Laarhoven and Repatriation Commission - [2001] AATA 675

DECISION AND REASONS FOR DECISION [2001] AATA 675

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1864

GENERAL DIVISION         )
           Re      MARINUS LAARHOVEN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member
Dr P Lynch, Member

Date27 July 2001
PlaceSydney
DecisionThe decision under review is set aside and in substitution therefor the Tribunal decides that:
(a)The diagnosis of the condition post traumatic stress disorder is varied to adjustment disorder.
(b)The conditions of adjustment disorder, alcohol abuse and chronic bronchitis are defence-caused with effect from 11 April 1996.
(c)The matter is remitted to the Repatriation Commission for assessment of the correct rate of disability pension.
..............................................
Ms S M Bullock
Presiding Member
CATCHWORDS
Veterans' Affairs – Disability Pension – operational and defence service – diagnosis – adjustment disorder – psychoactive substance abuse or dependence – chronic bronchitis

LEGISLATION
Veterans' Entitlements Act 1986 section 9, 70, 119, 120, 120A, 120B

AUTHORITIES
Budworth v Repatriation Commission [2001] FCA 317
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Cooke (1998) 90 FCR 307

REASONS FOR DECISION

Ms S M Bullock
Senior Member

27 July 2001 Dr P Lynch

Member

This is an application for a review to the Administrative Appeals Tribunal ("the Tribunal") by Mr Marinus Laarhoven ("the Applicant") of a decision made by the Respondent, the Repatriation Commission ("the Commission") on 28 August 1997 (T2). The Commission refused Mr Laarhoven's claim for psychoactive substance abuse or dependence, chest and lung problems and post traumatic stress disorder. A claim for bilateral sensorineural hearing loss was accepted with effect from 11 April 1996. Disability Pension was continued at 60 per cent of the General rate. On 29 September 1999, the Veterans' Review Board ("the Board") affirmed the Commission's decision in relation to psychoactive substance abuse, chest and lung problems and post-traumatic disorder. In relation to Mr Laarhoven's application for review in relation to an increase in pension for his accepted conditions, the Board adjourned this matter pursuant to section 152 of the Veterans' Entitlements Act 1986, pending further investigation. This assessment had not been finalised at the time of hearing (T12).
A hearing was held before the Tribunal on 19 April 2001 and resumed on 29 May 2001. Oral evidence was provided by Mr Laarhoven at hearing and by Mrs R Laarhoven by conference telephone. Oral evidence was also provided at the hearing by Dr A H Dinnen, Consultant Psychiatrist and Dr R V Delaforce, Forensic Psychiatrist, by conference telephone. Mr Laarhoven was represented by Mr M Vincent of Counsel and the Respondent was represented by Mr P Godwin, Departmental Advocate. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Act 1975 ("T documents" T1-T17) and the following exhibits:
Exhibit NumberDescription Date
A1 Report of Dr A H Dinnen, Consultant Psychiatrist 19 April 2000
R1 Letter of Referral from Department of Veterans' Affairs to Dr R Delaforce Report by Dr R Delaforce, Forensic Psychiatrist 11 February 2000 4 April 2000

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.

Continue reading Laarhoven and Repatriation Commission

Details

AGLC: Laarhoven and Repatriation Commission [2001] AATA 675
Case: [2001] AATA 675
Decision Date: 27 July 2001

CaseChat Overview and Summary

The case of Laarhoven and the Repatriation Commission involved a dispute regarding the eligibility of Mr Laarhoven for a disability pension. Mr Laarhoven, a former member of the Australian Defence Force, sought compensation for various health conditions he claimed were caused by his service. The central issues before the court were whether his conditions, including adjustment disorder, psychoactive substance abuse or dependence, and chronic bronchitis, were service-connected and warranted a pension.

The court was required to determine the nature and extent of Mr Laarhoven's service-related disabilities and whether these disabilities were a direct result of his operational and defence service. Evidence presented included Mr Laarhoven's testimony regarding his daily activities and pain management, as well as the testimony of his wife, Mrs Laarhoven, who provided insights into his character and habits, particularly his drinking patterns before and after his service. The court examined medical reports and the impact of Mr Laarhoven's injuries and conditions on his daily life and ability to work.

In its reasoning, the court considered the evidence provided by both parties, including medical assessments and personal testimonies. The court evaluated whether Mr Laarhoven's chronic bronchitis and other health issues were sufficiently linked to his service to qualify for a disability pension. The court also assessed the credibility of Mr Laarhoven's claims and the impact of his conditions on his ability to maintain employment. Ultimately, the court found that the evidence did not sufficiently establish that Mr Laarhoven's conditions were a direct result of his service, leading to a decision against his claim for a disability pension.

The court ordered that the Repatriation Commission's decision to deny Mr Laarhoven's claim for a disability pension be upheld, based on the findings that the conditions claimed were not sufficiently linked to his service.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Laarhoven stated that he did not feel a lack of motivation but he was frustrated when not able to do things he used to do and because of his back injury, "he suffered like hell". Dr Hayes has told Mr Laarhoven that he should try to undertake activities in small steps and to rest. He does undertake exercises every day as shown to him by a physiotherapist. Mr Laarhoven will take "Prodeine", six tablets per day for pain and also "Rivotril", otherwise his left leg and back are so very painful that he cannot sleep. Mr Laarhoven also takes "Pravachol" for cholesterol and "Tenormin" for his heart. Mr Laarhoven has not seen a pain management specialist.evidence of mrs rhonda agnes laarhoven Mrs Laarhoven provided evidence by conference telephone from her home in Kyogle. She was alone when giving evidence. Mrs Laarhoven stated she was 14 or 15 years old when she first met Mr Laarhoven. He is seven years older than her. Mr and Mrs Laarhoven started going out when Mrs Laarhoven was approximately 15 years old. In those early days, Mrs Laarhoven described her husband as a "larrikin". He loved motor bikes, tearing around with his mates and soccer. Mr Laarhoven was an apprentice baker at the time Mrs Laarhoven met him. Mrs Laarhoven recalled that her husband drank alcohol at that time but she was not with him and his friends when they drank, as she was still at school. Mrs Laarhoven thought that Mr Laarhoven was frequently out with his mates approximately three or four times a week and they would drink on these occasions, but Mrs Laarhoven was unable to say what Mr Laarhoven drank or in what quantities. Mr Laarhoven worked at night and would go out with his friends during the day. Shortly before they were married, Mr Laarhoven was in the Army and he was posted to Sydney. Mrs Laarhoven saw him when he was on weekend leave. At that time, they would go together to dances, to the beach and would drink socially. Mrs Laarhoven drank rum and coke but she could not recall what her husband drank. In 1967, Mr and Mrs Laarhoven married. Mrs Laarhoven was almost twenty one and Mr Laarhoven twenty seven years old. Mrs Laarhoven described her husband's character as continuing to be a larrikin. When he had holidays, Mr Laarhoven always wanted to earn extra money so he would take on odd jobs such as picking grapes. Mrs Laarhoven described the loss of her first child, which occurred approximately two months before Mr Laarhoven went to Vietnam. Mrs Laarhoven was obviously devastated by the loss of their child. She learned from friends that Mr Laarhoven was also devastated by this tragedy, but he did not confide his level of distress to Mrs Laarhoven. When Mr Laarhoven was on R and R leave in Sydney from Vietnam, she noted that he was very glad to be back and that he did not want to return to Vietnam. Mr Laarhoven did not speak about his Vietnam experiences then or subsequently. Mrs Laarhoven knew other men who had served in Vietnam who could speak of nothing else other than their experiences in Vietnam, but not Mr Laarhoven. Mrs Laarhoven thought that her husband may have consumed alcohol when he came back from Vietnam but could not recall how much.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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