Symons and Repatriation Commission - [2000] AATA 1049

DECISION AND REASONS FOR DECISION [2000] AATA 1049

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/127

VETERANS' APPEALS DIVISION )

Re Peter SYMONS
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Dr P D Lynch, Member

Date              28 November 2000
Place            Sydney
Decision      The Tribunal – 1.     Affirms the decision under review, being the decision of a delegate of the Repatriation Commission ("the Respondent") dated 11 June 1996, that refused the claim of Peter Symons ("the Applicant") that his condition of cervical spondylosis was defence caused. 2.   Varies the decision under review, being the decision of the Respondent dated 17 April 1997 that refused the Applicant's claim that his condition of Post Traumatic Stress Disorder was war caused by deciding that the words "Post Traumatic Stress Disorder" be deleted, and replaced by the words "Depressive Disorder", and otherwise affirms the decision.
  ..............................................
  M T Lewis,
  Presiding Member

CATCHWORDS
VETERANS' AFFAIRS – entitlement – whether cervical spondylosis war-caused – Statement of Principles applied – whether Tribunal reasonably satisfied that cervical spondylosis war-caused – whether suffered trauma to neck prior to clinical onset or worsening of cervical spondylosis – credit of Applicant as witness
VETERANS' AFFAIRS – entitlement – whether post traumatic stress disorder is correct diagnosis of psychiatric condition - whether post traumatic stress disorder war-caused – Statement of Principles applied – whether reasonable hypothesis raised – whether experienced a stressor – whether satisfied beyond reasonable doubt that conditions was not war-caused

Veterans' Entitlements Act 1986 – ss 119, 120(1), 120(3), 120(4), 120A, 120B

Statements of Principles - 15 of 1994, 102 of 1995, 225 of 1995, 331 of 1995, 355 of 1995, 65 of 1996, 162 of 1996, 3 of 1999, 32 of 1999, 54 of 1999

REASONS FOR DECISION

Mrs M T Lewis, Senior Member Dr P D Lynch, Member

This is a review of two decisions of delegates of the Repatriation Commission ("the Respondent"). The first…

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

Case: [2000] AATA 1049
Decision Date: 28 November 2000

CaseChat Overview and Summary

In the case of Symons and Repatriation Commission, the primary issue at hand was whether the Applicant was entitled to compensation under the Veterans' Entitlements Act 1986 for certain medical conditions allegedly caused by his service. The Applicant contended that he suffered from cervical spondylosis and post-traumatic stress disorder (PTSD), both of which he claimed were caused by his military service. The Repatriation Commission, on the other hand, disputed the Applicant's claims, arguing that the conditions were either not caused by his service or were pre-existing.

The court was required to determine whether the Applicant's cervical spondylosis was caused by his military service and if the Tribunal was reasonably satisfied that it was. Furthermore, the court had to assess whether the Applicant suffered trauma to his neck prior to the clinical onset or worsening of his cervical spondylosis. In relation to the PTSD claim, the court had to decide whether the Applicant experienced a stressor that could be considered war-caused and if it was reasonably satisfied beyond reasonable doubt that the condition was not war-caused.

The court examined the Statements of Principles applicable to both conditions and considered the evidence provided by the Applicant and the medical experts. The Applicant's credibility as a witness was also evaluated. The court found that the Applicant's claims for both cervical spondylosis and PTSD were not substantiated by the evidence. The court concluded that the Applicant's cervical spondylosis was not caused by his military service, and the Tribunal was not reasonably satisfied that it was. Regarding the PTSD claim, the court held that the Applicant had not experienced a sufficient stressor during his service to warrant a diagnosis of PTSD. Consequently, the Applicant's claims were dismissed.

In conclusion, the court found in favour of the Repatriation Commission, dismissing the Applicant's claims for compensation related to cervical spondylosis and PTSD. The Applicant's entitlement to compensation for these conditions was denied based on the court's findings that the conditions were either not caused by his military service or did not meet the criteria set out in the applicable Statements of Principles.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Applicant's oral evidence about this was that the program worked better for his wife than for him.Psychiatric condition - Consideration of submissions, evidence, and findings of fact It was submitted for the Applicant that on the evidence of Dr Altman the Applicant suffers from a psychiatric disorder that is diagnosed as PTSD with associated Major Depression and Alcohol Dependence. It was submitted that Dr Altman as the treating psychiatrist since March 1997 is in a stronger position than Dr Lewin to diagnose the Applicant's condition on the basis of the symptoms he has recorded and his knowledge of the level of incapacity suffered. On the other hand Dr Lewin saw the Applicant only once and was unable to diagnose any current psychiatric illness. Dr Altman diagnosed alcohol dependence as part of the Applicant's PTSD, while Dr Lewin diagnosed alcohol abuse but also considered there to be a "fair likelihood" of alcohol dependence. It was submitted for the Applicant that the applicable Instrument in respect of the PTSD is Instrument No.15 of 1994 concerning Post Traumatic Stress Disorder as amended by Instrument No.225 of 1995. It was submitted that the stressor that the Applicant, as a teenage boy, was exposed to was his subjective perception that his life and/or safety were at risk whilst he was on guard duty on HMAS Sydney, and whilst thunder flashes were being discharged. At that time he was 16 years of age, and came from a relatively sheltered regional upbringing. Dr Altman and Dr Lewin agreed that age is a well-documented vulnerability factor in the development of PTSD. Dr Altman considered the stressor and the response to it to be sufficient to meet the requirement of the Statements of Principles. Dr Lewin, in his report, did not consider that there had been a sufficient stressor, but he modified his view in oral evidence. It was submitted for the applicant that it is necessary to view the stressors in context. At age 15 the Applicant went to HMAS Leeuwin as a cadet and was later transferred to HMAS Sydney. HMAS Sydney was not a training ship. The Applicant was on board the vessel when it went on its 13th trip to Vietnam. Prior to the voyage the Applicant had heard predictions of disaster. The Applicant recalls first having suffered anxiety about this time when he was court-martialled and confined to quarters due to an incident of damage to ship's property involving the setting alight of paints and chemicals. Once HMAS Sydney arrived in Vietnamese waters the Applicant was put on guard duty and given a rifle without bullets. He was told to watch for bubbles from enemy divers. There were thunder flashes being discharged from time to time but he received no explanation about the nature of the explosions. He felt totally confused. He was not debriefed after the trip. On the evidence of Dr Altman the Applicant suffered a stressor and his response to the stressor was of the required severity. It was submitted that since the early 1970s the Applicant had had symptoms of anger and intolerance and to deal with this he would try to work on his own.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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