Rogers and Repatriation Commission

Case [2002] AATA 762

DECISION AND REASONS FOR DECISION [2002] AATA 762

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2001/202

VETERANS' APPEALS DIVISION        )          
           Re      John  Lindsay Rogers   
  Applicant
           And    Repatriation Commission          
  Respondent

DECISION

Tribunal       Ms S M Bullock,         Senior Member Dr  P D Lynch,            Member Professor T Sourdin,   Member             
Date             5 September 2002

PlaceSydney

Decision      The decision under review is set aside pursuant to Section 43 of the Administrative Appeals Tribunal Act 1975 and in substitution therefor, the Tribunal decides that: 1. Mr Rogers has a war-caused condition of lumbar spondylosis. He is entitled to Disability Pension for this condition with effect from 14 November 1999. 2. Pension is assessed and payable at the Special Rate with effect from and including 14 November 1999.
  …..………………………….
   Ms SM Bullock
   Presiding Member
CATCHWORDS
VETERANS' AFFAIRS – Entitlement – Disability Pension – Operational Service – Reasonable Hypothesis – Lumbar Spondylosis – Assessment – Reasonable Satisfaction – Special Rate
LEGISLATION
Veterans' Entitlements Act 1986 (Cth) ss 5D, 9, 13, 24, 28, 119, 120, 120A
AUTHORITIES
Repatriation Commission v Deledio (1998) 49 ALD 193
Harris v Repatriation Commission (2000) 62 ALD 174
Arnott v Repatriation Commission  (2001) 106 FCR 83
Dixon v Repatriation Commission  (1999) 59 ALD 315; (1999) 29 AAR 235
Re Boardman and Repatriation Commission [2001] AATA 764
Chambers v Repatriation Commission  (1995) 55 FCR 9
Banovich v Repatriation Commission (1986) 69 ALR 395
Hutton v Repatriation Commission (1998) 49 ALD 8
Repatriation Commission v Bey (1997) 79 FCR 364
Bull v Repatriation Commission (2001) 66 ALD 271
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 58 ALD 394
Repatriation Commission v Wilson (1996) 43 ALD 777
Jackman v Repatriation Commission (1997) FCA 564
Re Davis and Repatriation Commission (1987) 12 ALD 483
Browne v Dunn (1893) 6 R 67
Magill v Repatriation Commission [2002] FCA 744
Hendy v Repatriation Commission [2002] FCA 602

REASONS FOR DECISION

5 September 2002   Ms S M Bullock,         Senior Member  Dr P D Lynch,             Member  Professor T Sourdin,   Member           

  1. This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by the Applicant, Mr John Lindsay Rogers, of a decision made by the Veterans' Review Board ("the Board") dated 13 December 2000 (T21) which varied the decision of the Repatriation Commission dated 24 July 2000 (T2), changing the diagnosis of Mr Rogers' spinal condition from "disc lesion with sciatica" to "lumbar spondylosis" and affirming the decision as varied. 

  2. A hearing was held in Sydney on 4 February 2002. Mr Rogers provided oral evidence to the Tribunal and was represented by Mr N Dawson of Counsel. The Respondent, the Repatriation Commission ("the Commission"), was represented by Ms P Hook, Departmental Advocate. Taken into evidence were documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents", T1-T24) and the following exhibits:
    Exhibit No.   Description  Date  
    A1      Statement by Mr J Rogers 26 April 2001
    A2      Further statement by Mr J Rogers 10 May 2001
    A3      Statement…

Continue reading Rogers and Repatriation Commission

Sign in free to access the full text

Details
AGLC
Rogers and Repatriation Commission [2002] AATA 762
Case
[2002] AATA 762
Decision Date

CaseChat Overview and Summary

The case of Rogers and Repatriation Commission involves Mr. John Lindsay Rogers, who is seeking a disability pension related to lumbar spondylosis he claims to have suffered during his operational service. The dispute was heard and determined by the Administrative Appeals Tribunal (AAT). The central issue before the Tribunal was whether Mr. Rogers’ lumbar spondylosis was caused by his operational service, specifically an incident where he fell from an aircraft in Vietnam in 1968. This would entitle him to a special rate of pension under the relevant legislative provisions.

The Tribunal had to assess the evidence presented and determine if there was a reasonable hypothesis that the lumbar spondylosis was caused by the incident described by Mr. Rogers. This involved considering the medical evidence, the circumstances of the incident, and the subsequent treatment and symptoms reported by Mr. Rogers. The Tribunal had to determine whether it was reasonable to conclude that the fall from the aircraft was the cause of Mr. Rogers' lumbar spondylosis, and whether this condition was connected to his service.

The Tribunal concluded that there was a reasonable hypothesis that Mr. Rogers' lumbar spondylosis was caused by the fall from the aircraft in Vietnam. The Tribunal found that the evidence, including Mr. Rogers' description of the incident and the immediate symptoms and treatment he received, supported the conclusion that the fall was the cause of his lumbar spondylosis. The Tribunal was reasonably satisfied that the condition was connected to Mr. Rogers' operational service, thereby entitling him to a special rate of pension. The Tribunal's decision was based on the balance of probabilities and the reasonable satisfaction standard set out in the relevant legislation.

The Tribunal ordered that Mr. Rogers be granted a disability pension at a special rate, reflecting the connection between his lumbar spondylosis and his operational service. The Tribunal also noted that the Repatriation Commission should provide Mr. Rogers with the appropriate medical and pension benefits, in accordance with the decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The relevant Statement of Principles in this matter is Instrument Number 27 of 1999 concerning Lumbar Spondylosis.EVIDENCE OF MR JOHN LINDSAY ROGERS Mr Rogers described for the Tribunal an injury which he stated he suffered in October 1968, when he was serving in Vietnam. At that time, Mr Rogers was an Assistant Loadmaster in the RAAF. His duties involved him in such activities as stores inventory, audit, ensuring the provision and consignment of stores and participating in flights to assist in the loading and unloading of supplies or passengers from aircraft. Mr Rogers stated that the incident involved him unloading goods from a Caribou aircraft late in the afternoon, one stop before Saigon. When the aeroplane landed, the engines were kept running and everything had to be undertaken quickly. Mr Rogers noted that he was connected by microphone for communication. He noted that the loading ramp from the aircraft was three or four feet off the ground and there was a gap between the aircraft's ramp and the ground. Mr Rogers believed that something had been spilt on the ramp which caused him to slip. He fell from the aircraft feet first to the ground hitting his lower back, between his belt line to the top of his buttocks. Mr Rogers stated that he did not believe that he lost consciousness. After the incident, and having being helped back onto the aircraft, Mr Rogers lay across the rear seat in the aeroplane. There was no more work to be done that day and he got back to his base at approximately 6pm which was the time that the evening meal was served. Mr Rogers did not remember eating dinner that night. Mr Rogers told the Tribunal that immediately after the fall from the aircraft, he felt pain across the middle of his back and lower down his back. When he arrived back at base, he had a hot shower. Mr Rogers was sharing a tent with a medical orderly, Tony Morley, who looked at Mr Rogers back and rubbed it. Mr Rogers was provided with some analgesics which he thought was "Dispirin". Mr Rogers did not think that the medical orderly thought that his back was that bad, but he told Mr Rogers that he would monitor it. Mr Rogers noted that it was considered somewhat of a joke that he had fallen out of the aircraft, but the pain he experienced was no joke. Mr Morley told Mr Rogers that he should monitor his back for one or two nights and if there was no improvement, then he should go to the RAAF doctor. Mr Rogers stated that he and the other men at the time were reluctant to visit the base doctor because it was generally felt that he was not particularly good, he was not respected and there was a general view amongst the men that the doctor consumed far too much alcohol. Mr Rogers stated that the medical orderly sharing his tent examined his back every day and continued to give him backrubs and analgesic medication. Mr Morley even had to tie Mr Rogers' bootlaces for a number of days because he could not bend down. Mr Rogers stated that his back was sore for ten to 12 days, but gradually improved.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.