ZHVP and Repatriation Commission (Veterans' entitlements)

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ZHVP and Repatriation Commission (Veterans' entitlements) [2021] AATA 3020 (24 August 2021)

Division:VETERANS’ APPEALS DIVISION

File Number(s):      2018/6707

Re:ZHVP  

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Senior Member C. J. Furnell

Date:24 August 2021

Place:Melbourne

The Tribunal affirms the decision under review.

...................[SGD].....................................................

Senior Member

Catchwords

VETERANS’ AFFAIRS – Veterans’ Entitlements – claim for disability pension – claims for PTSD and ischaemic heart disease – whether conditions defence-caused – conditions not defence-caused – decision under review affirmed

Legislation

Acts Interpretation Act 1902 (Cth)

Military Rehabilitation and Compensation Act 2004 (Cth)

Veterans’ Entitlements Act 1986 (Cth)

Statement of Principles concerning Ischaemic Heart Disease (Balance of Probabilities) (No. 2 of 2016)

Statement of Principles concerning Posttraumatic Stress Disorder (No. 83 of 2014)

Cases

Bucknall v Military Rehabilitation and Compensation Commission (2007) AATA 2014

Bull v Attorney-General for New South Wales (1913) 17 CLR 370

Davenport v Repatriation Commission (1995) 39 ALD 560

Freeman and Repatriation Commission (Veterans’ entitlements) [2020] AATA 1650

Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250

Grant v Repatriation Commission [1999] FCA 1629

Haughey and Military Rehabilitation and Compensation Commission (Compensation) [2018] AATA 969

Holthouse v Repatriation Commission [1982] FCA 113

James Thomas Mcdermott v the Commonwealth of Australia [1981] FCA 214

Kaluza v Repatriation Commission (2011) 122 ALD 448

Military Rehabilitation and Compensation Commission v Roberts [2007] FCA 1

Minister for Immigration and Border Protection v Makasa [2021] HCA 1

Paddon v Repatriation Commission [2010] FCA 1147

Reinhard and Repatriation Commission [2013] AATA 522

Repatriation Commission v Cornelius [2002] FCA 750

Repatriation Commission v Gosewinckel (1999) 59 ALD 690

Repatriation Commission v Keeley [2000] FCA 532

Repatriation Commission v Law (1980) 31 ALR 140

Repatriation Commission v Smith (1987) 15 FCR 327

Repatriation Commission v Tuite [1993] FCA 39

Robertson and Repatriation Commission (1998) 50 ALD 668

Roncevich v Repatriation Commission (2005) 222 CLR 115

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

Simmons and Repatriation Commission (Veterans' entitlements) [2019] AATA 4362

Smith v Repatriation Commission [2014] FCAFC 53

Smith and Repatriation Commission (Veterans’ entitlements) [2015] AATA 786

Wedderspoon v Minister of Pensions (1947) 1 KB 562

Youngnickel v Repatriation Commission (2004) FCA 1691

Secondary Materials

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (2013, 5th ed)

REASONS FOR DECISION

Senior Member C. J. Furnell

24 August 2021

  1. Subject to and in accordance with the Veterans’ Entitlements Act 1986 (Cth) (Act), the Commonwealth is liable to pay to a “member of the Forces” a pension by way of compensation where the member is incapacitated from a “defence-caused injury or defence-caused disease.”[1]

    [1] Act, s 70.

  2. The Applicant made a claim for such a pension in relation to a number of medical conditions which he contends are defence-caused.[2]

    [2] Claim of 24 May 2017, received by the Respondent on 5 June 2017: T24.

  3. As for the procedural history of that claim:

    (a)On 27 September 2017, it was rejected by a…

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Details
Case
[2021] AATA 3020
Decision Date

CaseChat Overview and Summary

This matter concerned an application by ZHVP (the Applicant) for a disability pension, specifically claiming that Post-Traumatic Stress Disorder (PTSD) and ischaemic heart disease were defence-caused. The Repatriation Commission had previously decided that these conditions were not defence-caused. The decision was reviewed by C. J. Furnell SM.

The primary legal issues before the court were whether the applicable Statement of Principles for PTSD was the one in force at the time of the original decision or a later amendment, and whether the Applicant's PTSD was defence-caused under the relevant Statement of Principles. The court also implicitly considered the definition of "disease" and "clinical onset" in the context of the *Veterans' Entitlements Act 1986* (Cth).

The court determined that Statement of Principles 83 of 2014, which was in effect when the Repatriation Commission made its original decision in 2017, was the applicable instrument. This was based on the principle that legislative amendments generally do not have retrospective effect on accrued rights, and the High Court's decision in *Frugtniet v ASIC* regarding the role of review tribunals. The court found that the definition of PTSD in Statement of Principles 83 of 2014 was consistent with DSM-V. Crucially, the court accepted the Applicant's submission that he experienced a category 1A stressor, defined as a serious physical attack or assault, before the clinical onset of his PTSD. The court noted that the clinical onset of a disease occurs when symptoms are present that enable a doctor to identify the disease, and there was no evidence of PTSD symptoms prior to the Applicant experiencing the assault in 1976.

The court's reasoning focused on the application of the relevant Statement of Principles and the factual circumstances surrounding the Applicant's experience of a stressor and the onset of his PTSD. The court did not make specific orders in the provided text, but the analysis indicates a finding that the PTSD was defence-caused.

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

As for PTSD, as contended on behalf of the Applicant, the applicable statement is that numbered 83 of 2014. It applied when the primary decision was made by the Repatriation Commission in 2017. While there is a more recent statement of principles for PTSD (numbered 87 of 2018), the earlier statement applies. This is because statements of principles issued under the Act attract the general principle[113] that, absent a clear intent to the contrary, an amendment of a legislative instrument does not have retrospective effect on accrued rights and interests.[114] I note, in any event, the Respondent’s submission that there is no material difference between the two statements. [113] Acts Interpretation Act 1902 (Cth) s7(2). “The purpose of s 7(2) of the Acts Interpretation Act is to avoid construing repeals, revocations or amendments as having a retrospective effect on substantive rights or interests.”: Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48 [62].[114] Repatriation Commission v Keeley [2000] FCA 532 at [42-76]. Moreover, and in any event, as I see it, applying the Statement of Principles applicable in 2017 is consistent with the decision of the High Court in Frugtniet v ASIC (2019) 266 CLR 250 where (at [14-15]) the role of the Tribunal was described being (with my emphasis): “…not at large. It is subject to the same general constraints as the original decision-maker and should ordinarily approach its task as though it were performing the relevant function of the original decision-maker in accordance with the law as it applied to the decision-maker at the time of the original decision. Depending on the nature of the decision the subject of review, the AAT may sometimes take into account evidence that was not before the original decision-maker, including evidence of events subsequent to the original decision. But subject to any clearly expressed contrary statutory indication, the AAT may do so only if and to the extent that the evidence is relevant to the question which the original decision-maker was bound to decide.” There is no relevant misalignment between a diagnosis of PTSD based on DSM-V and the concept of “PTSD” as defined in Statement of Principles 83 of 2014. Indeed, that definition is said in the Statement to be “derived from DSM-V”. Statement of Principles 83 of 2014 includes, as a factor that must exist before it can be said that PTSD is connected to a person’s service, “experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder.” [115] The Applicant submitted that it was this factor that exists in relation to him.[116] I accept that submission.[115] Statement of Principles 83 of 2014, cl 6.[116] Applicant’s SFIC [19]. The Applicant did experience a category 1A stressor. He was subject to a “serious physical attack or assault including rape and sexual molestation”.[117] The Applicant experienced that stressor before the “clinical onset” of his PTSD. PTSD is a “disease”.[118] The clinical onset of a disease occurs either when a person becomes aware of some feature or symptom which enables a doctor to say that the disease was present at that time or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.[119] No finding can be made of clinical onset unless all the symptoms of the disease can be shown to be present.[120] There is no suggestion in the material before me that the Applicant was experiencing symptoms of PTSD before experiencing the category 1A stressor constituted by the assault on him in 1976.[117] Statement of Principles 83 of 2014, cl 9.[118] Act, s 5D: disease is defined to mean any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development) (but not including its aggravation).[119] Repatriation Commission v Cornelius [2002] FCA 750 at [26], approving Robertson and Repatriation Commission (1998) 50 ALD 668 at [670]. The purpose of this judicial definition was to identify those symptoms (or features) which, if observed by a clinician, would warrant a conclusion that the patient suffered from the condition in question: Kaluza v Repatriation Commission (2011) 122 ALD 448 (‘Kaluza’) at [63]. It is for a doctor to say when clinical onset occurs by the presence of features or symptoms. It can precede the date of first treatment: Kaluza at [51] and [66].[120] Youngnickel v Repatriation Commission (2004) FCA 1691; Reinhard and Repatriation Commission [2013] AATA 522.

Ratio Decidendi

Legal Principle Established

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