"VZR" and Repatriation Commission - [2001] AATA 554

DECISION AND REASONS FOR DECISION [2001] AATA 554

ADMINISTRATIVE APPEALS TRIBUNAL)
Nº V99/827
VETERANS' APPEALS DIVISION)

Re: VZR

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       Mrs H.E. Hallowes, Senior Member
  Mr A. Argent,  Member
  Dr C. Re,  Member
Date:             15 June 2001
Place:            Melbourne

Decision:The decision under review is affirmed.

(sgd) H.E. Hallowes
Senior Member
VETERANS' AFFAIRS — entitlement — issue as to whether applicant suffering depression, post traumatic stress disorder, bipolar disease or personality disorder — whether service-related — whether severe psychosocial stressor — substance abuse
Veterans' Entitlements Act 1986 s.70

Statements of Principles

Instrument Nº 16 of 1994 concerning Post Traumatic Stress Disorder
Instrument Nº 225 of 1995 concerning Post Traumatic Stress Disorder
Instrument Nº 144 of 1995 concerning Personality Disorder
Instrument Nº 14 of 1997 concerning Personality Disorder
Instrument Nº 129 of 1996 concerning Bipolar Disorder
Instrument Nº 66 of 1996 concerning Depressive Disorder
Instrument Nº 59 of 1998 concerning Depressive Disorder

Budworth v Repatriation Commission [2001] FCA 317

REASONS FOR DECISION

15 June 2001  Mrs H.E. Hallowes, Senior Member
  Mr A. Argent,  Member
  Dr C. Re,  Member

The applicant, in lodging her application for review of a decision of the Repatriation Commission made on 22 June 1998 that her "severe depression" was not service-related, a decision which was affirmed by the Veterans' Review Board ("the VRB") on 10 June 1999, contended that her depressive condition had been materially contributed to by her defence service pursuant to "the relevant Statement of Principles" ("SoP"). The application for review was included amongst the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents") which were before the Tribunal, together with a considerable amount of further material lodged by both parties at the hearing. The applicant was represented by Mr P. Jewell, of counsel, and the respondent was represented by Mr K. Rudge, an advocate with the Department of Veterans' Affairs.
In Budworth v Repatriation Commission [2001] FCA 317 (decided 21 March 2001) the Federal Court stated that applicants are not to be defeated because they inadequately label their disease. The disease from which the applicant suffers is not agreed by her general practitioners, treating psychiatrists and medico-legal experts, who examined her later for the purpose of these proceedings. One of the difficulties is that she now contends that earlier histories she had given to medical practitioners are incorrect.
Mr Jewell put to the Tribunal that the applicant suffers post-traumatic stress disorder and bipolar disorder and that the relevant Statements of Principles are Instrument Nº 129 of 1996 concerning Bipolar Disorder and Instrument Nº 16 of 1994 as amended by Instrument Nº 225 of 1995 concerning Post Traumatic Stress Disorder. Mr Jewell further put to the Tribunal that either factor 5(a), factor 5(c), factor 5(e) or factor 5(g) of Instrument Nº 129 of 1996 connect the applicant's bipolar disorder with the circumstances of her service on the balance of probabilities, or if the Tribunal finds that the applicant suffers post traumatic stress disorder, that…

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

AGLC: "VZR" and Repatriation Commission [2001] AATA 554
Case: [2001] AATA 554
Decision Date: 15 June 2001

CaseChat Overview and Summary

In the matter of VZR and Repatriation Commission, the applicant contested the Commission's decision to deny her a psychiatric disability pension. The applicant argued that her service in the Navy significantly contributed to her mental health conditions, specifically major depressive disorder and severe Borderline Personality Disorder. The primary legal issue before the Tribunal was whether the applicant's service in the Navy constituted a causal factor for her psychiatric conditions, as required by the Schedule of Pensions (SoP) Instrument Nº 59 of 1998, and whether her conditions met the criteria for a psychiatric disability pension under other relevant SoP Instruments.

The Tribunal reviewed two medico-legal reports from Dr Byrne, dated 29 February and 30 November 2000. Dr Byrne, who examined the applicant on two occasions, concluded that the applicant's service in the Navy caused a significant deterioration in her mental health, particularly noting the AIDS episode as a severe psychosocial stressor. However, Dr Byrne also revised his opinion on the impact of the AIDS episode, stating it was less traumatic than initially reported. Furthermore, Dr Byrne clarified that the applicant's conditions did not meet the criteria under SoP Instruments Nº 144 of 1995 for Personality Disorder and Nº 129 of 1996 for Bipolar Disorder. The Tribunal had to determine whether these findings aligned with the statutory requirements and whether the applicant's conditions warranted a psychiatric disability pension.

After considering the evidence, the Tribunal found that while Dr Byrne's initial opinion suggested a causal link between the applicant's service and her mental health conditions, the subsequent revisions and clarifications diminished this connection. The Tribunal concluded that the applicant's psychiatric conditions did not meet the specific criteria under the relevant SoP Instruments. Consequently, the Tribunal upheld the Commission's decision to deny the applicant a psychiatric disability pension.

The Tribunal's final order was to dismiss the applicant's appeal, affirming the Commission's decision. The Tribunal found no basis to overturn the Commission's conclusion that the applicant's service in the Navy did not satisfy the causal factors required for a psychiatric disability pension under the applicable SoP Instruments.

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

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Ratio Decidendi

Legal Principle Established

The Tribunal had before it two medico-legal reports from Dr Byrne dated 29 February and 30 November 2000 (exhs 11, 12). He examined the applicant on 9 November 1999 and 24 February 2000. Dr Byrne recorded a history similar to the history the applicant gave the Tribunal. Dr Byrne expressed the opinion that the applicant had a ". . . naturally dependent personality style" (exh 11) and that she was emotionally vulnerable when she joined the Navy, displaying character traits associated with borderline personality disorder. He stated, ". . . it is clear that her Navy services caused significant deterioration in her mental health" [emphasis added] (exh 11). Dr Byrne diagnosed the applicant as suffering a major depressive disorder and ". . . now severe Borderline Personality Disorder" (exh 11). When asked to list the causes of the applicant's condition he stated that, having an alcoholic father, intervening in family arguments and being sexually abused as a child created significant hurdles for the applicant's normal growth and development. He also expressed the opinion that the AIDS episode caused the applicant to develop a major depressive disorder and that her emotional problems were further exacerbated by ongoing harassment from co-workers in the Navy. Dr Byrne stated that the applicant's condition fell within the diagnosis of depressive disorder in SoP Instrument Nº 59 of 1998, although in 1997, when she began to experience hypomanic episodes, they may signal the development of a bipolar disorder. When asked one of the issues the Tribunal must determine, whether the applicant's naval service prior to 7 April 1994 satisfied any of the causal factors in paragraph 5 of Instrument Nº 59 of 1998, the SoP apparently considered by the VRB, Dr Byrne responded, "Yes" and pointed to the AIDS episode which, in his opinion, constituted a severe psychosocial stressor. He also considers that there has been a clinical worsening of the applicant's borderline personality disorder. In his later report dated 30 November 2000 Dr Byrne said that the applicant's statement that she had not remembered the AIDS episode until five years later suggested to him that the event was far less traumatic for her than she had originally reported to him. Her greater concern seemed to be that, if somebody else raised the episode, it distressed her. Having been provided with additional material by the respondent, including advice that the applicant could have availed herself of a 12-month deferment of her sea posting, Dr Byrne stated that the effect on the applicant of organising child care when she went to sea could not be as she had previously contended. Dr Byrne noted that the applicant had attended Dr Martin on 7 March 1996 ". . . to talk about an incident that happened eight years ago that has been playing on her mind over the past few weeks" [existing emphasis] (exh 12). In response to a question by Mr Rudge, whether the circumstances of the applicant's defence service satisfied factor 1(a) or 1(b) of SoP Instrument Nº 144 of 1995 concerning Personality Disorder, Dr Byrne answered, "No". Nor, in his opinion, did she satisfy factor 5(a) under SoP Instrument Nº 129 of 1996 concerning Bipolar Disorder as there was no indication of a severe psychosocial stressor within six months before her symptoms emerged. These are matters which the Tribunal must decide. When asked to comment on whether the applicant's psychiatric condition came within the definition of depressive disorder under SoP Instrument Nº 66 of 1996 concerning Depressive Disorder, Dr Byrne answered, "No", as the applicant now had a history of several documented manic episodes and he assumed that the question referred to her current psychiatric diagnosis. Dr Byrne concluded that the applicant was suffering borderline personality disorder before 1998.