Hewson and Repatriation Commission - [2003] AATA 1241

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 1241
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/973

VETERANS' APPEALS DIVISION )

Re ROBERT JOHN HEWSON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Michael Sassella, Senior Member
Dr M E C Thorpe, Member
Date10 December 2003
PlaceSydney

Decision The decision under review is varied so that the diagnosis of post-traumatic stress disorder with associated major depression and alcohol dependence becomes a diagnosis of sleep apnoea.

The decision under review is affirmed in that no new disease is accepted as war- or defence-caused.

The decision under review is varied in that the rate of Disability Pension with effect from 23 September 2002 is 60% of the general rate in accordance with the decision of the Veterans’ Review Board dated 26 February 2003.
(sgd) M J Sassella
Senior Member

CATCHWORDS
VETERANS' ENTITLEMENTS – Disability Pension – sleep apnoea not war-caused – sleep apnoea not defence caused – depressive disorder not diagnosed
Veterans’ Entitlements Act 1986 s 14, s 15, s 20, s 120(1), s 120(3) and s 120(4)
Statement of Principles 58/98 concerning depressive disorder
Statement of Principles 39/97 concerning sleep apnoea
Statement of Principles 40/97 concerning sleep apnoea
Benjamin v Repatriation Commission (2001) 34 AAR 270
Budworth v Repatriation Commission (2001) 63 ALD 402
Cooke v Repatriation Commission (1998) 90 FCR 307
Smith v Repatriation Commission (1987) 74 ALR 537
REASONS FOR DECISION

10 December 2003 Michael Sassella, Senior Member
Dr M E C Thorpe, Member

RESULT

The tribunal has decided that Mr Hewson’s psychiatric disease is sleep apnoea. It has decided also that this is not a war-caused or defence-caused disease. This means that Mr Hewson’s Disability Pension will remain at its current level of 60% of the general rate.

BACKGROUND
1.Robert John Hewson (“the applicant”) suffers from an intervertebral disc prolapse which, with bilateral sensori-neural hearing loss, has been accepted as war-caused by the Repatriation Commission (“the respondent”). Mr Hewson is paid a Disability Pension at 60% of the general rate in recognition of these conditions. Disability Pensions are paid to veterans under Part II of the Veterans’ Entitlements Act 1986 (“the Act”)[1].. Mr Hewson sought to have his pension increased by asking the respondent to accept as war-caused or defence-caused the conditions of irritable bowel syndrome, skin condition, anxiety state, depression, adjustment disorder and alcohol abuse. The Repatriation Commission interpreted this as a claim for conditions of irritable bowel syndrome, chronic superficial dermatitis, alcohol abuse (in remission) and sleep apnoea. It rejected all of these as war- or defence-caused conditions. Mr Hewson appealed this decision to the Veterans’ Review Board which decided to call the conditions post-traumatic stress disorder with associated major depression and alcohol dependence and then it agreed with the Commission and rejected the claims. Mr Hewson has appealed the Board’s decision to the Administrative Tribunal (“the tribunal”).
[1] Hewson’s argument is that he has developed depression as a consequence of his accepted disability, intervertebral disc prolapse. The depression should therefore be accepted…

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 Hewson and Repatriation Commission

Details

AGLC: Hewson and Repatriation Commission [2003] AATA 1241
Case: [2003] AATA 1241
Decision Date: 10 December 2003

CaseChat Overview and Summary

The case of Hewson and Repatriation Commission involved the claimant, Hewson, who sought a disability pension based on various health conditions. The Repatriation Commission denied the claim, leading to an appeal before the Administrative Appeals Tribunal (AAT). The primary issue was whether Hewson’s sleep apnoea and depressive disorder met the criteria for a disability pension under the Veterans’ Entitlements Act 1986. This hinged on whether these conditions were connected to his military service, either as a result of the war or the defence service.

The tribunal had to determine if Hewson's sleep apnoea and depressive disorder were war-caused or defence-caused as defined by the Act and relevant Statements of Principles. The tribunal examined the medical evidence and statements of principles concerning sleep apnoea and depressive disorder. It also considered the claimant's military service history to establish whether there was a causal link between his military service and the diagnosed conditions. The tribunal found that while Hewson suffered from sleep apnoea, it was not war-caused or defence-caused, and there was no evidence to support a diagnosis of depressive disorder.

Ultimately, the tribunal varied the decision under review, substituting the diagnosis of post-traumatic stress disorder with associated major depression and alcohol dependence with sleep apnoea. This substitution was based on the medical evidence provided, which established the presence of sleep apnoea but did not support the other conditions. The tribunal's reasoning was grounded in the statutory definitions and the principles outlined in the Veterans’ Entitlements Act 1986 and relevant case law. The final order was that the diagnosis of post-traumatic stress disorder with associated major depression and alcohol dependence became a diagnosis of sleep apnoea.

Orders

Orders of the court

The decision under review is varied so that the diagnosis of post-traumatic stress disorder with associated major depression and alcohol dependence becomes a diagnosis of sleep apnoea.

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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Decision	The decision under review is varied so that the diagnosis of post-traumatic stress disorder with associated major depression and alcohol dependence becomes a diagnosis of sleep apnoea.
The decision under review is affirmed in that no new disease is accepted as war- or defence-caused.
The decision under review is varied in that the rate of Disability Pension with effect from 23 September 2002 is 60% of the general rate in accordance with the decision of the Veterans’ Review Board dated 26 February 2003.