DECISION AND REASONS FOR DECISION [2002] AATA 702
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/506
VETERANS' APPEALS DIVISION )
Re TERRENCE EDWARD BURGESS
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms G Ettinger Senior Member
Date19 August 2002
PlaceSydney
Decision The Tribunal affirms the decision under review of the Veterans' Review Board of 29 February 2000 which affirmed the decision of the Repatriation Commission of 10 August 1998 to find that the Post Traumatic Stress Disorder ("PTSD") as claimed by Mr Terrence Edward Burgess the Applicant in these proceedings was not war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.
[SGD] Ms G Ettinger
Senior Member
catchwords
Veteran - operational service – whether PTSD – history of alcohol abuse pre-service - exploding of scare charges aboard HMAS Sydney – whether Veteran suffers from PTSD - whether stressor met – tests for PTSD and stressor not met – decision affirmed
legislation
Veterans' Entitlements Act 1986 ss 9, 13(1), 120A, 120(1), 120(3)
Repatriation Medical Authority Statement of Principle Instrument No.15 of 1994 Concerning Post Traumatic Stress Disorder (as amended by Instrument No. 225 of 1995)
Repatriation Medical Authority Statement of Principle Instrument No.5 of 1994 Concerning Psychoactive Substance Abuse or Dependence
American Psychiatric Association 1995 Diagnostic and Statistical Manual of Mental Disorders, 4th edition, Washington DC
case law
Repatriation Commission v Budworth (2001) 66 ALD 285
Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Deledio (1998) 83 FCR 82
Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 34 AAR 270
ReBenjamin and Repatriation Commission [2000] AATA 680; (2000) 61 ALD 565
Repatriation Commission v Binding [1999] FCA 974
Binding v Repatriation Commission (AAT 12886, 15 May 1998)
Re Cranage and Repatriation Commission (2000) 63 ALD 312
Re Mulvany and Repatriation Commission [2000] AATA 535; (2000) 59 ALD 602
Powell v Repatriation Commission [2000] AATA 385
Davenport v Repatriation Commission (Federal Court, 5 August 1997, 918/97)
Repatriation Commission v Cooke (1998) 90 FCR 307
Jehn v Repatriation Commission [2000] AATA 484
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Keeley (2000) 98 FCR 108
REASONS FOR DECISION
19 August 2002 Ms G Ettinger - Senior Member
The decision under review before the Administrative Appeals Tribunal ("the Tribunal") was the decision of the Veterans' Review Board of 29 February 2000 (T22) which affirmed the decision of the Repatriation Commission of 10 August 1998 (T18) to find that the Post Traumatic Stress Disorder ("PTSD") as claimed by Mr Terrence Edward Burgess the Applicant in these proceedings was not war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986 ("the Act").
The Applicant was represented by Mr N Dawson of counsel and the Respondent Repatriation Commission by its advocate Mr S Modder. The hearing in 2001 was adjourned at the request of the parties and my agreement, to await the decision of the Full Court of the Federal Court in Repatriation Commission v…
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CaseChat Overview and Summary
The primary legal issue before the court was whether Mr Burgess's PTSD was caused by his war service. The court examined the medical evidence and determined that Mr Burgess's PTSD was not war-caused. Dr Pusic diagnosed Mr Burgess with PTSD, but Dr Lucire disagreed, attributing Mr Burgess's symptoms to alcohol abuse. The court found that the stressor for Mr Burgess's PTSD did not meet the criteria for a war-caused condition as outlined in the Repatriation Medical Authority's Standard Operating Procedures. The court also considered Mr Burgess's history of alcohol abuse, which predated his military service, and noted that it had likely contributed to his PTSD symptoms. Ultimately, the court concluded that the stressor for Mr Burgess's PTSD was not met, and therefore, his condition was not war-caused.
The court affirmed the decision of the Repatriation Commission to reject Mr Burgess's claim for a war-caused condition of PTSD. The court found that the medical evidence did not support a diagnosis of war-caused PTSD, and that Mr Burgess's alcohol abuse had likely contributed to his symptoms. The court emphasised the importance of applying the correct legal tests and medical criteria in determining whether a veteran's condition is war-caused. The decision highlights the need for thorough medical evidence and careful consideration of a veteran's history and circumstances in making a determination under the Veterans' Entitlements Act 1986.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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