Robinson and Repatriation Commission - [2002] AATA 894

DECISION AND REASONS FOR DECISION [2002] AATA 894

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1396

VETERANS' APPEALS DIVISION       )
           Re      GEOFFREY VALENTINE ROBINSON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member

Date4 October 2002
PlaceSydney

Decision      The tribunal affirms the decisions under review.
   [SGD] M J SASSELLA
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – Disability Pension – post-traumatic stress disorder – generalised anxiety disorder – panic disorder – depressive disorder – alcohol dependence or abuse – whether veteran experienced a severe stressor or a severe psychosocial stressor – decisions affirmed

Safety, Rehabilitation and Compensation Act 1986 ss 20(1), 23(1)(a)(i), 24(1)(a)(i), 120(1), (3), (4). 196D

Statement of Principles 3/99 as amended by 54/99 concerning post-traumatic stress disorder
Statement of Principles 15/94 as amended by 225/95 concerning post-traumatic stress disorder
Statement of Principles 76/98 concerning alcohol dependence or alcohol abuse
Statement of Principles 5/94 concerning psychoactive substance abuse or dependence
Statement of Principles 1/2000 concerning anxiety disorder
Statement of Principles 48/94 concerning generalised anxiety disorder
Statement of Principles 9/99 as amended by 58/99 concerning panic disorder
Statement of Principles 31/98 concerning panic disorder
Statement of Principles 58/98 concerning depressive disorder
Statement of Principles 65/96 concerning depressive disorder

Budworth v Repatriation Commission (2001) 33 AAR 48
Chaplin and Repatriation Commission, Re [2000] AATA 688
Deledio, Repatriation Commission v (1998) 49 ALD 193
Dettmer and Repatriation Commission, Re [2001] AATA 320
Gorton, Repatriation Commission v (2001) 33 AAR 370
Hamilton and Repatriation Commission, Re [2000] AATA 299
Hunter and Repatriation Commission, Re [2002] AATA 485
Kelly and Repatriation Commission, Re [2001] AATA 254
Smith, Repatriation Commission v (1987) 74 ALR 537
Williams, Repatriation Commission v [2001] FCA 1195

REASONS FOR DECISION

4 October 2002 Mr M J Sassella, Senior Member

THE APPLICATION

This is an application to the Administrative Appeals Tribunal ("the tribunal") by Geoffrey Valentine Robinson ("the applicant"), born 7 August 1940 (T4), for review of a decision of the Veterans' Review Board ("the VRB") dated 28 July 1999 (T17) which affirmed a decision of the Repatriation Commission ("the respondent") dated 22 August 1998 (ex TD3/21) to refuse a claim for Disability Pension in respect of post-traumatic stress disorder, psychoactive substance abuse, panic disorder and depressive disorder and which set aside a decision of the respondent dated 3 January 1997 (T10) setting the pension rate at 20% of the general rate. The VRB set aside the respondent's decision and decided instead that the pension was payable at 40% of the general rate.
THE HEARING
The tribunal convened a hearing in this matter in Sydney on 13 February 2001. Mr N Dawson of counsel represented Mr Robinson. Mr S Modder of the Department of Veterans' Affairs ("DVA") Advocacy Service represented the Repatriation Commission. The tribunal heard oral evidence from Mr Robinson and Dr A Dinnen, a psychiatrist. The tribunal took into evidence the following documents:

Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T21) provided by the respondent.
Exhibit TD2 – Additional service documents…

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 Robinson and Repatriation Commission

Details

AGLC: Robinson and Repatriation Commission [2002] AATA 894
Case: [2002] AATA 894
Decision Date: 4 October 2002

CaseChat Overview and Summary

The case of Robinson and Repatriation Commission involved a dispute over the entitlement of Mr Robinson to additional veterans' disability benefits. The matter was heard and determined by the Administrative Appeals Tribunal (AAT). The central issue was whether Mr Robinson's service in the Defence Forces exposed him to the kinds of stressful events that could justify an award of disability benefits for psychiatric conditions, including post-traumatic stress disorder, generalised anxiety disorder, panic disorder, depressive disorder, and alcohol dependence or abuse.

The legal issues before the court centred on whether Mr Robinson's service exposed him to a severe stressor or a severe psychosocial stressor, as required by the relevant Statements of Principles issued under the Safety, Rehabilitation and Compensation Act 1986. The tribunal had to determine if Mr Robinson's experiences during his service met the criteria set out in the Statements of Principles concerning various psychiatric conditions. These included experiencing, witnessing, or being confronted with events involving actual or threatened death or serious injury, or a threat to physical integrity.

The tribunal found that Mr Robinson's service did not expose him to the kinds of severe stressors necessary to support his claims for additional psychiatric disabilities. The tribunal relied on the Federal Court's decision in Budworth v Repatriation Commission, which outlined a four-step process for assessing war-caused disabilities. The tribunal determined that the hypothesis connecting Mr Robinson's psychiatric conditions with his service was not reasonable because it did not align with the relevant Statements of Principles. Consequently, the tribunal affirmed the decisions under review, maintaining Mr Robinson's current rate of Disability Pension at 40% of the general rate. This rate did not qualify for higher rates of pension under the Guide to the Assessment of Rates of Veterans' Pensions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

This matter was adjourned on 13 February 2001 to await the outcome of the decision of the Federal Court in Budworth v Repatriation Commission (2001) 33 AAR 48. The hearing resumed on 24 April 2002.FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS The tribunal makes the following uncontroversial findings. The full Federal Court has held that, in an operational service case such as this, there are four steps to be considered in assessing whether an applicant will succeed in a claim that a disability was war-caused. The authority is Repatriation Commission v Deledio (1998) 49 ALD 193, 206. The first step is to consider whether the material before the tribunal points to a hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the applicant. In general terms the hypothesis here was that during operational service in Ubon the applicant was in danger from hostile enemy forces and was subjected to stressful situations (ex A1). This caused his array of psychiatric conditions. The second step is to ascertain whether there is a relevant binding Statement of Principles ("SoP") issued by the Repatriation Medical Authority under s 196D of the Act in force. There are in force a range of SoPs related to Mr Robinson's claim. For post-traumatic stress disorder the SoPs are 3/99 and 54/99. For alcohol abuse or dependence the SoP is 76/98. For anxiety disorder the SoP is 1/2000. For depressive disorder the SoP is 58/98. For panic disorder the SoP id 9/99 as amended by 58/99. These SoPs relevant to the determination of this matter are, prima facie, the SoPs currently in force. If the hypothesis fails in relation to a current SoP then a SoP in force at the time of the primary decision (10 February 1998) can be considered (Repatriation Commission v Gorton (2001) 33 AAR 370 and Repatriation Commission v Williams [2001] FCA 1195). The third step is to form an opinion as to whether the hypothesis raised is reasonable. If the hypothesis is consistent with the template in the SoP it will be reasonable. The hypothesis raised must contain at least one of the factors in the SoP which the SoP says must exist, and that factor must be related to the applicant's service. The central issue addressed in the hearing was whether Mr Robinson's operational service exposed him to stressful events as required in one or other form by each of the relevant SoPs. "The first formulation" is:"experiencing a severe stressor" means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person's, or another person's, physical integrity. In the setting of service in the Defence Forces, or other service where the Veterans' Entitlements Act applies, events that qualify as severe stressors include:(i) threat of serious injury or death; or(ii) engagement with the enemy; or(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;.

Decision

Reasons for decision

Mr Robinson has as accepted disabilities solar keratoses, basal cell carcinoma and bilateral sensorineural hearing loss with tinnitus (ex TD1/1). At the close of this review process they remain the accepted disabilities. The only argument for increasing Mr Robinson's impairment rating under the Guide to the Assessment of Rates of Veterans' Pensions (5th ed) ("GARP"), was the acceptance of additional disabilities as war-caused. Mr Robinson's correct rate of Disability Pension therefore remains at 40% of the general rate. This is too low a rate to permit consideration of his entitlement to payment at the special or intermediate rate. Sections 23(1)(a)(i) and 24(1)(a)(i) of the Act require a GARP impairment rating of at least 70% before these higher rate pensions can be considered.DECISION The tribunal affirms the decisions under review.I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior MemberSigned: ..................................................................................... AssociateDates of hearing 13 February 2001 and 24 April 2002 Date of decision 4 October 2002Counsel for the applicant Mr N Dawson Solicitor for the applicant R L Whyburn & Associates Solicitors Counsel for the respondent Mr S Modder, DVA Advocacy Service Solicitor for the respondent Mr J Marsh, DVA

Ratio Decidendi

Legal Principle Established

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