SRUUU and Repatriation Commission - [2002] AATA 792

DECISION AND REASONS FOR DECISION [2002] AATA 792

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/624

VETERANS' APPEALS DIVISION       )
           Re      SRUUU
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Dr P D Lynch, Member

Date11 September 2002
PlaceSydney

Decision      The tribunal affirms the decision under review.
   [SGD] M J SASSELLA
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – Disability Pension – eligible defence service – veteran fell from aircraft - standard of proof is reasonable satisfaction – whether veteran suffered from defence-caused post-traumatic stress disorder – delayed onset post-traumatic stress disorder – whether veteran suffered from defence-caused alcohol dependence or alcohol abuse – whether veteran suffered from defence-caused drug dependence or drug abuse – whether veteran experienced a severe stressor – whether veteran suffered from defence-caused anxiety disorder – whether veteran suffered from defence-caused personality disorder – whether veteran experienced a defence-related catastrophic event – whether psoriasis a defence-caused disease – whether veteran suffered from alcohol dependence or alcohol abuse involving regular consumption of an average of 420 g a week of alcohol at time of clinical worsening of psoriasis – whether veteran suffered from clinically significant anxiety disorder or depressive disorder at time of clinical worsening of psoriasis.

Veterans' Entitlements Act 1986 ss 20(1), 120(4).
Statement of Principles 4/99 concerning post-traumatic stress disorder as amended by Statement of Principles 55/99
Statement of Principles 77/98 concerning alcohol dependence or alcohol abuse
Statement of Principles 79/98 concerning drug dependence or drug abuse
Statement of Principles 22/98 concerning psoriasis
Statement of Principles 2/2000 concerning anxiety disorder
Statement of Principles 144/95 concerning personality disorder as amended by Statement of Principles 14/97

Gorton, Repatriation Commission v (2001) 33 AAR 370
Smith, Repatriation Commission v (1987) 74 ALR 537
Williams, Repatriation Commission v [2001] FCA 1195

REASONS FOR DECISION

11 September 2002 Mr M J Sassella, Senior Member Dr P D Lynch, Member

HISTORY OF APPLICATION

On 26 August 1998 the applicant lodged a claim for a Disability Pension in respect of post traumatic stress disorder, alcoholism, hearing loss, stress headaches and "skin problems" with the Department of Veterans' Affairs ("the DVA") (T4). It was his contention that these conditions were related to his service in the Royal Australian Air Force ("RAAF"). No mention was made on the claim form of an incident whereby he allegedly fell from an aircraft.
On 21 April 1999 the Repatriation Commission ("the respondent") handed down a decision in relation to the above application (T8). The applicant's claims in respect of bilateral sensorineural hearing loss with tinnitus, folliculitis and solar keratoses were accepted as service-related conditions. However the claims for personality disorder with secondary alcohol abuse, psoriasis and tension headaches were all refused. The applicant was granted a Disability Pension at 50% of the general rate, the date of effect being 26 May 1998.
On 21 May 1999 the applicant lodged an application for review of this decision with the Veterans' Review Board ("the VRB") (T10). It was his contention that the rejected conditions referred…

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.

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Details

AGLC: SRUUU and Repatriation Commission [2002] AATA 792
Case: [2002] AATA 792
Decision Date: 11 September 2002

CaseChat Overview and Summary

The matter before the court involved the applicant, a former serviceman, seeking recognition of certain disabilities as causally linked to his military service. The applicant contended that he suffered from post-traumatic stress disorder (PTSD) and secondary alcohol abuse, as well as psoriasis, all of which he argued were caused by his service in the RAAF. The respondent, the Repatriation Commission, contested the applicant's claims and relied on various medical reports to argue that the applicant's conditions were not service-related. The case was heard by the Administrative Appeals Tribunal (the tribunal) which was tasked with determining whether the applicant's conditions met the criteria set out in the relevant Statements of Principles.

The legal issues before the tribunal included whether the applicant had experienced a severe stressor during his service that could have caused PTSD, whether his alcohol abuse was secondary to PTSD, and whether his psoriasis was causally linked to his service. The tribunal also had to consider whether the applicant's conditions met the criteria set out in the Statements of Principles concerning PTSD, alcohol dependence or abuse, psoriasis, anxiety disorder, and personality disorder. The applicant argued that his fall from an aircraft during a parachuting exercise constituted a severe stressor, while the Commission argued that the applicant's conditions were not service-related.

In its decision, the tribunal found that the applicant had experienced a severe stressor during his service when he fell from an aircraft, but this incident was not recorded in the applicant's service records. The tribunal accepted the opinion of Dr Koller, a psychiatrist, that the applicant's symptoms in the mid-1980s were consistent with PTSD. However, the tribunal found that the applicant's PTSD was not causally linked to his service as it was not possible to determine whether the applicant's condition met the criteria set out in the relevant Statement of Principles. The tribunal also found that the applicant's alcohol abuse was secondary to his PTSD but again could not determine whether this condition was causally linked to his service. The tribunal found that the applicant's psoriasis was not causally linked to his service as it was not possible to determine whether the applicant's condition met the criteria set out in the relevant Statement of Principles. The tribunal remitted the matter for assessment with recognition of any of the contested conditions.

The tribunal's decision was based on its finding that the applicant had experienced a severe stressor during his service but could not determine whether this incident was causally linked to his service. The tribunal accepted the opinion of Dr Koller that the applicant's symptoms were consistent with PTSD but could not determine whether the applicant's condition met the criteria set out in the relevant Statement of Principles. The tribunal also found that the applicant's alcohol abuse was secondary to his PTSD but could not determine whether this condition was causally linked to his service. The tribunal found that the applicant's psoriasis was not causally linked to his service as it was not possible to determine whether the applicant's condition met the criteria set out in the relevant Statement of Principles. The tribunal's decision was to remit the matter for assessment with recognition of any of the contested conditions.

Orders

Orders of the court

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Background

Background to the litigation

On 26 April 2000 the applicant lodged with the Administrative Appeals Tribunal ("the tribunal") an application for review of the VRB decision (T1).BACKGROUND The applicant was born on 26 June 1959, making him 42 years of age at the time of the hearing. When the applicant was growing up his father spent much of the weekend drinking and gambling, causing domestic arguments with his wife. The applicant's mother died on 30 November 1985. The applicant's parents were married for over 40 years. He has two sisters and a brother. The applicant left school at the age of 15 and he stated that he was "in with a bad bunch of blokes." He was subsequently employed as a labourer, storeman and as a railway worker. He left the latter of these positions when he was accused of stealing money. He joined the RAAF at the age of 16 as an apprentice airforce fitter and eventually became a flight engineer (T4/62). The applicant flew for six years. The Applicant was engaged to be married at one stage in his service career but the relationship ended by mutual agreement after four years. He subsequently lived with another woman for two years but this also ended by mutual consent. His girlfriend became annoyed by his regular absences on flying duties. He was discharged from the RAAF in 1987. The Applicant was unemployed from 1987 to 1992. From 1992 to 1995 he undertook survey work for Hurstville and Rockdale City Councils. He was unemployed then until 1996 when he became a self-employed cleaning contractor (T4/58). HEARING AND DOCUMENTATION The tribunal convened a hearing in this matter in Sydney on 18 September 2001. Mr B Winship of Rockliffs, Solicitors & Attorneys, represented the applicant. Mr S Modder of the DVA Advocacy Service represented the Repatriation Commission. A RAAF colleague, the applicant's father, the applicant's partner and the applicant all gave evidence in person at the hearing. The tribunal had access to the following documentary material which was taken into evidence: At the applicant's request the tribunal issued an order in accordance with s 35 of the Administrative Appeals Tribunal Act 1975 in the following terms:"The tribunal, being satisfied that it is desirable to do so by reason of the confidential nature of certain evidence orders that the publication of the names and addresses of witnesses appearing in this matter is prohibited." The applicant was seeking recognition of post-traumatic stress disorder as an accepted disability with secondary alcohol abuse. He was also seeking recognition of psoriasis as an accepted disability. The matter was to be remitted for assessment with recognition of any of these conditions. The respondent was relying on reports by Dr Kaplan and Professor Mattick to argue that the applicant had a personality disorder that was not service-related. The tribunal makes the following uncontroversial findings. The applicant served in the RAAF and rendered eligible defence service from 7 January 1976 until 8 October 1987 (T7).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 15 July 1999 the respondent wrote to the applicant informing him that it had elected not to conduct a review of his application pursuant to s 31 of the Veterans' Entitlements Act 1986 (T12).reviewable decision On 2 February 2000 the VRB varied the diagnosis of personality disorder with secondary alcohol abuse to post traumatic stress disorder with secondary alcohol abuse (T15). Otherwise, the Repatriation Commission decision was affirmed, none of the contested conditions being accepted as causally linked to service. It was the applicant's contention that progress reports from his supervisors showed that he was a consistently good performer in the RAAF in his early service life and that his demise had been caused by an incident when he fell from an aeroplane during parachuting duties. Further, the applicant had suffered from a personality clash with one of his supervisors. Regarding the aircraft incident it was the applicant's contention that he had experienced a catastrophic and stressful event during which he was threatened with actual death and experienced helplessness and horror. The VRB noted that there was no actual record of the incident since neither the Flight Captain nor the applicant had reported it. In the mid-1980s it was not a personality disorder that was being exhibited by the applicant but the effects of a post-traumatic stress disorder as a result of the parachuting incident. In relation to psoriasis the applicant contended that he satisfied factor 5(f) of the Statement of Principles ("SoP") concerning psoriasis, no 22 of 1998, in that he was suffering from a clinically significant anxiety and depressive disorder. Further he satisfied factor 5(e) of the same SoP in that he was suffering from alcohol dependence and abuse. Both contentions were supported by the opinion of Dr K Koller, a psychiatrist. The VRB noted that on the formal claim form (T4) the applicant had referred to severe stress and anxiety on flying duties in New Guinea and becoming a regular user of tobacco and alcohol. Subsequently the applicant recorded details of the incident that occurred in 1982 when he fell from a plane. He could not remember the exact date of the incident. He said that it was decided in consultation with the two pilots and the instructor that the incident would be concealed because no injury was suffered. In 1983, in New Guinea, the applicant noticed that he was having nightmares about the incident. He medicated himself with alcohol. At this time the applicant's mother was dying from cancer and the applicant believed at the time that the stress was more related to her condition than the aircraft incident. The VRB noted the diagnosis of personality disorder with secondary alcohol abuse but noted also that in the late 1970s and early 1980s the applicant's performance was satisfactory and he was considered fit for service. The VRB accepted the opinion of Dr Koller in amending the diagnosis to post traumatic stress disorder with secondary alcohol abuse. The VRB then turned to the relevant SoP to ascertain whether any of the minimum factors were met such that the disease could be regarded as caused by the applicant's defence service.

Ratio Decidendi

Legal Principle Established

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