Whitbourne and Repatriation Commission - [2001] AATA 7

DECISION AND REASONS FOR DECISION [2001] AATA 7

ADMINISTRATIVE APPEALS TRIBUNAL )

)No N1998/1135

VETERANS' APPEALS DIVISION          )
           Re      GREGORY KENNETH WHITBOURNE
  Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal The Hon Mr R N J Purvis, QC, Deputy President

Date10 January 2001
PlaceSydney

Decision      The Tribunal determines: 1. that by consent that part of the decision under review as relates to osteoarthrosis of both knees is affirmed; and 2. that that part of the decision under review as it relates to post traumatic stress disorder, anxiety, chronic airflow limitation or respiratory incapacity and thoraco lumbar spondylosis be affirmed.
  …………………………….
  R N J Purvis
  Deputy President

catchwords
VETERANS' AFFAIRS – disability pension – osteoarthritis – lumbar spondylosis – whether hypothesis connection injury with service – whether Statement of principles in existence – whether hypothesis is reasonable – whether satisfaction beyond reasonable doubt as to the capacity not arising from war-caused injury
Veterans' Entitlements Act 1986
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gosewinckel [1999] FCA 1273
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Re Sandiford and Repatriation Commission (1998) 27 AAR 210
Re Barrett and Repatriation Commission (1999) 29 AAR 542

REASONS FOR DECISION

The Application:

This is an application for review of a decision made by a delegate of the Repatriation Commission ("the Respondent") on 12 December 1997, refusing a pension claim made by Mr Gregory Kenneth Whitbourne ("the Applicant") in respect of osteoarthrosis of both knees and lumbar spondylosis. A claim in respect of post-traumatic stress disorder, anxiety and chronic airflow limitation was refused, as they were not able to be confirmed. A claim in respect of prickly heat was accepted effective from 4 March 1997. The Veterans' Review Board on 15 July 1998 affirmed the Respondent's decision.
In its decision of 12 December 1997 the Respondent stated that:
"…
Post Traumatic Stress Disorder, Anxiety
Investigation of Post Traumatic Stress Disorder, Anxiety has shown that the condition is not present nor is any other medical condition that would answer the claim for this condition. The claim for post traumatic stress disorder, Anxiety is therefore refused.
Chronic Airflow Limitation
Investigation of Chronic Airflow Limitation has shown that the condition is not present nor is any other medical condition that would answer the claim for this condition. The claim for Chronic Airflow Limitation is therefore refused.
Osteoarthritis of both knees
Your contention
In your claim you have contended that osteoarthritis of both knees was due to heavy lifting and bending unaided whilst serving in Vietnam.

Trauma to a joint
In this case there is no history of trauma in the area of the left knee.
Prisoner of war
There was no service as a prisoner of war.
Other factors
The evidence before me indicates that the other factors that can contribute to osteoarthritis of both knees, contained in the Statement of Principles, do not apply in this case.
The circumstances of this case do not satisfy…

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 Whitbourne and Repatriation Commission

Details

AGLC: Whitbourne and Repatriation Commission [2001] AATA 7
Case: [2001] AATA 7
Decision Date: 10 January 2001

CaseChat Overview and Summary

The dispute in Whitbourne and Repatriation Commission involved the determination of a disability pension for the Applicant, who claimed war-related osteoarthritis and lumbar spondylosis. The Repatriation Commission, acting as the respondent, contested the Applicant's claims. The case was adjudicated by the Administrative Appeals Tribunal (AAT). The central legal issues the court had to decide involved whether there was a hypothesis connecting the Applicant's conditions with his war service, whether the relevant Statement of Principles (SoP) was in existence, and whether the hypothesis was reasonable and satisfied the requirement of proof beyond reasonable doubt.

The AAT assessed the evidence presented and concluded that a hypothesis linking the Applicant's spondylosis condition with his war service was indeed raised. However, it found that the hypothesis did not meet the necessary criteria outlined in the relevant SoP. Consequently, the AAT determined that the Applicant's spondylosis was not attributable to his war service. The Tribunal also affirmed the decision concerning other conditions, such as osteoarthritis of both knees, post-traumatic stress disorder, anxiety, chronic airflow limitation or respiratory incapacity, and thoraco-lumbar spondylosis.

In reaching its decision, the AAT applied the principles relevant to determining the connection between the Applicant's conditions and his war service. The Tribunal found that the evidence supported the Commission's decision that the Applicant's conditions were not war-caused, and thus upheld the decision under review. The reasoning hinged on the application of the relevant legal framework and the SoP, ensuring that the Applicant's claims were thoroughly assessed against the established criteria.

The final orders of the Tribunal affirmed the Repatriation Commission's decision concerning the Applicant's conditions, confirming that the Applicant's claims for disability pension in relation to certain conditions were not substantiated by the evidence presented.

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 Tribunal, on the basis of the evidence placed before it, is satisfied that a hypothesis connecting the spondylosis condition presently experienced by the Applicant with war service was raised. There is in existence a relevant SoP but the hypothesis raised does not contain one or more of the factors required to exist as a pre-requisite to the condition satisfying the SoP. The Tribunal is satisfied that the Applicant's spondylosis condition was, within the meaning of the principles earlier detailed, not war-caused.Decision The Tribunal has earlier in these reasons considered the evidence placed before it referable to each of the relevant three conditions presently experienced by the Applicant. It has considered the material in the light of the principles relevant to a determination of the issues earlier identified and is satisfied that the decision under review as to each of such conditions should be affirmed. The Tribunal thus determines:1.that by consent that part of the decision under review as relates to osteoarthrosis of both knees is affirmed; and2.that part of the decision under review as it relates to post traumatic stress disorder, anxiety, chronic airflow limitation or respiratory incapacity and thoraco lumbar spondylosis is affirmed.

Ratio Decidendi

Legal Principle Established

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