Stuth and Repatriation Commission - [2013] AATA 646

[2013] AATA 646

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2011/3090

Re

William Stuth

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Ms N Bell, Senior Member
Dr Ion Alexander, Member

Date 12 September 2013

Place Sydney
The Tribunal affirms the decision under review. Mr Stuth’s rate of disability pension should continue at 30% of the general rate of pension.
.....[Sgd]...................................................................
Ms N Bell, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – whether suffers from psychiatric condition – whether condition war caused – standard of reasonable satisfaction – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth), s 120(4)
CASES
Repatriation Commission v Bawden [2012] FCAFC 176
Repatriation Commission v Deledio (1998) 83 FCR 82
Summers v Repatriation Commission (2012) 293 ALR 86; [2012] FCAFC 104
Repatriation Commission v Warren (2007) 95 ALD 606; [2007] FCA 866
SECONDARY MATERIALS
Statement of Principles concerning Anxiety Disorder No. 101 of 2007
Statement of Principles concerning Alcohol Dependence and Alcohol Abuse No.1 of 2009
Statement of Principles concerning Post Traumatic Stress Disorder No. 5 of 2008
REASONS FOR DECISION
Ms N Bell, Senior Member
Dr Ion Alexander, Member

William Stuth served in the Australian Army between 20 April 1966 and 19 April 1968. He had operational service in Vietnam between 30 June 1967 and 20 February 1968. He receives a disability pension at 30% of the maximum rate in respect of his accepted conditions of sensorineural hearing loss, bilateral tinnitus and solar keratosis.
He made a further claim in respect of anxiety disorder, alcohol dependence and pilonidal sinus. The Repatriation Commission rejected his claim and contends that he does not suffer from any psychiatric condition and, if he did, the material before the Tribunal does not point to a hypothesis that conforms to the relevant Statements of Principles. As to his pilonidal sinus, that diagnosis is not in dispute but the Commission contends that there is no material before the Tribunal that points to its having been war caused.
The issues for us to consider are:
(i)What, if any, psychiatric condition(s) does Mr Stuth suffer from?
(ii)Are Mr Stuth’s conditions war caused?
WHAT, IF ANY, PSYCHIATRIC CONDITION(S) DOES MR STUTH SUFFER FROM?
Through the course of proceedings at the Veterans’ Review Board and in this Tribunal Mr Stuth has raised, as possible diagnoses, anxiety disorder, depression, alcohol abuse and alcohol dependence.
In Repatriation Commission v Bawden [2012] FCAFC 176 the Full Court said:
While there is no onus on a veteran to attach a label to the disease or injury manifest in his or her symptoms, if the disease or injury is alleged to be PTSD, the question of diagnosis is squarely raised and must be resolved.
We consider that this observation applies to all of the diagnoses urged on the Tribunal by Mr Stuth at different stages in these proceedings. We must reach our conclusion as to the kind of disease(s) suffered by Mr Stuth to the standard of reasonable satisfaction. In this regard we note the clear distinction drawn by the Full Court…

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 Stuth and Repatriation Commission

Details

AGLC: Stuth and Repatriation Commission [2013] AATA 646
Case: [2013] AATA 646
Decision Date: 12 September 2013

CaseChat Overview and Summary

In the case of Stuth and Repatriation Commission, the applicant, Mr Stuth, sought a review of a decision by the Repatriation Commission to deny his claim for an increase in his disability pension rate. Mr Stuth argued that he suffered from a psychiatric condition which was attributable to his service during the war, and that this condition warranted an increase in his pension rate. The dispute was heard and determined by the Administrative Appeals Tribunal.

The primary legal issue before the court was whether Mr Stuth indeed suffered from a psychiatric condition that was caused by his war service. Additionally, the court had to determine whether the Repatriation Commission had correctly applied the standard of "reasonable satisfaction" in deciding the matter. The standard of reasonable satisfaction is a lower evidentiary threshold than the civil standard of "balance of probabilities," and requires the decision-maker to be reasonably satisfied that a certain fact is true.

The Tribunal examined the evidence presented and found no reason to disagree with the Repatriation Commission’s decision. The Tribunal held that the Commission had correctly applied the relevant legal principles and had made its decision on the basis of the evidence presented. The Tribunal was satisfied that Mr Stuth’s claimed psychiatric condition did not meet the necessary criteria for a war-related disability, and that the Commission had reasonably concluded that Mr Stuth’s condition was not caused by his war service. Consequently, the Tribunal affirmed the decision under review, and Mr Stuth’s rate of disability pension was to remain at 30% of the general rate of pension.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

We have no reason to disagree.DECISION The Tribunal affirms the decision under review. Mr Stuth’s rate of disability pension should continue at 30% of the general rate of pension.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2011/3090
Re	William Stuth
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Ms N Bell, Senior Member Dr Ion Alexander, Member
Date	12 September 2013
Place	Sydney