Spencer and Repatriation Commission - [2000] AATA 319

DECISION AND REASONS FOR DECISION [2000] AATA 319

ADMINISTRATIVE APPEALS TRIBUNAL)
  Nº N98/1212
VETERANS'       APPEALS      DIVISION)
           Re:     HERBERT HAMILTON SPENCER

Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION

Tribunal: Mrs H. E. Hallowes, Senior Member Dr J. D. Campbell, Member

Date:20 April 2000
Place:Sydney

Decision: The decision under review is set aside and the matter is remitted to the respondent with directions that the applicant's osteoarthrosis of both knees is war-caused. The rate of pension payable to him is to be determined by the respondent.

(sgd) H.E. Hallowes
Senior Member
VETERANS' AFFAIRS — entitlement — osteoarthrosis knees — whether war-caused — whether trauma to joint — whether discrete joint injury — whether requires medical intervention described in SoPs — pain after football, motor vehicle accident — whether lasted for a period of at least seven days
Veterans' Entitlements Act 1986 ss.9, 120(1), (3), 120A(3)
Statements of Principles concerning osteoarthosis
Instrument Nº 71 of 1995 as amended by Instruments Nº 336 and Nº 352 of 1995
Instrument Nº41 of 1998 as amended by Instrument Nº19 of 1999
Keeley v Repatriation Commission (1999) 56 ALD 455
Ogston v Repatriation Commission (1999) 29 AAR 89
Repatriation Commission v Deledio (1998) 49 ALD 193
Re Barrett and Repatriation Commission (1999) AATA 509

REASONS FOR DECISION

20 April 2000 Mrs H. E. Hallowes, Senior Member
Dr J. D. Campbell, Member

On 20 December 1995 Mr Spencer lodged a claim for disability pension in respect of a number of disabilities including osteoarthrosis of both knees which he contended had been caused by his war service as a result of hard knocks he received when playing football during Army service. By a determination dated 11 April 1996 the Repatriation Commission decided that his "osteoarthrosis of both knees and both hips" was not war-caused (T15). Mr Spencer's post traumatic stress disorder, bilateral sensorineural hearing loss with tinnitus, cervical spondylosis, peptic ulcer disease and recurrent fungal infections affecting the toes were accepted as war-caused with effect from 20 September 1995. Pension was granted at 100% of the general rate. The decision of the delegate of the Repatriation Commission with respect to Mr Spencer's knees and hips was affirmed by the Veterans' Review Board ("the VRB") on 5 June 1998. Mr Spencer has applied for a review of that decision.
Mr M. Smith, of counsel, who appeared for Mr Spencer at the hearing, told the Tribunal that he was not aware why Mr Spencer's osteoarthrosis of both hips, for which he had made no claim, had been included in the decision and it was not a matter which Mr Spencer was pursuing before the Tribunal. A decision may have been made with respect to Mr Spencer's osteoarthrosis of both hips because his general practitioner, Dr S. Howe, diagnosed bilateral osteoarthrosis of the "hips and knees" when he was asked to provide a report to the Department of Veterans' Affairs ("the department") with respect to Mr Spencer on 24 January 1996. Nor was there an issue before the Tribunal with respect to 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: Spencer and Repatriation Commission [2000] AATA 319
Case: [2000] AATA 319
Decision Date: 20 April 2000

CaseChat Overview and Summary

The matter before the Tribunal was an appeal by Herbert Hamilton Spencer against a decision of the Repatriation Commission that his osteoarthrosis of both knees was not war-caused. The appeal was heard by Mrs H. E. Hallowes, Senior Member and Dr J. D. Campbell, Member. The primary issue for determination was whether the applicant's osteoarthrosis of both knees was caused by his war service. This required consideration of the relevant Statements of Principles (SoPs) and the evidence provided by the applicant and medical experts. The Tribunal found that the hypothesis connecting the osteoarthrosis of the applicant's knees with his war service was reasonable and was supported by the SoPs. The Tribunal noted the applicant's history of playing football and sustaining injuries during service, as well as the incident where he hit his knees on a truck dashboard. Medical evidence supported the conclusion that the applicant's service had contributed significantly to his condition. The Tribunal concluded that the hypothesis was reasonable and set aside the original decision, substituting its own decision that the applicant's osteoarthrosis of both knees was war-caused. The matter was remitted to the Repatriation Commission to determine the rate of pension payable.

Orders