Ellis and Repatriation Commission - [2003] AATA 252

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 252

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/1317

Nº V2002/586

VETERANS' APPEALS DIVISION

Re: GEORGE THOMAS ELLIS

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal: Mr B.H. Pascoe, Senior Member

Associate Professor J.H. Maynard, Member

Date: 19 March 2003

Place: Melbourne

Decision:The Tribunal affirms the decision under review that the claimed conditions of generalised anxiety disorder and alcohol dependence or Alcohol Abuse were not war‑caused.
The Tribunal sets aside the decision under review in relation to osteoarthritis of the left knee and in its stead decides that the condition is war‑caused and remits the matter to the respondent for assessment of the impairment rating and assessment of the rate of pension.

(sgd) B.H. Pascoe
Senior Member

VETERANS' AFFAIRS – generalised anxiety disorder – alcohol dependence or alcohol abuse - whether war‑caused – whether events constituted a severe psychosocial stressor or whether applicant experienced a severe stressor – date of clinical onset of conditions – whether incident related to service – osteoarthritis of left knee – respondent conceded as war‑caused

Veterans' Entitlements Act 1986

Statements of Principles

Instrument Nº 1 of 2000

Instrument Nº 76 of 1998

Repatriation Commission v Deledio (1998) 49 ALD 193

REASONS FOR DECISION

19 March 2003 Mr B.H. Pascoe, Senior Member

Associate Professor J.H. Maynard, Member

These are two applications to review decisions of the Veterans’ Review Board (VRB) dated 15 March 2001, each of which affirmed earlier decisions of the respondent. The first reviewable decision was that claimed conditions of generalised anxiety disorder and alcohol dependence or alcohol abuse were not war‑caused. The second reviewable decision refused a claim for osteoarthritis of the left knee. Prior to the hearing, the respondent conceded that the osteoarthritis of the left knee was war‑caused following receipt of a report from a consultant orthopaedic surgeon and requested that the second reviewable decision be set aside.
At the hearing, the applicant was represented by Mr A. Larkin, of counsel, and the respondent by Mr G. Purcell, of counsel. Evidence was given by the applicant, Mr G. Ellis, his former wife, Mrs M. Ellis, and Dr E. Cole, a psychiatrist. In addition to the documents provided by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act1975, the following documents were tendered by the parties:
Statement of Mr Ellis dated 9 October 2001  Exhibit A1
Report by Dr Cole dated 18 December 2001  Exhibit A2
Report of Dr S. Rope, general practitioner, dated 3 February 2003 Exhibit A3
Transcript of VRB Hearing of 4 September 2001  Exhibit R1
Documents from Department of Veterans' Affairs
file (1‑34) 6 December 2001  Exhibit R2
Clinical notes of Dr Rope  Exhibit R3
Clinical notes of Hastings Central Medical Centre  Exhibit R4
Service Medical Documents (1‑8)  Exhibit R5
Documents from Department of Veterans' Affairs file
(1‑28) 8 August 2002  Exhibit R6
Report of Dr S O'Loughlin, orthopaedic surgeon,
dated 16 September 2002  Exhibit R7
Report of Captain H. Josephs, WriteWay Research Service
dated 19 September 2002…

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 Ellis and Repatriation Commission

Details

AGLC: Ellis and Repatriation Commission [2003] AATA 252
Case: [2003] AATA 252
Decision Date: 19 March 2003

CaseChat Overview and Summary

This appeal concerns a claim for war-caused conditions by George Thomas Ellis. The respondent, the Repatriation Commission, had previously determined that the applicant's claimed conditions of generalised anxiety disorder and alcohol dependence or alcohol abuse were not war-caused. The second reviewable decision, which had refused a claim for osteoarthritis of the left knee, was withdrawn by the respondent, who conceded that the condition was war-caused. The Tribunal affirmed the decision that the claimed conditions of generalised anxiety disorder and alcohol dependence or alcohol abuse were not war-caused. The Tribunal also set aside the decision that osteoarthritis of the left knee was not war-caused and decided that the condition was war-caused.

The primary legal issue was whether the claimed conditions were war-caused. Under s.120(1) of the Veterans' Entitlements Act 1986, an injury or disease shall be determined as war-caused unless the Tribunal was satisfied, beyond reasonable doubt, that there was no sufficient ground for making that determination. The relevant Statements of Principles (SoPs) required the Tribunal to assess the reasonableness of a hypothesis in accordance with the SoPs. The Tribunal had to determine whether the material before it raised a reasonable hypothesis connecting the claimed conditions with the applicant's service.

The Tribunal found that the claimed conditions were not war-caused. The applicant had not satisfied the Tribunal that any of the identified events were severe stressors under the SoPs. The Tribunal also found that the applicant's claimed conditions did not have a clinical onset or worsening within two years of any of the identified events. In relation to the osteoarthritis of the left knee, the Tribunal found that the condition was war-caused, as conceded by the respondent.

Orders