Page and Repatriation Commission - [2001] AATA 85

DECISION AND REASONS FOR DECISION [2001] AATA 85

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1175

VETERANS' APPEALS DIVISI0N    )
          Re      REGINALD WARD PAGE
  Applicant
          And     REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms G Ettinger Senior Member

Date8 February 2001
PlaceSydney (heard in Taree, NSW)

Decision        The Administrative Appeals Tribunal ("the Tribunal") affirms the decision of the Respondent Repatriation Commission dated 22 December 1998 as affirmed by the Veterans' Review Board on 17 June 1999 to refuse the Applicant, Mr Reginald Ward Page's claim that his lumbar spondylosis was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986. By agreement of the parties the Tribunal affirms the findings of the Repatriation Commission dated 22 December 1998 and the Veterans' Review Board of 17 June 1999 with regard to the other conditions previously claimed, namely benign prostatic hypertrophy, diverticulosis and peripheral vascular disease and the assessment of disability pension at 80% of the General Rate.
  ..............................................
  Ms G Ettinger
  Senior Member
CATCHWORDS
Veterans' Appeals - whether lumbar spondylosis war-caused - whether definition of trauma met - decision under review affirmed

LEGISLATION
Veterans' Entitlements Act 1986 ss 9, 120B and 120(4)

STATEMENTS OF PRINCIPLES
Statement of Principles Instrument No.53 of 1998 Concerning Lumbar Spondylosis
Statement of Principles Instrument No.28 of 1999 Concerning Lumbar Spondylosis

CASE LAW
Arnott v Repatriation Commission [2000] FCA 1336
Connors v Repatriation Commission [2000] FCA 783
Harris v Repatriation Commission (2000) 31 AAR 270
Repatriation Commission v Keeley (2000) 31 AAR 150

REASONS FOR DECISION

8 February 2001 Ms G Ettinger Senior Member

The decision under review by the Administrative Appeals Tribunal ("the Tribunal") was the decision of the Repatriation Commission dated 22 December 1998 (T2) as affirmed by the Veterans' Review Board decision of 17 June 1999 (T17) to reject the Applicant's claim that his lumbar spondylosis, benign prostatic hypertrophy, diverticulosis and peripheral vascular disease were war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.
The Applicant, Mr Reginald Ward Page was represented by Mr C Colborne of Counsel, and the Respondent by its advocate, Ms M Doggett.
BACKGROUND
As a preliminary matter, Mr Colborne on behalf of the Applicant, indicated that he was satisfied for the Tribunal to affirm the decision under review in so far as it concerned the claimed conditions of benign prostatic hypertrophy, diverticulosis and peripheral vascular disease. Mr Colborne advised that for the purposes of the instant proceedings, Mr Page was only pursuing his appeal with regard to his lumbar spondylosis.
The parties agreed that if the Applicant's claim were successful, that Mr Page's pension should be increased to 90% of the General Rate.
ISSUES BEFORE THE TRIBUNAL
The issue for consideration by the Tribunal was:
· Whether the lumbar spondylosis suffered by the Applicant was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.

LEGISLATION

The relevant legislation in this matter was the Veterans' Entitlements Act 1986 ("the Act") in particular sections 9, 120B and 120(4). Section 9 of the Act provides as relevant:
"

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 Page and Repatriation Commission

Details

AGLC: Page and Repatriation Commission [2001] AATA 85
Case: [2001] AATA 85
Decision Date: 8 February 2001

CaseChat Overview and Summary

The case of Page and Repatriation Commission involved the Applicant, Mr Reginald Ward Page, who sought a review of a decision made by the Respondent, the Repatriation Commission. The central dispute pertained to whether the lumbar spondylosis that Mr Page claimed was caused by his war service was indeed a war-caused injury under section 9 of the Veterans' Entitlements Act 1986. Mr Page was represented by Mr C Colborne, and the Respondent was represented by Ms M Doggett. Mr Colborne indicated that Mr Page was satisfied with the decision concerning benign prostatic hypertrophy, diverticulosis, and peripheral vascular disease, focusing solely on the lumbar spondylosis for the appeal.

The legal issue at the heart of the case was whether Mr Page's lumbar spondylosis was attributable to his service in the war, thus qualifying as a war-caused injury. This required the Tribunal to examine if the condition arose out of or was attributable to Mr Page's eligible war service, as stipulated by section 9(1)(b) of the Act. Given Mr Page's service period from 24 April 1942 to 18 February 1946, the applicable standard of proof was the Tribunal's reasonable satisfaction under section 120(4) of the Act. The Tribunal also had to consider the relevant Statements of Principles (SoPs) in force at the time of the original decision and any subsequent revocations, in light of the Federal Court decision in Repatriation Commission v Keeley (2000) 31 AAR 150.

The Tribunal reviewed the evidence presented, including Mr Page's medical history and his accounts of back pain during and after his military service. The Tribunal acknowledged that Mr Page had a swollen and enlarged right testicle and urethritis during his hospitalization in 1942, with his back pain persisting after treatment. Despite the Tribunal's findings of fact, it concluded that Mr Page's lumbar spondylosis was not attributable to his war service. The Tribunal found that the medical evidence did not sufficiently link the back pain to any war-related incident or service conditions, and the symptoms did not align with the characteristics of war-caused lumbar spondylosis as defined in the applicable SoPs. Consequently, the Tribunal affirmed the decision under review, denying Mr Page's claim for an increased pension based on his lumbar spondylosis.

Orders

Orders of the court

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Background

Background to the litigation

The Applicant, Mr Reginald Ward Page was represented by Mr C Colborne of Counsel, and the Respondent by its advocate, Ms M Doggett. BACKGROUND As a preliminary matter, Mr Colborne on behalf of the Applicant, indicated that he was satisfied for the Tribunal to affirm the decision under review in so far as it concerned the claimed conditions of benign prostatic hypertrophy, diverticulosis and peripheral vascular disease. Mr Colborne advised that for the purposes of the instant proceedings, Mr Page was only pursuing his appeal with regard to his lumbar spondylosis. The parties agreed that if the Applicant's claim were successful, that Mr Page's pension should be increased to 90% of the General Rate.ISSUES BEFORE THE TRIBUNAL The issue for consideration by the Tribunal was:· Whether the lumbar spondylosis suffered by the Applicant was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986. The relevant legislation in this matter was the Veterans' Entitlements Act 1986 ("the Act") in particular sections 9, 120B and 120(4). Section 9 of the Act provides as relevant:"9 War-caused injuries or diseases(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:… (b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;…" I noted that as Mr Page had lodged his claim with the Respondent after 1 June 1994, I was required to apply section 120B of the Act and consider Mr Page's claim in light of any applicable Statements of Principles ("SoPs") as issued by the Repatriation Medical Authority. Moreover, as Mr Page had served his country on eligible service from 24 April 1942 to 18 February 1946, the standard of proof applicable was that of the Tribunal's reasonable satisfaction pursuant to section 120(4) of the Act. "120 Standard of proof …(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.Note: This subsection is affected by section 120B.…" I noted that the relevant SoP at the time of the Repatriation Commission decision of 22 December 1998, was Instrument No.53 of 1998 concerning Lumbar Spondylosis, however, by the time of the Veterans' Review Board decision on 17 June 1999, Instrument No.53 of 1998 had been revoked by Instrument No.28 of 1999 and the Applicant's claim was considered in light of the later SoP.10. I was mindful that I am bound by the recent Federal Court decision in Repatriation Commission v Keeley (2000) 31 AAR 150, and required to take into account Mr Page's accrued rights. 11. In this respect, I noted that the Respondent, in its Statement of Facts and Contention, conceded that:"… the Statement of Principles that were in force at the date of the Repatriation Commission decision are the applicable Statement of Principles."

Evidence

Evidence Before The Court

I noted that at page 20a of the T-documents, (Exhibit R2), a document headed 'VENEREAL CASE CARD' recorded that on 7 July 1942 Mr Page had a swollen and enlarged right testicle, urethritis, slight tenderness of the right testicle, and "nil else". Mr Page said that he was admitted to the Hospital and treated there for two weeks. He recalled that he had been treated for urethritis and that he was told that his back problems were related. He said that he also discovered that it was a hospital treating servicemen with sexually transmitted diseases, but that there were other servicemen there with back problems. 25. Mr Page informed the Tribunal that during his two week stay at the hospital, he amused himself by "talking to the blokes there", reading or going for walks on the beach and the rocks. When questioned about his walks on the rocks, Mr Page said that his back was too sore for "jumping about" and that he had to be very careful about getting up and down from the rocks.26. Mr Page said that after his two week sojourn at the Hospital, his back was in much the same condition as it was when he was admitted. He said that the swelling in his testicle went down approximately three weeks after leaving the Hospital, although he had trouble with it being sore for a few years following his discharge. Mr Page said that his back settled down approximately a month after leaving the Hospital.27. Mr Page said that following his discharge, he was sent to Rose Bay as a gunner. He told me that he received some treatment whilst at Rose Bay, namely hot-packs he obtained from the RAP. Mr Page said further that his back improved slightly at Rose Bay as he was not required to do any heavy lifting as the anti-artillery guns were all set up. Later postings included Thursday Island and Cairns where Mr Page remained for a further six to eight months as an anti-aircraft gunner before being discharged in Sydney in 1946.28. As to his continuing back problem, Mr Page told the Tribunal that he did not have "real severe problems with his back". When asked about what constituted "real severe", Mr Page replied with reference to the North Head problem. He said that he continued to suffer lesser problems with his back including aching down both sides of the back but more so in his lower back, which was more pronounced in cold weather or when he slept on the ground.29. The Applicant told the Tribunal that following his army service, he worked as a tram conductor. He said that the overalls that he was required to wear let the wind and "any chills" in and make his back "painful lower down". Mr Page said that he would suffer this type of pain approximately once a month and that it would last one to two days. Mr Page said further that he did not seek treatment but rather massaged the painful area. 30. Mr Page also said that he worked in a timber mill for approximately six months felling trees. Although he was required to cut the trees using an axe and board as chainsaws were not available at that time, Mr Page said that the work was not particularly heavy as a bulldozer would move the felled trees.31. Mr Page worked as a linesman for the then PMG for over 30 years until he retired from the PMG in 1983 due to pain and the difficulty he encountered doing the heavy work (Exhibit R4). He said that he had been responsible for digging holes using a shovel and crowbar as part of a five man gang. Mr Page told the Tribunal that he had trouble with his back particularly in winter or when he camped out during his employment as a linesman. He said that although it affected his ability to do his job, he just coped. Mr Page also said that his employer was aware of his back condition and that his work mates would help him out when he needed it as it "might be one of them tomorrow". However, he said that if it became really bad, he would take a sick day but that like in the army, he "couldn't take a five minute break all the time".32. When shown the details of his sick leave in respect of his employment as a linesman at T7/33, Mr Page said although he "can't be sure", but that he did not think that he took any more time off. I noted that for the period 29 January 1953 to 31 October 1968, Mr Page was only absent from work due to a strained back on two occasions, from 7-8 November 1955 and from 7-21 October 1958.33. Mr Page said that he first consulted Dr Balden in Taree in approximately 1962/3 in respect of back pain following a fall from a ladder. He said that at the time of the fall, he was in the bush and was forced to drive home. When he got home, his wife put on a bath for him and called the doctor. Mr Page said that he thought he had broken his legs as he was very sore all over. When the doctor inquired as to his back, he told him that it was very sore and had been like that for some time. Mr Page said that his back pain was treated with showers and hot packs.EVIDENCE OF THE APPLICANT'S WIFE, MRS JOYCE PATRICIA PAGE

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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