William Henry Walker and Repatriation Commission

Case [2012] AATA 630


[2012] AATA 630

Division VETERANS' APPEALS DIVISION

File Number

2012/0191

Re

William Henry Walker

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal G. D. Friedman, Senior Member
Date 20 September 2012
Place Melbourne

The Tribunal affirms the decision under review.

............................[sgd]............................................

G. D. Friedman, Senior Member

VETERANS' AFFAIRS – veterans’ entitlements – lumbar spondylosis and lumbar spondylolisthesis – entering and exiting aircraft – whether war-caused

Veterans' Entitlements Act 1986 ss 9, 119(1)(h), 120(1), 120(3)

Bushell v Repatriation Commission [1992] HCA 47

East v Repatriation Commission (1987) 16 FCR 517

Mason v Repatriation Commission [2000] FCA 1409

Repatriation Commission v Bey (1997) 79 FCR 364

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hill [2002] FCAFC 192

Repatriation Commission v Owens (1996) 70 ALJR 904

REASONS FOR DECISION

G. D. Friedman, Senior Member

20 September 2012

  1. 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).

  1. 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

  1. 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.

  1. 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…

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

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Background

Background to the litigation

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Evidence

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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