McNally and Repatriation Commission

Case [2006] AATA 393

Administrative

Appeals

Tribunal
 

DECISION AND REASONS FOR DECISION [2006] AATA 393

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/896

VETERANS' APPEALS DIVISION )
Re BARRY McNALLY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr KS Levy, Member

Date8 May 2006 

PlaceBrisbane 

Decision

1.    The Tribunal sets aside the decision under review and determines as follows:

(a)   The applicant does not suffer psychiatric disability of adjustment disorder.

(b)   The applicant suffers the psychiatric disability of generalised anxiety disorder.

(c)   The psychiatric disability of generalised anxiety disorder is not related to operational service or hazardous service.

(d)   The applicant suffers contact dermatitis and this condition is related to eligible defence service and hazardous service.

(e)   The applicant suffers endogenous (constitutional) dermatitis which is service related as environmental factors from his eligible defence service and hazardous service activated this condition

 2.    The matter is remitted to the Repatriation Commission for reassessment of the applicant’s entitlements to pension and/or treatment in accordance with this decision .

.........[Sgd]........

KS Levy
   Member 

CATCHWORDS

VETERANS’ AFFAIRS – operational service – hazardous service – adjustment disorder – generalised anxiety disorder – endogenous dermatitis – decision set aside and remitted to the respondent

Veterans’ Entitlements Act 1986 ss120, 120A

Re Bantick and Secretary, Department of Family and Community Services [2003] AATA 472

Benjamin v Repatriation Commission (2001) 70 ALD 622

Fogarty v Repatriation Commission [2003] FCAFC 136

Re Cockcroft and Attorney General’s Department (No 2) (1987) 13 ALD

Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Hancock [2003] FCA 711
Mines v Repatriation Commission [2004] FCA 1331
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Stares (1996) 41 ALD 212
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes and Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Hill [2002] FCAFC 192
East v Repatriation Commission (1987) 16 FCR 517
Gilbert v Repatriation Commission (1989) 86 ALR 713
Repatriation Commission v Bey (1997) 79 FCR 364
White v Repatriation Commission [2004] FCA 633
Repatriation Commission v Stoddart (2003) 38 AAR 176
Woodward v Repatriation Commission (2003) 200 ALR 332

REASONS FOR DECISION

8 May 2006

Dr KS Levy, Member    

1. The applicant, Barry McNally, seeks review of a decision of the Repatriation Commission dated 14 March 2001 and a further decision of the Repatriation Commission dated 23 August 2002. The applications are made under s29(1) of the Administrative Appeals Tribunal Act 1975.  The Repatriation Commission decision of 14 March 2001 refused a claim for contact dermatitis and otitis externa of both ears, while the decision of the Repatriation Commission dated 23 August 2002 refused a claim for adjustment disorder. 

2.      The above decisions were reviewed by the Veterans’ Review Board on 21 October 2004. The Veterans’ Review Board affirmed the decision in relation to endogenous dermatitis; and also affirmed the decision in relation to otitis externa and adjustment disorder.

3.      The applicant claims that these conditions are interrelated and that they are specifically linked to his service in the…

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AGLC
McNally and Repatriation Commission [2006] AATA 393
Case
[2006] AATA 393
Decision Date

CaseChat Overview and Summary

McNally was a member of the Australian Defence Force who applied for a pension and treatment under the Veterans’ Entitlements Act 1986. The Repatriation Commission found that McNally did not suffer from psychiatric disability and did not suffer from contact dermatitis or endogenous (constitutional) dermatitis. McNally appealed the decision to the Administrative Appeals Tribunal (AAT). The AAT considered the medical evidence and determined that McNally did not suffer from adjustment disorder, but did suffer from generalised anxiety disorder. The AAT found that McNally's dermatitis was related to his service, but not to his psychiatric disability.

The legal issues in this case were whether McNally suffered from psychiatric disability, contact dermatitis, and endogenous dermatitis, and whether these conditions were related to his service. The AAT considered the definition of "psychiatric disability" under section 120 of the Veterans’ Entitlements Act 1986 and the relevant medical evidence. The AAT also considered the definition of "contact dermatitis" and "endogenous dermatitis" and whether McNally's service caused or contributed to these conditions. The AAT found that McNally did not suffer from adjustment disorder, but did suffer from generalised anxiety disorder. The AAT also found that McNally suffered from contact dermatitis and endogenous dermatitis, and that these conditions were related to his service.

The AAT set aside the decision of the Repatriation Commission and remitted the matter back to the Repatriation Commission for reassessment of McNally's entitlements to pension and/or treatment in accordance with the AAT's decision. The AAT found that McNally did not suffer from psychiatric disability of adjustment disorder, but did suffer from generalised anxiety disorder. The AAT also found that McNally suffered from contact dermatitis and endogenous dermatitis, and that these conditions were related to his service. The AAT's decision was based on the medical evidence and the relevant legal definitions. The AAT found that the Repatriation Commission had erred in law in finding that McNally did not suffer from psychiatric disability and dermatitis, and that these conditions were not related to his service. The AAT's decision was a correct application of the law to the facts of the case.

The orders of the AAT were that the decision of the Repatriation Commission be set aside and the matter be remitted to the Repatriation Commission for reassessment of McNally's entitlements to pension and/or treatment in accordance with the AAT's decision. The AAT found that McNally did not suffer from psychiatric disability of adjustment disorder, but did suffer from generalised anxiety disorder. The AAT also found that McNally suffered from contact dermatitis and endogenous dermatitis, and that these conditions were related to his service. The AAT's orders were based on its findings of fact and law, and were consistent with the relevant legislation and case law.

Orders

Orders of the court

1. The Tribunal sets aside the decision under review and determines as follows:

(a) The applicant does not suffer psychiatric disability of adjustment disorder.

(b) The applicant suffers the psychiatric disability of generalised anxiety disorder.

(c) The psychiatric disability of generalised anxiety disorder is not related to operational service or hazardous service.

(d) The applicant suffers contact dermatitis and this condition is related to eligible defence service and hazardous service.

(e) The applicant suffers endogenous (constitutional) dermatitis which is service related as environmental factors from his eligible defence service and hazardous service activated this condition

2. The matter is remitted to the Repatriation Commission for reassessment of the applicant’s entitlements to pension and/or treatment in accordance with this decision .

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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