Wright and Repatriation Commission - [2004] AATA 803

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 803
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/609

VETERANS' APPEALS DIVISION )

Re KEVIN WRIGHT

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr J D Campbell, Member
Date2 August 2004
PlaceSydney

Decision
The Tribunal determines that:

(1) the decision of the Veterans’ Review Board dated 7 March 2003 is set aside and in substitution thereof the Tribunal determines that the disease of chronic pancreatitis is war-caused with date of effect being 19 January 2002;

(2) the decision of the Repatriation Commission dated 22 October 2002 is varied as follows:

(a) the diagnosis of the psychiatric disorder is alcohol dependence and drug dependence (marijuana); and

(b) the diagnosis of post-traumatic stress disorder is deleted; and

(c) that the disease/injuries of alcohol dependence, drug dependence (marijuana), diabetes mellitus are war-caused with date of effect being 26 January 2002; and

(3) the remainder of the decision of the Repatriation Commission of 22 October 2002 is affirmed and this includes the diagnosis of the Applicant's non war-caused diseases/injuries and the payment of the Applicant's disability pension at 100 per cent of the General Rate.

[Sgd] Dr J D Campbell
Member

CATCHWORDS
VETERANS' ENTITLEMENTS - diagnosis of conditions claimed - clinical onset - entitlement - assessment - special rate - remunerative work
Veterans' Entitlements Act 1986, sections 14, 19, 24, 28, 120
Lee v Repatriation Commission [2002] FCAFC 398
Woodward v Repatriation Commission [2003] FCAFC 10
Banovich v Repatriation Commission (1986) 9 FLN 223
Forbes v Repatriation Commission (2000) 171 ALR 131
Flentjar v Repatriation Commission (1997) 48 ALD 1
REASONS FOR DECISION

2 August 2004   Dr J D Campbell, Member

1.      In this matter, Mr Kevin Wright (“the Applicant”) seeks a review of the following decisions:
(a)      The decision made by the Veterans’ Review Board (“VRB”) dated 31 March 2003 to amend the diagnosis of the Applicant’s abdominal condition from acute pancreatitis, as determined by the Repatriation Commission (“the Respondent”) in a decision dated 10 August 2001, to chronic pancreatitis and having so done conclude that the disease was not war-caused;
(b)     The decision of the Respondent dated 22 October 2002 that determined the following diseases/injuries are not war-caused:
·post-traumatic stress disorder
·drug dependence/drug abuse
·diabetes mellitus
·carpal tunnel syndrome of both wrists
·cervical spondylosis
·bilateral conductive hearing loss
·alcohol dependence/alcohol abuse;

(c) The decision of the Respondent dated 22 October 2002 to maintain the Applicant’s disability pension at 100 per cent of the General Rate.

2. The Applicant was born on 13 January 1949 at Toowoomba, Queensland. He served in the Navy from 5 January 1965 until 29 November 1973, with two periods of operational service from 24 April 1966 to 18 May 1966 and from 24 May 1966 to 11 June 1966, and one major period of absence without leave from 6 October 1971 until 16 November 1973.
3. The Applicant lodged a claim on 19 January 2000 for the conditions of post-traumatic stress disorder, alcohol abuse, drug dependence or…

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 Wright and Repatriation Commission

Details

AGLC: Wright and Repatriation Commission [2004] AATA 803
Case: [2004] AATA 803
Decision Date: 2 August 2004

CaseChat Overview and Summary

In this matter, the Applicant, Wright, sought a review of a decision by the Veterans’ Review Board and the Repatriation Commission concerning the determination of war-caused diseases and injuries for which he was entitled to pensions and benefits. The dispute centred on the nature, cause, and onset of specific medical conditions claimed by the Applicant. The case was heard by the Tribunal under the Veterans' Entitlements Act 1986.

The primary legal issues that the Tribunal had to address included whether certain diseases and disorders claimed by the Applicant were indeed war-caused, and if so, the correct dates for the onset of these conditions. The Tribunal was tasked with evaluating the evidence presented by the Applicant and the relevant statutory provisions, including sections 14, 19, 24, 28, and 120 of the Act, to determine the appropriate diagnoses and their associated dates of clinical onset. The Tribunal also needed to consider whether the Applicant was entitled to special rates of pension based on the nature and severity of his conditions.

The Tribunal carefully reviewed the evidence and found that the Applicant's claim regarding chronic pancreatitis was substantiated and was determined to be war-caused, effective from 19 January 2002. The Tribunal varied the Repatriation Commission's decision by correcting the diagnosis of psychiatric disorders and deleting the diagnosis of post-traumatic stress disorder. The Tribunal affirmed the Repatriation Commission's findings on other non-war-caused diseases and injuries and upheld the payment of disability pension at 100 per cent of the General Rate. The Tribunal set aside the Veterans’ Review Board's decision and substituted its own determination, providing clarity on the specific conditions and their effective dates.

The Tribunal's final orders included setting aside the Veterans’ Review Board's decision and substituting its own, affirming certain aspects of the Repatriation Commission's decision, and varying other parts to correctly reflect the Applicant's war-caused conditions and their effective dates.

Orders

Orders of the court

The Tribunal determines that:

(1) the decision of the Veterans’ Review Board dated 7 March 2003 is set aside and in substitution thereof the Tribunal determines that the disease of chronic pancreatitis is war-caused with date of effect being 19 January 2002;

(2) the decision of the Repatriation Commission dated 22 October 2002 is varied as follows:

(a) the diagnosis of the psychiatric disorder is alcohol dependence and drug dependence (marijuana); and

(b) the diagnosis of post-traumatic stress disorder is deleted; and

(c) that the disease/injuries of alcohol dependence, drug dependence (marijuana), diabetes mellitus are war-caused with date of effect being 26 January 2002; and

(3) the remainder of the decision of the Repatriation Commission of 22 October 2002 is affirmed and this includes the diagnosis of the Applicant's non war-caused diseases/injuries and the payment of the Applicant's disability pension at 100 per cent of the General Rate.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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