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Hicks and Repatriation Commission

Hicks and Repatriation Commission

Case [2004] AATA 266 10 March 2004

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Statutory Interpretation

Veterans’ Entitlements

Administrative Law

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Administrative

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DECISION AND REASONS FOR DECISION [2004] AATA 266
ADMINISTRATIVE APPEALS TRIBUNAL N 2002/1709

VETERANS APPEALS DIVISION

Re: Francis John Hicks
Applicant

And: Repatriation Commission
Respondent

DECISION
Tribunal:       P.J. Lindsay, Senior Member, Dr J. Campbell, Member
Date:             10 March 2004
Place:            Sydney
Decision:The decision under review is varied by finding that the applicant does not suffer from anxiety disorder and post traumatic stress disorder, but the diagnosis should be changed to alcohol dependence with physiological dependence which is not determined to be war-caused. In all other respects the decision is affirmed.

. . . . . . . . .. . . . . . . . . . . . . . . .
Senior Member

© Commonwealth of Australia (2004)

CATCHWORDS
VETERANS’ AFFAIRS – disability pension – operational service – diagnosis of psychiatric symptoms - diagnosis varied to alcohol dependence with physiological dependence ALONE - decision under review otherwise affirmed
Veterans’ Entitlements Act 1986 – ss. 120, 120A, 196B
Repatriation Medical Authority Statements of Principles:
- Instrument No. 3 of 1999 concerning Post Traumatic Stress Disorder as amended by Instrument No. 54 of 1999.
- Instrument No. 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse.
Repatriation Commission v Hill (2002) 69 ALD 581
Benjamin v Repatriation Commission (2001) 34 AAR 270
Repatriation Commission v Budworth (2001) 66 ALD 285
Repatriation Commission v Deledio (1998) 49 ALD 193
Fogarty v Repatriation Commission (2003) 37 AAR 363
Repatriation Commission v Smith [1987] 74 ALR 537
Woodward v Repatriation Commission (2003) 200 ALR 332
Repatriation Commission v Stoddart [2003] FCAFC 300
Lees v Repatriation Commission (2002) 74 ALD 68
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Parr [2003] 970
REASONS FOR DECISION

P.J. Lindsay, Senior Member, Dr J Campbell, Member

1.       Francis John Hicks has applied to the tribunal under the Veterans’ Entitlements Act 1986 (the Act), for review of a decision made on 7 February 2002 by the Repatriation Commission, as varied by the Veterans’ Review Board. On 11 October 2002 the Board varied the Commission’s diagnosis of a condition, anxiety disorder, to anxiety disorder and post traumatic stress disorder (PTSD). However, the Board affirmed the Commission’s decision that Mr Hicks’ anxiety disorder and PTSD, alcohol abuse and impotence were not war-caused diseases under the Act.
background
2.      Mr Hicks served in the Royal Australian Navy from 1 June 1968 to 16 June 1992. He had two periods of operational service in Vietnam: from 22 February 1970 to 1 March 1970 and from 22 February 1971 to 1 March 1971 and a period of defence service from 7 December 1972 to 16 June 1992 (T2-7).
3.      On 13 November 2001, Mr Hicks lodged an application with the Commission for disability pension for incapacity from loss of hearing due to tinnitus, impotence and anxiety / PTSD. Mr Hicks noted in the claim form that he first became aware of his PTSD in 1969 (T4-21). On 7…

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 Hicks and Repatriation Commission

Details

AGLC: Hicks and Repatriation Commission [2004] AATA 266
Case: [2004] AATA 266
Decision Date: 10 March 2004

CaseChat Overview and Summary

The case before the court involved a dispute between Hicks and the Repatriation Commission concerning the veteran's entitlement to a disability pension. Hicks claimed that his psychiatric symptoms were linked to his operational service, and therefore he was eligible for a pension under the Veterans’ Entitlements Act 1986. The Commission had varied the diagnosis from psychiatric symptoms to alcohol dependence with physiological dependence alone, leading to a denial of Hicks' pension claim. The case was heard in the Federal Court of Australia.

The legal issues before the court were whether Hicks' psychiatric symptoms were connected to his operational service, and if the Commission was correct in varying the diagnosis to alcohol dependence. The court had to determine whether the Commission's decision to affirm the decision under review and deny Hicks' claim was lawful and based on appropriate evidence. Furthermore, the court had to consider the relevant legislative provisions and the Statements of Principles concerning Post Traumatic Stress Disorder and Alcohol Dependence or Alcohol Abuse.

The court found that the Commission's decision was correct in affirming the decision under review and denying Hicks' claim for a disability pension. The court held that the diagnosis of alcohol dependence with physiological dependence was appropriately made, and there was no sufficient evidence to support a link between Hicks' psychiatric symptoms and his operational service. The court concluded that the Commission's decision was lawful, reasonable, and based on appropriate evidence, and therefore, the decision was affirmed.

No further orders were made by the court in this matter.

Orders