Wilson and Repatriation Commission

[2007] AATA 1274

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1274

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/96

VETERANS' APPEALS  DIVISION		)
Re		DAVID JOHN WILSON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr KS Levy RFD, Senior Member
Associate Professor JB Morley RFD, Member

Date1 May 2007

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

.................[Sgd].............................

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – RAAF defence service – Statement of Principles – rotator cuff syndrome – date of clinical onset – divergent medical evidence – decision affirmed

Administrative Appeals Tribunal Act 1975 (Cth) ss 29, 37
Veterans’ Entitlements Act 1986 (Cth) ss 70, 120

Statement of Principles Instrument No 84 of 1997

Statement of Principles Instrument No 40 of 2006

Repatriation Commission v Gorton (2001) 110 FCR 321
Hillier and Repatriation Commission [2004] AATA 897
Benjamin v Repatriation Commission (2001) 70 ALD 622
Robertson and Repatriation Commission (1998) 50 ALD 668
Re Sandiford and Repatriation Commission (1998) 27 AAR 210
Lees v Repatriation Commission (2002) 125 FCR 331

REASONS FOR DECISION

1 May 2007	Dr KS Levy RFD, Senior Member Assoc Prof BJ Morley RFD, Member
Introduction

1. The applicant has claimed a service pension as a result of a condition of bi-lateral rotator cuff syndrome which the applicant claims is due to his service in the Royal Australian Air Force (RAAF). The application was rejected by the Repatriation Commission on 13 August 2004. The applicant sought a review of that decision by the Veterans’ Review Board, which also rejected the applicant’s claim on 15 December 2005. The applicant now appeals that decision to this Tribunal under s 29(1) of the Administrative Appeals Tribunal Act 1975. The issue for determination by the Tribunal is whether the applicant satisfies the Statement of Principles (SoP) for rotator cuff syndrome, namely, Instrument No 84 of 1997 or the more recent SoP Instrument No 39 of 2006.  The Tribunal must determine the date of clinical onset of the applicant’s condition.

Background

2.      The applicant served in the RAAF from 11 August 1972 to 10 August 1992.  The period of eligible defence service for the purposes of the Veterans’ Entitlements Act 1986 (“the Act”) is 7 December 1972 to 10 August 1992. 

3.      The applicant was an engine fitter in the RAAF.  He had to perform duties associated with being an aircraft technician (engine fitter), which involved the repair and replacement of components of aircraft engine systems.  He worked in this role from 1973 to approximately mid 1990 at which time he was assigned to a computer project.  He remained in that capacity until his discharge on 10 August 1992. 

Legislation and Legislative Instruments

·Legislation

“Veterans’ Entitlements Act 1986

Sect 70 - Eligibility for pension under this Part

(1)  Where:

…

(b)  a member of the Forces or member of a Peacekeeping Force is incapacitated from a defence‑caused injury or a defence‑caused disease;

the Commonwealth is, subject to this Act, liable to pay:

…

(d)  in the case of the incapacity…