Studdert and Comcare (Department of Veterans' Affairs)

[2004] AATA 875

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 875

ADMINISTRATIVE APPEALS TRIBUNAL      )              No.  N2003/903

)  

GENERAL ADMINISTRATIVE DIVISION )

Re DONALD STUDDERT

Applicant

And COMCARE (DEPARTMENT OF VETERANS’ AFFAIRS)

Respondent

DECISION

Tribunal

Senior Member M D Allen;

Dr P D Lynch, Member

Date21 June 2004

PlaceSydney

Administrative

Appeals

Tribunal

 

ADMINISTRATIVE APPEALS TRIBUNAL      )          No.   N2003/903

)              

GENERAL ADMINISTRATIVE  DIVISION		)
Re		DONALD STUDDERT

Applicant

And COMCARE (DEPARTMENT OF VETERANS’ AFFAIRS)

Respondent

DECISION

Tribunal Senior Member M D Allen;
Dr P D Lynch, Member

Date21 June 2004

PlaceSydney

Decision      FOR the reasons given orally at the conclusion of the hearing in this   matter:

1.        The reviewable decision, in so far as relates to respiratory   condition, dated 21 May 2003 is set aside.

2.        In substitution for that part of the decision set aside, the Tribunal   decides that:

(a)      The Applicant suffers from a respiratory condition (“the   condition”) resulting from his exposure to tear gas on one                    occasion in 1955;

(b)      The Respondent is liable for the condition pursuant to   section 14 of the Safety Rehabilitation and Compensation                   Act 1988 (Cth) and the transitional provisions.

(c)       To date, the Applicant has suffered no incapacity,   permanent impairment, medical expenses or other loss as                   a result of the said condition.

3.        The reviewable decision is otherwise affirmed.

4.        The Respondent is to pay the Applicant’s reasonable costs and   disbursements as agreed or taxed, noting that this matter finished   at 12:30pm.

(Sgd) M D Allen
  ..............................................

Presiding Member

CATCHWORDS

Workers’ Compensation –claim for heart and respiratory condition following exposure to tear gas whilst a national serviceman – claim for heart condition abandoned at hearing – respiratory condition accepted.

Safety, Rehabilitation and Compensation Act 1988 s124

Commonwealth Employees Compensation Act 1930

REASONS FOR DECISION

21 June 2003  Senior Member M D Allen

Dr P D Lynch, Member

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant a copy of the decision that was in fact made, the Applicant, pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act1975, requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.  Those reasons are now stated below accordingly and will be furnished to the Applicant and to the Respondent.

2.      By application made the 3^rd day of June 2003 the Applicant sought review of a  “reviewable decision” made the 21^st day of May 2003 that affirmed a prior determination of 10 December 2002 rejecting a claim for “respiratory and heart conditions”.

3.      In rejecting the claim for respiratory and heart conditions the delegate of the Respondent referred to an hypothesis by the Applicant that due to the inhalation of tear gas he became obese and this in turn led to diabetes and as a result of his diabetes, heart disease.

4.      At the hearing the Applicant’s counsel abandoned the claim to have any cardiovascular disease accepted as a compensable condition.

5.      The claim for any cardiovascular condition having been abandoned by the Applicant no evidence was led either as to that particular disease nor as to the disease of diabetes or the condition of obesity which disease and condition were only before the Tribunal as steps in a hypothesis seeking to link cardiovascular disease with exposure to tear gas.

6.      The application for review originally came on for hearing before this Tribunal on 20 February 2004.  At that hearing evidence was given by Dr Gianoutsos and Professor Hall as to the Applicant’s bronchial condition. 

7.      During their evidence which was given conjointly, both medical practitioners agreed that the Applicant suffered a respiratory disease caused by his exposure to tear gas whilst undergoing National Service.

8.      Subsequent to the evidence of the medical practitioners but before the hearing of the matter resumed on 21 June 2004 correspondence passed between the solicitors for the parties in an attempt to settle the matter.

9.      At the resumed hearing, the Respondent made the very proper concession, following the evidence of Dr Gianoutsos and Professor Hall, that the Applicant’s respiratory condition was compensable and the Tribunal framed a decision reflecting this concession.

10.     The concession regarding respiratory condition aside, there was no material before the Tribunal which could support a decision that the Applicant’s cardiovascular disease of diabetes were compensable.

11.     As to the matter of costs the Tribunal saw no reason why costs should not follow the event except to note for the benefit of the taxing officer that the hearing on the second day was completed at 12:30pm.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Signed:         (E.Pope)
          ..................................................................................……………………………….

Associate

Date of Hearing  21 June 2004

Date of Decision  21 June 2004

Counsel for Applicant                  Mr C Jackson

Solicitor for Applicant                   Fairbairn Lawyers

Counsel for Respondent             Mr G Johnson

Solicitor for Respondent              Australian Government Solicitor