Reid and Repatriation Commission - [2014] AATA 137

[2014] AATA 137

Division	VETERANS' APPEALS DIVISION
File Number	2012/2064
Re	William John Reid
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	G. D. Friedman, Senior Member
Date	13 March 2014
Place	Melbourne

The Tribunal sets aside the decision under review and substitutes a decision that major depressive disorder suffered by Mr Reid is defence-caused from 25 February 2010 and that Mr Reid is entitled to be paid disability pension at the special rate with effect from 25 February 2010.

........................[sgd]................................................

G. D. Friedman, Senior Member

VETERANS' AFFAIRS – veterans’ entitlements – major depressive disorder – back pain – whether defence-caused – whether eligible for pension at special rate

Veterans' Entitlements Act 1986 ss 24, 70(5), 120(4), 120B

Johnston v The Commonwealth [1982] HC 54

Kaluza v Repatriation Commission [2010] FCA 1244
Repatriation Commission v Law [1980] FCA 92
Repatriation Commission v Yates [1995] FCA 1234
Treloar v Repatriation Commission [1990] FCA 511

REASONS FOR DECISION

G. D. Friedman, Senior Member

13 March 2014

William Reid served in the Australian Army (army) from 26 January 1972 until 25 July 1973. He rendered defence service under the Veterans' Entitlements Act 1986 (the Act) from 7 December 1972 to 25 July 1973.
Mr Reid was in receipt of a disability pension at 20 per cent of the general rate as a result of lumbar spondylosis being accepted as a defence-caused medical condition. On 25 May 2010 he lodged a claim for incapacity from hearing loss and depressive disorder. Sensorineural hearing loss and tinnitus were accepted as defence-caused conditions and his disability pension was increased to 80 per cent of the general rate. The claim for major depressive disorder was refused. The Veterans' Review Board (VRB) increased his pension to 90 per cent of the general rate but affirmed the refusal to accept depressive disorder as defence-caused. Mr Reid is seeking review of the decision.
Mr Reid is also seeking an increase in pension to the higher loss-of-earnings related payment known as special rate. This requires, among other things, that a person is prevented from continuing to undertake remunerative work, and cannot work more than eight hours per week, by reason of war-caused disability. The respondent says that Mr Reid is not entitled to special rate because there were reasons other than his defence-caused disabilities that prevented him from working during the assessment period that commenced in 2010.

LEGISLATIVE FRAMEWORK

Section 120(4) of the Act requires the Tribunal to decide whether Mr Reid’s conditions were defence-caused to the Tribunal’s reasonable satisfaction. The Tribunal is also required to apply a Statement of Principles (SoP) for each condition (where one exists), as formulated by the Repatriation Medical Authority, which provides a connection to service through factors contained in the SoP. Section 120B of the Act requires the Tribunal to decide matters to its reasonable satisfaction in accordance with the SoPs.
The relevant SoP is No. 28 of 2008 concerning depressive disorder as amended by SoP No. 41 of 2010. Factor 6(a) of SoP No. 28…

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 Reid and Repatriation Commission

Details

AGLC: Reid and Repatriation Commission [2014] AATA 137
Case: [2014] AATA 137
Decision Date: 13 March 2014

CaseChat Overview and Summary

In the case of Reid v Repatriation Commission, the applicant, William Reid, sought review of a decision to refuse his claim that his major depressive disorder was caused by his defence service and to increase his disability pension to the special rate. The decision under review was made by the Veterans' Review Board and upheld the original decision of the Repatriation Commission. The Tribunal was required to determine whether Mr Reid’s major depressive disorder was related to his defence service and whether he was eligible for a disability pension at the special rate.

The Tribunal found that Mr Reid’s major depressive disorder was related to his defence service, which required the Tribunal to be satisfied that Mr Reid had chronic pain of at least six months' duration at the time of the clinical onset of major depressive disorder, and that this chronic pain was related to his defence service. The Tribunal accepted Mr Reid’s evidence that he had continuous or almost continuous pain in his lower back in the six-month period up to and including the last quarter of 1976 and that he was unable to continue working as a mechanic. This was consistent with the history given to various medical practitioners and the treatment he received by way of analgesics to suppress the pain. The Tribunal found that Mr Reid suffered chronic pain in the relevant period and that this chronic pain was related to his defence service.

The Tribunal found that Mr Reid was eligible for an increase in disability pension to the special rate, as the respondent conceded that in the event that major depressive disorder is defence-caused, Mr Reid would satisfy the criteria for special rate. The Tribunal agreed and found that Mr Reid satisfied the criteria in s 24 of the Act for disability pension at the special rate from 25 February 2010.

The Tribunal set aside the decision under review and substituted a decision that major depressive disorder suffered by Mr Reid is defence-caused from 25 February 2010 and that Mr Reid is entitled to be paid disability pension at the special rate with effect from 25 February 2010.

Orders