Sears and Repatriation Commission - [2002] AATA 614

DECISION AND REASONS FOR DECISION [2002] AATA 614

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1998/1030

VETERANS' APPEALS DIVISION       )
           Re      GREGORY ERNEST SEARS
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr IR Way, Member

Date26 July 2002
PlaceBrisbane

Decision      The Tribunal affirms the decision under review.
  [Sgd]       IR WAY
  MEMBER
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – whether injuries are war-caused – bipolar disorder – whether applicant has suffered a severe stressor - whether applicant able to obtain appropriate clinical management for his condition

Veterans' Entitlements Act 1986

Repatriation Commission v Smith (1987) 7 AAR 17
Brew v Repatriation Commission [1999] FCA 1246

REASONS FOR DECISION

26 July 2002 Mr IR Way, Member

This is an application by Gregory Ernest Sears for review of a decision of the Repatriation Commission dated 19 November 1997 and affirmed by the Veterans' Review Board on 14 September 1998, which refused the applicant's claims for bipolar disorder and psychoactive substance abuse or dependence.
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6). The Tribunal also received into evidence the following documents.
·Exhibit A1: Information for Consideration by the AAT (submitted by the applicant)
·Exhibit R1: Report of Dr P Mulholland dated 28 September 2001

The applicant was self-represented and gave oral evidence.

The applicant was born on 23 March 1951 and served in the Royal Australian Air Force from 3 September 1975 until his discharge on 24 November 1995. As such, the applicant's service constitutes defence service, pursuant to Part IV of the Veterans' Entitlements Act 1986 ("the Act").
At the commencement of the hearing the applicant informed the Tribunal that he no longer intended to continue with his appeal against the respondent's decision rejecting his claim for psychoactive substance abuse and that he was now only contesting the respondent's decision to refuse his claim for service-related bipolar disorder. There being no objection from the respondent, the Tribunal accepted the course of action put forward by the applicant and proceeded to hear the matters solely with respect to bipolar disorder.
The applicant's contention is that he suffers from bipolar disorder and that this disorder can be related to his defence service within the meaning of section 70 of the Act.
Legislative Framework
The Act relevantly provides as follows:
"70 Eligibility for pension under this Act
(1) Where:
(a)the death of a member of the Forces or member of a Peacekeeping Force was defence-caused; or
(b)a member of the Forces or member of a Peacekeeping Force has become incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)in the case of the death of the member – pension by way of compensation to the dependants of the member; or
(d)in the case of the incapacity of the member – pension by way of compensation to the member;
in accordance with this Act.
…
(5)For the purposes of…

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 Sears and Repatriation Commission

Details

AGLC: Sears and Repatriation Commission [2002] AATA 614
Case: [2002] AATA 614
Decision Date: 26 July 2002

CaseChat Overview and Summary

In the case before the Administrative Appeals Tribunal, Repatriation Commission v Smith, the applicant, a former member of the Royal Australian Air Force, sought a review of a decision denying his claim for war-caused disability pension entitlements due to his bipolar disorder. The primary issue before the Tribunal was whether the applicant's bipolar disorder was caused by a severe psychosocial stressor during the last two years of his service. This was contested on the basis of the evidence provided and the interpretation of relevant legislation, specifically the Veterans' Entitlements Act 1986.

The Tribunal examined the medical evidence and the definition of severe psychosocial stressor as outlined in Instrument No 129 of 1996. The Tribunal noted that the applicant's bipolar disorder was diagnosed in September 1995, but specialist opinions suggested its clinical onset was earlier, in June/July 1994. The Tribunal had to determine if there was a clinical worsening of the disorder and if this was linked to a severe psychosocial stressor during the last two years of the applicant's service. The Tribunal concluded that the evidence did not clearly establish a clinical worsening of the disorder, and thus, the applicant's claim based on clinical worsening was not viable.

The Tribunal found that the applicant did not experience a severe psychosocial stressor during the last two years of his service, as required by the statutory criteria. The Tribunal reasoned that without such a stressor, the applicant's claim under Factors 5(a) and 5(c) of the Schedule of Pension Rates (SoP) could not succeed. Consequently, the Tribunal upheld the original decision of the Repatriation Commission denying the applicant's claim for a war-caused disability pension.

Orders

Orders of the court

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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

On this basis it was submitted that the decision under review should be affirmed. Consideration There was no dispute between the parties that the applicant suffers from bipolar disorder. In light of this, and after consideration of the medical evidence before it, the Tribunal is satisfied that the applicant suffers from Bipolar 1 Disorder within the meaning of that term as set out in the relevant SoP. The Tribunal is mindful that the applicant was first diagnosed with bipolar disorder in September 1995. However, as is often the case in matters such as this, subsequent specialist medical opinion can lead to a conclusion that the clinical onset of the disease occurs at some time predating a first diagnosis. Circumstances such as this apply in this case and the weight of specialist medical opinion before the Tribunal supports a finding that in this case the clinical onset of bipolar disorder occurred in June/July 1994. After consideration of the medical evidence before it, and the submissions of both parties, the Tribunal is reasonably satisfied that the applicant's bipolar disorder first occurred in June/July 1994. With respect to Factor 5(c), the next question is whether there was a clinical worsening of the applicant's bipolar disorder and, if so, when. The evidence before the Tribunal points to a clinical worsening of the applicant's condition in the latter half of 1995. However, the Tribunal is of the view that consideration of findings with respect to clinical worsening in this case are not necessary in the first instance. Accepting that the applicant was discharged from the RAAF in November 1995; that, as found above, the applicant suffered a clinical onset of bipolar disorder in mid-1994; that there is some difficulty in making precise determinations of onset dates; that the requirement of experiencing at least one severe psychosocial stressor is common to both Factors 5(a) and 5(c); and that the time factors in Factors 5(a) and 5(c) of the SoP restrict periods of consideration, the Tribunal takes the approach that it should initially consider whether the applicant has experienced at least one severe psychosocial stressor during the last two years of the applicant's service. If the answer to this consideration is in the negative, then Factors 5(a) and 5(c) do not exist and the applicant's claim based on these two factors fails. If the answer to this consideration is in the affirmative, then any stressor so found will need to be considered within the context of the time of clinical onset and/or the time of clinical worsening. Turning then to the crucial question - whether the applicant experienced at least one severe psychosocial stressor during the last two years of his service. Within the terms of the definition in Instrument No 129 of 1996 there needs to be:(a)an identifiable occurrence; (b)the occurrence must evoke feelings of substantial distress; and(c)the occurrence must be of the same kind or nature as the examples given in the definition.