Fielden and Repatriation Commission - [2004] AATA 862

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 862
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/711
VETERANS' APPEALS DIVISION

Re: PETER JOHN FIELDEN
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION
Tribunal:       Miss E.A. Shanahan, Member
Date:             18 August 2004
Place:            Melbourne
Decision:The Tribunal sets aside the decision under review and substitutes therefore the decision that:
1.the applicant suffers from post traumatic stress disorder with alcohol and drug abuse;
2.the condition is war‑caused within the meaning of s 9 of the Veterans’ Entitlements Act 1986, entitling the applicant to a disability pension; and
3.the matter is remitted to the respondent for determination of the rate of pension.

(sgd) E.A. Shanahan
Member

VETERANS' AFFAIRS – whether psychiatric condition is post traumatic stress disorder – whether condition war‑caused – severe stressors – whether stressors actually occurred – if so, whether severe enough to cause intense fear, helplessness or horror – operational service
Veterans’ Entitlements Act 1986 ss 9, 120(1), (3), 120A
Statements of Principles
Instrument № 58 of 1998 concerning depressive disorder
Instrument № 76 of 1998 concerning psychoactive substance abuse or dependence and

alcohol dependence or alcohol abuse
Instrument № 3 of 1999 (as amended by Instrument № 54 of 1999)

concerning post traumatic stress disorder
Instrument № 1 of 2000 concerning anxiety disorder

Critch v Repatriation Commission (1996) 43 ALD 574
Gerzina v Repatriation Commission (2003) 176 FLR 426
Re Jenkin and Repatriation Commission (1997) 47 ALD 721
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 321
REASONS FOR DECISION
18 August 2004  Miss E.A. Shanahan, Member
1.      This is an application by Peter John Fielden (the applicant) for review of a decision of the Repatriation Commission dated 28 February 2000, as affirmed by the Veterans’ Review Board (VRB) on 29 May 2002. The VRB declined the applicant’s claim for a disability pension for emotional behavioural problems, because he failed to meet the requirements of the Statement of Principles (SoP) regarding post traumatic stress disorder (PTSD) and the diagnosis of PTSD. The VRB found that the stressors the applicant claimed to have experienced were not of an extreme nature.
2. The applicant was represented by Mr C. Thomson, of counsel, instructed by Peter J. Liefman, solicitor. The respondent was represented by Mr K. Herman, an advocate with the Department of Veterans’ Affairs, on the first day and by Mr K. Rudge, advocate, on the second day of the hearing. The Tribunal received into evidence the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1 to T14) (the T‑documents), which were assigned the marking exhibit R1. In addition, the respondent tendered the following documents:
Transcript of VRB proceedings dated 29 May 2002  Exhibit R2
Report of WriteWay Research Services (WriteWay)
dated 15 November 2003  Exhibit R3
Report of Dr B. Keshava, consultant psychiatrist, regarding
Mr B. Collins, dated 26 October 1999  Exhibit R4
Report of Dr L. Walton, psychiatrist, dated 9…

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 Fielden and Repatriation Commission

Details

AGLC: Fielden and Repatriation Commission [2004] AATA 862
Case: [2004] AATA 862
Decision Date: 18 August 2004

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal was an appeal by Peter John Fielden against a decision of the Repatriation Commission that he did not meet the requirements of the Statement of Principles concerning post traumatic stress disorder (PTSD) and, therefore, was not entitled to a disability pension. The Tribunal was required to decide whether Mr Fielden suffered from PTSD, whether the condition was war-caused and, if so, whether it entitled him to a disability pension. The Tribunal found that Mr Fielden suffered from PTSD and alcohol dependence which were war-caused within the meaning of the Veterans' Entitlements Act 1986. The Tribunal set aside the decision of the Repatriation Commission and remitted the matter to it for determination of the level of pension payable to Mr Fielden.

Orders