Neilson and Repatriation Commission - [2004] AATA 599

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 599
ADMINISTRATIVE APPEALS TRIBUNAL      )
  ) No A2003/23
VETERANS’ AFFAIRS DIVISION  )

REGRAEME PAUL NEILSON
Applicant

AND REPATRIATION
COMMISSION

Respondent

DECISION

Tribunal Mr G A Mowbray
Date13 May 2004
PlaceCanberra
DecisionFor reasons given orally the Tribunal affirms the Commission’s decision of 25 February 2002 which was affirmed by the Veterans’ Review Board on 14 October 2002.

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Member

CATCHWORDS
VETERANS’ ENTITLEMENTS – incapacity – cervical spondylosis – lumbar spondylosis – trauma to the cervical/lumbar spine - defence-caused injuries – aggravation or clinical worsening – decision affirmed
Veterans’ Entitlements Act 1986, sections 70, 120, 120B
Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Gorton (2001) 33 AAR 370
Harris v Repatriation Commission (2000) 62 ALD 161
Statements of Principles no 51/2002 as amended by no 64/2002 and no 82/2002 and no 47/2002 as amended by no 78/2002
REASONS FOR DECISION

11 June 2004 Mr G A Mowbray

Background
1.        Mr Graeme Neilson served in the Royal Australian Air Force from 3 May 1966 to 25 August 1989. His defence service was from 7 December 1972 to 25 August 1989. It is common ground that on 23 July 1980 and again on 4 November 1980 Mr Neilson was involved in motor vehicle accidents when on his way home from work with the RAAF.
2.        The relevant facts concerning Mr Neilson’s claim for compensation are that
·on 25 September 2001 Mr Neilson made a claim for a disability pension in respect of incapacity from cervical spondylosis and lumbar spondylosis
·on 25 February 2002 a delegate of the Repatriation Commission, the Respondent, determined that cervical spondylosis and lumbar spondylosis were not defence-caused injuries or diseases in this matter
·on 19 March 2002 Mr Neilson applied to the Veterans' Review Board which on 14 October 2002 affirmed the decision of the delegate of the Commission
·on 22 January 2003 Mr Neilson applied to this Tribunal for a review of the Commission's decision as affirmed by the Board.

3. The application was heard on 13 May 2004. Mr John Orr represented Mr Neilson and Mr Adrian Breen was advocate for the Department of Veterans’ Affairs. Oral reasons were given later that day affirming the decision under review.
4. On 26 May 2003 the Tribunal received a request for written reasons for the decision from Mr Neilson pursuant to section 43 (2A) of the Administrative Appeals Tribunal Act 1975. Accordingly these written reasons have been prepared based on the oral reasons with appropriate minor editing.
The Legislative Framework
5. Under section 70(1) of the Veterans' Entitlements Act (the Act) the Commonwealth is liable to pay a pension by way of compensation to a member of the defence force where the incapacity of a member is due to an injury or disease which was defence-caused. Section 70(5) specifies those circumstances where an injury or disease shall be taken to have been defence-caused.
6. Where a claim is made that…

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 Neilson and Repatriation Commission

Details

AGLC: Neilson and Repatriation Commission [2004] AATA 599
Case: [2004] AATA 599
Decision Date: 13 May 2004

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Neilson and Repatriation Commission arose as a dispute between the applicant, Mr Neilson, and the Repatriation Commission concerning his eligibility for veterans’ entitlements. Mr Neilson sought a determination that his cervical and lumbar spondylosis, as well as other spine-related injuries, were due to his service in the defence forces and therefore qualified for compensation under the Veterans’ Entitlements Act 1986. The Repatriation Commission contested this claim, arguing that the conditions were not caused by or contributed to by Mr Neilson’s service.

The central legal issues the court had to decide were whether Mr Neilson’s cervical and lumbar spondylosis and related injuries were defence-caused, and if so, whether they constituted an incapacity warranting compensation. The court also had to consider the relevant Statements of Principles concerning these conditions and assess if Mr Neilson’s conditions were aggravated by his service. Furthermore, the court needed to determine if the Repatriation Commission’s decision to deny Mr Neilson’s claim was lawful and reasonable.

The court held that the Repatriation Commission’s decision was correct and affirmed it. The reasoning was based on the evidence presented, which did not establish that Mr Neilson’s cervical and lumbar spondylosis were defence-caused. The court found that while Mr Neilson had a history of spine-related issues, there was insufficient evidence to link these conditions directly to his service. The court also noted that the aggravation of his conditions was not definitively attributed to his service. The decision was supported by previous case law, including Deledio v Repatriation Commission and Repatriation Commission v Gorton, which emphasised the need for a clear causal link between the claimed conditions and the veteran’s service.

The final orders of the court were that the appeal by Mr Neilson was dismissed, and the Repatriation Commission’s decision was upheld. Mr Neilson’s claim for veterans’ entitlements in respect of his cervical and lumbar spondylosis and related injuries was therefore denied.

Orders