Farrow and Repatriation Commission - [2011] AATA 245

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 245
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2813

VETERANS’ APPEALS DIVISION )

Re Mr Garth Walter Farrow

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal M D Allen, Senior Member and Dr T K Austin AM, Member
Date 13 April 2011
PlaceSydney

Decision
1. The decision under review is SET ASIDE and this matter is remitted to the Respondent with the direction that the diseases of Post Traumatic Stress Disorder, Irritable Bowel Syndrome and Sinusitis are war-caused.

2. The assessment of pension in respect of incapacity from all war-caused injuries and diseases suffered by the Applicant is remitted to the Respondent.

.................[sgd]........................
M D Allen, Presiding Member

CATCHWORDS
VETERANS’ ENTITLEMENTS: Claim for Post Traumatic Stress Disorder, Irritable Bowel Syndrome and Sinusitis as being war-caused accepted. PTSD claim involving both objective and subjective elements. Increased smoking while in Vietnamese waters sufficient to generate increased smoking habit. Irritable Bowel Syndrome aggravated by PTSD.
Claim for Intermediate Rate Pension rejected. Satisfied that age and area of residence also contributed to inability to attract an employer.
LEGISLATION
Veterans’ Entitlements Act, 1986 Ss 23, 120, 120A.
CASES
Border v Repatriation Commission (No.2) [2010] FCA 1430
McGlynn v Repatriation Commission [1981] FCA 205
Repatriation Commission v Hawkins (1993) 30 ALD 51
Article I.
Article II.     REASONS FOR DECISION

13 April 2011

M D Allen, Senior Member

1.      By application made 25 June 2008 the Applicant sought review of a decision of the Respondent, as affirmed by the Veterans’ Review Board (“VRB”), that rejected his claims to receive pension for the conditions of Post Traumatic Stress Disorder (“PTSD”), alcohol abuse or alcohol dependence, Irritable Bowel Syndrome (“IBS”) and acute sinusitis. Review was also sought of the VRB decision that his disability pension be assessed at 70% of the general rate of pension.
2.      At the hearing of these proceedings the Applicant did not press his claim regarding alcohol abuse/dependence.
3.      In relation to his condition of PTSD, the Applicant implicated one event which occurred whilst on operational service and three other events which occurred during his defence service. Because of the view we take of this matter we intend in these reasons to discuss only the Applicant’s operational service.
4.      The Applicant joined the Royal Australian Navy (“RAN”) in 1961 at the age of 15 years and 6 months. He was discharged on 10 June 1986 with the rank of Warrant Officer.
5. In the period 19 March 1969 to 13 October 1969 the Applicant was a crew member of HMAS Brisbane when that vessel was allocated for duty in Vietnamese waters. The Applicant therefore had operational service during that period, see Ss6(1) VEA.
6. As the Applicant had operational service, the standard of proof in this matter is that mandated by Ss120(1) and (3) VEA which provide that any disease suffered by a Veteran and claimed to be war-caused shall be accepted as being so caused, unless the Tribunal is satisfied beyond reasonable doubt that there…

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 Farrow and Repatriation Commission

Details

AGLC: Farrow and Repatriation Commission [2011] AATA 245
Case: [2011] AATA 245
Decision Date: 13 April 2011

CaseChat Overview and Summary

The applicant, Farrow, brought a case against the Repatriation Commission, seeking a determination that certain health conditions, namely Post Traumatic Stress Disorder (PTSD), Irritable Bowel Syndrome, and Sinusitis, were war-caused and warranted compensation. The case was heard and determined by the Administrative Appeals Tribunal (AAT). The Commission had previously determined that these conditions were not war-caused, and as a result, the applicant's claim for an Intermediate Rate Pension was rejected.

The primary legal issues that the Tribunal had to address were whether the applicant's conditions were war-caused and, if so, whether these conditions warranted the award of an Intermediate Rate Pension. The Tribunal had to consider the evidence and submissions presented by both parties and determine whether the conditions were connected to the applicant's service in the armed forces, and if so, to what extent.

The Tribunal found that the applicant's PTSD was war-caused, as evidenced by the increased smoking habit while in Vietnamese waters and the subsequent inability to cease smoking. The Tribunal found that the applicant's Irritable Bowel Syndrome was also war-caused, as it was aggravated by his PTSD. The Tribunal further found that the applicant's Sinusitis was war-caused due to the exposure to dust and fumes while serving in the armed forces. However, the Tribunal rejected the applicant's claim for an Intermediate Rate Pension, finding that his age and area of residence also contributed to his inability to attract an employer.

The Tribunal set aside the decision of the Repatriation Commission and remitted the matter to the Commission to reassess the pension in respect of incapacity from all war-caused injuries and diseases suffered by the applicant. The Tribunal also directed the Commission to determine that the diseases of Post Traumatic Stress Disorder, Irritable Bowel Syndrome and Sinusitis are war-caused.

Orders

Orders of the court

1. The decision under review is SET ASIDE and this matter is remitted to the Respondent with the direction that the diseases of Post Traumatic Stress Disorder, Irritable Bowel Syndrome and Sinusitis are war-caused.

2. The assessment of pension in respect of incapacity from all war-caused injuries and diseases suffered by the Applicant is remitted to the Respondent.

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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VETERANS’ APPEALS DIVISION		)
Re		Mr Garth Walter Farrow