Thiselton and Repatriation Commission (Veterans' entitlements) - [2018] AATA 237

Thiselton and Repatriation Commission (Veterans' entitlements) [2018] AATA 237 (16 February 2018)
Division:VETERANS' APPEALS DIVISION
File Numbers: 2016/5846 and 2017/0855
Re:Ian Thiselton
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:16 February 2018
Place:Brisbane

The Tribunal:
(a)sets aside the decision of the Veterans’ Review Board of 21 September 2016 that denied liability for a pension for the veteran’s claimed conditions of hypertension and ischaemic heart disease;
(b)substitutes a decision that the veteran suffered or suffers from defence served related hypertension and ischaemic heart disease;
(c)remits these matters to the Respondent for all necessary action;
(d)affirms the decision of the Veterans’ Review Board of 3 February 2017 denying liability for a pension for the claimed condition of adjustment disorder.

...........................[SGD].............................................
Deputy President J Sosso
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – whether the veteran’s conditions were defence caused – alcohol drinking habit developed during periods of service in closed camp – hypertension – ischaemic heart disease – adjustment disorder
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
CASES
Gilkinson v Repatriation Commission (2011) 197 FCR 102
Re Fisher and Repatriation Commission (2006) 93 ALD 257
Re Lindsay and Repatriation Commission (1995) 39 ALD 108
Repatriation Commission v Tuite (1993) 39 FCR 540
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Law (1981) 147 CLR 635
Roncevich v Repatriation Commission (2005) 222 CLR 115
SECONDARY MATERIALS
Statement of Principles concerning Hypertension, No. 64 of 2013
Statement of Principles concerning Ischaemic Heart Disease (Balance of Probabilities), No. 2 of 2016
Statement of Principles concerning Adjustment Disorder (Balance of Probabilities), No. 24 of 2016
REASONS FOR DECISION
Deputy President J Sosso
16 February 2018
INTRODUCTION

Mr Ian Thiselton (the veteran) applies to the Tribunal for a review of two decisions of the Veterans’ Review Board (the Board):
(a)The Board’s decision of 21 September 2016 which affirmed a determination of the Repatriation Commission (the Commission) of 14 March 2014 denying liability for a disability pension under s 70(1)(b) of the Veterans’ Entitlements Act 1986 (the Act) for the claimed conditions of hypertension and ischaemic heart disease; and
(b)The Board’s decision of 3 February 2017 which affirmed a determination by the Commission of 22 July 2016 denying liability for a disability pension under the Act for the claimed condition of adjustment disorder.
The veteran contends (Applicant’s Statement of Facts and Contentions (ASFC) at para 3):
(a)he developed an alcohol drinking habit of at least 500 g per week as a result of his defence service;
(b)his alcohol consumption was a cause of developing hypertension and subsequently ischaemic heart disease; and
(c)his stressful defence service was a cause of him developing a chronic adjustment disorder with anxiety and depression.
The veteran is currently 65 years old and enlisted in the Australian Army on 23 February 1971 when he was 18 years of age. His defence service for the purposes of the Act was between 7 December 1972 and 27 February 1995.
The veteran served as a draughtsman in the Survey…

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: [2018] AATA 237
Decision Date: 16 February 2018

CaseChat Overview and Summary

This matter concerned an appeal by the veteran, Mr Thiselton, against a decision of the Veterans’ Review Board that denied his claim for a pension for hypertension and ischaemic heart disease, and adjustment disorder, on the basis that these conditions were not defence-caused. The appeal was heard by Deputy President Sosso P.

The primary legal issues before the Tribunal were whether the veteran's hypertension and ischaemic heart disease were defence-caused, and whether he suffered from an adjustment disorder. Specifically, for hypertension, the Tribunal had to determine if the veteran consumed an average of at least 500g of alcohol per week for the six months preceding the clinical onset of his hypertension, and if his alcohol consumption was a contributing factor to his condition. The Tribunal also considered the definition of a "Category 2 stressor" in relation to the claimed adjustment disorder.

The Tribunal found that the veteran did suffer from hypertension and ischaemic heart disease, and that these conditions were defence-served related. While the Respondent argued that the veteran's alcohol consumption did not meet the threshold of 500g per week, the Tribunal was persuaded by the evidence of the veteran and his wife, Mrs Thiselton, who testified to his significant alcohol consumption at the Canungra Hotel. This evidence indicated that the veteran regularly consumed substantially more than the minimum required amount of alcohol in the period leading up to his hypertension diagnosis. The Tribunal also noted that the clinical onset of hypertension was undisputed and diagnosed by a medical practitioner. However, the Tribunal found that the veteran did not suffer from an adjustment disorder, and therefore the requirements of Instrument No. 24 of 2016 were not met in relation to that condition.

The Tribunal set aside the decision of the Veterans’ Review Board denying liability for a pension for the veteran’s claimed conditions of hypertension and ischaemic heart disease. It substituted a decision that the veteran suffered from defence-served related hypertension and ischaemic heart disease, and remitted these matters to the Respondent for all necessary action. The Tribunal affirmed the decision of the Veterans’ Review Board denying liability for a pension for the claimed condition of adjustment disorder.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Subject to that self-evident qualification, the Tribunal finds that the veteran did not suffer from an adjustment disorder at any time, and that the requirements of Instrument No. 24 of 2016 have not been met.DECISION The Tribunal:(a)sets aside the decision of the Veterans’ Review Board of 21 September 2016 that denied liability for a pension for the veteran’s claimed conditions of hypertension and ischaemic heart disease;(b)substitutes a decision that the veteran suffered or suffers from defence served related hypertension and ischaemic heart disease;(c)remits these matters to the Respondent for all necessary action;(d)affirms the decision of the Veterans’ Review Board of 3 February 2017 denying liability for a pension for the claimed condition of adjustment disorder.

Ratio Decidendi

Legal Principle Established

“Category 2 stressor” is defined in Schedule 1 as meaning a number of enumerated negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry. In this instance the veteran relies on paragraph (c):“(c) having concerns in the work or school environment including on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful workloads, or experiencing bullying in the workplace or school environment.”CONSIDERATIONHypertension The Respondent accepts (SFICR para 118) that the veteran has suffered, and continues to suffer, from hypertension. It is not disputed that the clinical onset of the hypertension was 22 May 1978 – ASFC para 5, SFICR para 119. That was the day the veteran was admitted to 1 Military Hospital after being referred for investigation of hypertension. The medical records disclose that the veteran was suffering from elevated blood pressure and was diagnosed with hypertension by a medical practitioner – Exhibit 1 T4.1 pp. 98 – 99. Accordingly, the requirement of diagnosis by a medical practitioner in Instrument No. 64 of 2013 under s 3(b) has been met. The next requirement is that the veteran was consuming an average of at least 500g of alcohol per week for at least the six months before the clinical onset of hypertension – s 6(c). The relevant period then is December 1977 until May 1978, or thereabouts. This was the time period that the veteran was posted to LWC Canungra. The Respondent contends (SFICR paras 121 – 123) that the evidence adduced could not reasonably satisfy the Tribunal that the veteran drank the requisite quantity of alcohol within the time period prescribed by s 6(c). The only contemporary evidence of the veteran’s alcohol consumption is when he was admitted to hospital on 15 May 1978 when it is recorded as 50 fluid ounces each day – Exhibit 1 T4.1 pp. 49, 99. This imperial measure converts to 1478 ml each day, or 496 g of pure alcohol each week. This falls short by 4 g of the required 500 g of alcohol each week. The Tribunal is not persuaded by this line of reasoning. Fifty fluid ounces equates to five pots of full strength beer. A “pot” equated to 10 fluid ounces in the old measures or, approximately, 285 ml in metric measures. While the veteran’s written statements and oral evidence suggest he was drinking considerably more alcohol than this, the Tribunal was particularly impressed by the oral evidence given by Mrs Mary-Ann Thiselton. Mrs Thiselton worked at the Canungra Hotel before she married the veteran. She observed his drinking habits from the professional prism of a bar attendant. She served him drinks on at least two nights per week for four to five months before she started dating him. They were married in May 1977, and by December 1977 were living in Canungra. Mrs Thiselton stated (Exhibit 10 para 21) that the veteran would drink 3 to 4 pots of beer each hour at the Canungra Hotel, and stayed there from 6.30 pm until closing time. Assuming the veteran drank, on average 3 pots of beer each hour, and stayed at the hotel for three hours, he would have consumed 90 fluid ounces of beer each evening. However, that estimate is at the lowest end of the scale, based on the evidence of both the veteran and his wife. In fact, the veteran stated (Exhibit 6 para 30) that he visited the Canungra Hotel probably four nights per week, and would stay up to five hours drinking up to four pots each hour. If one accepted that estimate, then the veteran would have been consuming 200 fluid ounces of beer each drinking session.