarthrosis of the right shoulder were defence caused disabilities, with date of effect being 8 August 2005.
3.      On 1 February 2006 the Repatriation Commission assessed Mr Miller’s disability pension at 100% of the General Rate with the date of effect being 8 August 2005.
4.      In making such decisions the Repatriation Commission noted that Mr Miller had the following accepted disabilities:
§Internal derangement of the left knee
§Internal derangement of the right knee
§Post Traumatic Stress Disorder
§Osteoarthrosis of the left shoulder
§Osteoarthrosis of the right shoulder

5.      Further the following non accepted disability was considered Lumbar Spondylosis.
6.      The matter was further considered by the Veterans Review Board and in their decision dated 28 November 2006; Mr Miller’s claim for a special rate pension was refused.
ISSUES
7.      The relevant issues in this matter are:
(a)What is the relevant type of remunerative work Mr Miller was undertaking within the meaning of s 24 (1) (c) of the Act?
(b)Is Mr Miller prevented from continuing to undertake such work by reason of war caused injury or war caused disease?
(c)Is Mr Miller prevented from continuing to undertake such work by reason of the only factors being his war caused injuries or war caused disease?
(d)If the answers to the questions (b) and (c) are in the affirmative, the question arises as to whether Mr Miller, by reason of being prevented from continuing to undertake that work, is suffering a loss of salary, wages or earnings on his account that he would not be suffering if he were free of that incapacity?

8. For the reasons stated later in this decision I conclude that
(a)The relevant types of remunerative work that Mr Miller was undertaking was that of boilermaker(welder), field engineer (range of construction and demolition activities, as well as operating field machines, power tools, assault boats and bridging equipment) and police officer.
(b)Mr Miller is prevented from undertaking such work by reason of…

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 Miller and Repatriation Commission

Details

AGLC: Miller and Repatriation Commission [2007] AATA 2058
Case: [2007] AATA 2058
Decision Date: 11 December 2007

CaseChat Overview and Summary

Miller, a veteran, sought a special rate for a non-accepted disability, arguing it was related to his accepted disabilities. The Repatriation Commission rejected the claim, leading Miller to appeal to the court. The court was tasked with determining whether Miller's non-accepted disability qualified for the special rate under the relevant legislation and if the 'alone' test was correctly applied.

The central legal issue was whether Miller's non-accepted disability, which he argued was related to his accepted disabilities, warranted the special rate. The court examined the statutory criteria for the special rate, focusing on the 'alone' test, which requires the non-accepted disability to be the sole cause of the veteran's incapacity. The court also considered whether the evidence supported a causal relationship between the non-accepted and accepted disabilities.

The court concluded that the 'alone' test was correctly applied and that Miller had not provided sufficient evidence to establish that his non-accepted disability was solely responsible for his incapacity. The court held that the Commission's decision was supported by the evidence and did not err in law. Consequently, the court affirmed the decision under review, dismissing Miller's appeal.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

GENERAL ADMINISTRATIVE DIVISION		)
Re		STEPHEN MILLER