Brown and Repatriation Commission
[2004] AATA 1262
•30 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1262
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/937
VETERANS APPEALS DIVISION ) Re BERNARD BROWN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr SC Fisher, Member Date30 November 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review
....................[Sgd].....................
SC Fisher
Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – Application for review of decision of Veterans’ Review Board denying liability for post traumatic stress disorder – Whether Applicant suffers post traumatic stress disorder – Whether events were “severe stressors” – Tribunal not required to consider condition of alcohol abuse / dependence – Applicant has depressive disorder but not war caused – Decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth) ss 5B, 6-6F, 7, 9, 14,120, 120A, 174 -176, 180A, 196B, Schedule 2
Trade Practices Act 1974 (Cth) s 45
Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248; (2003) 74 ALD 21
Bramwell v Repatriation Commission (1998) 51 ALD 56
Jones v Dunkel (1959) 101 CLR 298
Blatch v Archer (1774) I Cowp 63; 98 ER 969
Russo v Aiello [2003] HCA 53
Stoddart v Repatriation Commission [2003] FCA 334; (2003) 74 ALD 366
Stonehouse v Repatriation Commission [2004] AATA 707
White v Repatriation Commission [2004] FCA 633
Hillier v Repatriation Commission [2004] AATA 897
Schmidt v Repatriation Commission [2004] FCA 1158
Repatriation Commission v Stoddart [2003] FCAFC 300; (2003) 77 ALD 67
Repatriation Commission v Gorton (2001) 110 FCR 365; (2001) 65 ALD 609
Kattenberg v Repatriation Commission (2002) 73 ALD 365
Ahrens and Repatriation Commission [2004] AATA 943
Mines v Repatriation Commission [2004] FCA 1331
Woodward v Repatriation Commission [2004] FCAFC 160; (2003) 75 ALD 420
Tillmanns Butcheries Pty Ltd Australasian Meat Industry Employees’ Union (1979) 42 FLR 331
Gray v Repatriation Commission [2004] AATA 224REASONS FOR DECISION
30 November 2004 Mr SC Fisher, Member Introduction and background
1. On 23 January 2001, Mr Bernard J Brown (the Applicant) lodged a claim with the Repatriation Commission (the respondent) seeking acceptance by the respondent of liability for medical treatment and pension for incapacity of “nervous disorder, hearing loss and stomach upsets”.
2. On 13 March 2001 the respondent determined the applicant’s claim to be a claim for bilateral sensorineural hearing loss, depressive disorder and gastro-oesophageal reflux disease. The respondent accepted the claim for bilateral sensorineural hearing loss but refused to accept liability for the gastro-oesophageal reflux disease and depressive disorder conditions on the ground that these conditions were not war-caused.
3. On 23 May 2001, the applicant sought review of the respondent’s decision by the Veteran’s Review Board (VRB). By its decision dated 30 July 2003 (and notified to the applicant on 4 August 2003), the VRB added the diagnosis of post traumatic stress disorder (PTSD). The VRB accepted the gastro-oesophageal reflux disease as war-caused, but otherwise affirmed the decision of the respondent relating to the denial of liability for depressive disorder. The VRB denied liability for post traumatic stress disorder.
4. On 5 November 2003, the applicant applied for review by this Tribunal of the VRB’s 30 July 2003 decision denying liability for post-traumatic stress disorder and depressive disorder.
Jurisdiction
5. 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 provisions of the Act unless the context indicates otherwise.
The Role of the Tribunal
6. The role of the Tribunal is to review the merits of the decision before it. 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 proceeds de novo: Bramwell v Repatriation Commission (1998) 51 ALD 56 at 60 per Weinberg J.
Issues
7. The issue before the Tribunal is whether the applicant’s conditions of post traumatic stress disorder and depressive disorder are war-caused within the meaning and operation of section 9 of the Act. It is common ground that if the applicant is successful in his claim, the date of effect would be 23 October 2001.
The Material Before the Tribunal
8. The following documentary evidence was before the Tribunal:
Exhibit 1 Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
Exhibit 2Statement of Bernard Brown of 17 November 2003.
Exhibit 3Supplementary Statement of Bernard Brown dated 2 August 2004.
Exhibit 4Report of Dr Judith Gold dated 3 March 2004.
Exhibit 5Report by Writeway Research Service dated 7 April 2004.
Exhibit 6Naval medical records of the applicant (bundle of documents with folio numbers 002 -- 070)
9. The applicant was represented by Mr RJ Clutterbuck of counsel. Mr Clutterbuck was instructed by Gilshenan & Luton Lawyers. The applicant’s counsel provided an outline of submissions to the Tribunal.
10. 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 1. In addition, the respondent tendered documentary evidence, which were taken into evidence by the Tribunal as Exhibits 4 and 5. 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.
11. The Tribunal considered carefully all of the documentary and oral evidence before it.
Applicant’s Evidence
12. The applicant gave evidence to the Tribunal in person. Dr Robert Anderson, Psychiatrist, gave evidence on behalf of the applicant by telephone.
13. Much of the evidence given by the applicant was not in dispute. A summary of the applicant’s evidence to the Tribunal is set out next.
A. Naval work history
14. The applicant was born on 12 December 1949. He served with the Royal Australian Navy from 11 February 1967 until 10 February 1976.
15. During his period of service with the Navy, the applicant rendered operational service in South Vietnam waters as follows:
§ HMS Duchess: 18 November 1968 – 25 November 1968.
16 November 1969 – 29 November 1969.
§ HMAS Sydney: 20 September 1971 – 16 October 1971.
26 October 1971 – 18 November 1971.
24 November 1971 – 17 December 1971.
14 February 1972 – 9 March 1972.
1 November 1972 – 30 November 1972.
B. Boat patrols around the HMAS Duchess
16. The applicant said that he was deployed on patrol boats that circled the waters around the HMAS Duchess dragging anti-swimming devices to deter divers placing explosive devices and mines upon the hull of the vessel. The applicant described how he drove patrol boats for the whole time while the HMAS Duchess was in Vung Tau Harbour and that each boat had four men (including himself as the driver). The applicant said that during those boat patrols, they did not actually drag anything up although occasionally drag lines got snagged on unknown objects and then would be freed as the boat pushed forward. The applicant said that small arms (submachine guns) on board the boat were used to shoot at suspicious objects in the water, but that he did not personally discharge the submachine guns that were aboard the boat. The applicant said that scare charges were used.
17. The applicant said that during the boat patrols around the HMAS Duchess, he was “shit scared” in case the dragline caught on a diver who was intending to blow up the HMAS Duchess. The applicant said that he was “scared and frightened” by the whole task and that he thought he could “get killed”. In his evidence-in-chief, the applicant said that he and his shipmates joked about the exercise but that it was not brought up when not in the patrol boats.
C Events aboard the HMAS Sydney
18. The applicant said that he served on the HMAS Sydney in several of its deployments in South Vietnamese waters in 1971 and 1972. The applicant said that while he served on the HMAS Sydney in South Vietnam, he was working below decks in the boiler room and engine room.
19. The applicant described hearing explosions in the water while he was in the boiler and engine rooms. The applicant said that he was “frightened” by these explosions, and that this caused him to check the boiler and also the receptacles used to store the aviation gas (avgas) out to make sure they weren’t damaged. In cross-examination, the applicant said that he was in damage control mode. The applicant said that he found out later that these explosions came from scare charges. In cross-examination, the applicant said that the HMAS Sydney was in Operational Awkward mode when the scare charges were used.
20. The applicant described another incident that took place on the flight deck of the HMAS Sydney. The applicant said that he was on the flight deck waiting to fuel some choppers when an American soldier on a nearby barge discharged a firearm into the water. The armed sentries on the HMAS Sydney, who were young and inexperienced according to the applicant, responded to this action by the American soldier in a way that frightened the applicant as he did not know what they were going to do and whether there would be shooting.
D. Alcohol consumption
21. The applicant said that prior to his Naval service he did not drink alcohol at all. After he joined up and before his South Vietnam service, the applicant said that he was a social drinker and that he consumed a moderate amount of alcohol. The applicant said that after his service in South Vietnam, he began to drink more heavily, if not “continually”. The applicant said that after stints in South Vietnam, when deployed in Singapore he would get “pissed and legless” and often drink on his own. The applicant described how he would get beer rations from shipmates who did not consume their donations. The applicant described how he drank 4 – 5 bottles per day and that he would get extras. The applicant said that he got into trouble with his superiors for being drunk and disorderly on many occasions. The applicant said that although he consumed a lot of alcohol, he was able to function and carry out his Naval tasks. The applicant said that he had been an alcoholic but that this is now in remission and that he has joined an Alcoholics Anonymous support group.
E. Evidence of Dr Robert Anderson
22. The applicant called Dr Robert Anderson, Psychiatrist, to give evidence on his behalf. Dr Anderson provided reports written on 10 January 2003, 24 January 2003 and 12 May 2003, together with typewritten clinical notes. These documents were part of the section 37 documents which were taken into evidence as Exhibit 1. Dr Anderson gave evidence by telephone.
23. Dr Anderson said that he has been the applicant’s treating psychiatrist since 10 October 2002. Dr Anderson said that he thought that the Department of Veterans’ Affairs was opposed to or unsupportive of veterans’ claims of post traumatic stress disorder. Mr Anderson said that his approach to the diagnosis of post-traumatic stress disorder was pragmatic. In his evidence-in-chief, Dr Anderson said that he had read the 24 February 2004 report provided by Dr Judith Gold.
24. In cross-examination, Dr Anderson said that in his opinion, the applicant did experience the threat of injury during his South Vietnamese service and that this was supportive of the diagnosis of post traumatic stress disorder that he made in relation to the applicant.
25. In cross-examination, Dr Anderson was challenged as to whether the applicant had been exposed to a traumatic event in which he experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury in the events that took place concerning the HMS Duchess and HMAS Sydney. Dr Anderson adhered to his opinion that these events did cause intense fear, helplessness, or horror in the applicant. Dr Anderson said that the threat of injury was being re-experienced by the applicant through his flashbacks and dreams.
26. Dr Anderson’s clinical notes recite the symptomatology of post-traumatic stress disorder as reported by the applicant using the template provided by the diagnostic criteria for ICD9-CM Code 309.81 – post traumatic stress disorder. This symptomatology led Dr Anderson to conclude that the applicant was suffering from post traumatic stress disorder as a result of meeting Criteria A – F, being opinions expressed in a summary form in his reports of 10 January 2003, 24 January 2003 and 12 May 2003.
F. Evidence of Dr Koller
27. Dr Karl Koller, Psychiatrist, in a report dated 17 January 2002, made a diagnosis of “generalised anxiety disorder and there is a suggestion of a post traumatic stress disorder component”. Dr Koller was not called by the applicant to give evidence and was not required by the respondent to attend in person or by telephone for cross-examination. Dr Koller’s 17 January 2002 report formed part of the section 37 documents.
Respondent’s Evidence
28. The only witness called by the Respondent was Dr Judith Gold, who provided a report dated 3 March 2004 which was taken into evidence as Exhibit 4.
29. In her evidence-in-chief (as well as in her 3 March 2004 report), Dr Gold expressed the opinion that the applicant suffers from adjustment disorder with anxiety. Dr Gold also diagnosed a subsequent alcohol dependency with a physiological dependency, now in sustained full remission. Dr Gold opined that the applicant’s alcohol dependency developed in approximately 1969.
30. Dr Gold attributed the applicant’s adjustment disorder to the breakdown of his marriage and not to his operational service. Dr Gold said that she did not consider that the applicant satisfied Criterion A of the definition of post-traumatic stress disorder derived from the DSM-IV because the applicant did not provide her with the history of a traumatic event that involved actual or threatened death or serious injury or a threat to the physical integrity of self or others to the extent that the applicant’s depositors response involved intensity, hopelessness or horror. In connection with Criterion B, in Dr Gold’s opinion the history recounted by the applicant of distressing recollection and dreams of events did not appear to be consistently occurring. In relation to Criterion C, Dr Gold considered that the applicant was not able to substantiate the avoidance criteria, that there was no change in the applicant’s interest or participation in significant activities, that he did not have a feeling of detachment or estrangement from others and did not report a sense of a foreshortened future. Dr Gold also considered that the magnitude of symptoms of increased arousal required by Criterion D was not satisfied in the applicant’s case. Dr Gold considered that the applicant’s symptoms continued for over the one month period mandated by Criterion E and there was clinically significant disturbance in impairment in social, occupational or other areas of functioning in terms of Criterion F.
31. Dr Gold said in her report that the applicant’s symptoms did not meet the SoP for depressive disorder at the time of his alcohol dependency and following his cessation of alcohol consumption. Dr Gold said that the significant contributing factor to the applicant’s alcohol dependency was his attempt to deal with the anxiety he suffered in a war situation and his personal inability to discuss his anxiety with his mates or with people inside or outside of the military.
32. Dr Gold said in her oral evidence that she had read Dr Anderson’s reports. Dr Gold opined that Dr Anderson had applied the DSM – IV criterion less rigorously than she had, and that is why Dr Anderson was prepared to make a finding of post traumatic stress disorder while she was not.
33. The respondent relied upon the Report by Writeway Research Service dated 7 April 2004 (“Writeway Report”), which was taken into evidence as Exhibit 5. The author that report was Captain HA Josephs AM (Retd). Captain Josephs was not required for cross-examination by the applicant. The material contained in the Writeway Report did not significantly assist the Tribunal in determining the issues relevant to this appeal as the assertions (much of it first-hand hearsay and second-hand hearsay) did not throw much light upon the facts and issues in dispute.
Discussion of the Evidence
34. As stated above, Dr Koller did not give evidence at the hearing on behalf of the applicant. Dr Koller’s 17 January 2002 report made a diagnosis of “generalised anxiety disorder and there is a suggestion of a post traumatic stress disorder component”. Dr Koller’s diagnosis is in general terms, and has not been made according to the framework of the templates appearing either in the relevant SoP or in the DSM-IV. The Tribunal would not go so far as to draw a Jones v Dunkel inference (see Jones vDunkel (1959) 101 CLR 298) concerning the failure of Dr Koller to give evidence. The Tribunal was mindful of the dictum of Lord Mansfield in Blatch v Archer (1774) 1 Cowp 63 at 65; 93 ER 969 at 970 that “all evidence is to be weighed according to the proof which was in the power of one side to have produced, and in the power of the other to have contradicted” (approved in Russo v Aiello [2003] HCA 53 at [11] per Gleeson CJ). Standing alone and on its face, the Tribunal did not assign a much weight to the medical report of Dr Koller.
35. The principal conflicting medical evidence is that provided by Dr Anderson (on behalf of the applicant) and Dr Gold (on behalf of respondent). Both medical experts structured their evidence according to well-established medical templates that are regarded as authoritative (if not normative) in the medical jurisprudence followed by this Tribunal. Dr Anderson’s clinical notes contained the self-reporting of the applicant in relation to each of the relevant criteria for PTSD.
Applicant’s Submissions
36. The applicant submitted that the events associated with the HMAS Duchess (the boat patrols) created the first stressor to support the claim that the post traumatic stress disorder he suffers from was war-caused. In particular, the applicant said that the boat patrols caused him to be frightened and scared.
37. The second stressor the applicant submitted supported his claim for post traumatic stress disorder was an event associated with the HMAS Sydney. The applicant submitted that the incident where an explosion occurred in the water that he heard below the waterline of the ship was unlike scare charges he had used before. The applicant’s evidence was that the explosion caused him to be “frightened”.
38. The third stressor the applicant submitted supported his claim for post traumatic stress disorder was the American soldier discharging his firearm in the water while he was on the flight deck of the HMAS Sydney. The applicant’s evidence-in-chief in his statement of 17 November 2003 (paragraph 16) was that he was “truly frightened” by this event.
39. The applicant contended that a hypothesis exists connecting the applicant’s post traumatic stress disorder and depressive disorder with the circumstances of his service. The applicant referred to Instrument No 3 of 1999 as amended by Instrument No 54 of 1999 (in the case of post traumatic stress disorder) and Instrument No 58 of 1998 (relating to depressive disorder).
40. The applicant submitted that these events amounted to experiencing a severe stressor within the meaning of the SoP. In particular the applicant referred to the decision of the Federal Court in Stoddart v Repatriation Commission [2003] FCA 334. The applicant also contended that these events were identifiable occurrences within the meaning of the SoP: Stonehouse v Repatriation Commission [2004] AATA 707.
41. The applicant submitted that the medical evidence of Drs Anderson and Koller supported a diagnosis of post traumatic stress disorder. The applicant then submitted that the Tribunal should find that a reasonable hypothesis had been raised connecting his operational service with his medical conditions. From this point, the applicant contended that applying the well-recognised steps in Repatriation Commission v Deledio (1998) 83 FCR 82 should lead the Tribunal to conclude that the conditions of post traumatic stress disorder and depressive disorder are war-caused under section 9 of the Act, and compensable as such.
42. The applicant contended that he had an alcohol problem that was war-caused within the meaning of the SoP Alcohol dependence or alcohol abuse: Instrument No 76 of 1998. The applicant contended that while this condition was presently in remission, it could recur at any time.
Respondent’s Submissions
43. In his closing address, the advocate for the respondent questioned whether the applicant had experienced a “severe stressor” as claimed for the purposes of the post traumatic stress disorder SoP, and referred to White v Repatriation Commission [2004] FCA 633 at [28] – [30], [32]. The respondent contended that the events relied on did not meet the objective requirements of an identifiable occurrence contemplated by the definition of “experiencing a severe stressor”. In connection with the explosion episode, the respondent contended that the applicant had been exposed to Operational Awkward exercises before (also conceded by the applicant in cross-examination), and that there was no actual or threatened death or serious injury to the applicant, or a threat to the physical integrity of in the applicant. The respondent said that as there were no threats (objectively determined), therefore there were no severe stressors that caused the applicant’s medical conditions.
44. In connection with the claim for depressive disorder, the respondent referred to a decision of the Tribunal in Hillier v Repatriation Commission [2004] AATA 897 at [65] - [67]. The respondent contended that the applicant had not experienced a severe psychosocial stressor within the depressive disorder SoP.
45. In terms of the medical evidence, the respondent submitted that the Tribunal should prefer the evidence of Dr Gold over that of Dr Anderson. The respondent referred to the fact that Dr Gold had characterised Dr Anderson’s treatment or application of the DSM-IV criteria as less rigorous, and so the Tribunal should prefer Dr Gold’s diagnosis of depressive disorder over the diagnosis of post traumatic stress disorder referred by Dr Anderson.
The Legislative Framework
46. Section 9 of the Act provides for when an injury or disease is taken to be war-caused. The expression “operational service” which appears in section 9(1)a) of the Act is defined in sections 6 to 6F of the Act. Under section 6C, a person renders operational service if he or she is, inter alia, allotted for duty in an operational area. The expression “operational area” is defined in section 5B(1) by reference to Schedule 2 of the Act. This Schedule includes in Item 8 of Column 1, the Vietnam (Southern Zone) during the period from and including 31 July 1962 to and including 11 January 1973. Further, section 7 of the Act provides that a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service: see Hillier v Repatriation Commission [2004] AATA 897 at [10].
47. 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 section 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.”
48. As the applicant has performed operational service, as defined in section 6 of the Act, the determination of whether his conditions of PTSD and depressive disorder are war-caused is to be made by applying sections 120(1) and 120(3), as affected by section 120A, of the Act. Sections 120(1) and 120(3) provide as follows:
“120 Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.”
49. Under section 120A of the Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority has made a SoP in respect of a particular kind of injury or disease, the reasonableness of a hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
“(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.”
50. According to the decision of the Full Court of the Federal Court of Australia in Repatriation Commission v Stoddart [2003] FCAFC 300, at [10] that the standard of proof to be applied by the Repatriation Commission (and on review by the Tribunal) to the question whether a disease is war-caused where a claim relates to operational service, is dealt with in sections 120(1) and (3) of the Act.
51. The Repatriation Medical Authority has devised Statements of Principles (“SoPs”) in respect of anxiety disorder and alcohol dependence or alcohol abuse pursuant to section 196B(2) of the Act. Section 120A says the reasonableness of the hypotheses must be assessed against the relevant SoPs. 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. In accordance with the decision of the Full Court in Repatriation Commission v Gorton (2001) 110 FCR 321, 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]. An SoP is brought into existence in order to comply with section 196B: Kattenberg v Repatriation Commission (2002) 73 ALD 365 at [42].
52. There was no dispute between the parties that the applicant had rendered operational service, and that subsections 120(1) and 120(3) of the Act apply. As this Tribunal said in Ahrens and Repatriation Commission [2004] AATA 943:
“[25] The Tribunal must determine that the disease or condition was war‑caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination (s120(1)). Subsection 120(3) is affected by s120A, applying to claims for pension made after 1 June 1994 where a veteran has rendered operational service. The operation of s120A depends upon whether there is in force a Statement of Principles (SoP) determined under s196B of the Act in respect of the kind of disease contracted by the applicant. Subsection 120A(3) provides that, for the purposes of subsection 120(3), an hypothesis connecting a disease contracted by a person with the circumstances of any particular service rendered by the person is to be regarded as reasonable only if there is in force an SoP that upholds the hypothesis.”
53. In cases such as the present, the approach for decision makers such as this Tribunal to take is marked by the decision of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82. Before the Tribunal proceeds to the Deledio four step approach the Tribunal must be satisfied (to a standard of reasonable satisfaction) the applicant suffers from a medical condition. The Tribunal considered this aspect next.
Diagnosis
54. 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: s120(4) of the Act. On the basis of the medical opinions before the Tribunal, it is satisfied the applicant suffers gastro-oesophageal reflux disease and depressive disorder. A diagnosis of PTSD is more problematic because it requires a “severe stressor”. As explain below the Tribunal is not satisfied any of the stressful incidents claimed by the applicant amounts to a severe stressor. The Tribunal is not satisfied that the applicant suffers from alcohol abuse or dependence as this condition has been in remission since 1988.
Application of the law to the injuries alleged to be war-caused
§ Deledio Steps
55. In Deledio the Full Federal Court summarised (at 97) the four steps the Tribunal must follow in deciding whether a disease or injury is war-caused:
“1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war‑caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
56. In Mines v Repatriation Commission [2004] FCA 1331, Gray J made these important observations about the Deledioreasoning process:
“[37] … The steps outlined in Deledio constitute a process of reasoning to be undertaken when the question arises whether a connection exists between a particular injury, disease or death and the particular operational service rendered by the veteran concerned. The first step identified in Deledio assumes that there has already been a finding that the requisite injury, disease or death exists or has occurred, and a finding that the veteran concerned rendered operational service. The first step is to identify whether the material points to a reasonable hypothesis connecting the one with the other. There cannot be such a reasonable hypothesis unless the two facts to be connected have already been identified. Their identification is not one of the steps referred to in Deledio.”
Gray J went on to say at
“ [38] Section 120(1) of the [Veterans’ Entitlements Act] appears to be based on the assumption that there will have been determined both the question whether there exists or has occurred an injury, disease or death and the question whether the relevant veteran had rendered operational service.” In this case, two sets of facts to be connected are whether the applicant has PTSD, alcohol abuse or dependence or depressive disorder and whether he has rendered operational service. The evidence before the Tribunal establishes that the applicant has medical conditions and that he rendered operational service and the Tribunal is reasonably satisfied that those things occurred. This concludes the preliminary or antecedent investigation before the first Deledio step is applied.”
The first Deledio step
57. The Tribunal must determine that the material before it gives rise to a hypothesis connecting the injury to the service rendered. The applicant’s contention is that his medical conditions of PTSD, alcohol abuse or dependence and depressive disorder are related to service. The Tribunal noted that in this case no contention is made on behalf of the applicant that his medical conditions are a result of defence service as distinct from being war-caused.
§ PTSD
58. Keeping in mind the observations of the Federal Court in Mines v Repatriation Commission, the Tribunal is satisfied that there is a hypothesis connecting PTSD with the applicant’s service. The particular events are those associated with the HMAS Duchess and the HMAS Sydney recounted earlier in the Reasons for Decision.
§ Alcohol abuse or dependence
59. Keeping in mind the observations of the Federal Court in Mines v Repatriation Commission, the Tribunal noted that the applicant had suffered from alcohol abuse or dependence after 1988. As this condition is not a current medical condition, the Tribunal did not need to consider whether there is a hypothesis connecting the applicant’s alcohol abuse with his operational service.
§ Depressive disorder
60. The Tribunal is satisfied on the evidence before it that there is a hypothesis connecting the applicant’s depressive disorder with his Vietnam service.
§ The Second Deledio Step
61. The second Delediostep is to determine the relevant SoPs. In this case, the relevant SoPs are:
· Post traumatic stress disorder: Instrument No 3 of 1999 as amended by Instrument No 54 of 1999.
· Adjustment disorder: Instrument No 57 of 1996..
· Alcohol dependence or alcohol abuse: Instrument No 76 of 1998.
· Depressive disorder: Instrument No 58 of 1998.
§ The Third Deledio Step
62. The Tribunal must then determine whether the facts as presented “fit” the SoP. Raised facts “fit” if they are consistent with the SoP: Woodward v Repatriation Commission [2003] FCAFC 160 at par 34. The Tribunal cannot make findings of fact at this point.
§ The Third Deledio Step: PTSD
63. Relevant excerpts from Instrument No 3 of 1999 as amended by Instrument No 54 of 1999 (post traumatic stress disorder) are as follows:
“5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder… 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
“Experiencing a severe stressor” is defined in the Instrument:
“‘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.”
64. Mr Clutterbuck said the events raised by the applicant fit the SoP as they are “severe stressors”. In particular he cited the decision of the Federal Court in Stoddart v Repatriation Commission [2003] FCA 334.
“Accepting the applicant’s story, the questions for inquiry become:
Do any of the events qualify as a “severe stressor”?
If so, did the “severe stressor” take place prior to the clinical onset of post traumatic stress disorder?”
65. The Tribunal considered whether the events met the definition of “experiencing a severe stressor”. The test is a composite objective and subjective test: Stoddart v Repatriation Commission [2003] FCA 334, Woodward v Repatriation Commission [2003] FCAFC 160 at [111], [112], and [114]. In other words the event is interpreted objectively, but the feelings of anxiety or stress is a matter to be interpreted from the applicant’s perspective.
66. The Tribunal accepts the applicant experienced, witnessed or was confronted with events in the sense intended in the SoP. The critical issue here is whether the relevant event or events involved “actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.”
67. In Woodward, the Federal Court cited with approval the decision of Mansfield J in Stoddart v Repatriation Commission (2003) 197 ALR 283 where his Honour said:
“[50] In my judgment, the meaning of the word ‘threat’ as used in the definition of ‘experiencing a severe stressor’ does not require the construction or meaning contended for by the respondent and accepted by the Tribunal. The adjectival clause ‘that involved actual or threat of death or serious injury …’ explains the nature of the event or events which must be experienced. It contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perceptions of events which, judged objectively, do not in fact fall within the adjectival clause. But it does not follow that the ‘threat’ there referred to must involve events which judged objectively and with full information involve an actual threat of death or serious injury. That construction would appear to go beyond the purpose of SoPs. It would involve the Repatriation Medical Authority in the two SoPs being interpreted as saying (for example) that on medical-scientific evidence PTSD cannot be related to operational service where events actually experienced, and which a person with the knowledge and in the circumstances of a particular claimant could reasonably lead to that person perceiving a threat of death or serious injury or to physical integrity, did not, judged objectively and with full knowledge of all the circumstances, in fact amount to such a threat. Such an interpretation would lead to excluding from the scope of the word ‘threat’ a range of circumstances, some of which are referred to above, which commonsense indicates are matters not directly within medical-scientific evidence. That is, if a threat of serious injury or death is perceived by a claimant from actual events experienced in circumstances where, judged objectively with the knowledge and in the circumstances of the claimant, it was reasonable to perceive the threat, I do not understand it to be a medical-scientific opinion that no reasonable hypothesis can be raised connecting the condition resulting from those events with them. The definition of ‘sound medical-scientific evidence’ in s 5AB(2) also indicates that the Repatriation Medical Authority would not intend to impose a prescriptive exclusion of the kind which would result from the interpretation of the SoPs which the Tribunal adopted.”
68. The Full Court in Woodward (at [137] ff) adopted the definition of “threat” used by Mansfield J in Stoddart. The Tribunal understands there does not need to be an actual threat judged objectively and with full knowledge of all the circumstances. As the Full Court observed (at para 139):
“…the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury (etc), if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it, was capable of conveying, and did convey, the risk of death or serious injury. In other words, “experiencing” should be construed as having at least this partially subjective connotation.”
69. Do the boat patrols associated with the HMAS Duchess amount to experiencing a severe stressor? Objectively, the applicant was engaged in a procedure designed to deter attacks from enemy divers when he was the driver of a patrol boat. It is worth examining his statement where he recounts the incident (Exhibit 2). The applicant says:
“Whilst on the HMAS Duchess we dragged 6 strands of barbed wire behind boats which were travelling around the ship which was at anchor. This was to prevent divers. We dropped scare charges into the water to prevent attack from the divers with plastic or mines either floating or placed on the hull. The barbed wire caught on the bottom but we could not know what they were. We were then required to pull up the wire by hand so that we could see it and see what had happened. I remember quite well being very scared and frightened at that time wondering what happened if they got to the ship as we were told by the officers that we would be a prime target.”
70. It is clear from his statement that the driving of the patrol boats by themselves did not distress him. Rather he was scared by the possibility of floating mines or limpet mines. Objectively, the event said to constitute the threat must involve an actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity (factor 2(A)(i) of the PTSD SoP refers). The applicant’s evidence in chief was that he was scared and frightened whilst deployed in the boat patrols. In the opinion of the Tribunal, the boat patrols events cannot be relied on to satisfy a diagnosis of PTSD because on his own version of events he did not experience feelings of “intense fear, helplessness or horror” (factor 2(A)(ii) of the PTSD SoP refers). Even if the Tribunal were to equate being scared and frightened with intense fear, helplessness or horror, this represents the subjective limb of the inquiry whether the applicant has been exposed to a traumatic event. It is still necessary for the Tribunal to be satisfied that the applicant satisfies the objective limb of factor 2(A)(i). The inquiry then is, from what the Full Court said in Woodward (at [139]), judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it, were the boat patrols capable of conveying, and did convey, the risk of death or serious injury? In the opinion of the Tribunal, the boat patrols were not in and of themselves a “traumatic event” within factor 2(A) and they did not involve a threat of death or serious injury to the applicant or others around him.
71. What then of the possibility of limpet mine or floating mine explosion? Can this qualify as “experiencing a severe stressor”? The Tribunal does not think it can, because the mere possibility of some terrible event occurring at some point is not an “event” in its own right.
72. Accordingly, the Tribunal is not satisfied on the evidence before it that the boat patrols qualified as a traumatic event that involved an actual or threatened death or serious injury to the applicant, or a threat to the physical integrity of the applicant or others with him, such that his response involved intense fear, helplessness, or horror.
The Third Deledio Step: Adjustment disorder
73. Relevant excerpts from Instrument No 57 of 1996 (adjustment disorder) provide as follows:
“Kind of injury, disease or death
2(b) For the purposes of this Statement of Principles, “adjustment disorder” means the development of clinically significant emotional or behavioural symptoms in response to an identifiable psychosocial stressor or stressors, which occur within the three months after the onset of the stressor(s), which do not persist for more than six months after cessation of the stressor(s) and which do not meet the diagnostic criteria for another specific clinical psychiatric disorder, attracting ICD code 309.0, 309.1, 309.24, 309.28, 309.3, 309.4 or 309.9. The specific diagnostic criteria for making a diagnosis of adjustment disorder as set out in the DSM-IV are as follows (APA 1994, p.626-627):
A.The development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within three months of the onset of the stressor(s).
B.These symptoms or behaviours are clinically significant as evidenced by either of the following:
(1)marked distress that is in excess of what would be expected from exposure to the stressor
(2)significant impairment in social or occupational (academic) functioning
C.The stress related disturbance does not meet the criteria for another specific Axis I disorder and is not merely an exacerbation of a preexisting Axis I or Axis II disorder.
D.The symptoms do not represent Bereavement.
E. Once the Stressor (or its consequences) has terminated, the symptoms do not persist for more than an additional six months.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting adjustment disorder or death from adjustment disorder with the circumstances of a person’s relevant service are:
(a)experiencing an identifiable psychosocial stressor or stressors within the three months immediately before the clinical onset of adjustment disorder;
Other Definitions
7. “psychosocial stressor(s)” means an injury, disease or occurrence that evokes in an individual feelings of substantial anxiety or stress (for example being shot at, being involved in a motor vehicle accident, experiencing a failure or loss such as divorce; or receiving a diagnosis of a disabling medical condition such as a malignancy or chronic cardiorespiratory disorder);”
74. The applicant contended that he suffered an adjustment disorder at about the time he started consuming alcohol excessively, which he said was around about the time of the boat patrols associated with the HMAS Duchess. The applicant contended that the relevant psychosocial stressors were those stressors he experienced when he was engaged in the boat patrols and also the two events on board the HMAS Sydney. The applicant contended that the behavioural symptom he developed in response to the stressors was his desire to consume alcohol.
75. The Tribunal noted that neither of Drs Anderson or Koller diagnosed adjustment disorder in relation to the applicant. It is only Dr Gold (called by the respondent) who has made a diagnosis of adjustment disorder with anxiety.
76. The Tribunal was of the opinion that the three events described by the applicant were “occurrences” within the definition of psychosocial stressors. The evidence before the Tribunal demonstrates that the applicant satisfies the temporal requirement in Criterion A since he began drinking alcohol excessively after the boat patrols events. The clinical significance of the symptoms and behaviours of the applicant (Criterion B) requires either marked distress that is in excess of what would be expected from exposure to the stressor or significant impairment in social occupational (academic) functioning. In this case, the evidence of the applicant was that he did not report marked distress nor did he experience significant impairment in social or occupational functioning. In his evidence-in-chief, the applicant said that he was able to continue performing his jobs in the Navy even though he had been warned by his superiors about his alcohol consumption. There was insufficient evidence of significant impairment in social functioning to justify the Tribunal concluding that the applicant had satisfied Criterion B. Accordingly, the Tribunal was not satisfied that the applicant’s circumstances fit or are consistent with adjustment disorder.
The Third Deledio Step: Alcohol dependence or abuse
77. As stated earlier in these Reasons for Decision, the claimed condition of alcohol dependence or abuse has been in remission since 1988. The Tribunal did not need to consider whether the applicant’s case fitted the SoP
The Third Deledio Step: Depressive disorder
78.Extracts from the relevant SoP (Instrument No 58 of 1998) are set out next:
“Kind of injury, disease or death
2(b) For the purposes of this Statement of Principles, “depressive disorder” is defined as:
(A) the presence of major depressive disorder, dysthymic disorder or depression not otherwise specified where:
(i)major depressive disorder is either a single episode or recurrent episode as defined in DSM-IV; and
(ii)dysthymic disorder, as defined in DSM-IV, is a chronic mood disturbance, of at least two years duration, involving depressed mood, or loss of interest or pleasure, with manifestation of the symptoms used to diagnose major depression such as neurovegative signs, social withdrawal, cognitive impairment and suicidal ideation; and
(iii)depression not otherwise specified, such as minor depressive disorder and recurrent brief depressive disorder, as defined in DSM-IV, includes disorders with depressive features that do not meet the DSMIV diagnostic criteria for other specific mood disorders,
attracting ICD-9-CM code 296.2, 296.3, 300.4 or 311.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder or death from depressive disorder with the circumstances of a person’s relevant service are:
(b)experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder; or
(c)having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder; or
(d)having a major illness or injury within the two years immediately before the clinical onset of depressive disorder;
8. “severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.”
79. Dr Anderson said in his 10 January 2003 and 24 January 2003 reports (forming part of the T-documents) that the applicant “has had some depression”. The same diagnosis was repeated in his report of 12 May 2003. Dr Anderson did not make a finding of current depression. Dr Gold opined in her report of 25 February 2004 that the applicant’s symptoms satisfied the “Statement of Principle for Depressive Disorder at the time of his alcohol dependency and following his cessation of alcohol usage.” In her oral evidence, Dr Gold opined that there was no connection between any adjustment disorder and any depressive disorder. Dr Gold opined that the applicant’s alcohol consumption did not cause his depressive disorder.
80. Against this backdrop of the medical evidence, the Tribunal went on to consider whether there was any nexus between the medical conditions of the applicant and his operational service. Factor 5(a) requires that the applicant must have experienced “a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder”.
81. In White v Repatriation Commission [2004] FCA 633 at [27] – [31] the Federal Court clarified the test in relation to severe psychosocial stressors. Essentially, the test has both objective and subjective elements akin to the test for severe stressors. Spender J said (at [28-29], [30]):
“The reference to ‘an identifiable occurrence’ is objective…The reference to ‘experiencing’ a severe psychosocial stressor has a subjective element …Both aspects are relevant and necessary.”
82. Spender J also referred to the objective/subjective test in Stoddart with approval (at [29]).
83. The task for the decision-maker (including this Tribunal) is predicated by the following schema (see Stonehouse v Repatriation Commission [2004] AATA 707 at [16]):
· Is there was an identifiable occurrence?
· Is there was an identifiable occurrence the nature of which is such as to evoke the kind of feelings (substantial distress) that one would expect in a person like the applicant exposed to that occurrence; and
· Whether the person actually experienced those feelings.
84. The applicant contended that this schema applied in his favour. The Tribunal accepted, as a first step, that the three events were quite specific and not vague or indeterminate and so they amounted to “identifiable occurrences”. The second step is whether the nature of those identifiable occurrences is such as to evoke feelings of substantial distress in a person such as the applicant when exposed to those occurrences. The third step is whether the applicant experienced feelings of substantial distress. In Gray v Repatriation Commission [2004] AATA 224, SP Estcourt QC DP referred to what has been termed the second step as embodying an objective frame of analysis and the third step as contemplating a subjective frame of analysis (at [26] and [27]). To the knowledge of the Tribunal, the phrase “substantial distress” has not been the subject of close judicial consideration, although the phrase does appear in many decisions of this Tribunal and the Federal Court.[1]
[1] In other legislative contexts such as section 45 of the Trade Practices Act 1974 (Cth), ‘substantial’ means real, of substance, not ephemeral or nominal; it is used in a relative sense as well as an absolute sense: Tillmanns Butcheries Pty Ltd Australasian Meat Industry Employees’ Union (1979) 42 FLR 331 at 348 per Deane J. Deane J also said that the word ‘substantial’ is susceptible of ambiguity and that is calculated to conceal a lack of precision (at 348).
85. In relation to the second step, are the three relevant identifiable occurrences objectively capable of evoking feelings of substantial distress in a person in the position of the applicant? The Tribunal is not persuaded that they can for the reasons that these occurrences (1) are not at the same class or genus as the particular yet non-exhaustive list of occurrences in the SoP; (2) do not equate to the severity of events in the SoP.
86. In relation to the third step, the subjective state of mind or experience of the applicant, the evidence of the applicant in written form (Exhibits 2 and 3) and also his oral evidence pointed to the applicant experiencing fear but not distress, never mind substantial distress. Accordingly, the Tribunal is not satisfied that the applicant experienced a severe psychosocial stressor as contemplated by the SoP.
87. The Tribunal considered next Factor 5(c) of the SoP, which refers to a person in the position of the applicant having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder. As stated earlier in these Reasons for Decision, the only medical evidence of depressive disorder comes from Dr Gold, whose evidence has been recounted above. Dr Gold did not attribute in the applicant’s depressive disorder to a clinically significant psychiatric condition. Dr Gold referred to the applicant developing a concurrent social phobia, but this does not fit the SoP which requires a clinically significant psychiatric condition to precede the clinical onset of depressive disorder. Accordingly, the Tribunal was not satisfied that the applicant’s circumstances were consistent with Factor 5(c) of the SoP.
88. The Tribunal considered next Factor 5(d) of the SoP, which refers to a person in the position of the applicant having a major illness or injury within the two years immediately before the clinical onset of depressive disorder. In turn, clause 8 defines “major illness or injury” to mean “a serious illness or injury, that is life threatening, or seriously disabling”. The SoP requires a major illness or injury to predate the clinical onset of depressive disorder. In this case, there is no evidence to suggest that the applicant sustained a serious illness that was life-threatening, or a serious injury that was life-threatening, or that he sustained a serious illness or injury that was seriously disabling. The applicant’s own evidence to the Tribunal was that he was able to continue to do his job in the Navy despite his alcohol consumption. Dr Gold connected the timing of the applicant’s alcohol dependency with his development of depressive disorder. It must be said, however, that Dr Gold’s evidence on the cause and effect of the depressive disorder diagnosed for the applicant is not entirely clear, but this is not decisive to the outcome of this appeal. Based upon the evidence before it, the Tribunal was not satisfied that the applicant suffered a serious illness that was life-threatening, or a serious injury that was life-threatening, or that he sustained a serious illness or injury that was seriously disabling such that he suffered a depressive disorder as a consequence. For these reasons, the Tribunal determined that the circumstances of the applicant did not fit Factor 5(d) of the SoP.
The fourth Deledio step: findings of fact
89. As the Tribunal has determined that none of the hypotheses fit within the SoP templates, it is not necessary for the Tribunal to proceed to engage in any fact-finding.
Tribunal’s Conclusion
90. While the medical evidence before the Tribunal establishes that the applicant has a depressive disorder, this condition is not service-related in the sense required by the Act. The applicant’s claim fails.
Tribunal’s Order
91.The Tribunal decides to affirm the decision under review.
I certify that the 91 preceding paragraphs are a true copy of the reasons for the decision herein of Mr SC Fisher, Member
Signed: Camille Banks
AssociateDate/s of Hearing 30 September 2004
Date of Decision 30 November 2004
For the Applicant Mr R Clutterbuck of Counsel
For the Applicant Gilshenan & Luton Lawyers
For the Respondent Mr J Kelly, Departmental Advocate
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