Timothy Paton and Repatriation Commission - [2014] AATA 863

[2014] AATA 863

Division VETERANS' APPEALS DIVISION

File Number(s)

2013/1582, 1584

Re

Timothy Paton

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal Mr P W Taylor, SC, Senior Member

Date 21 November 2014

Place Sydney
The decision under review is set aside. Mr Paton’s depressive conditions are service related. In accordance with the submissions of both parties, Mr Paton’s application is consequently remitted to the Repatriation Commission to be determined in accordance with these reasons for decision.

....................[sgd]................................................
Mr P W Taylor, SC, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – depressive conditions – whether conditions are service related – decision set aside and remitted
LEGISLATION
Veterans’ Entitlements Act 1986
CASES
Military Rehabilitation and Compensation Commission v Wall (2005) 88 ALD 1; [2005] FCAFC 127

Repatriation Commission v Tuite (1993) 39 FCR 540; (1993) 29 ALD 609
SECONDARY MATERIALS
Statement of Principles concerning depressive disorder No. 28 of 2008

Statement of Principles concerning ischaemic heart disease No. 90 of 2007
REASONS FOR DECISION
Mr P W Taylor, SC, Senior Member
21 November 2014

Mr Paton is a 57 year old ex RAAF serviceman. During his service period (from 1977 to 1983) he qualified as a radio technician, and worked at RAAF bases in Victoria, South Australia and New South Wales.
In October 2005 Mr Paton underwent coronary artery bypass surgery, following an infarct resulting from ischaemic heart disease.
In July 2010 Mr Paton submitted a claim to the Department of Veterans’ Affairs seeking the acceptance of ischaemic heart disease and depressive disorder as service related and an increase in rate of pension on the basis that the accepted conditions of hearing loss and tinnitus had worsened.
At some time in 2005, the Commission had already accepted that Mr Paton had a service related hearing loss and tinnitus. He had attributed his hearing loss to working without ear muffs within 100 m of the Mirage jet warm up area at the RAAF Edinburgh base.
In his July 2010 application Mr Paton attributed his ischaemic heart disease to a substantial increase in cigarette smoking during his service life. Mr Paton described episodes of depression after his 1983 marriage break up, and claimed to have suffered from permanent depression “since heart surgery in 2006”. In October 2010, in the course of assessing Mr Paton’s application, he was diagnosed as suffering from recurrent Major Depressive Disorder and Dysthymic Disorder.
The Commission’s February 2011 decision accepted that Mr Paton’s ischaemic heart disease was service related, and increased his disability pension rate. The Commission rejected Mr Paton’s claim that his depressive illnesses were service related. That aspect of the Commission’s determination was affirmed in the Veterans’ Review Board decision of 28 February 2013. The Board’s decision is the subject of the present review proceedings.
THE PRINCIPLES FOR ATTRIBUTION
The Statement of Principles concerning depressive disorder No. 28 of 2008[1] (“SoP 28”) accepts that various depressive disorder conditions (including recurrent major depressive disorder and dysthymic disorder) can be related to service. Paragraph 6 of SoP 28…

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 Timothy Paton and Repatriation Commission

Details

AGLC: Timothy Paton and Repatriation Commission [2014] AATA 863
Case: [2014] AATA 863
Decision Date: 21 November 2014

CaseChat Overview and Summary

The matter between Timothy Paton and the Repatriation Commission was heard in the Australian court, addressing the eligibility of Mr Paton for a disability pension due to his depressive conditions. The primary issue was whether these conditions were related to his service in the Royal Australian Air Force (RAAF). Mr Paton's submissions included that his depressive condition stemmed from an injury to his left ear, allegedly caused by RAAF medical personnel in 1980, which thwarted his ambition to become a pilot, and subsequently worsened due to his ischaemic heart disease, a condition acknowledged to be service-related. Conversely, the Commission held that Mr Paton's depressive disorders were not service-related, and any subsequent worsening of his condition was not attributable to his service. The court had to decide on the onset and nature of Mr Paton's depressive disorders, their service-relatedness, and whether any clinical worsening post-2005 was connected to his service. The court examined the evidence provided by Dr Roberts, the forensic psychiatrist, and the Commission's stance that Mr Paton's depressive condition was not service-related, and his ischaemic heart disease was not life-threatening, thus not contributing to any service-related worsening of his depression.

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

The specific submission made in these review proceedings on Mr Paton’s behalf, in relation to the experience of “a category 2 stressor”, is that RAAF medical personnel accidentally damaged his left ear in late 1980. The consequences of that injury forced him to abandon his desire to work as a pilot, and resulted in his depressive condition. Mr Paton’s alternative submission is that he suffered from depression during his service period, and then suffered a clinical worsening of his depression as a result of his 2005 infarct and coronary artery surgery. Those events were a consequence of his ischaemic heart disease. That disease is itself service related. THE COMMISSION’S DECISION The Commission initially determined that the onset of Mr Paton’s depressive disorders could not be related to his RAAF service. This was an unsurprising consequence of the fact that Mr Paton had originally identified a relationship break up in 1983 as the principal reason for the onset of his depression. The Commission rejected Mr Paton’s claim about the clinical worsening of his condition on the alternative bases that (i) that the clinical worsening of his condition could not be service related because his original depressive condition was not itself service related, and (ii) his ischaemic heart disease was not life-threatening.MR PATON’S ATTRIBUTION CONTENTION In the review proceedings (both here and before the Veterans’ Review Board) Mr Paton primarily linked the onset of his depression to the consequences of the syringing of his left ear by RAAF nursing personnel in September 1980. He says that process damaged his eardrum, led to corrective surgery in December 1980 and prevented him from pursuing a career as a pilot. The contention that this frustration of Mr Paton’s ambitions was a significant factor in his depressive condition is supported in the 26 September 2013 psychiatric opinion of Dr Roberts, the forensic psychiatrist who examined him on behalf of the Commission. The Commission disputes that the ear condition for which Mr Paton underwent surgery in December 1980, is related to any episode of syringing, and is in any way related to his service. Mr Paton contends, in addition, that his ischaemic heart disease has also contributed to a worsening of his depressive condition. The Commission disputes that any worsening of Mr Paton’s depression, even if related to his heart condition, can be accepted as service related. In particular, although Mr Paton’s ischaemic heart disease has been accepted as service related, that relationship (so the Commission says) is only because of his smoking history. The Commission says that Mr Paton began smoking before he enlisted, and that his smoking habit is not related to his service. The Commission contends that Mr Paton’s ischaemic heart disease is also, therefore, not service related. Mr Paton’s claim requires consideration of the following issues:(a)when his depressive disorders first manifested;(b)whether the onset was service related;(c)whether his depressive conditions subsequently worsened, after his 2005 heart attack; and(d)whether that worsening was service related?THE ONSET OF DEPRESSION

Ratio Decidendi

Legal Principle Established

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Division	VETERANS' APPEALS DIVISION
File Number(s)	2013/1582, 1584
Re	Timothy Paton
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Mr P W Taylor, SC, Senior Member
Date	21 November 2014
Place	Sydney