Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 298
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200601234
VETERANS' APPEALS DIVISION ) Re LORRAINE NORTON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member
Dr Kerry Breen, MemberDate27 April 2010
PlaceMelbourne
Decision The decision of the Veterans’ Review Board made on 16 November 2006 is affirmed save that the description of liver cancer, namely, malignant neoplasm of the liver is amended and should, having regard to the evidence heard in these proceedings, be recorded as primary hepatocellular (liver) adenocarcinoma with bony metastases.
(sgd) John Handley
Senior Member
VETERANS’ AFFAIRS – Application remitted from Federal Court – veteran died after VRB decision – claim by estate – multiple hypotheses – whether death from liver cancer connected with alcohol dependence – applicant's representative did not call evidence – decision of VRB affirmed
Veterans’ Entitlements Act 1986 s 5(12)(a), s 5Q(1B), s 196(14), s 196B, s 196B(2), s 196(14), s 196(14(a), s 120(1) and s 126
Safety, Rehabilitation and Compensation Act 1988 s 4
Benjamin v Repatriation Commission [2001] FCA 1879
Comcare v Canute (2005) 148 FCR 232
Comcare v Sahu-Khan [2007] FCA 15
Delahunty v Repatriation Commission [2004] FCA 309
Repatriation Commission v Deledio (1998) 49 ALD 193
Hunter v Repatriation Commission [2010] FCA 145
Kattenberg v Repatriation Commission (2002) 73 ALD 365
Law v Repatriation Commission (1980) 29 ALR 64
Lees v Repatriation Commission [2002] FCAFC 398
McKenna v Repatriation Commission [1999] FCA 323
Nelson v Comcare [2009] FCA 1149
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Bendy (1980) 18 ALD 144
Repatriation Commission v Constable [2006] FCAFC 102
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Gosewinckel [1999] FCA 1273
Repatriation Commission v Hawkins (1993) 117 ALR 225
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Keeley [2000] FCA 532
Repatriation Commission v Money [2009] FCAFC 11
Repatriation Commission v Norton [2008] FCA 1132
Repatriation Commission v Stoddart (2003) 134 FCR 392
Repatriation v Gorton [2001] FCA 1194
Stoddart v Repatriation Commission (2003) 197 ALR 283
Woodward and Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION
27 April 2010
Mr John Handley, Senior Member
Dr Kerry Breen, Member1. This application has an unfortunate history and may be briefly summarised as follows.
2. The applicant was appointed by the respondent pursuant to s 126 of the Veterans’ Entitlements Act 1986 (the Act) as a person approved to continue the claim on behalf of the deceased veteran, Perrin James Goodwin (the deceased), who died on 30 November 2006 when aged 59. The certified cause of death was metastatic carcinoma of the liver and primary carcinoma of the liver.
3. The deceased made his claim on 6 October 2005 and the entitlement, if any, is confined to the assessment period expiring on 30 November 2006. He sought acceptance of metastatic bone disease @ S1 vertebrae. The Deputy Medical Officer with the…
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CaseChat Overview and Summary
The Tribunal considered the multiple hypotheses presented regarding the connection between the veteran's alcohol dependence and the liver cancer, and whether this connection was related to their service. The Tribunal noted that the applicant's representative did not call any evidence in the proceedings, and that the Board had already considered the available evidence in its original decision. Despite this, the Tribunal found that the Board had correctly considered the evidence and made a reasonable decision based on the material before it. The Tribunal also noted that the description of the liver cancer in the Board's decision was incorrect, and should be amended to reflect the evidence heard in these proceedings.
The Tribunal affirmed the decision of the Veterans' Review Board made on 16 November 2006, save that the description of liver cancer, namely, malignant neoplasm of the liver, should be amended and recorded as primary hepatocellular (liver) adenocarcinoma with bony metastases. The Tribunal found that the Board's decision was reasonable and based on the material before it, and that there was no basis to overturn it. The Tribunal also noted that the applicant's representative did not call any evidence in the proceedings, and that the Board had already considered the available evidence in its original decision. The Tribunal's decision affirms the importance of the Board's role in assessing claims for war-related disability pensions and the need for careful consideration of the evidence before making a decision.
Orders
Orders of the court
The decision of the Veterans’ Review Board made on 16 November 2006 is affirmed save that the description of liver cancer, namely, malignant neoplasm of the liver is amended and should, having regard to the evidence heard in these proceedings, be recorded as primary hepatocellular (liver) adenocarcinoma with bony metastases.
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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