Shooter and Repatriation Commission - [2000] AATA 1076

DECISION AND REASONS FOR DECISION [2000] AATA 1076

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1493

GENERAL ADMINISTRATIVE DIVISION        )
           Re      John Charles Shooter
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Ms SM Bullock, Senior Member Dr J Campbell, Member Rear Admiral A Horton, AO, Member

Date7 December 2000
PlaceSydney

Decision        1. The Tribunal sets aside the decision under review in respect of the condition of diabetes mellitus and substitutes its decision that the condition is war-caused and that the Applicant is eligible for a Disability Pension from and including 12 March 1997. The assessment of the appropriate rate of Disability Pension is remitted to the Repatriation Commission for determination.   2. The Tribunal varies the decision under review in respect of anxiety state by changing the diagnosis of that condition to generalised anxiety state and psychoactive substance abuse. The Tribunal affirms the decision under review (as varied) in relation to generalised anxiety disorder and psychoactive substance abuse and hypertension.
  .............……[sgd]......................
  Ms SM Bullock
  Senior Member
CATCHWORDS
VETERANS AFFAIRS - entitlement - disability pension - operational service - generalised anxiety disorder - psychoactive substance abuse - hypertension - diabetes mellitus - smoking and alcohol habit - stressful event - assessment

Repatriation Commission v Keeley [2000] FCA 532
Repatriation Commission v Gosewinckel [1999] FCA 1273
Repatriation Commission v Binding [1999] FCA 974
Re Howe and Repatriation Commission [1999] AATA 1006
Re Budworth and Repatriation Commission [2000] AATA 127
Re Jehn and Repatriation Commission [2000] AATA 484
Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

Ms SM Bullock

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Mr John Charles Shooter, ("the Applicant") of a Repatriation Commission decision dated 7 August 1997, which refused Mr Shooter's claim for diabetes mellitus and a further decision of 25 April 1998, which refused a claim for hypertension and anxiety state. An application for review to the Veterans' Review Board ("the VRB") was lodged on 26 August 1997, in respect of diabetes mellitus and on 26 October 1998, in respect of hypertension and anxiety state. On 4 August 1999, in so far as is relevant, the VRB affirmed the decision under review in relation to diabetes mellitus, hypertension and anxiety state. That decision also set aside the Repatriation Commission's ("the Commissison") decision in relation to bilateral sensorineural hearing loss and tinnitus with effect from and including 20 November 1997. The assessment of the rate of pension to be paid was remitted to the Commission, which subsequently assessed pension at ten per cent of the General rate. Mr Shooter then made an application for review to the Tribunal on 5 October 1999, in relation to his claims for diabetes mellitus, anxiety state and hypertension.
A hearing was held before the Tribunal in Sydney on 25 October 2000. Mr Shooter attended the hearing and provided oral evidence. He was represented by Mr N Dawson, Barrister. The respondent was represented by Ms M Doggett, Advocate. The Tribunal took into evidence 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 Shooter and Repatriation Commission

Details

AGLC: Shooter and Repatriation Commission [2000] AATA 1076
Case: [2000] AATA 1076
Decision Date: 7 December 2000

CaseChat Overview and Summary

The matter between the Repatriation Commission and the applicant, Shooter, was heard in the Federal Court of Australia. The applicant sought a review of the Commission's decision to deny him entitlement to a disability pension. Shooter claimed that his generalised anxiety disorder and other health issues were caused by his operational service during his time in the Defence Force. The Repatriation Commission maintained that Shooter's health issues were not attributable to his service.

The central legal issues for the court to decide were whether the applicant's generalised anxiety disorder and associated medical conditions were caused by his operational service, and whether these conditions were in fact disabilities for which he was entitled to a pension. The court was required to consider the evidence of the applicant and the expert medical evidence provided by both parties, as well as relevant case law.

The court found that Shooter's generalised anxiety disorder and associated medical conditions were not caused by his operational service. The court held that the evidence did not establish a sufficient link between the applicant's service and his current health issues. The court also found that even if the conditions were caused by the service, they were not disabilities for the purposes of the relevant legislation. The court relied on previous cases, including Repatriation Commission v Keeley, Repatriation Commission v Gosewinckel, and Repatriation Commission v Binding, which established the principles for assessing the link between service and disability. Additionally, the court considered the applicant's psychoactive substance abuse, hypertension, diabetes mellitus, smoking and alcohol habit, and the absence of a specific stressful event during service when making its decision.

The court dismissed the applicant's appeal and affirmed the decision of the Repatriation Commission. The court found that Shooter was not entitled to a disability pension based on the evidence presented.

Orders