Sullivan and Repatriation Commission (Veterans' entitlements) - [2023] AATA 3044

Sullivan and Repatriation Commission (Veterans' entitlements) [2023] AATA 3044 (26 September 2023)
Division:VETERANS' APPEALS DIVISION
File Number(s):2021/5746
Re:George Sullivan
APPLICANT

Repatriation CommissionAnd
RESPONDENT

DECISION
Tribunal:Member McLean Williams
Date:26 September 2023
Place:Brisbane

The reviewable decision dated 5 May 2021 is affirmed.
................[SGD]..................
Member McLean Williams
CATCHWORDS
VETERANS’ AFFAIRS – Defence-related claims – whether the Applicant suffered an injury or disease – clinical onset – Statement of Principles – decision under review affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Military Rehabilitation and Compensation Act 2004 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
CASES
Benjamin v Repatriation Commission (2001) 64 ALD 411
Boys v Repatriation Commission [2022] FCA 257
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Gorton [2001] FCA 1194
Repatriation Commission v Smith (1987) 15 FCR 327
REASONS FOR DECISION
Member McLean Williams

26 September 2023
Background and relevant chronology

This is an Application for Review of a decision made by the Veteran’s Review Board (‘the VRB’) dated 5 May 2021. By that decision, the VRB affirmed a decision of the Repatriation Commission (‘the Respondent’) dated 26 October 2020 to reject

Mr Sullivan’s claims for Lumbar Spondylosis and L4/L5 Spondylolisthesis under the Veterans’ Entitlements Act1986 (Cth) (‘the VEA’).
Mr Sullivan served as a soldier in the infantry from 2 September 1970 until

1 September 1973. Mr Sullivan also performed ‘eligible defence service’ for the purposes of the VEA from 7 December 1972 until 1 September 1973.
The issue for consideration in this application for review is whether Mr Sullivan is entitled to compensation under the VEA for lumbar spondylosis, and/or for L4/L5 spondylolisthesis. This requires the Tribunal to consider whether each of

Mr Sullivan’s claimed conditions were caused by his period of eligible defence service. In addition, there must also be a Statement of Principles (‘SOP’) that upholds the contention that the claimed condition is, on the balance of probabilities, ‘caused by’ Mr Sullivan’s eligible defence service.
Mr Sullivan already has a number of other, previously accepted conditions under the VEA, each referrable to his eligible defence service. The accepted conditions are:
(a)striae Atrophicae (2 April 1998);
(b)haemorrhoids (2 April 1998);
(c)cervical spondylosis (8 May 2002);
(d)osteoarthritis of the right knee (8 May 2002);
(e)sensorineural hearing loss (6 April 2011); and
(f)tinnitus (6 April 2011).
On 23 March 2020 Mr Sullivan lodged a further claim for lumbar radiculopathy (T4). In that application, Mr Sullivan stated that ‘the full weight of my [Army] backpack cantilevered at my L4 – L5 spine joint and began this degeneration.’
On 26 October 2020 (T14), the Respondent rejected Mr Sullivan’s claim in respect of both lumbar spondylosis and L4/L5 spondylolisthesis, and also for a L4/L5 facet joint cyst (‘the determination’).[1]
[1] On 21 April 2021, Mr Sullivan withdrew his application to the VR regarding his L4/L5 facet joint cyst (T18).
On 14 November 2020 Mr Sullivan requested a…

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.

Keep reading for free

Create a free CaseChat account to read Sullivan and Repatriation Commission (Veterans' entitlements... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] AATA 3044
Decision Date: 26 September 2023

CaseChat Overview and Summary

This matter concerned an application by Mr Sullivan against the Repatriation Commission regarding a claim for a defence-related injury or disease. The dispute centred on whether Mr Sullivan's L4/L5 spondylolisthesis was clinically connected to his eligible defence service, as determined by the Tribunal.

The primary legal issue before the Tribunal was to ascertain the date of clinical onset of Mr Sullivan's spondylolisthesis and, consequently, whether this condition could be established as connected to his defence service on the balance of probabilities, by reference to the relevant Statement of Principles (SOP).

The Tribunal, accepting the further evidence provided in Dr Journeaux's report dated 28 June 2022, determined that the clinical onset date for Mr Sullivan's L4/L5 spondylolisthesis was 20 March 2007. Applying SOP No. 25 of 2017, the Tribunal found that none of the causative factors listed in clause 9 of that SOP were applicable to Mr Sullivan's circumstances. Therefore, it was concluded that the spondylolisthesis was not connected to his eligible defence service. The decision under review was affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As indicated above, the date for clinical onset of Mr Sullivans L4/L5 spondylolisthesis is 20 March 2007, on the basis of Dr Journeaux’s report dated 3 May 2023. Under SOP No. 25 of 2017 at least one of the factors listed in clause 9 must be in existence before it can be said on the balance of probabilities that spondylolisthesis is connected with the circumstances of the person’s relevant defence service. On the basis of the further evidence of Dr Journeaux as given in his report dated 28 June 2022 – which is accepted by the Tribunal – none of the causative factors in clause 9 of SOP No. 25 of 2017 are applicable. It follows therefore that Mr Sullivan’s L4/L5 spondylolisthesis is not connected with Mr Sullivan’s eligible defence service.DECISION The decision under review is affirmed by the Tribunal.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.