Day and Repatriation Commission - [2001] AATA 454

DECISION AND REASONS FOR DECISION [2001] AATA 454

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N1998/994

VETERANS' APPEALS DIVISION       )
           Re      Harry Thomas DAY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date 28 May 2001
PlaceSydney

Decision      The Tribunal affirms those parts of the decision of the Repatriation Commission dated 15 May 1997 in respect of "refractive error (myopic astigmatism) left eye", "irritable bowel syndrome", "heart problems" and "nerves/alcohol dependence".
  ..............................................
  M T Lewis
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – entitlement – whether suffers from PTSD and alcohol abuse or dependence – whether PTSD and alcohol abuse war-caused – Statements of Principles applied – Veteran served in Battle of Coral – whether reasonable hypotheses raised – whether experienced a stressor on service prior to clinical onset of PTSD – whether suffered from psychiatric condition before or at the time of clinical onset – whether satisfied diagnostic criteria in Statement of Principles

Budworth v Repatriation Commission [2001] FCA 317
Byrnes v Repatriation Commission (1993) 177 CLR 564
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Keeley (2000) 98 FCR 108

Veterans' Entitlements Act 1986: ss120(1), 120(3), 120A, s5D, s8

Statement of Principles, Instrument No. 15 of 1994 (Post Traumatic Stress Disorder)
Statement of Principles, Instrument No. 5 of 1994 (Psychoactive Substance Abuse or Dependence)

REASONS FOR DECISION

Mrs M T Lewis, Senior Member

This is a review of those parts of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 15 May 1997 that refused a claim made by Harry Thomas Day ("the Applicant") for acceptance of irritable bowel syndrome, heart problems, nerves/alcohol dependence and refractive error (myopic astigmatism) left eye. The Veterans' Review Board ("the VRB") affirmed those parts of the delegate's decision on 1 April 1998. All applications for review were in time. Therefore the earliest effective date in the event that the Applicant is successful in this application for review is 15 May 1996, being a date not earlier than three months before the Applicant lodged his claim.
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. Dr A H Dinnen, psychiatrist, was called by the Applicant to give oral evidence, and Dr M A Walden, psychiatrist, was called by the Respondent to give oral evidence at the hearing.
A Statement of the Applicant dated 10 March 2000 (exhibit A) and reports of Dr Dinnen, dated, 7 January 1999, 21 January 1999, 25 February 1999 and 15 April 1999 (exhibit B) and 7 March 2000 (exhibit C) were tendered as evidence on behalf of the Applicant. Reports of Dr Walden dated 16 September 1999 and 9 March 2000 (exhibit 1) were tendered as evidence on behalf of the Respondent.
The Applicant advised at the commencement of the hearing that he no longer wished to pursue the claims for irritable bowel syndrome,…

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 [2001] AATA 454
Case: [2001] AATA 454
Decision Date: 28 May 2001

CaseChat Overview and Summary

The case of Day v Repatriation Commission involved the applicant, who served in Vietnam, seeking a declaration that he was entitled to compensation for psychiatric conditions including post-traumatic stress disorder (PTSD) and alcohol abuse or dependence. The dispute was heard in the Federal Court of Australia. The central legal issues revolved around whether the applicant suffered from PTSD and alcohol abuse or dependence, whether these conditions were war-caused, and whether they met the criteria outlined in the relevant Statements of Principles. Specifically, the court had to determine if the applicant experienced a stressor on service prior to the clinical onset of PTSD, whether he had a psychiatric condition before or at the time of the clinical onset, and if his condition satisfied the diagnostic criteria for PTSD as per the Statements of Principles.

The court considered the evidence presented, including the applicant's personal accounts and the medical reports by Dr Dinnen. The applicant claimed that his sleep disturbances, high blood pressure, and heavy drinking were related to his service in Vietnam. Dr Dinnen's reports noted the applicant's light sleep, significant alcohol consumption post-service, and symptoms of anxiety and stress. The court evaluated whether these symptoms and behaviours constituted a psychiatric condition under the Statements of Principles. It also assessed whether the applicant's experiences during service met the threshold for stressors that could lead to PTSD, considering the absence of flashbacks but the presence of other stress-related symptoms.

The Federal Court concluded that the applicant did not meet the criteria for PTSD as outlined in the Statements of Principles. The court found that the applicant's symptoms were not sufficiently linked to a specific stressor experienced during service, and there was insufficient evidence to establish a psychiatric condition before or at the time of the clinical onset of PTSD. The court also found that the applicant's alcohol abuse did not meet the criteria for psychoactive substance abuse or dependence as per the relevant Statement of Principles. Consequently, the court dismissed the applicant's claim for compensation for these psychiatric conditions.

The Federal Court's decision was based on the lack of direct evidence linking the applicant's current symptoms to specific stressors experienced during his service and the failure to satisfy the diagnostic criteria for PTSD and alcohol abuse or dependence as per the Statements of Principles. The applicant's claim was therefore unsuccessful.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Applicant said he was happy in his marriage and that he gets on well with his children.medical evidence Dr Dinnen prepared several reports for the purpose of these proceedings (exhibits B and C) after having examined the Applicant in December 1998. He obtained the following history regarding the Applicant's psychiatric and drinking problem (exhibit B, report dated 7 January 1999) –He sleeps "light". He said that when he wakes he cannot get back to sleep, and will lay there for up to three or four hours at a time. This occurs about three times a week and has been present "for years". He said, " I learnt to sleep very light in Vietnam- sleeping out in the scrub".He mentioned… high blood pressure, which he appeared to think was related to his nervous condition.…He said he used to drink fairly heavily, but it is "not too bad now". In the past he would drink six schooners after work each day.…he had reduced his intake, he thought, from about 1980. He said his wife had not been too happy with his drinking through the years, and he was also concerned with his lack of progress in his career. Promotion was not occurring very fast, partly because he tended to be outspoken…in about 1993 after he was retrenched he increased his alcohol intake again, and now drinks about one carton of beer a week at home. In addition he usually has a couple of beers at the club each day. He said he has a few spirits and about half a bottle of port each week.The patient said he tends to get worked up…He said it takes a few hours for him to calm now when he is worked up. He gets the shakes, butterflies in the stomach, and cannot write because of the shaking of his hand.…I asked him about use [alcohol] during service. He said it was cheap in Vietnam, and that after they had been on patrol for some days ... he would begin drinking on his return to camp. The first night he would have two or three drinks, and that would be enough to make him drunk. By the end of the week he would "get stuck into it". When asked why he kept drinking after service he said he really didn't know. However he mentioned….it helped to "calm yourself down".… the patient told me that when he wakes up during the night at times he finds the back of his pyjama tops are all wet with sweat.I asked the patient if he had any "flashbacks". He said these were not a problem. Occasionally he wakes up in a sweat, sits up looks around to see where he is, but he cannot recall specific dreams or memories of service. "I block most of it out, sort of thing". He said he thinks of it about two or three times a year, but generally it is "not on my mind".… he tends to keep his own company quite a lot and prefers not to be in mixed company. He will sit in a club an have a half dozen beers without talking to anybody. He tends to be a loner.…He said his wife now reckons that he is "getting a bit short fused".He has never talked much to his wife about his service. He said his wife's brother also served in Vietnam and she doesn't talk to him at all. On direct enquiry he thought that service probably had changed him. He said that alcohol still tends to cause him to settle if he is feeling uptight.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.