Sneddon and Repatriation Commission - [2002] AATA 307

DECISION AND REASONS FOR DECISION [2002] AATA 307

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/309

VETERANS' APPEALS DIVISION       )
           Re      KENNETH JOHN SNEDDON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Dr J D Campbell, Member

Date3 May 2002
PlaceSydney

Decision      The decision under review is set aside. The tribunal substitutes its own decision to the effect that: (a)     The applicant suffers from post-traumatic disorder ("PTSD"); and (b)           The applicant's PTSD is war-caused; and (c) The applicant qualifies for payment of Disability Pension at the special rate; and (d)     The date of effect of this decision is 9 November 1997 such that special rate is payable in respect of all instalments of pension payable on or after that date.
   [SGD] M J SASSELLA
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Disability Pension - claim for post-traumatic stress disorder rejected - whether veteran experienced stressor - whether special rate or intermediate rate payable

Veterans' Entitlements Act 1986 ss 6C(1), 7(1)(a), 9(1)(a), 13(1)(b), (d), 14(1), (3), (4), 19(6), (9) ("application day", "assessment period"), 20(1), 21A, 22(2), 23(1), (2), (3), 24(1), (2), 24A(1), 28, 29(1), (2), (3), (4), (5), (7), (9), 120(1), (3), (4), (6), 120A(1), (3), 196B(1), (2), 196D.

Statement of Principles 3/99 as amended by 54/99 concerning Post-traumatic Stress Disorder

Repatriation Commission v Smith (1987) 74 ALR 537
Repatriation Commission v Gorton (2001) 33 AAR 370
Repatriation Commission v Williams [2001] FCA 1195
Repatriation Commission v Deledio (1998) 49 LD 193
Repatriation Commission v Budworth (2001) 33 AAR 476
Repatriation Commission v Binding [1999] FCA 974

REASONS FOR DECISION

3 May 2002 Mr M J Sassella, Senior Member Dr J D Campbell, Member

HISTORY OF APPLICATION

On 9 February 1998 Mr Kenneth John Sneddon ("the applicant") lodged with the Department of Veterans' Affairs ("DVA") a claim (T4) for a Disability Pension in respect of conditions eventually described by the Repatriation Commission ("the respondent") as:

chronic airways limitation ("CAL");
psychoactive substance abuse ("PSA");
benign neoplasm of the oesophagus;
gastro-oesophageal reflux disease ("GORD");
generalised anxiety disorder with depression (in the claim form the applicant referred to post-traumatic stress disorder ("PTSD");
haemorrhoids; and
lumbar spondylosis.

On 19 May 1998 a delegate of the respondent decided (T10) to accept the claim in relation to CAL, PSA, benign neoplasm of the oesophagus, and GORD. He rejected the claims for generalised anxiety disorder with depression, haemorrhoids and lumbar spondylosis. With particular reference to the rejection of generalised anxiety disorder, he said that the condition was manifested before the applicant joined the army and was perceptible during his army training period. He said that the condition was not caused by operational service in Vietnam, that Mr Sneddon had experienced no stressful event and that the relevant Statement of Principles ("SoP") for generalised anxiety disorder was not satisfied. The rate of pension was assessed as 90% of the general rate.
On 15 May 1998 Mr Sneddon sought a review of this decision from the Veterans' Review Board ("the VRB") (T11). He challenged certain…

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 Sneddon and Repatriation Commission

Details

AGLC: Sneddon and Repatriation Commission [2002] AATA 307
Case: [2002] AATA 307
Decision Date: 3 May 2002

CaseChat Overview and Summary

The case of Sneddon and the Repatriation Commission involved a dispute over the entitlement of a veteran to a Disability Pension for post-traumatic stress disorder (PTSD). The veteran, Mr. Sneddon, claimed that his PTSD was caused by his operational service in Vietnam. The Repatriation Commission had rejected his claim, and Mr. Sneddon appealed to the tribunal. The legal issues before the court were whether Mr. Sneddon had experienced a severe stressor during his service, whether his PTSD was war-caused, and if so, whether the special or intermediate rate of the pension was applicable.

The court found that Mr. Sneddon's PTSD was war-caused, as he had experienced events during his service in Vietnam that involved threat to life or serious injury, and his response involved intense fear, helplessness, or horror. The tribunal assessed the evidence from various experts and determined that, although Mr. Sneddon had a history of psychiatric conditions before his service, there was not enough evidence to prove beyond a reasonable doubt that his PTSD was not caused or contributed to by his operational service. The court found that the existence of a pre-existing condition did not neutralise the statutory liability of the respondent for the war-caused outcome of Mr. Sneddon's exposure to the risks to life and safety on the pontoon bridge. The tribunal decided that Mr. Sneddon qualified for payment of Disability Pension at the special rate, considering his PTSD in combination with other war-caused diseases.

The tribunal's decision was based on the evidence presented, the relevant Statement of Principles concerning Post-traumatic Stress Disorder, and the applicable provisions of the Veterans' Entitlements Act 1986. The court concluded that Mr. Sneddon's PTSD was war-caused and granted him a Disability Pension at the special rate. The decision of the Repatriation Commission was set aside, and the tribunal's decision was substituted in its place.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Sneddon claimed a DVA Service/Invalidity Pension (T24) on 27 March 1998 claiming skills and/or training in fitting and turning, truck driving, basic computer skills and basic office skills. That pension was granted on 2 April 1998 (T26).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: Applying the approach mandated by the full Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193, 206 the tribunal makes the following findings as to the applicant's claim that he has PTSD and it is war-caused. The hypothesis raised (ex A4, A2) is that Mr Sneddon suffers from PTSD as a result of exposure to traumatic events in which he was confronted by events that involved threat of death or serious injury to himself and his response involved intense fear, helplessness or horror. Those events were driving in Vietnam without an armed escort, engaging in building operations in Vietnam in the open and without support and assisting in constructing a pontoon bridge in inclement conditions beside and on a swollen river when Mr Sneddon was unable to swim. There is a relevant SoP, ie 3/99 as amended by 54/99 and, if Mr Sneddon fails under them, possibly SoP 15/94 as amended by 225/95. In assessing whether the hypothesis raised accords with the template in SoP 3/99 as amended by 54/99 the tribunal notes the following. First, it is necessary to ascertain whether the accurate diagnosis is PTSD. Mr Sneddon says that it is. The respondent accepts that Mr Sneddon has a psychiatric condition but considers it to have commenced pre-service and not to have been exacerbated by service. A number of experts have diagnosed PTSD. Mr Anning, a psychologist, did on 6 March 1998 (T7). Dr O'Halloran, a general practitioner, accepted that Mr Sneddon has PTSD (T9/46). Dr K Koller, a psychiatrist diagnosed chronic PTSD (T16). Dr Altman, a psychiatrist, diagnosed PTSD on 28 September 1998 (ex A1) and confirmed that in ex A2 on 8 March 2000. Other doctors disagreed, however. Dr Davies, a psychiatrist, wrote on 20 March 1998 (T8) that Mr Sneddon had generalised anxiety disorder with secondary depression and substance abuse. He relied on a history suggesting that Mr Sneddon had a generalised anxiety disorder before joining the army. Before service he had visited the Jenolan Caves and experienced an anxiety episode at the time. During basic army training at Moorebank he had been unable to enter a model tunnel complex. Dr R D Lewin, a psychiatrist, wrote on 30 July 1999 (ex R1) that Mr Sneddon had anxiety symptoms in his childhood (ex R1/12). In the army Mr Sneddon had a pre-existing anxiety condition and a problem with polysubstance abuse (ex R1/13). The stressors alleged by Mr Sneddon would not, Dr Lewin said, normally result in a life long mental condition. He had faced, on his own version of events, no actual threat. The full Federal Court in Repatriation Commission v Budworth (2001) 33 AAR 476 discussed the duty of a decision-maker in deciding whether a veteran suffers from a claimed condition. At page 483 in paragraph 19 the court said:"The expression 'as claimed' in s 19(7) to which Whitlam J drew attention in the passage from Benjamin which we have just cited, qualifies the whole clause to which is attached, namely, 'that the veteran suffered the injury or contracted the disease". This means, we consider, that the decision-maker has to identify the collection of relevant symptoms which he or she is satisfied constituted the disease which the veteran contracted. It is not a matter of nomenclature or attaching a traditional medical label to the collection of symptoms. That, as the conflicting expert psychiatric evidence of Dr Knox and Dr Dent on the one hand and Dr Spragg on the other, shows in relation to the label 'post-traumatic stress disorder', may turn on questions of causation or aetiology. Once the decision-maker has identified, to his or her reasonable satisfaction, the collection of relevant symptoms from which an applicant suffers, the question of whether those symptoms were war-caused has to be resolved by imposing on the Commission the reverse onus of proof on the criminal standard in accordance with s 120(1) as qualified by s 120(3).

Decision

Reasons for decision

The tribunal has found that Mr Sneddon qualifies for payment of Disability Pension at the special rate. The tribunal has found that he suffers from PTSD as a war-caused disease. This disease, in association with the other diseases accepted as war-caused, when considered in combination suffice to qualify Mr Sneddon for a special rate pension.DECISION The decision under review is set aside. The tribunal substitutes its own decision to the effect that:

Ratio Decidendi

Legal Principle Established

The tribunal finds that the hypothesis has suggested that the veteran has experienced the matters required for PTSD in clause 2(b)(A)-(D) of the SoP. There are suggestions of re-experiencing, avoidance and arousal. Despite Mr Modder's efforts to dislodge avoidance by referring to Mr Sneddon crossing bridges in his truck, it seems to the tribunal that riding across an established, solidly built bridge in a truck is very different from the experience Mr Sneddon had when assisting to build a floating pontoon bridge over a running river. Likewise, it may be that Mr Sneddon's time at the local club is inconsistent with him living an isolated existence. However, it is consistent with Mr Sneddon having a limited circle of acquaintances with whom he can feel comfortable and enjoy some modicum of companionship. There is nothing to suggest that he is fully functional, socially, outside this environment.The hypothesis must suggest that this experience was related to Mr Sneddon's operational service (clauses 4, 8 ("relevant service")). The tribunal finds this requirement met. The tribunal has decided that the template in the SoP is met as regards the presence of a severe stressor and the other essentials for PTSD. The tribunal finds that the veteran experienced the severe stressor in a way related to the operational service he rendered in Vietnam. He was ordered to do the work as part of his duty as a soldier. Mr Sneddon will be taken to suffer from a war-caused disease, PTSD, unless the tribunal can be satisfied beyond a reasonable doubt that the disease was not war-caused. The main evidence relevant to this fourth step in the Deledio (supra) analysis is the evidence that he suffers from a disease he has had since childhood and the evidence that he has massaged his history to maximise his chance for a favourable outcome. In assessing the medical evidence from Drs Davies and Lewin the tribunal concludes that the applicant very probably did suffer from a psychiatric disease in his younger years. However, it considers that there is not sufficient evidence to prove beyond a reasonable doubt that he does not suffer from PTSD and that his PTSD was not caused or contributed to by his operational service. It is conceivable that Mr Sneddon's pre-existing condition predisposed him to suffering disproportionately in Vietnam, particularly in his work on the pontoon bridge. The existence of a predisposing factor does not neutralise the statutory liability of the respondent for the war-caused outcome of Mr Sneddon's exposure to the risks to life and safety on the pontoon bridge.assessment of rateGeneral rate The tribunal has decided that the applicant has the condition of PTSD which is war-caused. It is necessary to accord a rating for this disease under the Guide to the Assessment of Rates of Veterans' Pensions (5th ed), ( ("GARP"). The experts who have attempted GARP assessments are Drs Altman (ex A1), Baz (ex A3), Lewin (ex R1) and Burns (ex R2). The GARP rating resulting from these scores in chapter four is 23.