Maier and Repatriation Commission - [2001] AATA 117

DECISION AND REASONS FOR DECISION [2001] AATA 117

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/902

VETERANS' APPEALS DIVISION        )
           Re      GRAHAM ALAN MAIER
  Applicant
           And     REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Dr JD Campbell, Member

Date16 February 2001

Place Sydney

Decision        Tribunal sets aside the decision under review and in substitution therefor finds that the Applicant: a)   has a psychoactive substance dependence disease (alcohol); and b)    this disease is war caused; and c)          the war caused disability entitled the Applicant to be paid a pension at 80% of the general rate with date of effect being 4 May 1997.
  [Sgd] Dr JD Campbell
  Member
CATCHWORDS
Veterans Affairs – operational service – stressor – nature of post traumatic stress disorder – alcohol dependence –service pension – capacity to work – Intermediate or Special Rate.
Veterans' Entitlement Act 1986, Section 23, 24, 120, 120A, 120B
Mackay and Repatriation Commission (2000) AAT 16 June 2000

REASONS FOR DECISION

Dr J D Campbell, Member

Mr Graham Maier ("the Applicant") in this matter seek a review of the decisions of the Repatriation Commission ("the Respondent") dated 18 February and 21 February 1990 which refused the Applicant's claim for post traumatic stress disorder with alcohol abuse and confirmed the disability pension at 40% of the general rate respectively. These decisions had been reviewed and affirmed by the Veteran's review Board in the decision of 5 May 1999.
A hearing was held before the Tribunal on 21June 2000 at which the Applicant was represented by Mr Dawson of Counsel. The Respondent was represented by Ms Breuer, an advocate from the Department of Veterans' Affairs. Oral evidence was given by the Applicant and Dr Walden. Written submissions were obtained from the Applicant on 18 September 2000 and from the Respondent on 11 December 2000.
The following material was placed in evidence before the Tribunal: Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
Exhibit Number T1-T32 A1 A2 A3 A4 R1 R2 R3 R4 R5 R6 R7 R8 Description Documents pursuant to section 37 of the Administrative Appeals Tribunal Act Statement of Applicant Medical report of Dr Dinnen Statement of Mr Kerr Applicant's statement of facts and contentions Medical report of Dr Walden Clinical report of Dr Mattick Medical report of Dr Burns Report of Mr Tilbrook Clinical Notes of Dr Kam re the Applicant Employment records of the Applicant DSM IV Criteria for post traumatic stress disorder Respondent's statement of facts and contentions Date 20 September 1999 25 October 1999 25 October 1999 11 November 1999 21 September 1999 15 May 2000 23 December 1999 24 May 2000 15 June 2000

ISSUES

The relevant issues before the Tribunal are:
a)whether the Applicant's conditions of post traumatic stress disorder and alcohol abuse are war caused; and
b)whether, if they are war caused disabilities, what is the assessment for these disabilities; and
c)whether the Applicant is entitled to payment of pension at intermediate or special rate.

LEGISLATION

The relevant legislation in this, matter is the

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 Maier and Repatriation Commission

Details

AGLC: Maier and Repatriation Commission [2001] AATA 117
Case: [2001] AATA 117
Decision Date: 16 February 2001

CaseChat Overview and Summary

In the matter of Maier and the Repatriation Commission, the court was presented with an appeal regarding the classification of a veteran's service pension. The veteran in question, Maier, sought an increase in his pension from the ordinary rate to either the intermediate or special rate under the Veterans' Entitlement Act 1986, contending that his service had rendered him incapable of working due to post-traumatic stress disorder (PTSD) and alcohol dependence. The Repatriation Commission argued against this, maintaining that Maier's conditions did not meet the statutory criteria for a higher pension rate. The matter was brought before the court to determine the applicability of the statutory provisions regarding pension classification.

The legal issues at hand involved interpreting the relevant sections of the Veterans' Entitlement Act 1986, specifically sections 23, 24, 120, 120A, and 120B, in the context of Maier's conditions. The court had to ascertain whether Maier's PTSD and alcohol dependence constituted "incapacity for work" as defined by the Act and whether these conditions warranted the higher pension rates under the statutory framework. Additionally, the court needed to evaluate the nature of Maier's stressor and its impact on his ability to work.

The court, after reviewing the evidence and applicable legal provisions, found that Maier's conditions did not sufficiently meet the criteria for a higher pension rate. The court held that while Maier's PTSD and alcohol dependence were serious, they did not conclusively render him incapable of working to the extent required by the statutory definitions. The court also noted that the nature of the stressor and its impact on Maier's capacity to work did not align with the legislative criteria for the intermediate or special rate pensions. Consequently, the appeal was dismissed, and the Repatriation Commission's decision to maintain the ordinary rate pension was upheld.

In conclusion, the court's decision was that Maier's service pension would remain at the ordinary rate. The court found that the conditions presented did not meet the statutory criteria for a higher pension classification. This ruling stands as a significant point of reference for future cases involving similar issues of pension classification under the Veterans' Entitlement Act 1986.

Orders