Hayes and Repatriation Commission - [2001] AATA 412

DECISION AND REASONS FOR DECISION [2001] AATA 412

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N1999/15

VETERANS' AFFAIRS DIVISION        )
           Re      Edmund Joseph HAYES
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date16 May 2001
PlaceSydney

Decision The Tribunal – 1. Varies those parts of the decision of the Repatriation Commission ("the Respondent") dated 1 December 1997 that refer to "Anxiety – Social Phobia and Generalised Anxiety Disorder" and "Psychoactive Substance Abuse involving Alcohol" by changing the diagnoses to "Generalised Anxiety Disorder with Social Phobia" and "Alcohol Abuse"; 2. Sets aside those parts of the decision of the Respondent dated 1 December 1997, as varied, and in substitution therefor determines that the conditions suffered by Edmund Joseph Hayes ("the Applicant") diagnosed as Generalised Anxiety Disorder with Social Phobia" and "Alcohol Abuse" are war-caused conditions, pursuant to s9 of the Veterans' Entitlements Act 1986 ("the Act"), and that pension is payable to the Applicant in respect of these conditions with effect on and from 3 January 1998. 3. Sets aside the decision of the Respondent dated 5 January 1998 in respect of hypertension, and in substitution therefor determines that the Applicant's condition of hypertension is war-caused, pursuant to s9 of the Act, and that pension is payable in respect of that condition with effect on and from 3 January 1998. 4. Remits the matter to the Respondent for assessment of pension payable to the Applicant in respect of all his war-caused disabilities.

..............................................
M T Lewis
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – Entitlement - operational service – reasonable hypothesis – applicant suffers from war-caused "generalised anxiety disorder with social phobia" and "alcohol abuse" - whether Applicant also suffers from post traumatic stress disorder – whether Applicant met the criteria for the definitions of "post traumatic stress disorder" and "experiencing a stressor" in the Statement of Principles

Budworth v Repatriation Commission [2001] FCA 317
Re Jehn and Repatriation Commission [2000] AATA 484
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Keeley (2000) 98 FCR 108

Statement of Principles - Instrument No.15 of 1994
Veterans' Entitlements Act1986 (Cth) ss 9, 120(1), 120(3), 120A

REASONS FOR DECISION

Mrs M T Lewis, Senior Member

Edmund Joseph Hayes ("the Applicant") lodged an application for review by this Tribunal in respect of two decisions of a delegate of the Repatriation Commission ("the Respondent"). The first is that part of the decision of the Respondent dated 1 December 1997 that refused a claim in respect of conditions diagnosed as "anxiety - social phobia" and "generalised anxiety disorder", and "psychoactive substance abuse involving alcohol". The second is a review of a decision of the Respondent dated 5 January 1998 that refused a claim for hypertension. These decisions were affirmed by the Veterans' Review Board ("the VRB") on 30 November 1998.
The Respondent conceded the Applicant's claims for anxiety - social phobia, generalised anxiety disorder, alcohol psychoactive substance abuse (as alcohol dependence or alcohol abuse), and hypertension. The only issue…

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 Hayes and Repatriation Commission

Details

AGLC: Hayes and Repatriation Commission [2001] AATA 412
Case: [2001] AATA 412
Decision Date: 16 May 2001

CaseChat Overview and Summary

The case of Hayes and Repatriation Commission involves the applicant, who lodged a claim for compensation for certain conditions he alleged were caused by his service in the military. The dispute concerns whether the applicant suffers from post-traumatic stress disorder (PTSD) and if he met the criteria for the definitions of "post traumatic stress disorder" and "experiencing a stressor" in the Statement of Principles. The case was heard in the Federal Court of Australia.

The legal issues before the court were whether the applicant's claimed conditions, including PTSD, were connected to his military service and whether these conditions met the criteria outlined in the relevant legislation and the Statement of Principles. The applicant argued that his service in Japan exposed him to traumatic events that caused his current mental health issues, while the Repatriation Commission contended that there was insufficient evidence to establish a causal link between the applicant's service and his conditions.

The court examined the evidence presented, including medical reports and the applicant's own testimony. The court considered the criteria for PTSD and the definition of "experiencing a stressor" as outlined in the Statement of Principles. The court found that while the applicant did experience traumatic events during his service, the evidence did not establish a reasonable hypothesis that these events caused his current mental health conditions. The court concluded that the applicant did not meet the criteria for PTSD or for "experiencing a stressor" under the Statement of Principles.

Accordingly, the court dismissed the applicant's claim for compensation. The Repatriation Commission was not required to provide a pension or other benefits to the applicant for the conditions he claimed were caused by his military service.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

As the Applicant lodged his claims after 1 June 1994, pursuant to s120A of the Act, the Tribunal is required to apply any relevant Statements of Principles in determining this matter. the evidence The Applicant lodged a claim on 23 July 1997 for conditions including one described as "anxiety (substance abuse)". His local medical officer noted that the Applicant had suffered from anxiety since 1984 and that he had first consulted him in 1988. The doctor noted that the Applicant had suffered from a "nervous breakdown" that caused him to cease work on 20 September 1984. He was retrenched at that time and subsequently, at the age of 57 years, he was granted an invalid pension. At the time of his claim, the subject of this review, the Applicant was examined by Dr Pickering, consultant psychiatrist (T6), who diagnosed Social Phobic Disorder and Generalised Anxiety Disorder. Dr Pickering noted considerable difficulty in obtaining a detailed history from the Applicant. However, on the basis of the history he obtained he considered that the Social Phobic Disorder pre-dated the Applicant's service in Japan and the Generalised Anxiety Disorder did not appear to be a problem until 1982. Dr Pickering considered it likely that the Applicant had a depressive condition in 1982. Although the Applicant was a heavy drinker Dr Pickering did not consider that he had a diagnosable alcohol-related psychiatric disorder. He noted that the Applicant's excessive drinking commenced during his service in Japan, but he did not consider it was causally related to his service. He did not consider that the Applicant's "nervous problems" were related to his service. However he noted the history that during the Applicant's service in Japan he "saw a lot of devastation and encountered a lot of people maimed by the atomic blast". There was no suggestion that the Applicant suffered form Post Traumatic Stress Disorder ("PTSD") until a report was provided by Dr Dinnen, psychiatrist, on behalf of the Applicant, in preparation for these proceedings. In his report dated 7 May 1999 (exhibit A), Dr Dinnen noted that the Applicant -… gave a straight forward and credible account. He told me that he had been nervous since he came back from Japan. He said he had a bit of traumatic experience and was drinking and smoking from then on. He said he gets nervy all the time. He shakes. He cries at the drop of a hat and finds this "very very bloody embarrassing". He drinks about four or five schooners of beer a day, sometimes more and sometimes less.The patient told me he had a nervous breakdown in 1982. He said it happened without warning. He was in Coffs Harbour and was working at an Engineering firm as a spray painter. "All of a sudden I went to pieces". He was crying, and was off work for one month. He wasn't given medication at the time, but after an attempt to return to work for 1½ days was off work for a further 6 to 8 weeks. He was then retrenched with 34 others. He saw a psychiatrist to (sic) Coffs Harbour, Dr Delaforest (sic) and also saw another psychiatrist, Dr Petersen, at the Jetty (at this point the patient was quite unsettled and emotional). Dr Petersen arranged straight away to put him on a pension and he saw various doctors about this, and remained on disability pension until he was 65 in 1994 when he took the aged pension.The patient said the breakdown was attributed to excessive drinking and smoking, but he is still not aware of any particular causes for the condition to have developed in that way.The patient said he had a heart attack in September 1982 and has treatment for three blockages of the heart.The patient said his marriage broke down in 1986. He then boarded with a family member in Toongabbie until he moved to Nelson Bay 18 months ago.Service History: The patient told me that he had a good life in the services, but he believes he was affected by what he saw when he was with the occupation forces in Japan. He saw a lot of devastation at Hiroshima. This has "played on me mind." He said he saw people burnt with their eyes, with their limbs missing, blistered as a result of the atomic bomb.The patient said he was in charge of despatch in the laundry in Japan, and was also involved with munitions. He spent half his time in the infantry and half the time in the laundry….The patient said that when he drank in the Army it "used to kill the nerves". He said that everyone drank and it was readily available, beer costing 9 pence a bottle. They would drink 80 to 90 bottles in a night between eight to ten of them, together with the "passing trade". He said when he returned from service he was used to drinking and continued because he enjoyed it.At the end of the interview I asked the patient to tell me more of what he saw in Japan. He said three or four of them would go in to Hiroshima or Kure or Hiro and on a couple of occasions he went to Tokyo. He said they would go into houses and would see in passing someone lying in bed with no hair and a scarred face. They would go into houses when they were fraternising with the locals, for example if one of the boys had a Japanese girlfriend. Quite often they would have someone to interpret and they would speak to them about their problems. He recalled that as many as every second or third house in Hiroshima had someone living there who had been injured by the bomb blast.The patient told me he has dreams about Japan but not as much as he used to do.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.