Fotek and Repatriation Commission - [2014] AATA 117

[2014] AATA 117

Division VETERANS' APPEALS DIVISION

File Number

2013/3935

Re

Jan Fotek

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Mr R G Kenny, Senior Member

Date 5 March 2014

Place Brisbane
The Tribunal affirms the decision under review.
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Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Disability pension – Operational service with Royal Australian Navy – Application of Statement of Principles – Appropriate diagnosis of psychiatric conditions – No factual basis for diagnosis of posttraumatic stress disorder – Posttraumatic stress disorder not war-caused – Decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 6C, 7, 9, 14, 37, 120, 120A, 196B
CASES
Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363
O’Dowd v Repatriation Commission [2013] FCA 991
Repatriation Commission v Bawden (2012) 206 FCR 296
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Warren (2007) 95 ALD 606
SECONDARY MATERIALS
Statement of Principles concerning Posttraumatic Stress Disorder, No. 5 of 2008 (As amended by Amendment Statement of Principles no 19 of 2014).
REASONS FOR DECISION
Mr R G Kenny, Senior Member
5 March 2014
BACKGROUND

On 5 August 2010, Jan Fotek lodged with the Repatriation Commission

(“the respondent”), in accordance with s 14 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), a claim for a disability pension in respect of a condition diagnosed as posttraumatic stress disorder. He contended that this was related to circumstances of his service with the Royal Australian Navy (“the RAN”) while he was serving in South Vietnam. On 14 December 2010, the respondent determined that Mr Fotek’s posttraumatic stress disorder was not related to his service. On 21 May 2013, the Veterans’ Review Board affirmed the decision.
ISSUES AND SERVICE
Mr Fotek served in the RAN from 3 January 1967 until 8 July 1988 and this included a period of eligible war service in the form of operational service, as provided for in s 7 and s 6C of the Act, respectively, from 14 September 1970 until 8 April 1971. He also served a period of defence service which is not relevant to this claim. Under s 9(1)(b) of the Act, a condition will be war-caused if it “arose out of, or was attributable to, any eligible war service rendered by the veteran”.
The standard of proof to be used in determining diagnostic matters under the Act is provided for in s 120(4). This requires that such matters be determined on the balance of probabilities.[1] For issues of causation for operational service, the standard of proof is set out in s 120(1) of the Act. It reads:
Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war caused injury, that the disease was a war-caused disease or that the death of the veteran…

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 Fotek and Repatriation Commission

Details

AGLC: Fotek and Repatriation Commission [2014] AATA 117
Case: [2014] AATA 117
Decision Date: 5 March 2014

CaseChat Overview and Summary

The case of Fotek and Repatriation Commission concerns an application for a disability pension in relation to psychiatric conditions experienced by Mr Fotek during his operational service with the Royal Australian Navy. The primary issue before the court was whether Mr Fotek's posttraumatic stress disorder (PTSD) was attributable to his service, as required by section 9 of the relevant Act. The court had to determine if the PTSD diagnosis was appropriate based on the evidence presented and whether any of the claimed stressful events during his service qualified as war-caused under the Act.

The court examined the evidence provided by both parties. Mr Fotek claimed that three specific incidents during his service in South Vietnam met the diagnostic criteria for PTSD. The respondent, however, argued that the evidence did not support a PTSD diagnosis and, even if it did, the condition was not attributable to Mr Fotek’s operational service as required by the Act. The court considered the credibility and factual basis of Mr Fotek’s claims regarding these incidents and whether they indeed caused the alleged PTSD.

After reviewing the evidence, the court concluded that there was no factual basis for a diagnosis of PTSD based on the incidents described by Mr Fotek. The court found that even if PTSD were diagnosed, it could not be attributed to his operational service as none of the incidents occurred as claimed. The court affirmed the decision under review, upholding the Commission’s decision to deny Mr Fotek's claim for a disability pension related to PTSD.

The court's decision was grounded in the lack of evidentiary support for both the diagnosis and the attribution of PTSD to Mr Fotek’s service, as required by the Act. The evidence did not substantiate the claimed incidents or their effects on Mr Fotek, leading the court to affirm the decision to reject his pension claim.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For Mr Fotek, Anthony Harding submitted that Mr Fotek experienced three stressful events in South Vietnam, each of which satisfied the diagnostic criteria for posttraumatic stress disorder and any one of which was responsible for causing that condition as provided for in s 9 of the Act. For the respondent, Bruce Williams submitted that Mr Fotek’s case did not provide evidence for a diagnosis of posttraumatic stress disorder and that, even if it did so, the condition was not attributable to his operational service in the manner provided for in s 9 of the Act in that none of the three events relied upon by Mr Harding occurred in the manner or with the effects claimed by Mr Fotek.EVIDENCEMr Fotek During his operational service, Mr Fotek was aged 19 years and he worked as a radar plotter in the operations room of HMAS Perth (“the Perth”). He described this as the Perth’s “nerve centre” in which all aspects of the activities were monitored. The ship’s captain was posted either in the operations room or in the adjacent area of the bridge. The swimmer incident On 11 October 1970, the Perth was on the gunline off the coast of Vietnam when three sailors reported seeing a swimmer in the water near the ship. The Perth immediately left the area and, when clear of other vessels, came to a stop so that the ship’s divers could undertake a search of the ship’s hull for mines. Mr Fotek said that, after about an hour, conditions became difficult for the ship’s divers with their lines becoming tangled and they were brought back on board. The search was abandoned even though only about half of the hull had been searched. Mr Fotek felt scared at the time and had thoughts of “what if” there had been a mine which detonated and damaged or even caused the Perth to sink. He referred to “not knowing the unknown” in relation to whether or not mines had been attached to the Perth by enemy swimmers. His concerns were that the search for mines had not been completed and that he was in the forward part of the Perth which, as with the HMAS Voyager, had sunk when the vessel was cut in two by the HMAS Melbourne. The prisoners incident On 1 February 1971, while operating on the gunline, the Perth encountered a fishing boat with more people on board than usual. The boat was signalled alongside the Perth and the men on board were brought on to the Perth. Some of the men, Mr Fotek believed six of them, were Viet Cong who had wanted to surrender themselves. The Perth’s crew, apart from those required to tend the men, were required to remain below deck. That included Mr Fotek who was able to briefly emerge onto the deck to see the men and take photographs of them. On the intercom, he heard that a South Vietnamese patrol boat was to come and take the men into custody but he understood that the captain of the Perth was reluctant to release them because he was concerned for their safety. Mr Fotek understood that the patrol boat departed but returned later and took the prisoners away.

Decision

Reasons for decision

I am reasonably satisfied that a diagnosis of posttraumatic stress disorder cannot be made on the material before me. For that reason, Mr Fotek’s posttraumatic stress disorder is not war-caused in accordance with s 9 of the Act.DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

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Division	VETERANS' APPEALS DIVISION
File Number	2013/3935
Re	Jan Fotek
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Mr R G Kenny, Senior Member
Date	5 March 2014
Place	Brisbane