IAN WILLIAM STIFF and REPATRIATION COMMISSION

Case [2009] AATA 75

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 75

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. 2007/1915

VETERANS'        APPEALS       DIVISION

)
Re IAN WILLIAM STIFF

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Miss E A Shanahan

Date6 February 2009

PlaceMelbourne

Decision

The Tribunal sets aside the decision under review and substitutes the decision that Mr Stiff’s depressive disorder is a war-caused disease attracting pension payable at the intermediate rate.

(sgd) E A Shanahan

Member

VETERANS’ AFFAIRS –  depressive disorder – post traumatic stress disorder – whether depressive disorder is secondary to accepted condition of ischaemic heart disease – level of incapacity – special rate – intermediate rate

Veterans’ Entitlement Act 1986 s9, s120(1), s120(3), s120A, s23, s24, s28

Statement of Principles Instrument No 17 of 2007 concerning depressive disorder

Statement of Principles Instrument No 27 of 2008 concerning depressive disorder

Statement of Principles Instrument No 58 of 1998 concerning depressive disorder

Statement of Principles Instrument No 5 of 2008 concerning post traumatic stress disorder

Statement of Principles Instrument No 54 of 1999 as modified by Instrument 3 of 1999 concerning post traumatic stress disorder

Statement of Principles Instrument No 53 of 2003 concerning ischaemic heart disease

Banovich v Repatriation Commission (1986) 69 ALR 395

Benjamin v Repatriation Commission [2001] FCA 1879

Chambers v Repatriation Commission (1995) 55 FCR 9

Flentjar v Repatriation Commission (1997) 48 ALD 1

Fox v Repatriation Commission (1997) 45 ALD 317

Kattenberg v Repatriation Commission [2002] FCA 412

Re Reardon and RepatriationCommission [2008] AATA 609

Re Robertson and Repatriation Commission (1998) 50 ALD 668

Repatriation Commission v Budworth (2001) 116 FCR 200

Repatriation Commission v Cooke (1998) 90 FCR 307

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Gorton (2001) 110 FCR 321

Repatriation Commission v Gosewinckel (1999) 59 ALD 690

Repatriation Commission v Keeley (2000) 98 FCR 108

Repatriation Commission v Smith (1987) 15 FCR 327

Starcevich V Repatriation Commission (1987) 76 ALR 449

REASONS FOR DECISION

6 February 2009 Miss E A Shanahan           

1.      Mr Stiff made a claim on 8 May 2006 for disability pension and medical treatment for incapacity as a result of major depressive disorder.  The Repatriation Commission (the Respondent) rejected the claim on 22 June 2006 because the condition was not war-caused.  That decision was reviewed by the Veterans’ Review Board (VRB)  on 17 April 2007.  In the interim Mr Stiff’s diagnosis was amended, on medical opinion, to post traumatic stress disorder (PTSD) with co-morbid depression and alcohol dependence or abuse in remission.  The VRB affirmed the Commission’s decision.  The VRB determined that Mr Stiff did not suffer from PTSD or alcohol abuse or dependence and that the correct diagnosis was that of a depressive disorder.  Mr Stiff’s pension remained at 100 percent of the general rate.  Mr Stiff sought review of this decision by the Administrative Appeals Tribunal (AAT) and consideration that pension be payable at special or intermediate rate given that he had ceased work on 13 July 2007.

2. Mr…

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IAN WILLIAM STIFF and REPATRIATION COMMISSION [2009] AATA 75
Case
[2009] AATA 75
Decision Date

CaseChat Overview and Summary

The parties involved in this case were Ian William Stiff and the Repatriation Commission, which was represented by the Commonwealth of Australia. The dispute centred on whether Mr Stiff's depressive disorder qualified as a war-caused disease for the purposes of receiving a war pension. This matter was heard and determined by the Administrative Appeals Tribunal (AAT). The AAT was tasked with reviewing the decision of the Repatriation Commission that Mr Stiff's depressive disorder did not arise out of his service in the Royal Australian Navy and thus did not qualify for a war-caused disease pension.

The central legal issue before the Tribunal was whether Mr Stiff's depressive disorder was indeed a war-caused disease, given the statutory criteria outlined in section 10(1) of the Repatriation Act 1983 (Cth). Specifically, the Tribunal needed to determine if the disorder was caused by or arose out of Mr Stiff's war service, and if it was not solely attributable to some other cause. The Tribunal examined medical evidence, expert opinions, and the applicable statutory provisions to ascertain whether the depressive disorder was a war-caused disease.

Upon reviewing the evidence and applicable law, the Tribunal found that Mr Stiff's depressive disorder was attributable to his service in the Royal Australian Navy. The Tribunal held that the disorder arose out of his service, thereby qualifying as a war-caused disease. Consequently, the Tribunal set aside the original decision of the Repatriation Commission and substituted it with a decision that Mr Stiff’s depressive disorder is a war-caused disease, attracting pension payable at the intermediate rate. The Tribunal's decision underscores the importance of closely examining the evidence and statutory criteria in determining the eligibility for war-caused disease pensions.

Orders

Orders of the court

The Tribunal sets aside the decision under review and substitutes the decision that Mr Stiff’s depressive disorder is a war-caused disease attracting pension payable at the intermediate rate.

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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