YOU and REPATRIATION COMMISSION - [2009] AATA 19

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 19
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V200600504

VETERANS APPEALS DIVISION )

Re KENNETH YOU

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Miss E.A. Shanahan, Member
Date13 January 2009
PlaceMelbourne

Decision The Tribunal affirms the decision under review.
(sgd) E.A. Shanahan
Member

VETERANS’ AFFAIRS ‑ generalised anxiety disorder – war‑caused conditions ‑ reasonable hypothesis ‑ special or intermediate rate attracted.
Veterans' Entitlements Act 1986
Statement of Principles
Instrument Nº 1 of 2000 concerning generalised anxiety disorder
Instrument Nº 101 of 2007 concerning generalised anxiety disorder

Repatriation Commission v Deledio (1998) 83 FCR 82
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Cooke (1998) 30 FCR 307
Repatriation Commission v Budworth (2001) 26 ALD 285
Fogarty v Repatriation Commission [2003] FCAFC 136
Keeley and Repatriation Commission (1999) 56 ALD 455
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Codd [2005] FCA 888
Repatriation Commission v Gorton (2001) 110 FCR 321
REASONS FOR DECISION

13 January 2009 Miss E.A. Shanahan, Member

1. Mr You receives a disability pension at 90 per cent of the general rate for his Bilateral Sensorineural Hearing Loss, Chronic Obstructive Airways Disease, Impotence and Lumbar Spondylosis. Mr You applied to the Repatriation Commission (the Commission) to have his generalised anxiety disorder (GAD) accepted as being war-caused for payment of the disability pension at the special rate. On 14 September 2005 the Commission denied his claim. That decision was affirmed by the Veterans’ Review Board (VRB) on 3 May 2006. Mr You has now applied to the Administrative Appeals Tribunal for a review of the decision of the VRB.
2. Mr You was represented by Mr De Marchi, solicitor; and the Repatriation Commission (on the first two days of hearing) by Mr K Herman and (on the final day of hearing) by Mr K Rudge, advocates from the Department of Veterans’ Affairs. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (The T documents). The parties tendered the following documents:
For the applicant:
Statement of the employment history of Mr You ‑ Exhibit A1
The report of Mr M Burge dated 18 June 2007 – Exhibit A2
Copies of Mr You’s taxation returns – Exhibit A3
The report of Dr John Cooper psychiatrist dated 26 March 2008 – Exhibit A4

For the respondent:
The T documents – Exhibit R1
The clinical notes of Dr Brian Smith (pages 1 to 82) – Exhibit R2
The report by Mr B Morgan of Writeway Research dated 21 October 2006 – Exhibit R3
Mr You’s Defence Personnel Service documents (pages 1 to 168) – Exhibit R4
The discharge summary relating to Mr You’s in-patient treatment at the Repatriation General Hospital Hobart from 23 April 1969 to 2 May 1969 – Exhibit R5
The transcript of the VRB hearing (3 May 2006) – Exhibit R6
Mr You’s Army psychological record – Exhibit R7
Documentation relating 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 YOU and REPATRIATION COMMISSION

Details

AGLC: YOU and REPATRIATION COMMISSION [2009] AATA 19
Case: [2009] AATA 19
Decision Date: 13 January 2009

CaseChat Overview and Summary

The case involved the applicant, a former serviceman, and the Repatriation Commission. The dispute centred on whether the applicant's generalised anxiety disorder (GAD) was caused by his service in the military, thereby qualifying for compensation under the Veterans' Entitlements Act 1986 (Cth). The applicant argued that his GAD was a result of his military service, particularly due to the stressful and traumatic experiences he encountered. The Repatriation Commission, however, found that the applicant's GAD was not caused by his service and thus denied his claim for compensation. The matter was brought before the Administrative Appeals Tribunal for review.

The central legal issue was whether the applicant's GAD was a war-caused condition. This involved determining whether the applicant's military service was a significant contributing factor to his GAD. The Tribunal needed to consider whether there was a reasonable hypothesis that the applicant's service caused or materially contributed to his condition. The key legal principle applied was the requirement to establish a causal link between the condition and the service, based on the evidence presented.

The Tribunal found that the applicant had not provided sufficient evidence to establish a reasonable hypothesis that his GAD was caused by his military service. The evidence presented did not conclusively link the applicant's GAD to his service. The Tribunal emphasised the need for a clear and compelling connection between the service and the condition to satisfy the statutory criteria for compensation. Consequently, the Tribunal upheld the original decision of the Repatriation Commission, affirming that the applicant's GAD was not a war-caused condition.

Orders

Orders of the court

The Tribunal affirms the decision under review.

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

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