Beurskens and Repatriation Commission
[2005] AATA 601
•24 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 601
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/128
VETERANS' APPEALS DIVISION )
Re JOHANNES BEURSKENS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr SC Fisher, Member Date24 June 2005
PlaceBrisbane
Decision The Tribunal decides to set aside the decision under review and substitute the decision that:
(a) the Applicant's post traumatic stress disorder is defence-caused within the meaning of the Veterans’ Entitlements Act 1986 with effect from 9 June 2002.
The Tribunal remits the matter to the Respondent for the assessment of the rate of pension payable.
................... [Sgd]............................
SC Fisher
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – disability pension – defence service with the Australian Army – post traumatic stress disorder (PTSD) – application of Statement of Principles – condition defence-caused – decision under review set aside and substituted – assessment of rate of pension payable remitted to respondent
Veterans’ Entitlements Act 1986 ss 69A, 70, 120(4), 120A, 120B, 174 -176, 180A, 196B
Secretary, Department of Social Security v Murphy (Federal Court, 29 June 1998, 809/98
Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248; (2003) 74 ALD 21
Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 Bramwell v Repatriation Commission (1998) 51 ALD 56
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598
Schmidt v Repatriation Commission [2004] FCA 1158
Smith v Repatriation Commission (1987) 74 ALR 537
Re Buckham and Repatriation Commission [2000] AATA 174
Kattenberg v Repatriation Commission (2002) 73 ALD 365
Haughey and Repatriation Commission [2005] AATA 189
Repatriation Commission v Deledio (1998) 83 FCR 82
Williamson and Repatriation Commission [2004] AATA 1185
Repatriation Commission v Gorton (2001) 110 FCR 321; (2001) 65 ALD 609
Hillier v Repatriation Commission [2004] AATA 897
Palmer and Repatriation Commission [2005] AATA 2REASONS FOR DECISION
24 June 2005 Mr SC Fisher, Member Introduction And Background
1. Mr Johannes Beurskens (the Applicant) was born on 8 December 1951 and served with the Australian Army from 24 February 1970 until 25 March 1990, when he was discharged with the rank of Sergeant. The Applicant did not render any operational service. From 2 December 1979 until 27 February 1980, the Applicant served as a medic with the Royal Australian Medical Corp attached to A Company 6th Battalion, Royal Australian Regiment (6 RAR) when it was deployed to RAAF Base Butterworth Malaysia.
2. The Applicant claims that three events took place during his defence service that caused him to suffer post traumatic stress disorder for which the Repatriation Commission (the Respondent) is liable to pay him compensation.
Jurisdiction
3. This appeal is governed by the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). The Tribunal has jurisdiction in this appeal by virtue of sections 174 – 176 of the Act. In these Reasons for Decision, references to statutory provisions are to the provisions of the Act unless the context indicates otherwise.
The Decision under Review
4. The decision under review is a decision made by the Respondent dated 9 December 2002 which determined that the condition of post traumatic stress disorder is not related to service. On 11 December 2003, the Veteran's Review Board affirmed the 9 December 2002 decision. From the 11 December 2003 decision, the Applicant appealed to this Tribunal on 17 February 2004.
The Role of the Tribunal
5. The role of the Tribunal is to review the merits of the decision before it: section 43 of the Administrative Appeals Tribunal Act 1975 and Secretary, Department of Social Security v Murphy (Federal Court, 29 June 1998, 809/98, Drummond J). The Tribunal is guided by the norm that it should reach the correct and preferable decision on the basis of the material before it: Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248 at [33]. The Tribunal is required to stand in the shoes of the original decision-maker and consider all evidence anew, bearing in mind statutory provisions and any significant legal precedent: Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 at [23]. The Tribunal proceeds de novo: Bramwell v Repatriation Commission (1998) 51 ALD 56 at 60 per Weinberg J. The Tribunal must base its decision upon the material that is logically probative of the existence of facts that emerge from the evidence before it: Collins v Minister for Immigration and Ethnic Affairs(1981) 36 ALR 598 at 601.
The Material Before the Tribunal
6. The following documentary evidence was before the Tribunal:
Exhibit 1 Medical Report by Dr Perce Tucker, Psychiatrist, dated 17 September 2004.
Exhibit 2Statement by Mr Walter McMullen dated 13 October 2004.
Exhibit 3Statement by Ms Christina Haclin dated 1 October 2004.
Exhibit 4Letter from Mr Johannes Beurskens to Dr David Alcorn dated 27 September 2004.
Exhibit 5Statement by GT Melsom dated 17 September 2004.
Exhibit 6Statement by GT Melsom dated 22 September 2004.
Exhibit 7Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (documents T1 – T6).
Exhibit 8Medical Report by Dr David Alcorn, Psychiatrist, dated 22 June2004.
Exhibit 9Medical Report by Dr David Alcorn, Psychiatrist, dated in August 2004.
Exhibit 10Statement by Mr Johannes Beurskens dated 5 May 2004.
Exhibit 11Statement by Mr Peter Lawrence Wynd dated 3 July 1999.
7. The Applicant was represented by Mr Noel Payne, Defence Personnel Advocate who was instructed directly by the Applicant. Exhibits 1 – 7 were lodged on behalf of the Applicant. Mr Payne lodged a Statement of Facts and Contentions with the Tribunal.
8. The Respondent lodged documents T1 to T6 under section 37 of the Administrative Appeals Tribunal Act 1975. These documents were taken into evidence as Exhibit 7. Exhibits 8 – 11 were lodged on behalf of the Respondent.
9. The Respondent was represented by Mr Jeff Kelly, a departmental advocate. The Respondent’s advocate provided a Statement of Facts and Contentions to the Tribunal.
10. Neither party lodged an outline of submissions with the Tribunal. The Tribunal considered carefully all of the documentary and oral evidence before it.
Issues
11. The issue before the Tribunal is whether the Applicant’s condition of post traumatic stress disorder is defence-caused within section 70 of the Act. It is common ground that if the Applicant is successful in his claim, the date of effect would be 9 June 2002.
Evidence
12. The Applicant gave evidence in person. In addition, the following people gave evidence on behalf of the Applicant: Mr Peter Wynd; Dr Perce Tucker, Psychiatrist and Dr Christopher Danesi, Psychiatrist.
Evidence of the Applicant
13. The Applicant gave evidence in person and also in statement form, Exhibit 4 having been filed on his behalf. Exhibit 10 (filed by the Respondent) also comprises a written statement by the Applicant. The gist of the evidence provided by the Applicant in person and in statement form can be summarised as follows:
- The Applicant summarised his service history.
- The Applicant said that there were three incidents that caused his post traumatic stress disorder, namely the "rifle incident", the "motor vehicle accident incident" and the "pirate incident".
- In connection with the rifle incident, which took place on 20 December 1979 whilst he was stationed in Malaysia, the Applicant said that he was the safety medic attached to operations at a rifle range. He was sitting with Private Peter Wynd in the cabin of a truck when he heard a tap on the rear window of the cabin. The Applicant said that he turned around and saw a soldier pointing a SLR, the trigger was pulled, the firing pin fell on an empty firing chamber and he immediately thought that his wife would be widowed. The Applicant said that he was very frightened by this incident and that afterwards he got out of the truck. The Applicant said that Private Wynd got out of the truck and spoke to the soldier about the incident. The Applicant said that he later learned that the soldier had been disciplined in a minor respect but not charged or court-martialled.
- The Applicant said that after the rifle incident, he was angry for a few days and then tried to put it behind him. The Applicant said that from 1980 onwards, he became abusive, drank to excess, his marriage breakdown and that ultimately his wife left him after she had a liaison. The Applicant said that he attributed this to the rifle incident.
- The Applicant said that he first noticed that the rifle incident had affected him when he suffered a nervous breakdown in 1988. The Applicant said that when he had his nervous breakdown, he was diagnosed with "anxiety and depression".
- In 1999, when he had a discussion with Private Peter Wynd, the rifle incident was described to him, which caused the Applicant to relive it. The Applicant said that he thinks about it often, that it "invades every part of my life" and that he has nightmares. The Applicant described how his second marriage is in trouble and that he is doing the same things again that went wrong in the first marriage, including being intolerant but he was not drinking this time.
- The Applicant said that he was not relying on the other incidents that have been described to treating medical practitioners and psychiatrists.
- In cross-examination, the Applicant agreed that he had not mentioned the rifle incident to Drs Evans, Lawford and Cameron, or to Dr Danesi, psychiatrist, in 1998.
- In cross-examination, the Applicant agreed that the first mention of the rifle incident was to Dr Tucker, psychiatrist, who treated him between 1996 and 2002. The Applicant said that he could not explain why he did not mention the rifle incident to any of his treating doctors until he mentioned it to Dr Tucker in 1999.
- In cross-examination, the Applicant said that he had felt suicidal after leaving the army in 1990, when he joined the Army Reserves.
14. In Exhibit 10, the Applicant deposed, in relation to the rifle/SLR incident that:
"I saw the left side of the weapon and the finger inside the trigger housing. I felt utterly helpless.
The unknown person pulled the trigger. I was horrified and thought my wife is a widow and I’m dead.
Time froze, and then we heard the firing pin strike an empty chamber. At that point we knew the weapon was empty.
I was in a daze and although the time must have only been seconds I had no idea of the duration and no sense of control of events around me."
15. The Tribunal noted that the Applicant later told Dr Alcorn that the rifle incident was the most frightening event that had happened to him during his military service (Exhibit 8).
Evidence of Mr Peter Wynd (Private Peter Wynd)
16. Mr Peter Wynd served in the Regular Army between 1974 and 1992. The evidence that Mr Wynd gave to the Tribunal is summarised in the following account:
- Mr Wynd said that he was a platoon medic, and that he had experienced some enemy contact, including treating soldiers for shock.
- Mr Wynd said that he served with the Applicant in Malaysia in late 1979. He said that he knew the Applicant on a first name basis.
- In relation to the rifle incident, Mr Wynd said that he drove the truck and that he sat in the cabin with the Applicant. Mr Wynd said that he heard a tap on the window and that he turned around. Mr Wynd saw a SLR pointed at the Applicant, the trigger was pulled but no round was discharged. Mr Wynd said that the Applicant went into a state of shock, that he became pale and sweaty and they had slow speech and movements. Mr Wynd said that he got the Applicant out of the truck, sat him down and reassured him that he was fine and then the Applicant calmed down.
- Mr Wynd said that he raised the rifle incident with the Applicant in 1999 when he caught up with him at some kind of reunion.
- In cross-examination, Mr Wynd said that the soldier who had pointed the rifle at the Applicant "laughed", and then he got out of the truck and Mr Wynd went around to speak to the soldier. Mr Wynd said that a bandsman who witnessed the incident later identified the soldier who pointed the rifle at the Applicant.
- In cross-examination, Mr Wynd agreed that the Applicant had not discussed any other incident with him.
- In re-examination, Mr Wynd said that the sound of the SLR trigger being pulled and the firing pin falling on an empty chamber was audible.
17. Mr Wynd impressed the Tribunal as a witness of truth and candour.
Evidence of Dr Perce Tucker, Psychiatrist
18. Before the evidence of Dr Tucker is summarised and discussed, the Tribunal notes that Dr Tucker provided a brief report dated 17 September 2004 (Exhibit 1) in which he stated that the December 1979 rifle/SLR incident involving the Applicant was suppressed by stress and anxiety suffered by the Applicant for many years. The Tribunal also noted that in the T - Documents, there is a report dated 20 February 1997, the salient parts of which deal with three events (the motor vehicle accident event, the confrontation by opponents and being trapped on a beach at night by heavily armed pirates) which predate the surfacing of traumatic memories and the rifle/SLR incident which took place later in 1999.
19. Dr Perce Tucker, Psychiatrist, gave evidence by telephone on behalf of the Applicant during the hearing. Dr Tucker's evidence to the Tribunal was in the following terms:
- Dr Tucker said that he is the Senior Consultant Psychiatrist at the Greenslopes Private Hospital, and that he has a strong interest in post-traumatic stress disorder.
- Dr Tucker said that he has treated the Applicant continuously since 1996.
- Dr Tucker opined that the Applicant has post-traumatic stress disorder of a chronic nature, not generalised anxiety disorder.
- Dr Tucker said that generalised anxiety disorder and post-traumatic stress disorder overlap diagnostically, and that there is no 100% reliability with the categories.
- Dr Tucker said that the rifle incident caused the post traumatic stress disorder in the Applicant. Dr Tucker said that it was reasonable for the Applicant to think that he would die during the vital incident.
- Dr Tucker said that it was until 1999 that the Applicant suppressed his memory of the rifle incident, and that this type of suppression was quite common in his experience.
- Dr Tucker said that the dream disorder suffered by the Applicant during the 1980s co-existed with post traumatic stress disorder, which was stirred up by the phone call with Mr Wynd in 1999. Dr Tucker cited Freud to the effect that dreams are the royal road to the subconscious. Dr Tucker said that suppression of an event can take place if it is horrifying enough.
- Dr Tucker said that the Applicant had post traumatic stress disorder before the rifle incident was mentioned to him in 1999. Dr Tucker said that the Applicant satisfies the criteria for post traumatic stress disorder.
- In re-examination, Dr Tucker said that some men who do suffer from post traumatic stress disorder over-compensate for the symptoms by overworking, and that as a result, some post traumatic stress disorder sufferers can be quite successful in their careers despite their condition and symptoms.
Evidence of Dr Christopher Danesi, Psychiatrist
20. Dr Christopher Danesi, Psychiatrist, provided 2 medical reports, the first dated 6 August 1998 and the second dated 2 October 2002. Dr Danesi also provided a medical certificate dated 16 May 2002 certifying that the Applicant was unfit for jury duty. This medical certificate is not relevant to the current proceedings, and in any event it has no probative value even if its relevance were to be established. The Tribunal discounted the first medical report of 6 August 1998 because it does not deal with the rifle incident, and also taking into account the concession of the Applicant that he does not rely on any other incidents.
21. The second medical report of 2 October 2002 records that Dr Danesi was consulted by the Applicant in or on 24 May 2001, March 2002, August 2002 and October 2002. In relation to the rifle incident, at page 5 of this report, Dr Danesi states:
"He said an incident which he had no recall of, had recently been told to him by another veteran. While in Malaysia, he had been confronted with a rifle while a passenger in the front seat of the truck.
Apparently a Australia's soldier in the rear of the trunk pointed a SLR at him and pulled the trigger. It wasn't loaded. He said at the time it was distressing."
22. Dr Danesi said (at page 6 of his report dated 2 October 2002) that:
"Most likely [the Applicant] has a diagnosis of post traumatic stress disorder complicated by complex partial epilepsy. As noted in his original report the post traumatic stress disorder may be secondary to a number of stressors that he experienced while in the Army including the incidents before going to Malaysia regarding the distress in the training situation and seeing photographs of people who were mutilated, the stressors in Malaysia of the incident near Palada, the incident at Langkawi Island and having an unloaded SLR fired at him,"
23. Dr Danesi gave evidence to the Tribunal by telephone. A summary of what Dr Danesi said to the Tribunal in the course of his evidence is set out next:
- In his evidence-in-chief, Dr Danesi said that the Applicant had been a patient of his since 2001, that he suffers from post traumatic stress disorder, that Dr Danesi was aware of the rifle incident, and that the Applicant only recalled it in 2002 because of the "memory switch" which was not uncommon, and which is mentioned in the DSM.
- In cross-examination, Dr Danesi said that the rifle event was now the critical event so far as the Applicant's post traumatic stress disorder was concerned. Dr Danesi said that he was not troubled by the fact that the Applicant did not recall the rifle event and had not reported it to him until 2002. Dr Danesi said that the rifle event was the last event experienced by the Applicant and that the event itself was consistent with being the most severe.
- In cross-examination, Dr Danesi said, after consulting his notes, that the Applicant experienced intense fear and that he thought he was going to die during the rifle event.
- In re-examination, Dr Danesi said that the rifle event plays a significant role in the post traumatic stress disorder suffered by the Applicant.
24. The Tribunal noted that during cross-examination, Dr Danesi was questioned about pre-Malaysia events. The Tribunal did not take these questions and answers into account, given the concession of the Applicant to rely only on the SLR (or rifle) incident.
Discussion of Other Evidence
25. Mr Walter McMullen, Ms Christina Haclin and Mr GT Melsom each provided written statements to assist the Applicant (Exhibits 2, 3, 5 and 6). None of these persons were called to give evidence, and so they were not cross-examined on their statements. The Tribunal did read the statements but gave them comparatively little weight as they were not central to the ultimate issue in dispute and had not been subject to forensic testing in the arena of the Tribunal. The Tribunal draws no adverse Jones v Dunkel (1959) 101 CLR 298 inference from the failure of these persons to give evidence on behalf of the Respondent.
Evidence for the Respondent
26. The only person to give evidence on behalf of the Respondent was Dr David Alcorn, Psychiatrist.
Medical Evidence of Dr David Alcorn, Psychiatrist
27. Dr David Alcorn, Psychiatrist, provided 2 medical reports, the first dated 22 June 2004 and the second dated 13 August 2004.
28. In his medical report of 22 June 2004, Dr Alcorn provided the following summary in relation to the Applicant (portions of the summary dealing with events besides the rifle/SLR incident had not been included).
“At the current evaluation, he presented with features of partially-remitted mood disorder, probably Major Depressive Disorder. This included intermittently depressed mood, irritable mood, intermitted awakening, weight gain and increased appetite. He reported episodes of suicidal ideation intermittently.
Features nominated as being those of “post-traumatic stress disorder” were consistent with Generalised Anxiety Disorder. This included difficulties controlling worries, palpitations, episodes of autonomic over-activity during sleep (sweating), tremor, and oesophageal reflux.
The few features consistent with avoidance symptoms did not attain clinical significance, in my opinion. The limited report of nightmares concerning claimed incident #1 did not indicate that re-experiencing symptoms of a clinically significant nature were present, in my opinion.
In the past, there has been an additional diagnosis of Alcohol Abuse. However, the subject reported his current usage in terms suggesting cessation of alcohol at the time of the evaluation.
At the current examination, there was no mental state evidence to suggest likely symptom exaggeration or overstatement. There was no evidence of overt personality disorder. There was no evidence of ongoing alcohol abuse.
Using the Diagnostic and Statistical Manual – Fourth Edition, Test Revision, Multiaxial Classificatory System of the American Psychiatric Association, I would accord the following diagnoses:
Axis I Generalised Anxiety Disorder
Major Depressive Disorder (in partial remission)
Axis II No personality disorder diagnosis
Axis III Gastro-oesophageal Reflux Disease
Axis IV Ongoing Veteran’s Affairs claim and litigation
Axis VThe subject described his function in terms suggesting a mild (to moderate impairment) of function due to ongoing psychiatric symptoms (Global Assessment of Functioning Scale Score = 61-70).
Causation
The subject’s compensation claim for the development of psychiatric illness due to military service-related events, arises under veterans entitlement legislation.
The following factual matters are integral to the medical assessment of this claim:
§ The subject’s Australian Army service as a medical assistant extended from 1970-1990,
§ the subject served in Malaysia between 2 December 1979-26 February 1980,
§ there has been marked INCONSISTENCIES between the subject’s self-report and the advice provided by a military historian who spoke with a number of officers and non-commissioned officers with whom the subject served during the Malaysian period, and
§ the subject first nominated a stressor in September 2003, hitherto unreported in connection with his previously rejected (but appealed) claim (although he stated he had been increasingly aware of the incident since 1999),
§ the subject had a period of ten years service after the incident(s). During the post-incident service he received a number of promotions to staff sergeant level,
§ there were periods of excess alcohol use during those ten years,
§ the subject’s first marriage broke down in 1990 and his civilian employment with the Department of Veterans’ Affairs ceased in 1996, apparently after performance counselling.
The psychiatric and general medical principles relevant to medical determination of this claim of causation are as follows:
§ the “Statement of Principles Concerning Generalised Anxiety Disorder” – Veterans’ Entitlement Act 1986,
§ the “Statement of Principles Concerning Major Depressive Disorder” – Veterans’ Entitlements Act 1986,
§ the observation that true delayed onset of Post-traumatic Stress Disorder in relation to a particular stressor is uncommon and generally accompanied by anxiety-related symptoms contemporaneous with the original stressor, and
§ the subject’s nomination of the firing range incident occurred in the context of his claim for military compensation (but has also been reported by a friend and witness, former private Peter Wynd on 22 July 2002).
…..
The following medical causation conclusions about the relationship between Claim Incident #1 (the “firing range” incident) and the psychiatric illnesses of Generalised Anxiety Disorder and Major Depressive Disorder are made with reasonable medical certainty:
§ it is a question for an administrative or judicial decision-maker to determine as a matter of fact whether the firing range incident occurred in the manner described:
o If the subject’s report were determined to be factual, Claim Incident #1 would constitute a stressor involving threatened death or serious injury,
o If the subject’s report was NOT confirmed as a matter of fact, Claim Incident #1 would NOT constitute a stressor involving threatened death or serious injury,
§ on the balance of probabilities, a stressor of that nature would have provoked a longstanding anxiety disorder in many service personnel of normal mental fortitude, including the subject,
§ it would be reasonable to conclude that such an anxiety disorder might be complicated by mood disorder and alcohol abuse, and
§ if the subject’s factual contentions were determined to be correct by an administrative or judicial decision-maker, it is my opinion that a service-related anxiety disorder is present, a service-related mood disorder partially remitted and alcohol abuse ceased.
…..
At the time of this evaluation, the subject:
§ does require specialist psychiatric treatment (see “Formulation and Opinion – Further Medical Treatment Recommended”),
§ manifests an impairment for the work as an army medic undertaken by them at the time of claim incident #1 (see “Formulation and Opinion – Further Vocational Rehabilitation Recommended”).
If Claim Incident #1 and/or Claim Incident #3 were accepted by an administrative or judicial decision-maker, it would be reasonable to conclude on the balance of probabilities that the subject is impaired for the following pre-accident recreational pursuits because of service-related psychiatric disorder alone:
§ activities involving the possibility of interpersonal discord (e.g. restricting outings to RSL clubs only on quiet nights), and
§ attending sporting matches.
If Claim Incident #1 and/or Claim Incident #3 were accepted by an administrative or judicial decision-maker, it would be reasonable to conclude on the balance of probabilities that the subject requires gratuitous assistance with the following activities of daily living because of service-related psychiatric disorder alone:
§ shopping; and
§ bill paying.”
29. In his second report of 13 August 2004, Dr Alcorn said, in response to a question posed by the Department Veterans' Affairs, as follows:
“2. If the firing range incident is the causal event for (the subject’s) psychiatric conditions i.e. it had such an effect that (the subject) continues to suffering (sic) the repercussions some 24 years later, why would (the subject) be unable to remember it until reminded by a colleague in 2002? (The subject) now seems able to recall the incident in detail.
The subject’s most recent statement appears to imply recollections of a firearm incident from 1996 onwards.
There is no medical reason for the subject not to have reported (in 2002) an incident for which he experienced symptoms from 1996 onwards, unless he had been unable to locate the perception of a firearm pointed at him to the temporal event of 1979.
It would be extremely unlikely that an individual diagnosed by a psychiatrist with post-traumatic stress disorder could complain of particularly intrusive, troubling symptoms (ie an image of a rifle being pointed at him) without thorough assessment and discussion by both the treating psychiatrist and attending hospital nurses (and allied health staff, such as psychologists) of the putative stressor(s).
In that regard, the subject’s post-military hospital medical records (see below in “Materials Recommended for Further Evaluation”) should be of assistance in clarifying the onset of his perceptions of the 1979 firing range incident.”
30. In his oral evidence to the Tribunal, Dr Alcorn (who appeared in person) said the following:
- Dr Alcorn said that repressed memory mostly concerns child sexual abuse, and there is not much of a nexus between repressed memory and military service, and that he had only come across 4 articles in the published literature concerning repressed memory and military context. Accordingly, there was doubtful validity of such a nexus between repressed memory and military service.
- Dr Alcorn said that assisted recall (such as that prompted by Mr Peter Wynd’s conversation with the Applicant) does not assist the veracity of the Applicant's account.
- Dr Alcorn said that he stood by his two medical reports.
- In cross-examination, Dr Alcorn said that he disagreed with the diagnosis of post traumatic stress disorder made by Dr Tucker. In relation to Criterion (A)(ii) (from the DSM-IV the "bible" or pre-eminent nosological tool), Dr Alcorn said that the emotional response reported to him by the Applicant did not meet the threshold test for Criterion (A)(ii) in that his reported response fell short of intense fear, helplessness or horror. Dr Alcorn did concede that if the Applicant had reported intense fear, helplessness or horror, then he would be more inclined to support a diagnosis of post traumatic stress disorder.
- Dr Alcorn said that he preferred a diagnosis of generalised anxiety disorder instead of post traumatic stress disorder.
Discussion of medical evidence
31. On the Applicant's side, Dr Tucker diagnosed the Applicant as suffering from ”post traumatic stress disorder”, while Dr Danesi diagnosed the Applicant as suffering from ”post traumatic stress disorder complicated by complex partial epilepsy”. Both medical practitioners are psychiatrists and they each attributed the Applicant's post traumatic stress disorder to the rifle/SLR incident in December 1979. The difficulty with accepting this medical evidence on its face is that the rifle/SLR incident did not surface in terms of reporting by the Applicant to those practitioners until 18 May 1999 (in the case of Dr Tucker) (although there may have been other reportings to Dr Tucker of this event, the dates which were not in evidence before the Tribunal) and 2002 (in the case of Dr Danesi). Both of the Applicant's treating psychiatrists said that the Applicant had suppressed his memory of the rifle/SLR incident until it was triggered and brought to the level of his consciousness following a discussion with Mr Peter Wynd in 1999.
32. By way of contrast, Dr Alcorn (called on behalf of the Respondent) was inclined to a diagnosis of generalised anxiety disorder and major depressive disorder (in partial remission). In connection with the rifle/SLR incident, Dr Alcorn opined that on the balance of probabilities, a stressor of that nature would have provoked a longstanding anxiety disorder in many service personnel of normal mental fortitude, including the Applicant. Dr Alcorn did say in his first report that if a decision-maker (including the Tribunal) accepted the rifle/SLR incident as having occurred in fact, then this incident would constitute a stressor involving threatened death or serious injury.
Applicant’s Submissions
33. In his closing address, the advocate for the Applicant said that of the three incidents experienced by the Applicant, namely the "rifle incident", the "motor vehicle accident incident" and the "pirate incident", only the rifle/SLR incident was relied upon.
34. The Applicant contended that the Tribunal should find that the rifle/SLR incident did take place, and that the Applicant's evidence of this event was corroborated by that provided by Mr Peter Wynd. The Applicant pointed to the evidence of Dr Tucker, who was in "no doubt" that the Applicant had suffered post traumatic stress disorder as a result of the rifle/SLR incident. The Applicant laid stress upon the fact that Dr Tucker had been a longstanding treating psychiatrist of the Applicant. The Applicant said that Dr Danesi had not resiled from his diagnosis of post traumatic stress disorder as a result of the rifle/SLR incident during cross-examination. The Applicant contended that Dr Alcorn had shifted or inclined towards post traumatic stress disorder if the requisite degree of intense fear, shock or horror existed in the case of the Applicant.
35. The Applicant's advocate criticised Dr Alcorn's reports on the basis that he had only seen the Applicant once for a period of approximately 2 hours for the purposes of a forensic examination, and that the Tribunal should prefer the evidence of Dr Tucker and Dr Danesi, both of whom were longstanding treating psychiatrists of the Applicant and who were involved in the clinical management of the Applicant's condition.
36. The Applicant contended that Factor 5(b) of SoP No 4 of 1999 was relevant and activated in this case in terms of its facts.
Respondent’s Submissions
37. The Respondent conceded that the rifle/SLR incident did take place. The Respondent said that the Applicant was overworked, his first marriage was under stress and that he had not reported the rifle/SLR incident to Dr Tucker despite many years of psychiatric treatment and intervention. The Respondent said that after the rifle/SLR incident, the Applicant receive two further promotions, and pointed to the evidence of Dr Alcorn that he had opined that the Applicant had functioned normally and did not report the rifle/SLR incident to anyone and that it had surfaced after the conversation with Mr Peter Wynd in 1999. The Respondent contended that the decision below should be affirmed and that the Tribunal should make a diagnosis of generalised anxiety disorder with an additional finding that the Applicant fell outside the two-year rule between the onset of the condition and its symptomatology.
Findings of Fact
38. Based upon the evidence before it, the Tribunal makes the following findings of fact:
- Mr Johannes Beurskens (the Applicant) was born on 8 December 1951.
- The Applicant served with the Australian Army from 24 February 1970 until 25 March 1990, when he was discharged with the rank of Sergeant.
- The Applicant did not render any operational service.
- From 2 December 1979 until 27 February 1980, the Applicant served as a medic with the Royal Australian Medical Corps attached to A Company 6th Battalion, Royal Australian Regiment (6 RAR) when it was deployed to RAAF Base Butterworth Malaysia.
- On 20 December 1979 while deployed in Malaysia, an unknown Australian soldier climbed into the back of an Army truck in which the Applicant and Private Peter Wynd were sitting in the driver’s cabin. The unknown soldier tapped upon the rear cabin window, got the attention of the Applicant when he turned around, pointed his SLR at the Applicant and pulled the trigger, but this action did not discharge a round at the Applicant. The Applicant was fearful for his life and was horrified and thought that his wife would be widowed as this event took place.
- The Applicant claimed compensation for "PTSD" on 9 September 2002.
- The Respondent made a decision on 9 December 2002 which determined that the condition of post traumatic stress disorder was not related to service and accordingly there was no liability to pay compensation.
- On 11 December 2003, the Veteran's Review Board affirmed the 9 December 2002 decision of the Respondent.
- The Applicant appealed to this Tribunal on 17 February 2004.
Legislative framework
39. It was common ground between the parties that the Applicant had rendered defence service. In this case, the Applicant has not rendered any hazardous service within section 69A. The veteran's injury or disease is taken to have been "defence-caused" if it meets one of the criteria specified in section 70. In this case, the circumstances are such that it is only sections 70(1), 70(5)(a) and 70(5)(d) which are relevant, and these provisions read:
“70Eligibility for pension under this Part
(1) Where:
(a)the death of a member of the Forces or member of a Peacekeeping Force was defence‑caused; or
(b)a member of the Forces or member of a Peacekeeping Force is incapacitated from a defence‑caused injury or a defence‑caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)in the case of the death of the member—pension by way of compensation to the dependants of the member; or
(d)in the case of the incapacity of the member—pension by way of compensation to the member;
in accordance with this Act.
…
(5)For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence‑caused, an injury suffered by such a member shall be taken to be a defence‑caused injury or a disease contracted by such a member shall be taken to be a defence‑caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
...
(d) the injury or disease from which the member died, or is incapacitated:
(i)was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease;”
40. In Schmidt v Repatriation Commission [2004] FCA 1158 at [5], Spender J accepted the following summary of certain key provisions of the Act, which this Tribunal gratefully adopts:
“[5] … Section 13 of the Act imposes upon the Commonwealth, liability to pay pensions to eligible persons. Section 14 deals with the making of claims for pensions and s 15 deals with making applications for increases in such pensions. Section 17 requires the Secretary of the Department of Veterans’ Affairs to investigate claims and applications. Section 19 gives to the Repatriation Commission the duty of determining claims and applications for pensions and to determine the rate at which the pension is payable.”
41. The standard of proof to be followed by the Tribunal in relation to the claim of the Applicant is governed by section 120(4), which states:
“120 Standard of proof
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re‑assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.”
42. The Note to section 120(4) provides a signpost to section 120B, which reads:
“120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
(b)a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
Note 1: Subsection 120(4) is relevant to these claims.
Note 2:For hazardous service and member of the Forces see subsection 5Q(1A).
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(3) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war‑caused or defence‑caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii)a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(3), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”
43. In following the pathway signified by sections 120(4) and 120B(3) with reference to the reasonable satisfaction of the decision-maker, Beaumont J of the Federal Court in Smith v Repatriation Commission (1987) 74 ALR 537 at 547 said that a decision-maker (including this Tribunal):
"... should have asked itself whether, on the facts of the case, it was persuaded on the civil standard. There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other (see Re Repatriation Commission and Delkou (1986) 9 ALD 358; Re Easton and Repatriation Commission (1987) 12 ALD 777 and; Re Repatriation Commission and Falkner (1987) 12 ALD 87.”
44. This particular passage and its mode of analysis were followed by this Tribunal in Re Buckham and Repatriation Commission [2000] AATA 174 at [55].
45. The Repatriation Medical Authority has devised Statements of Principles (“SoPs”) in respect of post traumatic stress disorder pursuant to section 196B(2) of the Act. Section 120A says the reasonableness of the hypotheses must be assessed against the relevant SoPs. A SoP is brought into existence in order to comply with section 196B: Kattenberg v Repatriation Commission (2002) 73 ALD 365 at [42]. There were no determinations of the Repatriation Commission under subsection 180A(2) that are relevant to this case, and the parties did not contend to that effect.
46. Section 196B(14) sets out the relationships to service contemplated by the SoP’s, whether the service is war service or defence service: see Haughey and Repatriation Commission [2005] AATA 189 at [35]. Section 196B(14) reads:
“196B Functions of authority
(14)A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
(c)it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey:
(i) to a place for the purpose of performing duty; or
(ii)away from a place of duty upon having ceased to perform duty; or
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
(e)in the case of a factor causing, or contributing to, an injury—it resulted from an accident that would not have occurred:
(i) but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or
(f)in the case of a factor causing, or contributing to, a disease—it would not have occurred:
(i) but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or
(g)in the case of a factor causing, or contributing to, the death of a person—it was due to an accident that would not have occurred, or to a disease that would not have been contracted:
(i) but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service.”
47. In relation to any part of the Applicant’s claim for any condition that is said to relate to defence service (as distinct from operational service), the Deledio “reasonable hypothesis” [from Repatriation Commission v Deledio (1998) 83 FCR 82] approach is not followed – instead the Tribunal must simply test the Applicant’s claim against the factors of the relevant SoP. For the Applicant to be successful, the Tribunal must accept his or her claim to a standard of reasonable satisfaction: see Williamson and Repatriation Commission [2004] AATA 1185. The Tribunal must be satisfied (to a standard of reasonable satisfaction) that the Applicant suffers from a medical condition. The Tribunal considered this aspect next.
Diagnosis
48. The first issue for the Tribunal is that of diagnosis. The question of whether a veteran suffers from a particular medical condition is decided to the reasonable satisfaction of the Tribunal: section 120(4). On the basis of the medical opinions before the Tribunal (discussed earlier in these Reasons for Decision), the Tribunal is satisfied that the Applicant suffers from post traumatic stress disorder. The Tribunal preferred this diagnosis to that proffered by the Respondent, namely generalised anxiety disorder and major depressive disorder. The Tribunal noted that the alternative formulation/diagnosis of post traumatic stress disorder suggested by the sole witness for the Respondent (Dr David Alcorn) could be made if the Tribunal was satisfied that the rifle/SLR incident did in fact take place. The Tribunal is satisfied on the civil standard of the balance of probabilities (as directed by Smith v Repatriation Commission (1987) 74 ALR 537 at 547) that this event took place and notes moreover, (1) that the evidence of the Applicant is corroborated directly and without contradiction by a person who was at the centre of that incident, namely Mr Peter Wynd (who also gave evidence during the hearing), and (2) the concession of the Respondent that this incident took place (which concession was properly made). The evidence of both of the treating psychiatrists called on behalf of the Applicant was that the Applicant suffers post traumatic stress disorder, and this diagnosis was not shaken during cross-examination. Both medical witnesses gave evidence that the Applicant suffers from post traumatic stress disorder in global terms, and in cross-examination neither witness was taken through the criteria for post traumatic stress disorder in any significant detail as to persuade the Tribunal that this diagnosis was not appropriate. This finding, however, does not conclude the matter as there must exist the relevant connection between the Applicant's medical condition and his defence service.
Tribunal’s Reasons
49. Where there is a SoP in force for a particular medical condition, the Tribunal must determine whether the material before it raises a connection between the Applicant's condition and his military service (in this case, defence service). The Tribunal has to decide whether the applicable SoP upholds the contention that the Applicant’s injury is, on the balance of probabilities, connected with the Applicant's service (section 120B(3)(b)). The relationship to service must be one of the relationships prescribed in section 196B(14): Haughey and Repatriation Commission [2005] AATA 189 at [63].
50. In coming to a decision, the Tribunal must form an opinion whether the contention raised by the Applicant fits within or is consistent with a factor set out in the SoP. If the contention fails to fit within the template, the claim will fail: Haughey and Repatriation Commission [2005] AATA 189 at [64].
51. Potentially, there are two SoPs that are relevant in the circumstances of this appeal, the first being SoP No 4 of 1999 which was amended by SoP No 55 of 1999. In accordance with the decision of the Full Court of the Federal Court in Repatriation Commission v Gorton (2001) 110 FCR 321; (2001) 65 ALD 609, the Tribunal must apply the SoP in force at the date of its decision: see also Hillier v Repatriation Commission [2004] AATA 897 at [15]. Accordingly, the Tribunal considers SoP No 4 of 1999 which was amended by SoP No 55 of 1999, which was in any event agreed between the parties.
52. The Applicant said in his evidence-in-chief, as supported by his advocate, that he was not relying on any incidents or events as the basis for claiming his post traumatic stress disorder was defence-caused besides the rifle/SLR event. On this basis, the Tribunal decided to consider only this event in terms of resolving the ultimate issue in this case.
53. Adapting what this Tribunal said in Palmer and Repatriation Commission [2005] AATA 2 at para [63]:
“Clause 4 of the SoP [No 4 of 1999] requires at least one of the clause 5 factors to be related to any relevant service rendered by the veteran.... The nexus (expressed in the words “be related to”) between the causative factor and relevant service required by clause 4 of [No 4 of 1999] does not need to be temporal (although this is sufficient rather than necessary). Clause 4 does not specify the relationship between the causative factor and relevant service. Phrases in the nature of “in respect of” and “in relation to” are taken to be of the broadest import: see O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356 at 374 per Toohey and Gaudron JJ and at 376 per McHugh J. Although much depends on the particular context in which any two or more referents are said to be “related”, there is sufficient judicial warrant for reading the relationship between the causative factor and relevant service as being satisfied if there is a relationship, whether direct or indirect, between these two matters. Put another way, there must be some kind of connection between the two matters for the relationship to arise. The determination of this is a matter for the Tribunal or other decision-maker.”
54. Following Kattenberg v Repatriation Commission (2002) 73 ALD 365 at [42], it is proper to read into the language of the SoP the language of section 196B(14).
55. In Kattenberg v Repatriation Commission (2002) 73 ALD 365 at [9], the Federal Court said that section 196B(14) explains what is meant by the requirement to set out the factors that must be related to service rendered by a person. It does that by enumerating a number of alternate meanings of the phrase “related to service”. That is to say, it clarifies the circumstances in which the necessary causal relationship between a factor and service will be present.
56. In this case, a factor that causes or contributes to a disease is related to service rendered by a person, relevantly, corresponds to paragraph (a) of section 196B(14). In this case, the Tribunal finds that the rifle/SLR incident is an "occurrence" within the meaning of section 196B(14)(a).
57. The oral evidence of the Applicant did not come up to his proof in the sense that in Exhibit 10 (parts of which have been extracted above) the Applicant gave evidence that was framed more closely according to Criterion (A)(ii) of SoP No 4 of 1999 than was the case in his oral evidence. The closing address of the Respondent did not draw out any inconsistency between the oral evidence of the Applicant and his earlier statement. While the Tribunal is not bound by the rules of evidence (section 33(1)(c) of the Administrative Appeals Tribunal Act 1975 refers), it is a longstanding practice of the Tribunal to have regard to the rules of evidence. Judicial admonitions directed to the Tribunal are to the effect that the evidence that the Tribunal proceeds upon has to be logically probative and relevant to the issues before the Tribunal: see Collins v Minister for Immigration and Ethnic Affairs(1981) 36 ALR 598 at 601. What this means is that the Tribunal is entitled to note the inconsistency between the written evidence and oral evidence of the Applicant to the Tribunal, and to take into account the fact that the prior inconsistent statement of the Applicant was not exposed during cross-examination.
58. In these Reasons for Decision, it is not necessary for the Tribunal to extract the meaning of "post traumatic stress disorder" as it appears in SoP No 4 of 1999. Relevantly, however, clause 5 reads:
“Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, post traumatic stress disorder or death from post traumatic stress disorder is connected with the circumstances of a person’s relevant service are:
(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
(b) experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder; or
(c) inability to obtain appropriate clinical management for post traumatic stress disorder.”
59. As well, in clause 8 of SoP No 4 of 1999:
“‘relevant service’ means:
(a) eligible war service (other than operational service); or
(b) defence service (other than hazardous service);”
60. In the circumstances of this case, it was common ground that the Applicant has rendered defence service, has not rendered hazardous service and that clause 6 of SoP No 4 of 1999 is not relevant.
61. The Tribunal then considered the meaning of "experiencing a severe stressor" as it is used in clause 8 of SoP No 4 of 1999, as amended by clause 1 of SoP No 55 of 1999:
“‘experiencing a severe stressor’ means 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 another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlement Act applies, events that qualify as stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence.”
62. The Applicant contended, and Dr Alcorn (called by the Respondent) conceded (properly, in the opinion of the Tribunal) that the rifle/SLR incident was an event that involved actual or threat of death or serious injury to the Applicant. Accordingly, the Tribunal is satisfied that the Applicant experienced a severe stressor within the meaning of SoP No 4 of 1999, as amended by SoP No 55 of 1999. This leads on to the next step, namely the conclusion that the rifle/SLR incident is related to service within the meaning of section 196B(14), especially paragraph (a), as understood in terms of the reasoning of the Federal Court in Kattenberg v Repatriation Commission (2002) 73 ALD 365 at [9]. This then leads on to section 70 to ground the resolution of the ultimate issue that the Applicant has become incapacitated by a defence-caused injury or a defence-caused disease for which the Respondent is liable to pay a pension to the Applicant in accordance with the Act.
63. To summarise: the medical and other evidence before the Tribunal, which the Tribunal accepts, is to the effect that the rifle/SLR incident treated post traumatic stress disorder in relation to the Applicant. The requisite relationship between the defence service of the Applicant and this condition of post-traumatic stress disorder within SoP No 4 of 1999, as amended by clause 1 of SoP No 55 of 1999 (read against the backdrop of section 196B(14)) is satisfied. Accordingly, the Tribunal concludes that the post traumatic stress disorder of the Applicant is related to his defence service.
Tribunal’s Conclusion
64. Based upon the material before it, and for these Reasons, the Tribunal concludes that the correct and preferable decision in this case is that the Applicant’s condition of post traumatic stress disorder is defence-caused within the meaning of the Veterans’ Entitlements Act 1986.
Tribunal’s Decision
65. The Tribunal decides to set aside the decision under review and substitute the decision that:
(a)the Applicant's post traumatic stress disorder is defence-caused within the meaning of the Veterans’ Entitlements Act 1986 with effect from 9 June 2002.
(b)The Tribunal remits the matter to the Respondent for the assessment of the rate of pension payable.
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Mr SC Fisher, Member
Signed: Jenny Tran
AssociateDates of Hearing 21 February 2005 and 7 March 2005
Date of Decision 24 June 2005For the Applicant Mr N Payne, Defence Force Advocate
For the Respondent Mr J Kelly, Departmental Advocate
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