Mulvaney and Repatriation Commission (Veterans' entitlements) - [2018] AATA 4358

Mulvaney and Repatriation Commission (Veterans' entitlements) [2018] AATA 4358 (22 November 2018)
Division:VETERANS’ APPEALS DIVISION
File Number: 2017/2288
Re:Stephen Mulvaney
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Member L M Gallagher
Date:22 November 2018
Place:Perth

The Reviewable Decision dated 13 March 2017 is affirmed.
............[sgd]............................................................
Member L M Gallagher
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – Veterans’ Entitlements Act 1986 (Cth) – defence service – motor bike accident – whether Applicant exposed to a traumatic event – whether Applicant suffers from post-traumatic stress disorder – whether Applicant suffers from alcohol use disorder – veracity and reliability of lay evidence – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 25(1)
Military Compensation Act 1994 (Cth)
Veterans’ Entitlements Act 1986(Cth) – s 5D(1), s 34, s 68(1), s 68(1)(a), s 70(1),
s 70(5)(a), s 70(5)(b), s 120(4), s 120(5), s 120B(3), s 135, s 175(1)
CASES
Bloomer and Repatriation Commission [2018] AATA 6672
Border v Repatriation Commission (No 2) (2010) 191 FCR 163; [2010] FCA 1430
Repatriation Commission v Bawden (2012) 206 FCR 296
Repatriation Commission v Warren (2007) 95 ALD 606
Repatriation Commission v Warren [2008] FCAFC 64
Summers v Repatriation Commission (2012) 130 ALD 32
Williams and Repatriation Commission (Veterans’ entitlements) [2018] AATA 3015
SECONDARY MATERIALS
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th edition, American Psychiatric Association Publishing, 1994)
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th edition, American Psychiatric Association Publishing, 2013)
REASONS FOR DECISION
Member L M Gallagher
22 November 2018
BACKGROUND

Mr Mulvaney is 62 years old. He enlisted in the Royal Australian Navy (“RAN”) on 10 April 1972 and was discharged on 21 December 1992 (R3, T57).
Mr Mulvaney completed eligible service, being “defence service” as defined under subsection 68(1) of the Veterans’ Entitlements Act 1986 (Cth) (“the VEA”), from 7 December 1972 to 21 December 1992 (R3, T57).
On 12 January 2015, Mr Mulvaney lodged a claim for disability pension for:
(a)osteoarthritis of the left knee;
(b)chrondromalacia patella of the left knee;
(c)sensorineural hearing loss;
(d)tinnitus;
(e)lumbar spondylosis and mild disc degeneration at L3-4, L4-5 and L5-S1;
(f)non melanotic malignant neoplasm of the skin;
(g)rotator cuff syndrome of the right shoulder;
(h)gastro-oesophageal reflux disease (“GORD”);
(i)post-traumatic stress disorder (“PTSD”); and
(j)alcohol use disorder
(R3, T7 and T35).
On 12 March 2015, Dr Megan Gilbert, Consultant Psychiatrist, provided a report at the request of the Department of Veterans’ Affairs (“DVA”) (R3, T19). In her report, Dr Gilbert diagnosed Mr Mulvaney with PTSD and alcohol abuse. In Dr Gilbert’s view, both of Mr Mulvaney’s “problems” were a direct consequence of a motor bike accident (“MBA”) that he had in Melbourne in 1983 whilst in his navy training (R3, T19, page 73).
On 10 December 2015, a delegate of the Repatriation Commission made a determination relating to the acceptance of the claimed conditions set out at subparagraphs 3(a) to…

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.

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Details

Case: [2018] AATA 4358
Decision Date: 22 November 2018

CaseChat Overview and Summary

This matter concerned an application by Mr Mulvaney for review of a decision by the Veterans’ Review Board (VRB), which affirmed a determination by the Repatriation Commission. The dispute centred on whether Mr Mulvaney suffered from Post-Traumatic Stress Disorder (PTSD) and alcohol use disorder, and if so, whether these conditions were defence-caused. The Administrative Appeals Tribunal (AAT) was required to determine these issues.

The legal issues before the Tribunal were twofold: firstly, whether Mr Mulvaney suffered from PTSD and, if so, whether it could be reasonably satisfied that this condition was defence-caused; and secondly, whether Mr Mulvaney suffered from an alcohol use disorder and, if so, whether it could be reasonably satisfied that this disorder was defence-caused. The Tribunal noted that the question of causation would only arise if it was first established that Mr Mulvaney suffered from the claimed conditions.

The Tribunal's reasoning focused on the sufficiency of the evidence presented. It concluded that it did not have enough evidence before it to establish that Mr Mulvaney suffered from PTSD or alcohol use disorder. Consequently, the Tribunal did not proceed to consider the legislative provisions or Statements of Principles relevant to whether these conditions were defence-caused, as this issue was contingent on the prior establishment of the disorders themselves. The Tribunal affirmed the VRB's decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Having reviewed all of the evidence before it, the Tribunal is satisfied that both parties were provided with an opportunity to address the evidence. Relevant aspects of the evidence are referred to below.Documentary evidence Mr Mulvaney’s statements Mr Mulvaney’s statement dated 2 January 2015 reads in its entirety as follows (R3, T9):In 1983 I was studying Electronics at the Royal Melbourne Institute of Technology (RMIT) on a full time basis as part of my duties in the Royal Australian Navy. Whilst travelling from home to RMIT via the most direct route I was knocked off my motor bike by a motor car, landing on my back on the road. The driver of the vehicle, not realising that he had hit me, continued driving and ran over my left arm, narrowly missing my head. I thought he was going to run over my head and kill me and was in fear of my life. After the accident, even though I had scratches, abrasions and pain in my arm, back and was limping I did not visit the sick bay at HMAS Lonsdale because of the distance and decided to continue on, on the back of my friends motor bike, firstly to report the accident to the police, and secondly to get to lectures at RMIT. As I recall I reported the accident and injury to a LCDR who was our liaison at RMIT. I do not recall his name, and am not 100% certain I reported to him. Even though I suffered quite sever (sic) pain for the next 3 weeks to a month, I self-medicated with aspirin and the pain eventually subsided. The driver of the motor car which hit me, … [Mr C],[4] paid for the replacement cost of [indistinct] motorcycle, jacket and helmet which were all destroyed in the accident. I subsequently made a claim against … [Mr C] for the injuries I had received. The case was heard in the County Court of Victoria at Melbourne. I was represented by Maurice Blackburn &Co (sic), Barristers and Solicitors and … [Mr C] was represented by John Mathies and Co, Solicitors. Copies of Interrogatories of the defendant and my answers are included with this Application for Disability Pension. These answers indicate the details of my injuries in the accident and the subsequent treatment I received over a number of years. Since the time of the accident I regularly have flash backs to the accident which cause me great anxiety. I often have dreams of the accident. Which also cause me great anxiety and I awake in a cold sweat, usually being unable to get back to sleep. After the accident which occurred about half way through my RMIT studies I would regularly spend the afternoon in the Oxford Hotel across the road from RMIT, instead of attending lectures of laboratory sessions. I would regularly drive home, a distance of about 40kms, under the influence of alcohol. Luckily I was never tested by the police, nor did I have an accident. I believe that even though I completed my course and received a degree, my results were much worse than they would have been, had I not commenced to drink so heavily. The drinking habit was further contributed to by the service culture, in particular when I was appointed to commissioned rank and joined the Wardroom, where alcohol was freely available during lunch times, after work and Wardroom functions. This drinking habit continued to the present day, to the extent that on 2 December 2014 my employment was terminated due to the fact I tested positive for alcohol at the start of day shift. [Original emphasis.][4] The Tribunal is aware of the claimed identity of the driver of the motor vehicle, but has removed the driver’s name for the reason that it is unnecessary to include it. Hence, the driver will be referred to as “Mr C”.

Decision

Reasons for decision

On 13 March 2017, the Veterans’ Review Board (“VRB”) affirmed the Repatriation Commission’s determination dated 10 March 2015 (“the Reviewable Decision”) (R3, T52). In the Reviewable Decision dated 13 March 2017, the VRB addressed a preliminary contention made by Mr Mulvaney. Mr Mulvaney had said that an email sent to him on 30 November 2015 from a Departmental officer, which stated, among other things, “I have accepted all conditions of your claim”, constituted a published decision in relation to his claim (T52, page 275). Mr Mulvaney contended that therefore, the Repatriation Commission’s determination dated 10 March 2015 could not stand and, it seemed to the VRB, that it was in turn bound to find that Mr Mulvaney’s GORD, PTSD and alcohol use disorder were service related. The VRB concluded that the email was not in accordance with section 34 of the VEA, which prescribes the manner in which the Repatriation Commission must record and serve its decisions, and therefore, the email did not constitute a decision and otherwise did not have any effect on the issues before it (R3, T52, page 276). On 21 April 2017, Mr Mulvaney applied to the General Division of the Administrative Appeals Tribunal (“Tribunal”) for review of the Reviewable Decision (R3, T2). The Tribunal notes that Mr Mulvaney has sought review of the Reviewable Decision as it relates to his claimed PTSD and alcohol use disorder. Mr Mulvaney has not sought review of the Reviewable Decision as it relates to his GORD and therefore, it is unnecessary for the Tribunal to address it in its decision.ISSUES BEFORE THE TRIBUNAL The issues for determination by the Tribunal are:PTSD(a)whether Mr Mulvaney suffers from PTSD; and, if so,(b)whether it can be reasonably satisfied that Mr Mulvaney’s PTSD is defence-caused; andAlcohol use disorder(a)whether Mr Mulvaney suffers from alcohol use disorder; and, if so,(b)whether it can be reasonably satisfied that Mr Mulvaney’s alcohol use disorder is defence-caused. The Tribunal notes that only when it is established that Mr Mulvaney suffers from the disorder/s claimed that the issue of whether they were defence-caused falls for consideration. As the Tribunal has concluded below that it does not have sufficient evidence before it that Mr Mulvaney suffers from PTSD or alcohol use disorder (or any other relevant condition), the Tribunal has not addressed the legislation or Statement of Principles (“SOPs”) nor considered the issues relevant to whether these “diseases” (as defined in subsection 5D(1) of the VEA) are defence-caused within the meaning of the VEA. In the circumstances, it is not required to do so (refer to paragraphs 21 and 22 below). Nevertheless, the Tribunal has, at times, set out the facts as they relate to the matters going to causation in order to preserve the chronology and completeness of the factual picture.JURISDICTION Subsection 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) provides that the jurisdiction of the Tribunal is given to it by other “enactments” which grant the Tribunal jurisdiction to review certain decisions made under those enactments.

Ratio Decidendi

Legal Principle Established

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