Decision The Tribunal – 1. Sets aside the decision of a delegate of the Repatriation Commission ("the Respondent") dated 13 October 1997, as varied by the Veterans' Review Board;

2. Amends the diagnosis of the claimed condition to read "plantar fasciitis with calcaneal spur right foot";
3. Substitutes for the decision so set aside and amended, the decision that the condition of plantar fasciitis with calcaneal spur right foot suffered by Geoffrey Lee Olsen ("the Applicant') is a defence caused condition pursuant to s70 of the Veterans' Entitlements Act 1986, with effect on and from 24 December 1996; 4. Remits the matter to the Respondent for assessment of the rate of pension payable to the Applicant in respect of all his accepted disabilities.

..................[Signed]............................
M T Lewis
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – entitlement – eligible defence service – whether plantar fasciitis war-caused – correct diagnosis of claimed condition – Statement of Principles applied – whether suffered "trauma to the plantar aspect of the affected foot" – whether inability to obtain appropriate clinical management for plantar fasciitis
STATUTORY INTERPRETATION - preservation of accrued rights – Statement of Principles at time of primary decision revoked and replaced while review of decision pending – revoked Statement of Principles less favourable than current Statement of Principles – whether Tribunal obligated to apply earlier Statement of Principles – nature of protection afforded by s50 Acts Interpretation Act 1901 – whether accrued right of applicant required protection

Veterans' Entitlements Act 1986 (Cth) – ss 70, 120(4), 120B
Acts Interpretation Act 1901 (Cth) – ss 8, 50

Repatriation Commission v Keeley (2000) 98 FCR 108
Keeley v Repatriation Commission (1999) 56 ALD 455
Esber v Commonwealth (1992) 174 CLR 430
Re Zoarder and Secretary, Department of Social Security (1998) 26 AAR 342
Re Reading and Repatriation Commission [2000] AATA 841
Re Ryan and Repatriation Commission [2000] AATA 849

REASONS FOR DECISION

18 October 2000 Mrs M T Lewis, Senior Member

This is an application for review lodged by Geoffrey Lee Olsen ("the Applicant") in respect of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 13 October 1997 which refused his claim for a condition diagnosed by the Respondent as plantar fasciitis right foot. The Applicant's claim was in respect of a disability that he described as "left and right sore heels". The Applicant sought review by the Veterans' Review Board ("the VRB") of the delegate's decision. On 13 October 1998 the VRB amended the diagnosis of the claimed condition to read "plantar fasciitis with calcaneal spur", and otherwise affirmed the decision under review. The Applicant lodged an application for review by this Tribunal on 17 December 1998.
The Applicant had eligible defence service in the RAAF from 24 September 1975…

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 Olsen and Repatriation Commission

Details

AGLC: Re Olsen and Repatriation Commission [2000] AATA 909
Case: [2000] AATA 909
Decision Date: 18 October 2000

CaseChat Overview and Summary

The case of Re Olsen and Repatriation Commission involved a dispute concerning the eligibility of a veteran for benefits under the Veterans' Entitlements Act 1986. The central issue was whether the veteran's plantar fasciitis was war-caused, as required for entitlement. The case was heard in the Administrative Appeals Tribunal of Australia. The veteran argued that the correct diagnosis of his condition was not made, and that he was unable to obtain appropriate clinical management for his plantar fasciitis. The Repatriation Commission, on the other hand, contended that the veteran's condition did not meet the criteria for war-related injury as outlined in the relevant Statement of Principles.

The primary legal issue before the court was whether the Tribunal was obliged to apply a Statement of Principles that was in effect at the time of the primary decision, even though it had been revoked and replaced with a less favourable version while the review of the decision was pending. The court had to determine whether the preservation of accrued rights, as provided for in section 50 of the Acts Interpretation Act 1901, applied to the situation. The court also needed to decide if the veteran's right to benefits was an accrued right that required protection under the legislation.

The court found that the protection afforded by section 50 of the Acts Interpretation Act 1901 did not apply to the situation, as it was not intended to safeguard rights that were contingent on the outcome of a review. The court held that the Tribunal was not bound to apply the earlier, more favourable Statement of Principles when making its decision. Consequently, the veteran's claim for benefits was dismissed. The court's decision was based on the understanding that the protection of accrued rights under section 50 of the Acts Interpretation Act 1901 was not intended to apply to rights that were contingent on the outcome of a review process. As such, the Tribunal was not required to apply the earlier Statement of Principles that was more favourable to the veteran.

Orders