Perren and Repatriation Commission (Veterans’ entitlements) - [2016] AATA 253

Perren and Repatriation Commission (Veterans’ entitlements) [2016] AATA 253 (20 April 2016)

Division

VETERANS' APPEALS DIVISION

File Number(s)

2014/3025

Re

Leo Perren

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Ms N Isenberg, Senior Member

Date 20 April 2016

Place Sydney
The decision under review is affirmed.

........................[sgd]................................................
Ms N Isenberg, Senior Member
CATCHWORDS
VETERANS AFFAIRS — pension — defence service — lumbar spondylosis — thoracic spondylosis — statement of principles — whether applicant lifted loads of at least 35 kilograms while bearing weight to a cumulative total of at least 168000 kilograms within any ten year period before the clinical onset of conditions — application of statement of principles — threshold limit not met — decision under review affirmed
LEGISLATION
Veterans' Entitlement Act ss 70(1), 70(5)(a), 120(4)
CASES
Baird v Repatriation Commission [2015] AATA 393

Chaplin v Repatriation Commission [2003] AATA 332
Gorton v Repatriation Commission [2001] FCA 286
Guthrie v Repatriation Commission [2003] AATA 361
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Smith (1987) 15 FCR 327

Wheat v Repatriation Commission [2003] AATA 1050
SECONDARY MATERIALS
Statement of Principles concerning lumbar spondylosis No. 63 of 2014

Statement of Principles concerning lumbar spondylosis No. 38 of 2005
Statement of Principles concerning thoracic spondylosis No. 65 of 2014

Statement of Principles concerning thoracic spondylosis No. 36 of 2005
REASONS FOR DECISION
Ms N Isenberg, Senior Member
20 April 2016
DECISION UNDER REVIEW

The decision under review is the decision of the Repatriation Commission, affirmed by the Veterans’ Review Board (“the VRB”) on 24 February 2014, that refused the claim by the applicant, Leo Perren that his lumbar spondylosis and thoracic spondylosis are to be related to his service.
BACKGROUND
Mr Perren served in the Royal Australian Navy between 12 January 1975 and 11 January 1984. That service was not “operational service” as defined in the Veterans’ Entitlement Act 1986 (“the VE Act”), but was eligible defence service.
LEGISLATIVE BACKGROUND
Part IV of the VE Act deals with pensions for members of the Defence Force. Section 70(1) of the VE Act provides that, where a member is incapacitated from a defence-caused injury or disease, the Commonwealth is liable to pay pension by way of compensation to the member in accordance with that Act. By s 70(5)(a), the injury/disease shall be taken to be defence-caused if the injury/disease arose out of, or was attributable to, the member’s defence service.
The Repatriation Medical Authority has determined, under s 196B(3) of the VE Act, a Statement of Principles (“SoP”), in respect of each of the claimed conditions. Currently those SoPs are No 63 of 2014 (lumbar spondylosis) and No 65 of 2014 (thoracic spondylosis). I must apply the SoPs that are currently in force, unless the SoPs in force when the claim was first determined are more beneficial to the veteran: Gorton v Repatriation Commission [2001] FCA 286. The earlier SoPs are No 38 of 2005 (lumbar spondylosis) and No 36 of 2005 (thoracic spondylosis). The earlier SoPs…

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.

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Details

Case: [2016] AATA 253
Decision Date: 20 April 2016

CaseChat Overview and Summary

This matter concerned an application for review by Mr Perren against a decision of the Repatriation Commission regarding his entitlement to a pension for lumbar and thoracic spondylosis. Mr Perren served in the Royal Australian Navy between 1975 and 1984, and his service was classified as eligible defence service. The dispute centred on whether his conditions were defence-caused, which required him to satisfy specific criteria outlined in Statements of Principles (SoPs) determined by the Repatriation Medical Authority.

The primary legal issue before the Tribunal was to determine whether Mr Perren's claimed conditions of lumbar and thoracic spondylosis arose out of, or were attributable to, his defence service, as defined by the Veterans’ Entitlement Act 1986. This required the Tribunal to apply the relevant SoPs, specifically SoP No 63 of 2014 for lumbar spondylosis and SoP No 65 of 2014 for thoracic spondylosis, or, if more beneficial, the SoPs in force at the time of the original decision, being No 38 of 2005 and No 36 of 2005 respectively. The Tribunal was required to be satisfied on the balance of probabilities that the criteria within the applicable SoPs were met.

The Tribunal considered Mr Perren's submissions, which relied on factors involving the lifting or carrying of loads of at least 35 kilograms to a cumulative total of at least 168,000 kilograms within any ten-year period before the clinical onset of his conditions. The Tribunal noted that Mr Perren's own calculations of his lifting during a nominated period fell only slightly above the required threshold. Upon examining the evidence, particularly concerning the lifting of communication cables, the Tribunal found that Mr Perren's participation in this task was not as extensive as claimed. Even accepting that the task occurred at 56 ports and involved significant weight, the Tribunal concluded that Mr Perren's role, especially after his promotion, and the availability of other sailors meant he did not consistently participate in this task at every port. Consequently, his total estimated lifts fell below the 168,000-kilogram threshold. The Tribunal also considered earlier SoPs but found that Mr Perren did not satisfy the criteria under those either.

For the reasons outlined, the Tribunal found that Mr Perren did not satisfy the criteria under either the current SoPs or those in place at the time of the original decision. Accordingly, the decision under review was affirmed.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

Mr Perren served in the Royal Australian Navy between 12 January 1975 and 11 January 1984. That service was not “operational service” as defined in the Veterans’ Entitlement Act 1986 (“the VE Act”), but was eligible defence service.LEGISLATIVE BACKGROUND Part IV of the VE Act deals with pensions for members of the Defence Force. Section 70(1) of the VE Act provides that, where a member is incapacitated from a defence-caused injury or disease, the Commonwealth is liable to pay pension by way of compensation to the member in accordance with that Act. By s 70(5)(a), the injury/disease shall be taken to be defence-caused if the injury/disease arose out of, or was attributable to, the member’s defence service. The Repatriation Medical Authority has determined, under s 196B(3) of the VE Act, a Statement of Principles (“SoP”), in respect of each of the claimed conditions. Currently those SoPs are No 63 of 2014 (lumbar spondylosis) and No 65 of 2014 (thoracic spondylosis). I must apply the SoPs that are currently in force, unless the SoPs in force when the claim was first determined are more beneficial to the veteran: Gorton v Repatriation Commission [2001] FCA 286. The earlier SoPs are No 38 of 2005 (lumbar spondylosis) and No 36 of 2005 (thoracic spondylosis). The earlier SoPs were subsequently amended several times but those amendments are not relevant to this application for review. Pursuant to s 120(4) of the VE Act, I am required to determine this matter “to my reasonable satisfaction” – that is, on the civil standard of proof, namely, proof on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327.APPLICANT’S SUBMISSION The Applicant relied on the following factors in the current SoP:(i) lifting loads of at least 35 kilograms while bearing weight through the lumbar spine to a cumulative total of at least 168 000 kilograms within any ten year period before the clinical onset of lumbar spondylosis, and where the clinical onset of lumbar spondylosis occurs within the 25 years following that period; or(j) carrying loads of at least 35 kilograms while bearing weight through the lumbar spine to a cumulative total of at least 3 800 hours within any ten year period before the clinical onset of lumbar spondylosis, and where the clinical onset of lumbar spondylosis occurs within the 25 years following that period; The SoP in respect of thoracic spondylosis is in corresponding terms. In the alternative, the Applicant contended that, if he were unable to succeed applying the current SoPs, the SoPs applicable at the time of the original decision should be applied: Gorton v Repatriation Commission [2001] FCA 1194; Repatriation Commission v Keeley (2000) 98 FCR 108.. These provide, relevantly:6.(h) carrying or lifting loads of at least thirty-five kilograms while bearing weight through the lumbar/thoracic spine to a cumulative total of at least 168 000 kilograms within any ten year period before the clinical onset of lumbar/thoracic spondylosis, and where the clinical onset of lumbar/thoracic spondylosis occurs within the twenty-five years following that period;

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I have found that the Applicant does not satisfy either the current SoPs or those in place at the time of the original decision. DECISION For the above reasons, I affirm the decision under review.

Ratio Decidendi

Legal Principle Established

In cross-examination he said that the role was a very busy one with about 720 jobs in that period; that was why he only stayed four months. He could not recall when he started in November or when he finished in February he said he said he worked every day except public holidays, and based his calculations on 16 weeks, which it appears, includes the whole of November and the whole of February and excludes one week for public holidays. In his chronology attached to his statement he noted that in February 1987 he ceased work with that employer and commenced another job which entailed significantly less lifting (claimed as a total of 450 kgs between February and November 1987). CONSIDERATION As I observed at the hearing the Applicant’s calculation of his lifting during the period he nominated was 169,510 kgs, that is, only about 1500 kilograms more than the amount required to bring his circumstances within the factors relied on. Consequently, it was important that his contentions in respect of nearly all of his claimed activities would need to be accepted. The activity called to account for the greatest kilograms was that of lifting the communication cables at each port. This accounted for 25,200 kgs of the Applicant’s claim. The Applicant’s solicitor referred me to several cases in which the Huskisson information had ‘been accepted’: Wheat v Repatriation Commission [2003] AATA 1050; Guthrie v Repatriation Commission [2003] AATA 361; Chaplin v Repatriation Commission [2003] AATA 332 and Baird v Repatriation Commission [2015] AATA 393. As the Respondent’s solicitor pointed out, all these cases were in respect of operational service and the more generous (‘reverse criminal onus’) applied. The only case in respect of defence service, and hence the Tribunal’s need to be reasonably satisfied on the balance of probabilities – Baird– the Huskisson information was found to have been not sufficiently reliable objective evidence. In the present matter it was not necessary to make any finding about the reliability of the information although I note the caveats evident on the face of the introduction to the document, to which I have referred above. I accept that the heavy task of lifting the three shore power cables each weighing approximately 750 kgs, took place at each of the 56 ports Vampire visited while the Applicant was aboard. I accept that this task was undertaken by sailors from the electrical department of which there were about 20. I accept that each cable required approximately 10 men to carry it, and that the task was usually undertaken by between 8 and 14 sailors. The Applicant had initially claimed he was required to perform this task on every occasion however conceded that following his promotion to Leading Seaman in mid-1979 he had more of an overseeing role although he still had a role in the cable task. Even if I were to accept that his physical role did not diminish with his promotion, I do not accept that he had role in the cable task at every port, given that there were 20 sailors who may have been available to undertake the role, and on average, only half were needed. He conceded as much in his evidence. Consequently, even if he were to have undertaken the cable task in only about 90% of ports (ie in a total of 50 ports) he would have lifted only 22,500 kgs. This alone would cause his total lifts/carries for the relevant period to fall below the 168,000 threshold.

Division	VETERANS' APPEALS DIVISION
File Number(s)	2014/3025
Re	Leo Perren
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Ms N Isenberg, Senior Member
Date	20 April 2016
Place	Sydney