Monaghan and Reptriation Commission - [2000] AATA 605

DECISION AND REASONS FOR DECISION [2000] AATA 605

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1999/63

VETERANS' APPEALS DIVISION          )
           Re      WILLIAM DARCY JOHN MONAGHAN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Pamela Burton, Senior Member

Date21 July 2000
PlaceCanberra

Decision      The tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration with the direction that the veteran's pension entitlement be assessed with effect from 24 August 1997 on the basis of the conditions of metatarsalgia and lumbar spondylosis being war-caused.
  ..................(Sgd.).......................
  Pamela Burton   Senior Member
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – disability pension – whether lumbar spondylosis is "war-caused" – impact and injury from forced aircraft landings – whether pre-existing disease – incidents of trauma prior to eligible service – whether trauma to the lumbar spine during eligible service – whether aggravation of disease – whether clinical worsening of condition subsequent to trauma to the lumbar spine.
Legislation
Veterans' Entitlements Act 1986
Authorities
Repatriation Commission v Keeley [2000] FCA 532
Keeley v Repatriation Commission [1999] FCA 1103
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
Repatriation Commission v Yates (1995) 38 ALD 80
Repatriation Commission v Smith (1987) 74 ALR 537

REASONS FOR DECISION

21 July 2000 Pamela Burton, Senior Member

This is an application for review of the decision of the Repatriation Commission dated 13 August 1997, part of which denied that the veteran's conditions of lumbar spondylosis and metatarsalgia were war-caused. The Veterans' Review Board ("the VRB") affirmed the decision on 2 February 1999.
The veteran was represented by Mr Paul Crabb and the respondent was represented by Ms Susie Breuer. The tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T-documents"). In addition medical reports of Dr Scott, occupational physician, dated 17 September 1999 (Exhibit A), and Professor Sambrook, rheumatologist, dated 7 July 1999 (Exhibit 1), the applicant's statement of trauma (Exhibit B) and two photographs (Exhibit C) were tendered at the hearing. The tribunal heard the evidence of the veteran and Dr Scott gave telephone evidence on behalf of the veteran. Professor Sambrook gave telephone evidence on behalf of the respondent.
At the hearing the respondent conceded that the condition of metatarsalgia was war-caused, and the tribunal so decides. Thus, the remaining issue before the tribunal is whether the veteran's condition of lumbar spondylosis is war-caused.
Service
The Veterans' Entitlements Act 1986 ("the Act") requires that for a claim to be accepted the disability must be related to operational and/or eligible defence service. The veteran was born on 18 February 1929. He joined the Royal Australian Air Force ("RAAF") on 4 January 1949. It is not in dispute that the veteran served in Korea from 5 April 1953 to 26 November 1953, which period constitutes "operational service" for the purpose of the Act. He also served from 7 December 1972 to 16 February 1984, which period constitutes "eligible defence service" for the…

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 Monaghan and Reptriation Commission

Details

AGLC: Monaghan and Reptriation Commission [2000] AATA 605
Case: [2000] AATA 605
Decision Date: 21 July 2000

CaseChat Overview and Summary

The decision involves the parties Monaghan and the Repatriation Commission. The dispute revolves around the eligibility for a disability pension, specifically whether certain conditions, including lumbar spondylosis, are considered "war-caused." The case was heard in the Administrative Appeals Tribunal (AAT). The central legal issues pertain to the determination of whether lumbar spondylosis and metatarsalgia are attributable to the veteran's service, whether the condition was exacerbated by incidents occurring during service, and whether these conditions qualify as "war-caused." The court needed to establish if the lumbar spondylosis was pre-existing or if it was caused or aggravated by events during the veteran's eligible service.

The tribunal examined evidence regarding the veteran's history of lumbar spine trauma, including forced aircraft landings, to assess whether these incidents contributed to the lumbar spondylosis. The tribunal concluded that the veteran's lumbar spondylosis and metatarsalgia were indeed war-caused, based on the cumulative impact of the trauma and the clinical evidence presented. The tribunal found that the condition was not merely a pre-existing disease but was significantly affected by the service-related incidents.

The tribunal set aside the original decision and directed the Repatriation Commission to reassess the veteran's pension entitlement from 24 August 1997, recognising the conditions as war-caused. The tribunal's decision was grounded in the medical evidence and the timeline of events, affirming that the veteran's lumbar spondylosis and metatarsalgia were appropriately classified as war-related injuries. The tribunal's reasoning was meticulous, ensuring that all relevant factors and incidents were considered in the context of the veteran's service history.

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

The agreed date of effect is 24 August 1997.Decision The tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration with the direction that the veteran's pension entitlement be assessed with effect from 24 August 1997 on the basis of the conditions of metatarsalgia and lumbar spondylosis being war-caused.I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Pamela Burton, Senior MemberSigned: Eva Dimopoulos ..................................................................................... AssociateDate of Hearing 9 May 2000 Date of Decision 21 July 2000Counsel for the Applicant Mr Paul Crabb Solicitor for the Applicant Snedden, Hall & Gallop Counsel for the Respondent Ms Susie Breuer Solicitor for the Respondent Department of Veterans' Affairs, Advocacy

Ratio Decidendi

Legal Principle Established

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