[2012] AATA 176
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/2020
Re
MICHAEL TRIGGE
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 23 March 2012 Place Brisbane The Tribunal sets aside the decision under review in relation to PTSD and alcohol dependence; substitutes its decision that those conditions are war-caused under the Act; determines that pension is payable for incapacity from those conditions with effect from 10 May 2009; and remits the matter of assessment of pension to the Repatriation Commission.
...........[Sgd]......................................
Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – operational service with Royal Australian Navy – application of Statements of Principles – diagnosis of posttraumatic stress disorder (PTSD) and alcohol dependence – clinical onset of alcohol dependence – a reasonable hypothesis of relevant relationship to service raised for PTSD and alcohol dependence – not satisfied beyond reasonable doubt that PTSD and alcohol dependence not attributable to eligible war-service – PTSD and alcohol dependence war-caused – decision under review set aside – matter of assessment remitted to Repatriation Commission
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 6C, 7, 9, 14, 69, 120, 120A, 177
CASES
Border and Repatriation Commission [2010] FCA 1430
Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363
Mann and Repatriation Commission [2008] AATA 163
Newton and Repatriation Commission [2009] AATA 485
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144
Repatriation Commission v Stoddart (2003) 38 AAR 176
Woodward v Repatriation Commission (2003) 75 ALD 420SECONDARY MATERIALS
Statement of Principles concerning Posttraumatic Stress Disorder No 5 of 2008
Statement of Principles concerning Alcohol Dependence and Alcohol Abuse No 1 of 2009
REASONS FOR DECISION
Mr R G Kenny, Senior Member
23 March 2012
BACKGROUND
Michael Trigge served with the Royal Australian Navy (“the RAN”) from 6 July 1964 until 19 February 1971. On 10 August 2009, he lodged a claim, in accordance with s 14 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), with the Repatriation Commission (“the respondent”) for a disability pension for “anxiety disorder” and “alcohol dependence” which he contended were related to his RAN service. His application form also included a reference by his general practitioner from Kingaroy Family Care[1] to posttraumatic stress disorder (“PTSD").
[1] This appeared to be signed by Dr Akshay Wadegasnkar.
On 25 August 2009, the respondent determined that the claimed conditions were not related to Mr Trigge’s service. On 1 March 2011, the Veterans’ Review Board affirmed the decision, determining that no diagnosis of PTSD was open on the evidence before it and that the diagnosed conditions of generalised anxiety disorder and alcohol dependence were not related to Mr Trigge’s service. The matter came before the Tribunal where it is was common ground between the parties that the conditions for determination were PTSD and alcohol dependence.
ISSUES AND SERVICE
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- MICHAEL TRIGGE and REPATRIATION COMMISSION [2012] AATA 176
- Case
- [2012] AATA 176
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the Repatriation Commission had applied the relevant provisions of the Veterans' Entitlements Act correctly, particularly in relation to the consideration of Statements of Principles issued by the Repatriation Medical Authority. The court was also required to determine if the Repatriation Commission had adequately established that Mr Trigge's PTSD and alcohol dependence were not attributable to his war service, or if a reasonable hypothesis of a relevant relationship between the conditions and his service could be established. Furthermore, the court had to consider the evidentiary burden and whether the Repatriation Commission had satisfied the requisite standard of proof beyond reasonable doubt.
The court found that the Repatriation Commission had erred in its assessment by not adequately considering the evidence presented by Mr Trigge and the relevant Statements of Principles. The court determined that a reasonable hypothesis of a relevant relationship between Mr Trigge's PTSD and alcohol dependence and his service in the RAN could be raised. The Tribunal concluded that the Repatriation Commission had not satisfied the standard of proof beyond reasonable doubt that Mr Trigge's conditions were not attributable to his war service. Consequently, the court held that Mr Trigge's PTSD and alcohol dependence were war-caused, and the decision under review was set aside. The matter was remitted to the Repatriation Commission for reassessment of the pension payable to Mr Trigge.
The final orders of the court included setting aside the decision of the Repatriation Commission regarding Mr Trigge's eligibility for a pension for incapacity due to PTSD and alcohol dependence. The court substituted its decision that these conditions were war-caused and determined that pension should be payable from 10 May 2009, three months prior to the date of Mr Trigge's initial claim. The court remitted the matter to the Repatriation Commission for reassessment of the pension payable to Mr Trigge.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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