Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2029
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200600216
VETERANS' APPEAL DIVISION ) Re ROGER CHARLES MIDGLEY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Miss E.A. Shanahan, Member
Ms Regina Perton, MemberDate10 December 2007
PlaceMelbourne
Decision The Tribunal:
1. affirms the decision dated 9 September 2005 to the extent that it finds that the applicant’s PTSD is not war‑caused;
2. varies the decision dated 9 September 2005 with respect to the assessment of the applicant’s other accepted disabilities by increasing the rate of disability pension to 70 per cent of the general rate, with effect from 1 January 2005; and
3. recommends that the respondent reconsider the date of effect of the reversal of the decision of 4 November 1994.
(sgd) E.A. Shanahan
Member
VETERANS’ AFFAIRS – post traumatic stress disorder (PTSD) accepted as war‑caused in February 1994 – decision subsequently revoked after a s 31 review– PTSD not war‑caused – whether claimed stressors supported by the whole of the material before the Commission and this Tribunal – Tribunal affirms the decision – re-assessment of other accepted disabilities after the hearing – pension at the rate of 70 per cent of the General Rate effective 1 January 2005.
Veterans’ Entitlement Act 1986 s 31, s 120
Repatriation Commission v Owens (1996) 70 ALJR 904
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Bull v Repatriation Commission (2001) 188 ALR 756
Repatriation Commission v Codd (2007) 95 ALD 619
Repatriation Commission v Cooke (1998) 90 FCR 307
Davis v Repatriation Commission (1997) 74 FCR 577
Re Tratt and Repatriation Commission [1999] AATA 913
Re Tosswill and Repatriation Commission [1994] AATA 9496
Byrnes v Repatriation Commission (1993) 177 CLR 564
REASONS FOR DECISION
10 December 2007 Miss E.A. Shanahan, Member Ms Regina Perton, Member 1. On 4 November 1993 Mr R. Midgley lodged a claim for an increase in his disability pension on the basis that his post traumatic stress disorder (PTSD) was war‑caused. On 4 November 1994 the Repatriation Commission (the respondent) decided that Mr Midgley’s PTSD was war‑caused. On 9 September 2005 the respondent exercised its discretion to review the decision under s 31 of the Veterans’ Entitlements Act 1986 (the Act). On review, the respondent revoked the previous decision on the basis that the condition was not war‑caused. Mr Midgley sought review of the decision by the Veterans’ Review Board (VRB) and the VRB affirmed the decision on 2 December 2005. As Mr Midgley had other accepted disabilities his rate of disability pension was restored to 60 per cent of the General Rate from 3 September 2003.
2. Mr Midgley was represented by Mr C. Thomson of counsel, who was instructed by Mr P. Liefman, solicitor. Mr K. Rudge, an advocate with the Department of Veterans’ Affairs (the Department), appeared for the respondent. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative…
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CaseChat Overview and Summary
The primary legal issue before the court was whether the AAT erred in affirming the Commission's decision that the appellant's PTSD was not war-caused. The court also needed to determine whether the AAT correctly assessed the appellant's other disabilities and the appropriate rate of pension payable. Furthermore, the court examined the Tribunal's consideration of the appropriate date of effect for the reversal of the decision made in 1994.
The court found that the AAT did not err in concluding that the appellant's PTSD was not war-caused. The evidence presented did not support a causal link between the appellant's military service and his PTSD. However, the court held that the AAT erred in its assessment of the appellant's other disabilities, leading to an under-assessment of the pension rate. The court directed the Tribunal to increase the pension rate to 70 per cent of the general rate, effective from 1 January 2005. Additionally, the court recommended that the Commission reconsider the date of effect for the reversal of the 1994 decision, suggesting it might be appropriate to apply the increased pension rate retrospectively to that date.
Orders
Orders of the court
The Tribunal:
1. affirms the decision dated 9 September 2005 to the extent that it finds that the applicant’s PTSD is not war‑caused;
2. varies the decision dated 9 September 2005 with respect to the assessment of the applicant’s other accepted disabilities by increasing the rate of disability pension to 70 per cent of the general rate, with effect from 1 January 2005; and
3. recommends that the respondent reconsider the date of effect of the reversal of the decision of 4 November 1994.
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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