Watkins and Repatriation Commission - [2005] AATA 792

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 792
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/306
VETERANS’ APPEALS DIVISION

Re: BARRY MAURICE WATKINS
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION
Tribunal:       Miss E.A. Shanahan, Member
Date:             19 August 2005
Place:            Melbourne
Decision:The Tribunal varies the decision under review to reflect the respondent’s concession that the applicant’s epicondylitis of the right elbow is war‑caused in accordance with s 9 of the Veterans’ Entitlements Act 1986. In all other respects the decision under review is affirmed.
The matter is referred to the Repatriation Commission for the assessment of the appropriate rate of pension.

(sgd) E. A. Shanahan
Member

VETERANS’ AFFAIRS ‑ operational service – depression and alcohol abuse – psychosocial stressors whether present or not – vulnerable individual – satisfaction of Statement of Principles – post‑service stressors.
Veterans’ Entitlements Act 1986 s120, 120A
Fogarty v Repatriation Commission [2003] FCAFC 136
Repatriation Commission v Deledio (1998) 83 FCR 82
Re Stonehouse and Repatriation Commission [2004] AATA 707
Re Trigge and Repatriation Commission [2004] AATA 1114
White v Repatriation Commission (2004) 39 AAR 67
Re Jenkin and Repatriation Commission (1997) 47 ALD 721
REASONS FOR DECISION
19 August 2005  Miss E.A. Shanahan, Member
1. This is an application by Mr B. Watkins for review of two decisions of a delegate of the Repatriation Commission: dated 22 May 2003, regarding damage to the right elbow; and dated 29 May 2003, regarding the claim for depressive disorder and alcohol abuse. Both decisions were affirmed by the Veterans’ Review Board (the VRB) on 11 February 2004. The VRB found that the applicant’s pilonidal sinus, epicondylitis of the right elbow, depressive disorder and alcohol abuse were not war‑caused in accordance with s 9 of the Veterans’ Entitlements Act 1986 (the Act). The applicant sought review of these decisions by the Administrative Appeals Tribunal on 4 March 2004, but did not pursue the claim for pilonidal sinus. The applicant currently receives a disability pension at 20 per cent of the General Rate for the accepted conditions of bilateral sensorineural hearing loss and chondromalacia patellae of the right knee. He also receives treatment for a depressive disorder, without acceptance of liability for this being war‑caused. At the commencement of the hearing of this matter the respondent accepted liability for Mr Watkins’ right elbow epicondylitis. This condition will not be considered further in this decision.
2. Mr Watkins was represented by Mr A. Larkin of counsel, instructed by Williams Winter Solicitors and the respondent by Mr K. Herman, an advocate for the respondent. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T‑documents) and the parties tendered the following documentation:
Statement of Mr Watkins dated 25 February 2004  Exhibit A1
A photograph of the Derwent’s Spotlight  Exhibit A2
Report of Dr M. Epstein dated 24 August 2004  Exhibit A3
T‑documents  Exhibit R1
Transcript of VRB hearing of 11 February 2004  Exhibit R2
Report of Captain J.C. MacDonald dated 28 October 2004     Exhibit…

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 Watkins and Repatriation Commission

Details

AGLC: Watkins and Repatriation Commission [2005] AATA 792
Case: [2005] AATA 792
Decision Date: 19 August 2005

CaseChat Overview and Summary

This case involved an application by Mr. B. Watkins for review of two decisions made by the Repatriation Commission regarding his claim for a disability pension. The decisions related to his right elbow epicondylitis, depressive disorder, and alcohol abuse. The applicant argued that his conditions were war-caused, while the respondent maintained that they were not. The Tribunal varied the decision to reflect the respondent's concession that the applicant's epicondylitis of the right elbow was war-caused. However, in all other respects, the decision under review was affirmed.

The main legal issues that the court had to decide were whether the applicant's depressive disorder and alcohol abuse were related to his operational service in the navy and, therefore, war-caused. The court considered the relevant legislation, Statements of Principles, and the evidence presented by both parties.

The Tribunal concluded that the applicant's depressive disorder and alcohol abuse were not war-caused, as the two incidents relied upon by the applicant did not meet the definition of severe psychosocial stressors. The Tribunal found that the applicant's response to his navy experience did not include intense fear, helplessness, or horror. Additionally, the Tribunal noted that there were multiple other incidents and events that could have contributed to the development of the applicant's chronic depression.

The court ultimately affirmed the decision under review that Mr. Watkins' depressive disorder and alcohol abuse were not war-caused. The matter was referred to the Repatriation Commission for the assessment of the appropriate rate of pension.

Orders