Roberts and Repatriation Commission - [2006] AATA 631

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 631
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/291

VETERANS' APPEALS DIVISION )

Re ALAN ROBERTS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms M J Carstairs, Member
Date 17 July 2006
PlaceBrisbane

Decision
The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s anxiety disorder and atrial fibrillation are war caused with effect from 5 October 2003. The Tribunal remits to the respondent the assessment of the rate of pension payable.

..........[Sgd]..............
MEMBER

CATCHWORDS
VETERANS’ AFFAIRS – disability pension –anxiety disorder due to a general medical condition – decision set aside.
Veterans’ Entitlements Act 1986 s9, s196B(2)
Benjamin v Repatriation Commission [2001] FCA 1879
Mines v Repatriation Commission [2004] FCA 1331
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Crane [2004] FCAFC 86
REASONS FOR DECISION

17 July 2006   Ms MJ Carstairs, Member

1.      On 5 January 2004 Mr Alan Roberts claimed under the Veterans’ Entitlements Act 1986 for the conditions of anxiety due to a medical condition and for a heart condition. These conditions were identified by his general practitioner as anxiety/stress, and atrial fibrillation. His claims were rejected and Mr Roberts now seeks review with this Tribunal.
2. As a result of further medical reports, and without the need for hearing on this part of the claim, the respondent now concedes that Mr Roberts’ atrial fibrillation is war-caused. In view of the medical evidence supporting that conclusion, including the report of Dr Peter Grant, Senior Medical Officer Compensation, the Tribunal decides that atrial fibrillation is war-caused within the meaning of s9 of the Act.
THE ISSUES
3.      The parties agree that Mr Roberts suffers from an anxiety disorder but they disagree with its specific description. The issues that must now be decided are as follows:
(a) what is Mr Roberts’ psychiatric disorder;
(b) is Mr Roberts’ condition of anxiety disorder war-caused?

BACKGROUND
4.      Mr Roberts served in the Royal Australian Navy (the Navy) between 1959 and 1968. He saw operational service, which under the legislation is eligible war service, with the Far Eastern Strategic Reserve in a series of short periods, totalling some 153 days, and took part in voyages to waters off Malaya, Singapore, and North Borneo
5.      Mr Roberts’ duties in the Navy were in the engineering branch with a sub-rating as a furnace bricklayer and lagger. On his discharge from the Navy he held the rank of Leading Mechanical Engineer. It was not disputed that his naval service involved him working with asbestos – described in one medical report as significant asbestos exposure over a period of nine years. Only part of Mr Roberts’ service was eligible service under the Act.
6.      Mr Roberts has a number of medical conditions accepted as due to his war service in addition to the now accepted atrial fibrillation. These conditions include asbestos-related pleural plaques, chronic simple bronchitis, gastro-oesophageal reflux and bilateral hearing loss and tinnitus. In 2002…

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 [2006] AATA 631
Case: [2006] AATA 631
Decision Date: 17 July 2006

CaseChat Overview and Summary

The applicant, Roberts, sought a review of a decision made by the Repatriation Commission regarding the eligibility for a disability pension due to an anxiety disorder. The Commission had found that the anxiety disorder was not caused by the veteran's service, but instead by a general medical condition. The matter was heard by the Administrative Appeals Tribunal (AAT), which had jurisdiction to review decisions made under the Veterans’ Entitlements Act 1986. The primary legal issue for the AAT was whether the anxiety disorder was war caused, as required for eligibility under the Act. This involved an interpretation of sections 9 and 196B(2) of the Act and consideration of relevant case law, including Benjamin, Mines, Deledio, and Crane.

The AAT considered the evidence presented and the relevant legal principles. It found that the Commission's decision was incorrect as it had not properly considered the evidence of the causal link between the veteran's service and the anxiety disorder. The AAT emphasised that the correct approach involved assessing the overall contribution of the veteran's service to the condition, rather than attributing the condition solely to a general medical cause. The AAT concluded that the anxiety disorder was indeed war caused and set aside the Commission's decision, substituting its own decision that the applicant's condition was war caused from 5 October 2003.

As a result of the AAT’s findings, the decision of the Repatriation Commission was set aside, and the matter was remitted to the Commission for reassessment of the pension rate payable to the applicant. The AAT’s decision highlighted the importance of a comprehensive approach to determining the causation of a veteran's condition and the need for the Commission to properly consider all evidence when making such determinations.

Orders

Orders of the court

The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s anxiety disorder and atrial fibrillation are war caused with effect from 5 October 2003. The Tribunal remits to the respondent the assessment of the rate of pension payable.

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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