Simpson and Repatriation Commission (Veterans' entitlements) - [2018] AATA 343

Simpson and Repatriation Commission (Veterans' entitlements) [2018] AATA 343 (28 February 2018)
Division:VETERANS' APPEALS DIVISION
File Number: 2015/4150
Re:James Simpson
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:28 February 2018
Place:Brisbane

The decision under review is affirmed.
……………[sgd]……………………………………
Senior Member Theodore Tavoularis
CATCHWORDS
VETERANS’ ENTITLEMENTS – where Applicant is in receipt of the pension at 100% of the General Rate – where Applicant seeks to claim new conditions – post-traumatic stress disorder – epilepsy – alcohol abuse – where Applicant seeks the pension at the Special Rate or the Intermediate Rate – where Applicant had previously claimed post-traumatic stress disorder – traumatic event – where Applicant relies on a traumatic event not mentioned before – whether Applicant suffers from post-traumatic stress disorder – whether post-traumatic stress disorder causally linked to Applicant’s service – whether Applicant suffers from epilepsy – whether epilepsy causally linked to Applicant’s service – whether Applicant suffers from alcohol abuse – whether alcohol abuse causally linked to Applicant’s service – “alone” test – whether Applicant prevented from undertaking work due to accepted conditions alone – whether ameliorating provisions apply – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 33
Veterans’ Entitlements Act 1986 (Cth), ss 5D, 23, 24,70, 151
CASES
Comcare v Mather and Mitchell
(1995) 56 FCR 456
Comcare v PVYW [2013] HCA 41
Confidential and Commissioner of Taxation [2013] AATA 382
Re Easton and Repatriation Commission (1987) 12 ALD 777
Jones v Dunkel (1959) 101 CLR 298

Kumar and Minister for Immigration and Citizenship
[2009] AATA 124

Repatriation Commission v Bawden
[2012] FCAFC 176
Re Repatriation Commission and Delkou (No 2) (1986) 9 ALD 358
Re Repatriation Commission and Falkner (1987) 12 ALD 87
Repatriation Commission v Smith (1987) FCR 327
Repatriation Commission v Warren (2007) 95 ALD 606

Re Robertson and Repatriation Commission
(1998) 50 ALD 668
Roncevich v Repatriation Commission (2005) 222 CLR 115
Simpson and Repatriation Commission [2003] AATA 316

Smith and Repatriation Commission
[2015] AATA 786
SECONDARY MATERIALS
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders: DSM-V (5^th ed, American Psychiatric Publishing, 2013)

JD Heydon, Cross on Evidence (9^th ed, 2013)

Statement of Principles concerning Alcohol Use Disorder, No 2 of 2009

Statement of Principles concerning Alcohol Use Disorder, No 30 of 2014

Statement of Principles concerning Epilepsy, No 76 of 2013

Statement of Principles concerning Posttraumatic Stress Disorder, No 83 of 2014
REASONS FOR DECISION
Senior Member Theodore Tavoularis
28 February 2018
INTRODUCTION

Mr James Simpson (“the Applicant”) served in the Royal Australian Navy (“RAN”) from 1970-1980. The Repatriation Commission (“the Respondent”) has already accepted liability for some of the injuries he says have arisen out of his service. The Applicant is in receipt of the pension at 100% of the General Rate for these injuries.
Now, the Applicant seeks to claim he suffers from the conditions of “P.T.S.D & alcohol abuse” and epilepsy, which was “caused by excessive alcohol intake due…

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.

Keep reading for free

Create a free CaseChat account to read Simpson and Repatriation Commission (Veterans' entitlements) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] AATA 343
Decision Date: 28 February 2018

CaseChat Overview and Summary

This matter concerned an application by a 64-year-old ex-serviceman, who was in receipt of a disability pension at 100% of the General Rate, seeking an increase to the Special or Intermediate Rate. The applicant sought to claim new conditions, specifically post-traumatic stress disorder (PTSD), epilepsy, and alcohol abuse, and to link these conditions to his service. The applicant had previously claimed PTSD, relying on a traumatic event not previously mentioned in earlier claims. The decision under review was affirmed.

The legal issues before the Tribunal were whether the applicant suffered from PTSD, epilepsy, and alcohol abuse, and whether these conditions were causally linked to his military service. Furthermore, the Tribunal had to determine if the applicant was prevented from undertaking work due to accepted conditions alone, and if any ameliorating provisions applied, in order to assess his entitlement to a disability pension above his current rate.

The Tribunal found that the applicant did not suffer from PTSD, nor was the Respondent liable for such a condition. Similarly, the Tribunal determined that the applicant did not suffer from epilepsy or alcoholism, and the Respondent was not liable for these conditions. Consequently, the Tribunal concluded that the applicant was not entitled to a disability pension above his current rate of 100% of the General Rate. The decision under review was therefore affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

As this is now a point of contention, I must address it as the first of the issues before me.What Is The Medical Evidence? The Applicant is a 64 year-old ex-serviceman who served in the RAN from 10 April 1970 until his elective discharge on 14 April 1980. He saw operational service from 21-26 November 1972. In his claim for “Disability Pension and Medical Treatment”, submitted on 26 May 1994,[13] the Applicant asserted a primary diagnosis of “post-traumatic stress syndrome” via the report of his then-general practitioner, Dr Denis Bergin.[14] The claim included descriptive elements of the primary PTSD condition such as “insomnia, alcohol dependency, depression, irritability, anxiety”.[15] [13] Exhibit 5, T-Documents, T 4, p 13.[14] Ibid, T 4, p 20.[15] Ibid. In particular, the Applicant asserted that his PTSD condition derived from the following incidents/episodes that arose during his time of service:(a)“stressful + other conditions in an operational area by having ship to ship accidents at sea”;[16](b)the vessel upon which he was serving (HMAS Vampire), on at least three occasions, collided with other ships at sea and this was “extremely stressful”;[17] and(c)an incident involving the Applicant finding himself below deck and potentially entombed there and a feeling of panic and fear about not being able to get to the upper deck before all watertight hatches were closed and secured.[18][16] Ibid.[17] Ibid, T 4, p 19.[18] Ibid. Symptoms arising from these events, according to the Applicant’s 1994 claim, first came within the ambit of his knowledge in the 1980s.[19][19] Ibid, T 4, p 20. As will be noted in the course of recounting the Applicant’s symptoms apparently giving rise to his PTSD, there is a gradual evolution from one group of symptomatic causes to another as this matter has taken its course through various decision making processes. I further note that the Applicant’s diagnosis itself has changed. On 25 October 1994, the Applicant’s psychiatric condition was reassessed to “generalised anxiety state”.[20] This claimed condition was, on 28 November 1994, rejected by the Respondent which denied liability for both the generalised anxiety state and other claimed conditions.[21][20] Ibid, T 6, p 26.[21] Ibid, T 7, pp 28-29. According to the Respondent, the Applicant’s generalised anxiety state did not derive from any aspect of his military service. Instead, it had its roots in the Applicant’s personal problems and marital difficulties which, according to the Respondent’s delegate, were not related to his military service. Further, the Respondent’s delegate found no evidence of anxiety-related problems during the Applicant’s eligible service.[22] [22] Ibid, T 7, p 29. This decision was re-considered by the Veterans’ Review Board (“VRB”) on 1 March 1996. This was preceded by a finding in March 1995 by the consultant psychiatrist, Dr John Miller, who made a diagnosis of anxiety disorder but, notably, not one of PTSD.[23] [23] Ibid, T 9, p 31.

Decision

Reasons for decision

The five abovementioned issues before the Tribunal can thus be answered as follows:(a)does the Applicant suffer from PTSD? Answer: No; (b)even if the Tribunal were to find that the Applicant does suffer from PTSD, should the Respondent be liable to the Applicant for this condition? Answer: No; (c)whether the Applicant suffers from alcoholism, and whether the Respondent should be liable to him for that condition? Answer: No to both the diagnosis and the liability of the Respondent;(d)whether the Applicant suffers from epilepsy, and whether the Respondent should be liable to him for that condition?Answer: No to both the diagnosis and the liability of the Respondent; and(e)whether the Applicant is entitled to a disability pension above his current rate of 100% of the general rate?Answer: No.CONCLUSION Accordingly, the decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.