Decision      1.        The Tribunal varies the decision of the Repatriation Commission made 27 July 1998 as varied by the Veterans' Review Board on 20 October 1999, to provide that Mr Taylor's claim for ischaemic heart disease is accepted as war-caused with effect from 24 March 1998. 2.           The Tribunal varies the decision of the Repatriation Commission made 6 January 1999 and affirmed by the Veterans' Review Board on 20 October 1999 to provide: (a)          By consent post-traumatic stress disorder, lumbar spondylosis and localised osteoarthrosis of the right hip and right knee are determined to be war-caused diseases from 10 May 1998. (b)     The claims to have peripheral vascular disease, and localised osteoarthrosis of the left knee and left hip accepted as war-caused are refused. (c)          Cerebro vascular accident and carotid arterial disease are accepted as war-caused diseases from 10 May 1998. 3.        The Tribunal reserves liberty to the parties to apply to have the assessment of the rate of pension determined by the Tribunal if they cannot agree on that matter.
  (Sgd Joan Dwyer)
  Senior Member
VETERANS' AFFAIRS - claim for pension – whether ischaemic heart disease war-caused – veteran had operational service – inconsistency in evidence – material pointing to reasonable hypothesis – issues of diagnosis and whether criteria in the definition in the relevant Statement of Principles were met – similar considerations in respect of cerebrovascular accident and carotid arterial disease – both found to be war-caused – atherosclerotic peripheral vascular disease – no medical evidence of existence of disease – not satisfied on the balance of probabilities – localised osteoarthrosis of the left hip and left knee – evidence did not satisfy definition of "trauma to joint" – found not to be war-caused
Veterans' Entitlements Act 1986 ss 9, 120(1), (3), 120A
Statements of Principles No.38 of 1999, 52 of 1999, 23 of 1998, 41 of 1998 140 of 1996

Repatriation Commission v Keeley [2000] FCA 532

Keeley v Repatriation Commission (1999) 56 ALD 455

Gorton v Repatriation Commission [2001] FCA 286, 21 March 2001

Symons v Repatriation Commission [2001] FCA 534

Repatriation Commission v Deledio (1998) 49 ALD 193
Deledio v Repatriation Commission (1997) 47 ALD 261

Bushell v Repatriation Commission (1992) 109 ALR 30

Repatriation Commission v Bey (1997) 47 ALD 481

Repatriation Commission v Cooke (1998) 52 ALD 1

REASONS FOR DECISION

28 May 2001 Mrs Joan Dwyer, Senior Member

This is an application for review of two decisions of the Repatriation Commission both of which have been considered by the Veterans' Review Board ("the VRB"). The first is a decision of the Repatriation Commission ("the Commission"), made 27 July 1998 (T8 pp55-62) and varied by the VRB on 20 October 1999. The decision as varied rejected Mr Taylor's claim for ischaemic heart…

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 Taylor and Repatriation Commission

Details

AGLC: Taylor and Repatriation Commission [2001] AATA 456
Case: [2001] AATA 456
Decision Date: 28 May 2001

CaseChat Overview and Summary

This is an appeal by George Charles Taylor, a veteran, against two decisions of the Repatriation Commission. The first decision, dated 27 July 1998, rejected Mr Taylor's claim for ischaemic heart disease to be accepted as war-caused. The second decision, dated 6 January 1999, rejected Mr Taylor's claims for lumbar spondylosis, localised osteoarthrosis of the left and right hips and knees, intracerebral haemorrhage, atherosclerotic peripheral vascular disease, nervous problems and carotid arterial disease to be accepted as war-caused. The decisions were both considered by the Veterans' Review Board on 20 October 1999. Both decisions have been appealed to the Administrative Appeals Tribunal. The Tribunal must determine whether Mr Taylor's ischaemic heart disease, carotid arterial disease, atherosclerotic peripheral vascular disease, cerebrovascular accident, osteoarthrosis of the left hip and left knee, are war-caused diseases within the meaning of s 9 of the Veterans' Entitlements Act 1986.

The Tribunal found that Mr Taylor's claim for ischaemic heart disease to be accepted as war-caused was successful. The Tribunal found that there was evidence pointing to Mr Taylor continuing to smoke at least five cigarettes a day for at least three years before the clinical onset of ischaemic heart disease and that smoking continued either until the clinical onset of ischaemic heart disease or to a date less than 15 years before 1985. The Tribunal also found that carotid arterial disease, and cerebrovascular accident were war-caused diseases. The Tribunal found that there was no evidence of Mr Taylor suffering from atherosclerotic peripheral vascular disease. The Tribunal found that the claims for osteoarthrosis of the left hip and left knee to be accepted as war-caused were unsuccessful. The Tribunal found that there was no evidence pointing to a trauma of the left hip or knee such as to satisfy the SoP.

Orders