Ivo Sist and Repatriation Commission - [2013] AATA 201

[2013] AATA 201

Division VETERANS' APPEALS DIVISION

File Number(s)

2011/5635

Re

Ivo Sist

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Mr John Handley, Senior Member

Date 8 April 2013

Place Melbourne
Decision The decision of the Veterans’ Review Board made on 7 October 2011 in so far as it found that anxiety state was not war‑caused is set aside. In substitution it is decided that anxiety state is war-caused. The remainder of the decision with respect to the condition of hypertension is affirmed. The application is remitted to the respondent for assessment of pension.

(sgd) John Handley
Senior Member
VETERANS' AFFAIRS – Applicant engaged in service in Vietnam for 6 months in 1967 – a Vietnamese child was struck and killed by a truck in which the applicant was a passenger at a refuse tip – local persons in the vicinity of the truck became agitated and aggressively held lengths of timber whilst waving their arms – applicant experienced a life-threatening event and was threatened with a weapon – applicant experienced category 1A stressors – anxiety state is war-caused – reviewable decision in part set aside.
CASES
Repatriation Commission v Deledio (1998) 83 FCR 82

Border v Repatriation Commission No.2 (2010) 191 FCR 163

Repatriation Commission v Budworth (2001) 116 FCR 200

REASONS FOR DECISION
Mr John Handley, Senior Member

The applicant is presently 68 years of age and was engaged in operational service in South Vietnam between 5 March 1967 and 22 August 1967. As a consequence of that service, he claimed acceptance of the conditions of alcohol dependence, hypertension and post traumatic stress disorder (PTSD). He is presently in full-time employment, as a commercial manager with a construction company.
The respondent declined to accept those conditions as war-caused. Prior to the hearing of an appeal against those decisions by the Veterans’ Review Board (VRB), the applicant withdrew his application for acceptance of alcohol dependence.
On 7 October 2011 the VRB decided to vary the diagnosis of PTSD and in substitution decided the applicant suffered anxiety disorder. It then decided that condition and hypertension were not war-caused.
The applicant applied to review that decision and at the commencement of the hearing on 15 October 2012, Ms McMahon, counsel for the applicant, advised that the applicant withdrew his claim for acceptance of hypertension. Accordingly, the application proceeded only with respect to PTSD. Anxiety disorder was submitted as an alternate diagnosis.
The applicant principally relied on two events in service which he contended were responsible for his PTSD. Those events will be discussed later but for present purposes they may be described as the police raid and death of a Vietnamese child.
A report from Writeway Research Service Pty Ltd referred to the existence of a report held by the Department of Defence with respect to the death of a Vietnamese child. Mr Barsley, the author of the Writeway report, was unable to obtain the report prior to the commencement of the hearing. It became apparent during the applicant’s evidence that…

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.

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Details

Case: [2013] AATA 201
Decision Date

CaseChat Overview and Summary

In the matter of Ivo Sist and the Repatriation Commission, the court was called upon to determine the eligibility of the applicant for compensation on the grounds of anxiety disorder arising from his service. The applicant, Ivo Sist, argued that his anxiety disorder was connected to specific incidents during his service, namely the police raid and the death of a Vietnamese child at a tip site at Vung Tau. The court was required to decide whether the hypothesis linking the applicant’s anxiety disorder to his service was reasonable and consistent with the relevant Statement of Principles.

The primary legal issue was whether the hypothesis connecting the applicant's anxiety disorder to his service was reasonable. This required the court to determine if the hypothesis was consistent with the template provided within the Statement of Principles for Anxiety Disorder (Instrument N° 101 of 2007) and contained one or more factors identified by the Repatriation Medical Authority as related to service. Additionally, the court needed to consider whether the incidents relied upon by the applicant constituted category 1A stressors as defined in the Statement of Principles.

The court found that the applicant did indeed suffer from anxiety disorder, as supported by the evidence of the doctors and the clinical criteria within the DSM-IV. However, the court was not satisfied that the applicant suffered from post-traumatic stress disorder (PTSD). The court then proceeded to assess the hypothesis connecting the applicant's anxiety disorder to his service. The court held that the hypothesis was reasonable as it was consistent with the template within the relevant Statement of Principles and contained factors related to service. Specifically, the court accepted that the police raid and the circumstances surrounding the death of the Vietnamese child at the tip site qualified as category 1A stressors.

The court concluded that the applicant’s anxiety disorder was connected to his service and was therefore eligible for compensation under the relevant Statement of Principles. The court's decision hinged on the reasonable hypothesis that the applicant’s anxiety disorder arose from the service-related incidents he experienced. The court found the hypothesis to be consistent with the criteria set out in the Statement of Principles and found the applicant eligible for compensation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Counsel for the applicant objected to this proposition on the basis that it was open to Counsel for the respondent to have put it to the applicant during cross-examination, which he did not. Additionally, there was objection on the basis that the possibility of another incident at the tip had never been raised in any of the respondent’s prehearing materials. CONCLUSION AND REASONS FOR DECISION Most of the issues in this application were in dispute, save for diagnosis. Although Dr Velakoulis primarily diagnosed PTSD, he conceded the applicant could also be diagnosed with anxiety disorder as found by all the other doctors. I am not satisfied that the applicant suffers from PTSD. That is a discrete condition and is defined within DSM-IV. His description of his symptoms as described in paragraph 38 earlier does not satisfy the clinical criteria of PTSD. I am satisfied and find on the balance of probabilities that the applicant does suffer anxiety disorder. His collection of relevant symptoms constitutes that diagnosis (Repatriation Commission v Budworth (2001 116 FCR 200 at [19]). I make that finding on the basis of the evidence of the doctors, the contents of their reports and the clinical criteria within the definition of it, also within DSM-IV. (The condition of anxiety disorder is the subject of a Statement of Principles (SoP), namely Instrument N° 101 of 2007 entitled Anxiety Disorder. Previous SoPs were entitled Generalized Anxiety Disorder – GAD). Having made the finding concerning diagnosis, the four-step process found within Repatriation Commission v Deledio (1998) 49 FCR 82 at 97-98 must be followed. The applicant principally relied on 2 events in service which he said were responsible for his anxiety disorder, namely the police raid and the circumstances surrounding the death of a Vietnamese child at a tip site at Vung Tau. I am satisfied from the evidence heard and upon the documents lodged and read that there is material pointing to a hypothesis connecting the applicant’s anxiety disorder with service. The second step is satisfied by the existence of a SoP in force within the assessment period, being Instrument N° 101 of 2007 concerning Anxiety Disorder. Having proceeded to the third step in the Deledio process, I must now decide whether the raised hypothesis is reasonable. The hypothesis will be reasonable if it is consistent with the template found within the relevant SoP and contains one or more of the factors that the Repatriation Medical Authority has determined exist as a minimum and be related to service. The applicant relies on factor 6(a)(ii)of the SoP, namely:experiencing a category 1A stressor within the 5 years before the clinical onset of anxiety disorder. Paragraph 9 of the SoP provides that a category 1A stressor means one or more of the following severe traumatic events:(a) experiencing a life-threatening event;(b) being subject to a serious physical attack or assault including rape and sexual molestation; or(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured;

Ratio Decidendi

Legal Principle Established

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Division	VETERANS' APPEALS DIVISION
File Number(s)	2011/5635
Re	Ivo Sist
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Mr John Handley, Senior Member
Date	8 April 2013
Place	Melbourne