Rice and Repatriation Commission - [2003] AATA 143

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 143
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/717

VETERANS' APPEALS DIVISION
)

Re KENNETH RICE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr EK Christie, Member
Date14 February 2003
PlaceBrisbane

Decision
The Tribunal affirms the decision under review. This means Mr Rice's application for review is unsuccessful.

(Sgd) EK Christie
Member

CATCHWORDS
VETERANS AFFAIRS - assessment of pension - reasonable hypothesis - whether severe stressor experienced - post traumatic stress disorder - alcohol dependence - chronic bronchitis - whether conditions related to operational service - observations on the needs for a review of objective criteria to characterise the nature of stressors and PTSD
Veterans' Entitlements Act 1986 ss 8, 120, 120A
East v Repatriation Commission (1987) 74 ALR 518
Repatriation Commission v Bey (1997) 47 ALD 481
Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Deledio (1998) 49 ALD 193
Re Slattery and Repatriation Commission (1998) 52 ALD 90
REASONS FOR DECISION

14 February 2003 Dr EK Christie, Member

1. This is an application by Kenneth Rice to review a decision of the Veterans’ Review Board (“the VRB”) made on 18 July 2001 wherein the VRB decided to:
“(a)VARY the decision under review by including a diagnosis of chronic simple bronchitis;
(b)AFFIRM the decision under review as varied in relation to post traumatic stress disorder, alcohol dependence or alcohol abuse and chronic simple bronchitis. This means that the Repatriation Commission’s decision is unchanged in relation to those matters.
(c)AFFIRM the decision under review as varied by a later decision of the Repatriation Commission dated 31 May 2000 in relation to the assessment of pension. This means that the Repatriation Commission’s decision is unchanged.” (Exhibit R1, Folio 209)

2.      The basis for the application for review was that “there is a causal connection between [the applicant’s] rejected disabilities and service. On the balance of probabilities [the applicant] is entitled to a higher rate of pension” (Exhibit R1, Folio ‘E’).
3.      At the hearing Kenneth Rice was represented by Mr R Clutterbuck of Counsel. The Repatriation Commission was represented by Mr M Smith, a Departmental Advocate.
4. At the hearing the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit R1) and the various documents tendered by the parties.
5.      At the hearing the applicant, Kenneth Rice, and Mr Kevin Dillon gave evidence on behalf of the applicant. Expert psychiatric opinion evidence was given by Dr G Apel (for the applicant) and Dr J Wainwright (for the respondent).
Disabilities
6.      Mr Rice has the following service-related and non-service related disabilities:

SERVICE RELATED DISABILITIES NON-SERVICE RELATED DISABILITIES

Bilateral Sensorineural Hearing Loss
Bilateral Tinnitus
Subarachnoid Haemorrhage
Gastro-oesophageal reflux disease

ELIGIBLE FOR TREATMENT (NOT
SERVICE RELATED)

Post Traumatic Stress Disorder
          - Treatment only
Malignant Conditions

Post Traumatic Stress Disorder
Alcohol Dependence or Alcohol Abuse
Chronic Simple Bronchitis

Issues to be Decided
7. Central to 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 Rice and Repatriation Commission

Details

AGLC: Rice and Repatriation Commission [2003] AATA 143
Case: [2003] AATA 143
Decision Date: 14 February 2003

CaseChat Overview and Summary

In this case, Mr Rice was seeking a review of a decision by the Repatriation Commission regarding the assessment of his pension under the Veterans' Entitlements Act 1986. The dispute centred around whether Mr Rice had experienced a severe stressor during his operational service, and if so, whether this led to conditions such as post traumatic stress disorder (PTSD), alcohol dependence, and chronic bronchitis, which would entitle him to additional pension benefits.

The primary legal issues that the court had to address were whether Mr Rice had indeed experienced a severe stressor during his service, and if these conditions were related to his operational service. The court also needed to consider whether the existing objective criteria for characterising the nature of stressors and PTSD were adequate. The court's task was to interpret the relevant sections of the Veterans' Entitlements Act and apply them to the facts of the case, including considering the relevant case law.

The court found that Mr Rice had not provided sufficient evidence to establish that he had experienced a severe stressor during his operational service. The court emphasised that a reasonable hypothesis must be established, which Mr Rice had failed to do. The court also noted that the conditions Mr Rice claimed were related to his service were not definitively linked to any stressor experienced during his service. The court referred to previous cases such as East v Repatriation Commission, Repatriation Commission v Bey, Deledio v Repatriation Commission, Repatriation Commission v Deledio, and Re Slattery and Repatriation Commission, to support its reasoning. In light of these findings, the court affirmed the decision under review, meaning Mr Rice's application for review was unsuccessful.

The final orders of the tribunal were that Mr Rice's application for review was dismissed, and the original decision by the Repatriation Commission was upheld. This means Mr Rice's pension assessment remains unchanged and he is not entitled to the additional benefits he sought.

Orders

Orders of the court

The Tribunal affirms the decision under review. This means Mr Rice's application for review is unsuccessful.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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