Re Mackay and Repatriation Commission - [2000] AATA 483

DECISION AND REASONS FOR DECISION [2000] AATA 483

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1833

VETERANS' APPEALS DIVISION       )
           Re      MAURICE GRAHAM MACKAY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member M D Allen

Date16 June 2000
PlaceSydney

Decision      The decision of the Veterans' Review Board dated 30 September 1998 is set aside and the Tribunal substitutes in lieu thereof its decision, namely: 1. That part of the decision of the Repatriation Commission dated 4 March 1996, which rejected the Applicant's claims to have the conditions of post traumatic stress disorder and psychoactive substance abuse or dependence accepted as liable to pension pursuant to the Veterans' Entitlements Act 1986, is affirmed. 2. The Repatriation Commission decision dated 12 June 1996, rejecting the claims to have the conditions of gout, alcoholic liver damage, peripheral neuropathy and diabetes mellitus attributed to service, is affirmed. 3. The Applicant is, pursuant to sections 9 and 13 of the Veterans' Entitlements Act 1986, entitled to pension for incapacity occasioned by chromic airflow limitation as and from 4 June 1995. 4. The Applicant is entitled to pension for incapacity occasioned by the diseases of chronic airflow limitation, chronic solar skin damage and bilateral sensorineural hearing loss with tinnitus at the rate of 100% of the General Rate as and from 4 June 1995.
  ..............................................
  M D ALLEN
  Senior Member

CATCHWORDS
VETERANS' ENTITLEMENTS - Claim for PTSD and psychoactive substance abuse or dependence. Satisfied PTSD exists but not a reasonable hypothesis linking to service nor reasonably satisfied attributable to service as not conforming with Statements of Principles. Criticism of DSM-IV being used for forensic purposes. Assessment of pension.

Veterans' Entitlements Act 1986 - ss6C, 9, 13, 120, 120A, 120B

Repatriation Commission v Deledio 83 FCR 82
Repatriation Commission v Keeley [2000] FCA 532
Repatriation Commission v Cooke 90 FCR 307
Re Budworth and Repatriation Commission [2000] AATA 127

REASONS FOR DECISION

16 June 2000 Senior Member M D Allen

By application made 17 December 1998 the Applicant sought review of a determination by a Veterans' Review Board on 30 September 1998 that:
(1)affirmed a decision of the Repatriation Commission dated 4 March 1996 that refused the Applicant's claim for post traumatic stress disorder and psychoactive substance abuse or dependence and which assessed pension at 40% of the General Rate; and
(2)affirmed a decision of the Repatriation Commission dated 12 June 1996 that refused the Applicant's claim for gout, alcoholic liver damage, peripheral neuropathy and diabetes mellitus.
When this matter came on for hearing the claims regarding gout, diabetes mellitus and peripheral neuropathy were abandoned so that the diseases to be considered by the Tribunal were post traumatic stress disorder, psychoactive substance abuse or dependence, and alcoholic liver damage.
The Veteran had both operational service and defence service. So far as operational service is concerned the standard of proof is that laid down by subss120(1) and (3) of the Veterans' Entitlements Act 1986 (the VEA), whereas for defence service subs120(4) of the VEA provides that…

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 Mackay and Repatriation Commission

Details

AGLC: Re Mackay and Repatriation Commission [2000] AATA 483
Case: [2000] AATA 483
Decision Date: 16 June 2000

CaseChat Overview and Summary

The parties in this case were the Repatriation Commission and Mr. Mackay, with the dispute centering on Mr. Mackay's claim for compensation for post-traumatic stress disorder (PTSD) and psychoactive substance abuse or dependence arising from his military service. The matter was heard in the Federal Court of Australia. The Repatriation Commission contested the claim, arguing that while Mr. Mackay did indeed suffer from PTSD, there was no reasonable hypothesis linking this condition to his service, nor was it reasonably attributable to service as it did not conform with the relevant Statements of Principles. Additionally, the Commission criticised the use of the DSM-IV for forensic purposes in this case.

The primary legal issues before the court involved interpreting the Veterans' Entitlements Act 1986 and determining whether Mr. Mackay's PTSD and substance abuse were service-related, as required for compensation. Specifically, the court needed to assess whether there was a reasonable hypothesis linking Mr. Mackay's PTSD to his service, and whether this condition was attributable to his service in a manner that complied with the Statements of Principles. The court also needed to evaluate the appropriateness of using the DSM-IV for diagnosing and assessing PTSD for the purposes of determining veterans' entitlements.

In its decision, the court found that while Mr. Mackay did suffer from PTSD, it could not be reasonably hypothesised that this condition was linked to his service. Furthermore, the court held that the PTSD did not conform to the criteria set out in the relevant Statements of Principles, which meant it could not be considered attributable to service. The court noted with some reservation the use of the DSM-IV for forensic purposes in this context, suggesting that while it was a useful diagnostic tool, its application in legal contexts should be approached with caution. Ultimately, the court dismissed Mr. Mackay's claim for compensation, finding that the Repatriation Commission had not been satisfied that his PTSD and substance abuse were related to his service.

The Federal Court of Australia ordered that Mr. Mackay's claim for compensation for PTSD and psychoactive substance abuse or dependence arising from his military service be dismissed. The court's decision underscored the importance of adhering to the criteria outlined in the Veterans' Entitlements Act 1986 and the relevant Statements of Principles when assessing claims for veterans' entitlements. The court also highlighted the need for careful consideration when using diagnostic tools such as the DSM-IV in a forensic context, ensuring that such tools are applied appropriately and in accordance with legal standards.

Orders