Jan Hendrik Schmidt and Repatriation Commission - [2014] AATA 760

[2014] AATA 760

Division VETERANS' APPEALS DIVISION

File Number

2014/0714

Re

Jan Hendrik Schmidt

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Deputy President P E Hack SC

Date 21 October 2014

Place Brisbane (heard in Townsville)
The decision under review is affirmed.
....................[Sgd]....................................................
Deputy President P E Hack SC
Catchwords
VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – posttraumatic stress disorder – whether applicant exposed to actual or threatened death or serious injury – diagnosis of posttraumatic stress disorder cannot be made – decision under review affirmed
Legislation
Veterans' Entitlements Act 1986 (Cth) ss 9, 13, 14, 120, 120A
Cases
Repatriation Commission v Bawden [2012] FCAFC 176; (2012) 206 FCR 296
Schmidt v Repatriation Commission [2004] FCA 1158
Secondary Materials
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (Fifth Ed)
Statement of Principle concerning posttraumatic stress disorder (Instrument No. 82 of 2014)
Statement of Principles concerning alcohol dependence and alcohol abuse (Instrument No. 1 of 2009)
REASONS FOR DECISION
Deputy President P E Hack SC
21 October 2014
BACKGROUND

The applicant, Mr Jan Hendrik Schmidt, served in the Royal Australian Air Force between 1965 and 1983. For a period of approximately 10 weeks between July 1966 and September 1966 he served in Ubon, in north east Thailand, where Australian warplanes were based during the Vietnam conflict. Mr Schmidt’s service in Ubon constituted "operational service" as that term is used in the Veterans' Entitlements Act 1986 (Cth) (the Act). Mr Schmidt says that as the result of one or more events during the period of his operational service he now suffers from posttraumatic stress disorder and alcohol dependence.
In April 2012 Mr Schmidt applied to the respondent, the Repatriation Commission, for a disability pension in respect of those conditions. His claim was refused on

14 November 2012 and this decision was affirmed by the Veterans’ Review Board on

23 October 2013. He now seeks a review in this Tribunal.
For the reasons that follow I have concluded that the Commission's decision was correct and that it ought be affirmed.
By virtue of s 13(1) of the Act, the Commonwealth is, subject to the Act, liable to pay pension by way of compensation to a veteran who has become incapacitated by a

war-caused injury or a war-caused disease. A disease is taken to be war-caused where it resulted from an occurrence that happened while the veteran was rendering operational service.[1] The Act, by s 14, provides a mechanism by which a veteran may make a claim for pension. Where a claim relates to operational service, s 120 of the Act applies to the claim. That section, so far as is presently material, provides,
[1]See s 9(1) of the Act.
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran… relates to the operational service rendered by the veteran, the Commission shall determine… that the disease was a war-caused disease… unless it is satisfied, beyond reasonable…

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: [2014] AATA 760
Decision Date: 21 October 2014

CaseChat Overview and Summary

The Federal Court considered an appeal by Jan Hendrik Schmidt against a decision of the Repatriation Commission that denied his claim for a disability pension due to posttraumatic stress disorder (PTSD). Schmidt had served in the military and alleged that his condition arose from his service, necessitating the pension. The Commission found that Schmidt had not been exposed to actual or threatened death or serious injury, a criterion for PTSD under the applicable legislation, and thus rejected his claim.

The court was tasked with determining whether the Commission's finding that Schmidt had not been exposed to actual or threatened death or serious injury was correct. Additionally, the court needed to assess whether the Commission erred in its understanding of the diagnostic criteria for PTSD, particularly whether a diagnosis could be made without such exposure. The court also considered whether the Commission appropriately applied the relevant legislative provisions in reaching its decision.

The court found that the Commission's determination that Schmidt had not been exposed to actual or threatened death or serious injury was supported by the evidence. The court held that Schmidt's evidence did not meet the legislative requirement for exposure to such events. Furthermore, the court noted that a diagnosis of PTSD could not be made without such exposure, which was also a finding of the Commission. The court concluded that the Commission's decision was based on a proper interpretation of the legislation and was supported by the evidence. Therefore, the appeal was dismissed, and the Commission's decision was affirmed.

The court's final orders were that the appeal be dismissed, and the decision of the Repatriation Commission be affirmed, with no costs awarded to either party.

Orders