Turner and Repatriation Commission - [2004] AATA 1374

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 1374
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2003/21

VETERANS' APPEALS DIVISION )

Re
PETER DAVID TURNER

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time member)
Date21 December 2004
PlaceHobart

Decision
The decision under review is affirmed.

[Sgd B W Davis]
Part-Time Member

CATCHWORDS
Veterans' Appeals - claimed disabilities - naval service - Statements of Principles - thoracic spondylosis - lumbar spondylosis - trauma - clinical onset - accident - Veterans' Review Board (VRB).
Legislation
Veterans' Entitlements Act 1986 - s120(4)
Statements of Principles (SoPs) for specific medical conditions issued by the Repatriation Medical Authority.
Authorities
Bushell v Repatriation Commission (1992) 109 ALR 30
Byrnes v Repatriation Commission (1993) 116 ALR 210
Deledio v Repatriation Commission (1998) FCA 391
Brand v Repatriation Commission (2004) FMCA 270
REASONS FOR DECISION

21 December 2004 Associate Professor B W Davis AM (Part-time member)

Decision Under Review
1.           The decision under review is a decision made by a delegate of the Repatriation Commission dated 19 July 2002, subsequently affirmed by the Veterans’ Review Board (VRB) on 3 December 2002, to refuse disability pension for lumbar and thoracic spondylosis on grounds these conditions were not defence service caused.
Issue
2.           The issue is whether the applicant’s claimed conditions or any of them were caused or contributed to by his service in the Royal Australian Navy between 13 July 1973 and 13 October 1977.
Standard of Proof
3.           As the applicant rendered eligible service and not operational service the standard of proof is that contained in s120(4) of the Act, namely on the balance of probabilities and to the reasonable satisfaction of the Tribunal.
Background
4.           The applicant, Peter David Turner, was born on 1 October 1957 and joined the Royal Australian Navy on 13 July 1973 when 16 years old.   He served four years of eligible service until 13 October 1977.
5.           Mr Turner claims to have suffered back trauma after slipping on a diving board while undergoing initial training at HMAS Leeuwin in late 1973.    He did not report this injury initially, but after back pain during his Christmas leave period when he felt “pins and needles”, reported to a doctor in January 1974.    The doctor did not attribute the “pins and needles” to the diving board incident.   Six months later he was transferred to HMAS Cerberus where he experienced more study and less exercise, nonetheless suffering a sore back which became worse after strenuous exercise.
6.           Mr Turner claims he first sought medical help for his back in the early 1980’s via his GP, Dr Krishna.     He saw Dr Jones, an orthopaedic specialist, in 1999 and is currently taking an analgesic called Trammel.   He needs to be very careful when bending and lifting.   He had seen a physio-therapist but was told such treatment was not useful, since it made his legs numb.
Initial Decisions
7.           On 4 October 2001, Mr Turner lodged a claim for disability…

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 Turner and Repatriation Commission

Details

AGLC: Turner and Repatriation Commission [2004] AATA 1374
Case: [2004] AATA 1374
Decision Date: 21 December 2004

CaseChat Overview and Summary

The case involved an appeal by a veteran, Turner, against a decision of the Veterans' Review Board (VRB) which dismissed his claim for a pension based on certain disabilities. Turner contended that his claimed disabilities, namely thoracic and lumbar spondylosis, were connected to his service in the Royal Australian Navy. The dispute was heard by the Federal Court of Australia.

The central legal issues in the case revolved around whether Turner's claimed disabilities were connected to his naval service and, if so, whether the clinical onset of these disabilities could be traced back to a specific traumatic event during his service. The primary point of contention was whether the evidence sufficiently established that the disabilities were caused by the claimed trauma and whether the statutory criteria were met.

The Court examined the evidence presented regarding the onset of Turner's disabilities and the nature of his service. It determined that the evidence did not convincingly link the claimed disabilities to the alleged traumatic events during his naval service. The Court held that the burden of proof had not been discharged, and the claimed disabilities were not connected to the service as required by the relevant statutory provisions. Consequently, the Court affirmed the VRB's decision, dismissing Turner's appeal.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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