Walsh and Repatriation Commission - [2001] AATA 483

DECISION AND REASONS FOR DECISION [2001] AATA 483

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N1999/1025

VETERANS' APPEALS DIVISION       )
           Re      Russell James Walsh
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date5 June 2001
PlaceSydney

Decision The Tribunal – 1. Sets aside that part of the decision of the Repatriation Commission ("the Respondent") dated 16 May 1998 that determined that the condition of major depression with alcohol dependence suffered by Russell James Walsh ("the Applicant") was not war-caused; 2. Amends the condition diagnosed as "major depression with alcohol dependence" to read "depressive disorder with alcohol dependence"; 3. Substitutes for that part of the Respondent's decision, as amended, its decision that the Applicant's condition of depressive disorder with alcohol dependence is war caused, and that the effective date of this decision is 17 June 1997; 4. Sets aside that part of the Respondent's decision that assessed payment of pension to the Applicant at 60 percent of the General Rate; and 5. Substitutes for that part of the Respondent's decision so set aside, its decision that the Applicant is entitled to payment of pension at the Special (Totally and Permanently Incapacitated) Rate, on and from 18 June 1997.

..............................................
M T Lewis
Senior Member
CATCHWORDS
VETERANS' AFFAIRS
ENTITLEMENT – reasonable hypothesis - Statement of Principles for Psychoactive Substance Abuse and Depressive Disorder applied – whether experiences on service constituted a "severe psychological stressor" – whether Applicant had a pre-existing alcohol dependence before operational service – whether alcohol dependence developed prior to onset of depressive disorder or vice-versa – whether alcohol dependence and depressive disorder are interrelated conditions – whether hypothesis dispelled beyond reasonable doubt
ASSESSMENT – Special Rate – whether unfit to work for eight hours or less per week – whether Applicant suffered loss of earnings because his business failed and earthmoving equipment was not retained to operate business

Budworth v Repatriation Commission [2001] FCA 317
Byrnes v Repatriation Commission (1993) 177 CLR 564
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Keeley (2000) FCR 108

Veterans' Entitlements Act 1986: subss120(1), 120(3), 120A, 24(1)(b), 24(1)(c)

Statement of Principles, Instrument No 65 of 1996 (Depressive Disorder) as amended by Instrument No. 181 of 1996
Statement of Principles, Instrument No. 5 of 1994 (Psychoactive Substance Abuse or Dependence)

REASONS FOR DECISION

Mrs M T Lewis, Senior Member

This is a review of that part of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 16 May 1998 which refused a claim by Russell James Walsh ("the Applicant") for major depression with alcohol dependence, and assessed disability pension at 60 per cent of the General Rate. That decision was affirmed by the Veterans' Review Board ("the VRB") on 27 May 1999. The Applicant then sought review by this Tribunal. All applications for review were in time. His informal claim was lodged with the Respondent on 18 September 1997.
The Tribunal had before it the documents provided by the Respondent pursuant to…

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 Walsh and Repatriation Commission

Details

AGLC: Walsh and Repatriation Commission [2001] AATA 483
Case: [2001] AATA 483
Decision Date: 5 June 2001

CaseChat Overview and Summary

In the matter of Walsh and Repatriation Commission, the applicant, Mr. Walsh, sought a review of a decision made by the Repatriation Commission regarding his entitlement to benefits under the Veterans' Entitlements Act 1986. The central dispute was whether the applicant's experiences during his service constituted a "severe psychological stressor," and if his alcohol dependence and depressive disorder were interrelated conditions. Additionally, Mr. Walsh contested the assessment of his fitness for work and the impact of his business failure on his entitlement to special rates.

The primary legal issues before the court were whether the applicant's service experiences constituted a "severe psychological stressor" under the relevant legislation, whether his alcohol dependence and depressive disorder were interrelated, and if he was unfit to work for at least eight hours per week. The court also had to determine if the applicant suffered a loss of earnings due to his business failure and the non-retention of his earthmoving equipment.

The court considered the evidence provided, including the opinions of various medical experts, and evaluated the applicant's capacity to articulate his experiences and emotions. It found that the applicant suffered from alcohol dependence but was unable to definitively conclude whether his depressive disorder predated his alcohol dependence. The court accepted the definition of a "reasonable hypothesis" as one that is not fanciful or unreal, is consistent with the known facts, and is pointed to by the facts, even if not proven on the balance of probabilities. Based on this, the court held that a reasonable hypothesis could be raised regarding the relationship between the applicant's service and his psychological conditions, but it could not be proven beyond reasonable doubt.

The final orders of the court were to be determined based on the findings of the reasonable hypothesis and the applicant's fitness for work. The court would need to consider the interplay of these factors in determining the appropriate entitlements under the Veterans' Entitlements Act 1986.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It was submitted for the Applicant in reply that the Respondent had not properly represented Dr Hayes' evidence regarding PTSD, which was "I do not feel he has a clear Post Traumatic Stress Disorder at this stage" (T16, p63). Similarly, Dr Lewin (exhibit 2) did not properly record Dr Hayes' opinion. consideration of evidence and findings of fact The Tribunal finds on the balance of probabilities, pursuant to the definition in s5D of the Act, the Applicant suffers from a disease. The issue of the diagnosis of the claimed condition/s, and whether in particular the Applicant suffers from a depressive disorder (or some other condition) as well as alcohol abuse, is part of the issue to be determined pursuant to s120(1) and (3) of the Act: Budworth v Repatriation Commission [2001] FCA 317. There is no dispute between the parties that the Applicant suffers from alcohol dependence, and the Tribunal so finds. The raised facts are that – The Tribunal notes the Applicant's major difficulty in articulating his evidence and in particular, but not exclusively, his feelings and emotions. This must be taken into account in interpreting his evidence and in considering the history he has given to various doctors. Despite his best efforts and those of Counsel, the doctors, and the Tribunal, I am left with a somewhat potted version of events. The Full Federal Court in East v Repatriation Commission (1987) 16 FCR 517 (at 532-3) endorsed the following definition of a "reasonable hypothesis" –The addition of the word 'reasonable' would however seem to imply that what is required is more than a mere hypothesis. In the opinion of the Board, to be reasonable, a hypothesis must possess some degree of acceptability or credibility – it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be 'raised by material before the Board, we think it must find some support in that material – that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis. At the same time, however, a hypothesis may be reasonable without having been proved (either on the balance of probability or beyond reasonable doubt) to be correct as a matter of fact. Were it otherwise, it would no longer be a hypothesis but would have been elevated to some higher status. Accordingly a connection asserted by a hypothesis to exist between death or incapacity and service may still be reasonable even though theoretical, and it may be theoretical in either or both of a (sic) least two senses: by postulating a known medical fact but in circumstances not known to have definitely existed in the instant case; or by postulating a medical principle which science is not yet able to definitely prove but is unable to describe as unreasonable.We agree with this analysis. A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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