Small and Repatriation Commission - [2000] AATA 295

CATCHWORDS – VETERANS' AFFAIRS – pension – whether applicant's cervical spondylosis war-caused – whether headaches caused by cervical spondylosis or accepted PTSD -–whether applicant entitled to pension at Special Rate – decision varied.

Veterans' Entitlements Act 1986 – ss 5(AB), 6, 7, 8, 9, 13, 24, 70, 120, 120A, 196B,

Bushell v Repatriation Commission (1992) 175 CLR 408; (1992) 109 ALR 30; (1992) 66 ALJR 753; (1992) 29 ALD 1
Byrnes v Repatriation Commission (1993) 116 ALR 210; (1993) 177 CLR 564; (1993 67 ALJR 805; (1993) 18 AAR 1; (1993) 30 ALD 1
Deledio v Repatriation Commission (1997) 47 ALD 261; (1997) 25 AAR 396
Ogston and Repatriation Commission, unreported, 1 April, 1999, NG 773 of 1998
Repatriation Commission v Deledio (1998) 27 AAR 144; (1998) 49 ALD 193
Repatriation Commission v McLean (1998) 50 ALD 149; (1998) 27 AAR 144
Re Keeley and Repatriation Commission [1999] AATA 178
Re Ogston and Repatriation Commission (1998) 27 AAR 176

DECISION AND REASONS FOR DECISION [2000] AATA 295

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          Q1998/848
VETERANS' APPEALS DIVISION  )

Re NORMAN McLEOD SMALL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal  Miss S A Forgie (Deputy President)
  Brigadier I R W Brumfield (Member)
  Dr D J Cull (Member)

Date 17 April, 2000

Place Brisbane

Decision The Tribunal:

1.sets aside that part of the decision of the respondent which relates to assessment of pension dated 15 October, 1997 as varied by a decision of the Veterans' Review Board dated 14 July, 1998;

2.substitutes a decision that the applicant is entitled to be paid a pension at the Special Rate with effect from 16 February, 1997; and

3.otherwise affirms the decision under review.

S A FORGIE
Deputy President

REASONS FOR DECISION

On 1 September, 1998, the applicant, Mr Norman McLeod Small, applied for review of a decision of a delegate of the respondent, the Repatriation Commission ("Commission") dated 15 October, 1997 as varied by a decision of the Veterans' Review Board ("VRB") dated 14 July, 1998. The substantive effect of the decisions was that Mr Small's claim for cervical spondylosis and headaches was refused and his pension was assessed at 50% of the General Rate.

At the hearing, Mr Small was represented by Mr O'Gorman of counsel and the Commission was represented by its advocate, Mr Dobbie. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence together with a report by Dr Buckley dated 27 November, 1999, statements by Mr Small dated 25 March, 1999 and 26 November, 1999 and Dr White's report dated 30 March, 1999. Oral evidence was given by Mr Small in support of his case together with Dr Chittenden and Dr White. Dr Grant gave evidence on behalf of the Commission.

THE ISSUES

There are two issues in this case. The first is whether Mr Small's conditions of cervical spondylosis and headaches are war-caused within the meaning of s. 9 of 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.

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Details

AGLC: Small and Repatriation Commission [2000] AATA 295
Case: [2000] AATA 295
Decision Date: 17 April 2000

CaseChat Overview and Summary

The case of Norman McLeod Small versus the Repatriation Commission was heard by the Administrative Appeals Tribunal. Mr Small applied for a review of the Commission's decision dated 15 October 1997, which was later varied by the Veterans' Review Board on 14 July 1998. The Commission had refused Mr Small's claim for cervical spondylosis and headaches as war-caused and assessed his pension at 50% of the General Rate. The two issues before the Tribunal were whether Mr Small's cervical spondylosis and headaches were war-caused, and whether he was entitled to a pension at the special rate. The Tribunal found that Mr Small's cervical spondylosis was not war-caused as the hypothesis connecting the condition with his service was too remote or too tenuous. However, they found that Mr Small's incapacity from major depression and post-traumatic stress disorder was of such a nature as to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. Consequently, the Tribunal set aside the decision of the Repatriation Commission and substituted a decision that Mr Small was entitled to be paid a pension at the Special Rate with effect from 16 February 1997.

The main legal issues addressed in this case were the interpretation of the Veterans' Entitlements Act 1986 and the relevant Statements of Principle concerning war-caused injuries and diseases. The Tribunal applied the statutory provisions and case law to determine whether Mr Small's cervical spondylosis and headaches were war-caused and whether he was entitled to a pension at the special rate. The Tribunal also considered the evidence provided by Mr Small and the medical professionals, as well as the lifestyle effects of his conditions.

The reasoning behind the Tribunal's decision was based on the evidence presented and the applicable legal framework. The Tribunal found that the hypothesis linking Mr Small's cervical spondylosis with his war service was too remote or too tenuous, as there was insufficient reliable evidence to support the claim. However, they found that Mr Small's incapacity from major depression and post-traumatic stress disorder met the criteria for a pension at the special rate, as his conditions rendered him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. The Tribunal considered the evidence provided by the medical professionals, Mr Small's statements, and the lifestyle effects of his conditions in making their decision.

In conclusion, the Tribunal varied the decision of the Repatriation Commission and granted Mr Small a pension at the Special Rate, effective from 16 February 1997. The Tribunal's decision was based on the evidence presented and the applicable legal framework, which included the Veterans' Entitlements Act 1986 and the relevant Statements of Principle.

Orders