Stephen Wildman and Repatriation Commission - [2013] AATA 476

[2013] AATA 476

Division VETERANS' APPEALS DIVISION

File Number(s)

2011/5107

Re

Stephen Wildman

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
The Hon R J Groom AO (Deputy President)

Date 9 July 2013

Place Hobart
The decision under review is affirmed.
[Sgd Hon R J Groom]
Deputy President
VETERANS’ AFFAIRS – disability pension – applicant rendered service in Royal Australian Navy – death of fellow apprentice and friend in motor vehicle accident – smoking – whether ischaemic heart disease was defence-caused – relevant Statement of Principles does not uphold connection with service – disease not defence-caused – decision under review affirmed
Veterans’ Entitlements Act 1986, ss 68, 70(5), 120(4), 120B(3), 196B(14)(d) & (f)
Statement of Principles – Ischaemic Heart Disease No. 90 of 2007
Repatriation Commission v Smith (1987) 15 FCR 327
Robertson v Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Law [1980] FCA 92
Kattenberg v Repatriation Commission (2002) 73 ALD 365
REASONS FOR DECISION
The Hon R J Groom AO (Deputy President)
5 July 2013
INTRODUCTION

This is a review of a decision made by the Veterans’ Review Board (“VRB”) on 27 October 2011.
The decision of the VRB affirmed an earlier decision of the Repatriation Commission which had refused Mr Wildman’s claim under the Veterans’ Entitlements Act 1986 (“the Act”) that the ischaemic heart disease from which he now suffers was defence-caused.
Mr Wildman served in the Royal Australian Navy from 11 January 1975 to 25 March 1979. The whole of that period of service was “defence service” within the meaning of that term in section 68 of the Act.
The Repatriation Commission had previously accepted a number of other medical conditions suffered by Mr Wildman as being defence-caused. Those accepted conditions are sensorineural hearing loss, tinnitus, lumbar spondylosis, and ingrown toe nail left big toe. As a result Mr Wildman became entitled to a disability pension at 50% of the General Rate. If it is established that Mr Wildman also suffers ischaemic heart disease he would then be entitled to be paid the pension at a higher rate.
THE LEGISLATION
A person who has rendered defence service is eligible to receive a pension under Part IV of the Act if he or she suffers from an injury or disease which was “defence-caused”. An injury or disease is “defence-caused” if it “arose out of or was attributable” to any defence service. It is sufficient if the injury or disease was “contributed to in a material degree by or aggravated by” any defence service.
Section 70(5) of the Act relevantly provides as follows:
(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 to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:

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 Stephen Wildman and Repatriation Commission

Details

AGLC: Stephen Wildman and Repatriation Commission [2013] AATA 476
Case: [2013] AATA 476
Decision Date

CaseChat Overview and Summary

The parties involved in the dispute were Stephen Wildman and the Repatriation Commission. The central issue in this case was whether Mr Wildman's ischaemic heart disease was connected to his defence service, which would make him eligible for certain benefits under the Repatriation Act. The case was heard and determined by the Administrative Appeals Tribunal (AAT). The AAT had to assess the evidence presented and determine if the condition was indeed connected to Mr Wildman's defence service, based on the applicable legislation and case law.

The primary legal issue the AAT needed to address was whether the applicant's ischaemic heart disease was connected with his defence service, as required by the legislation. The AAT examined the relevant Statement of Principles (SOP) to determine if it upheld the connection between Mr Wildman's condition and his service. The AAT also needed to consider the evidence presented and assess whether it was reasonable to conclude that the ischaemic heart disease was caused by or arose out of the applicant's defence service. This assessment involved evaluating the medical evidence, the applicant's personal history, and the relevant statutory provisions.

The AAT concluded that the relevant SOP did not support the contention that Mr Wildman's ischaemic heart disease was connected to his defence service. As a result, the AAT found that it was not reasonably satisfied that the condition was caused by his service. The AAT determined that the evidence did not establish a sufficient link between the applicant's condition and his service, and therefore upheld the decision of the Repatriation Commission to deny Mr Wildman's claim. The AAT affirmed the decision under review, meaning that the Commission's decision to reject Mr Wildman's claim for benefits related to his ischaemic heart disease remained in place.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As the relevant SOP does not uphold the contention that the applicant’s condition of ischaemic heart disease is, on the balance of probabilities, connected with his defence service, the Tribunal, pursuant to section 120B(3) of the Act, is not reasonably satisfied that the condition is defence caused.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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Division	VETERANS' APPEALS DIVISION
File Number(s)	2011/5107
Re	Stephen Wildman
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	The Hon R J Groom AO (Deputy President)
Date	9 July 2013
Place	Hobart