Hall and Repatriation Commission

[2009] AATA 883

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 883

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1431

VETERANS' APPEALS DIVISION		)
Re		JOHN HAY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr S Karas, AO, Senior Member

Date13 November 2009

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Benefits and entitlements – Eligible defence service – Claim for eating disorder – Consideration of Statement of Principles – No causal factor relating condition to service – Decision under review affirmed.

Veterans’ Entitlements Act 1986 (Cth), s 120

Millen and Repatriation Commission [2000] AATA 508

REASONS FOR DECISION

13 November 2009 Mr S Karas, AO, Senior Member

BACKGROUND

1.      John Hay (“the applicant”) was born on 27 December 1954 and served with the Royal Australian Navy from 10 July 1970 to 9 July 1982.  His defence service as defined by the Veterans’ Entitlements Act 1986 (“the Act”) was from 7 December 1972 to 9 July 1982.  He is currently unemployed.

2. The applicant was assessed at 30% of the general rate of disability pension. On 4 July 2008, the Repatriation Commission (“the respondent”) decided that the applicant’s eating disorder was not defence-caused within the meaning of s 70 of the Act. That decision was affirmed by a departmental review officer and, on 3 March 2009, by the Veterans’ Review Board (“VRB”).

3.      On 8 April 2009, the applicant applied for review to the Administrative Appeals Tribunal (“the Tribunal”).

ISSUES AND LEGISLATION

4. The issue for the Tribunal to determine is whether the applicant’s eating disorder is “defence-caused”, that is, whether a connection exists between the applicant’s condition and his service. For the applicant to succeed, he must prove such a connection to the Tribunal’s “reasonable satisfaction”: s 120(4) of the Act. For the Tribunal to be so satisfied, a Statement of Principles (“SoP”) must uphold (by reference to factors contained therein) that such a connection exists “on the balance of probabilities”: s 120B(3) of the Act.

5.      The relevant SoP for this matter is Instrument No. 48 of 2008 relating to eating disorder, as amended by Instrument No. 48 of 2009.   

6.      Counsel for the applicant, Ms A Frizelle, submitted that the applicant’s eating disorder is associated with stressors suffered during his naval service from 1972 to 1974 onboard HMAS Snipe.  These stressors, continued Ms Frizelle, constitute a “category 2 stressor” (which term is defined in the SoP).  The stressor she identified was example (c) in the category 2 stressor definition: “having concerns in the work … environment including … perceived lack of control over tasks performed and stressful work loads …”

7.      Factors 6(c) and 6(n) are relevant and provide as follows:

(c)experiencing a category 2 stressor within the one year before the clinical onset of eating disorder; or

…

(n)inability to obtain appropriate clinical management for eating disorder.

EVIDENCE

8.      The applicant joined the Navy as a 15½ year old in 1970 and underwent training in Western Australia…