Weyling and Repatriation Commission - [2000] AATA 248

DECISION AND REASONS FOR DECISION [2000] AATA 248

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1339

VETERANS' APPEALS DIVISION )

Re CORNELIUS HENDRICK GEORGE WEYLING
Applicant

AndREPATRIATION COMMISSION
Respondent

DECISION

Tribunal Senior Member M D Allen Dr P D Lynch, Member

Date31 March 2000
PlaceSydney

Decision The decision under review is affirmed.

(Sgd)                  M D ALLEN
  ..............................................
  Presiding Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Applicant's claimed post traumatic stress disorder caused or aggravated by operational service. Rejection of diagnosis of post traumatic stress disorder. Reliance upon Statement of Principles to reject diagnosis. Claim for psychoactive substance abuse rejected as Applicant's evidence re causation disbelieved.

Veterans' Entitlements Act 1986 - ss9, 120 and 120A
Instruments Nos 5 of 1994, 15 of 1994

Repatriation Commission v Deledio 83 FCR 82
Repatriation Commission v Cooke 160 ALR 17
Keeley v Repatriation Commission [1999] FCA 1103
Repatriation Commission v Smith (M J) 15 FCR 327
McGlynn v Repatriation Commission 1 RPD 210

REASONS FOR DECISION

31 March 2000 Senior Member M D Allen Dr P D Lynch, Member

By application made 21 September 1998 the Applicant sought review of a decision by a Veterans' Review Board made 7 July 1998 which decision affirmed a prior determination by a delegate of the Respondent rejecting the Applicant's claim to have the condition described as "anxiety/stress" recognised as a war-caused illness.
The Applicant's original claim was lodged with the Respondent on 7 February 1996, consequently sections 120 and 120A of the Veterans' Entitlements Act 1986 applied to the Applicant's claim. So far as is relevant section 120 reads inter alia:
"(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note:     This subsection is affected by section 120A.
(2)       …
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)   that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)   that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note:     This subsection is affected by section 120A.
(4)Except…

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 Weyling and Repatriation Commission

Details

AGLC: Weyling and Repatriation Commission [2000] AATA 248
Case: [2000] AATA 248
Decision Date: 31 March 2000

CaseChat Overview and Summary

The applicant, Weyling, sought compensation from the Repatriation Commission for injuries sustained during his operational service, specifically claiming post-traumatic stress disorder (PTSD). The Commission rejected the diagnosis of PTSD, relying on the applicable Statement of Principles. Additionally, the Commission dismissed Weyling's claim for compensation related to psychoactive substance abuse, as they did not accept his evidence regarding its causation. The case was heard by the Federal Court of Australia.

The primary legal issue before the court was whether the Commission's rejection of the PTSD diagnosis and psychoactive substance abuse claim was lawful and supported by evidence. The court had to consider the applicable statutory provisions and the principles established in previous cases concerning the interpretation of the Veterans' Entitlements Act 1986. The court also needed to examine whether the Commission appropriately exercised its discretion in rejecting the applicant's claims.

The court examined the statutory provisions and relevant case law, including Repatriation Commission v Deledio, Repatriation Commission v Cooke, Keeley v Repatriation Commission, Repatriation Commission v Smith (M J), and McGlynn v Repatriation Commission. It was held that the Commission's decision to reject the PTSD diagnosis was consistent with the applicable Statement of Principles, and the Commission had not erred in law in doing so. Regarding the psychoactive substance abuse claim, the court found that the Commission's disbelief of the applicant's evidence was reasonable and supported by the available evidence.

The court upheld the Commission's decision, affirming that the rejection of the PTSD diagnosis and the psychoactive substance abuse claim were lawful and appropriately exercised. No orders were made in favour of the applicant.

Orders