Weir and Repatriation Commission - [2002] AATA 1149

DECISION AND REASONS FOR DECISION [2002] AATA 1149

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/184
) No N2001/1249

VETERANS' APPEALS DIVISION          )
           Re      PETER MICHAEL WEIR
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Dr J D Campbell, Member Mr S Webb, Member

Date7 November 2002
PlaceSydney

Decision      The tribunal affirms the decision of the respondent dated 20 June 2000 as affirmed by the VRB on 25 July 2001 to refuse Mr Weir's claims in respect of lumbar spondylosis and intervertebral disc prolapse at L5-S1. The tribunal sets aside the decision of the respondent dated 3 December 1998 as affirmed by the VRB on 20 October 1999 and decides instead that the applicant has qualified for payment at the intermediate rate with effect from 3 July 1998.
  ..............................................
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – Disability Pension – lumbar spondylosis and intervertebral disc prolapse held not war-caused diseases – clinical worsening – aggravation – special rate pension refused – veteran able to work for 8 or more hours a week despite accepted disabilities- veteran unable to work 20 or more hours a week because of accepted disabilities – intermediate rate payable – veteran unable to continue remunerative employment because of accepted disabilities alone

Veterans' Entitlements Act 1986 ss 7(1)(a), 9(1)(e)(ii), (6), 19(6), 23(1), (2), (3), 24(1), (2), 28, 120(1), (3), (4), 157(2)(a)(ii), 177(2)(a)

Statement of Principles 130/96 as amended by 92/97 concerning intervertebral disc prolapse
Statement of Principles 46/2002 concerning lumbar spondylosis

Deledio, Repatriation Commission v (1998) 49 ALD 193
Gorton, Repatriation Commission v (2001) 33 AAR 370
Hendy v Repatriation Commission [2002] FCA 602
Smith, Repatriation Commission v (1987) 74 ALR 537
Williams, Repatriation Commission v [2001] FCA 1195
Yates, Repatriation Commission v (1995) 38 ALD 80

REASONS FOR DECISION

7 November 2002 Mr M J Sassella, Senior Member Dr J D Campbell, Member Mr S Webb, Member

THE APPLICATION

Application N2000/184 is an application to the Administrative Appeals Tribunal ("the tribunal") by Peter Michael Weir ("the applicant", "the veteran") for review of a decision of the Repatriation Commission ("the respondent") dated 3 December 1998 (T16) as affirmed by the Veterans' Review Board ("the VRB") on 20 October 1999 (T22). The decision was that the appropriate rate of Disability Pension was 100% of the general rate despite the acceptance of ischaemic heart disease as a war-caused disease in addition to bilateral sensori-neural hearing loss with tinnitus, solar skin damage/malignant neoplasm of the skin and chronic bronchitis and emphysema (ex TD1/1).
Application N2001/1249 is an application to the tribunal by the applicant for review of two decisions of the respondent, one dated 20 October 1999 already before the tribunal in application N2000/184 and the other dated 20 June 2000 (ST3) as affirmed by the VRB on 25 July 2001 (ST9). The decision was to reject the applicant's claim for Disability Pension in respect of lumbar spondylosis and intervertebral disc prolapse at L5-S1.
The issues before the tribunal were, therefore, whether Mr Weir's claim in…

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 Weir and Repatriation Commission

Details

AGLC: Weir and Repatriation Commission [2002] AATA 1149
Case: [2002] AATA 1149
Decision Date: 7 November 2002

CaseChat Overview and Summary

The case before the tribunal involved Mr Weir, who was seeking to have his lumbar spondylosis and intervertebral disc prolapse recognised as war-caused diseases to qualify for a special rate pension. The Repatriation Commission had previously denied these claims, and Mr Weir appealed this decision. The tribunal had to determine whether these conditions were indeed caused by his service and, if not, whether he qualified for the intermediate rate pension instead.

The central legal issues in this case were whether the veteran's lumbar spondylosis and intervertebral disc prolapse were war-caused diseases, and if not, whether he qualified for the intermediate rate pension under the Veterans' Entitlements Act. The tribunal also needed to assess Mr Weir's capacity to work, considering his disabilities, to determine the appropriate pension rate.

The tribunal found that Mr Weir's lumbar spondylosis and intervertebral disc prolapse were not war-caused diseases, affirming the Commission's earlier decisions. However, it was noted that Mr Weir could work for eight or more hours a day, but not 20 or more hours a week due to his disabilities. Based on these findings, the tribunal concluded that Mr Weir qualified for an intermediate rate pension from 3 July 1998. This decision was based on the veteran's inability to sustain remunerative employment for a full working week due to his accepted disabilities, even though these conditions were not war-caused.

The tribunal set aside the earlier decisions that had denied Mr Weir's claims and affirmed the decision to refuse special rate pension for his conditions. It ordered that Mr Weir was to receive his pension at the intermediate rate from 3 July 1998. The decision was certified as a true copy of the reasons for the tribunal's decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The result of the tribunal's findings is that Mr Weir has qualified for payment of his pension at the intermediate rate since 3 July 1998, however that is not because his lumbar spinal conditions have been accepted as war-caused. They have not been so accepted.DECISION The tribunal affirms the decision of the respondent dated 20 June 2000 as affirmed by the VRB on 25 July 2001 to refuse Mr Weir's claims in respect of lumbar spondylosis and intervertebral disc prolapse at L5-S1. The tribunal sets aside the decision of the respondent dated 3 December 1998 as affirmed by the VRB on 20 October 1999 and decides instead that the applicant has qualified for payment at the intermediate rate with effect from 3 July 1998.I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member, Dr J D Campbell, Member and Mr S Webb, MemberSigned: ..................................................................................... AssociateDate of hearing 2 August 2002 Date of decision 7 November 2002Counsel for the applicant Mr M Vincent Solicitor for the applicant Dibbs Barker Gosling Lawyers Advocate for the respondent Ms P Hook, DVA Advocacy Service

Ratio Decidendi

Legal Principle Established

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