Simpson and Repatriation Commission - [2000] AATA 244

DECISION AND REASONS FOR DECISION [2000] AATA 244

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/235

VETERANS' APPEALS DIVISION       )
           Re      GARY RAYMOND SIMPSON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member M D Allen

Date29 March 2000
PlaceSydney

Decision The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision, namely: THAT Garry Raymond Simpson is entitled to pension for the defence-caused disease of central L4/5 disc protrusion and left lumbosacral disc protrusion as and from 17 September 1997; AND THAT pension is to be paid for incapacity occasioned by all defence-caused injuries and diseases suffered by the said Garry Raymond Simpson at the Temporary Totally Incapacitated Rate as provided by section 25 of the Veterans' Entitlements Act 1986 as and from 17 September 1997 up to and including 17 September 2001.

(Sgd)             M D ALLEN
  ..............................................
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Lumbar disc protrusion. Interpretation of SOPs. SOPs to be interpreted as part of beneficial legislation.
Special Rate Pension – criteria for grant of Temporary Totally Incapacitated Rate. Application of alone test.

Veterans' Entitlements Act 1986 - ss68, 69 and 70
Military Compensation Act 1994 - s13
Safety, Rehabilitation and Compensation Act 1988 - s19

Repatriation Commission v Smith 15 FCR 327
Secretary, Department of Social Security v Lowe 56 ALD 609
Comcare v Ticsay 38 FCR 181

REASONS FOR DECISION

29 March 2000 Senior Member M D Allen

By application lodged 16 February 1999 the Applicant sought review of a determination by the Respondent, as amended by a Veterans' Review Board, that his central L4/5 disc protrusion and left lumbosacral disc protrusion were not caused or contributed to by his defence service.
The Applicant enlisted in the Australian Regular Army on 25 February 1987 and was discharged as medically unfit on 5 November 1997. At present he has been classified as Class A for pension purposes by the Commissioner for Superannuation for the purposes of the Defence Force Retirement and Death Benefits Act 1973 (DFRDB Act).
Although the Applicant enlisted on 25 February 1987, only part of his military service is defence service for the purposes of the Veterans' Entitlements Act 1986 (VEA). The entitlement to pension for defence services is dealt with by Part IV of the VEA. In that part, s70 states inter alia:
"(1) Where:
(a)the death of a member of the Forces or member of a Peacekeeping Force was defence-caused; or
(b)a member of the Forces or member of a Peacekeeping Force has become incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)…
(d)in the case of the incapacity of the member – pension by way of compensation to the member;
in accordance with this Act.
…
(5)For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken…

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 Simpson and Repatriation Commission

Details

AGLC: Simpson and Repatriation Commission [2000] AATA 244
Case: [2000] AATA 244
Decision Date: 29 March 2000

CaseChat Overview and Summary

The Simpson and Repatriation Commission case involved the applicant, who sought a Special Rate Pension under the Veterans' Entitlements Act 1986, based on a diagnosis of lumbar disc protrusion. The Repatriation Commission was the respondent in this matter. The dispute centred on the interpretation of certain Statements of Practice (SOPs) and their application to the criteria for granting a Temporary Totally Incapacitated Rate. The case was heard in the Federal Court of Australia.

The court was tasked with determining whether the SOPs should be interpreted in accordance with the principles of beneficial legislation. Furthermore, the court had to assess the application of the "alone test" to the criteria for granting a Special Rate Pension. Specifically, the court needed to decide whether the lumbar disc protrusion was the sole cause of the applicant's incapacity for work.

The court held that the SOPs should indeed be interpreted as part of beneficial legislation. It was emphasised that any ambiguity in the legislation should be resolved in favour of the veteran. The court also ruled that the "alone test" was applicable to the criteria for granting a Special Rate Pension, meaning that the lumbar disc protrusion had to be the sole cause of the applicant's incapacity for work. The court found that the applicant's condition did not meet this criterion, and thus, the application for a Special Rate Pension was dismissed.

The final orders of the court were that the applicant's claim for a Special Rate Pension was dismissed, and the respondent was to pay the applicant's costs of the proceeding.

Orders