Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 89
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/41
VETERANS' APPEALS DIVISION ) Re John Lester Gorton Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Ms S M Bullock, Senior Member
Dr J D Campbell, Member
Rear Admiral A Horton AO, MemberDate31 January 2003
PlaceSydney
Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Administrative Appeals Tribunal decides that:
(i) In relation to the condition of post traumatic stress disorder, the decision under review is set aside and in substitution therefor, the Tribunal decides that Mr Gorton’s psychiatric condition is correctly diagnosed as post traumatic stress disorder and this condition is war-caused with effect from and including 20 February 1998.
(ii) The assessment of the appropriate rate of Disability Pension is remitted to the Respondent.
(iii) In relation to the decision under review concerning sebaceous cyst of the abdomen, back and head, the diagnosis is varied to sebaceous cyst of the scalp and fibrolipomata of the abdomen and back. The decision with the varied diagnosis is affirmed.
...............................................
Ms S M Bullock
Presiding Member
CATCHWORDS
VETERANS’ AFFAIRS – Disability Pension – Diagnosis – Post Traumatic Stress Disorder – Anxiety – Adjustment Disorder – Sebaceous Cyst – Fibrolipomata - Reasonable Hypothesis – Reasonable Satisfaction
PRACTICE AND PROCEDURE – Concurrent Medical Evidence
LEGISLATION
Veterans’ Entitlements Act 1986 ss 9, 13, 119,120, 120A
AUTHORITIES
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Gorton v Repatriation Commission (2001) 63 ALD 723
Repatriation Commission v Williams [2001] FCA 1195
Benjamin v Repatriation Commission (2001) 64 ALD 411
Budworth v Repatriation Commission (2001) 116 FCR 200
Meehan v Repatriation Commission (2001) 64 ALD 366
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Bey (1997) 79 FCR 364
East v Repatriation Commission (1987) 16 FCR 517
Re Repatriation Commission and Freeman (2000) 61 ALD 259
Bull v Repatriation Commission (2001) 66 ALD 271
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Dunlop v Repatriation Commission [2002] FCA 1400
Repatriation Commission v Hill [2002] FCAFC 192
Repatriation Commission v Gorton (2001) 110 FCR 321
REASONS FOR DECISION
January 2003 Ms S M Bullock, Senior Member
Dr J D Campbell, Member
Rear Admiral A Horton AO, Member1. This is an application for review to the Administrative Appeals Tribunal (“the Tribunal”) by the Applicant, Mr John Lester Gorton, of a decision of the Veterans’ Review Board (‘the Board”) dated 13 December 2000 (T20) which affirmed a decision of the Respondent, the Repatriation Commission (“the Commission”), dated 10 December 1998 (T2), which refused a claim for post traumatic stress disorder and for sebaceous cysts of the abdomen, back and head.
2. A Hearing was held before the Tribunal in Sydney on 22 November 2001 and resumed on 1 May 2002. The Applicant was represented by Mr D Price of Counsel, and the Respondent was represented by Mr J Marsh, Departmental Advocate. Mr Gorton provided…
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- Gorton and Repatriation Commission [2003] AATA 89
- Case
- [2003] AATA 89
- Decision Date
CaseChat Overview and Summary
The court had to consider the evidence presented regarding Mr Gorton's psychiatric and physical health, including medical reports and expert testimonies. A significant issue was whether the veteran's condition was reasonably attributable to his service, particularly concerning the diagnosis of post-traumatic stress disorder. The court also needed to evaluate the appropriateness of the concurrent medical evidence provided by the parties and decide whether the diagnoses met the standard of being a reasonable hypothesis supported by the evidence.
The court concluded that Mr Gorton's psychiatric condition was correctly identified as post-traumatic stress disorder and that this condition was reasonably attributable to his service. The diagnosis of sebaceous cysts and fibrolipomata was varied to include fibrolipomata, but the court affirmed the decision with the revised diagnosis. The court found that the evidence supported the reasonable hypothesis that the veteran's conditions were war-caused and set aside the initial decision concerning the post-traumatic stress disorder diagnosis, substituting it with its own determination. The assessment of the appropriate rate of the disability pension was remitted to the Repatriation Commission for reconsideration.
The court's final orders included setting aside the original decision on the post-traumatic stress disorder diagnosis and substituting its own decision, affirming the varied diagnosis of sebaceous cyst of the scalp and fibrolipomata of the abdomen and back. The assessment of the appropriate rate of disability pension was remitted back to the Repatriation Commission for further evaluation.
Orders
Orders of the court
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Administrative Appeals Tribunal decides that:
(i) In relation to the condition of post traumatic stress disorder, the decision under review is set aside and in substitution therefor, the Tribunal decides that Mr Gorton’s psychiatric condition is correctly diagnosed as post traumatic stress disorder and this condition is war-caused with effect from and including 20 February 1998.
(ii) The assessment of the appropriate rate of Disability Pension is remitted to the Respondent.
(iii) In relation to the decision under review concerning sebaceous cyst of the abdomen, back and head, the diagnosis is varied to sebaceous cyst of the scalp and fibrolipomata of the abdomen and back. The decision with the varied diagnosis is affirmed.
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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