Temple and Repatriation Commission - [2001] AATA 490

DECISION AND REASONS FOR DECISION [2001] AATA 490

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V99/1355

VETERANS' APPEALS DIVISION       )
           Re      JACK TEMPLE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member

Date5 June 2001
PlaceMelbourne

Decision      The decision under review is varied to provide: (i)        that Mr Temple has asthmatic bronchitis which is a war-caused disease, with effect from 10 March 1998. (ii)      that pension is payable to him at 90% of the General Rate from 10 March 1998.
  (Sgd) Joan Dwyer
  Senior Member

VETERANS' AFFAIRS – disability pension – claim for "breathing problems" to be accepted as war-caused – if diagnosed as asthma no factor in relevant Statement of Principles available to veteran – whether diagnosis of asthmatic bronchitis appropriate – difference of opinion between two eminent specialists - issue to be decided on balance of probabilities
PRACTICE AND PROCEDURE – calling two medical witnesses together to resolve issues arising from differences in their opinions
definition in relevant SoP - both experts agreed that the definition of asthmatic bronchitis in the Statement of Principles "creates an impossible diagnostic category" – referral of reasons for decision to Repatriation Medical Authority for consideration

Veterans' Entitlements Act 1986 ss 6A, 9, 120(1) and (3), 120A(3)

Statements of Principles Instruments No. 59 of 1996, 73 of 1997, 75 of 1997

Repatriation Commission v Cooke (1998) 160 ALR 17

Repatriation Commission v Hawkins (1993) 117 ALR 225

REASONS FOR DECISION

5 June 2001 Mrs Joan Dwyer, Senior Member

This is an application for review of a determination of the Repatriation Commission made 16 September 1998 which refused a claim to have "breathing problems" accepted as war-caused. The Repatriation Commission diagnosed "breathing problems" as asthma, and decided that it was not war-caused, because no hypothesis was raised consistent with the relevant Statement of Principles ("SoPs") for asthma. That decision was affirmed by the Veterans' Review Board ("the VRB") on 24 August 1999. The Repatriation Commission on 16 September 1998 accepted the conditions of Post-Traumatic Stress Disorder ("PTSD"), Bilateral Sensori Neural Hearing Loss and Bilateral Tinnitus as war-caused and assessed the rate of pension for those conditions at 40% of the general rate. That assessment was also affirmed by the VRB on 24 August 1999.
Mr De Marchi, a solicitor, appeared for Mr Temple. Ms McCulloch, an advocate with the Department of Veterans' Affairs, appeared for the Repatriation Commission. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also the exhibits tendered during the hearing. Mr Temple gave evidence. Evidence on his behalf was also given by Dr Pain. The respondent called Dr Christie, Mr Temple's local medical officer, and Dr Hart. Both Dr Pain and Dr Hart are respiratory physicians. On the second day of hearing, at the Tribunal's request, they gave evidence together, to clarify the difference between their opinions.
Mr Temple served with the Australian Army from 31 October 1941…

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 Temple and Repatriation Commission

Details

AGLC: Temple and Repatriation Commission [2001] AATA 490
Case: [2001] AATA 490
Decision Date: 5 June 2001

CaseChat Overview and Summary

This is an application for review of a determination of the Repatriation Commission which refused a claim to have "breathing problems" accepted as war-caused. The Tribunal found that the veteran has asthmatic bronchitis which is a war-caused disease and that pension is payable to him at 90% of the General Rate from 10 March 1998. The decision under review is varied to provide that Mr Temple has asthmatic bronchitis which is a war-caused disease with effect from 10 March 1998. The decision as to assessment will be varied to provide that Mr Temple is entitled to pension at 90% of the General rate from 10 March 1998. The Tribunal found that the practice of calling two medical expert witnesses together is helpful and should be adopted more frequently. The Tribunal suggests that the approach be adopted more frequently.

Orders