Edward Zielinski and Repatriation Commission

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Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL                  )

)No: 2015/4103

Veterans' Appeals Division  )

Re: Edward Zielinski

Applicant

And: Repatriation Commission

Respondent

CORRIGENDUM

TRIBUNAL:              Deputy President F J Alpins

DATE:  5 September 2016

PLACE:  Melbourne

The Tribunal directs the Registrar, pursuant to s 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of the written statement of reasons for its decision made on 30 August 2016 as follows:

1.In paragraph 1, in the third line, and in paragraph 64, in the first line, delete “Zielinksi” and replace with “Zielinski”;

2.In paragraph 41, in the seventh line and in paragraph 45, in the seventh line, delete “Zielinksi’s” and replace with “Zielinski’s”.

[sgd]...........................................
Deputy President

Zielinski and Repatriation Commission (Veterans’ entitlements) [2016] AATA 655 (30 August 2016)

Division

Veterans' Appeals Division

File Number

2015/4103

Re

Edward Zielinski

APPLICANT

And

Repatriation Commission

RESPONDENT

Decision

Tribunal

Deputy President F J Alpins
Date 30 August 2016
Place Melbourne

The decision under review is affirmed.

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

Deputy President F J Alpins

VETERANS’ AFFAIRS – disability pension – incapacity from defence-caused injury or defence-caused disease – whether veteran incapacitated from psychological condition - whether such a condition or veteran’s lumbar spondylosis “defence-caused” - whether either condition arose out of or was attributable to defence service – meaning of “defence service” - Statement of Principles concerning lumbar spondylosis

Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s 34J
Legislation Act 2003 (Cth), ss 8, 13
Statement of Principles concerning lumbar spondylosis No. 63 of 2014

Veterans’ Entitlements Act 1986 (Cth), ss 5D, 6-6F, 68, 69, 70, 119, 120, 120B, 196B

Cases

Benjamin v Repatriation Commission (2001) 70 ALD 622
Brew v Repatriation Commission (1999) 56 ALD 403
Brew v Repatriation Commission (1999) 94 FCR 80
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
Deledio v Repatriation Commission (1997) 47 ALD 261
Forrester v Repatriation Commission [2013] FCA 898
Forster v Repatriation Commission (2015) 144 ALD 624
Hill v Repatriation Commission (2005) 85 ALD 1
Hunter v Repatriation Commission [2010] FCA 145
Kaluza v Repatriation Commission [2011] FCAFC 97
Lees v Repatriation Commission (2002) 125 FCR 331
Re Repatriation Commission and Errol Smith (1986) 11 ALD 119
Repatriation Commission v Bawden (2012) 206 FCR 296
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Cotton (2006) 93 ALD 118
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Hill (2002) 69 ALD 581
Repatriation Commission v Money (2009) 173 FCR 410
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Wedekind [2000] FCA 649
Roncevich v Repatriation Commission (2005) 222 CLR 115
Todd v Repatriation Commission [2008] FCA 1276
Woodward v Repatriation Commission (2003) 131 FCR 473

Secondary Materials

Defence Abuse Response Taskforce Fifth Interim Report to the Attorney-General and Minister for Defence (March 2014)

REASONS FOR DECISION

Deputy President F J Alpins

30 August 2016

INTRODUCTION

  1. This proceeding concerns a decision of a delegate of the…

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Details
Case
[2016] AATA 655
Decision Date

CaseChat Overview and Summary

This proceeding concerned an application by Mr Edward Zielinski for review of a decision by the Repatriation Commission. Mr Zielinski, a former Australian Army vehicle mechanic who served from 1968 to 1976, claimed entitlement to a pension for disabilities including hearing loss, back pain, and a psychological condition. He attributed his back pain to activities undertaken during his apprenticeship at the Army Apprentices School, such as marching and carrying heavy poles, and his psychological condition to "bastardisation" experienced at the same institution. Mr Zielinski had previously been granted a Reparation Payment under the Defence Abuse Reparation Scheme based on findings of physical abuse and bullying during his apprenticeship.

The primary legal issue before the Tribunal was whether Mr Zielinski had established an entitlement to a pension for a psychological condition under the relevant legislation. Specifically, the Tribunal was required to determine if it was reasonably satisfied that Mr Zielinski suffered from a diagnosable psychological or psychiatric disorder that was defence-caused, as a prerequisite for pension entitlement. The Tribunal also considered the provisions of section 119(1)(h) of the Act, which mandates consideration of difficulties in ascertaining facts due to the passage of time, lack of records, or failure to report occurrences.

The Tribunal's reasoning focused on the absence of medical evidence supporting Mr Zielinski's claimed psychological condition. The sole medical report before the Tribunal was from a consultant psychiatrist, Dr Anthony Sheehan, who opined that Mr Zielinski had no diagnosable psychiatric disorder or abnormal psychological condition related to his army service. Despite acknowledging Mr Zielinski's distress and the findings of the Defence Abuse Reparation Scheme, the Tribunal applied the principle that entitlement to a pension is a matter of statutory right dependent on fitting specific factual criteria, rather than discretion or sympathy. The Tribunal affirmed the decision under review, finding that the statutory criteria for a pension in respect of the psychological condition were not met.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This proceeding has been determined without a hearing by consent (see s 34J of the Administrative Appeals Tribunal Act 1975 (Cth)), as sought by the parties. FACTS AND PROCEDURAL HISTORY Mr Zielinski was born in 1951 and served in the Australian Army from 23 January 1968 to 7 May 1976. Upon his enlistment, he undertook his apprenticeship training at the Army Apprentices School at Balcombe, Victoria, which he completed in 1970. During his army service, Mr Zielinski qualified as a vehicle mechanic. He received an honourable discharge, having attained the rank of Lance Corporal. By a letter dated 25 February 2014, Mr Zielinski was informed that he had been granted a Reparation Payment in sum of $50,000 under the Defence Abuse Reparation Scheme administered by the Defence Abuse Response Taskforce (“DART”), on the basis that the Reparation Payments Assessor was satisfied for the purposes of that scheme that he had suffered physical abuse and bullying at the Army Apprentices School and that there had been mismanagement by Defence in relation to that abuse. I note that a copy of the DART Fifth Interim Report to the Attorney-General and Minister for Defence, published in 18 March 2014, formed part of the material before the Tribunal. On 14 November 2014, Mr Zielinski lodged the claim the subject of this proceeding, in respect of disabilities described in that claim as being “hearing loss” (the diagnosis being “bilateral sensorineural hearing loss”), “back pain” and, as I have indicated, a disability described as “psychological”. In the claim form, Mr Zielinski stated that he believed that his back pain, said to have been diagnosed as “low back pain”, was attributable to activities undertaken at the age of 16 while attending the Army Apprentices School, particularly marching and “running with heavy poles”, in that the “weight of [the] poles caused early backbone – disc problems”, which had become apparent to him from “notes on discharge” in 1976, referring in other correspondence to X-rays not before the Tribunal. Similarly, in a claimant report form concerning trauma and low back pain dated 12 January 2015, Mr Zielinski stated in substance that his back was injured and that he experienced symptoms of low back pain during the period in which he attended the Army Apprentices School, during sessions in which groups of soldiers were required to lift and march or run with large heavy poles, which resulted in his back being “twisted in trying to rescue these poles”. Mr Zielinski attributed his claimed psychological disability to “bastardisation” at the Army Apprentices School, enclosing and referring in that regard to a report prepared by the DART and stating that he first become aware of the signs and symptoms (or aggravation) of that disability in 1968-1970 which corresponds with the period Mr Zielinski has stated that he attended the Army Apprentices School. Mr Zielinski stated in his claim form that the signs and symptoms of his psychological disability were as follows: “do not sleep well”, “do not socialise”, “nightmares”.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Furthermore, none of the other factors in clause 6, as confined by clause 7, arise for consideration based upon the material before the Tribunal. CONCLUSION It is apparent from Mr Zielinski’s correspondence that he feels very aggrieved by his experiences and treatment during his service rendered at the Army Apprentices School. Unfortunately for Mr Zielinski, the effluxion of time does not appear to have lessened his distress in that regard, although one would hope that he has derived some solace from the outcome of his application made under the Defence Abuse Reparation Scheme. However, the strength of Mr Zielinski’s feelings does not of itself found a basis upon which the Tribunal can disturb the decision under review in his favour. While the Act is beneficial legislation, it is not intended to assist all veterans in all circumstances. Nor does it confer any discretion on the respondent or the Tribunal to grant Mr Zielinski a pension on a basis other than that for which it expressly provides. As Heerey J stated in Gorton at [41], the Act “provides for pensions and other entitlements as a matter of right, and not discretion, dependent on the claim fitting certain facts”. Consonantly, as Logan J stated in his concluding words in Todd v Repatriation Commission [2008] FCA 1276 at [35]:“… [T]he Veterans’ Entitlements Act provides for the payment of public moneys by reference to particular statutory criteria. One either engages those criteria and therefore is entitled to payment, or one does not, and not amount of sympathy for the plight of a veteran can change that.” The same can be said of circumstances, such as these, where the criteria governing entitlement to a pension are engaged, but not to the extent claimed by Mr Zielinski. For the above reasons, the Tribunal will affirm the decision under review.

Ratio Decidendi

Legal Principle Established

It is also relevant to mention s 119(1)(h) of the Act. Shortly stated, that provision requires that the respondent, and the Tribunal upon review, take into account any difficulties that lie in the way of ascertaining the existence of facts and other matters, whether by reason of the passing of time, the absence of or deficiency in relevant official records, or failures to report occurrences to appropriate authorities during a veteran’s service. CONSIDERATIONPsychological condition Mr Zielinski stated in his application for review and in various correspondence before the Tribunal that he suffered physical and psychological abuse while attending the Army Apprentices School during the period 1968 to 1970. In some of that correspondence he recounted the nature of that abuse in some detail. As I have indicated above, in 2014 Mr Zielinski was granted a Reparation Payment under the Defence Abuse Reparation Scheme administered by the DART, primarily on the basis that the Reparation Payments Assessor was satisfied for the purposes of that scheme that he had suffered physical abuse and bullying during that apprenticeship. However, the Act is to be construed and applied in accordance with its own terms. As I have indicated, it is a prerequisite to Mr Zielinski’s entitlement to a pension with respect to the claimed psychological condition that such a condition in fact occurred (see Bawden at [42]); the Tribunal must be reasonably satisfied that that is so. That does not necessarily follow from any finding that the abuse described by Mr Zielinski occurred. The only medical report before the Tribunal bearing upon the claimed psychological condition is a report of Dr Anthony Sheehan, consultant psychiatrist, dated 20 January 2015. In that detailed report, Dr Sheehan set out Mr Zielinski’s general history as recounted to him, including Mr Zielinski’s description of the abuse he had suffered while attending the Army Apprentices’ School, which he had told Dr Sheehan occurred during the period 1968 to 1969. Dr Sheehan opined as follows:“On the basis of the available information and Mr Zielinski’s presentation at interview he has no diagnosable psychiatric disorder or abnormal psychological condition that could be related to his service in the Australian Army in the period 1968 to 1976”. Later in his report, Dr Sheehan similarly stated that “Mr Zielinski has no diagnosable psychiatric disorder and [sic] abnormal psychological condition on the basis of his presentation today and history provided”. He noted at another point that:“Mr Zielinski reported that he did take an overdose of medication approximately 30 years ago following the breakdown of his first marriage but stated following a brief admission to the Geelong Hospital that he did not require any ongoing psychiatric treatments. He reported that he did see a psychiatrist in Melbourne 10 to 12 years ago but indicated that he did not require any further ongoing treatments.” Given Dr Sheehan’s opinion, and given the absence of any medical reports which might found a contrary conclusion (whether in support of the claimed diagnosis stated in Mr Zielinski’s claim form or otherwise), I am not satisfied that Mr Zielinski suffered from any psychological or psychiatric condition in respect of which any entitlement to a pension under s 70 of the Act could arise; it is therefore unnecessary to consider whether such a condition might be said to be “defence-caused”.