Day and Repatriation Commission - [2003] AATA 287

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 287
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/1035

VETERANS' APPEALS DIVISION
)

Re JEFFREY MICHAEL DAY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr IR Way, Member
Date28 March 2003
PlaceBrisbane

Decision
The Tribunal:

(a)      sets aside the decision under review and in substitution therefor            determines that Jeffrey Michael Day suffers from war-caused post            traumatic stress disorder, alcohol dependence or alcohol abuse            and depressive disorder;

(b)      remits the matter to the respondent for assessment of a rate of            pension payable to the applicant in accordance with these            reasons for decision on and from 8 February 2000.

.
(Sgd) IR Way
  Member

CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements - pension - entitlement - whether or not the applicant experienced a severe stressor during his service in Vietnam - whether post traumatic stress disorder is war-caused
Veterans’ Entitlements Act 1986 ss 9, 120, 120A
Re Budworth and Repatriation Commission [2000] AATA 127
Re Mulvaney and Repatriation Commission [2000] AATA 535
Re Cranage and Repatriation Commission [2000] AATA 1119
Re Jehn and Repatriation Commission [2000] AATA 484
Re Slattery and Repatriation Commission (1998) 52 ALD 90
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION

28 March 2003 Mr IR Way, Member

1. This is an application by Jeffrey Michael Day (“the applicant”) for review of a decision of the Repatriation Commission made on 18 August 2000, and affirmed by the Veterans’ Review Board (“VRB”) on 21 August 2000, that the applicant does not suffer from war-caused post traumatic stress disorder (PTSD) or war-caused alcohol dependence or alcohol abuse within the meaning of section 9 of the Veterans’ Entitlements Act 1986 (“the Act”).
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6) and documentary evidence as follows:
§Exhibit A1         Applicant’s Statement dated 18 February 2002
§Exhibit R1        Report of Dr Peter Mulholland dated 5 July 2002

3.      The applicant was represented by Mr D O’Gorman of Counsel and the respondent was represented by Mr J Stoner, a Departmental Advocate. The applicant gave oral evidence.
4.      The applicant was born on 1 August 1948 and served as a National Serviceman in the Australian Regular Army from 30 September 1969 to 8 October 1971, including operational service in Vietnam from 13 March 1971 to 9 September 1971.
5.      The applicant’s accepted service-related disabilities are:
§Bilateral sensori-neural hearing loss
§Post Traumatic Stress Disorder (Treatment only)
§Depression (Treatment only)

6. His non-service-related disabilities are:
§Localised Osteoarthrosis of the Left Knee
§Alcohol Dependence or Alcohol Abuse
§Post Traumatic Stress Disorder

7. The applicant served in the Corps of Royal Australian Electrical and Mechanical Engineers and during his service in Vietnam he was employed as an Armourer, posted to a field workshop but detached to 2 Australian Ordinance Depot in 1 Australian Logistics Support Group (“1 ALSG”) Vung Tau.
8. There is no disagreement between the parties that the applicant…

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 Day and Repatriation Commission

Details

AGLC: Day and Repatriation Commission [2003] AATA 287
Case: [2003] AATA 287
Decision Date: 28 March 2003

CaseChat Overview and Summary

The applicant, Jeffrey Michael Day, sought a review of a decision by the Repatriation Commission which found him not to be suffering from war-caused psychiatric conditions. The dispute was heard in the Administrative Appeals Tribunal. The legal issues before the Tribunal were whether Mr Day had experienced a severe stressor during his service in Vietnam and whether his post traumatic stress disorder (PTSD) was war-caused. The Tribunal had to assess the evidence and decide if Mr Day's PTSD, alcohol dependence or alcohol abuse, and depressive disorder were caused by his service.

The Tribunal considered the evidence provided by Mr Day and the relevant legislation, particularly the Veterans’ Entitlements Act 1986. It also reviewed previous cases such as Re Budworth, Re Mulvaney, Re Cranage, Re Jehn, Re Slattery, and Repatriation Commission v Deledio. The Tribunal found that Mr Day had indeed experienced a severe stressor during his service and that his PTSD, alcohol dependence or alcohol abuse, and depressive disorder were war-caused. The Tribunal emphasised that the applicant's evidence was supported by a medical report and the history of his service in Vietnam, which led to the conclusion that his conditions were related to his war service.

In light of the findings, the Tribunal set aside the original decision and determined that Mr Day suffers from war-caused post traumatic stress disorder, alcohol dependence or alcohol abuse, and depressive disorder. The matter was remitted to the Repatriation Commission to assess the rate of pension payable to Mr Day in accordance with the Tribunal's reasons for decision, effective from 8 February 2000.

Orders

Orders of the court

The Tribunal:

(a) sets aside the decision under review and in substitution therefor determines that Jeffrey Michael Day suffers from war-caused post traumatic stress disorder, alcohol dependence or alcohol abuse and depressive disorder;

(b) remits the matter to the respondent for assessment of a rate of pension payable to the applicant in accordance with these reasons for decision on and from 8 February 2000.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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VETERANS' APPEALS DIVISION		)
Re		JEFFREY MICHAEL DAY