Riordan and Repatriation Commission - [2002] AATA 960

DECISION AND REASONS FOR DECISION [2002] AATA 960

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/335
VETERANS'     APPEALS      DIVISION
  Re:         LORRAINE FRANCES RIORDAN
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             22 October 2002
Place:            Melbourne

Decision:The Tribunal sets aside the decisions under review in respect of hypertension and vertebrobasilar ischaemia, and substitutes a decision that hypertension suffered by the veteran is war-caused with effect from 20 August 1998, and vertebrobasilar ischaemia suffered by the veteran is war-caused with effect from 8 December 1999. Pension is payable at 70 per cent of the general rate.
In all other respects the Tribunal affirms the decisions under review.

(sgd) G.D. Friedman
Member
VETERANS' AFFAIRS - veterans' entitlements - claim by widow - hypertension - vertebrobasilar ischaemia - fighter pilot - excessive consumption of alcohol - date of clinical onset - whether war-caused - assessment of rate of pension
Veterans' Entitlements Act 1986 ss8, 119, 120(1), 120(3), 120(4), 120A(3), 126
Meehan v Repatriation Commission (2001) 64 ALD 366
Repatriation Commission v Deledio (1998) 49 ALD 193

REASONS FOR DECISION

22 October 2002 G.D. Friedman, Member

This is an application by Lorraine Frances Riordan (the applicant), widow of Kevin Francis Riordan (the veteran), for review of two decisions of the Veterans' Review Board (VRB) dated 24 January 2001. The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 15 April 1999 to refuse a claim by the veteran that hypertension, atrial fibrillation, post traumatic stress disorder and alcohol abuse were war-caused. The VRB affirmed a decision of a delegate of the respondent dated 5 May 2000 to refuse a claim by the veteran that vertebrobasilar ischaemia was war-caused. The VRB affirmed a decision of a delegate of the respondent dated 20 August 1998 to assess the rate of pension payable to the veteran at 40 per cent of the general rate for the accepted conditions of bilateral sensorineural hearing loss and tinnitus of the left ear.
At the hearing of this matter on 10 October 2002 Mr G. Moore of counsel represented the applicant. The respondent was not represented due to industrial action at the Department of Veterans' Affairs.
The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T24), together with six exhibits (Exhibit A1-A6) lodged by the applicant and one exhibit (Exhibit R1) which was admitted into evidence on behalf of the respondent.
BACKGROUND
The veteran was born on 10 November 1921 in Shepparton, Victoria. He attended school at Xavier College in Melbourne until the age of 15 years, when he was required to work in the family's shoe store in Shepparton. On 7 November 1941 he enlisted in the Royal Australian Air Force (the RAAF) and trained as a pilot. Between March 1943 and April 1945 he was attached to the Royal Air Force in England and flew Spitfire aircraft on 125 missions in Europe. He was demobilised on 2 August 1945. The veteran's period of service constitutes operational…

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 Riordan and Repatriation Commission

Details

AGLC: Riordan and Repatriation Commission [2002] AATA 960
Case: [2002] AATA 960
Decision Date: 22 October 2002

CaseChat Overview and Summary

The case of Riordan and the Repatriation Commission involved a veteran, who served in the Royal Australian Air Force during World War II, and his widow, who sought a disability pension on his behalf. The veteran had served operationally between March 1943 and April 1945, flying Spitfire aircraft on 125 missions in Europe. Post-service, he experienced a range of health issues including hypertension, vertebrobasilar ischaemia, atrial fibrillation, and a stroke, which culminated in his death from a cranial haemorrhage. The widow applied for a disability pension in relation to these conditions, focusing on hypertension and vertebrobasilar ischaemia. The dispute centred on whether these conditions were war-caused and the appropriate assessment of the veteran's pension entitlement.

The primary legal issues addressed by the court involved determining whether the veteran's hypertension and vertebrobasilar ischaemia were war-caused, as well as the appropriate assessment of the pension rate. The court had to consider the veteran's service history, the nature and onset of his health conditions, and the evidence presented regarding the impact of these conditions on his life and ability to work. The court also needed to assess the credibility of the evidence provided by the widow and the expert reports, particularly regarding the veteran's alcohol consumption and its potential impact on his health.

In reaching its decision, the court considered the extensive evidence presented, including the veteran's service records, medical reports, and testimonies from the widow and experts. The court found that the veteran's hypertension and vertebrobasilar ischaemia were indeed war-caused, taking into account the stressful conditions of his service and the lack of medical intervention or awareness of these conditions post-service until 1975. The court determined that the appropriate pension rate, based on the combined impairment of the veteran's conditions, was 70% of the general rate. The court substituted the original decisions with a decision that these conditions were war-caused, effective from specified dates, and affirmed the pension rate.

The final orders of the court were to set aside the original decisions in respect of hypertension and vertebrobasilar ischaemia, substituting them with decisions that these conditions were war-caused from the specified dates. Pension was to be payable at 70% of the general rate. The decisions in all other respects were affirmed.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T24), together with six exhibits (Exhibit A1-A6) lodged by the applicant and one exhibit (Exhibit R1) which was admitted into evidence on behalf of the respondent. BACKGROUND The veteran was born on 10 November 1921 in Shepparton, Victoria. He attended school at Xavier College in Melbourne until the age of 15 years, when he was required to work in the family's shoe store in Shepparton. On 7 November 1941 he enlisted in the Royal Australian Air Force (the RAAF) and trained as a pilot. Between March 1943 and April 1945 he was attached to the Royal Air Force in England and flew Spitfire aircraft on 125 missions in Europe. He was demobilised on 2 August 1945. The veteran's period of service constitutes operational service in accordance with s8 of the Veterans' Entitlements Act 1986 (the Act). After his discharge from the RAAF the veteran returned to the family business, which he operated until his retirement in 1996. In 1975 the veteran was treated for hypertension and was found to have vertebrobasilar ischaemia. In 1980 he was diagnosed with atrial fibrillation and in 1983 he was hospitalised with paralysis and symptoms of Guillain-Barre. In 1995 he underwent surgery for liver disease. On 20 November 1998 the veteran applied for disability pension. In December 2001 he suffered a mild stroke. He died on 3 June 2002 from a cranial haemorrhage. Under s126 of the Act the applicant was authorised to continue the application which the veteran lodged with the Tribunal on 27 March 2001. At the hearing Mr Moore informed the Tribunal that the applicant intended to continue only with the application in relation to the conditions of hypertension and vertebrobasilar ischaemia, and she abandoned the application in relation to the remaining conditions. EVIDENCE The applicant gave oral evidence and told the Tribunal that she met the veteran in 1945 on his return from World War 2. She stated that at that time he was a heavy drinker, and she estimated his daily consumption of alcohol at 12 glasses of beer. They married on 18 April 1949 and had four children. The applicant said that he moderated his consumption in later years after surgery involving his liver. She stated that the veteran was conscientious about his work, and his drinking did not appear to affect his ability to manage the family business. The applicant said that the veteran did not willingly seek medical advice at any time. However, she recalled one occasion, in about 1947, when the veteran attended the local general practitioner (Dr J. Kennedy) and on his return told her that he had been diagnosed with hypertension, which he understood to mean a lack of moral fibre. She said that when he was told that the condition referred to high blood pressure he joked about his misunderstanding. She said that apart from occasional reference to his mistake there was no further discussion about the condition and no prescribed medication or treatment until 1975.

Evidence

Evidence Before The Court

Under s126 of the Act the applicant was authorised to continue the application which the veteran lodged with the Tribunal on 27 March 2001. At the hearing Mr Moore informed the Tribunal that the applicant intended to continue only with the application in relation to the conditions of hypertension and vertebrobasilar ischaemia, and she abandoned the application in relation to the remaining conditions. EVIDENCE The applicant gave oral evidence and told the Tribunal that she met the veteran in 1945 on his return from World War 2. She stated that at that time he was a heavy drinker, and she estimated his daily consumption of alcohol at 12 glasses of beer. They married on 18 April 1949 and had four children. The applicant said that he moderated his consumption in later years after surgery involving his liver. She stated that the veteran was conscientious about his work, and his drinking did not appear to affect his ability to manage the family business. The applicant said that the veteran did not willingly seek medical advice at any time. However, she recalled one occasion, in about 1947, when the veteran attended the local general practitioner (Dr J. Kennedy) and on his return told her that he had been diagnosed with hypertension, which he understood to mean a lack of moral fibre. She said that when he was told that the condition referred to high blood pressure he joked about his misunderstanding. She said that apart from occasional reference to his mistake there was no further discussion about the condition and no prescribed medication or treatment until 1975. In relation to the stroke suffered by the veteran in 2001, the applicant stated that he had a fall at home and afterwards she noticed that his speech was slurred and his mobility and memory were impaired moderately, and he relied on the use of aids such as lists and diaries. In an alcohol questionnaire completed by the veteran on 28 October 1998 he stated that he commenced consuming alcohol on a regular basis on 10 November 1942 because he had pledged to refrain from alcohol until he reached the age of 21. In the questionnaire the veteran estimated his daily consumption at 12 glasses of beer and said that this level had not changed significantly. In a written report dated 7 February 2002 (Exhibit R1) Dr L. Walton, consultant psychiatrist, stated:…While this veteran's introduction to alcohol occurred in reasonably normal social circumstances, the celebration of his 21st birthday, promptly he developed a pattern of excessive consumption and I have no difficulty at all with the proposition that this was then driven by his ongoing exposure to stressful events and the not unreasonable belief that his life was likely to be very short indeed. In a written report dated 7 February 2000 Dr I. Parkin, consultant psychiatrist, stated:…He started drinking in the RAAF and as is legendary of Spitfire pilots there was a lot of heavy drinking. He "knew he was going to die" and the stress of his missions was a major factor in him drinking as heavily as he did.

Decision

Reasons for decision

In relation to assessment, the Tribunal has considered all relevant material and finds that the appropriate assessment, using the Guide to the Assessment of Rates of Veterans' Pensions (fifth edition) (GARP V), is: sensorineural hearing loss (16 points), tinnitus (5 points), hypertension (2 points) and cerebrovascular accident (25 points), giving a combined impairment of 41 points, rounded down to 40 points, which equates to pension at 70 per cent of the general rate. DECISION The Tribunal sets aside the decisions under review in respect of hypertension and vertebrobasilar ischaemia, and substitutes a decision that hypertension suffered by the veteran is war-caused with effect from 20 August 1998, and vertebrobasilar ischaemia suffered by the veteran is war-caused with effect from 8 December 1999. Pension is payable at 70 per cent of the general rate. In all other respects the Tribunal affirms the decisions under review.I certify that the thirty-five [35] preceding paragraphs are a true copy of the reasons for the decision of: G.D. Friedman, Member(sgd) Catherine Thomas ClerkDate of hearing: 10 October 2002 Date of decision: 22 October 2002Counsel for applicant: Mr G. MooreSolicitor for applicant: De Marchi & AssociatesSolicitor for respondent: Advocacy Section, Department of Veterans' Affairs

Ratio Decidendi

Legal Principle Established

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