Rowling and Repatriation Commission - [2003] AATA 696

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 696
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/1003
VETERANS' APPEALS DIVISION

Re: BRIAN LAURENCE ROWLING
Applicant

And: REPATRIATION COMMISION
Respondent

DECISION
Tribunal:       Miss E.A. Shanahan, Member
Date:             23 July 2003
Place:            Melbourne
Decision:The Tribunal affirms the decision under review.

(sgd) E.A. Shanahan
Member

VETERANS' AFFAIRS – claim for post traumatic stress disorder – alcohol abuse – fibromyalgia and hypertension – applicant in receipt of pension of 100 per cent of general rate – whether special rate of pension payable
Veterans' Entitlements Act 1986 ss.24(1)(c), (2), 120(1), (3), 120A
Statement of Principles
Instrument Nº 76 of 1998 concerning alcohol dependence or alcohol abuse
      Instrument Nº 58 of 1998 concerning depressive disorder
Instrument Nº 27of 1999 concerning lumbar spondylosis
Repatriation Commission v Deledio (1998) 83 FCR 82
Re Yeates and Repatriation Commission (AAT 11383, 13 November 1996)
Langley v Repatriation Commission (1993) 43 FCR 194
McKenna v Repatriation Commission (1999) 86 FCR 144
Re Hales and Repatriation Commission (1986) 11 ALN 281
Fox v Repatriation Commission (1997) 45 ALD 317
Re Brennan and Repatriation Commission (1996) 42 ALD 191
REASONS FOR DECISION
23 July 2003  Miss E.A. Shanahan, Member
1.      This is an application for review of a decision of the Veterans’ Review Board (VRB) dated 19 July 2001 wherein the VRB, having consented to the withdrawal of claims for bilateral presbyopia, conjunctival scarring right eye, hypertension, and had amended the diagnosis of post traumatic stress disorder (PTSD) to one of depressive disorder, had subsequently refused a claim concerning alcohol abuse, fibromyalgia and depressive disorder. On 14 November 2002, the applicant sought review by the Administrative Appeals Tribunal.
2.      The applicant is in receipt of a pension at 100 per cent of the general rate for his accepted disabilities of drug dependence, chronic obstructive bronchitis, bilateral sensorineural hearing loss, gastrooesophageal reflux disease and lumbar spondylosis. The applicant is also in receipt of medical treatment for a large variety of diseases not considered service‑related.
3. The applicant was represented by Mr A. Larkin, of counsel, instructed by Geoffrey Tobin and the respondent by Mr K. Rudge, an advocate with the Department of Veterans' Affairs. The Tribunal had before it the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act1975 (the T documents). The respondent tendered the following documents:
·   Clinical notes pages 1—39 and Report of Dr F. Laska,
rheumatologist  Exhibit R1
·   Report by Dr B. Dooley, orthopaedic surgeon,
dated 8 May 2002  Exhibit R2

· Report by Dr L. Walton, consultant psychiatrist,
dated 10 July 2002 – pages 1—7 Exhibit R3

· Report by Mr P. Mulcare, WriteWay Research Services
dated 27 September 2002 Exhibit R4

·   Report by Dr M. Benjamin dated 30 October 1997  Exhibit R5
·   Transcript of VRB hearing dated 19 July 2001  Exhibit R6
·   Medical reports and clinical notes by Dr R. Moffitt,
treating medical practitioner – pages 1—18  Exhibit R7

4. The Tribunal received a report from Mr I. Charles, the applicant’s case…

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 Rowling and Repatriation Commission

Details

AGLC: Rowling and Repatriation Commission [2003] AATA 696
Case: [2003] AATA 696
Decision Date: 23 July 2003

CaseChat Overview and Summary

The case of Rowling and Repatriation Commission involved a claim for a special rate of pension by Brian Laurence Rowling, who was already receiving a 100 per cent general rate pension. The respondent, the Repatriation Commission, had rejected Mr Rowling's claims for disabilities related to alcohol abuse, fibromyalgia, and depressive disorder. The matter was appealed to the Veterans' Review Board, which affirmed the decision of the respondent. Mr Rowling then sought review by the Administrative Appeals Tribunal. The Tribunal was required to decide whether Mr Rowling's chronic depressive disorder and alcohol dependence were war-caused, as claimed. The Tribunal examined the evidence and found that Mr Rowling's alcohol abuse and dependence preceded the development of his chronic depressive disorder. It was also found that his chronic pain, prior to the onset of his depressive disorder, was due to fibromyalgia, a condition not related to his war service. The Tribunal concluded that Mr Rowling's chronic depressive disorder and alcohol dependence were not war-caused within the meaning of the Veterans' Entitlements Act 1986. Therefore, the Tribunal affirmed the decision under review, and Mr Rowling's rate of pension remained at 100 per cent of the general rate, with no qualification for a special rate of pension.

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