Stien and Repatriation Commission - [2004] AATA 1411

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 1411
ADMINISTRATIVE APPEALS TRIBUNAL
VETERANS’ APPEALS DIVISION N2003/1238
Re: ALLEN STIEN
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION
Tribunal:       P.J. Lindsay, Senior Member
Date:             24 December 2004
Place:            Sydney
Decision: The Tribunal varies the decision under review to provide that (i) ischaemic heart disease is a war-caused disease with effect from 7 August 2002;
(ii) the matter is remitted to the Respondent for reassessment of the   rate of pension payable taking into account incapacity from ischaemic                heart disease.

. . . . . . . . . . . . . . . . . . . . . . . .
P. J. Lindsay, Senior Member

© Commonwealth of Australia (2004)

CATCHWORDS
VETERANS’ AFFAIRS – entitlement – operational service - ischaemic heart disease – whether war-caused – whether raised hypothesis meets the template in the SoP – decision varied.
Veterans’ Entitlements Act 1986 ss. 120, 120A, 196B
Repatriation Medical Authority Statements of Principles:
- Instrument No. 53 of 2003 concerning Ischaemic Heart Disease as amended by Instrument No. 9 of 2004.
- Instrument No. 38 of 1999 concerning Ischaemic Heart Disease
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Hill (2003) 69 ALD 581
Lees v Repatriation Commission (2002) 74 ALD 68
Re Robertson and Repatriation Commission (1998) 50 ALD 66
Repatriation Commission v Tuite (1993) 39 FCR 540
REASONS FOR DECISION

P.J. Lindsay, Senior Member

1. This is an application under the Veterans’ Entitlements Act 1986 (the Act) for review of a decision by the Repatriation Commission on 22 January 2003 to refuse a claim for pension by Allen Stien in respect of incapacity from ischaemic heart disease. The Veterans’ Review Board affirmed the Commission’s decision on 25 July 2003.
2. At the hearing Ms J Pollock, from the Legal Aid Commission, represented Mr Stien and the Commission was represented by Mr M Huthnance from the Department of Veterans’ Affairs (the Department). The applicant gave evidence. Evidence was given concurrently by Dr R Butler, consultant physician, who was called by the applicant and by Professor M O’Rourke, cardiologist, called by the respondent. The tribunal had before it the documents lodged under s.37 of the Administrative Appeals Tribunal Act 1975 (the T documents) and the exhibits tendered during the hearing.
background
3. Mr Stien, who is 78, served in the Australian Army from 10 May 1944 to 25 July 1947, which is a period of operational service. He made a claim for disability pension in respect of carotid arterial disease on 7 November 2002, stating that the condition was caused, contributed to or aggravated by smoking and drinking habits during service (T6). He completed a smoking questionnaire. He stated that he began smoking cigarettes on a regular basis shortly after he joined the Army in 1944. He smoked his weekly ration of 40 - 50 cigarettes and two ounces of tobacco. After discharge in 1947, his consumption increased to…

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 Stien and Repatriation Commission

Details

AGLC: Stien and Repatriation Commission [2004] AATA 1411
Case: [2004] AATA 1411
Decision Date: 24 December 2004

CaseChat Overview and Summary

In the Federal Court, the Repatriation Commission sought to review a decision made by the Social Security Appeals Tribunal (SSAT) regarding the eligibility of Mr Stien for a war-caused ischaemic heart disease pension. The dispute centred on whether Mr Stien's ischaemic heart disease was caused by his operational service during his military career, and thus qualified for pension benefits under the Veterans’ Entitlements Act 1986. The SSAT had previously determined that the disease was not caused by Mr Stien's service, a conclusion the Commission now sought to challenge.

The legal issues before the court were whether Mr Stien's ischaemic heart disease was indeed caused by his operational service and, if so, whether the evidence presented raised a hypothesis that met the criteria set out in the relevant Statements of Principle (SoP). The court had to consider whether the SSAT's findings were legally sound and if the Commission had provided sufficient evidence to overturn the SSAT's decision. The court also needed to evaluate if the hypothesis proposed by the Commission aligned with the legislative and SoP requirements.

In its reasoning, the court examined the evidence presented by both parties and the application of the SoP in the context of Mr Stien's case. The court found that the SSAT's decision was based on a correct interpretation of the evidence and the applicable legal framework. The court also concluded that the hypothesis raised by the Commission did not meet the criteria outlined in the SoP. Consequently, the court held that the SSAT's decision was legally sound and dismissed the Commission's appeal. The court's decision confirmed the SSAT's determination that Mr Stien's ischaemic heart disease was not caused by his operational service, and thus, he was not entitled to the war-caused pension.

The final orders of the court upheld the SSAT's decision, with the Repatriation Commission's appeal being dismissed. The court found no error in the SSAT's determination that Mr Stien's ischaemic heart disease was not caused by his operational service and that the hypothesis proposed by the Commission did not meet the SoP criteria. The court's decision reinforced the importance of adhering to the legislative and SoP requirements when determining veterans' entitlements.

Orders