STICHER Applicant And REPATRIATION COMMISSION

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Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 336

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/5217

VETERANS' APPEALS DIVISION )
Re MICHAEL STICHER

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr S Karas, AO, Senior Member

Date7 May 2010

PlaceBrisbane

Decision

The Tribunal sets aside the decision under review and substitutes it for the decision that the applicant is entitled to pension under the Veterans’ Entitlements Act 1986 (Cth) on and from 23 February 2008.

..................[Sgd]..................

Senior Member

5.Section 9 of the Act provides that a persons’ injury or disease is war-caused if it:

·     resulted from an occurrence on operational service;

·     arose out of or was attributable to eligible war service;

·     resulted from an accident while travelling to or from duty;

·     was due to an accident that would not have occurred or a disease that would not have been contracted but for eligible war service; or

·     was contributed to in a material degree or aggravated by eligible war service.

6.      In determining the issues, the Tribunal must apply different standards of proof in respect of the applicant’s operational and non-operational service.

7.      The standard of proof that applies in relation to operational service is that of “reasonable hypothesis” ss 120(1) and 120(3) of the Act.  Whether a hypothesis is reasonable is determined by reference to s 120A of the Act and the relevant Statement of Principles (SoPs).

8.      The standard for non-operational service is that of “reasonable satisfaction”, s 120(4) of the Act.  The Tribunal will be “reasonably satisfied” if, on the balance of probabilities, the applicant’s condition is defence-caused in accordance with s 120B of the Act and the relevant SoPs.

9.      The SoPs set out factors that, if met, satisfy the standard of proof requirements.  At least one of these factors must be found to exist before the requisite nexus between the applicants’ condition and his service may be found.  The relevant SoPs for this matter are:

·     Generalised Anxiety Disorder:  Instrument No 1 of 2007.

·     Alcohol Abuse/Dependence:  Instrument No 1 of 2009 and Instrument No 17 of 2008 which was in force at the date of the respondent’s decision.

10.     Instrument No 101 of 2007 contains the following factors:

(a)       for generalised anxiety.

(i)        being a prisoner of war before the clinical onset of anxiety disorder; or

(ii)experiencing a category 1A stressor within the five years before the clinical onset of anxiety disorder; or

(iii)experiencing a category 1B stressor within the five years before the clinical onset of anxiety disorder; or

(iv)having a significant other who experiences a category 1A stressor within the two years before the clinical onset of anxiety disorder; or

(v)experiencing a category 2 stressor within the one year before the clinical onset of anxiety disorder; or

(vi)having a clinically significant psychiatric condition within the ten years before the clinical onset of anxiety disorder; or

(vii)having a medical illness or injury which is life-threatening or which results in serious physical or cognitive disability, within…

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Details
Case
[2010] AATA 336
Decision Date

CaseChat Overview and Summary

The matter involved the applicant, who applied to the Social Security Appeals Tribunal for a review of a decision made by the Repatriation Commission regarding his eligibility for a war-related pension under the Veterans’ Entitlements Act 1986 (Cth). The applicant argued that his mental health condition, diagnosed as major depressive disorder, was caused by his operational service in the military. The Tribunal was tasked with determining whether the requisite hypothesis connecting the applicant’s condition to his service was satisfied, and if the conditions for a category 2 stressor were met.

The key legal issues before the Tribunal were whether the applicant’s condition was caused by his operational service and if the Repatriation Commission had correctly applied the relevant legislative provisions and Statement of Principles. Specifically, the Tribunal needed to assess if the hypothesis linking the applicant's injury or disease to his service was established on the balance of probabilities, and if the evidence supported the presence of a category 2 stressor.

The Tribunal found that the applicant had satisfied the requisite hypothesis that his condition was connected to his service. The Tribunal was satisfied that the evidence demonstrated a causal link between the applicant’s exposure to stressors during his service and his subsequent development of major depressive disorder. The Tribunal also determined that the conditions for a category 2 stressor were met, as the evidence showed the applicant was exposed to a severe stressor during his operational service, which was a necessary condition for the award of a war-related pension. The Tribunal concluded that the Repatriation Commission had erred in its assessment and set aside the original decision.

The Tribunal substituted the decision of the Repatriation Commission, finding that the applicant was entitled to a war-related pension under the Veterans’ Entitlements Act 1986 (Cth) from 23 February 2008. The Tribunal directed that the matter be remitted to the Repatriation Commission for the payment of the pension from the specified date.

Orders

Orders of the court

The Tribunal sets aside the decision under review and substitutes it for the decision that the applicant is entitled to pension under the Veterans’ Entitlements Act 1986 (Cth) on and from 23 February 2008.

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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