Stewart and Repatriation Commission - [2007] AATA 1598

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1598
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200600787

VETERANS’ APPEALS DIVISION )

Re Colin Joseph Stewart

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal
Senior Member Bernard J McCabe

Dr Graham J Maynard, Member

Date 27 July 2007
PlaceBrisbane

Decision The decisions with respect to the applicant’s anxiety, alcohol abuse and hypertension conditions are affirmed. The decision with respect to the applicant’s tinea is set aside. The Tribunal decides in substitution that the tinea condition is related to the applicant’s service. That aspect of the matter is remitted to the respondent for assessment. The date of effect is 10 August 2004.

................[Sgd].......................
SENIOR MEMBER

CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – disability pension – skin condition – found to be related to operational service – decision set aside and substituted
VETERANS’ AFFAIRS – Veterans’ Entitlements – disability pension – whether events constitute a severe psychosocial stressor or severe stressor – events startling but lack necessary social element – similarly of insufficient severity to be a severe stressor – statement of principles not satisfied – decision affirmed
Repatriation Commission v Repatriation Commission (1998) 49 ALD 193
Stonehouse and Repatriation Commission [2004] AATA 707
Lees v Repatriation Commission (2002) 125 FCR 331
Youngnickel v Repatriation Commission [2004] FCA 1691
Veterans’ Entitlements Act 1986
REASONS FOR DECISION
27 July 2007    Senior Member B J McCabe
Dr G J Maynard, Member
1.      Mr Stewart suffers from a number of health conditions. He says the conditions are attributable to his operational service in the Navy during the 1960’s. He has made a claim for a disability pension under the Veterans’ Entitlements Act1986 (the Act) but the respondent says he is not eligible. Mr Stewart asked the Tribunal to reconsider his claim.
2.      Mr Stewart says he suffers from generalised anxiety disorder, an alcohol abuse condition, hypertension and tinea. He says the anxiety condition arose after he was exposed to events occurring on board HMAS Derwent in 1965 while it was on operational service in Indonesian waters. His anxiety condition contributed to his alcohol abuse (although he argues in the alternative that the alcohol abuse might have been triggered directly by some of the same events contributing to his anxiety condition) which led in turn to his hypertension. The tinea stands alone.
3.      In order to decide the claims, we must use the statements of principles published by the Repatriation Medical Authority. As we will explain, the substance of the dispute in relation to the anxiety, alcohol and hypertension conditions revolves around the meaning of the expressions severe psychosocial stressor in the SoP in relation to anxiety disorder (No 1 of 2000) and severe stressor in the SoP relating to alcohol abuse or dependence (No 76 of 1998).
4.      For reasons we will explain, the claims in respect of anxiety, alcohol abuse, and hyptertension must fail. The claim in respect of tinea should succeed.
the background
5.      The applicant joined the Navy when he…

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 Stewart and Repatriation Commission

Details

AGLC: Stewart and Repatriation Commission [2007] AATA 1598
Case: [2007] AATA 1598
Decision Date: 27 July 2007

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal involved a veteran, the applicant, who sought a review of decisions made by the Repatriation Commission concerning the veteran's entitlement to a disability pension for various medical conditions. These conditions included anxiety, alcohol abuse, hypertension, and a skin condition known as tinea. The Tribunal was tasked with determining whether these conditions were related to the veteran's operational service, thus qualifying for pension benefits under the Veterans’ Entitlements Act 1986.

The primary legal issues before the Tribunal were whether the applicant's conditions met the criteria for a disability pension as outlined in the Veterans’ Entitlements Act. Specifically, the Tribunal needed to assess whether the anxiety, alcohol abuse, hypertension, and tinea conditions were related to the veteran's service, and if the events leading to these conditions constituted severe psychosocial stressors or severe stressors. The Tribunal also needed to consider the statements of principles concerning severe stressor events and whether they were satisfied in this case.

In its decision, the Tribunal found that the anxiety, alcohol abuse, and hypertension conditions were indeed related to the applicant's service. However, the Tribunal determined that the events leading to these conditions did not constitute severe psychosocial stressors or severe stressors as required by the statements of principles. The Tribunal held that while the events were startling, they lacked the necessary social element and were not of sufficient severity to qualify as severe stressors. Consequently, the Tribunal affirmed the Commission's decision concerning these conditions. Regarding the tinea condition, the Tribunal found that although it was not classified as a severe stressor, it was related to the applicant's service. The Tribunal set aside the Commission's decision on the tinea condition and substituted its own decision that the condition was related to service. This aspect of the matter was remitted to the Commission for reassessment of the pension entitlement.

The Tribunal's final orders were that the decisions concerning the applicant's anxiety, alcohol abuse, and hypertension conditions were affirmed. The decision regarding the tinea condition was set aside, and the Tribunal substituted its own decision that the tinea condition was related to the applicant's service. This aspect was remitted to the Commission for reassessment. The date of effect for these orders was set as 10 August 2004.

Orders

Orders of the court

The decisions with respect to the applicant’s anxiety, alcohol abuse and hypertension conditions are affirmed. The decision with respect to the applicant’s tinea is set aside. The Tribunal decides in substitution that the tinea condition is related to the applicant’s service. That aspect of the matter is remitted to the respondent for assessment. The date of effect is 10 August 2004.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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VETERANS’ APPEALS DIVISION		)
Re		Colin Joseph Stewart