DECISION
Tribunal:       Regina Perton, Member
Date:              20 October 2005
Place:             Melbourne
Decision:The Tribunal affirms the decision under review.

(sgd) Regina Perton
Member

VETERANS’ ENTITLEMENTS ‑ widow’s pension ‑ veteran with multiple disabilities ‑ kind of death ‑ whether war-caused disease significant factor ‑ decision affirmed
Veterans’ Entitlements Act 1986 ss8(1), 120, 120A
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Bendy (1989) 18 ALD 144
Doolette v Repatriation Commission (1990) 21 ALD 489
Byrnes v Repatriation Commission (1993) 177 CLR 564
Bennett v Repatriation Commission (1997) 45 ALD 491
Bushell v Repatriation Commission (1992) 175 CLR 408
Repatriation Commission v Bey (1997) 79 FCR 364
Roscoe v Repatriation Commission [2003] FCA 1568
Suckling v Repatriation Commission [2004] FMCA 247
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill (2002) 69 ALD 581
Spencer v Repatriation Commission (2002) FCR 453
Repatriation Commission v Hancock (2003) 37 AAR 383
REASONS FOR DECISION
20 October 2005  Regina Perton, Member
1.       Maurice Joseph Scully died on 17 June 2001, after more than 60 years of marriage to Frances Mary Scully. He was 88 years old. Mr Scully served in the Australian army from 26 June 1940 to 20 April 1942. The entire period is treated as operational service for the purposes of the Veterans’ Entitlements Act 1986 (the Act).
2.       Mr Scully suffered from multiple medical conditions and was receiving a disability pension at 100 per cent of the general rate at the time of his death. Several of his conditions were accepted as war-caused: namely bilateral otitis media, functional diarrhoea, acute appendicitis with operation, gastritis, chronic bronchitis and emphysema, chronic solar skin damage and gastro-oesophageal reflux disease. Other disabilities were not accepted as war-caused. These were deflected nasal septum, chronic antritis (right and left), left inguinal hernia, dental caries and gingivitis and irritable bowel syndrome. Mr Scully suffered from further medical conditions for which he had not lodged claims including bronchiectasis, pulmonary embolism and obstructive sleep apnoea. In his later years, Mr Scully also suffered from Alzheimer’s disease.
3.       Mr Scully had a serious fall about 10 days before he died, resulting in a subdural haematoma. He was taken to hospital a few days after that fall. The treating doctors decided not to operate on him to relieve the subdural haematoma.    He returned to his nursing home and died there a few days later. The death certificate states that the cause of death and duration of illness was subdural hematoma – 10 days.
4.       Mrs Scully believes that her late husband’s death was due to some of his war-caused conditions for which the Commission has accepted liability. In particular, she submits that his chronic bronchitis and emphysema contributed to his fall and to the pneumonia from which he suffered at the time of his death. She also submits…

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 Scully and Repatriation Commission

Details

AGLC: Scully and Repatriation Commission [2005] AATA 1046
Case: [2005] AATA 1046
Decision Date: 20 October 2005

CaseChat Overview and Summary

The applicant, Mrs Frances Mary Scully, sought a War Widow's Pension following the death of her husband, Maurice Joseph Scully, a veteran who had served in the Australian Army. The respondent, the Repatriation Commission, refused the claim, and the Veterans Review Board affirmed the decision. Mrs Scully applied to the Administrative Appeals Tribunal for review of that decision. The Tribunal considered whether Mr Scully's death was war-caused, specifically whether his war-caused chronic bronchitis and emphysema contributed to his death. Mrs Scully argued that her husband's chronic bronchitis and emphysema contributed to his fall, which led to the subdural haematoma, and that the state of his lungs prevented him from receiving surgical treatment, which may have prolonged his life. The Tribunal considered the medical evidence and concluded that neither chronic bronchitis and emphysema nor pneumonia were causes of death. It found that Alzheimer's disease should be listed as one of the causes of death due to its link with the falls. The Tribunal also found that chronic bronchitis and emphysema were not a factor in the decision not to perform surgery. The Tribunal affirmed the decision under review.

Orders