De Smid and Repatriation Commission - [2005] AATA 133

DECISION AND REASONS FOR DECISION [2005] AATA 133
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/758

VETERANS APPEALS DIVISION
)

Re ROBERT DE SMID

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal
Ms N Bell, Senior Member, Dr I Alexander, Member

Date 14 February 2005
PlaceSydney

Decision
The decision under review is set aside and in substitution therefor the Tribunal decides:

a)        Mr De Smid suffers from depressive disorder and alcohol abuse and those conditions are due to his service;

b)        Mr De Smid is eligible to be paid a disability pension at the Intermediate rate;

c)        The date of effect of this decision is 29 January 2002.

...........................................
Ms N Bell,

Senior Member (Presiding)

VETERANS’ AFFAIRS – Rate of Pension – Diagnosis of Conditions – Dates of Onset – Application of Statements of Principles - Whether Conditions are Related to Service – Continuing Ability to Work
Veterans Entitlements Act 1986
Lees v Repatriation Commission (2002) 36 AAR 484.
Re A’Bell and Repatriation Commission 1999 (58 ALD 721)
Repatriation Commission v Yates 1995 (38 ALD 80)
Re Heaps and Repatriation Commission (AAT N36/64, 29 July 1987)
White v Repatriation Commission [2004] FCA 633
Woodward v Repatriation Commission [2003] FCAFC 160
REASONS FOR DECISION

14 February 2005 Ms N Bell, Senior Member; Dr I Alexander, Member

1.Mr De Smid, born on 10 August 1948, joined the Royal Australian Navy in 1965, aged 17 years. He was discharged in 1985 and had operational service in Vietnam from 25 April 1966 to 6 May 1966 and from 25 May 1966 to 9 June 1966 on the HMAS Melbourne. He had eligible defence service from 7 December 1972 to 5 January 1985.
2.Mr De Smid has a number of disabilities that have been accepted by the Repatriation Commission as being due to his service: bilateral sensorineural hearing loss with tinnitus, chronic solar skin damage, lumbar spondylosis and thoracic spondylosis. This application concerns his claim under the Veterans’ Entitlements Act 1986 (“the Act”) for depression and alcohol abuse and/ or dependence.
3.The Repatriation Commission conceded that Mr De Smid suffers from depressive disorder and from alcohol abuse (although not alcohol dependence) but contended that neither of these conditions is due to either his operational service or his eligible service.
4.The first task for the Tribunal is to reach a conclusion, on the basis of reasonable satisfaction, as to the correct diagnosis of Mr De Smid’s conditions. We agree with the parties that he suffers from depressive disorder and alcohol abuse and we find accordingly. In this respect we had regard to the evidence of Drs Dinnen and Haik and Professor Mattick and to the diagnostic criteria in the Diagnostic Statistical Manual of Mental Disorders – Fourth Edition (“DSM – IV”). Some evidence was led in support of a diagnosis of alcohol dependence (Professor Mattick). However, we consider that Mr De Smid’s symptoms barely satisfy the diagnostic criteria for alcohol dependence but comfortably meet the criteria for alcohol abuse.
5.On the basis of these diagnoses, we must…

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 De Smid and Repatriation Commission

Details

AGLC: De Smid and Repatriation Commission [2005] AATA 133
Case: [2005] AATA 133
Decision Date: 14 February 2005

CaseChat Overview and Summary

De Smid and the Repatriation Commission were the parties before the Administrative Appeals Tribunal in this case. Mr De Smid sought to have the Tribunal review a decision of the Commission that he was not eligible for a disability pension. The dispute centred on whether Mr De Smid's mental health conditions, depressive disorder and alcohol abuse, were due to his service in the Australian Defence Force. The Tribunal was required to determine whether these conditions were service-related and whether Mr De Smid was eligible for a disability pension.

The Tribunal had to consider whether Mr De Smid's depressive disorder and alcohol abuse were related to his service in the Australian Defence Force. It also needed to assess whether these conditions met the criteria for a disability pension. The Tribunal examined evidence from medical experts and considered the statutory provisions governing the award of disability pensions under the Repatriation Act. The Tribunal's role was to review the decision of the Commission and determine whether it was legally sound and supported by the evidence.

In setting aside the decision of the Commission, the Tribunal found that Mr De Smid's depressive disorder and alcohol abuse were indeed due to his service. It concluded that the evidence demonstrated a causal link between his service and his mental health conditions. The Tribunal found that Mr De Smid met the criteria for a disability pension and was therefore eligible to be paid at the Intermediate rate. The Tribunal substituted its own decision for that of the Commission, finding that Mr De Smid was eligible for a disability pension and that the effective date of this decision was 29 January 2002.

Orders

Orders of the court

The decision under review is set aside and in substitution therefor the Tribunal decides:

a) Mr De Smid suffers from depressive disorder and alcohol abuse and those conditions are due to his service;

b) Mr De Smid is eligible to be paid a disability pension at the Intermediate rate;

c) The date of effect of this decision is 29 January 2002.

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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