Brennan and Repatriation Commission - [2003] AATA 1046

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 1046
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/893
VETERANS' APPEALS DIVISION

Re: GREGORY ARTHUR BRENNAN
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION
Tribunal:       G.D. Friedman, Member
Date:             16 October 2003
Place:            Melbourne
Decision:      The Tribunal affirms the decision under review.
(sgd) G.D. Friedman
Member

VETERANS' AFFAIRS ‑ veterans’ entitlements ‑ anxiety disorder ‑ whether depressive illness ‑ back pain ‑ whether war‑caused
Veterans’ Entitlements Act 1986 s9, 120, 120A
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Hill (2003) 69 ALD 581
Woodward v Repatriation Commission [2003] FCAFC 160
REASONS FOR DECISION
16 October 2003  G.D. Friedman, Member
1.      This is an application by Gregory Arthur Brennan (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 3 July 2002. The VRB affirmed a decision of the Repatriation Commission (the respondent) dated 24 July 2001 to refuse the applicant's claim for pension for anxiety and depression because no diagnosable condition could be established. On 24 July 2001 the respondent accepted the applicant's localised osteoarthrosis of the right knee as war‑caused and assessed pension at 60 per cent of the general rate.
2.      At the hearing of this matter on 3 October 2003, Mr D. De Marchi, solicitor, represented the applicant and Mr K. Rudge, an advocate with the Department of Veterans' Affairs, represented the respondent.
3. The Tribunal received into evidence the documents filed under s37 of the Administrative Appeals Tribunal Act 1975 (T1‑T17), together with three exhibits (A1‑A3) tendered by the applicant and six exhibits (R1‑R6) tendered by the respondent.
BACKGROUND
4. The applicant was born on 13 March 1918. He completed first year of secondary school and worked in a number of labouring jobs before joining the militia in 1939. On 1 October 1941 he enlisted in the Australian Army and served in New Guinea and postings in Australia until his discharge on 8 January 1946. His service constitutes operational service for the purpose of s9 of the Veterans' Entitlements Act 1986 (the Act).
5.      After his discharge the applicant worked as a postman and then a tiptruck owner/driver for two or three years. He then spent eighteen months managing a hotel in New South Wales, before returning to Melbourne, where he worked for Australia Post for thirty years, until his retirement in 1983.
6.      On 25 June 2001 the applicant made an application to the respondent for pension and medical treatment for anxiety disorder & depression related to my accepted back condition, in relation to lumbar spondylosis (disc degeneration) that had been accepted on 28 April 1998 as being war‑caused. Following the decision of the VRB the applicant lodged an application with the Tribunal on 22 August 2002 for review of the decision.
EVIDENCE
7.      In oral evidence the applicant said that he served in the artillery and was a Bombardier in the 9^th Field Regiment. He explained that during service in New South…

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 Brennan and Repatriation Commission

Details

AGLC: Brennan and Repatriation Commission [2003] AATA 1046
Case: [2003] AATA 1046
Decision Date: 16 October 2003

CaseChat Overview and Summary

The case involves Gregory Arthur Brennan, who applied for review of a decision by the Veterans' Review Board, affirming a decision by the Repatriation Commission to refuse his claim for pension for anxiety and depression, as no diagnosable condition could be established. The Tribunal was required to determine whether the applicant's anxiety and depressive disorders were war-caused, and whether they arose out of or were attributable to his eligible war service. The key issue was whether the evidence provided a reasonable hypothesis connecting the applicant's conditions to his war service, in accordance with the Veterans' Entitlements Act 1986.

The Tribunal found that while the applicant did suffer from a generalised anxiety disorder, the evidence did not support a diagnosis of depressive disorder. The Tribunal also found that the applicant's back condition, which was accepted as war-caused, did not meet the definition of a major illness or injury under the relevant Statements of Principle, as it did not cause continuous or almost continuous pain or was life-threatening or seriously disabling. Furthermore, the Tribunal did not find any severe psychosocial stressors related to the applicant's service that could connect his conditions to his war service. As a result, the Tribunal concluded that the hypotheses connecting the applicant's conditions to his service were not reasonable, and therefore, the claim must fail.

The Tribunal affirmed the decision under review, refusing the applicant's claim for pension for anxiety and depression.

Orders