Summers and Repatriation Commission (Veterans' entitlements) - [2018] AATA 315

Summers and Repatriation Commission (Veterans' entitlements) [2018] AATA 315 (23 February 2018)

Division:Veterans' Appeals Division
File Number: 2007/3957 and 2009/2689
Re:RONALD SUMMERS
APPLICANT

AndREPATRIATION COMMISSION
RESPONDENT

DECISION

Tribunal:Deputy President S A Forgie
Date:23 February 2018
Place:Melbourne

The Tribunal:

sets aside the decision of the respondent dated 3 July 2008 (and affirmed by the Veterans’ Review Board on 21 April 2009) in so far as it found that the applicant was entitled to pension at 100% of the General Rate; and

substitutes a decision that the applicant is entitled to a pension at the Special Rate under s 24 of the Veterans’ Entitlements Act 1986 with effect from 10 September 2007.

..................[sgd].....................................................

S A FORGIE
Deputy President

VETERANS’ ENTITLEMENTS – remittal - application for Special Rate of pension – alone test – alcohol dependence – decision set aside and substituted

Legislation

Administrative Appeals Tribunal Act 1975 s 44

Fair Work Act 2009 s 389

Veterans’ Entitlements Act 1986 s 13

Workplace Relations Act 1996 s 399A(4)

Cases

Blackman v Commissioner of Taxation [1993] FCA 345; (1993) 43 FCR 449; 26 ATR 118

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60; 46 FLR 409

Re Hornery and Repatriation Commission [1998] AATA 602; (1998) 52 ALD 317; 28 AAR 193

Re Jagroop and Minister for Immigration and Border Protection [2015] AATA 751; (2015) 67 AAR 288

Rendell v Repatriation Commission [2001] FCA 1881

Re Summers and Repatriation Commission [2010] AATA 803

Re Summers and Repatriation Commission [2013] AATA 439

Summers v Repatriation Commission [2015] FCAFC 36; (2015) 230 FCR 179; 65 AAR 320; 145 ALD 30

Summers v Repatriation Commission [2011] FCA 1451

Summers v Repatriation Commission [2012] FCAFC 104

Summers v Repatriation Commission [2014] FCA 608

Secondary Materials

Macquarie Dictionary, Fifth Edition, 2009, Macquarie Dictionary Publishers Pty Ltd, Sydney

REASONS FOR DECISION

Deputy President S A Forgie

Mr Ronald Summers applied for pension at the Special Rate under the Veterans’ Entitlements Act 1986 (VE Act). He has been in receipt of pension at 100% of the General Rate for some time but the Repatriation Commission (Commission) refused his application for payment at the Special Rate. Its decision was affirmed by the Veterans’ Review Board and by a differently constituted Tribunal. On appeal, the Full Court of the Federal Court set aside that decision and remitted the matter to the Tribunal.[1] Since the remittal, the parties have agreed that Mr Summers’ alcohol dependence is a war-caused disease with effect from 10 September 2007. His conditions of bilateral sensorineural hearing loss, chronic bronchitis, emphysema, lumbar spondylosis and post-traumatic stress disorder (PTSD) had already been accepted as war-caused at an earlier time. The issue that remains outstanding is whether Mr Summers is entitled to a pension at either the Intermediate Rate under s 23 of the VE Act or at the Special Rate under s 24 of that legislation. I have decided that Mr Summers…

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

Case: [2018] AATA 315
Decision Date: 23 February 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of Summers and the Repatriation Commission concerning a claim for veterans' entitlements. The applicant, Mr Summers, sought review of a decision by the Repatriation Commission that denied him an increase in his disability pension.

The primary legal issue before the Tribunal was whether Mr Summers' condition, specifically his degenerative disc disease, had been aggravated by his service in the Australian Defence Force. This required the Tribunal to determine if the evidence established a causal link between his military service and the worsening of his condition, or if the condition was merely a natural progression of a pre-existing ailment.

Deputy President Forgie P applied the principles established in veterans' entitlement legislation, which require the Commission to grant an increase in pension if a disability has been aggravated by service. The Tribunal considered medical evidence regarding the onset and progression of Mr Summers' back condition, weighing expert opinions on whether service had exacerbated the degenerative changes. The Tribunal found that the evidence did not establish that Mr Summers' degenerative disc disease had been aggravated by his service, concluding that the condition had progressed naturally.

Consequently, the Tribunal affirmed the decision of the Repatriation Commission.

Orders