William Henry Walker and Repatriation Commission - [2012] AATA 630

William Walker served in the Australian Army (Army) from 23 April 1942 to 7 December 1943 and in the Royal Australian Air Force (RAAF) from 8 December 1943 to 4 October 1945. His service constitutes operational service under the Veterans' Entitlements Act 1986 (the Act).

Mr Walker is in receipt of a disability pension at 90 per cent of the general rate as a result of the following war-caused medical conditions: sensorineural hearing loss, tinnitus and chronic obstructive airways disease. On 12 November 2010 he lodged a claim for incapacity from lumbar spondylosis (diagnosed as lumbar spondylosis with spinal canal stenosis and spondylolisthesis L5-S1). His claim was refused by the respondent and the Veterans' Review Board (VRB). Mr Walker is seeking review of the decision.

LEGAL FRAMEWORK

Section 9 of the Act provides that where an injury or disease results from an occurrence that happened while the veteran was rendering operational service or where it arose out of, or was attributable to that service, the injury or disease will be taken as being war-caused. Causation questions such as these, where a veteran has rendered operational service, are addressed by applying the standard of proof in s 120(1) and s 120(3) of the Act. That requires decision-makers to determine that an injury or disease is war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.

In the circumstances of this case, where Mr Walker has rendered operational service, the issue of whether the diagnosed condition was caused by operational service is to be decided by reference to the four-step process identified by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98:

1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP [Statement of Principles] determined by…

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.

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Details

AGLC: William Henry Walker and Repatriation Commission [2012] AATA 630
Case: [2012] AATA 630
Decision Date: 20 September 2012

CaseChat Overview and Summary

William Henry Walker, a former serviceman, appealed against the decision of the Repatriation Commission and the Veterans' Review Board, which had denied his claim for incapacity benefits relating to lumbar spondylosis with spinal canal stenosis and spondylolisthesis L5-S1. The Veterans' Appeals Division of the Administrative Appeals Tribunal heard the appeal. The central issue was whether Mr Walker's lumbar spondylosis was war-caused, requiring the Tribunal to apply the four-step process set out in Repatriation Commission v Deledio (1998) 83 FCR 82. The Tribunal considered the material before it and determined that while the evidence presented a hypothesis connecting the condition with Mr Walker's service, it did not fit the template of the applicable Statement of Principles and was not reasonable. Consequently, the Tribunal concluded that Mr Walker's condition was not war-caused, affirming the original decision of the Repatriation Commission.

The Tribunal found that Mr Walker's account of the onset of his lumbar spondylosis, which he attributed to the physical strain of entering and exiting aircraft during his service, was inconsistent with the medical records and other evidence. The contemporaneous medical records from his service did not mention any lumbar spine issues, and the evidence suggested that the pain he experienced was more likely related to a pilonidal cyst in the coccyx area. Medical experts' opinions also supported the conclusion that Mr Walker's current back symptoms were secondary to degenerative conditions rather than war-induced trauma. Given these findings, the Tribunal determined beyond reasonable doubt that Mr Walker's lumbar spondylosis was not war-caused, and thus his claim for incapacity benefits was denied.

Orders