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No.17 August 2008

Repatriation Commission v Mayfield

[2008] FMCA 1103

COURT Federal Magistrates Court, Brisbane
FEDERAL MAGISTRATE Jarrett FM
DATE OF DECISION 11 August 2008
DECISION The appeal was dismissed
ISSUES Meaning of “event” in Statement of Principles concerning alcohol abuse — evidence of clinical worsening

Facts

Mr Mayfield served in the RAAF and rendered operational service at Ubon, Thailand. He made a claim unsuccessfully for alcohol dependence. The decision was affirmed on review by the Veterans’ Review Board (VRB).  He sought further review by the Administrative Appeals Tribunal (Tribunal).  The Tribunal substituted its own decision that Mr Mayfield’s alcohol dependence was war caused and that he was entitled to pension at the intermediate rate. The Repatriation Commission (Commission) appealed to the Federal Court, and the matter was transferred to the Federal Magistrates Court.

The Tribunal’s reasoning

The Tribunal was satisfied that Mr Mayfield suffered from alcohol dependence and it identified two hypotheses connecting his alcohol dependence with the circumstances of his service. They were:

The Tribunal found the first hypothesis fitted the template of the relevant SoP and was reasonable.

Grounds of appeal

The Commission argued that the Tribunal erred in its interpretation of the SoP by treating the existence of the fuel dump and its proximity to Mr Mayfield’s quarters at Ubon, and therefore the entire period of Mr Mayfield’s operational service at Ubon, as “an event” for the purposes of the definition of the term “experiencing a severe stressor”.
Further, the Commission argued that the Tribunal did not consider whether the whole of the material before it pointed to Mr Mayfield manifesting features and symptoms of alcohol dependence as prescribed in clause 2(b) of the SoP during his service in Ubon.
The Commission also challenged the Tribunal’s finding that the second hypothesis was raised by the material.  Specifically, that there was no evidence that could point to the clinical worsening of the features or symptoms of alcohol dependence.
In relation to the assessment of pension, the Commission argued that the Tribunal failed to ask itself whether there was some other reason why Mr Mayfield was prevented from engaging in remunerative work, and also argued that the Tribunal had failed to ask itself why Mr Mayfield had not been engaged in remunerative work on a part-time basis or intermittently.

The Court’s Consideration

An “event” and definition of “experiencing a severe stressor”

Federal Magistrate Jarrett considered that the Tribunal did not treat Mr Mayfield 's service at Ubon, of itself, as the “event” for the purposes of being satisfied that there was a severe stressor. Instead, it was his service in the context of the existence of the fuel dump, and the fear that it generated in Mr Mayfield, which was the “event” for the purposes of the SoP.

Did the whole of the material point  to features and symptoms of alcohol dependence?

Federal Magistrate Jarrett noted that the Tribunal, in its reasons, did not step through the process of considering each of the matters set out in clause 2(b) of the relevant SoP. Nor did it consider whether any three of the matters referred to in that clause manifested themselves in the two year period after Mr Mayfield experienced his severe stressor. However, his Honour considered that the Tribunal did not need to do so. Specifically, the Tribunal had evidence before it from a psychiatrist in which it was implicit that the diagnostic criteria for the condition were met and the Tribunal was entitled to accept that evidence.

Was material before the Tribunal capable of pointing to  Mr Mayfield’s alcohol dependence having clinically worsened?

Federal Magistrate Jarrett accepted the Commission’s submission and held that the Tribunal did not ask itself the right question. His Honour noted that the Tribunal’s enquiry focussed on the quantity of alcohol consumed by Mr Mayfield, not the features or symptoms of alcohol dependence.

In his Honour’s view, there was no evidence that pointed to a clinical worsening of Mr Mayfield’s alcohol dependence at any time. The Tribunal’s reliance on those factors in the relevant SoP was misplaced. However, his Honour considered that the Tribunal was not in error in determining that the hypothesis raised by the material before it concerning clinical onset did fit the template of the SoP. As such, Federal Magistrate Jarrett considered that this aspect of appeal must fail.

Did the Tribunal ask itself the correct questions in respect of the “assessment” aspect of the appeal?

Overall, Federal Magistrate Jarrett considered that the Commission’s challenge to the assessment aspect of the appeal, while couched in terms suggestive of questions of law, was actually a challenge to the findings of fact made by the Tribunal, and so did not raise a question of law.

Formal decision

Federal Magistrate Jarrett dismissed the Commission’s appeal.

Editorial Note

Clinical worsening
In this case the Court agreed with the Commission’s submission regarding “clinical worsening” that, at stage 3 of Deledio, there must be material pointing to the worsening of specific elements in the diagnostic standards in the SoP (ie. the features or symptoms of alcohol dependence).  While the Court refers to the “diagnostic” standards in the SoP, it is important to remember that this should not be confused with questions of diagnosis of the claimed condition, which must be determined on the balance of probabilities before step 1. The Court’s reasoning in this case follows the Federal Court decision in Repatriation Commission v Milenz [2006] FCA 1436. 

Further reading: A case report concerning Milenz is contained in VeRBosity Vol 22 No 4 at pages 171 to 176. This report also contains a detailed explanation of the implications of Milenz case for decision making.

An “event” and the definition of “experiencing a severe stressor”

The SoP concerning alcohol dependence or alcohol abuse defined ‘experiencing a severe stressor’ as:

… the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror…

The Commission argued that the stressor relied upon by the applicant was a “continuous state of affairs” and that this was contrary to the definition in the SoP which required an “event.”
The Court did not completely reject the Commission’s submission in this respect but considered it was misplaced. Jarrett FM was of the view that the Tribunal did not treat Mr Mayfield’s service at Ubon, of itself, as the event. Rather, it was the existence of the fuel dump and the fear it generated that was the “event” for the SoP. This case indicates that an “event” would need to point to a discrete and tangible danger that evoked a particular response in the claimant.

While the current SoPs concerning alcohol dependence (no 17 and 18 of 2008) no longer contain the “experiencing a severe stressor” definition they refer to “a category 1A stressor" and “a category 1B stressor”, both of which refer to “severe traumatic events”. 

All Practice Notes