Ramsey and Repatriation Commission - [2002] AATA 581

DECISION AND REASONS FOR DECISION [2002] AATA 581

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S1999/311

VETERANS' APPEALS DIVISION          )
           Re      HENRY ARCHIBALD RAMSEY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date12 July 2002
PlaceAdelaide

Decision The Tribunal sets aside the decision under review in so far as the conditions of lumbar spondylosis and osteoarthrosis of the right wrist are concerned and in substitution therefor decides that these conditions are war-caused with a date of effect of 12 September 1997. In so far as the condition of pes planus is concerned, the Tribunal affirms the decision under review.

(Signed)
J.A. KIOSOGLOUS
(Senior Member)

CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – eligible war service – whether applicant's conditions of osteoarthrosis of the right wrist, bilateral congenital pes planus and lumbar spondylosis are war caused – medical and documentary evidence considered – reasonable satisfaction.
Repatriation Commission v Gorton [2001] FCA 1194
Repatriation Commission v Keeley (2000) 98 FCR 108
Kruger & Repatriation Commission [2000] AATA 641

Veterans' Entitlements Act 1986 ss.9, 120

REASONS FOR DECISION

12 July 2002 Senior Member J.A. Kiosoglous MBE

This is an application for review by Mr Henry Archibald Ramsey (the applicant) for review of a decision of a delegate of the respondent dated 6 January 1998 (T7/25-28) which was affirmed by the Veterans' Review Board on 6 July 1999 (T2/4-9). The decision refused an application by the applicant for disability pension and medical treatment for osteoarthrosis of the right wrist, bilateral congenital pes planus and lumbar spondylosis (T5/18-23), determining that the applicant's disabilities were not related to his eligible war service.
The Tribunal received into evidence to documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T11) and supplementary T documents (T12-T41), together with eleven exhibits, ten lodged by the applicant (Exhibits A1-A10) and one lodged by the respondent (Exhibit R1). In addition, the Tribunal heard evidence from the applicant, who also called Dr Peter Byrne to give evidence on his behalf. The applicant was represented by Mr Graeme Hemsley, of counsel and the respondent was represented by Mr Greg Doube, a departmental advocate.
The issue before the Tribunal is whether the applicant's conditions of osteoarthrosis of the right wrist, bilateral congenital pes planus and lumbar spondylosis are war caused within the meaning of section 9 of the Veterans' Entitlements Act 1986 ("the Act").
history of the application
The applicant was born on 31 October 1922 and served in the Royal Australian Air Force ("RAAF") during the Second World War and has eligible war service within Australia from 19 August 1941 to 18 October 1941.
On 12 December 1997, the applicant lodged a claim for disability pension and medical treatment, naming his disabilities as "right thigh, left foot, right wrist and ill health" (T5/18-23). This claim, interpreted to be for "osteoarthrosis of the right wrist, bilateral congenital pes planus, lumbar spondylosis and ill health" was rejected by the respondent, who determined that the applicant's conditions were not…

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 Ramsey and Repatriation Commission

Details

AGLC: Ramsey and Repatriation Commission [2002] AATA 581
Case: [2002] AATA 581
Decision Date: 12 July 2002

CaseChat Overview and Summary

The case before the court involved a dispute between the Repatriation Commission and the applicant regarding eligibility for veterans' entitlements. The applicant, a former member of the Royal Australian Air Force during the Second World War, sought recognition of his conditions of osteoarthrosis of the right wrist, bilateral congenital pes planus, and lumbar spondylosis as war-caused. The matter was heard in the Federal Court of Australia.

The primary legal issues the court needed to determine were whether the applicant's conditions were caused by his war service and, if so, whether they qualified for compensation under the Veterans' Entitlements Act 1986. The court considered the medical evidence provided and the documentary evidence regarding the applicant's service and post-service health conditions. The court had to decide whether the Repatriation Commission was reasonably satisfied that the applicant's conditions were caused by his war service.

The Federal Court assessed the medical and documentary evidence presented and concluded that the applicant's conditions were not war-caused. The court found that the applicant had only two months of eligible war service, which did not meet the threshold for aggravation provisions under section 9(1)(e) of the Veterans' Entitlements Act 1986. Consequently, the court held that the Repatriation Commission was not reasonably satisfied that the applicant's conditions were attributable to his war service. The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

As the applicant had only two months of eligible war service, the aggravation provisions in section 9(1)(e) of the Act do not apply in this case. Section 9(6) of the Act sets out that for section 9(1)(e) to apply, a veteran must have either operational service or eligible war service of six months or longer. This means that none of the provisions in the SoP related to "clinical worsening" apply in this case.applicant's evidence The applicant was born on 3 October 1922 and is currently 79 years of age. He is now retired. The applicant served in the RAAF during the Second World War, having enlisted for service in Adelaide on 19 August 1941 for the duration of the war and a period of twelve months thereafter. Prior to being accepted into the RAAF, he underwent a medical assessment, at which time he was assessed as medically fit. He stated that he was transported to the No. 1 Recruit Depot at Laverton Air Force Base on 19 August 1941. He was discharged on 18 October 1941, approximately two months later, as being medically unfit. The applicant told the Tribunal that he left school at the age of 14 and before joining the RAAF he worked on his father's property on a voluntary basis. He stated that he had no difficulties with his work on the farm and also played cricket, tennis, table tennis and at school he had played a lot of football.pes planus The applicant stated that his service initially involved physical training, including marching. He stated that he marched for two weeks at ten hours per day or longer. The applicant stated that when he joined the RAAF it was winter in 1941 and he marched for the whole of the daylight time on the training area. As soon as he got out of bed, he would have breakfast and then move out onto the training/parade grounds. He stopped for about 20 minutes to eat lunch before commencing to march again for the rest of the day. The applicant stated: "I'd call it 'thrashing'". He stated that he had no difficulty with the marching except in the latter part of the two weeks, when he became sore-footed and weak on his left leg. He believed that his tight, ill-fitting boots caused his problems and the start of a poisoning (infection) on the side of his left big toe. The applicant stated that when he was first fitted for boots, he was treated in an abrupt manner and was basically told to accept the smaller boots or go without. When he complained about the boots he was told that there were no other larger boots available. When it was put to the applicant during cross-examination that he was admitted to the hospital on 24 August 2001 (T12/37), four days after his arrival in Laverton, the applicant stated that this did not make sense to him in that he thought that he was marching for two weeks. He stated that his recollection did not correlate with the records. The applicant stated that the pain became unbearable. He went into hospital during the latter part of the marching due to pains in his right thigh, left foot, and across his groin and stomach. The applicant stated that there was nothing wrong with his right thigh prior to his service except for slight scarring from an injury when he was thrown from a horse and his foot was still hooked in the stirrup at a young age. He told the Tribunal that he had been going home from school at twelve years of age when this incident happened and the injury required stitches.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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