O'Malley and Repatriation Commission - [2005] AATA 985

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 985
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/646
VETERANS’ APPEALS DIVISION

Re: WILLIAM NEIL O’MALLEY
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION
Tribunal:       Miss E.A. Shanahan, Member
Date:             6 October 2005
Place:            Melbourne
Decision:The Tribunal sets aside the decision under review and substitutes in place thereof its decision that the applicant’s general anxiety disorder and alcohol abuse are causally related to his period of eligible defence service. The Tribunal remits the matter to the respondent for assessment of the rate of pension payable.

(sgd) E.A. Shanahan
Member

VETERANS’ AFFAIRS – operational service in Vietnam – eligible service post Vietnam – anxiety disorder or PTSD – alcohol abuse – severe stressors – psychosocial stressors – hypertension – special rate – jurisdiction with respect to special rate – decision set aside
Veterans’ Entitlements Act 1986 ss 120(1), 120(3), 120(4), 120A
Statements of Principles
Instrument № 3 of 1999 as amended by Instrument № 54 of 1999 concerning
post traumatic stress disorder

Instrument № 76 of 1998 concerning alcohol dependence or alcohol abuse
[during operational service]

Instrument № 77 of 1998 concerning alcohol dependence or alcohol abuse
during eligible service]

Instrument № 35 of 2003 as amended by Instrument № 3 of 2004
concerning hypertension

Instruments № 1 and № 2 of 2000 concerning generalised anxiety disorder
Constable v Repatriation Commission [2005] FCA 928
Delahunty v Repatriation Commission (2004) 38 AAR 511
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio (1998) 83 FCR 82
Re Stonehouse and Repatriation Commission [2004] AATA 707
Stoddard v Repatriation Commission (2003) 74 ALD 366
White v Repatriation Commission (2004) 39 AAR 67
Woodward v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION
6 October 2005  Miss E.A. Shanahan, Member
1.      This is an application by William Neil O'Malley (the applicant) for review of a decision of a delegate of the Repatriation Commission (the respondent) dated 3 July 2003 which rejected a claim for anxiety disorder, alcohol abuse and hypertension. The respondent accepted a claim for bilateral sensorineural deafness. The Veterans’ Review Board (the VRB) affirmed the decision of the respondent’s delegate on 29 March 2004. Mr O’Malley sought review of the VRB decision by the Administrative Appeals Tribunal (the AAT) on 28 May 2004.
2.      Mr O’Malley was represented by Mr D. De Marchi, solicitor. The Repatriation Commission was represented by Mr G. Purcell of counsel, instructed by the Department of Veterans’ Affairs.
3. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents). The parties tendered the following documents:
Report of Dr G. Foenander dated 30 October 2004  Exhibit A1
Applicant’s statement dated 4 December 2004  Exhibit A2
The T‑documents  Exhibit R1
Transcript of the VRB Hearing dated 29 March 2004  Exhibit R2
Report of Dr N. Strauss dated 23 March 2005  Exhibit R3
Clinical notes of Dr G. D’Ortenzio  Exhibit R4
Clinical notes of Dr R. Power  Exhibit R5
Applicant's psychological record…

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 O'Malley and Repatriation Commission

Details

AGLC: O'Malley and Repatriation Commission [2005] AATA 985
Case: [2005] AATA 985
Decision Date: 6 October 2005

CaseChat Overview and Summary

This case concerns an application by William Neil O'Malley (the applicant) for review of a decision of a delegate of the Repatriation Commission (the respondent) which rejected his claim for anxiety disorder, alcohol abuse and hypertension. The Tribunal had to decide whether Mr O'Malley's anxiety disorder and alcohol abuse were causally related to his service in the Navy. The Tribunal found that Mr O'Malley suffered from a generalised anxiety disorder and alcohol abuse, and that these conditions were causally related to his service. The Tribunal found that two of the three incidents described by Mr O'Malley were not severe enough to be considered stressors for the purposes of the relevant Statements of Principle. However, the Tribunal found that the electrocution incident, which occurred during Mr O'Malley's eligible service, met the definition of a severe psychosocial stressor and satisfied the criteria for generalised anxiety disorder. The Tribunal found that all three incidents satisfied the definition of a severe stressor for the purposes of alcohol abuse. The Tribunal remitted the matter to the respondent for assessment of the rate of pension payable.

Orders