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Summers v Repatriation Commission

Summers v Repatriation Commission

Case [2013] AATA 439 27 June 2013

War-Caused Conditions

Post-Traumatic Stress Disorder

Alcohol Dependence

Statement of Principles

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[2013] AATA 439

Division	VETERANS' APPEALS DIVISION
File Numbers	2007/3957, 2009/2689
Re	Ronald John Summers
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	G. D. Friedman, Senior Member
Date	27 June 2013
Place	Melbourne

The Tribunal sets aside the decisions under review and substitutes a decision that post‑traumatic stress disorder suffered by Mr Summers is war-caused. In all other respects the Tribunal affirms the decisions under review.

...........................[sgd].............................................

G. D. Friedman, Senior Member

VETERANS' AFFAIRS – veterans’ entitlements – post-traumatic stress disorder – traumatic events – whether condition diagnosed and war-caused – alcohol dependence – whether war-caused – whether intermediate or special rate of pension applies

Veterans' Entitlements Act 1986 ss 9, 23(1), 23(2), 23(3), 24(1), 24(2), 120(1)

Summers v Repatriation Commission [2012] FCAFC 104

REASONS FOR DECISION

G. D. Friedman, Senior Member

27 June 2013

Ronald Summers served in the Australian Army from 12 July 1967 to 11 July 1969. His service in Vietnam from 24 June 1968 to 14 October 1968, and in Australia from 14 October 1968 to 28 October 1968 (when he returned to Australia on emergency leave on compassionate grounds) constitutes operational service under the Veterans' Entitlements Act 1986 (the Act).
Mr Summers is currently receiving a disability pension at 100 per cent of the general rate. The Repatriation Commission has previously accepted that Mr Summers’ medical conditions of bilateral sensorineural hearing loss, chronic bronchitis and emphysema, and lumbar spondylosis are war-caused. The respondent previously rejected his claims that gout and cervical spondylosis are war-caused conditions.
On 10 December 2007 Mr Summers lodged a claim which was interpreted by the respondent as being for post-traumatic stress disorder (PTSD) and alcohol dependence to be accepted as war-caused. He is also seeking a special rate pension, which is a higher rate of pension, paid to a working-age recipient who is unable to work due to accepted disabilities alone. His applications were refused by the Repatriation Commission and the Veterans’ Review Board (VRB), and he sought review of those decisions by this Tribunal. On 20 October 2010 the Tribunal affirmed the decisions (Re Summers and Repatriation Commission [2010] AATA 803).
Mr Summers appealed the Tribunal’s decision to the Federal Court of Australia and on 8 November 2011 North J dismissed the appeal (Summers v Repatriation Commission [2011] FCA 1451). Mr Summers appealed the decision to the Full Federal Court of Australia…

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 Summers v Repatriation Commission

Details

AGLC: Summers v Repatriation Commission [2013] AATA 439
Case: [2013] AATA 439
Decision Date: 27 June 2013

CaseChat Overview and Summary

Ronald John Summers applied for a review of decisions by the Repatriation Commission and the Veterans’ Review Board which rejected his claims for a war-caused disability pension at the special rate. The applicant argued that his post-traumatic stress disorder (PTSD) and alcohol dependence were war-caused, and that he qualified for the special rate pension. The Tribunal found that the applicant suffered from PTSD and that the condition was war-caused. However, the Tribunal found that alcohol dependence was not war-caused. The Tribunal held that the applicant did not satisfy the requirements of the Veterans' Entitlements Act 1986 for disability pension at the special rate. The Tribunal set aside the decisions under review and substituted a decision that PTSD suffered by Mr Summers was war-caused. In all other respects, the Tribunal affirmed the decisions under review.

Orders