O'Neill and Repatriation Commission - [2002] AATA 333

DECISION AND REASONS FOR DECISION [2002] AATA 333

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/111

VETERANS' APPEALS DIVISION       )
           Re      RODNEY JOHN O'NEILL
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr M J Sassella Senior Member

Date10 May 2002
PlaceSydney

Decision      The decisions under review are affirmed.
   [SGD] M J SASSELLA
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – Disability Pension – operational service - post-traumatic stress disorder – whether a war-caused disease – whether symptoms required by Statement of Principles satisfied – requirement for avoidance of stimuli related to stressor not satisfied – generalised anxiety disorder – whether a war-caused disease - symptoms required in Statement of Principles not present – special rate and intermediate rate Disability Pension – veteran not prevented from remunerative employment because of accepted disabilities

Veterans' Entitlements Act 1986 ss 6C(1), 7(1)(a), 9(1)(a), 13(1)(b), (d), 14(1), (3), (4), 19(6), (9) ("application day", "assessment period", "claim"), 20(1), 23(1), (2), (3), 24(1), (2), 24A(1), 25, 28, 120(1), (3), (4), (6), 120A(1), (3), 196B(1), (2)(a), (d), (e), 196D..
Statement of Principles concerning Post-traumatic Stress Disorder 3/99 and 54/99
Statement of Principles concerning Anxiety Disorder 1/2000.

Repatriation Commission v Smith (1987) 74 ALR 537
Repatriation Commission v Gorton (2001) 33 AAR 370
Repatriation Commission v Williams [2001] FCA 1195
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Budworth (2001) 33 AAR 476
Re Saunders and the Repatriation Commission [2000] AATA 382

REASONS FOR DECISION

10 May 2002 Mr M J Sassella Senior Member

HISTORY OF APPLICATION

On 2 June 1998 Rodney John O'Neill ("the applicant") lodged with the Department of Veterans' Affairs ("DVA") a claim for a Disability Pension in accordance with the Veterans' Entitlements Act 1986 ("the Act") (T9). The conditions in respect of which he claimed were "nervous condition (PTSD?)", irritable bowel syndrome ("IBS"), "heart disease" and duodenal ulcer. He was employed at the time. He attached a smoking questionnaire.
On 11 September 1998 a Repatriation Commission ("the respondent") delegate decided to accept IBS and coronary atherosclerosis as war-caused diseases (T13). Post-traumatic stress disorder ("PTSD") and peptic ulcer disease were rejected as not war-caused. Disability Pension was to be paid at 100% of the general rate. The rejection of PTSD was because of the absence of a stressor (T13/63). The rejection of peptic ulcer disease was because there was no relevant history of cigarette smoking and there were no stressful circumstances of service. The impairment rating under the Guide to the Assessment of Rates of Veterans' Pensions (5th ed), ( ("GARP") was 65 points. A GARP lifestyle rating of 4 was selected. No special or intermediate rate pension was payable (T13/66-67).
At this point in time the applicant had as accepted disabilities the following conditions:

muscular pain chest wall,
right pterygium,
bilateral chronic blepharo conjunctivitis,
haemorrhoids,
bilateral mixed deafness,
vasomotor rhinitis,
IBS,
burns of chest and arms, and
coronary atherosclerosis (ex TD1/1).

Not accepted were the conditions:

proctalgia fugax,
peptic ulcer disease,
skin disorder,
right knee disorder,
duodenal ulcer, and
PTSD (ex TD1/1-2).

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'Neill and Repatriation Commission

Details

AGLC: O'Neill and Repatriation Commission [2002] AATA 333
Case: [2002] AATA 333
Decision Date: 10 May 2002

CaseChat Overview and Summary

In the case of O'Neill and Repatriation Commission, the primary parties involved were Mr O'Neill, a veteran, and the Repatriation Commission. The dispute centred on the classification of Mr O'Neill's conditions as war-caused diseases, specifically Post-traumatic Stress Disorder (PTSD) and generalised anxiety disorder, and his eligibility for a special rate and intermediate rate Disability Pension under the Veterans' Entitlements Act 1986. The case was heard in the Administrative Appeals Tribunal.

The legal issues that the court had to address included whether Mr O'Neill's PTSD and generalised anxiety disorder qualified as war-caused diseases under the relevant legislation, and if his incapacity from these diseases rendered him eligible for a special rate Disability Pension. Additionally, the court had to determine whether the symptoms Mr O'Neill exhibited aligned with those specified in the relevant Statements of Principles.

The court found that Mr O'Neill's PTSD claim was not substantiated because he did not meet the criteria for persistent re-experiencing of the stressors or persistent avoidance of stimuli related to the stressor, as outlined in the DSM-IV. Regarding generalised anxiety disorder, the court concluded that the symptoms required by the relevant Statement of Principles were not present in Mr O'Neill's case. Consequently, the court affirmed the Repatriation Commission's decision that Mr O'Neill was not eligible for a special rate Disability Pension, as his incapacity was not due to a war-caused disease. However, the court found that Mr O'Neill was not prevented from remunerative employment solely because of his accepted disabilities.

The final orders of the court affirmed the Repatriation Commission's decisions on Mr O'Neill's eligibility for a special rate and intermediate rate Disability Pension, maintaining the status quo as determined by the Repatriation Commission.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 19 October 1999 the VRB handed down its decision (T24/99) on accepted disabilities. It was noted that the claim in respect of peptic ulcer was not being pursued (T24/102). Two stressors had been pressed on the VRB as a basis for the PTSD claim. These were an enemy mortar attack in Nui Dat (T24/103) and an accident in which Mr O'Neill sustained burns (T24/103-104). The VRB was critical of Dr Koller's report. It considered that the applicant's reaction to the stressors was not sufficiently extreme. It accepted that the burning incident was a stressor but that Mr O'Neill failed to satisfy the symptoms for PTSD laid down in DSM-IV, that is the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed) ( There was no suggestion of persistent re-experiencing and of persistence avoidance of stimuli (T24/108).reviewable decision (2) On 19 October 1999, in a second decision, the VRB decided to affirm the respondent's decision on Mr O'Neill's eligibility for payment at the special rate (T24/109). The applicant's continuing inability to work was held to be attributable to his PTSD which had been rejected as a war-caused disease On 9 December 1999 the VRB sent the applicant written notice of its decisions (T24/98). On 19 January 2000 Mr O'Neill lodged with the Administrative Appeals Tribunal ("the tribunal") an application for review (T1) of the decisions described in paragraphs 10 and 11 above. RELEVANT LEGISLATION The relevant provisions from the Veterans' Entitlements Act 1986 are: ss 6C(1), 7(1)(a), 9(1)(a), 13(1)(b), (d), 14(1), (3), (4), 19(6), (9) ("application day", "assessment period", "claim"), 20(1), 23(1), (2), (3), 24(1), (2), 24A(1), 25, 28, 120(1), (3), (4), (6), 120A(1), (3), 196B(1), (2)(a), (d), (e), 196D.VETERANS' ENTITLEMENTS ACT 1986Operational service--post World War 2 service in operational areas 6C.(1) Subject to this section, a member of the Defence Force who has rendered continuous full-time service in an operational area as: (a) a member who was allotted for duty in that area; or (b) a member of a unit of the Defence Force that was allotted for duty in that area; is taken to have been rendering operational service in the operational area while the member was so rendering continuous full-time service.…Eligible war service 7.(1) Subject to subsection (2), for the purposes of this Act: a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; and …War-caused injuries or diseases 9.(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if: (a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service; …Eligibility for pension 13.(1) Where: …(b) a veteran has become incapacitated from a war-caused injury or a war-caused disease; the Commonwealth is, subject to this Act, liable to pay: …(d) in the case of the incapacity of the veteran—pension by way of compensation to the veteran; in accordance with this Act. …Claim for pension 14.(1) Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3). …(3) A claim for a pension: (a) shall be in writing and in accordance with a form approved by the Commission; (b) shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and (c) shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b). (4) Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim. …Determination of claims and applications .…19.(6) Where the Commission has, pursuant to paragraph (5)(a), assessed that the pension was payable at some time during the assessment period at the rate provided by section 23 or 24 then, subject to section 24A, the rate at which the pension is payable from the date of the determination shall not be lower than the rate provided by whichever of those sections applied, or applied most recently, during the assessment period. …(9) In this section: …application day, in relation to a person who has made a claim or application or on whose behalf a claim or application has been made, means:(a) the day on which the claim or application was received at an office of the Department in Australia; or(b) if subsection 20 (2) or 21 (2) applies to the person—the day on which the claim or application referred to in paragraph 20 (2) (a) or 21 (2) (a) was so received;assessment period, in relation to a claim or application relating to a pension, means the period starting on the application day and ending when the claim or application is determined;claim means a claim made in accordance with section 14;…Date of operation of grant of claim for pension 20.(1) Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, approve payment of the pension from and including a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14(3)(a) was received at an office of the Department in Australia. …Intermediate rate of pension23 (1) This section applies to a veteran if: (aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and (aab) the veteran had not yet turned 65 when the claim or application was made; and (a) either: (i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or (ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and (b) the veteran's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and (c) the veteran is, by reason of incapacity from war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free from that incapacity; and (d) section 24 or 25 does not apply to the veteran. (2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind: (a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or (b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week. (3) For the purpose of paragraph (1)(c): (a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity: (i) if the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; (ii) if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or (iii) if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; and (b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented, by reason of that incapacity, from continuing to undertake remunerative work that the veteran was undertaking. …Special rate of pension24.(1) This section applies to a veteran if: (aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and (aab) the veteran had not yet turned 65 when the claim or application was made; and (a) either: (i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or (ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and (b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and (c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and (d) section 25 does not apply to the veteran. (2) For the purpose of paragraph (1)(c): (a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if: (i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or (ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and (b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking. …Continuation of rates of certain pensions 24A.(1) Subject to subsection (2), if the Commonwealth is or becomes liable to pay a pension to a veteran at the rate applicable under section 23 or 24, that rate continues, while a pension continues to be payable to the veteran, to apply to the veteran unless: (a) the decision to apply that rate of pension to the veteran would not have been made but for a false statement or misrepresentation made by a person; (b) in the case of a veteran to whom section 23 applies: (i) the veteran is undertaking or is capable of undertaking remunerative work of a particular kind for 50% or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full time basis; or (ii) in a case where subparagraph (i) is inapplicable to the work which the veteran is undertaking or is capable of undertaking—the veteran is undertaking or is capable of undertaking that work for 20 or more hours per week; or (c) in the case of a veteran to whom section 24 applies—the veteran is undertaking or is capable of undertaking remunerative work for periods aggregating more than 8 hours per week.…Temporary payment at special rate25.(1) Where the Commission is satisfied that:(a) a veteran is temporarily incapacitated from war-caused injury or war-caused disease, or both; and(b) if the veteran were so incapacitated permanently, the veteran would be a veteran to whom section 24 applies;the Commission shall determine the period during which, in its opinion, that incapacity is likely to continue and this section applies to the veteran in respect of that period.(2) Where this section applies to a veteran in respect of a period, the rate at which pension is payable to the veteran in respect of that period is the rate applicable under subsections 24(4) and (5).(3) The Commission may, under this section:determination is made; and(b) determine a period in respect of a veteran that commenced or commences upon the expiration of a period previously determined by the Commission under subsection (1) in respect of the veteran.…Capacity to undertake remunerative work 28. In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only: (a) the vocational, trade and professional skills, qualifications and experience of the veteran; (b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and (c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b). …Standard of proof 120.(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Note: This subsection is affected by section 120A. …(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining: (a) that the injury was a war-caused injury or a defence-caused injury; (b) that the disease was a war-caused disease or a defence-caused disease; or (c) that the death was war-caused or defence-caused; as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. Note: This subsection is affected by section 120A. (4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction. …(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on: (a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or (b) the Commonwealth, the Department or any other person in relation to such a claim or application; any onus of proving any matter that is, or might be, relevant to the determination of the claim or application. …Reasonableness of hypothesis to be assessed by reference to Statement of Principles 120A.(1) This section applies to any of the following claims made on or after 1 June 1994: (a) a claim under Part II that relates to the operational service rendered by a veteran; (b) a claim under Part IV that relates to: (i) the peacekeeping service rendered by a member of a Peacekeeping Force; or (ii) the hazardous service rendered by a member of the Forces. Note 1: Subsections 120(1), (2) and (3) are relevant to these claims. Note 2: For peacekeeping service , member of a Peacekeeping Force , hazardous service and member of the Forces see subsection 5Q(1A). …(3) For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:(a) a Statement of Principles determined under subsection 196B (2) or (11); or(b) a determination of the Commission under subsection 180A (2);that upholds the hypothesis.Note: See subsection (4) about the application of this subsection.…Functions of Authority 196B.(1) This section sets out the functions of the Repatriation Medical Authority. Determination of Statement of Principles (2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to: (a) operational service rendered by veterans; or …(d) the factors that must as a minimum exist; and (e) which of those factors must be related to service rendered by a person; before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service. Note 1: For sound medical-scientific evidence see subsection 5AB(2). Note 2: For peacekeeping service , member of a Peacekeeping Force , hazardous service and member of the Forces see subsection 5Q(1A). Note 3: For factor related to service see subsection (14). …Disallowable instrument 196D. A determination of the Repatriation Medical Authority under section 196B is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Ratio Decidendi

Legal Principle Established

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