David Simpson and Repatriation Commission

Case [2012] AATA 845

[2012] AATA 845  

Division GENERAL ADMINISTRATIVE DIVISION

File Number

 2011/1070

Re

 David Simpson

APPLICANT

And

 Repatriation Commission

RESPONDENT

DECISION

Tribunal

Deputy President R P Handley
Dr S H Toh, Member

Date 30 November 2012
Place Sydney

Decision Summary

The decision of the Repatriation Commission dated 8 April 2010 refusing Mr Simpson’s claim for a disability pension in respect of PTSD is set aside and a decision substituted that Mr Simpson’s PTSD is war-caused.  The date of effect of this decision in terms of the payment of pension is 22 September 2010.  The matter is remitted to the Commission to determine the rate of pension payable to Mr Simpson.

...........[sgd]..................................

Deputy President R P Handley

CATCHWORDS

VETERANS’ AND MILITARY COMPENSATION – Applicant suffering from Post-Traumatic Stress Disorder (PTSD) – Applicant served in Vietnam war – Whether Applicant’s PTSD is war-caused – Rate of disability pension – Decision under review set aside

LEGISLATION

Veteran’s Entitlements Act 1986 (Cth)

CASES

Delahunty v Repatriation Commission (2004) 38 AAR 511

Gilkinson v Repatriation Commission (2011) 197 FCR 102

Kaluza v Repatriation Commission [2010] FCA 1244

Repatriation Commission v Budworth (2001) 116 FCR 200

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Knight (2012) 202 FCR 451

Stoddart v Repatriation Commission (2003) 74 ALD 366

Woodward v Repatriation Commission (2003) 131 FCR 473

SECONDARY MATERIALS

Diagnostic and Statistical Manual of Mental Health Disorders, Fourth Edition, Text Revision

Repatriation Medical Authority Statements of Principles, Instrument No 5 of 2008

REASONS FOR DECISION

Deputy President R P Handley
Dr S H Toh, Member

  1. David Simpson (the Applicant) has applied to the Tribunal for the review of a decision of the Veterans’ Review Board (VRB) made on 9 November 2010, to affirm a decision of the Repatriation Commission (the Respondent) that the Post Traumatic Stress Disorder (PTSD) diagnosed by his treating psychiatrist is not war-caused, and that he should continue to be paid a disability pension at 30% of the General Rate.

    BACKGROUND

  2. Mr Simpson, who is now aged 65, is married with three living children, a fourth child having died at birth. He served in the Royal Australian Navy from 30 July 1963 to 11 January 1974.  This included eligible operational war service in Vietnam on HMAS Vampire, from 14 May 1969 to 25 May 1969 and on HMAS Yarra from 22 February 1971 to 1 March 1971.  He also has eligible defence service from 7 December 1972 until his discharge on 11 January 1974, but his defence service is not relevant to these proceedings.

  3. Mr Simpson is currently receiving a disability pension at 30% of the General Rate in respect of his sensorineural hearing loss and tinnitus. 

  4. On 10 December 2009, Mr Simpson lodged a claim with the Department of Veterans’ Affairs (the Department)) in respect of PTSD and for an increase in the rate of his disability pension. On 8 April 2010, the Respondent denied liability in respect of Mr Simpson’s PTSD on the ground that it was not related to…

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AGLC
David Simpson and Repatriation Commission [2012] AATA 845
Case
[2012] AATA 845
Decision Date

CaseChat Overview and Summary

David Simpson, a former member of the Royal Australian Navy, applied to the Administrative Appeals Tribunal for a review of a decision made by the Veterans' Review Board affirming a decision by the Repatriation Commission that his Post-Traumatic Stress Disorder (PTSD) was not war-caused, and that his disability pension should continue at 30% of the General Rate. The Tribunal was required to determine whether Mr Simpson's PTSD was war-caused and if the pension rate was appropriate. The Tribunal considered the statutory provisions under the Veterans' Entitlements Act 1986 (Cth) and the relevant Statements of Principle concerning PTSD, Instrument No 5 of 2008. It was required to assess whether there was a reasonable hypothesis connecting Mr Simpson's PTSD with his operational service in Vietnam. The Tribunal found that the evidence presented, including testimonies from Dr Dinnen and Dr Wade, established that Mr Simpson's PTSD was indeed war-caused and that he was incapacitated from working as a result of his condition. The Tribunal concluded that the decision of the Repatriation Commission was incorrect and set it aside, substituting a decision that Mr Simpson's PTSD was war-caused. The matter was remitted to the Repatriation Commission to determine the appropriate rate of pension payable to Mr Simpson. The Tribunal also ordered that the date of effect of the decision in terms of the payment of pension be 22 September 2010, being a date not more than six months before Mr Simpson’s application to the Tribunal.

Orders

Orders of the court

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Background

Background to the litigation

David Simpson (the Applicant) has applied to the Tribunal for the review of a decision of the Veterans’ Review Board (VRB) made on 9 November 2010, to affirm a decision of the Repatriation Commission (the Respondent) that the Post Traumatic Stress Disorder (PTSD) diagnosed by his treating psychiatrist is not war-caused, and that he should continue to be paid a disability pension at 30% of the General Rate.BACKGROUND Mr Simpson, who is now aged 65, is married with three living children, a fourth child having died at birth. He served in the Royal Australian Navy from 30 July 1963 to 11 January 1974. This included eligible operational war service in Vietnam on HMAS Vampire, from 14 May 1969 to 25 May 1969 and on HMAS Yarra from 22 February 1971 to 1 March 1971. He also has eligible defence service from 7 December 1972 until his discharge on 11 January 1974, but his defence service is not relevant to these proceedings. Mr Simpson is currently receiving a disability pension at 30% of the General Rate in respect of his sensorineural hearing loss and tinnitus. On 10 December 2009, Mr Simpson lodged a claim with the Department of Veterans’ Affairs (the Department)) in respect of PTSD and for an increase in the rate of his disability pension. On 8 April 2010, the Respondent denied liability in respect of Mr Simpson’s PTSD on the ground that it was not related to his service, and decided to continue his pension at 30% of the General Rate. The delegate referred to the Repatriation Medical Authority’s Statements of Principles concerning PTSD, Instrument No 5 of 2008 (SoP No 5), and decided that this did not apply because Mr Simpson had not experienced either a category 1A or 1B stressor during his operational service. The delegate also found that Mr Simpson’s pension was correctly assessed at 30% of the General Rate. On 9 November 2010, the VRB affirmed the decision and, on 22 March 2011, Mr Simpson applied to the Tribunal for a further review.ISSUES Under s 13 of the Veteran’s Entitlements Act 1986 (Cth) (the Act), a veteran will be eligible for a pension where the veteran is incapacitated from a war-caused injury or disease. An injury or disease will be war-caused if the injury occurred or the disease was contracted while the veteran was rendering operational service: s 9. Mr Simpson’s service in Vietnam is operational service as defined in the Act. Pursuant to s 120(1), where a claim for a pension in respect of incapacity relates to operational service, the Commission shall determine that the injury or disease was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Commission shall be so satisfied if, after consideration of the whole of the material before it, the Commission is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the person (s 120(3)). Section 120A requires the reasonableness of the hypothesis to be assessed by reference to applicable Statements of Principle (SoPs). In this case, the applicable SoP is SoP No 5, referred to above.

Evidence

Evidence Before The Court

If satisfied that the symptoms constitute an injury or disease as defined in s 5D of the Act, the question of whether that injury or disease is war-caused must be addressed in accordance with the following four steps identified by the Court in both the Deledio and Kaluza decisions:(1) The Tribunal must consider all the material before it and determine:(a) whether the material points to some fact(s) (the raised facts) which support a hypothesis connecting the disease with the circumstances of the operational service; and (b) whether that hypothesis can be regarded as reasonable if the raised facts are true. (2) If the raised facts point to a hypothesis of a connection, is there a SoP in force in respect of the kind of disease from which the veteran suffers?(3) If a SoP is in force, the Tribunal must determine whether, in its opinion, the hypothesis is reasonable, meaning is it consistent with the ‘template’ found in the SoP? In particular, does the hypothesis raised contain one or more of the factors that the Repatriation Medical Authority has determined to be the minimum that must exist and be related to the veteran’s service?In Repatriation Commission v Knight (2012) 202 FCR 451, (at [8]), (Knight), the Full Federal Court said there are two discrete issues at play in considering whether there is a reasonable hypothesis: (i)does the material before the Tribunal point to the factor relied upon; and(ii)does the material also point to that factor being related to the veteran’s operational service (s 196B(14))?Section 196B(14) sets out the circumstances in which “[a] factor causing, or contributing to, an injury, disease or death is related to service rendered by a person” which relevantly includes (b) where “it [the injury, disease or death] arose out of, or was attributable to, that service”, and (d) where “it was contributed to in a material degree by, or was aggravated by, that service”. The Full Federal Court in Gilkinson v Repatriation Commission (2011) 197 FCR 102 held that paragraph (d) is not a broader test that necessarily subsumes the paragraph (b) question of whether a factor arose out of, or was attributable to, that service. The meaning of “arose out of, or was attributable to” in s 9(1)(b) and s 196B(14)(b) is the same and requires a contributory cause that need not be the sole or dominant cause: see the Full Court decision, Perram J at [6-7] and [13], and Nicholas and Robertson JJ at [37]-[38]. (4) If the hypothesis is reasonable, the Tribunal must be satisfied beyond reasonable doubt that the incapacity did not arise from the war-caused disease. (Any fact finding must only be made at this final stage in the process.)THE EVIDENCEMr Simpson’s Evidence Mr Simpson said he left school at the age of 16 to join the Navy hoping to become a shipwright. He was channelled into an apprenticeship to become an electrical fitter/mechanic for which he was ill-suited, taking four and a half years to compete his training as result of failing exams. Mr Simpson was posted to Vampire in 1968 where he served until 1970, and then to Yarra where he served from 1970 to 1971. In 1971, he married and was posted to HMAS Cerberus. He was able to secure an early discharge and left the Navy in 1974 with the rank of Petty Officer. Mr Simpson said, in retrospect, he wished he had never joined the Navy. While there were some good times, “it was the wrong place for me” and “I was a very bad electrician”. He cannot believe that one sixth of his life – “10 years, six months, one week and two days” - has had such a profound effect on the rest of his life: “it’s there all the time and colours everything – it’s a reference point – a constant reminder that I was no good at something and couldn’t get promoted and couldn’t pass exams”.

Decision

Reasons for decision

While in his report Dr Morris expressed the view that Mr Simpson had suffered episodes of Adjustment Disorder, first, in February 2010, when there was tension between him and the new Principal of his school, and, second, in December 2011, when he had concerns over the health of his daughter, Mr Simpson’s evidence was that he was less forthcoming with the history he gave to Dr Morris. Our view, stated above, is that the evidence of symptoms of PTSD dating back to Mr Simpson’s time in the Navy is compelling. The evidence of Dr Dinnen and Dr Wade is that Mr Simpson’s incapacity for work is due to his PTSD, and his PTSD is causally related to his operational service. Both Dr Dinnen and Dr Wade expressed the opinion that Mr Simpson is not capable of working eight or more hours a week as a result of his PTSD. In summary, the Tribunal is not satisfied that there is any convincing evidence to the contrary which would satisfy us of this beyond all reasonable doubt. DECISION The decision of the Repatriation Commission dated 8 April 2010 refusing Mr Simpson’s claim for a disability pension in respect of PTSD is set aside and a decision substituted that Mr Simpson’s PTSD is war-caused. Pursuant to s 177(2)(b)(i) of the Act, the date of effect of this decision in terms of the payment of pension is 22 September 2010, being a date not more than six months before the date on which Mr Simpson’s application to the Tribunal was made on 22 March 2011. The matter is remitted to the Commission to determine the rate of pension payable to Mr Simpson.

Ratio Decidendi

Legal Principle Established

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