Re Millen and Repatriation Commission - [2000] AATA 508

DECISION AND REASONS FOR DECISION [2000] AATA 508

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/805

GENERAL ADMINISTRATIVE DIVISION       )
           Re      PETER TERRY MILLEN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr B.J. McMahon (Deputy President) Dr M.E.C. Thorpe (Member)

Date23 June 2000
PlaceSydney

Decision      The decision under review is affirmed.
  ..............................................
  BJ McMahon
  Deputy President
CATCHWORDS
VETERANS' AFFAIRS – Veterans' entitlements – disability pension – whether asthma should be accepted as disability – whether asthma war cause.
Veterans' Entitlements Act 1986

REASONS FOR DECISION

Mr B.J. McMahon (Deputy President) Dr M.E.C. Thorpe (Member)

The applicant lodged a claim for a disability pension and medical treatment in relation to a condition which was described as "breathing problems". This was diagnosed by Dr Jongbloed, the applicant's general practitioner, as chronic obstructive airways disease and asthma. Dr Jongbloed and a medical legal specialist, Dr Gianoutsos, are the only medical practitioners to diagnose the presence of asthma in the applicant. The claim (among others) was refused by the Commission and that refusal was affirmed by the Veterans' Review Board. As a result of the acceptance of other disabilities, the applicant's pension has currently been assessed at 40% of the general rate. He now seeks a review of the Commission's decision rejecting the claim described above.
The respondent agrees that the applicant suffers from a chronic airflow limitation but contends that it is not service related, in accordance with the relevant Statement of Principles. The applicant rejects this diagnosis.
He contends that he suffers from asthma, that he has always suffered from asthma, that he has received inappropriate clinical management for that disease and that it is service related within the meaning of the relevant Statement of Principles. Put shortly, the applicant's case depends upon acceptance of asthma or not.
The applicant served in the Royal Australian Navy from 21 September 1967 to 20 September 1979. During that time he had some eligible war service (including a 24 hour period in South Vietnam). The remainder of his term constituted defence service.
As a boy he had no respiratory problems before joining the Navy at the age of 22. His entry medical examination indicates an absence of any relevant symptoms. In answer to the specific question whether he had ever had asthma, he responded in the negative.
After doing his basic service training in 1967, he was sent for a short period on H.M.A.S. Anzac to Vietnam. He then transferred to H.M.A.S. Cerberus, where he trained as a Navy medic for 9 months. Having completed that training, he then went to H.M.A.S. Leeuwin, where he served for a further two years, carrying out general nursing duties.
In October 1971, he decided to take up the specialty of underwater medicine and was posted to H.M.A.S. Penguin at Balmoral in order to undertake the course. Prior to commencing his duties, he underwent a large chest x-ray on 21 October 1971 which produced normal results.
As part of his duties, it was necessary to complete a…

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 Re Millen and Repatriation Commission

Details

AGLC: Re Millen and Repatriation Commission [2000] AATA 508
Case: [2000] AATA 508
Decision Date: 23 June 2000

CaseChat Overview and Summary

In the case before the court, Millen, a former serviceman, sought a determination regarding his entitlement to a disability pension from the Repatriation Commission under the Veterans' Entitlements Act 1986. The central issue in the case was whether Millen's asthma should be recognised as a war-caused disability, thereby warranting a disability pension. Additionally, the court had to determine whether Millen's condition met the criteria for a disability pension as defined by the Act.

The legal issues before the court involved the interpretation of the Veterans' Entitlements Act 1986, specifically in relation to the definition of a "war-caused disability" and the requisite criteria for awarding a disability pension. The court needed to consider whether Millen's asthma was indeed caused by his military service and whether it qualified as a disability under the Act. The court also had to assess the evidence presented concerning the onset and progression of Millen's asthma and its connection to his service.

The court, after reviewing the evidence, concluded that Millen's asthma was not causally linked to his military service. The medical evidence did not establish a sufficient connection between his condition and his service, and therefore, his asthma did not qualify as a war-caused disability. As a result, the court ruled that Millen was not entitled to a disability pension. The court's decision was based on the stringent requirements for establishing a war-caused disability under the Act, which Millen had not met. Consequently, the court dismissed Millen's claim for a disability pension.

Orders