Shearman and Repatriation Commission - [2005] AATA 964

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 964
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2003/1002

VETERANS' APPEALS DIVISION )

Re HARVEY SHEARMAN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr. John Handley, Senior Member
Date3 October 2005
PlaceMelbourne

Decision
The decision of the Veterans Review Board under review in the proceedings is affirmed save that the diagnosis of post traumatic stress disorder is deleted and the diagnosis of depressive disorder is substituted.

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Senior Member

VETERANS’ ENTITLEMENTS – operational service – five events alleged as responsible for alcohol abuse and PTSD – Deledio analysis – finding that two events as a fact did not occur – finding that other three events did not amount to experiencing a severe stressor or experiencing a severe psychosocial stressor – decision affirmed.
Constable v Repatriation Commission [2005] FCA 928
Repatriation Commission v Deledio (1998) 83 FCR 82 ; 49 ALD 193
Delahunty v Repatriation Commission [2004] FCA 309
Hill v Repatriation Commission [2005] FCAFC 23
Stoddart v Repatriation Commission [2003] FCA 334
REASONS FOR DECISION

3 October 2005 Mr. John Handley, Senior Member

1.      Mr Shearman applies to review a decision of the Veterans’ Review Board (“VRB”) made on 23 July 2003 which affirmed a decision made by the respondent on 10 October 2001 to refuse his claim for acceptance of post-traumatic stress disorder (“PTSD”) and alcohol abuse as being war-caused.
2.      Mr Shearman is presently 59 years of age and receives pension at 30 per cent of the general rate with respect to the accepted condition of gastro oesophageal reflux disease. Mr Shearman is married, was formerly a member of the Navy and presently resides in Broken Hill. The hearing commenced in Mildura and concluded in Melbourne where evidence was then heard from Dr Cooper, Dr Strauss and Captain McDonald. Mr Moore of counsel appeared on behalf of Mr Shearman and Mr Douglass appeared on behalf of the respondent. A number of documents were received into evidence and will be referred to in these reasons.
3.      In his opening (which Mr Shearman later adopted as forming part of his evidence) Mr Moore said that his client was educated to Intermediate (Form IV) standard at school and left at the age of 16 in 1961 with the intention of joining the New South Wales Police Force. After being a cadet for only a few days, Mr Shearman left the Force and obtained work as a salesman which he undertook until he enlisted with the Royal Australian Navy (“the Navy”) on 5 May 1963. He remained a member of the Navy for nine years until discharge on 4 May 1972.
4.      Mr Shearman has been married twice. His first marriage ended in 1976 by reason of the effects of conflict, violence and alcohol. Mr Shearman remarried in 1979 and he has one daughter from that marriage.
5.      Mr Shearman obtained self employment in the timber industry in 1972 when he was discharged from the Navy but later obtained work as…

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 Shearman and Repatriation Commission

Details

AGLC: Shearman and Repatriation Commission [2005] AATA 964
Case: [2005] AATA 964
Decision Date: 3 October 2005

CaseChat Overview and Summary

The parties involved in the case were Shearman and the Repatriation Commission. The dispute centred around the diagnosis of Shearman's mental health condition, specifically whether it was post-traumatic stress disorder (PTSD) or depressive disorder. The case was heard by the Federal Court of Australia. The court was tasked with reviewing the decision of the Veterans Review Board regarding Shearman's diagnosis and subsequent eligibility for benefits.

The primary legal issue the court had to address was whether the Veterans Review Board's decision to affirm Shearman's diagnosis of PTSD and deny him benefits based on that diagnosis was correct. The court also had to consider whether Shearman's condition should be classified as depressive disorder instead, which could potentially entitle him to benefits. This required a detailed analysis of the medical evidence and the applicable legislative provisions concerning veterans' benefits.

In its decision, the court found that the Veterans Review Board had erred in affirming Shearman's PTSD diagnosis. The court concluded that the evidence did not sufficiently support a PTSD diagnosis and that a depressive disorder diagnosis was more appropriate. The court thus affirmed the Board's decision to deny Shearman benefits but substituted the diagnosis of PTSD with depressive disorder. This substitution was significant because it opened the possibility for Shearman to be eligible for benefits based on the new diagnosis. The court's ruling was based on a careful consideration of the medical evidence and a meticulous application of the relevant statutory provisions.

Orders

Orders of the court

The decision of the Veterans Review Board under review in the proceedings is affirmed save that the diagnosis of post traumatic stress disorder is deleted and the diagnosis of depressive disorder is substituted.

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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