ROBERTS and REPATRIATION COMMISSION - [2010] AATA 734

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 734
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0462

VETERANS' APPEALS DIVISION )

Re WILLIAM ROBERTS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr M Denovan, Member
Date27 September 2010
PlaceBrisbane

Decision
The Tribunal affirms the decision under review.

...................[Sgd]...............
Member

CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ entitlements – Eligible defence service – Claim for osteoarthritis condition and depressive disorder - Application of statement of principles – Consideration of whether conditions are defence caused –– Decision under review affirmed.
Veterans’ Entitlements Act 1986 (Cth) ss 70, 196B
Kattenberg v Repatriation Commission [2002] FCA 412; (2002) 73 ALD 365
Repatriation Commission v Gorton [2001] FCA 1194; (2001) 65 ALD 609
REASONS FOR DECISION

27 September 2010 Dr M Denovan, Member

INTRODUCTION
1.      William Roberts suffers from pain in both of his hands as a result of osteoarthritis[1]. He believes that the condition was caused because he was required to use various industrial machines whilst working as a tailor during his military service. Mr Roberts served in the Australian Army from 5 July 1972 to 26 February 1982, and in the Royal Australian Air Force Active Reserve from 23 November 1983 to 1 February 1989, and the Army Reserve on a part-time basis from 18 July 1989 to 15 May 1994.
[1] The condition osteoarthritis (SoP No 14 of 2010) has previously been referred to as osteoarthrosis (SoP No 32 of 2005). The Tribunal understands the two descriptive terms refer to one and the same condition. The term osteoarthritis will be used throughout the reasons for this decision.
2.      Mr Roberts also suffers from depressive disorder which he claims is as a result of loss of function of his hands due to his osteoarthritis condition.
3.      Mr Roberts lodged a claim for medical treatment and pension for both conditions on 15 April 2009. His claim was refused in a decision dated 29 June 2009. On 29 October 2009, that decision was affirmed by the Veterans’ Review Board.
4.      Mr Roberts’ service in the Australian Army from 7 December 1972 until 26 February 1972 is defined in the Act as defence service. None of the service in the RAAF and Army reserves constitutes eligible service under the Veterans’ Entitlement Act 1986 (Cth) (“the Act”).
5. The relationships between conditions and service are set out in ss 70 and 196B of the Act.
6. For osteoarthritis and/or depressive disorder to be regarded as being related to service, one or more factors in the relevant Statements of Principles (“SoPs”) must be satisfied. SoPs are brought into existence to comply with s 196B of the Act, and provide the statutorily determined relationship to service.[2]
[2] The words “related to service” are found in s 196B of the Act. As pointed out by the Federal Court in Kattenberg v Repatriation Commission[2002] FCA 412; (2002) 73 ALD 365
7.      The SoPs relevant to Mr Roberts’ matter on the date of his claim are…

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 ROBERTS and REPATRIATION COMMISSION

Details

AGLC: ROBERTS and REPATRIATION COMMISSION [2010] AATA 734
Case: [2010] AATA 734
Decision Date: 27 September 2010

CaseChat Overview and Summary

In the case of Roberts and Repatriation Commission, the primary issue before the court was whether the applicant, a veteran, was entitled to compensation for osteoarthritis and a depressive disorder. The matter was heard by the Tribunal, which was required to review a decision by the Repatriation Commission. The Commission had previously determined that the applicant's conditions were not caused by his service and thus did not qualify for compensation. The Tribunal's role was to determine whether the Commission's decision was legally sound.

The legal issues that the court needed to address included whether the applicant's conditions were indeed related to his defence service and, if so, whether the Commission's application of the relevant statutory provisions and statements of principles was appropriate. The court was required to consider the evidence presented, including medical reports and the statutory criteria, to decide if the Commission's decision was correct. The primary consideration was whether the conditions met the criteria for being deemed related to the applicant's service under the Veterans’ Entitlements Act 1986.

In reaching its decision, the Tribunal carefully examined the evidence and the statutory framework. The Tribunal noted that the applicant had to establish a causal link between his service and the claimed conditions. The court assessed the medical evidence and the application of the relevant statements of principles by the Commission. The Tribunal concluded that the Commission's decision was supported by the evidence and that the applicant had not successfully demonstrated the required causal link. As such, the Tribunal affirmed the decision of the Commission, holding that the applicant was not entitled to compensation for the claimed conditions.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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