[2012] AATA 843
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2010/1639
Re
Elizabeth Neal
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Ms A F Cunningham (Senior Member)
Date 30 November 2012 Place Hobart The decision under review is affirmed.
........................................................................
Ms A F Cunningham (Senior Member)
CATCHWORDS
Veteran's entitlements - defence service - whether multiple sclerosis was materially contributed to or aggravated by service - claimed that delay of diagnosis and stress and anxiety resulting from category 2 stressor suffered during service materially aggravated the disease - Tribunal found no causal connection between service and multiple sclerosis disease nor a category 2 stressor as defined in the SOP - decision under review affirmed
LEGISLATION
Veterans Entitlements Act 1986 (the VE Act) ss 70(5), 120(4), 120(B) sub-section 3
Instrument No. 45 of 2002 and Instrument No. 101 of 2011 – Multiple Sclerosis
CASES
Lee v Minister of Pensions (2) 1948 3WPAR 1901
Brew v Repatriation Commission (1999) FCA 1246 Heerey J
Johnson v Commonwealth (1982) HCA 54 (1982)150 CLR 331
Repatriation Commission v Money (2008) FCA 118REASONS FOR DECISION
SM Cunningham
The applicant, Elizabeth Neal was a member of the Royal Australian Air Force for a period of three years between 19/11/87 and 19/11/1990. She suffers from multiple sclerosis. In December 2004 Ms Neal lodged a claim for multiple sclerosis, hearing loss and tinnitis. The Repatriation Commission accepted the claims for hearing loss and tinnitis but determined that multiple sclerosis was not related to defence service. The Veterans Review Board affirmed the Commission’s decision and Ms Neal now seeks a review by the Administrative Appeals Tribunal.
Ms Neal contends that the symptoms of multiple sclerosis were evident during her service and the RAAF’s failure to diagnose and properly manage the condition led to its fast progression.
Following the conclusion of the evidence, attention was drawn to a subsequent Statement of Principles which included additional factors potentially linking multiple sclerosis to relevant service. The factor relied upon is a category 2 stressor. No further evidence was called but the Tribunal reconvened to hear further submissions made on behalf of both parties.
ISSUE
It is accepted that Ms Neal suffered symptoms of multiple sclerosis during her eligible defence service. It is not contended that the condition arose out of or was attributable to service but that it was aggravated by service. The issue for the Tribunal to determine is whether the disease was contributed to in a material degree or aggravated by service.
CONTENTIONS
It was contended on behalf of the applicant that an inability to obtain appropriate clinical management including a diagnosis, caused chronic stress reactions which in turn exacerbated and made Ms Neal's multiple sclerosis condition permanently worse. Further, that if the condition had been correctly diagnosed during Ms Neal's service, it would not have progressed or worsened to the extent that it did. It was submitted that if the service medical practitioners who treated Ms Neal's symptoms had access to the same diagnostic materials that were available to a…
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- Case
- [2012] AATA 843
- Decision Date
CaseChat Overview and Summary
The court examined the evidence presented, including the testimonies of Ms Neal and medical experts. Ms Neal argued that the delay in diagnosing her multiple sclerosis and the stress and anxiety resulting from the category 2 stressor during her service materially aggravated her condition. However, the Repatriation Commission found that there was no causal connection between her service and the multiple sclerosis, nor did they find that a category 2 stressor as defined in the Schedule of Accepted Conditions (SOP) was applicable.
The court agreed with the Repatriation Commission's findings. It was determined that the evidence did not support a finding that Ms Neal's condition was made permanently worse by a failure to diagnose multiple sclerosis during her service. Additionally, there was no evidence to suggest that the disease was materially contributed to or aggravated by her defence service. The court affirmed the decision of the Repatriation Commission.
As a result, the court dismissed Ms Neal's application for review, upholding the original decision of the Repatriation Commission. The court found no basis to overturn the decision that her multiple sclerosis was not materially contributed to or aggravated by her service.
Orders
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Background
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Evidence
Evidence Before The Court
Decision
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Ratio Decidendi
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