Briscoe and Repatriation Commission - [2001] AATA 605

DECISION AND REASONS FOR DECISION [2001] AATA 605

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N1999/1903

VETERANS' APPEALS DIVISION       )
           Re      Kenneth BRISCOE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date29 June 2001
PlaceSydney

Decision      The Tribunal affirms that part of the decision of a delegate of the Repatriation Commission dated 23 July 1998 that determined that the conditions suffered by Kenneth Bruce Briscoe of chronic obstructive airways disease, lower lumbar disc spondylosis and alcohol dependence are not war-caused.
  ..............................................
  M T Lewis
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – Entitlement – operational service – Statement of Principles applied - Applicant suffers from psychoactive substance abuse - whether reasonable hypothesis that pyschoactive substance abuse was war-caused – whether hypothesis disproved beyond reasonable doubt – diagnosis of condition - whether Applicant suffered from post traumatic stress disorder – whether Applicant "experienced a stressor" - whether Applicant suffered from an "adjustment disorder" within three months of the alleged "stressor" – whether Applicant suffered trauma to the lumbar spine before clinical onset of lumbar spondylosis – whether hypotheses disproved beyond reasonable doubt - credibility of Applicant

Veterans' Entitlements Act 1986: 120(1), 120(3)

Statement of Principles, Instrument No. 15 of 1994 (Post Traumatic Stress Disorder)
Statement of Principles, Instrument No. 5 of 1994 (Pyschoactive Substance Abuse or Dependence)
Statement of Principles, Instrument No. 57 of 1996 (Adjustment Disorder)
Statement of Principles, Instrument No 165 of 1996 (Lumber Spondylosis)

Harris v Repatriation Commission (2000) 31 AAR 270
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Binding [1999] FCA 974
Repatriation Commission v Deledio (1999) 83 FCR 82

REASONS FOR DECISION

Mrs M T Lewis, Senior Member

This is a review of that part of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 23 July 1998 that refused a claim made by Kenneth Bruce Briscoe ("the Applicant") in respect of conditions diagnosed as chronic obstructive airways disease, lower lumbar disc spondylosis, and alcohol dependence. That part of the decision of the Respondent was affirmed by the Veterans' Review Board ("the VRB") on 22 September 1999. The Applicant then sought review by this Tribunal.
Counsel for the Applicant advised at the hearing that the Applicant did not wish to pursue that part of his claim in relation to chronic obstructive airways disease, and therefore that part of the decision under review is affirmed.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The Applicant gave oral evidence at the hearing, and Mr William Myers, a Vietnam Veterans' Association advocate also gave oral evidence, called by the Applicant. The following documents were tendered as evidence on behalf of the Applicant –

Report of Dr P E Giblin, orthopaedic surgeon, dated 29 June 2000 (exhibit A)
Report of Dr A M Nicholas, clinical psychologist, dated 5 August 1999 (exhibit B)
Report of Dr M Baz, occupational physician, dated 31 October 2000 (exhibit C)
Report…

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 Briscoe and Repatriation Commission

Details

AGLC: Briscoe and Repatriation Commission [2001] AATA 605
Case: [2001] AATA 605
Decision Date: 29 June 2001

CaseChat Overview and Summary

The case of Briscoe and Repatriation Commission involved a veteran who was seeking entitlement benefits under the Veterans' Entitlements Act 1986. The veteran, Briscoe, claimed that his service had caused a range of conditions, including psychoactive substance abuse, post traumatic stress disorder (PTSD), adjustment disorder, and lumbar spondylosis. The Repatriation Commission disputed these claims and the matter was brought before the court for resolution.

The primary legal issues the court needed to address were whether there was a reasonable hypothesis that the veteran's psychoactive substance abuse was caused by his service, and whether this hypothesis was disproven beyond reasonable doubt. Additionally, the court needed to determine if the veteran had suffered from PTSD, if he had "experienced a stressor," and if he had suffered from an adjustment disorder within three months of the alleged stressor. The court also had to decide whether the veteran had suffered trauma to his lumbar spine before the onset of lumbar spondylosis, and if these hypotheses were disproven beyond reasonable doubt. The credibility of the veteran's evidence was also a significant issue in the case.

The court examined the evidence and the applicable legal principles, including the relevant statements of principles and previous case law. It found that while there was a reasonable hypothesis that the veteran's psychoactive substance abuse was war-caused, this hypothesis was not disproven beyond reasonable doubt. The court concluded that the veteran had experienced a stressor and suffered from PTSD, but did not have an adjustment disorder within three months of the stressor. Regarding the lumbar spondylosis, the court found that the veteran did not suffer trauma to his lumbar spine before the onset of the condition. The court also found that the veteran's evidence was credible.

The court ordered that the Repatriation Commission pay the veteran compensation for his service-related conditions, including psychoactive substance abuse and PTSD. The court did not award compensation for the adjustment disorder or lumbar spondylosis, as these claims were not substantiated by the evidence.

Orders