Watkins and Repatriation Commission - [2004] AATA 542

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 542
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/58
VETERANS’ APPEALS DIVISION

Re: DIANNE FAY WATKINS
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION
Tribunal:       G.D. Friedman, Member
Date:             28 May 2004
Place:            Melbourne
Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
Member

VETERANS’ AFFAIRS ‑ widow's entitlement ‑ pension at special rate ‑ post traumatic stress disorder ‑ carcinoma of oesophagus ‑ whether substantial cause of inability to work
Veterans’ Entitlements Act 1986 s 24, 119
Cavell v Repatriation Commission (1988) 9 AAR 534
Flentjar v Repatriation Commission (1997) 48 ALD 1
Fox v Repatriation Commission (1997) 45 ALD 317
Repatriation Commission v Hendy [2002] FCAFC 424
Smith v Repatriation Commission (1999) 58 ALD 158
REASONS FOR DECISION
28 May 2004  G. D. Friedman, Member
1.      This is an application by Dianne Fay Watkins (the applicant), widow of Arthur William Watkins (the veteran), for review of a decision of the Veterans’ Review Board (VRB) dated 25 November 2002. The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 20 June 2001 to assess the veteran’s disability pension at 100 per cent of the general rate.
2.      At the hearing of this matter on 12 May 2004 Mr D. De Marchi, solicitor, represented the applicant and Mr K. Herman, an advocate with the Department of Veterans’ Affairs, represented the respondent.
3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T17), three exhibits (Exhibits A1‑A3) lodged by the applicant and four exhibits (Exhibits R1‑R4) lodged by the respondent.
4.      The issue before the Tribunal was whether the applicant is entitled to pension at the special rate.
BACKGROUND
5.      The veteran was born on Woodlark (Muyua) Island in Papua, now Papua New Guinea, on 3 June 1944. He left school at the age of fifteen and worked for a steamship company and the Commonwealth Department of Works before joining the Australian Army (the army) on 10 August 1964. He served in Malaysia and Vietnam and his service includes operational service under the Veterans’ Entitlements Act 1986 (the Act).
6.      After his discharge on 14 August 1984 the veteran worked as a machine operator before obtaining employment as a farm hand with a lawn farm. After several years he commenced work as a farm hand with a horse trainer and remained there for about ten years before ceasing in about 1999. He then did voluntary work on a part‑time basis. The veteran developed cancer of the oesophagus in about 2000 and died on 28 October 2003.
7.      The veteran suffered from the following disabilities, for which the respondent had previously accepted liability: essential hypertension; allergic conjunctivitis; depressive disorder; bilateral sensorineural hearing loss; psychoactive substance abuse or dependence; malignant neoplasm of the oesophagus; post traumatic stress disorder (PTSD); and CA oesophagus with bilateral lung and chest wall metastases. The veteran also suffered from the following disabilities, for which the respondent did not…

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 Watkins and Repatriation Commission

Details

AGLC: Watkins and Repatriation Commission [2004] AATA 542
Case: [2004] AATA 542
Decision Date: 28 May 2004

CaseChat Overview and Summary

Dianne Fay Watkins, the widow of Arthur William Watkins, appealed a decision by the Veterans’ Review Board affirming a decision of the Repatriation Commission to assess the veteran's disability pension at 100 per cent of the general rate. The central issue before the Tribunal was whether the applicant was entitled to a pension at the special rate due to the veteran's post-traumatic stress disorder (PTSD) and carcinoma of the oesophagus.

The Tribunal found that the veteran met the criteria under sections 24(1)(a) and (b) of the Veterans’ Entitlements Act 1986. However, the Tribunal determined that the applicant did not satisfy the criteria under sections 24(1)(c) and 24(2)(b) of the Act. The substantial cause of the veteran's inability to obtain remunerative work was not solely due to the war-caused disabilities accepted by the Commission but was also significantly influenced by his non-accepted conditions, particularly his shoulder injuries. The medical evidence presented by several experts underscored the impact of these non-accepted conditions on the veteran's ability to work. The Tribunal concluded that the veteran's non-accepted conditions, such as shoulder injuries and other musculoskeletal issues, played a critical role in his inability to secure and maintain remunerative employment.

The Tribunal's decision was influenced by the requirement to make a practical decision based on all available evidence. The compelling medical evidence indicated that the veteran's non-accepted conditions, rather than his accepted disabilities, were the substantial cause of his inability to obtain work. Furthermore, the Tribunal found that the veteran had not been genuinely seeking to engage in remunerative work as required by section 24(2)(b) of the Act.

ORDERS
The Tribunal affirmed the decision under review, upholding the Repatriation Commission's assessment of the veteran's disability pension at 100 per cent of the general rate.

Orders