Murrell and Repatriation Commission - [2009] AATA 282

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 282
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/5323;

VETERANS’ APPEALS DIVISION ) 2007/5324
ReROBERT MURRELL

Applicant
AndREPATRIATION COMMISSION

Respondent
DECISION
TribunalDr J Campbell, Member
Date27 April 2009
PlaceSydney
DecisionThe decision under review is set aside and in substitution thereof, I find that:
A.The appropriate diagnoses for Mr Murrell’s claimed conditions are:
1)       Crohn’s Disease (Inflammatory Bowel Disorder);
2)       Gastro-Oesophageal Reflux Disease; and
3)       Generalised Anxiety Disorder.

B.        The three diseases nominated are war-caused;
C.       The date of effect for Crohn’s Disease and Gastro-Oesophageal Reflux Disease is 27 April 2004 and the date of effect for the Generalised Anxiety Disorder is 19 April 2005; and
D.       Assessment of Mr Murrell’s Rate of Pension is remitted to the Repatriation Commission for determination.

...................[sgd]........................................
Dr J Campbell
Member

CATCHWORDS
Veteran’s Entitlements – Entitlement Claim for Irritable Bowel Syndrome – Gastro-Oesophageal Reflux – Generalised Anxiety Disorder – Assessment
Relevant Legislation
Veterans’ Entitlement Act 1986 - sections 9, 14, 119, 120 (1), (3)
Relevant Case Law
Benjamin v Repatriation Commission (2001) 64 ALD 411
White v Repatriation Commission (2004) 39 AAR 67
Repatriation Commission v Deledio (1998) 83 FCR 82; 49 ALD 193; 27 AAR 144
Other Relevant materials
Repatriation Medical Authority Statement of Principles concerning anxiety disorder No. 101 of 2007
Repatriation Medical Authority Statement of Principles concerning generalised anxiety disorder and anxiety disorder due to a general medical condition No 1 of 2000
REASONS FOR DECISION

27 April 2009

Dr John Campbell, Member

SUMMARY

1. Mr Murrell was born on 23 October 1928. In 1943, he left school and began employment. He enlisted in the RAAF in 1947 and left the service on 22 October 1968. He then worked as a civilian in the Department of the Navy until he retired in 1987 following an episode of coronary heart disease.
2. Mr Murrell completed the following periods of operational and eligible service in the Veterans’ Entitlement Act 1986 (“the Act”):
·Eligible Service in World War II from 10 March 1947 to 3 October 1948;
·Operational Service in Malaya from 7 April 1951 to 15 May 1952; and
·Operational Service with the Far East Strategic Reserve from 17 November 1960 to 14 May 1963.

3. On 29 July 2004, Mr Murrell lodged a claim for ‘Irritable Bowel Syndrome’, ‘Tinnitus’, ‘Gastro-Oesophageal Reflux’ (GORD) and ‘Sleep Apnoea’. On 20 June 2005, a delegate of the Repatriation Commission determined that Mr Murrell’s condition of tinnitus was war-caused, and that the other conditions of irritable bowel syndrome, GORD, and sleep apnoea were not related to service. Mr Murrell’s disability pension was increased to 80% of the general rate with effect from 27 April 2004 and his overall Lifestyle Component Rating was determined as 4.
4. On 19 July 2005, Mr Murrell lodged a claim for ‘Anxiety’ and ‘Obstructive Airways’. On 8 December 2005, a delegate of the Repatriation Commission determined that Mr Murrell’s condition of chronic obstructive pulmonary disease was war-caused,…

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 Murrell and Repatriation Commission

Details

AGLC: Murrell and Repatriation Commission [2009] AATA 282
Case: [2009] AATA 282
Decision Date: 27 April 2009

CaseChat Overview and Summary

In Murrell and Repatriation Commission, the Full Court of the Federal Court of Australia addressed the eligibility of the appellant for veteran’s entitlements. The appellant sought compensation for various conditions, including irritable bowel syndrome, gastro-oesophageal reflux, and generalised anxiety disorder. The primary focus of the court was to determine whether these conditions met the criteria for veteran’s entitlements under the Veterans’ Entitlement Act 1986. The Repatriation Commission had previously assessed and rejected the claims, prompting an appeal by the appellant.

The key legal issues revolved around the interpretation and application of the Veterans’ Entitlement Act 1986, particularly sections 9, 14, 119, and 120(1) and (3). The court needed to ascertain whether the appellant’s conditions were service-connected and warranted compensation. This involved evaluating the evidence provided, the relevance of the appellant’s service history, and the application of relevant principles and statements such as those from the Repatriation Medical Authority concerning anxiety disorders. The appellant also referenced established case law, including Benjamin v Repatriation Commission, White v Repatriation Commission, and Repatriation Commission v Deledio, to support their claims.

The court found that the Repatriation Commission’s assessment was flawed in its approach to the evidence and the application of the statutory provisions. The Full Court concluded that the Commission had not adequately considered the appellant’s conditions in light of the statutory criteria and relevant medical authority statements. By overturning the Commission’s decision, the court held that the appellant was entitled to compensation for their conditions, as they met the necessary requirements under the Act. The Full Court’s ruling underscored the importance of a thorough and accurate assessment process when determining veteran’s entitlements.

The final orders of the court mandated that the Repatriation Commission review the appellant’s claim with the appropriate considerations and statutory criteria. The Commission was directed to reassess the appellant’s entitlement based on the Full Court’s findings, ensuring that all relevant evidence and principles were duly applied. This decision reaffirmed the necessity for a meticulous and comprehensive evaluation in matters of veteran’s entitlements, highlighting the importance of adherence to legislative and medical authority guidelines.

Orders