Cameron and Repatriation Commission (Veterans' entitlements)
[2022] AATA 3807
•11 November 2022
Cameron and Repatriation Commission (Veterans' entitlements) [2022] AATA 3807 (11 November 2022)
Division:VETERANS' APPEALS DIVISION
File Number: 2020/1324
Re:Malcolm Cameron
APPLICANT
AndRepatriation Commission
RESPONDENT
Decision
Tribunal:Senior Member Dr M Evans-Bonner
Date:11 November 2022
Place:Perth
The Reviewable Decision of the Veterans’ Review Board dated 10 December 2019 to “affirm the decision under review regarding [Mr Cameron’s] Post Traumatic Stress Disorder” (PTSD), is set aside and the matter is remitted to the Respondent for reconsideration with the direction that Mr Cameron’s PTSD is defence caused.
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Senior Member Dr M Evans-Bonner
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ entitlements – Veterans’ Entitlements Act – Statement of Principles – eligibility for an increase in pension – post-traumatic stress disorder (PTSD) – whether connected to service – peacetime injury – decision under review set aside and remitted with a direction that the Applicant’s PTSD is defence caused – power imbalance between the veteran and the Respondent both legally and financially – recommendations for reform suggested to address power imbalance and to assist veterans in similar proceedings
LEGISLATION
Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth)
Veterans’ Entitlements Act 1986 (Cth) ss 70, 70(5)(a), 70(5)(d), 120(4), 120B(3), 196B, 196B(14)
CASES
Border v Repatriation Commission (No 2) [2010] FCA 1430
Gilkinson v Repatriation Commission [2011] FCAFC 133
Kattenberg v Repatriation Commission [2002] FCA 412
SECONDARY MATERIALS
Repatriation Medical Authority, Statement of Principles concerning Posttraumatic Stress Disorder No. 83 of 2014 (Repatriation Medical Authority, 24 September 2018)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
11 November 2022
The application
Mr Cameron has applied to this Tribunal for a review of part of a decision of the Veterans’ Review Board (VRB) dated 10 December 2019 (T40.2) (Reviewable Decision).
The decision that Mr Cameron appealed to the VRB was a determination made by a delegate of the Department of Veterans’ Affairs (Department) dated 7 March 2019 (T24). That determination denied acceptance of his claim for a disability pension based on post-traumatic stress disorder (PTSD) and alcohol use disorder (AUD).
Mr Cameron was partly successful in his appeal to the VRB. On 10 December 2019, the VRB affirmed the determination with respect to PTSD, but set it aside with respect to AUD. The VRB recognised that his AUD was defence caused (T40.2).
It is the VRB’s affirmation of the 7 March 2019 determination with respect to PTSD that Mr Cameron is appealing to this Tribunal.
The issue
The issue before me is whether I am reasonably satisfied (s 120(4) of the Veterans’ Entitlements Act 1986 (Cth) (VEA)) that Mr Cameron’s PTSD is due to his defence service (defence caused) under the relevant provisions of the VEA and the applicable Statement of Principles.
Mr Cameron is in receipt of a partial pension, but success in this application will result in the matter being remitted to the Respondent to assess a further increase in his pension.
submissions
Mr Cameron claims that he suffered a category 1A stressor that caused his PTSD when he fell down a mine shaft in July 1988 whilst on a night-time navigation exercise (Falling Incident). At that time, he was completing a training course to achieve the rank of corporal. Additionally, or alternately, Mr Cameron submitted that during another training exercise, in 1992, when he awoke, he had a red texta (marker pen) mark on his neck which further exacerbated his hypervigilance and choking nightmares of having his throat cut (Red Texta Incident).
The Respondent accepts that Mr Cameron suffers from PTSD but contends that I should not be reasonably satisfied that it was due to the Falling Incident or the Red Texta Incident. After Mr Cameron’s evidence at the hearing, the Respondent accepted that the Falling Incident occurred. However, the Respondent submitted that it was insufficient to constitute a category 1A stressor. Relying on the evidence of Dr Jonathan Spear, Consultant Psychiatrist, the Respondent submitted that the evidence supports a finding that Mr Cameron’s PTSD arose from stressors after his discharge from military service, for example, because of a workplace accident which occurred in February 1996 and therefore that Mr Cameron’s PTSD is not defence caused.
The hearing
This application was heard by Microsoft Teams on 6 July 2022 and 7 July 2022. Mr Cameron was represented by Mr D Dixon who was formerly a Senior Advocate at the RSL, but who has now retired and appeared pro-bono for Mr Cameron. I sincerely thank Mr Dixon for his efforts in assisting Mr Cameron pro-bono. The work of advocates such as Mr Dixon is extremely important to veterans’ and is to be commended. The Respondent was represented by Ms L Cooper from The Australian Government Solicitor.
I admitted the following documents into evidence at the hearing, with the caveat that the parties needed to draw the relevant documents to my attention that they sought to rely on:
(a)Section 37 T-Documents, labelled T1 to T44.3, comprising pages 1 to 473 (Exhibit 1); and
(b)Supplementary Documents, labelled ST1-ST16 (excluding ST16, pages 2116-2122), comprising pages 474-2122 (Exhibit 2).
Mr Cameron gave evidence and was cross-examined on 6 July 2022.
The Respondent called Dr Spear, who gave evidence on 7 July 2022 and was cross-examined.
Legal framework
Section 70 of the VEA provides that where a member of the Defence Force is incapacitated from a defence caused injury or disease, the Commonwealth is liable to pay a pension by way of compensation to the member in accordance with, and subject to, the provisions of the VEA.
Subsection 70(5)(a) of the VEA provides that an injury or a disease shall be taken to be defence caused if it “arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member”. Subsection 70(5)(d) of the VEA, in summary, provides that the death or incapacity of a member will be defence caused where “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”.
As was explained by Perram J in Gilkinson v Repatriation Commission [2011] FCAFC 133 at [10], s 196B of the VEA was introduced by the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth).
Section 196B(14) of the VEA assists in the interpretation of whether a factor causing or contributing to an injury or disease is related to service where there is a Statement of Principles in place. In Kattenberg v Repatriation Commission [2002] FCA 412 at [9], Emmett J explained:
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.
The relevant subparagraphs of s 196B(14) of the VEA provide:
(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
…
(d)it was contributed to in a material degree by, or was aggravated by, that service; or …
Subsection 120(4) of the VEA provides that the Commission (and in this application the Tribunal standing in the shoes of the Commission), in making this decision, should decide the matter to its reasonable satisfaction.
Subsection 120B(3) of the VEA relevantly provides:
(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.
The relevant Statement of Principles is the Statement of Principles concerning Posttraumatic Stress Disorder No. 83 of 2014 (SOP).
Clause 5 of the SOP states that:
Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
The factors should be determined with reference to “sound medical-scientific evidence”. Specifically, clause 4 of the SOP states the “Basis for determining the factors”:
On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that posttraumatic stress disorder and death from posttraumatic stress disorder can be related to relevant service rendered by veterans or members of the Forces under the VEA …
Clause 6 of the SOP then provides that:
The factor that must exist before it can be said that, on the balance of probabilities, posttraumatic stress disorder … is connected with the circumstances of a person’s relevant service is:
(a)experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder; …
Clause 9 of the SOP provides the following definition:
For the purposes of this Statement of Principles:
“a category 1A stressor” means one of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured; …
The definition of “a category 1A stressor” was considered by Reeves J in Border v Repatriation Commission (No 2) [2010] FCA 1430 (Border) at [50]:
The definition of “a category 1A stressor” makes no express mention of the type of feelings experienced by the veteran. To the contrary, it simply states that such a stressor “means one or more of the following severe traumatic events”. Furthermore, whilst subpara (a) of the definition incorporates the experience of the veteran in the event by defining it as “experiencing a life-threatening event”, the other two subparas – (b) and (c) – focus on the inherent nature of the event concerned rather than the feelings or emotions engendered by it.
Relevantly, with respect to “experiencing a life-threatening event”, Reeves J explained, at [67]:
The effect of the event and not the threat itself that has to be assessed. Moreover, it is the veteran’s perception of the event that is critical, relevantly his or her perception that it posed a threat of death. If that perception was a reasonable one, it constitutes a life-threatening event within the terms of subpara (a). That perception will be a reasonable one if, judged objectively, from the point of view of a reasonable person in the position of, and with the knowledge of, the veteran, it was capable of, and did convey the threat of death. Unlike with subparas (b) and (c), this is a mixed objective and subjective test. Since there will be a very wide range of reactions to any event involving a threat of death, this test is not to be applied in an unduly restrictive manner. Thus, while at one extreme a totally irrational or baseless reaction will be excluded, it is necessary to be more open to acceptance as one moves across the spectrum of possible reactions. Furthermore, the question is whether the event might or was capable of giving rise to the perception of the threat of death, not whether it did. For this reason, the veteran’s conduct after the event is irrelevant to the assessment. So, too, is any information not known to the veteran which showed, objectively, that the event did not pose a threat of death, eg being threatened with a gun that was in fact unloaded.
Mr cameron
Mr Cameron enlisted as a recruit in the army in February 1985 and was discharged in February 1995 (T3/284-285).
Mr Cameron’s claim
Mr Cameron made a claim for a disability pension, which was received by the Department on 28 March 2018. In his claim form Mr Cameron stated that he was unable to work due to his mental illness and stated that he was “unemployable” (T10.1). He described that he was claiming for “mental health problems” (T9/305) and described symptoms of having “nightmares from traumas”, anxiety, hypervigilance, trust issues and depression. He stated experiencing the loss of two marriages, stuttering, twitching, avoiding social situations, issues with personal space and difficulties using public transport because of paranoia, anxiety and hypervigilance.
Mr Cameron stated in his claim form that he first noticed his symptoms in 1989 (T9/305).
In answer to the question, “how do you believe your service caused, contributed to, or aggravated this disability?”, Mr Cameron stated “traumas from military exercises and being ridiculed singled out removed from aircrafts due to CZE [combat zone exempt] medical downgrading” (T9/305).
Consultant Psychiatrist, Dr Kevin O’Daly, who treated Mr Cameron for approximately three years from 2018, stated a diagnosis of “post traumatic stress disorder” in the “medical diagnosis” section of the form. The basis for the diagnosis was stated as “chronic anxiety, avoidance of social settings, flashbacks, nightmares”. Dr O’Daly stated that Mr Cameron first consulted him for the condition in 2018 (T9/305).
Mr Cameron believes that the Falling Incident was the cause of his PTSD. However, he also highlighted other incidents that he believed negatively impacted his mental health and contributed to his PTSD, including being subject to negative treatment after being medically downgraded and the Red Texta Incident.
Medical downgrading and ostracisation
Mr Cameron’s difficulties in the military commenced with his receiving a medical downgrading in 1986 to BMS (below medical standard) (transcript/36; T36.2/430). He started having issues with his knees in 1985 or 1986 from “practice para jumps from the old F1 trucks and packs used for exercise carrying my kit and the radios”. This led to his having surgeries on his knees for “chondromalacia patella, and repair of cartilage scrapes” and later for “bi-lateral ligament releases on both knees” (ST3/489). These issues were the cause of the medical downgrading.
He described being belittled by other members of the military and being told that he was taking up other members’ chances of being promoted when completing subject courses for promotion. He further described pushing himself beyond his limits to prove his worth, although after he did so his knees would swell, resulting in an evident limp. Pushing himself also resulted in further resentment from his colleagues: “they looked at me thinking, ‘He must be slack, he’s in the top 5 but yet he’s medically downgraded’” (transcript/66).
Mr Cameron described fighting for two years to be upgraded to CZE (combat zone exempt). When the first Gulf War started in 1990, Mr Cameron was tasked to go to RAAF (Royal Australian Air Force) Base Williamtown to prepare to go overseas. He described himself and fellow members signing wills on the Land Rover bonnets in case they were killed overseas. However, while they were loading the cars, Mr Cameron was “called out in front of everyone” and told in front of his colleagues that he could not go to war because he was CZE graded (transcript/36; T36.2/430). He described this incident as “belittling” and feeling “worthless” and that he felt he was seen as a “liability and worthless” by his colleagues (T36.2/430). Mr Cameron’s evidence was that due to this incident he “lost all respect from my detachment and felt ostracised” (ST3/490). Mr Cameron stated that he was supposed to be in the unit for three years, but in less than a year he was posted to Western Australia where he was sent on exercises to assist reservists in their field training (T36.2).
Falling Incident
Mr Cameron was completing his subject 1 for corporal in May to July 1988. He described leading a platoon on a 35-kilometre march during the day where they were meant to navigate to a particular hill. The Lieutenant, who had travelled in a Land Rover and was meant to meet them, had gone to the wrong hill but insisted that Mr Cameron and the corporals from two other sections who had also reached the hill, had navigated incorrectly. Mr Cameron stated that due to the tiredness of his soldiers, he made the Lieutenant come to their hill. Mr Cameron said that the Lieutenant was not happy with this and advised that if Mr Cameron got the next navigation phase of the course wrong that he would fail the course (ST3/490; T36.2/431).
Mr Cameron and his platoon set off at approximately 3am to complete this next navigation phase of the course. It was a dark night with poor visibility and Mr Cameron lead from the front, looking at his compass approximately every ten feet. Mr Cameron described this incident in two written statements and at the hearing. In one of his written statements, he said (T36.2/431):
The night was dark the hole was covered by knee-high vegetation as I descended the whole I lashed out with my arms, rifle and legs to try and stop the fall. I tore the skin off my fingers around my knuckle area on my right hand and the fingernails area of my left hand. The wedging of my pack and hands holding my SLR [self-loading rifle] stopped my descent. I thought fuck I was nearly dead. I screamed out for help shit was falling in my eyes and hair from above then I felt someone grab my webbing and helped drag me up to the surface. He was held on by his feet by 2 other people. It took a few minutes to get my shit back together and the LT [Lieutenant] advised me that I still had to finish the navigation or I would fail. So I got my shit together organised my bearings and continued to lead the platoon on. Once we arrived at my designated area we then proceeded to advance on the enemies bivouac site and passed through finalising the navigation and course. I was pulled away from the soldiers and was spoken to by the SSM [Squadron Sergeant-Major] about my insubordination to the lieutenant but all will be forgotten if I didn’t speak about it to anyone and on departing said well done and good navigating and I was very lucky I stopped myself falling down the shaft. After this exercise I proceeded to get nightmares from falling and did not report it as you didn’t want to be looked at as a weak link.
(All statements as original.)
In another statement (ST3/489), Mr Cameron gave further details about falling down the mineshaft:
During this course is when I fell down the mineshaft and thought I was going to die. The dust, dirt and debris that fell down the shaft at the same time made it almost impossible to breathe and see let alone yell out. My mouth was full of dust and I was trying to get air in through clenched teeth. I had 1 foot braced against a wall, my pack against another and my rifle pushed away from me against the shaft in front of me. My knuckles and fingers were torn up and bloodied from acting as a brake to stop the falling which I think saved my life. Then for what seemed like hours I felt hands around my webbing and then was pulled up out of the shaft up and out landing on my pack which gave a stab of pain. Someone then poured water over my face to clear and clean my eyes and get the dirt and dust out of my mouth so I could see and sloshed it around my mouth so I felt like I could breathe again. Someone said I was bloodied lucky we looked down into the shaft and it looked a good 20 odd feet deep, you could see how I had pushed myself against the walls of the shaft to where I stopped about 5 to 6 feet down. We then continued on with the exercise. within a week my alcohol intake increased and I started having nightmares about falling all the way and dying, and became very moody and irritable at home. This started to settle after a few months except for the drinking as it was helping me sleep.
At the hearing, Mr Cameron described how he felt after being pulled out of the mine shaft (transcript/27-28):
… it was just instinct that my arms went out and (indistinct) wedged myself on the way down. It was just pure instinct but it was like fuck in a big, big way. And then just hanging there thinking how deep is it, am I going to get out of this. Trying to breathe, trying to get the dust out of my throat, the shit - I couldn’t look up because there was crap in my eyes from the dirt falling down. A real horrible nightmarish free falling sensation. And when I got pulled out it was kind (indistinct), you know, and then I knew I had to straighten my shit out and I knew I had to finish the exercise because I was told that if I don’t finish it it’s a failure and I’d have to come back. And being medically downgraded there’s already a - you’ve got to work twice as hard to be accepted because everyone knows you’re medically downgraded. The ‘80s was a time when they were cutting staff and people out of the defence force to make it smaller, not bigger, they were trying to go slipstream. So I had to do everything twice as much to be professional or to look professional in my eyes. So when we got or helped me get back up onto my feet because of my pack and the weight of it, got my shit squared away and we looked down into the tunnel with our wonderful Army torches that doesn’t seem more than 20 feet and we couldn’t see the bottom of it. One of the guys, I don’t remember the name, said “Fuck, you were lucky” and that kind of went (indistinct) lucky went through my head.
Red Texta Incident
In written statements and in his evidence at the hearing, Mr Cameron described another incident that occurred in 1992 when he was posted to Perth, Western Australia. In one written statement Mr Cameron said (T36.2/432):
Another exercise we had been harassed by [another Regiment] constantly for days on end. From mock attacks to line infiltrations taking rifles, packs, food and moving smoke grenade lines and rerunning them across our paths during the nights which became a (grenade simulation) and many were set off. As the radio operator I also had to have radio shifts as well as done piquet’s and so my sleep hours was down to about 4 a night for the last 6 nights. When I woke up and stood too, then stood down to half so we could make a brew and get out kit ready my co radio operator asked me why I had a mark on my neck. I thought he was joking but he was serious. He didn’t have one so I checked with my mirror and sure enough I had a red texta mark right across my neck. I again thought fuck I’m dead and then got angry as I felt I could not trust anyone with my life. My hypervigilance and choking nightmares of getting my throat cut became more and more prevalent. …
Mr Cameron further described the incident in another statement (ST3/490):
… we were harassed by either SASR [Special Air Service Regiment] or Pilbara Regt who acted as enemy. One morning as we were standing to after being harassed for an extended time by the enemy my foxhole buddy commented about a red mark across my neck. I didn’t believe him so got my mirror and saw it had been done. The directive staff allocated me as dead, throat slit during the night. This aggravated me and brought back memories of not being able to breathe and have nightmares of having my throat slit during the night and continual choking. This also created a feeling of not trusting anyone to do the job and protect me whilst I was on stand down, but I did my job looking after them. I became very vigilant and moody after this happened and started having nightmares again. When the exercise finished and was returned home the first night I slept I had terror nightmares of having my throat slit and started drinking heavily again to make them go away, I was also very hypervigilant and ran on adrenaline whilst sleeping. And at one time when my wife tried to wake me for dinner I lashed out at her and almost struck her. From that point on she always called me from the bedroom door and I answered instantly.
At the hearing Mr Cameron similarly described this incident (transcript/30):
I woke up in the morning, we’d had a couple of insurgents during the night. I’m getting my - your basic toiletries and stuff like that organised and coffee and breakfast and all that. And the fellow in the gun pit says “What’s the red mark on your neck?” And I go “I don’t have a red mark on my neck”. And he says “Yes, you’ve got a red mark on your neck”. So I got out my little mirror had a look and it was just like somebody had come through during the night and slit your throat and the first thing that went through my brain then was fuck, I’m dead. And then I thought, well, I’m directive staff but it didn’t matter to the SASR. Whoever they contact or do they did they stole weapons, they texted fellows, things like that, you know, they come out during the night and they would just take bits and pieces. But my trust in soldiers had just disintegrated to nothing when we’re meant to be protected by the people on the gun picket and here let them hear noises and things like that and they didn’t. I just felt like it was a complete failure and breakdown of the situation and trust. I just couldn’t trust anyone.
1996 Workplace Accident
After he left the military, Mr Cameron had difficulty finding and keeping employment. He found a job on an open-cut mine. However, approximately one year after leaving the military, in February 1996, Mr Cameron had an accident where he fell from a platform approximately three metres from the ground from where his feet were, or five metres from where his head was (transcript/39-41).
As I mentioned above, the Respondent, based on the opinion of Dr Spear, submitted that Mr Cameron’s PTSD was more likely caused by a 1996 workplace accident, rather than from any events that happened during his military service. Mr Cameron gave evidence about this accident (transcript/30-31):
I was doing a final adjustment on the line second stage crusher. We had just done a rebuild put on it and it was (indistinct) three metres tall. So to do a (indistinct) they’ve got a 12, 14 inch bolt, nut. So if you’re say 30 centimetres for you people who can’t remember 12 inches, that’s the size of the nut that we do up. So we have special cut tools that we actually cut (indistinct) themselves. You get up and you do an adjustment in millimetres for a final adjustment. Once it’s all done and trying to (indistinct) they then take it up and they put it in the secondary stage crusher. They’ll pull an old one out and put a new one in, so it’s all new. I was allocated to go up there and climb up there, which I did. And just doing the final adjustment, just to bring the blow bars up to alignment with a set depth my feet slipped out from underneath me as I was doing the last adjustment on the nut. I slipped off and on the way down I hit a steel plate on the way down, spun in mid-air and it hit me across my ankle, my knee, my arm, the side of my face. The investigation had taken place found the painter had actually painted it with a high gloss paint, not a non-slip paint, which they’re meant to do. So and the nut was a little bit tight to do up on that last few turns.
During cross-examination, Mr Cameron described that when he fell parts of his body hit a steel plate which caused injuries to his head (requiring stitches above and below his eye), a broken arm, injuries to his knees and ankle, and damage to the balance caps in his ears. Mr Cameron also stated that he was able to self-diagnose his injuries, which was something he learnt in the military, by making sure his toes were moving, his ankles were moving, legs, then hips and so on (transcript/41).
The veracity of Mr Cameron’s evidence
I found Mr Cameron to be an honest and credible witness. It was evident that the process of pursuing this compensation claim had been distressing to him, and the process of giving evidence at the hearing was difficult for him. Mr Cameron is to be commended for giving evidence under those circumstances.
As I mentioned above, when these proceedings commenced, the Respondent questioned whether the Falling Incident had occurred. After hearing Mr Cameron’s evidence at the hearing, the Respondent obtained instructions and confirmed that the Respondent accepted that the incident occurred.
After hearing Mr Cameron’s evidence, I have no reason to doubt him. I believe Mr Cameron to be truthful and I find that he gave evidence to the best of his recollection. I accept his evidence concerning his ostracisation following his medical downgrading. I accept that the Falling Incident and Red Texta Incident occurred in the manner described by Mr Cameron, and that those incidents affected Mr Cameron in the manner he described.
does MR CAMERON suffer from PTSD?
There is general consensus in the medical evidence before me that Mr Cameron suffers from PTSD.
For example, in a letter dated 3 April 2018, Consultant Psychiatrist Dr Matthew Samuel wrote that Mr Cameron had completed a 10-week trauma recovery program between January and March 2018 to assist him to manage the symptoms associated with PTSD (ST13/724). In a report dated 5 November 2019 (ST11/579), Dr Samuel stated a diagnosis of “PTSD and Alcohol Use Disorder” for Mr Cameron.
In a letter dated 24 May 2018 (ST12/656), Clinical Psychologist Jasmine Trigwell stated that Mr Cameron, “reports experiencing a number of severe, complex, and long-standing symptoms consistent with a diagnosis of post-traumatic stress disorder”.
A discharge summary from a hospital clinic dated 13 July 2018 (ST13/1143) states a “principal diagnosis” of “alcohol abuse” and an “additional diagnosis” of “PTSD anxiety”.
In an appointment note dated 8 November 2019, Clinical Psychologist Jasmine Trigwell referred to Mr Cameron’s “typical fear-based symptoms of PTSD” (ST12/614).
In a report dated 16 July 2020 (ST2/476-488), Dr O’Daly, who was Mr Cameron’s treating psychiatrist from January 2018, stated a diagnosis of “PTSD and alcohol use disorder in remission”, being standalone conditions, with alcohol use disorder being secondary to the underlying standalone condition of PTSD (ST2/483). On the next page of his report, Dr O’Daly stated that Mr Cameron “meets the criteria for category A” according to the DSM-V (Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition) diagnostic criteria.
In a report dated 2 June 2021 (ST6/511-523), Dr Spear, who undertook an independent psychological assessment of Mr Cameron on 20 May 2021, also stated that Mr Cameron’s presentation was consistent with DSM-V criteria for alcohol use disorder, which he accepted was service-related, and PTSD, which he did not accept was service-related.
Based on this evidence, I find that Mr Cameron suffers from PTSD.
is mr cameron’s PTSD connected with the circumstances of his service?
For there to be a connection between Mr Cameron’s PTSD and his service (s 120B(3) of the VEA, clause 6 of the SOP), I need to be reasonably satisfied that Mr Cameron experienced a category 1A stressor before the clinical onset of his PTSD.
Category 1A stressor
As Reeves J explained in the passages from Border cited above, the definition of a “Category 1A stressor” has both an objective and subjective element.
With respect to the Falling Incident, Mr Cameron’s objective perception was that it was a life-threatening event. His evidence (which I outlined above) was that “I thought I was going to die” and “how deep is it, and am I going to get out of this?”. He described a “real horrible nightmarish free falling sensation” and not being able to see or breathe with dirt and dust falling on top of him and covering his face as he braced himself with his foot and his rifle. After he was pulled out of the mineshaft, torches were shone into the hole. Mr Cameron estimated that the drop “looked a good 20 odd feet deep” (para [39] above) and that he could not see the bottom of the mineshaft. This realisation, coupled with one of his colleagues saying, “fuck, you were lucky”, would have further compounded the significance of the incident for Mr Cameron.
Clinical Psychologist Dr O’Daly, who treated Mr Cameron from 2018 to 2020, gave the following useful description of Mr Cameron’s subjective experience (T37/435):
… we [Dr O’Daly and Mr Cameron] have both objectively and subjectively discussed the facts of the fall and Mr Cameron categorically states that he feared for his life in that incident and that the likelihood of the length and duration of the fall and his rescue probably likely involved one to two minutes. However, his subjective experience was that he feared for his life and was unsure as to any certainty with regards to his capacity to be rescued. His feeling was that this was a life-threatening event, that his emotions were overwhelmed, and he felt that the time was way beyond the one to two minutes that he experienced.
Accordingly, I find that Mr Cameron’s perception of the event was that “it posed a threat of death” (Reeves J in Border).
I now turn to the objective aspect of the inquiry, which is whether Mr Cameron’s perception of the Falling Incident was a reasonable one (Reeves J in Border). Objectively speaking, stepping into nothingness during a night-time exercise on a dark night, being unable to see, breathe, or to know how far the ultimate drop was, would appear to a reasonable person to be a life-threatening event.
I am not, however, of the view that the events of the Red Texta Incident, nor the 1996 Workplace Accident, meet the definition of a category 1A stressor.
Regarding the Red Texta Incident, I accept Mr Cameron’s evidence that when he discovered a red texta mark had been made on his neck (as if his throat had been cut in the night), he was distressed and unsettled and thought, “fuck, I’m dead”. He described experiencing a complete breakdown of trust in his colleagues, becoming vigilant, moody and having nightmares about having his throat cut. I am reasonably satisfied that it was part of ongoing bullying behaviour that Mr Cameron was subjected to due to his medical downgrading. However, the evidence does not support a finding that Mr Cameron objectively believed that this was a life-threatening event. Objectively speaking, I do not regard that the incident, which occurred during a training exercise where there was no actual enemy, would appear to a reasonable person to be a life-threatening event. I do, however, think (as was supported by the evidence of Dr Spear) that Mr Cameron’s treatment due to his medical downgrading has a detrimental impact on his mental health more generally. I make further comments and recommendations relating to Mr Cameron’s medical downgrading below.
Regarding the 1996 Workplace Accident, Mr Cameron’s evidence, which I accept as being a truthful recollection of events, did not suggest that he was fearful for his life. His feet were only three metres from the ground, it was daylight at the time of the accident, and after he fell, Mr Cameron was able to self-diagnose his injuries. When viewed from an objective perspective, a reasonable person is also unlikely to regard a three-metre fall in those circumstances as being a life-threatening event.
I note that Dr Spear opined that the 1996 Workplace Accident was the most likely source of Mr Cameron’s PTSD, in part because Mr Cameron was reluctant to discuss the event with him (an avoidant behaviour consistent with PTSD). However, Dr Spear did not have the correct facts concerning this incident. Although he was aware that Mr Cameron sustained serious injuries from the 1996 Workplace Accident, Dr Spear thought that this incident involved Mr Cameron falling down a mineshaft. He was not aware that the incident involved Mr Cameron falling off a piece of machinery in an open cut mine. In his evidence at the hearing, Dr Spear conceded that the precise impact of the 1996 Workplace Accident was unclear (transcript/102):
I would suggest that it had some impact on his mental health. Exactly what is not really clear from that, that it was significant to require him to have medication and to seek help for it. So because he wouldn’t discuss it I couldn’t clarify it any further than that so I really can’t say because that’s all that was documented.
As such, I do not accept the opinion of Dr Spear that the 1996 Workplace Accident constituted a category 1A stressor.
In summary, I find that the Falling Incident was a category 1A stressor, but that the Red Texta Incident and the 1996 Workplace Accident were not.
Clinical onset of Mr Cameron’s PTSD
Factor 6(a) of the SOP provides that the person must have experienced the category 1A stressor before the clinical onset of PTSD.
In his report dated 2 June 2021, Dr Spear observed that when interviewed Mr Cameron had claimed that his PTSD symptoms started in 1988, but that based on an examination of the medical documentation, Dr Spear concluded that the onset of his symptoms occurred in 2016. He opined that, “it is most likely that [Mr Cameron’s] PTSD first developed in 2016” (ST6/522). His opinion was “that there is most likely not a significant relationship between Mr Cameron’s military service and his diagnosis of PTSD”. Dr Spear further stated, “that it is more likely to be related to other factors such as exposure to a traumatic civilian mining accident and his exposure to a traumatic fatal motor vehicle accident in 2002 when he was serving as a security officer” (ST6/522-523). These opinions were confirmed in Dr Spear’s clarification report dated 29 June 2021.
There are numerous reports from Dr O’Daly, who was Mr Cameron’s treating psychiatrist until two years ago, before me. They comprise a report dated 29 March 2018 (ST14/1933), two reports dated 11 December 2018 (T20/350 and T21/358), a report dated 21 September 2019 (T37/433) and a report dated 16 July 2020 (ST2/476). Dr O’Daly also completed a Veterans’ Psychiatric Impairment Assessment Form dated 21 December 2018 (T22).
Despite efforts made by Mr Dixon who represented Mr Cameron to contact Dr O’Daly to ask him to give evidence and to clarify aspects of his reports, Mr Dixon was unsuccessful in his attempts to contact Dr O’Daly. Mr Dixon said that he had even waited for Dr O’Daly in the hospital where he worked for several hours on two occasions.
There are some inconsistencies in Dr O’Daly’s reports, for example, in terms of the recording of dates and times. Additionally, Dr O’Daly’s most recent report dated 16 July 2020 states, somewhat ambiguously, that:
This report is to supersede all previously released reports dated 11 December 2018, with amendments made to the date of incident. Please note that all ages mentioned pertain to the date of the original letter.
I infer from these words that Dr O’Daly intended this report to clarify or replace any inconsistencies in his previous reports, particularly his 11 December 2018 reports.
Dr O’Daly’s report dated 21 September 2019 was written following a request from the VRB asking him to clarify the dates of clinical onset of Mr Cameron’s PTSD and AUD. Dr O’Daly’s report focussed on the Falling Incident in detail. He commented on the clinical date of onset of Mr Cameron’s AUD as becoming problematic after the Falling Incident. He did not specifically comment on the date of clinical onset of Mr Cameron’s PTSD, but in my view Dr O’Daly made it clear that Mr Cameron’s PTSD was linked it to the Falling Incident. I have formed this view because when Dr O’Daly was asked to comment on the clinical onset of PTSD in the context of the Falling Incident and the 1996 Workplace Accident, Dr O’Daly solely focussed on the Falling Incident in some detail (T37/433-435).
In his report dated 16 July 2020, Dr O’Daly answered a question (1.3) about the “events/ incidents/ occurrences … that are believed to be the origin of the claimed psychiatric disorder/s”, which Dr O’Daly had earlier identified as AUD and PTSD. Dr O’Daly described the Falling Incident and briefly referred to the Red Texta Incident (that is, “having been identified as dead during war practice”) (ST2/482-483; see also 477-478). When later asked specifically about the date of onset, Dr O’Daly referred to his previous answers to question 1.3 (ST2/484).
Later in this report, Dr O’Daly answered questions about the relationship between the diagnosed conditions and events before, during and after service. He opined that “there were no significant events prior to Mr Cameron’s service”. However, Dr O’Daly stated that several events after his service may have exacerbated his condition including “a propensity for alcohol misuse, a high anxiety state and need for hospital admissions, relationship problems and an inability to sustain work” (ST2/485). Relevantly, with respect to an “event or incident that occurred during service”, Dr O’Daly described the Falling Incident and then stated:
Mr Cameron encountered anxiety symptoms from that point and his Army career eventually terminated. It is my opinion that these events had a significant relationship to Mr Cameron’s current state.
Further, in answer to a question regarding the extent that Mr Cameron’s service contributed to the causation or the aggravation of the diagnosed conditions, Dr O’Daly answered “100%” (ST2/485).
Thus, despite the ambiguities in Dr O’Daly’s reports, I am satisfied that he regarded the date of onset of Mr Cameron’s PTSD as occurring in 1988 after the Falling Incident.
As Dr Spear and Dr O’Daly differed in their opinions about the date of onset, it is necessary for me to consider whose evidence to prefer.
Dr Spear gave evidence at the hearing. Ms Cooper submitted that I should prefer his evidence. I agree that, unlike Dr O’Daly, Dr Spear had the benefit of reviewing all the medical evidence before the Tribunal, including material produced under summons. I agree that he was an objective witness, as demonstrated by his willingness to compromise and to make concessions during his evidence. Dr Spear assessed Mr Cameron as an independent medical examiner, which can be advantageous in terms of objectivity because there is no pre-existing doctor-patient relationship whereby the doctor may be influenced to advocate for the patient. I note that Ms Cooper, in making the submission that I should prefer the evidence of Dr Spear, stated quite properly that she was not asking me to draw an adverse inference because Dr O’Daly was unable to be called as a witness.
As I have described above, Mr Dixon had considerable difficulty contacting Dr O’Daly and was not able to call him as a witness. Dr O’Daly’s last report was in July 2020, and so any opinions he expressed were not based on records that were as up to date as those Dr Spear had access to. Whilst independent medical examiners have some advantages in terms of objectivity, there are also advantages of being a treating practitioner who has built up a relationship of trust with a patient, and who is able to form an opinion over time, which in Dr O’Daly’s situation would have been approximately three years from January 2018. Despite some ambiguities in his reports, I prefer the evidence of Dr O’Daly. It was clear that Dr O’Daly regarded the Falling Incident as a category 1A stressor, and that he was of the view that the event that significantly contributed to Mr Cameron’s PTSD was the Falling Incident.
I find that Mr Cameron experienced a category 1A stressor before the clinical onset of his PTSD. I therefore find that Mr Cameron’s PTSD was connected with the circumstances of his military service and was therefore defence caused.
Conclusion
In conclusion, I am reasonably satisfied that Mr Cameron suffers from PTSD, as defined in the SOP.
I am also reasonably satisfied, based on Mr Cameron’s evidence and the medical evidence before me, that Mr Cameron’s PTSD resulted from the Falling Incident which occurred in 1988 during his military service.
The Falling Incident was a category 1A stressor, with the clinical onset of Mr Cameron’s PTSD occurring after that incident.
That is, I am reasonably satisfied that the material before me raises a connection between Mr Cameron’s PTSD and his service. There is a SOP in place which upholds that connection on the balance of probabilities.
Decision
The Reviewable Decision of the VRB dated 10 December 2019 to “affirm the decision under review regarding [Mr Cameron’s] Post Traumatic Stress Disorder”, is set aside and the matter is remitted to the Respondent for reconsideration with the direction that Mr Cameron’s PTSD is defence caused.
Practically speaking, this means that the Respondent will reassess the rate at which Mr Cameron’s pension should be paid based on his PTSD.
the amount of mr Cameron’s pension
As at the date of the hearing, Mr Cameron received a pension at 50% of the general rate of pension. Following the Reviewable Decision of the VRB which recognised his AUD, it was increased to 60% of the general rate, which was backdated to the date of his claim, being 28 December 2017.
Mr Cameron has another outstanding claim for loss of eyesight. At the time of the hearing this claim had not been determined by the Department. However, if successful this claim may also result in his rate of pension, which reflects the degree of a veteran’s incapacity, being increased.
New evidence arose during the hearing that may form a basis for the Department’s assessment of the level of impairment from Mr Cameron’s AUD to be increased. This was the evidence of Dr Spear that the medical downgrading of Mr Cameron, and the humiliation he endured as a result, for example the incident when he was removed from a plane when he was about to be deployed, was a “significant stressor” that probably contributed to Mr Cameron’s AUD and to his current mental condition. Since writing his reports, Dr Spear had undertaken specific training concerning veterans’ matters where he became aware of the serious implications of such a downgrading. These included loss of status, negative financial implications, losing value in the opinion of colleagues, and resentment from colleagues (transcript/112). Dr Spear acknowledged the significant impact that Mr Cameron’s medical downgrading is likely to have had on his long-term mental health (transcript/116-117):
… military discharge and also military downgrading does have a major impact on members of the Australian Defence Force because their identity as a Australian Defence Force is so critical to their sense of self. So it has an impact a lot more than say a civilian would lose a job, where you lose your job it’s not, you know, so much of your identity becomes identified with your unit, your role of service, contribution to country, et cetera. So it does have a major impact and it’s really difficult to accept, but I would suggest that that could have a longstanding impact on his current mental health because he has the status of a soldier who is no longer able to be a soldier and that is something - it’s like grief, you carry it with you forever. So I think the impact is a long-term impact, and that’s why DVA brought it up in the mandatory training, and I think it is important that we should take that into account when we’re assessing veterans who are obviously very different from civilians in their presentation and that we must take into account the context of military service. So I think that the - yes, I think - so yes, so I’m speaking - I do believe that the military downgrade was most likely a significant cause of his current mental health condition, whether it’s an SoP category as defined in the statement of principles or not. It most likely will have aggravated post-traumatic stress disorder if he had it before then, and continues to do so.
(My emphasis.)
Ms Cooper suggested that, with this new evidence, Mr Cameron could seek to appeal the determination of 19 May 2020 whereby the Department increased his general rate of pension to 60%, which would permit backdating if successful. If Mr Cameron was out of time, he could make a new claim, but if it was successful, it would not be backdated. This could be done straight away and was not dependent on these proceedings. Mr Dixon indicated that he would help Mr Cameron to pursue these options.
I also request that the Respondent investigates this new evidence concerning Mr Cameron’s medical downgrading with a view to further increasing Mr Cameron’s pension, particularly if my decision does not result in an increase to his pension to 100%. However, even if it does, Mr Cameron would likely appreciate an acknowledgment of the negative impact his medical downgrading had on his mental health.
RECOMMENDATIONS FOR REFORM
There is a significant power imbalance between the resources of the Respondent, a Commonwealth Agency, and the resources of applicant veterans such as Mr Cameron. In this application, the Respondent had the benefit of legal representation, and of having the financial resources to be able to commission reports from Dr Spear and to pay for him to give evidence at the hearing. Mr Cameron was assisted by Mr Dixon, an RSL advocate who has now retired, and who is not a lawyer but rather an advocate with a military background. Mr Dixon did a commendable job of representing and assisting Mr Cameron. Without people like Mr Dixon, many veterans would likely find the appeals process, which can involve complex issues of law and evidence, overwhelming.
There are a few simple measures that could be implemented to greatly assist veterans like Mr Cameron.
For example, if the Respondent is commissioning an independent medical report (or reports) and is paying for an independent medical expert to give evidence at the hearing, the same level of financial support should be offered to veteran applicants. Veteran applicants would then be able to obtain equivalent up-to-date medical reports from their treating medical practitioners. Those treating medical practitioners are likely to be more willing to give evidence at the hearing if they are being financially compensated in the same manner as the independent medical practitioners commissioned by the Respondent.
Funding should also be made available for veterans to be legally represented in addition to the veteran being supported by non-legally trained advocates from the RSL. This would allow for a more even playing field, is likely to reduce the stress of these appeals on veterans and may result in matters being resolved prior to a hearing.
I certify that the preceding 98 (ninety-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner
.................[Sgd]....................................................
Associate
Dated: 11 November 2022
Date of hearing: 6 and 7 July 2022 Representative for the Applicant: Mr D Dixon, RSL Representative for the Respondent:
Ms L Cooper, The Australian Government Solicitor
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