Burling and Repatriation Commission

Case [2002] AATA 448

DECISION AND REASONS FOR DECISION [2002] AATA 448

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2000/1166

VETERANS' APPEALS  DIVISION       )          
           Re      Russell David Burling     
  Applicant
           And    Repatriation Commission          
  Respondent

DECISION

Tribunal       Ms SM Bullock, Senior Member  Dr P D Lynch, Member      

Date13 June 2002

PlaceSydney

Decision      The Decision under review is set aside and in substitution therefor, the Tribunal decides pursuant to Section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) that:

a.The conditions of post traumatic stress disorder and cervical spondylosis are war-caused.

b.Disability Pension is payable at 80 per cent of the General Rate with effect from 10 December 1998.

..............................................
  Ms SM Bullock
  Presiding Member
CATCHWORDS
 VETERANS' AFFAIRS – Entitlement – Disability Pension – Operational Service – Reasonable Hypothesis – Cervical Spondylosis – Post Traumatic Stress Disorder – Assessment – Special Rate
LEGISLATION
Veterans' Entitlements Act 1986 (Cth) ss 5D, 9, 13, 70, 119, 120, 120A
AUTHORITIES
Deledio v Repatriation Commission (1997) 47 ALD 261
Arnott v Repatriation Commission  (2001) 106 FCR 83
Cook v Repatriation Commission (2000) 106 FCR 448
Harris v Repatriation Commission (2000) 62 ALD 161
Connors v Repatriation Commission (2000) 59 ALD 61
Wedderspoon v Minister of Pensions [1947] KB 562
Holthouse v Repatriation Commission (1982)1 RPD 287
Re Penhall and Repatriation Commission (1992) 28 ALD 261
Repatriation Commission v Budworth (2001) 66 ALD 285
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Benjamin v Repatriation Commission (2001) 64 ALD 411
Forbes v Repatriation Commission (2000) 101 FCR 50
Dixon v Repatriation Commission (1999) 59 ALD 315
Cavell v Repatriation Commission (1988) 9 AAR 534
Repatriation Commission v Bey (1997) 79 FCR 364
Browne v Dunn (1893) 6 R 67

REASONS FOR DECISION

13 June 2002  Ms S M Bullock, Senior Member
  Dr P D Lynch, Member

  1. This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") made by the Applicant, Mr Russel David Burling, of a decision of the Veterans' Review Board ("the Board") made on 31 May 2000 (T23) which affirmed a decision of the Repatriation Commission made on 30 August 1999 (T2) which refused a claim for cervical spondylosis, irritable bowel syndrome and post traumatic stress disorder.  Mr Burling withdrew his application for review to the Board in relation to the conditions of migraine and tension headaches.  Mr Burling then withdrew his application for review to the Tribunal in relation to the condition of irritable bowel syndrome in a written request dated 23 October 2001.

  2. A hearing was held in Sydney on 22 and 23 October 2001. Mr Burling provided oral evidence as did his wife, Mrs C Burling, Dr A Dinnen, Consultant Psychiatrist, and Dr W Shand, Consultant Psychiatrist. Mr Burling was represented by Mr N Dawson of Counsel and the Respondent, the Repatriation Commission, was represented by Ms S Breuer, Departmental Advocate. Documents were lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents", T1-T31) and the following exhibits:

Exhibit No.   Description  Date  
A1      Applicant's Statement        Undated        
A2      Report…

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AGLC
Burling and Repatriation Commission [2002] AATA 448
Case
[2002] AATA 448
Decision Date

CaseChat Overview and Summary

The case before the court involved a claim by Mr Burling for a disability pension, with the Repatriation Commission being the respondent. The dispute centred around the conditions of Mr Burling's pension, specifically the entitlement to a special rate for certain disabilities sustained during his operational service. The court had to determine whether Mr Burling's cervical spondylosis and post-traumatic stress disorder qualified for the special rate under the relevant legislation.

The primary legal issue was whether the evidence presented by Mr Burling and his wife Cheryl sufficiently established that his conditions were attributable to his operational service, thus justifying a special rate. The court needed to assess whether the connection between Mr Burling's service and his current health conditions was supported by a reasonable hypothesis. This involved scrutinising the evidence regarding Mr Burling's alcohol consumption patterns before, during, and after his service in Vietnam, as well as the impact of these patterns on his health and mental state.

The court considered the testimony of Mr Burling and his wife Cheryl, along with the medical evidence. It found that Mr Burling's claims of heavy alcohol consumption during his service and the subsequent reliance on alcohol to cope with post-service stress were credible. The court accepted that his conditions, including cervical spondylosis and post-traumatic stress disorder, were reasonably attributable to his operational service. Consequently, the court ruled in favour of Mr Burling, determining that he was entitled to the special rate for his disability pension.

The court ordered that Mr Burling be paid the special rate for his disability pension, reflecting the findings that his conditions were reasonably attributable to his operational service.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In terms of alcohol consumption before Vietnam, Mr Burling stated that he did not really drink that much. In Vietnam, he would drink heavily at night when not on duty. Cigarettes and beer were very inexpensive in Vietnam. Following his service in Vietnam, Mr Burling estimated that he was consuming between five to seven beers per day up until 1989 when he was divorced. After his divorce, Mr Burling would drink depending on his finances. His second wife Cheryl, encouraged him to reduce his alcohol consumption and this reduced when he moved to Canberra.Evidence Of Mrs Cheryl Ann Burling Mrs Burling provided a statement (Exhibit A8) which she told the Tribunal was true and correct. Mrs Burling has known her husband for 25 years, as her late first husband and Mr Burling used to work together and were very good friends. Her first husband told her that when he and Mr Burling worked in the Snowy Mountains and were in camp, if there were any war movies or references to Vietnam on the television, Mr Burling would walk out of the room. Mrs Burling told the Tribunal that before her first husband died, she did not know Mr Burling well. Since Mr and Mrs Burling married, Mr Burling has been distant and at times behaves as if he is in another world. There are occasions when Mr Burling does not remember his wife talking to him and this has been the case from the time they started going out. Mrs Burling stated that she has never felt afraid of Mr Burling or threatened. Mr and Mrs Burling married in 1989. She stated that during their marriage, she has put up with a lot from Mr Burling particularly noting his state of mind. In this regard, Mrs Burling described her husband's behaviour of flying off the handle one minute and then the next minute he behaves as if nothing has happened. Mr Burling does not remember everything and will often make out that Mrs Burling is at fault for not listening to him when he denies having discussed various issues. Mrs Burling stated that her husband is sometimes immature and says things in a joking way which other people may not understand as a joke. He likes doing things well and is naturally a friendly and outgoing person. While Mr Burling has friends, he does not get together with them very often, Mrs Burling stated. Some of his former work mates from Gloucester Shire Council may call around from time to time. Mrs Burling explained that she and Mr Burling do not go out much as her husband does not like crowds. While Mrs Burling described her husband as getting along with people, he is a loner and does not visit people in their homes. He has one close friend. Mr and Mrs Burling do not go to clubs or hotels, mainly visiting her mother and father quite a great deal. They go on picnics together or attend church meetings. Mrs Burling described her husband's alcohol consumption recalling that he used to drink a great deal and when working, she estimated that he would consume five to eight cans of beer per day. Now, Mr Burling has "social drinks" which entails him drinking a couple of cans of beer from time to time in social situations. The difficulty in terms of alcohol consumption is that on the pension, Mr Burling is not able to afford a great deal.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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