Thompson and Repatriation Commission - [2000] AATA 635

DECISION AND REASONS FOR DECISION [2000] AATA 635

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1998/1289

VETERANS' AFFAIRS DIVISION )
           Re      ELLA MAY THOMPSON
  Applicant
           And     REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member Mr I Campbell, Member Dr P Fricker, Member

Date2 August 2000
PlaceMelbourne

Decision        The Tribunal sets aside the decision of the Veterans' Review Board of 30 September 1998 and in substitution varies the decision of the Repatriation Commission made 17 October 1997 to provide: 1. Psychoactive substance abuse or dependence, alcoholic diarrhoea, gastro-oesophageal reflux disease and acquired cataracts are war-caused diseases within the meaning of that term in s 9 of the Veterans' Entitlements Act 1986 ("the Act") with effect from 24 December 1996. 2. Mrs Thompson is entitled to pension at 90% of the General Rate from 24 December 1996.
  (Sgnd) Joan Dwyer
  Senior Member
VETERANS' AFFAIRS – whether psychoactive substance abuse or dependence and post-traumatic stress disorder are war-caused diseases – whether service as a driver at East Sale Air Base during a period when approximately 120 aircrew were killed in plane crashes constitutes a "severely stressful event" or "experiencing a stressor" – whether veteran confronted with the plane crashes – whether veteran suffering irritable bowel syndrome or alcoholic diarrhoea – whether alcoholic diarrhoea and gastro-oesophageal reflux disease are war-caused diseases – assessment of rate of pension – decision set aside
WORDS AND PHRASES – "severely stressful event", "experiencing a stressor", being "confronted with an event"
PRACTICE AND PROCEDURE – need to put full material before psychiatrist – failure to provide psychiatrist called by respondent with report as to number of deaths and air crashes at East Sale Air Base during relevant period
Suggestion that the reasons of the Tribunal including excerpts from evidence of a senior gastroenterological surgeon be forwarded to Repatriation Medical Authority as it may like to review SoP for irritable bowel syndrome on basis of his opinion
Veterans' Entitlements Act 1986 s 120(4)

Keeley v Repatriation Commission (1999) 56 ALD 455

Repatriation Commission v Keeley [2000] FCA 532

Re Budworthand Repatriation Commission [2000] AATA 127

Re Slattery and Repatriation Commission (AAT 427, 16 June 1998

Re Clarke and Repatriation Commission [2000] AATA 545

REASONS FOR DECISION

2 August 2000 Mrs Joan Dwyer, Senior Member Mr I Campbell, Member Dr P Fricker, Member

This is an application for review of a decision of the Repatriation Commission ("the Commission") made 17 October 1997 (T28) and affirmed by the Veterans' Review Board ("the VRB") on 30 September 1998.
At the hearing Mr D De Marchi, a solicitor, appeared for Mrs Thompson. Mr B Lilley, a solicitor, appeared for the Commission. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and the exhibits tendered during the hearing. Mrs Thompson gave evidence. Evidence on her behalf was also given by Mr Marshall, a gastroenterological surgeon, and Dr Cole, a psychiatrist. The respondent called Dr…

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 Thompson and Repatriation Commission

Details

AGLC: Thompson and Repatriation Commission [2000] AATA 635
Case: [2000] AATA 635
Decision Date: 2 August 2000

CaseChat Overview and Summary

The Tribunal reviewed a decision of the Repatriation Commission regarding the eligibility of Ella May Thompson for war-caused disease pensions. The applicant, represented by Mr D De Marchi, argued that certain conditions were war-caused and sought a higher pension rate. The respondent, represented by Mr B Lilley, contested the claims and argued that the pension should remain at the current rate.

The Tribunal found that psychoactive substance abuse or dependence, alcoholic diarrhoea, gastro-oesophageal reflux disease, and acquired cataracts were war-caused diseases. The Tribunal determined that the applicant's service as a driver at East Sale Air Base, where she witnessed the deaths of approximately 120 aircrew in plane crashes, constituted a "severely stressful event" that led to her psychoactive substance abuse or dependence. However, the Tribunal concluded that the applicant did not meet the criteria for post-traumatic stress disorder as she was not confronted with the events when planes crashed.

The Tribunal assessed the pension rate based on the war-caused conditions and determined that the applicant was entitled to a pension at 90% of the General Rate from 24 December 1996. The Tribunal set aside the decision of the Veterans' Review Board and varied the decision of the Repatriation Commission accordingly.

Orders