SLOAN and REPATRIATION COMMISSION - [2011] AATA 424

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION     [2011] AATA 424
ADMINISTRATIVE APPEALS TRIBUNAL      )
)          No 2010/3122

VETERANS' APPEALS DIVISION )

Re RUPERT GEORGE SLOAN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal G. D. Friedman, Senior Member
Date21 June 2011
PlaceMelbourne

Decision The Tribunal affirms the decision under review.

.................[signed].............................
Senior Member

VETERANS' AFFAIRS – veterans’ entitlements - lumbar spondylosis - fall while carrying machine gun tripod - date of clinical onset - whether service-caused
Veterans' Entitlements Act 1986 ss 70(5)(a), 119(1)(h), 120(4)
Kaluza v Repatriation Commission [2010] FCA 1244
Lees v Repatriation Commission [2002] FCAFC 398
Mason v Repatriation Commission [2000] FCA 1409
Re Jurey and Repatriation Commission [2011] AATA 393
Repatriation Commission v Cornelius [2002] FCA 750
REASONS FOR DECISION

21 June 2011 G. D. Friedman, Senior Member

1.        Rupert Sloan served in the Australian Army within Australia from 1942 to 1946. He claims that his medical condition of lumbar spondylosis is related to his army service when he fell while carrying a machine gun tripod during a training exercise.
LEGISLATIVE BACKGROUND
2.   Mr Sloan’s service in the Australian Army from 23 January 1942 until

24 September 1946 is eligible service under the Veterans’ Entitlements Act 1986 (the Act). Section 120(4) of the Act requires the Tribunal to decide, to its reasonable satisfaction, whether his lumbar spondylosis was defence-caused. The Tribunal is required to apply a Statement of Principles (SoP) for each condition (where one exists), as formulated by the Repatriation Medical Authority, which provides a connection to service through factors contained in the SoP. Under s 70(5)(a) of the Act a condition is defence-caused if it arose out of, or was attributable to, any defence service. The relevant SoP is No. 38 of 2005 concerning lumbar spondylosis.
3.        The respondent has previously accepted that perceptive deafness right and left and deviated nasal septum are service-related. Mr Sloan is in receipt of disability pension at 100 per cent of the general rate.
Paragraph 6 of SoP No. 38 of 2005 provides:
…
(f) having a trauma to the lumbar spine within the twenty-five years before the clinical onset of lumbar spondylosis;

4. Paragraph 9 states:
…
“trauma to the lumbar spine” means a discrete injury, including G force-induced injury, to the lumbar spine that causes the development, within twenty-four hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the lumbar spine. These symptoms and signs must last for a period of at least ten days following their onset; save for where medical intervention for the trauma to the lumbar spine has occurred and that medical intervention involves either:
(a) immobilisation of the lumbar spine by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into the lumbar spine; or
(c) surgery to the lumbar spine.

ISSUES
5. There was no dispute that Mr Sloan suffers from lumbar spondylosis. The issues before the Tribunal are:
·What is the…

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 SLOAN and REPATRIATION COMMISSION

Details

AGLC: SLOAN and REPATRIATION COMMISSION [2011] AATA 424
Case: [2011] AATA 424
Decision Date: 21 June 2011

CaseChat Overview and Summary

In the case of Sloan and Repatriation Commission, the applicant sought a review of the Repatriation Commission's decision that his lumbar spondylosis did not arise out of his service in the Australian Defence Force, and therefore, he was not entitled to a pension. The case was heard by the Administrative Appeals Tribunal (AAT). The primary issue before the AAT was whether the applicant's lumbar spondylosis was caused by his service in the Australian Defence Force, specifically a fall while carrying a machine gun tripod. The applicant argued that this fall caused the clinical onset of his lumbar spondylosis, which was a service-related injury. The AAT considered the evidence provided by the applicant and the medical evidence presented by the Commission.

The AAT examined the relevant legislative provisions, including sections 70(5)(a), 119(1)(h), and 120(4) of the Veterans' Entitlements Act 1986. The AAT also referred to relevant case law, including Kaluza v Repatriation Commission, Lees v Repatriation Commission, Mason v Repatriation Commission, Re Jurey and Repatriation Commission, and Repatriation Commission v Cornelius. The AAT found that the applicant had not provided sufficient evidence to establish that his lumbar spondylosis was caused by his service in the Australian Defence Force. The AAT concluded that the applicant's lumbar spondylosis was not a service-related injury and affirmed the decision under review.

The final orders of the Tribunal were that the decision under review be affirmed, and the applicant's application for review be dismissed. The Tribunal found that the applicant had not satisfied the burden of proof required to establish that his lumbar spondylosis was caused by his service in the Australian Defence Force. The Tribunal also found that the applicant's evidence was not credible, and the medical evidence presented by the Commission was more reliable.

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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VETERANS' APPEALS DIVISION		)
Re		RUPERT GEORGE SLOAN