Grosvenor and Repatriation Commission - [2002] AATA 601

DECISION AND ORAL REASONS FOR DECISION [2002] AATA 601

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2001/323

VETERANS' APPEALS DIVISION       )
           Re      JAMES BRENDON GROSVENOR
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date11 July 2002
PlaceAdelaide

Decision      For the reasons given orally at the Hearing of this matter, the Tribunal decides that it does not have jurisdiction in these proceedings, to make a determination in respect of the condition of post traumatic stress disorder.
  .              (Signed)
  WJF PURCELL
  (Senior Member)
CATCHWORDS
PRACTICE & PROCEDURE – jurisdiction – whether PTSD is properly before Tribunal

ORAL REASONS FOR DECISION

11 July 2002 Senior Member WJF Purcell

The applicant has applied for review of a decision of the respondent (the Commission) dated 10 December 1998, which refused a claim for medical treatment and pension for incapacity from "stress and anxiety", which the Commission described as "psychoactive substance abuse or dependence involving alcohol". The Commission did not accept the condition was war-caused. The decision was affirmed by the Veterans' Review Board (VRB) on 19 February 2001.
The matter came on for hearing in relation to jurisdiction, as the applicant maintains that the application currently before the Tribunal includes a reconsideration of whether the applicant suffered post traumatic stress disorder (PTSD) as diagnosed by Dr Ewer, Psychiatrist, in his report of 18 February 2000. The Commission argues that the Tribunal does not have jurisdiction to make a determination in respect of PTSD.
The applicant, who is 56 years of age, joined the Royal Australian Airforce (RAAF) on 14 August 1967 and was discharged on 13 August 1973. His operational service was in Vietnam from 21 November 1969 to 20 November 1970, attached to No 2 Squadron. He also rendered defence service from 7 December 1972 to 13 August 1973.
On 16 October 1998, the applicant lodged a claim for Disability Pension, in relation to his "stress and anxiety". In response to the question "why do you believe your service caused, contributed to or aggravated this disability?" the applicant stated "please refer to Dr E. Jensen".
At the request of the Department of Veterans' Affairs (the Department), Dr Jensen, Psychiatrist, provided a report dated 3 December 1998, in which she diagnosed the condition of "alcohol dependence with psychological dependence". She made no mention of any other psychiatric condition, nor of PTSD, and commented that the applicant's symptoms of stress and anxiety were "related to his alcohol dependency".
On 10 December 1998 the Commission rejected the applicant's claim, and on 15 October 1999, he lodged a further claim for acceptance of his disability of "stress and anxiety" and "alcoholic abuse". He was advised on 4 November 1999 that this new claim was invalid as he still had a right of appeal to the VRB, and that the claim would be treated as an appeal to the VRB against the rejection of the condition of psychoactive substance abuse, or dependence involving alcohol.
The applicant was examined by Dr Ewer, Psychiatrist, on 2 December…

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.

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Details

AGLC: Grosvenor and Repatriation Commission [2002] AATA 601
Case: [2002] AATA 601
Decision Date: 11 July 2002

CaseChat Overview and Summary

The applicant, James Brendon Grosvenor, sought review of a decision by the Repatriation Commission which had rejected his claim for medical treatment and pension for incapacity from "stress and anxiety". The Commission did not accept the condition was war-caused, and this decision was affirmed by the Veterans' Review Board (VRB). The applicant argued that the Tribunal should reconsider whether he suffered post traumatic stress disorder (PTSD), as diagnosed by Dr Ewer in February 2000, but the Commission argued that the Tribunal lacked jurisdiction to make a determination in respect of PTSD.

The legal issue for the Tribunal was whether it had jurisdiction to make a determination in respect of the condition of PTSD. The Tribunal needed to determine if PTSD was properly before it, given that the applicant had not previously lodged a claim for PTSD and the VRB had not made a determination regarding PTSD. The Tribunal also needed to consider the implications of the Commission's incorrect advice to the applicant on 29 February 2000, that his claim could not be accepted as he still had a matter before the VRB in relation to stress and anxiety.

The Tribunal found that PTSD and psychoactive substance abuse, or dependence involving alcohol, were separate conditions with separate Statements of Principle. The reviewable decision before the Tribunal related to "psychoactive substance abuse or dependence involving alcohol" in line with Dr Jensen's diagnosis in December 1998. The first time the Commission became aware that the applicant was suffering from PTSD was on 20 February 2000, when the applicant lodged a claim for a service pension. The first time the applicant made a formal claim for PTSD was on 25 February 2000, and the Commission acknowledged that the advice given to the applicant on 29 February 2000 was incorrect, and that the claim for PTSD lodged on 25 February 2000 was a valid claim. The Tribunal decided that, until the VRB reviewed the matter, there was no reviewable decision in relation to the condition of PTSD, and therefore the Tribunal did not have jurisdiction to make a determination in respect of the condition.

The Tribunal decided that it did not have jurisdiction in these proceedings to make a determination in respect of the condition of post traumatic stress disorder.

Orders