DECISION AND REASONS FOR DECISION [2002] AATA 390
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2000/4
VETERANS APPEALS DIVISION )
Re NEIL FRANCIS HUSBAND
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J. Handley, Senior Member
Date24 May 2002
PlacePerth
Decision The decision under review is affirmed.
......….Sgd. Mr J. Handley............
Senior Member
CATCHWORDS
Veterans Entitlements - Chronic fatigue syndrome - whether applicant had an inability to obtain appropriate clinical management - decision affirmed.
Veterans Entitlements Act 1986
Safety, Rehabilitation and Compensation Act 1988
Johnston v Commonwealth of Australia (1982) 43 ALR 559.
Lee v Minister of Pensions No. 2 (1948 3 War Pensions Appeals Reports 1901)
Brew v Repatriation Commission 1999 FCA 1246
Re Crowe and Repatriation Commission (1999) AATA 115
REASONS FOR DECISION
24 May 2002 Mr J. Handley, Senior Member
The applicant applies to review a decision of the Veterans Review Board ("VRB") made on 16 September 1999, where it was then decided that Chronic Fatigue Syndrome was not defence caused. In making its decision, the VRB affirmed a decision of the respondent previously made on 17 November 1998.
At all relevant times the applicant served within Australia and that service may relevantly be regarded as "defence service". Accordingly, any entitlement of the applicant is to be determined upon the balance of probabilities.
Having regard to the documents filed, it appears that it is not in dispute that the applicant suffers the condition of chronic fatigue syndrome. Additionally, it appears that that condition is a sequel to an accepted disability of leptospirosis. Additionally, I note that the condition of leptospirosis has been accepted by the Military Compensation and Rehabilitation Service on behalf of the Department of Defence, as an injury, which arose out of or in the course of the employment. This has given rise to an entitlement to compensation under the Safety, Rehabilitation and Compensation Act 1988.
It is also to be noted that the applicant has been a party to proceedings before this Tribunal, with respect to a claim for intermediate or special rate pension (1999 AATA 214). The Tribunal then determined that it could not consider chronic fatigue syndrome in the assessment of pension, because it had not been accepted as defence caused. The applicant appealed that decision to the Federal Court ([2000] FCA 356) and then to the Full Federal Court ([2000] FCA 1276). The single judge of the Federal Court dismissed the appeal against the decision of the Tribunal. The Full Federal Court dismissed the appeal against the decision of the single judge.
Having regard to the date that this application was made upon the respondent, a Statement of Principles must be considered. The only applicable Statement of Principles for chronic fatigue syndrome published with respect to defence service is Instrument No. 91 of 1997. This Instrument revoked Instrument No 287 of 1995.
Factor 5(a) provides that one of the three listed factors "must exist before it can be said that on the balance of probabilities…
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CaseChat Overview and Summary
The AAT found that the relevant case law, particularly Brew v Repatriation Commission, established that the term "inability" should be interpreted broadly to include both objective and subjective barriers to obtaining treatment. The tribunal concluded that there was no evidence of an objective barrier, as the applicant was free to seek treatment from any doctor of his choosing. Furthermore, the tribunal noted that in 1997, the year of the applicant's treatment, there were no known treatments for chronic fatigue syndrome, and thus no subjective barrier existed. The tribunal found that the applicant had not demonstrated an inability to obtain appropriate clinical management for his condition. The appeal was dismissed, and the decision of the Repatriation Commission was affirmed.
The tribunal's reasoning was based on the established interpretation of the term "inability" in the context of veterans' entitlements, and the specific circumstances of the applicant's case. The tribunal found that the case law, particularly the decision in Brew, provided a clear framework for determining whether an applicant had an inability to obtain appropriate clinical management. In this case, the tribunal concluded that the applicant had not met the required threshold, and thus the appeal was dismissed. The decision of the Repatriation Commission was affirmed, and the applicant's claim for compensation for chronic fatigue syndrome was denied.
Orders
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