Smith and Repatriation Commission - [2002] AATA 829

DECISION AND REASONS FOR DECISION [2002] AATA 829

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/565

VETERANS' APPEALS DIVISION       )
           Re      GREGORY JAMES SMITH
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member

Date23 September 2002
PlaceSydney

Decision      The tribunal affirms the decision under review.
   [SGD] M J SASSELLA
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – Disability Pension – tension state – whether veteran claimed for post-traumatic stress disorder – whether veteran qualified for special rate Disability Pension – veteran's degree of impairment insufficient for special or intermediate rate Disability Pension

Veterans' Entitlements Act 1988 ss 20(1), 21(1), 21A(1), 23(1)(a), 24(1)(aa), (aab), (a), (d) 29, 120(1), (3), (4)

Benjamin v Repatriation Commission (2001) 34 AAR 270
Budworth v Repatriation Commission (2001) 63 ALD 402
Cooke, Repatriation Commission v (1998) 90 FCR 307
Smith, Repatriation Commission v (1987) 74 ALR 537

REASONS FOR DECISION

23 September 2002 Mr M J Sassella, Senior Member

THE APPLICATION

This is an application by Gregory James Smith ("the applicant") for review by the Administrative Appeals Tribunal ("the tribunal") of a decision of the Veterans' Review Board ("the VRB") dated 7 March 2001 (T11) which affirmed a decision of the Repatriation Commission ("the respondent") dated 18 October 2000 (T8) to increase the applicant's rate of Disability Pension to 60% of the general rate.
THE HEARING
The tribunal convened a hearing in this matter in Newcastle on 5 March 2002. Mr B Winship of Rockliffs Solicitors & Attorneys represented the applicant and Mr S Modder from the Department of Veterans' Affairs ("DVA") Advocacy Service represented the respondent. The tribunal heard oral evidence from the applicant and his wife, Narelle Frances Smith. The tribunal took into evidence the following documents:

Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T12) provided by the respondent.
Exhibit TD2 – Supplementary Section 37 Statement and associated documents (exhibits T13 – T15) provided by the respondent.
Exhibit A1 – Applicant's statement of facts and contentions, 28 February 2002.
Exhibit A2 – Report by Dr L G Lambeth, psychiatrist, 18 September 2001.
Exhibit A3 – Statutory declaration of Jeffrey Wayne Taylor, 4 April 2001.
Exhibit A4 – Statutory declaration of Leslie Peter Druitt, 8 March 2001.
Exhibit R1 – Respondent's statement of facts and contentions, 13 February 2002.
Exhibit R2 – Report by J M Church of Writeway Research Service, 5 November 2001.
Exhibit R3 – Report by Dr G Vickery, psychiatrist, 16 October 2001.
Exhibit R4 – Report by Dr Vickery, 14 February 2002.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

The tribunal makes the following uncontroversial findings.

The applicant was born on 14 February 1948 and was aged 52 when he lodged his application for an increase in pension.
The applicant served in the army and rendered operational service from 8 January 1968 to 21 January 1969 (T2A).
The applicant lodged a valid application on 18 February 2000 (T3).
The date 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 Smith and Repatriation Commission

Details

AGLC: Smith and Repatriation Commission [2002] AATA 829
Case: [2002] AATA 829
Decision Date: 23 September 2002

CaseChat Overview and Summary

Mr Smith has filed an appeal against the decision of the Repatriation Commission, which found that he is not eligible for a special rate Disability Pension. The matter was heard and determined by Mr M J Sassella, a Senior Member of the tribunal. The primary issue before the tribunal was whether Mr Smith's post-traumatic stress disorder (PTSD) qualified him for a special rate Disability Pension under the Veterans' Entitlements Act 1988. The tribunal also considered whether Mr Smith's degree of impairment was sufficient to warrant an intermediate rate Disability Pension.

The tribunal examined the relevant sections of the Veterans' Entitlements Act 1988, including sections 20(1), 21(1), 21A(1), 23(1)(a), 24(1)(aa), (aab), (a), (d) 29, 120(1), (3), and (4). The tribunal considered the decisions in Benjamin v Repatriation Commission (2001) 34 AAR 270, Budworth v Repatriation Commission (2001) 63 ALD 402, and Cooke, Repatriation Commission v (1998) 90 FCR 307, as well as Smith, Repatriation Commission v (1987) 74 ALR 537. The tribunal concluded that Mr Smith's PTSD did not meet the criteria for a special rate Disability Pension as it did not arise from a service-related injury or illness. However, the tribunal determined that Mr Smith's degree of impairment was sufficient to qualify him for a Disability Pension at 60% of the general rate.

The tribunal affirmed the decision under review, finding that Mr Smith qualifies for a Disability Pension payable at 60% of the general rate. The tribunal's decision was based on the evidence presented and the applicable law. The tribunal found that Mr Smith's PTSD did not arise from a service-related injury or illness, and therefore did not qualify for a special rate Disability Pension. However, the tribunal determined that Mr Smith's degree of impairment was sufficient to warrant a Disability Pension at 60% of the general rate. The tribunal's decision was certified as a true copy of the reasons for the decision.

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

The tribunal has found that Mr Smith qualifies for a Disability Pension payable at 60% of the general rate, as did the respondent and the VRB.DECISION The tribunal affirms the decision under review.I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior MemberSigned: ..................................................................................... AssociateDate of Hearing 5 March 2002 Date of Decision 23 September 2002Counsel for the applicant Mr B Winship Solicitor for the applicant Rockliffs Solicitors & Attorneys Counsel for the respondent Mr S Modder, DVA Advocacy Service Solicitor for the respondent Mr J Marsh, DVA

Ratio Decidendi

Legal Principle Established

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