Jones and Repatriation Commission (Veterans’ entitlements) [2015] AATA 812 (20 October 2015)
Division
VETERANS' APPEALS DIVISION
File Number
2014/6399
Re
Frederick Jones
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member A C Cotter
Date 20 October 2015 Place Brisbane The Tribunal affirms the decision under review.
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Senior Member A C Cotter
CATCHWORDS
VETERANS’ ENTITLEMENTS – disability pension – depressive disorder – sleep apnoea - whether conditions connected to service – clinical onset outside period prescribed by statement of principles – connection of conditions to service not established – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 120, 120B
CASES
Re Greenough and Repatriation Commission (2002) 70 ALD 470
Repatriation Commission v Cornelius [2002] FCA 750
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Youngnickel v Repatriation Commission [2004] FCA 1691
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Lees v Repatriation Commission (2002) 125 FCR 331
SECONDARY MATERIALS
Statement of Principles concerning Depressive Disorder No. 84 of 2015
Statement of Principles concerning Depressive Disorder No. 28 of 2008
Statement of Principles concerning Sleep Apnoea No.42 of 2013
REASONS FOR DECISION
Senior Member A C Cotter
20 October 2015
Mr Frederick Jones served in the Royal Australian Air Force for just over 20 years, rising to the rank of Sergeant.
Following his discharge in August 1991, he worked as a concrete cutter for two or three years before injuring his back at work. He had a laminectomy in 1995 and due to his physical limitations, did not return to that work. Because of his limited education and the restrictions associated with his back condition, he has poor employment prospects and has effectively not worked for 20 years.[1]
[1] See Exhibit 1, T Documents, f B4 and f 36.
Although having been treated by his general practitioner for depression for some 20 years, Mr Jones first saw a psychiatrist, Dr Jonathan Hargreaves, in 2010. He confirmed a diagnosis of Major Depressive Disorder and thought that there was a convincing temporal and causal link between the victimisation that Mr Jones alleges to have experienced in the RAAF and the development of depression.[2]
[2] Exhibit 1, T Documents, report of Dr Jonathan Hargreaves dated 11 February 2013, f 33.
Separately, Mr Jones was diagnosed as suffering from Sleep Apnoea, and was referred to a specialist in that area.[3]
[3] See Exhibit 1, T Documents, letter from Dr John Corbett dated 15 June 2012, ff 6-7.
Mr Jones subsequently lodged a claim for a disability pension based on those two conditions.[4] The Commission rejected the claim on the grounds that the conditions were not defence-caused.[5] The Veterans’ Review Board (“Board”) relevantly affirmed the decision as it related to those conditions.[6] Mr Jones has sought a review of the decision by this Tribunal.
[4] Exhibit 1, T Documents, ff 9-18.
[5] Exhibit 1, T documents, f 45-50.
[6] Exhibit 1, T Documents, ff B-B10.
ISSUES FOR THE TRIBUNAL
Mr Jones’ period of service from 7 December 1972 to 26 August…
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- Case
- [2015] AATA 812
- Decision Date
CaseChat Overview and Summary
The Tribunal found that Mr Jones' Major Depressive Disorder did not have a clinical onset during his period of service and was not connected to his service, as the symptoms did not manifest until after he had left the defence force. Regarding Sleep Apnoea, the Tribunal concluded that the condition could not be attributed to his service since the evidence did not establish a link between his exposure to chemicals and the onset of the condition. The Tribunal also noted that Mr Jones' obesity, which was cited as a factor in the SoP for Sleep Apnoea, was due to his documented history of heavy alcohol consumption, which was unrelated to his service. Therefore, the Tribunal affirmed the decision of the Repatriation Commission that Mr Jones was not entitled to a disability pension for these conditions.
The Tribunal's decision was based on the lack of evidence establishing a connection between Mr Jones' service and the clinical onset of his conditions, as well as the absence of a relevant SoP that could support his claim. The Tribunal's review affirmed the Repatriation Commission's decision, and no further appeal was made.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
As regards the SoP concerning Sleep Apnoea, the Commission submits that Mr Jones’ obesity (the factor relied upon) was attributable to his documented history of heavy alcohol consumption, which is unrelated to service. As such, it is denied that the Sleep Apnoea condition is defence-caused.CONSIDERATION The Legislative Framework Before considering the issues in detail, it is timely to mention the key legislative provisions which are applicable in this matter. Section 120(4) of the Veterans’ Entitlements Act 1986 (Cth) effectively provides that in making determinations or decisions in matters such as this under Part IV of the Act, the Commission is to decide the matter “to its reasonable satisfaction”. That provision is to be read with s 120B of the Act. In particular, s 120B(3) relevantly provides that in applying s 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered or disease contracted was defence-caused only if the material before the Commission raises a connection between the injury or disease and some particular service rendered by the person, and there is in force a SoP determined under subsection 196B(3) or (12) “that upholds the contention that the injury, disease… is, on the balance of probabilities, connected with that service.” It is well settled that in applying s 120B(3), the Tribunal is first to consider the claim by reference to the SoP in force at the date of its decision. If the consideration is favourable to the applicant, that is the end of the matter. If, however, the consideration is not favourable to the applicant, the Tribunal is to consider the claim by reference to the SoP in force at the date of the Commission’s determination.[53][53] See Re Greenough and Repatriation Commission (2002) 70 ALD 470 at [59]. In the present case, the current SoP concerning Sleep Apnoea is made under Instrument No. 42 of 2013. As regards Depressive Disorder, the current SoP came into force on 20 July 2015 by Instrument No. 84 of 2015. Prior to that, the SoP had been made under Instrument No. 28 of 2008 (as amended by Instrument No. 41 of 2010). I deal with the provisions of the respective SoPs in greater detail later. Both the SoPs for Depressive Disorder and Sleep Apnoea relevantly use the time of clinical onset of the disease to establish a link between the period of service and the first appearance of the disease. There is “clinical onset” of a disease either when a person becomes aware of some feature or symptom to do with the disease which enables a doctor to say that the disease was present at the time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.[54] No finding of clinical onset is to be made unless all the symptoms of the disease can be shown within the relevant period.[55] Where clinical onset is an element of a factor in a SoP (as is the case here), all of the features of the disease as defined in the SoP must be present before it can be said that clinical onset has occurred.[56][54] See Repatriation Commission v Cornelius [2002] FCA 750 at [26], approving Re Robertson and Repatriation Commission (1998) 50 ALD 668 at [670].[55] See Youngnickel v Repatriation Commission [2004] FCA 1691.[56] See Repatriation Commission v Gosewinckel (1999) 59 ALD 690 at [51] to [55] and Lees v Repatriation Commission (2002) 125 FCR 331.