Decision 1. The decisions under review relating to post traumatic stress disorder are affirmed. 2. The rate of pension will be nil with effect from 10 February 1988 until 18 October 1992. 3. The rate of pension thereafter will be 90% of the general rate until 1 November 1997. 4. The rate of pension thereafter will be 100% of the general rate.

(Sgd) BJ McMahon
..............................................
Deputy President
CATCHWORDS

VETERANS' ENTITLEMENTS – disability pension claim – post traumatic stress disorder with chronic pain syndrome – whether a war or defence caused disease – whether there was a traumatic event – the application of the diagnostic manual – trauma not war or defence caused – assessment dates and rates agreed

Veterans' Entitlements Act 1986 Part II, ss 19(3), 19(5), 24(1), 31, 120, 120A, 196B(2)
Statement of Principles – Post Traumatic Stress Disorder Instrument Number 15 of 1994
Diagnostic and Statistical Manual of Mental Disorders 4th Edition, published American Psychiatric Association 1994
The Vung Tau Ferry (HMAS SYDNEY) and Escort Ships (VIETNAM 1965-1972) by Rodney Nott & Noel Payne. Kingswood Press Pty Ltd Brisbane & Gold Coast 1998

Repatriation Commission v Cooke (1998) 160 ALR 17

REASONS FOR DECISION

Mr B.J. McMahon (Deputy President)

These are two applications for review of two decisions of the respondent arising out of applications by Mr Budworth for a pension under Part II of the Veterans' Entitlements Act 1986 and (if entitled) to the rate payable under that pension.
On 3 November 1989, the Repatriation Commission granted an application for pension accepting that Mr Budworth was suffering from Post Traumatic Stress Disorder (PTSD) with chronic pain syndrome and that this condition was a war-caused disease. The decision was based largely on the psychiatric effects said to have followed from an event, which had occurred during Mr Budworth's service with the Royal Australian Navy (the exploding body event). In a report of 31 August 1989 Dr Roberts, a psychiatrist, referred to this incident as a fact transcribed during the history she took. It was one of a number of factual errors in the report, including the number of trips to Vietnam said to have been taken by the applicant.
From 10 February 1988 he was paid pension at 80% of the general rate. He made application for an increase of this pension because of the existence of other war-caused conditions. Chronic airways limitation, coronary atherosclerosis and bilateral sensorineural deafness were accepted as disabilities from 18 October 1992. From that day forward, the applicant was paid pension at the special rate provided for by section 24.
The applicant applied for a review of the decision of 3 November 1989 to assess his service-related incapacity at 80% of the general rate. That application came before the…

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 Re Budworth and Repatriation Commission

Details

AGLC: Re Budworth and Repatriation Commission [2000] AATA 127
Case: [2000] AATA 127
Decision Date: 23 February 2000

CaseChat Overview and Summary

In the case of Re Budworth and Repatriation Commission, the applicant, Mr. Budworth, sought a disability pension under the Veterans' Entitlements Act 1986, claiming that his post-traumatic stress disorder (PTSD) with chronic pain syndrome was a war or defence caused disease. The dispute was adjudicated in the Federal Court of Australia. The central issue revolved around whether Mr. Budworth's PTSD with chronic pain syndrome constituted a war or defence caused disease as defined under the Act and the relevant Statement of Principles. Additionally, the court had to determine whether the condition resulted from a traumatic event and whether the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, could be applied to support the claim.

The court meticulously reviewed the statutory definitions, case law, and the diagnostic manual to evaluate Mr. Budworth's condition. It examined the evidence regarding the traumatic event and whether it was connected to his military service. The court found that although Mr. Budworth's PTSD was a legitimate condition, it did not qualify as a war or defence caused disease. The decision hinged on the nature of the traumatic event and its direct causation by the war or defence service, which was not conclusively established. The court concluded that the PTSD did not meet the criteria for a war-related disease under the Act.

Consequently, the court dismissed Mr. Budworth's claim for a disability pension based on his PTSD with chronic pain syndrome being a war or defence caused disease. However, the court acknowledged the existence of his PTSD and chronic pain syndrome and agreed upon specific assessment dates and rates for these conditions, providing a measure of relief to Mr. Budworth.

Orders