Burgess and Repatriation Commission

Case [2002] AATA 702

DECISION AND REASONS FOR DECISION [2002] AATA 702

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2000/506

VETERANS' APPEALS  DIVISION       )          
           Re      TERRENCE EDWARD BURGESS        
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Ms G Ettinger Senior Member     

Date19 August 2002

PlaceSydney

Decision      The Tribunal affirms the decision under review of the Veterans' Review Board of 29 February 2000 which affirmed the decision of the Repatriation Commission of 10 August 1998 to find that the Post Traumatic Stress Disorder ("PTSD") as claimed by Mr Terrence Edward Burgess the Applicant in these proceedings was not war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.      

[SGD] Ms G Ettinger
  Senior Member
catchwords
Veteran - operational service – whether PTSD – history of alcohol abuse pre-service - exploding of scare charges aboard HMAS Sydney – whether Veteran suffers from PTSD - whether stressor met – tests for PTSD and stressor not met – decision affirmed

legislation
Veterans' Entitlements Act 1986 ss 9, 13(1), 120A, 120(1), 120(3)
Repatriation Medical Authority Statement of Principle Instrument No.15 of 1994 Concerning Post Traumatic Stress Disorder (as amended by Instrument No. 225 of 1995)
Repatriation Medical Authority Statement of Principle Instrument No.5 of 1994 Concerning Psychoactive Substance Abuse or Dependence
American Psychiatric Association 1995 Diagnostic and Statistical Manual of Mental Disorders, 4th edition, Washington DC
case law
Repatriation Commission v Budworth (2001) 66 ALD 285
Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Deledio (1998) 83 FCR 82
Benjamin v Repatriation Commission  [2001] FCA 1879; (2001) 34 AAR 270
ReBenjamin and Repatriation Commission [2000] AATA 680; (2000) 61 ALD 565
Repatriation Commission v Binding [1999] FCA 974
Binding v Repatriation Commission (AAT 12886, 15 May 1998)
Re Cranage and Repatriation Commission (2000) 63 ALD 312
Re Mulvany and Repatriation Commission [2000] AATA 535; (2000) 59 ALD 602
Powell v Repatriation Commission [2000] AATA 385
Davenport v Repatriation Commission (Federal Court, 5 August 1997, 918/97)
Repatriation Commission v Cooke (1998) 90 FCR 307
Jehn v Repatriation Commission [2000] AATA 484
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Keeley (2000) 98 FCR 108

REASONS FOR DECISION

19 August 2002       Ms G Ettinger - Senior Member               

  1. The decision under review before the Administrative Appeals Tribunal ("the Tribunal") was the decision of the Veterans' Review Board of 29 February 2000 (T22) which affirmed the decision of the Repatriation Commission of 10 August 1998 (T18) to find that the Post Traumatic Stress Disorder ("PTSD") as claimed by Mr Terrence Edward Burgess the Applicant in these proceedings was not war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986 ("the Act").

  2. The Applicant was represented by Mr N Dawson of counsel and the Respondent Repatriation Commission by its advocate Mr S Modder.  The hearing in 2001 was adjourned at the request of the parties and my agreement, to await the decision of the Full Court of the Federal Court in Repatriation Commission v…

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Details
AGLC
Burgess and Repatriation Commission [2002] AATA 702
Case
[2002] AATA 702
Decision Date

CaseChat Overview and Summary

In the case of Burgess v Repatriation Commission, the applicant, Mr Burgess, sought a review of the Commission's decision to reject his claim for a war-caused condition of Post Traumatic Stress Disorder (PTSD). The Federal Court was required to determine whether Mr Burgess's PTSD was caused by his operational service during the Vietnam War. The case involved medical evidence from two psychiatrists, Dr Lucire and Dr Pusic, as well as a review of Mr Burgess's military service records.

The primary legal issue before the court was whether Mr Burgess's PTSD was caused by his war service. The court examined the medical evidence and determined that Mr Burgess's PTSD was not war-caused. Dr Pusic diagnosed Mr Burgess with PTSD, but Dr Lucire disagreed, attributing Mr Burgess's symptoms to alcohol abuse. The court found that the stressor for Mr Burgess's PTSD did not meet the criteria for a war-caused condition as outlined in the Repatriation Medical Authority's Standard Operating Procedures. The court also considered Mr Burgess's history of alcohol abuse, which predated his military service, and noted that it had likely contributed to his PTSD symptoms. Ultimately, the court concluded that the stressor for Mr Burgess's PTSD was not met, and therefore, his condition was not war-caused.

The court affirmed the decision of the Repatriation Commission to reject Mr Burgess's claim for a war-caused condition of PTSD. The court found that the medical evidence did not support a diagnosis of war-caused PTSD, and that Mr Burgess's alcohol abuse had likely contributed to his symptoms. The court emphasised the importance of applying the correct legal tests and medical criteria in determining whether a veteran's condition is war-caused. The decision highlights the need for thorough medical evidence and careful consideration of a veteran's history and circumstances in making a determination under the Veterans' Entitlements Act 1986.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Modder referred Mr Burgess to T10, a letter in which he had recounted the sighting of a corpse floating by the ship, and the advice he had been given not to touch the body because of the apprehension that it was booby trapped. Mr Burgess explained that he now realised this had not occurred on his particular trip, but that he had been advised in preparation of his claim to report any threats to which the ship itself had been subject. MEDICAL EVIDENCE The only medical reports before the Tribunal were those of psychiatrists Dr Pusic and Dr Lucire. A report of an examination by Dr A Dinnen, also a psychiatrist, prepared in 2000, was not tendered to the Tribunal and was not relied on by the Applicant.medical reports of dr y lucire - psychiatrist The reports of Dr Lucire dated 1 August 2000 and a supplementary report date stamped 1 December 2000 by the Respondent, were before the Tribunal as Exhibits R2 and R3. Dr Lucire's diagnosis and opinion in Exhibit R2 was as follows: "Mr Burgess is an alcoholic and has been since 1967. His memory for a lot of things is impaired so we have to rely on the records of others. Anxiety is at its worst immediately after the event that caused it.This seems to be retrospective attribution of symptoms of alcohol abuse to an event in 1970 when he, momentarily, believed his ship might be at risk. I doubt it was at risk and I think Mr Burgess knows that as well as he can, given his memory." In her report at Exhibit R3, she added:"I do not accept that events were as he said they were. I do not accept that he has an anxiety disorder consequent on any aspect of war service. His anxiety-like symptoms are those of alcohol abuse and its aftermath." Dr Pusic's reports of 16 December 1996 (T8) and 9 February 1998 (T15) were before the Tribunal. Dr Pusic was the treating psychiatrist and opined as follows at T8:"I thought that Mr Burgess did display symptoms of Post Traumatic Stress Disorder as a result of his experiences in Vietnam. He does also qualify for a diagnosis of Alcohol Dependence. It appears that Mr Burgess pattern of Alcohol Abuse was established prior to his service in Vietnam but his PTSD symptoms would have significantly contributed in the maintenance of his Alcohol Abuse. Mr Burgess continues to suffer from significant symptoms of PTSD and he does display restricted social functioning. Mr Burgess would benefit from ongoing psychotherapeutic counselling. I have not prescribed him any psychotropic medication. Mr Burgess would benefit from inpatient treatment for his Alcohol Dependence and PTSD symptoms." In his later report dated 9 February 1998, Dr Pusic, who had examined the Applicant on 2 May 1997, wrote:"He continues to suffer from Post Traumatic Stress Disorder as a result of his experiences in Vietnam. He does also suffer from Alcohol Dependence." There were a number of researchers' reports before the Tribunal. At the resumed hearing on 2 July 2002, Mr Dawson drew to my attention a comparison of two reports of Commodore Mulcare (RAN Rtd), prepared for Writeway Research Services. The first dated 31 October 2000 had been tendered at the previous Tribunal hearing, and was before the Tribunal as Exhibit R7. Both contained some reproduced notes which had been written by Captain D Dalton (RAN Rtd). The most recent report, dated 11 November 2000, had been prepared for another matter, and only paragraph 13 of that report which reproduced a larger section of Captain Dalton's notes was tendered at this hearing. It is recorded as Exhibit A2, and is a fuller account of HMAS Sydney at the time when Captain Dalton was the ship's Engineering Officer between March 1968 and September 1970.

Decision

Reasons for decision

Captain Stevenson also attached to Exhibit R4, a page of 'Proceedings for HMAS Sydney' which confirmed that the ship was at anchor in Vung Tau Harbour on 23 and 24 November 1972. The two relevant paragraphs 18 and 19, described the activities on 23 November 1972 as off-loading defence aid cargo and the Captain entertaining the Australian Ambassador to Saigon and the Commander Australian Army Group Vietnam to luncheon on board ship. The activities on 24 November 1972 described further off-loading of cargo and praise of the "willing and continuous efforts of everyone on board" after which the ship set sail for Hong Kong.SUBMISSIONS AND CONCLUSIONS In determining whether Mr Burgess' PTSD was war-caused pursuant to section 9 of the Act, I had to take into account the evidence, submissions, case law, and relevant SoPs to make the correct and preferable decision. I also considered his alcohol dependence as this had been commented on by Drs Lucire and Pusic and the Veterans' Review Board, and had also arisen before this Tribunal. I noted however that no submissions were made about the issue of alcohol dependence at the final hearing in this matter. I was mindful that Mr Burgess had served his country in the Royal Australian Navy from 2 May 1964 to 1 May 1973 (T22/105). His eligible war service (which was also operational service), was from 1 November 1972 to 30 November 1972 in Vietnam. He also rendered defence service as defined in Part IV of the Act from 7 December 1972 to 1 May 1973. Mr Burgess served on HMAS Sydney and was in Vung Tau Harbour on 23 and 24 November 1972. As Mr Burgess had served on operational service it was appropriate in considering whether his claimed conditions of PTSD and alcohol dependence were war-caused, to apply the principles enunciated by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261, and approved and summarised by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82. I had to first determine, applying the tests in DSM-IV, whether Mr Burgess suffered PTSD, and further whether he met the requirements as set out in the relevant Repatriation Medical Authority SoPs, and whether the conditions were war-caused pursuant to the legislation. I moved then to consider whether Mr Burgess suffers from PTSD, and if so, whether it was war-caused.whether mr burgess suffers from ptsd In considering whether the Applicant suffers PTSD which is war-caused, I found that the only medical evidence before the Tribunal was that of Drs Lucire and Pusic, both psychiatrists. Both medical practitioners recognised Mr Burgess' alcohol dependence, Dr Lucire stating that it dated back to 1967 (Exhibit R2), with Dr Pusic opining it appeared that Mr Burgess' pattern of alcohol abuse was established prior to his service in Vietnam (T8). Dr Pusic also considered that Mr Burgess suffered PTSD, and that his PTSD symptoms would have significantly contributed in the maintenance of his alcohol abuse. As to PTSD; I was aware from the evidence before me that the stressful event as claimed, occurred in 1972, and noted that Dr Lucire had incorrectly recorded 1970 as the date when Mr Burgess believed his "ship might be at risk". Dr Lucire did refer to Mr Burgess having an impaired memory which he also told me at the Tribunal, so it is possible that Mr Burgess gave her the wrong reference year. I have not accorded that error any weight.

Ratio Decidendi

Legal Principle Established

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