Warren and Repatriation Commission - [2002] AATA 64

DECISION AND REASONS FOR DECISION [2002] AATA 64

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/265

VETERANS'     APPEALS       DIVISION
  Re:         NEIL JOHN WARREN
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             1 February 2002
Place:            Melbourne
Decision:      The Tribunal affirms the decision under review.

(sgd) Graham Friedman
Member
VETERANS' AFFAIRS - veterans' entitlements - malignant melanoma of the skin - sunburn -whether war-caused
Veterans' Entitlements Act 1986 ss9, 120(1), 120(3), 120(4), 120A(3)
Benjamin v Repatriation Commission [2001] FCA 1879
Meehan v Repatriation Commission (2001) 64 ALD 366
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Gorton (2001) 33 AAR 370

REASONS FOR DECISION

1 February 2002 G.D. Friedman, Member

This is an application by Neil John Warren (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 11 January 2001. The VRB affirmed a decision of a delegate of the respondent dated 30 May 2000 that malignant melanoma of the skin was not war-caused.
At the hearing of this matter on 25 January 2002 Mr P. Liefman, solicitor, represented the applicant and Ms J. McCulloch, Department of Veterans' Affairs advocate, represented the respondent.
The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T11), together with one exhibit lodged by the applicant (Exhibit A1) and one lodged by the respondent (Exhibit R1).
BACKGROUND
The applicant was born on 7 January 1947. He served with the Australian Army from 4 October 1967 to 4 October 1969 as a national serviceman. For the purposes of s9 of the Veterans' Entitlements Act 1986 (the Act) the applicant rendered operational service from 18 February 1968 to 30 September 1969 in the Republic of South Vietnam (Vietnam).
On 19 April 2000 the applicant lodged an application with the respondent for disability pension for incapacity from hearing problems and malignant melanoma. On 30 May 2000 a delegate of the respondent diagnosed the hearing problems as bilateral sensorineural hearing loss and bilateral tinnitus, and accepted the claim. The respondent refused the claim for malignant melanoma of the skin on the grounds that the condition was not war-caused. On 11 January 2001 the VRB affirmed the decision of the delegate. On 14 March 2001 the applicant sought review by the Tribunal of the decision of the VRB.
EVIDENCE
The applicant told the Tribunal that he served with 85 Transport Unit as a cook at the Australian Base in Nui Dat, Vietnam. He described the climate in Vietnam as hot and sunny, and said that he spent considerable periods outside when preparing meals, and wore a shirt only when serving meals and in the evenings. He said that he did not use sunscreen and after some five months in Vietnam he suffered from sunburn on 3 or 4 occasions, particularly on his back, shoulders and arms. He stated that the sunburn was very painful and that the pain lasted up to three days.
In a written statement dated 22 January 2002 the applicant said…

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 Warren and Repatriation Commission

Details

AGLC: Warren and Repatriation Commission [2002] AATA 64
Case: [2002] AATA 64
Decision Date: 1 February 2002

CaseChat Overview and Summary

The parties involved in the case were the applicant, who served in the Australian Army from 1967 to 1969, and the Repatriation Commission. The dispute centered around the applicant's claim for a disability pension, specifically for hearing problems and malignant melanoma. The case was heard by the Administrative Appeals Tribunal. The legal issues before the court were whether the applicant's malignant melanoma was caused by his service in Vietnam and, if so, whether the Tribunal had jurisdiction to hear the matter.

The court examined the evidence presented, including the applicant's testimony about his service and the nature of his injuries, as well as expert medical evidence. The applicant testified that he suffered from severe sunburn during his service in Vietnam, which was not reported to medical personnel due to army regulations. The court noted that the applicant did not disclose the sunburn when applying for a pension but provided a written statement to the Tribunal. The court also considered the expert evidence from a surgeon who stated that prolonged sun exposure, including blistering sunburns, could be a contributing factor to the development of malignant melanoma.

The court concluded that the Tribunal had jurisdiction to hear the matter as the applicant had provided new evidence, specifically the written statement about his sunburn, which was not available at the time of the original decision. The court found that the applicant's malignant melanoma was likely caused by his exposure to the sun during his service in Vietnam, and thus granted the claim. The Repatriation Commission's decision was overturned, and the applicant was awarded the disability pension for his malignant melanoma.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T11), together with one exhibit lodged by the applicant (Exhibit A1) and one lodged by the respondent (Exhibit R1). BACKGROUND The applicant was born on 7 January 1947. He served with the Australian Army from 4 October 1967 to 4 October 1969 as a national serviceman. For the purposes of s9 of the Veterans' Entitlements Act 1986 (the Act) the applicant rendered operational service from 18 February 1968 to 30 September 1969 in the Republic of South Vietnam (Vietnam). On 19 April 2000 the applicant lodged an application with the respondent for disability pension for incapacity from hearing problems and malignant melanoma. On 30 May 2000 a delegate of the respondent diagnosed the hearing problems as bilateral sensorineural hearing loss and bilateral tinnitus, and accepted the claim. The respondent refused the claim for malignant melanoma of the skin on the grounds that the condition was not war-caused. On 11 January 2001 the VRB affirmed the decision of the delegate. On 14 March 2001 the applicant sought review by the Tribunal of the decision of the VRB. EVIDENCE The applicant told the Tribunal that he served with 85 Transport Unit as a cook at the Australian Base in Nui Dat, Vietnam. He described the climate in Vietnam as hot and sunny, and said that he spent considerable periods outside when preparing meals, and wore a shirt only when serving meals and in the evenings. He said that he did not use sunscreen and after some five months in Vietnam he suffered from sunburn on 3 or 4 occasions, particularly on his back, shoulders and arms. He stated that the sunburn was very painful and that the pain lasted up to three days. In a written statement dated 22 January 2002 the applicant said that on each occasion that he suffered sunburn the skin mainly on the back but also [on the] front of my upper body was pink going on to red. He added that:. . . The sunburn was accompanied by blistering and peeling in the sunburnt areas. They were like steam burns with the skin becoming puffed up blister[s] filled with liquid. . . . the sunburn lasted at least a day (24 hours) and could have been longer. The applicant stated that he did not report the sunburn to medical personnel because under army regulations sunburn was considered to be a self-inflicted wound, and he risked being charged with an offence. Under cross-examination he agreed that he told the VRB that on the three or four occasions he suffered from sunburn the pinkness lasted 24 hours or it could have been a bit longer. The applicant agreed further that when lodging a claim for pension on 17 May 2000 he answered No to the question: Has the veteran ever been sunburnt on service? He told the Tribunal that although he disclosed the sunburn, he ticked the No box because he had not reported the matter to medical personnel and there was no medical record of sunburn. He also agreed that he had not mentioned blisters when he appeared before the VRB or when he applied for pension, and explained that he was not questioned about it at the VRB hearing.

Evidence

Evidence Before The Court

On 19 April 2000 the applicant lodged an application with the respondent for disability pension for incapacity from hearing problems and malignant melanoma. On 30 May 2000 a delegate of the respondent diagnosed the hearing problems as bilateral sensorineural hearing loss and bilateral tinnitus, and accepted the claim. The respondent refused the claim for malignant melanoma of the skin on the grounds that the condition was not war-caused. On 11 January 2001 the VRB affirmed the decision of the delegate. On 14 March 2001 the applicant sought review by the Tribunal of the decision of the VRB. EVIDENCE The applicant told the Tribunal that he served with 85 Transport Unit as a cook at the Australian Base in Nui Dat, Vietnam. He described the climate in Vietnam as hot and sunny, and said that he spent considerable periods outside when preparing meals, and wore a shirt only when serving meals and in the evenings. He said that he did not use sunscreen and after some five months in Vietnam he suffered from sunburn on 3 or 4 occasions, particularly on his back, shoulders and arms. He stated that the sunburn was very painful and that the pain lasted up to three days. In a written statement dated 22 January 2002 the applicant said that on each occasion that he suffered sunburn the skin mainly on the back but also [on the] front of my upper body was pink going on to red. He added that:. . . The sunburn was accompanied by blistering and peeling in the sunburnt areas. They were like steam burns with the skin becoming puffed up blister[s] filled with liquid. . . . the sunburn lasted at least a day (24 hours) and could have been longer. The applicant stated that he did not report the sunburn to medical personnel because under army regulations sunburn was considered to be a self-inflicted wound, and he risked being charged with an offence. Under cross-examination he agreed that he told the VRB that on the three or four occasions he suffered from sunburn the pinkness lasted 24 hours or it could have been a bit longer. The applicant agreed further that when lodging a claim for pension on 17 May 2000 he answered No to the question: Has the veteran ever been sunburnt on service? He told the Tribunal that although he disclosed the sunburn, he ticked the No box because he had not reported the matter to medical personnel and there was no medical record of sunburn. He also agreed that he had not mentioned blisters when he appeared before the VRB or when he applied for pension, and explained that he was not questioned about it at the VRB hearing. In a written report dated 4 January 2001 Mr B. Archer, surgeon, stated that on 4 April 2000 he removed a malignant melanoma from the applicant's lower back. Mr Archer said that: . . .Prolonged sun exposure and in particular blistering sunburns are certainly a major contributing factor to the development of malignant melanoma. I would therefore support the case that if Neil was exposed to sun without any sunscreens earlier in life such as his service in the Vietnam war then this may certainly be a contributing factor to the development of his melanoma.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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