Vidler and Repatriation Commission - [2010] AATA 1021

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 1021
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3727

VETERANS' APPEALS DIVISION )

Re PETER WILLIAM VIDLER

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal
M D Allen, Senior Member

Dr I Alexander, Member

Date17 December 2010
PlaceSydney

Decision
The decision under review is VARIED in that the disease of sleep apnoea is defence-caused and the Applicant is entitled to the pension at the Special Rate as and from 29 February 2008.
...................[sgd]...........................
M D Allen, Presiding Member

CATCHWORDS
VETERANS’ ENTITLEMENTS: Claim to have sleep apnoea attributed to Defence Service and for pension at the Special Rate. Held Naval Service and incapacity from defence-caused injuries to ankles materially contributed to obesity which caused sleep apnoea. Decision under review varied. Sleep apnoea defence-caused and pension payable at the Special Rate.
LEGISLATION
Veterans’ Entitlements Act 1986, S68, 69, 70, Ss120(4) and (6), 120B.
CASES
Croxford v Repatriation Commission (2004) 78 ALD 761
Repatriation Commission v Smith (1987) 15 FCR 327
REASONS FOR DECISION

17 December 2010 M D Allen, Senior Member
Dr I Alexander, Member

1.      By Application made 11 August 2009 the Applicant sought review of a decision by the Veterans’ Review Board (“VRB”) that allowed his claim to have the condition diagnosed as “Depressive Disorder” accepted as attributed to his Defence Service but rejected his claims regarding post traumatic stress disorder (“PTSD”); narcolepsy; sleep apnoea; and diabetes mellitus and determined that he should continue to be paid pension at 100 per cent of the General Rate.
2.      In these proceedings the Applicant abandoned his claims in respect of PTSD, narcolepsy and diabetes mellitus.
3.      The issue before this Tribunal was whether the Applicant’s sleep apnoea was attributable to his Defence Service. The Respondent conceded that if the Tribunal determined that question in the Applicant’s favour then he was entitled to pension at the Special Rate.
4.      For the Applicant, it was contended that his sleep apnoea was caused by his obesity, which in turn had been contributed to in a material degree by his Defence Service.
5.      Subsection 120(4) Veterans’ Entitlements Act 1986 (“VEA”) states inter alia that in determining whether an injury or disease is defence caused the Repatriation Commission, and hence this Tribunal, is to decide the matter to its “reasonable satisfaction”. In Repatriation Commission v Smith (1987) 15 FCR 327 the Full Court of the Federal Court pointed out that the term “reasonable satisfaction” equates to the civil standard of proof namely, proof on the balance of probabilities.
6. Subsection 120(6) VEA provides that neither party to this review bears any onus of proof.
7. Subsection 120B(3) VEA reads:
“(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war‑caused or defence‑caused only if:
(a) the material before the Commission raises a connection between…

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 Vidler and Repatriation Commission

Details

AGLC: Vidler and Repatriation Commission [2010] AATA 1021
Case: [2010] AATA 1021
Decision Date: 17 December 2010

CaseChat Overview and Summary

Vidler brought an appeal against the Repatriation Commission's decision regarding the attribution of sleep apnoea to his Defence Service and the entitlement to a pension at the Special Rate. The dispute was heard by the Federal Court of Australia. The central issue in the appeal was whether Vidler's sleep apnoea was attributable to his service in the Navy and whether he was entitled to a pension at the Special Rate, which provides for disabilities that are a direct consequence of service. The Court had to determine whether the sleep apnoea was a result of the incapacity from injuries sustained during service, and if so, whether this condition warranted a Special Rate pension.

The Court examined the medical evidence and the connection between Vidler's naval service, the incapacity from defence-caused injuries, and the subsequent development of obesity and sleep apnoea. It was established that Vidler's service and the resulting incapacity from his injuries had a significant impact on his health, leading to obesity, which in turn caused the sleep apnoea. The Court found that the sleep apnoea was indeed a consequence of Vidler's Defence Service, and thus, it was appropriately attributed to his service. Consequently, the Court concluded that Vidler was entitled to a pension at the Special Rate.

The Court's reasoning led to the conclusion that the original decision of the Repatriation Commission was incorrect. The decision under review was varied, and the Court ruled in favour of Vidler, determining that his sleep apnoea was attributable to his service and that he was entitled to the Special Rate pension. The Court's decision acknowledged the causal link between the Defence Service, the incapacity from injuries, and the sleep apnoea, which justified the entitlement to the higher pension rate.

Orders