New AAT cases

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14 July 2020

Please find below a summary of recent notable cases from the Administrative Appeals Tribunal (AAT).

Pendock and Repatriation Commission (Veterans' entitlements) [2020] AATA 781 (8 April 2020)

VEA- RS – alcohol use disorder, substance use disorder, major depressive disorder with suicidal ideation, spondylolisthesis and spondylolysis – workplace bullying/stress - decision affirmed

Mr Pendock served in the Australian Army between 22 April 1981 and 9 August 1994. He claimed that several conditions including: alcohol use disorder, substance use disorder, major depressive disorder with suicidal ideation, spondylolisthesis and spondylolysis were caused by his defence service. His claim was refused by the Commission and was affirmed in two separate decisions by the VRB.

Mr Pendock did not attend the hearing, but was available by telephone for any questions from the Tribunal. In a statement he claimed his alcohol condition resulted from ‘bullying, harassment and intimidation’ and ‘work stress.’ The Tribunal noted there was no documentary record that adequately substantiated this contention. Further the Tribunal noted the evidence that Mr Pendock was regularly drinking with colleagues during and after work hours, did not ‘speak to social isolation.’ The Tribunal considered Mr Pendock’s assertions did not adequately substantiate workplace bullying and as such a category 2 stressor could not be considered to have occurred.

Similarly, in relation to his claim for major depressive disorder, the Tribunal found the evidence regarding Mr Pendock’s relatively broad claims of bullying was not strong. The Tribunal accepted that Mr Pendock may have had a sense of lack of control over his work and stressful workloads. However, the Tribunal noted that there was no clear evidence that substantiated Mr Pendock’s statements.

Mr Pendock’s claim for substance use disorder was also not successful, as it depended upon his alcohol use and major depressive disorder being defence caused.

Finally, in relation to his claimed spondylolisthesis and spondylolysis the Tribunal was not reasonably satisfied that Mr Pendock experienced a trauma during his service, as required by the relevant Statement of Principles.

The Tribunal affirmed the decision under review.

 

Garrard and Repatriation Commission (Veterans' entitlements) [2020] AATA 538 (13 March 2020)

VEA - RH – hypertension – witnessing aircraft crash - decision set aside

Mr Garrard served in the Royal Australian Navy and rendered three periods of operation service in 1965/66 on HMAS Melbourne. He claimed his hypertension was war-caused. The Commission refused his claim and that decision was affirmed by the VRB.

Before the Tribunal, Mr Garrard submitted that stressful experiences during his operational service resulted in him developing an increased alcohol consumption habit and this led to him developing hypertension. In particular, Mr Garrard referred to a crash involving a Gannet aircraft in April 1966.

The respondent submitted there were “inconsistencies’ in Mr Garrard’s account of alcohol use, however the Tribunal found that Mr Garrard consumed an average of at least 300 grams of alcohol per week for at least the six months before the clinical onset of his hypertension.

The Tribunal decided that that the hypothesis that Mr Garrard’s stressful experiences during his operational service resulted in him developing an increased alcohol consumption habit and condition that led him to developing hypertension was not disproved beyond reasonable doubt.           

The decision under review was set aside and a new decision substituted that Mr Garrard’s hypertension was war-caused.

 

Stanbury and Repatriation Commission (Veterans' entitlements) [2020] AATA 285 (24 February 2020)

VEA - RS – eligibility – British nuclear test service - decision set aside

Mr Stanbury served in the Royal Australian Air Force from 23 January 1956 to 22 January 1968. The Commission refused his claim for a disability pension on the ground that he was ‘not a member of the Forces’. That decision was affirmed by the VRB.

The issue for the Tribunal to determine was whether Mr Stanbury was entitled to a pension, as a member of the Forces, having rendered British nuclear test service for the purposes of section 69B of the VEA.

As to whether Mr Stanbury was within the area within 40 kilometres of either of the Buffalo or Antler test sites near Maralinga, he gave evidence that he was at an airstrip to his knowledge within that area  and went to the Maralinga township. Mr Stanbury also provided a document bearing his name described as an identification card as to Australian persons employed at the Maralinga South Australia Atomic Test Site from the National Archives of Australia. Additionally, Mr Stanbury provided a document headed “Internal Memorandum” and “Department of Supply”. The document was dated 16 March 1964 and stated that it was from the Regional Security Officer in South Australia. The document stated: “Enclosed for your information is a copy of R.A.A.F. memo. 13/64 dated 12th March, 1964 advising clearance details in respect of personnel who will be posted to your establishment”. The document mentions seven persons, with the first person mentioned being:  “A15651 AC Stanbury, S.W. Base Squadron Edinburgh 13.4.64 SECRET”.  

The Commission contended that the position of Mr Stanbury had “evolved”, with it being a possibility that he had been at Maralinga, but the documentation when viewed as a whole suggests otherwise and places Mr Stanbury at RAAF Base Edinburgh in 1964. The Commission also submitted that there were no contemporaneous records within Mr Stanbury’s service records supporting his claims as to (being at Maralinga in) 1964.

Having regard to the oral evidence of Mr Stanbury, together with the identification card as to the his being employed at the Maralinga Atomic Test Site and the Internal Memorandum,  the Tribunal found Mr Stanbury rendered service in the area within 40 kilometres of the Buffalo or Antler test sites near Maralinga in the period from 27 September 1956 to 30 April 1965. As such, he rendered British nuclear test defence service while a member of the RAAF.

The decision under review was set aside and remitted to the Commission for reconsideration.

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