Neil Monteith Chaplin v Repatriation Commission - [2003] AATA 332

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 332
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2002/6

VETERANS' APPEALS DIVISION )

Re NEIL MONTEITH CHAPLIN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Brigadier R D F Lloyd, Member
Date10 April 2003
PlacePerth

Decision
Pursuant to section 43 of the AdministrativeAppeals Tribunal Act 1975, the Tribunal decides:

(a)      to vary the VRB decision under review of 19 September 2001, by amending the diagnosed claimed conditions to be spondylolisthesis and lumbar spondylosis;

(b)      to affirm the decision under review, so varied, in so far as the condition of spondylolisthesis is not accepted as being war-caused;

(c)       to accept as war-caused the condition of lumbar spondylosis in the decision under review as now varied, with effect from 12 April 1999; and

(d)   to remit the matter of assessment of incapacity from this now accepted war-caused condition of lumbar spondylosis to the Repatriation Commission.

..........(sgd R D F Lloyd).............................
Member

CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – Ex Australian Regular Army – operational service Vietnam – linesman/rigger – claim for spondylolisthesis – claim varied to include lumbar spondylosis – whether requirements of relevant Statements of Principle met – severity of trauma – lifting/carrying loads over prolonged period.
Veterans’ Entitlements Act 1986 ss 6, 7, 9, 13, 120(1), 120(3), 120(4), 120A
Re Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Yates (1995) 57 FCR 241
Repatriation Commission v Cornelius (2002) FCA 750
REASONS FOR DECISION

10 April 2003 Brigadier R D F Lloyd, Member

1. This is an application before the Administrative Appeals Tribunal (“the Tribunal”) by Neil Monteith Chaplin (“the applicant”) for a review of a decision of the Veteran’s Review Board (“VRB)”, dated 19 September 2001. This affirmed an earlier decision by the Repatriation Commission (“the respondent”) made on 5 October 1999 refusing disability pension for spondylolisthesis, it not being accepted by the respondent as a war-caused condition.
2. The applicant attended the hearing together with his advocate Mr P Lofdahl. The respondent was represented by Mr C Ponnuthurai. The Tribunal had before it the documents filed pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 (‘the T documents”). In addition, the following documents were taken into evidence at the request of the applicant (A) and the respondent (R) respectively:
(a)Exhibit A1 – Medical Report by Mr P H Hardcastle dated 4 July 2002 Re N Chaplin.
(b)Exhibit A2 – Letter dated 2 July 2002 from Dr P A Brockhoff to the Tribunal Re N Chaplin.
(c)Exhibit A3 – Letter dated 3 July 2002 from Dr P A Brockhoff to Mr Hardcastle Re N Chaplin.
(d)Exhibit R1 – In/Out – Patient Reference Sheet (F Med 6) Re Sig N Chaplin dated 4 August 1966 (of 2 pages).
(e)Exhibit R2 – Attendance and Treatment Card (F Med 5) Re Cpl N Chaplin (13 November 1969 to 19 April 1971).

No respondent witnesses were called to give evidence at the hearing.…

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 Neil Monteith Chaplin v Repatriation Commission

Details

AGLC: Neil Monteith Chaplin v Repatriation Commission [2003] AATA 332
Case: [2003] AATA 332
Decision Date: 10 April 2003

CaseChat Overview and Summary

The matter of Neil Monteith Chaplin versus the Repatriation Commission came before the Administrative Appeals Tribunal, with the Tribunal tasked to review a decision made by the Veterans' Review Board (VRB) regarding Chaplin’s claim for veterans' entitlements. Chaplin, a former member of the Australian Regular Army, had served in Vietnam and claimed that his service caused spondylolisthesis. After the initial claim, the diagnosis was amended to include lumbar spondylosis. The crux of the dispute was whether the modified claim met the requirements of the relevant Statements of Principle and if the severity of the trauma experienced during his service warranted the acceptance of the condition as war-caused.

The primary legal issues before the Tribunal involved determining whether the amended claim for lumbar spondylosis met the necessary criteria as outlined in the Statements of Principle. The Tribunal had to consider whether the evidence provided by Chaplin substantiated that his condition was war-caused, particularly in light of the prolonged lifting and carrying of loads during his service. The Tribunal also needed to assess if the severity of the trauma experienced during his service was sufficient to establish the link between his service and the diagnosed condition.

In reaching its decision, the Tribunal found that the modified claim now included lumbar spondylosis, which aligned with the evidence presented. The Tribunal noted that the prolonged exposure to heavy lifting and carrying loads during Chaplin’s service was a significant factor in his condition. After a thorough review of the evidence, the Tribunal concluded that the condition of lumbar spondylosis was indeed war-caused. The Tribunal accepted the condition as war-caused with effect from 12 April 1999, but did not accept spondylolisthesis as war-caused. Consequently, the Tribunal varied the VRB decision to reflect the accepted condition and remitted the matter of assessing incapacity from the accepted war-caused condition back to the Repatriation Commission for further consideration.

In summary, the Tribunal varied the VRB decision by amending the diagnosed conditions to include lumbar spondylosis. It affirmed the VRB decision in part, accepting the condition of lumbar spondylosis as war-caused, and remitted the matter of assessing incapacity back to the Repatriation Commission. This decision highlights the importance of aligning the diagnosis with the criteria in the Statements of Principle and the need for sufficient evidence to establish a war-caused link.

Orders

Orders of the court

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides:

(a) to vary the VRB decision under review of 19 September 2001, by amending the diagnosed claimed conditions to be spondylolisthesis and lumbar spondylosis;

(b) to affirm the decision under review, so varied, in so far as the condition of spondylolisthesis is not accepted as being war-caused;

(c) to accept as war-caused the condition of lumbar spondylosis in the decision under review as now varied, with effect from 12 April 1999; and

(d) to remit the matter of assessment of incapacity from this now accepted war-caused condition of lumbar spondylosis to the Repatriation Commission.

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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VETERANS' APPEALS DIVISION		)
Re		NEIL MONTEITH CHAPLIN