Walker and Repatriation Commission - [2003] AATA 1097

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 1097
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/1011
VETERANS’ APPEALS DIVISION

Re: PAUL JAMES WALKER
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION
Tribunal:       M.J. Carstairs, Member
Date:              31 October 2003
Place:             Melbourne
Decision:The Tribunal sets aside the decision under review insofar as it relates to lumbar and thoracic spondylosis and substitutes the decision that lumbar and thoracic spondylosis are defence‑caused, with effect from 17 February 1999. The Tribunal remits the matter to the respondent for assessment of the rate of pension.
In all other respects the Tribunal affirms the decision under review.

(sgd) M.J. Carstairs
Member

VETERANS' AFFAIRS ‑ veterans’ entitlements ‑ lumbar and thoracic spondylosis ‑ osteoarthrosis ‑ whether defence‑caused
Veterans’ Entitlements Act 1986 ss70, 120(4), 120B
Law v Repatriation Commission (1980) 29 ALR 64
Repatriation Commission v Yates (1995) 57 FCR 241
Repatriation Commission v Cornelius [2002] FCA 750
Telstra Corporation Ltdv Treloar (2000) 102 FCR 595
Repatriation Commission v Gorton (2001) 110 FCR 321
REASONS FOR DECISION
31 October 2003  M.J. Carstairs, Member
1.       This is an application by Paul James Walker (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 3 May 2001. The VRB varied the decision of a delegate of the Repatriation Commission (the respondent) dated 23 June 1999 to refuse a claim for disability pension for back pain and osteoarthrosis of the right ankle.
2.       At the hearing of this matter on 24 April 2003 and 23 July 2003 Mr D. De Marchi, solicitor, represented the applicant and Mr G. Purcell of counsel represented the respondent.
3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (the T documents), nine exhibits (Exhibits A1‑A9) lodged by the applicant and thirteen exhibits (Exhibits R1‑R13) lodged by the respondent.
BACKGROUND
4.       The applicant was born on 1 November 1968 and trained as a chef. In 1985 he underwent surgery for the reconstruction of his left knee. On 26 June 1986 he suffered multiple injuries, including damage to his left knee, both femurs and his right foot, in a motor vehicle accident. The applicant served in the Australian Army (the army) from 4 October 1989 to 17 February 1997, and this period constitutes defence service under the Veterans’ Entitlements Act 1986 (the Act). He was discharged as medically unfit for service in 1997.
5.       During his army service, the applicant trained as a fitter armourer and then as a vehicle mechanic. He was a member of the Royal Australian Electrical and Mechanical Engineers Corps (RAEME). From 1992 to 1997, he worked as a motor mechanic at the Army School of Transport (the AST). The work included lifting medium to heavy tyres and vehicle parts. After his discharge he worked as a picture framer.
6.       Shortly after joining the army, and following a route march, the applicant received treatment for a sore left knee. He aggravated this injury in 1990 and 1992. There was a recurrence…

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 Walker and Repatriation Commission

Details

AGLC: Walker and Repatriation Commission [2003] AATA 1097
Case: [2003] AATA 1097
Decision Date: 31 October 2003

CaseChat Overview and Summary

This case involves an application by Paul James Walker (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 3 May 2001. The VRB varied the decision of a delegate of the Repatriation Commission (the respondent) dated 23 June 1999 to refuse a claim for disability pension for back pain and osteoarthrosis of the right ankle. The applicant claimed that his lumbar and thoracic spondylosis and osteoarthrosis of the right ankle were defence-caused. The legal issues before the court were whether the applicant’s lumbar and thoracic spondylosis and osteoarthrosis of the right ankle were defence-caused within the meaning of s70(5) of the Veterans’ Entitlements Act 1986 (the Act). The court held that the applicant’s lumbar and thoracic spondylosis were defence-caused. The court found that the applicant had sustained incidents of back pain during his service in the army. The evidence pointed to the factor of the applicant having disordered joint mechanics before the clinical worsening of lumbar and thoracic spondylosis, and the court was reasonably satisfied that the applicant’s conditions of lumbar and thoracic spondylosis were defence-caused. The court found that the applicant’s osteoarthrosis of the right ankle was not defence-caused. The evidence pointed to the applicant having a flare-up of the right ankle in 1994 which was treated surgically and on the evidence when he later had problems with his left ankle, his right ankle had recovered. The court rejected the submission that the surgery in 1994 was trauma to a joint, as that submission failed to distinguish between injury and treatment of injury. Taken as a whole, the evidence suggested that, as a result of the motor vehicle accident, conditions during service might lead to temporary exacerbations of his previously injured ankle. But, as Mr Dooley said, this would not alter the underlying pathology of the ankle. The final orders of the court were that the Tribunal sets aside the decision under review insofar as it relates to lumbar and thoracic spondylosis and substitutes the decision that lumbar and thoracic spondylosis are defence-caused, with effect from 17 February 1999. The Tribunal remits the matter to the respondent for assessment of the rate of pension. In all other respects the Tribunal affirms the decision under review.

Orders