DECISION
Tribunal:       Miss E.A. Shanahan, Member
Date:             4 May 2005
Place:            Melbourne
Decision:1.     The Tribunal varies the decision under review, as follows:
(a)the condition described as peptic ulcer disease is amended to ulcerative esophagitis, secondary to gastro oesophageal reflux;
(b)the ulcerative oesophagitis is determined to be a war‑caused disease, with effect from 20 May 2001; and
(c)the condition described as depressive disorder is amended to depressive disorder with anxiety and remains a non war‑caused disease.

2.In all other respects, the decision of the Repatriation Commission dated 20 November 2002, as varied by the decision of the Veterans’ Review Board dated 24 September 2003, is affirmed.
3.Pension remains payable at 30 per cent of the general rate with effect from the 20 May 2001.

(sgd) E.A. Shanahan
Member

VETERANS' AFFAIRS – post traumatic stress disorder or chronic depressive disorder – total amnesia with respect to any events experienced by the applicant during service – assumptions relating to severe stressors – failure to fit Statement of Principles template – conceded ulcerative oesophagitis as war‑caused – special rate of pension
Veterans’ Entitlement Act 1986
Statements of Principles
Instrument of 3 of 1999, as amended by Instrument 54 of 1999,
concerning to post traumatic stress disorder
Instrument 58 of 1998 concerning depressive disorder
Instrument 52 of 2002 concerning gastro oesophageal reflux
Instrument 62 of 1999 concerning gastro oesophageal reflux disease
Instrument 21 of 1999 concerning peptic ulcer disease
Bull v Repatriation Commission (2001) 66 ALD 271
Byrnes v Repatriation Commission (1993) 177 CLR 564
East v Repatriation Commission (1987) 16 FCR 517
Law v Repatriation Commission (1980) 29 ALR 74
Re Boar and Repatriation Commission (AAT 9124; 26 October 1993)
Re Jenkin and Repatriation Commission (1997) 47 ALD 721
Re Repatriation Commission and Stares (1996) 41 ALD 212
Re Robinson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cooke (1998) 90 FCR 307)
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Webb (1998) 51 ALD 575
Repatriation Commission v Whetton (1991) 24 ALD 33
Stoddart v Repatriation Commission (2003) 74 ALD 366
White v Repatriation Commission [2004] FCA 633
REASONS FOR DECISION
4 May 2005 Miss E.A. Shanahan, Member
1. This is an application by Leslie Leonard John Finger (the applicant) for review of two decisions of a delegate of the Repatriation Commission (the respondent) dated 3 May 2002 and 20 November 2002. The two decisions were affirmed by the Veterans’ Review Board (VRB), following amendments to the diagnosis of the claimed conditions, on 24 September 2003. The VRB found that no severe psychosocial stressor had been identified to fit the template of the Statement of Principles (SoP) concerning a depressive disorder or the condition of peptic ulcer disease (ulcerative esophagitis). The VRB also found that the material before it did…

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 Finger and Repatriation Commission

Details

AGLC: Finger and Repatriation Commission [2005] AATA 400
Case: [2005] AATA 400
Decision Date: 4 May 2005

CaseChat Overview and Summary

The applicant, Leslie Leonard John Finger, appealed a decision of the Veterans’ Review Board that found his psychiatric condition, chronic depressive disorder, was not war-caused and therefore not eligible for a war-caused disability pension. The applicant also sought a special rate of disability pension. The respondent, the Repatriation Commission, conceded that the applicant's ulcerative oesophagitis was war-caused. The Tribunal found that the applicant's chronic depressive disorder was not war-caused. The Tribunal determined that the hypothesis that the applicant's psychiatric condition was caused by his service was not reasonable. The Tribunal found that the applicant did not experience any severe stressor during his service that could have triggered his chronic depressive disorder, as required by the relevant Statement of Principles. The Tribunal also found that the applicant's amnesia regarding his service did not support a diagnosis of post-traumatic stress disorder. The Tribunal concluded that the applicant's psychiatric condition was not war-caused and therefore not eligible for a war-caused disability pension. The applicant's claim for a special rate of disability pension was also dismissed.

The Tribunal varied the decision under review by amending the diagnosis of the applicant's peptic ulcer disease to ulcerative oesophagitis, secondary to gastro oesophageal reflux. The Tribunal determined that the ulcerative oesophagitis was a war-caused disease, with effect from 20 May 2001. The Tribunal affirmed the decision of the Repatriation Commission in all other respects. The pension remained payable at 30 per cent of the general rate with effect from 20 May 2001.

Orders