Carne and Repatriation Commission
[2000] AATA 517
•27 June 2000
DECISION AND REASONS FOR DECISION [2000] AATA 517
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V98/1205
VETERANS' APPEALS DIVISION )
Re David Lewis CARNE
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mrs Joan Dwyer, Senior Member Mr W McLean, Member Assoc. Prof. J Maynard, Member
Date27 June 2000
PlaceMelbourne
Decision 1. The Tribunal affirms the decision of the Repatriation Commission made 18 September 1997 which rejected Mr Carne's claim to have post traumatic stress disorder accepted as a war-caused disease under s 9 of the Veterans' Entitlements Act 1986 ("the Act"). 2. The Tribunal varies the decision of the Veterans' Review Board made 11 August 1998 which increased the rate of pension payable to Mr Carne under s 22 of the Act to provide that Mr Carne is entitled to pension at 70% of the general rate with effect from 1 January 1997. 3. The Tribunal adjourns the issue of entitlement to intermediate rate of pension to allow further evidence and submissions to be received.
(Sgnd) Joan Dwyer
Senior Member
DIRECTION
Tribunal : Mrs J R Dwyer, Senior Member
Mr W McLean, Member
Assoc. Prof. J Maynard, Member
Date : 27 June 2000
Place : Melbourne
Direction: Further to the decision delivered this day which adjourned the issue of entitlement to intermediate rate of pension the Tribunal directs:
(i)That within 14 days Mr Carne lodge with the Tribunal and serve on the respondent documentation from his employer as to the hours he has worked since he stopped working full-time.
(ii)That once that material is received the parties are to advise the Tribunal within 7 days whether they wish to bring the matter on for further hearing or to make written submissions as to the effect of the material produced.
................................................
Joan Dwyer
Senior Member
VETERANS' AFFAIRS – whether veteran suffers from post traumatic stress disorder – assessment of pension in respect of accepted war-caused disease – whether entitled to pension at special or intermediate rate – adjourned for further evidence as to issue of entitlement to intermediate rate of pension
Veterans' Entitlements Act 1986 s 23 (1) and s 23(2)
Repatriation Commission v Cooke (1998) 52 ALD 1
Repatriation Commission v Keeley [2000] FCA 532
REASONS FOR DECISION
27 June 2000 Mrs Joan Dwyer, Senior Member Mr W McLean, Member Assoc. Prof. J Maynard, Member
This is an application for review of a reviewable decision of the Repatriation Commission made 18 September 1997 which refused a claim for Post Traumatic Stress Disorder ("PTSD") to be accepted as a war-caused disease under s 9 of the Veterans' Entitlements Act 1986 ("the Act"). That decision was affirmed by the Veterans' Review Board ("VRB") on 11 August 1998. The VRB also increased the rate of pension payable to Mr Carne from 40% to 60% of the General Rate with effect from 1 January 1997.
At the hearing Mr D Hyde of Counsel appeared for Mr Carne. Mr K Herman, an advocate with the Department of Veterans' Affairs, appeared for the Repatriation Commission. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") together with the exhibits tendered during the hearing. Mr Carne gave evidence. Evidence on his behalf was also given by Dr Cole and Dr Parkin, who are psychiatrists, as well as by Mr Olney and Mr Wesson both of whom served in Vietnam with Mr Carne. The respondent called Mr Conant who is a Military historian.
There are three issues in this matter. The first is whether Mr Carne suffers from PTSD and the second is whether, if he suffers from the disease, it is war-caused. The third issue is the assessment of the rate of pension in respect of war-caused disease.
As to the first issue, the Full Court of the Federal Court established in Repatriation Commission v Cooke (1998) 52 ALD 1 that the issue whether a disease exists is to be decided to the reasonable satisfaction of the Tribunal. The Full Court said at p4:
We think that it is quite clear that the issue whether a disease exists is to be decided to the reasonable satisfaction of the commission. In other words, s 120 (1) and (3) assume the present existence of a relevant condition, in this case a disease. Section 120 (1) specifies the standard of proof for the determination whether or not that disease relates to the operational service rendered by the veteran. Section 120 (3) provides for one situation in which that standard is to be taken as having been satisfied. The work of each subsection is to provide the standard of proof for establishing a causal connection between disease and service.
As Mr Carne served in Vietnam from 15 June 1971 to 19 January 1972, the standard of proof as to whether or not PTSD, if it exists, is war-caused is that provided by s 120(1), 120(3) and 120A of the Act.
There is no doubt that Mr Carne does suffer some psychological ill effects from his service in Vietnam. Psycho-active substance abuse or dependence, with headaches, is already accepted as a war-caused disease. The issue is whether he is also suffering PTSD.
Two psychiatrists, Dr Cole and Dr Parkin, gave evidence that in their opinion Mr Carne does suffer from PTSD. The report of Dr Sime to that effect was also before the Tribunal, but Dr Sime died before the hearing. On the other hand the Tribunal also had before it a report from Dr Kennedy, a psychiatrist (T8 p43), in which she expressed the opinion that Mr Carne did not suffer from PTSD. Further Dr Byrne, a psychologist, gave evidence that in his opinion Mr Carne does not suffer from PTSD.
In trying to resolve the conflict between those different opinions in order to find, on the balance of probability, whether or not Mr Carne does suffer from PTSD, one matter we must consider is whether the service experiences to which he attributes his PTSD, satisfy the description in paragraph (a) of the definition of PTSD in the relevant Statement of Principles ("SoP").
According to Repatriation Commission v Keeley [2000] FCA 532 (28 April 2000), (Lee, Cooper Kiefel JJ), the applicable SoP is Instrument No. 15 of 1994 as amended by Instrument No. 225 of 1995. That SoP contains a definition of PTSD. The first requirement is as follows:
"post-traumatic stress disorder" means a psychiatric condition meeting the following description (derived from DSM-IV):
(a) the person has been exposed to a traumatic event in which:(i)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii)the person's response involved intense fear, helplessness, or horror; and
. . .
Dr Kennedy in her report of 23 May 1997 (T8 p43) wrote:
He finds it hard to describe episodes that he found particularly disturbing in his war service. When pressed he remembers driving along when an American helicopter rocketted [sic] a house 20 meters ahead of him, troops came in and killed the locals and he was watching. He thinks of this once or twice a week, but he feels it does not interfere with his activities in any way.
He also remembers rocket attacks at various bases where he was, but not directly at him. He has nightmares of being alone and closed in and chased but he does not relate this specifically to the war.
Dr Kennedy concluded:
In his mental state he is a well presented man with a moustache wearing jeans, neat clothes. He is very self contained. His affect is flat rather than depressed. He shows no signs of anxiety. He has no cognitive deficits, he shows no signs of disorder of thought, sensation or perception. He appears to be an intelligent and rather sensitive person. Undeniably he is suffering from stress which may well have begun during his war service, although there is little positive evidence of this. He is not suffering from post traumatic stress disorder as the critera [sic] for this diagnosis are not present. He certainly is using alcohol to deal with any symptoms of stress or any difficulties that he has and he certainly began his drinking during his war service, and I feel that these factors must therefore be considered to be war caused.
He finds that there is only minimal direct influence on his life style in some ways of his stress related illness. He does not consider that he is suffering from a psychiatric disorder, at the same time I think that he does suffer considerable problems with stress which inhibits his social function to some extent.
It was on the basis of Dr Kennedy's report that psychoactive substance abuse with headaches was accepted as war-caused with effect from 1 January 1997. Similarly because of her opinion that Mr Carne did not suffer from PTSD, his claim was refused by the Repatriation Commission in its decision of 18 September 1997.
Mr Carne did describe traumatic events to Dr Sime, Dr Parkin, Dr Cole and Dr Byrne, and, it appears from T16, also to Mr Dumbrell, a general endoscopic and laparoscopic surgeon, who saw Mr Carne for a medico-legal report on referral from his RSL representative at the VRB. Mr Carne saw each of those specialists after he had attended Dr Kennedy. The description of "frightening and horrific events" in Mr Dumbrell's report is graphic. It includes being mortar-bombed and witnessing infantry attacks on Viet Cong villages. But, according to Mr Carne when he appeared before the VRB, and in his evidence to this Tribunal, Dr Dumbrell's report does not accurately recount the history he gave to Mr Dumbrell.
The accounts of traumatic events set out in the reports of Dr Sime, Dr Parkin, Dr Cole and Dr Byrne are essentially similar. Dr Sime, in the history he obtained from Mr Carne, described three particular experiences during service in Vietnam, two while driving trucks delivering bricks, and one while off duty in Vung Tau. Those incidents are further considered later in these reasons.
Dr Parkin, in his reports, only referred to one traumatic event which was witnessing an attack on a house, He described it in his report of 28 January 1998 (A4) as having caused Mr Carne "intense fear". Dr Cole and Dr Byrne both obtained descriptions of the same three events referred to by Dr Sime.
On the histories they obtained of traumatic events and ongoing symptoms Dr Sime, Dr Parkin, who has become a treating psychiatrist, and Dr Cole, all expressed the opinion that Mr Carne was suffering from war-caused PTSD. Dr Byrne in expressing the opinion that Mr Carne did not suffer PTSD relied on the absence of many of the symptoms in the diagnostic criteria. He mentioned in particular that Mr Carne reported to him that he had watched "Apocalypse Now" a movie about Vietnam on two occasions and had also seen "Saving Private Ryan" which is about World War II. Dr Byrne regarded those matters as indicating an absence of avoidance of stimuli associated with the trauma.
The respondent in preparing for this hearing concentrated rather more on the issue whether the traumatic events described by Mr Carne did really occur, than on considering the effect those incidents, if they did occur, had on Mr Carne.
The three incidents were described by Mr Carne in evidence as follows (trans. pp43–44):
(i) The Attack on a House
The main instance was when I was driving along the road and I came across a house being attacked on the right hand side as I was driving. It was about 20 metres off the road.
. . .
Well, as I was driving towards this house there was – I noticed some smoke and I heard gunfire and at that point and I was almost onto the – adjacent to where it was happening. There was ground troops moving towards the house. I couldn't say exactly how many but maybe six to a dozen. On thinking back on it now they would have been South Vietnamese because they certainly weren't Australian troops. American troops wouldn't have been operating in our Province. There was a lot of smoke. By the time I'd reached that point I had to make a decision what to do, I just kept driving through the smoke and I kept going past the incident.
When you say the troops were moving towards this house presumably the house was burning?---Well, I don't know whether the house was burning or not. There was the smoke from the firearms and whatever the – if they'd fired rockets from the rockets.
I think you have answered my question. Do you say that - - -?---The house wasn't destroyed.
Do you say that this was in the course of an attack, is that what you are saying?---I would say so, yes.
Now, did you see any – well, arising out of it being an attack were there any victims?---I don't know.
You do not know?---There could have been someone in the house firing back. I really don't know. It wasn't something that sort of I stayed and looked around at.
What did you do?---I planted the foot of the truck and took off as fast as I could.
Mr Carne said the incident may have been on the outskirts of Baria but was somewhere on the road from Baria to Nui Dat (trans. p46):
(ii) The Crashed Helicopter
There was another incident where I got lost in the northern part of the Province and as I was driving along this road it seemed to be getting narrower and narrower. It was becoming unfamiliar and I virtually turned the corner on this track and there was a chopper that had been – it could have crashed, it could have been shot down, I really don't know. It was on the ground smouldering still. No-one was there. At that stage I realised I shouldn't have been – I was either on the road or I shouldn't have been in the area because there possibly could have been enemies waiting to ambush. I did a quick three point turn, turned the truck and got back out of there onto the correct road.
Mr Carne said that he assumed the helicopter could have been shot down, "maybe the day before, maybe earlier in the morning." He volunteered that "if it had just been shot down it would have been well and truly ablaze." He said there was no-one there. He said it was on a road north of Nui Dat. He was driving to a place where he used to deliver bricks, somewhere near Binh Ba. Mr Carne said he thought he had taken a wrong turn. He was asked by Mr Hyde what was frightening, if there was absolutely nobody around. He replied (trans. p46 and 47):
Well, the frightening thing was that if there was no-one there and it was a shot down chopper it could have been people, North Vietnamese or Viet Cong waiting in the scrub to ambush and on top of that they mined the minor roads. We were told not to drive off the main track of the minor roads because they were possibly mined. I had to do a turn that involved going into the bush backwards back onto the road. it was pretty frightening at the time.
The third incident occurred in Vung Tau. Mr Carne described it as follows (trans. pp46–47):
(iii) The Man who was Shot by the White Mice
There was an incident in town when we were on leave where a civilian was – or it started as a fight between the cowboys who were the local CMF, I think they were, like equivalent to our CMF. It started with a fight or a brawl out the front of the bar that we were in. It led to the White Mice - - -
PROF MAYNARD: Was that a fight between the Australian troops?---No, a fight between themselves.
Between themselves, yes?---Yes, and there was bricks and sticks and whatever being used. The White Mice who was up the corner of the street which may have been 30 metres away, 20/30 metres away, blew the whistle. They all took off and started running and he shot one of them out the front of the bar in front of us.
MR HYDE: And where were you?---We were in the doorway of the bar or standing at the front of the bar. Because of the fight we'd gone out to the front so we're standing out in the street. When it all happened we moved back into the bar quickly. We didn't know what was going on so we decided to try and find another way out and we found – we asked the girls in the bar and they told us to take a door out the back. We went through a couple of little alleys, ended up back in the main street further away.
Mr Carne said that the first two incidents occurred when he was driving a truck on his own, delivering bricks to building sites. He said that there would be five or six trucks in the section, they would leave Vung Tau in convoy to go to the brick works. He said they would arrive at Nui Dat and load their trucks with bricks and go to approximately five sites around the province. He said "we would drive off to those sites, maybe two trucks, maybe five trucks, but in doing so we would get separated from one another. We would leave and I would drop my bricks off, and then drive back to Nui Dat." He said sometimes two trucks were sent to one site but on numerous occasions there would have been one driver in one truck "free running" between the building site and the brickyard.
During the VRB hearing Mr Carne's account of those incidents, which he said were "traumatic events", as required by the SoP, was disbelieved. The VRB, using the knowledge of its service members, made it clear to Mr Carne that it did not believe his evidence as to the fact that he was driving his vehicle alone. The Board wrote at T2 pp13-14 of its decision:
The problem the Board faces in this matter is that the type of duties which the veteran could reasonably be expected to be involved in as a driver in a transport platoon, his location and period in which he was in Vietnam do not lead it to the view that his recall of events is credible. . . . His statement that he was driving his vehicle alone and not in convoy is against all of the principles of safe travel which were practised by the Australian forces in Vietnam. Whilst the Board can accept that from time to time, by day, vehicles would travel in convoy without shotguns, to suggest that a vehicle was on its own without any one other than the driver is not credible. The standing orders of the Australian Task Force required that vehicles be escorted whenever they travelled throughout the province. (emphasis added)
No doubt because of those comments by the Board, the respondent had obtained two reports from a military historian, Mr Conant, dated 8 October 1999 (R1), and 15 February 2000 (R2), and a third report from another military historian Mr Tilbrook, dated 14 February 1999 (R3). Those reports address the questions of whether or not it was likely that Mr Carne would have been driving on his own, and not in a convoy, and whether he would have witnessed the incidents described as "Attack on a House" and "Crashed Helicopter".
Mr Conant gave evidence based on his and Mr Tilbrook's research. He had said in his report that it was highly unlikely that Mr Carne would have been on his own doing single vehicle deliveries from the brickyards. He explained at trans. p83, "It was just too dangerous." He added, at trans. p95, "I think a section corporal who allowed that to happen . . . would be placing his neck on the line".
Mr Carne was adamant that his evidence on this point was accurate. He obtained supporting statements from Mr Olney (A5) and Mr Wesson (A6). They were in the same section as Mr Carne for at least part of his time in Vietnam. They both gave telephone evidence and they were both quite clear that it was the custom for the brick trucks to drive on their own while delivering bricks which they said they loaded at the brickyard, at Baria, (not as stated by Mr Carne at Nui Dat). We found their evidence persuasive. We find that in spite of Military Standing Orders requiring that drivers drive in convoy and with someone "riding shotgun", the reality for drivers was that they did brick deliveries "free running" and with no one "riding shotgun". We accept Mr Carne's evidence on this point, supported as it was by the evidence of Mr Olney and Mr Wesson.
Mr Olney and Mr Wesson also confirmed Mr Carne's evidence that there was a helicopter which had obviously been shot down by the side of the road somewhere north of Binh Ba. Both Mr Olney and Mr Wesson said they had seen the hulk of a burnt-out American helicopter north of Nui Dat, out through Courtney Rubber. That situation would be near the northern border of Phuoc Tuy Province. They said they did not see it when delivering bricks, but when on an exercise putting in a fire support base. Mr Wesson said he was in a convoy at the time (trans. p151–152 and 158).
Mr Conant in his report (R1 paragraph 27) identified two crashed helicopters in that general direction. Those particular incidents were described as follows:
a.7 June 1971. Ten days before Mr Carne arrived in Vietnam, a RAAF helicopter supporting B Company/3rd Battalion, the Royal Australian Regiment, was downed by gunfire. This was reported by 3RAR to Headquarters 1st ATF in the first instance. The location was in Long Khanh Province approximately 25 kilometres North of Nui Dat. See Annex B.
b.29 June 1971. A United States medical evacuation helicopter was hit by small arms fire and a rocket grenade and crashed and burned. The location, reported by United States forces to 1st ATF, was approximately 60 kilometres at least to the Northwest of Nui Dat and not in an area where any Australians operated.
Mr Hyde said that he did not wish Mr Carne's evidence to be confined to identifying which particular helicopter he saw. Mr Hyde suggested that the evidence of Mr Wesson and Mr Olney simply confirmed that there were downed helicopters. He submitted that Mr Conant's evidence, that hulks of helicopters would not have been left as wrecks because the metal could be salvaged to make claymores and various booby traps, should not be accepted.
We find on the basis of Mr Carne's evidence, supported as it was by the evidence of Mr Olney and Mr Wesson, that there was at least one hulk of an American helicopter by the side of the road north of Binh Ba. We note the evidence of Mr Olney and Mr Wesson that they did not see the helicopter while delivering bricks. However it is quite possible that Mr Carne saw it when he had become lost and thus gone further north than he had intended. We also accept Mr Conant's evidence that a wrecked helicopter would have been recorded.
Mr Olney and Mr Wesson said that the crashed helicopter was an American helicopter. That would point rather to crash b. as set out in paragraph 23 of these reasons. It could have been observed by Mr Carne shortly after the crash, as he was in Vietnam and driving from 15 June 1971 until the end of the brick job, which Mr Conant said was about September 1971. We have not overlooked Mr Conant's evidence that this crash was "not in an area where any Australians operated." As against that evidence we have evidence from Mr Wesson and Mr Olney that they did see a crashed American helicopter out through Courtney Rubber, where a fire base was put in. We find the most probable explanation is that Mr Carne saw the American helicopter which crashed on 29 June 1971, some days later.
Mr Conant also gave evidence that there would not have been any rocket attack on a house by South Vietnamese forces without that being documented. He said there was no record of an attack as described by Mr Carne. We found Mr Olney to be a very impressive witness. He had what appeared to be an excellent recall of events during the time he was section corporal for the brick trucks. The Tribunal read to Mr Olney, Mr Carne's description of the attack (trans. p164):
I came across a house being attacked on the right hand side as I was driving. It was about 20 metres off the road. There was a lot of gunfire. There was a helicopter, I'm not sure. There was a lot of smoke.
Mr Olney said he had seen things similar to that. He said (trans. p164):
A couple of times when we were going down to a place called Long Binh which was down towards Saigon several times I've seen attacks being put in off the road, anything up to about 10, 15, 20 metres off the road, yes.
It was Mr Olney's belief that such attacks were mainly by the PF, which were the South Vietnamese Irregulars, also known as the ARVN. He said such attacks could have been associated with a helicopter.
Neither Mr Olney nor Mr Wesson gave the impression that they found seeing the wreck of a helicopter particularly frightening. When Mr Olney was asked about whether he had seen attacks on houses, he first replied, at trans. p158:
Pick a house. Most of the houses or villages there showed signs of bullet holes, RPG explosions, etcetera.
When he was asked whether Mr Carne had explained or reported any problems to him he said, trans. p159:
Well, the main problem we used to – I don't recall any specific instance as it was nearly 30 odd years ago, but the main problems that we had when we were free running were flat tyres and breakdowns.
Not only Mr Olney and Mr Wesson, but also Mr Conant, agreed that the White Mice did on occasions shoot people involved in street brawls if they did not freeze the minute the whistle was blown. There was no challenge to the fact that Mr Carne may well have seen an incident as he described, but his evidence did not indicate that he found that incident particularly traumatic.
Dr Cole and Dr Parkin gave evidence before Mr Carne and the lay witnesses. Thus they could not be asked questions about whether the precise facts as to which Mr Carne gave evidence were such as to constitute "a traumatic event" within the definition of that term in the relevant SoP. Dr Cole said at trans. p3:
. . . he has experienced or did experience during his service in Vietnam a number of events that he experienced as stressful, if not life threatening and he responded to those events by developing symptoms that would be consistent with the diagnosis of post traumatic stress disorder.
When Mr Hyde asked him to comment on how Mr Carne's war-time experiences met the description of a traumatic event in paragraph (a) of the definition in paragraph 4 of the SoP, Dr Cole replied at trans. p4:
Well, I think we can say that he did experience, witness or was confronted with an event that involved actual or threatened death or serious injury or a threat to the persons or other persons physical integrity. His response to that involved intense fear, helpless or horror. Now, I didn't put those questions to him directly but I inferred from, you know, the way in which he spoke about it that that was his reaction, that he did feel frightened and he did feel endangered in those circumstances.
Dr Parkin's report (A4) sets out the only factual issue related to him by Mr Carne. That was the attack on the house. He accepted that Mr Carne suffered intense fear on that occasion. He said at trans. p13:
. . . the main one he remembers is a house on the side of the road which had a rocket attack 20 or 30 metres off the road, alone on the road, no radio. Now, he was very – I've underlined intense fear. By his description he was driving past this event when it all blew up in his face. He then continued to drive. He put his foot to the floor and drove as quickly as he could, as I guess one might imagine, and he suffered that intense fear from that experience and I've ticked that as satisfying the requirements.
Mr Carne's description in his evidence, of how he responded to those events in our opinion fell short of "intense fear, helplessness or horror." We understood that at the time of the two events while driving he felt some anxiety until he got out of what he regarded as a potentially dangerous situation. On the only occasion where he saw a victim, the shooting in Vung Tau, Mr Carne again, and very sensibly, removed himself from the situation, but his description of the event did not give the impression that he found it "traumatic", or that he responded with "intense fear, helplessness or horror." He said, at trans. pp67-68:
The incident happened, we were in the bar and the fight started outside between the locals and it was a brawl involving bricks being thrown and smashed in people and sticks and kicking, the lot, and we because of the commotion went out the front, to the front door of the bar and it was right in front on the road and that's when the White Mice up at the corner blew his whistle, pulled his gun and – or they took off and he pulled his gun and shot one of them.
. . . .
and when the bloke got shot we just immediately took off back into the bar in fear and found another way out of the bar but - - -
But I mean why involve - - -?---But we weren't being shot at so there wasn't any immediate danger I wouldn't have thought.Mr Herman suggested to Dr Cole that the fact that Mr Carne's twice weekly nightmares do not relate to Vietnam service but to being chased, and that Mr Carne does sometimes watch war films, do give reason to doubt that Mr Carne does suffer from PTSD due to his Vietnam experiences. Dr Cole agreed that there was no history of strenuous efforts to avoid reminders of the Vietnam experience (trans. p7).
Dr Sime in his report of 30 July 1999 (A2) considered that Mr Carne did experience horror at the attack on the house. He noted that the incident in Vung Tau was said by Mr Carne not to have been "at a terrifying level." Dr Sime described himself as "arguing that Category A" of the definition of PTSD "was satisfied" on both counts. It is significant that he expressed that opinion in the light of the description given to him by Mr Carne of the attack on the house (A2 p3):
He referred to one day, as he was driving alongside the village at Baria, he thought he was on a sealed road, the major road to Nui Dat. There was a house on the right side of the road being attacked by ground troops and a helicopter. There was a lot of smoke and rockets and general fire being fired at the house. He thought the house would have been 20–30 metres to the right of him as he drove along. He said that as he approached it he felt very frightened and didn't know what to do… "I was on my own and only had my rifle in the truck unloaded…There were no doors on the truck…I didn't stop…I felt it was best to get going as fast as I could and I put my foot down".
He said that thinking back to this episode these were South Vietnamese troops and not Australians or Americans. They couldn't have been Viet Cong as they wouldn't have had a helicopter shooting at the house. He said he reported the event to an officer when he got back. He said he can't recall being told what it was all about. He said that at the time the immediate fear was that he should get clear of the area. He said this event would probably have been some time between June and October 1971.
He said that ever since this event he thinks about it quite a lot and has specific nightmares about it. These are not frequent though and occur about three or four times a year.
That account seems to us to fall short of describing "intense fear, helplessness or horror."
Dr Kennedy was not called, but as set out in paragraph 10 above, she reported that Mr Carne was not forthcoming to her about disturbing events during his Vietnam service. The only relevant incident he related to her was the attack on the house, but the account Dr Kennedy was given seems to have included watching while "troops came in and killed the locals." Mr Carne in his evidence did not maintain that he had seen anyone being killed or even fleeing from the house during the attack. In fact he did not even say that he had actually witnessed a direct attack on the house (trans 49). He said he saw ground troops moving towards the house (trans 43) and saw smoke and heard gunfire.
We accept Mr Carne's account to the Tribunal of the three relevant events. We note that Mr Carne's evidence was supported in material respects by that of Mr Olney and Mr Wesson. Although Mr Olney and Mr Wesson saw the burnt out hulk of an American helicopter, and Mr Olney saw a rocket attack on a house, perhaps a couple of times, these events do not seem to have caused them to respond with anything approaching "intense fear, helplessness or horror." As Mr Olney said:
The main problems that we had when we were free running were flat tyres and breakdowns.
Neither Mr Wesson nor Mr Olney described the hulk of the American helicopter as still smouldering when they saw it, although Mr Olney said he thought it was fairly fresh when he first saw it. Nor did they speak as though it had caused them to suffer any fear or anxiety at all. Mr Olney said "We all saw it. We may have spoken about it over a beer in the canteen that night and pondered the fate of the people in it, but I can't really recall." (Trans. p162)
Those comments give some indication as to the character of the events relied on by Mr Carne. Of course one man may react to a particular stressor in a different way to another, and it is Mr Carne's response which is relevant and not that of anyone else. But Mr Carne himself did not describe his reaction to the three events in terms which lead us to find that his response involved "intense fear, helplessness or horror." We find from his evidence that he felt some anxiety to get away quickly from situations he perceived as dangerous. We find that neither the events, nor his responses to them, were such as to satisfy the requirements of paragraph (a) of the definition in the SoP.
In our opinion Dr Sime, Dr Cole and Dr Parkin were too ready to accept that Mr Carne's experiences in Vietnam satisfied the definition of traumatic events in the SoP, without really enquiring from him as to details of his experiences and as to whether those events did give rise to feelings of "intense fear, helplessness or horror."
We prefer the opinions of Dr Kennedy and Dr Byrne, that the criteria for a diagnosis of PTSD were not present, to that of Dr Sime, Dr Cole and Dr Parkin. We consider that Dr Kennedy's report presents an accurate account of the reactions of Mr Carne to stress and of the effect on him of his war-caused alcohol dependence with headaches. We are in agreement with her opinion that those problems affect Mr Carne, but that he does not also suffer from PTSD.
Dr Byrne in his report A5 set out the history he obtained of Mr Carne's service in Vietnam. It includes the three specified incidents, the attack on the house being described as "most terrifying" and the coming upon the smouldering helicopter as "upsetting". Mr Carne told Dr Byrne that when he saw the attack on the house, "I just kept going. I went as fast as I could." He said he was frightened that he would be shot.
However Dr Byrne, like Dr Kennedy, expressed the opinion that Mr Carne's description of symptoms, anxiety and avoidance behaviour did not warrant a diagnosis of PTSD.
It seems that Mr Carne, in his evidence to the Tribunal, placed more significance on feelings of tension when he sees groups of Vietnamese than he had done in his first interview with Dr Byrne. He had not mentioned that issue at his second interview with Dr Byrne or in his consultations with Dr Kennedy, (T8 pp43-40), Mr Dumbrell (T16 pp70-74), Dr Parkin (A3 and A4) or Dr Cole (A1). He had mentioned to Dr Sime (A2), that he avoided the casino because of the presence of the Vietnamese there. If significant symptoms in such circumstances had been consistently described we may have reached a different conclusion. As it is we consider that it is probable that the symptoms have become more serious in Mr Carne's mind as his claim has been proceeding. We do not consider that indicates that he suffers from PTSD. In regard to Mr Carne's reported ability to sit through war films and be "frightened but no more than anyone else" and to watch the Vietnam movie "Apocalypse Now" twice, we accept Dr Byrne's opinion that that is inconsistent with Mr Carne suffering PTSD as a result of his war-time experiences in Vietnam.
Applying the balance of probabilities test, as explained by the Federal Court in Cooke, to the question whether Mr Carne suffers from PTSD, we do not find that Mr Carne does suffer from PTSD. We consider that his experiences in Vietnam and his response to those experiences fall short of meeting the description in paragraph (a) of the definition in the SoP. Further we accept the opinions of Dr Kennedy and Dr Byrne that Mr Carne's description of his symptoms does not warrant a diagnosis of PTSD.
The next issue which requires consideration is the appropriate rate of pension in respect of Mr Carne's accepted disabilities. Mr Hyde in his final submissions said that the question of Mr Carne's ability to work would become relevant only if certain other submissions, which we take to be his submissions as to PTSD being accepted as a war-caused disease, were accepted. Mr Hyde said that it was clear from Mr Carne's evidence that he was having increased difficulty in working and that he preferred to work only when there was less pressure at the workplace. Mr Hyde then went on to briefly address the Tribunal on the question of entitlement to Intermediate Rate of pension. He made the point that of course all war-caused conditions would be relevant in considering that issue. Mr Hyde did not address the Tribunal as to the specific ratings for the accepted conditions.
Mr Herman in his closing address said that the differences between the parties as to the appropriate ratings for the conditions, other than those which cause emotional and behavioural impairment, were minor. However, he said that there was a significant difference as to the ratings for emotional and behavioural impairment. Mr Carne would be entitled to a pension of 60% of the General Rate if the Tribunal were to accept the lower ratings of 12 for emotional and behavioural impairment suggested by Dr Hibbens of the Department of Veterans' Affairs (R11), and Dr Byrne (R6). Those lower ratings were also accepted by the VRB. However Dr Sime and Dr Cole arrived at a rating of 21 for emotional and behavioural impairment. Dr Parkin did not calculate a final rating, although he gave a rating of 5 on Table 4.4, dealing with Mr Carne's difficulties at work. He was the only expert witness to do so. Mr Herman said that if the higher rating of 21 were to be accepted Mr Carne would be entitled to pension at 70% of the General Rate.
We are surprised that the medical witnesses, other than Dr Parkin, all of whom saw Mr Carne after he had reduced his hours of work in mid 1999, did not rate Mr Carne at 5 on Table 4.4. We note that Dr Byrne did say that, accepting the history as provided by Mr Carne, the accepted disability of psychoactive substance abuse or dependence with headaches, did prevent him undertaking remunerative work for more than 20 hours per week.
We accept Mr Carne's evidence as to the reason why he was unable to go on working five shifts in the gaming venue where he presently works. On that evidence Dr Byrne wrote in exhibit R6 page 9.1.1:
Someone with chronic headaches, and the associated pain, would understandably find it difficult to work in a casino type environment, interacting with a variety of customers, some of whom will range from being unpleasant to obnoxious. As he describes the role he would be required to do a variety of tasks, some of which would require a fair degree of attention to detail. Chronic headaches would limit his capacity to work effectively, without becoming irritable with customers or co-workers.
In our view the lower estimates of emotional and behavioural effects of the condition, under assessed Mr Carne on Tables 4.6 and 4.7 as well as on Table 4.4. Mr Carne's evidence was that there has been a significant reduction in social interaction and a significant reduction in recreational activities particularly in regard to fishing and golf. In view of the fact that Mr Carne has been having therapy with Dr Parkin, a rating of 3 on Table 4.8 is appropriate. Dr Byrne gave a rating of 4 points on Table 4.8 but this is not available on the current GARP.
The matters to which Dr Cole and Dr Sime referred in rating Mr Carne at 6 on Tables 4.1 and 4.2, were partly related to Vietnam flashbacks. As PTSD is not accepted, it would seem, from the Introduction to GARP, How to Use this Guide, p8 under the heading, Conditions and their sequelae, that they cannot be taken into account. That is somewhat unsatisfactory in that the basis for the acceptance of the condition of psychoactive substance abuse or dependence with headaches was, as appears from document T13 p60, that Mr Carne had experienced a stressful event during his service in Vietnam. It would seem that memories of that stressful event which cause impairment should be recognised in the assessment. However we accept that we cannot do so unless they are symptoms of an accepted condition. In any event we consider that a rating of 6 is appropriate on Table 4.1 as to subjective distress. That applies where a veteran has
Frequent symptoms causing moderate distress. The veteran will sometimes be unable to distract himself or herself from the distress.
We rely, in choosing that rating, on the evidence that there are frequent occasions when Mr Carne does not succeed in distracting himself from moderate distress, and sometimes he reacts by over indulging in alcohol.
In respect of Table 4.2 which deals with Manifest Distress, it seems to have been accepted by Dr Sime that Mr Carne's distress and pre-occupation with symptoms would be noticeable to astute observers or persons familiar with him. We accept that opinion. Mr Carne did give evidence that regular customers in the gaming venue, often comment on his mood. We find the appropriate rating is 6.
On Table 4.3, Functional Effects the appropriate rating is clearly NIL. As to Occupation, on Table 4.4, we have already said the rating should be 5. On 4.5, Domestic Situation, we consider the appropriate rating is 1 "Occasional friction with family members". He has no contact with the children of his first marriage but does get on alright with the daughter of his current wife and has occasional friction with his wife. On Table 4.6, Social Interaction, the appropriate rating is 3 for "Significant reduction in social interaction". Mr Carne said that he does not socialise much now. On Table 4.7 because of the significant reduction in recreational activities the rating is also 3 and on Table 4.8, as stated in paragraph 49, the rating is also 3.
Thus we find that the appropriate ratings to be added up are Table 4.1, 6, Table 4.2, 6, Table 4.4, 5, Table 4.6, 3, Table 4.8, 3. The rating thus becomes 23 points. Prior to June 1999 when Mr Carne reduced his working hours the three highest Tables of Tables 4.3 – 4.8 would have been 4.6, 4.7 and 4.8 all of which are rated at 3. The rating for that period would therefore have been 21.
The next step is to combine the impairment ratings for the various accepted conditions. Dr Hibbins gave 10 points for headaches but GARP Introduction to Chapter 4, Emotional and Behavioural , p 80, says:
Some conditions that affect emotional and behavioural function may have symptoms that are intermittent in nature. In these circumstances, Chapter 15 (Intermittent Impairment) should be used, and the rating obtained under that chapter compared with the rating obtained from this chapter. The higher rating is to be taken.
The rating we consider appropriate for Psychoactive Substance Abuse is 23 now, and 21 prior to June 1997. Those ratings are both higher than the impairment rating of 10 given by Dr Hibbens for headaches. Therefore the headache rating is not to be taken into account in calculating combined impairment. The other accepted conditions and Dr Hibbens assessments are as follows:
Spine and Limbs - Thoraco-Lumbar Spine 10 points
Spine and Limbs - Resting Joint Pain 5 points
Gastrointestinal - Digestive 5 points
Hearing and Tinnitus 2 points
Both parties accepted Dr Hibbens' ratings for conditions other than those assessed on Chapter 4 of GARP.
The Tribunal (as stated in paragraph 53) has given a rating of 23 for emotional and behavioural impairment after June 1999. The ratings to be combined are therefore as follows:
Ch 4 - Emotional and Behavioural 23 points (after June 1999, 21 points prior to June 1999)
Spine and Limbs - Thoraco-Lumbar Spine 10 points
Spine and Limbs - Resting Joint Pain 5 points
Gastrointestinal - Digestive 5 points
Hearing and Tinnitus 2 points
On the Combined Values Chart in Chapter 18 of GARP:
23 + 10 combine to 31,
31 + 5 combine to 34,
34 + 5 combine to 37,
37 + 2 combine to 38, which is rounded up to 40.
On the shaded area of the Table for Conversion to Degree of Incapacity, an impairment rating of 40 converts to degree of incapacity and pension of 70% of the General Rate. Using the figure of 21 for impairment on Chapter 4 prior to June 1999, gives an impairment rating of 37 which is also rounded up to 40 and which yields the same rate of pension.
The next issue is whether Mr Carne is entitled to pension at the Special or the Intermediate Rate. Mr Carne's evidence was that he presently works two shifts a week at the gaming room, although on occasions he is asked to and does work an extra shift. We accept that Mr Carne is not able to work full-time. In the absence of clear documentation from the employer, we find taking a common sense approach to the matter, that since he reduced his hours Mr Carne is able to work approximately 16 - 24 hours a week, but not able to work full time.
Clearly, Mr Carne can not satisfy s 24(1)(b) of the Act so as to qualify for Special rate of pension. The next question is whether he is qualified for Intermediate rate of pension under s 23 of the Act. Section 23(1) provides as follows:
23 Intermediate rate of pension
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
(c)the veteran is, by reason of incapacity from war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free from that incapacity; and
(d)section 24 or 25 does not apply to the veteran.
The only paragraphs which are in issue are 23 (1) (b) and (c). The respondent relied on Dr Byrne's opinion (R7) that Mr Carne would be able to work full-time in clerical work, as he did before the relocation of his employment with State Rivers and Water Supply Commission (now Rural Water Corporation).
Mr Carne's work history is that after discharge he returned to his pre-enlistment position with State Rivers and Rural Supply Commission and continued working there for 26 years in total. He took a voluntary redundancy in 1993, when the office moved to Tatura. Following this he worked full-time as a bar hand and gaming supervisor/attendant at a club in Hoppers Crossing. This involved serving drinks, working as a cashier, issuing money, validating winning tickets, serving drinks to customers playing poker machines, fixing the machines and cleaning up the room. Mr Carne's normal working week consisted of 38 to 40 hours a week.
In 1997 Mr Carne started his own gardening/lawn mowing business which lasted for 12 months. He then returned to bar work. Initially, he worked full time but around June 1999 he reduced his hours to two or three shifts a week. In evidence he said that he would not do any more than two, or sometimes three, shifts because it was getting too much for him. Mr Carne told Dr Parkin (A3) that he had been getting "aggro" at work, had no patience with the staff and there was concern he might get into a fight.
Mr Carne agreed with Mr Herman, that working in a club can be quite stressful. He said there could be a major confrontation with drunks once a week. He also agreed that major extensions are being done and they will increase the workload. Mr Herman asked Mr Carne whether a quieter environment, away from bars and pokies and confrontations, perhaps doing clerical work in a golf club or bowling club, would assist him remain in full time work (trans 137). Mr Carne responded that it would not change anything. He said he would still get headaches and dizzy spells. Further, he explained that most of the clerical work in the hospitality industry is done by the managers. He said: "The managers do the clerical work, so there's not really any call for it, so I doubt whether I'd be able to get a job doing that".
Mr Carne said that he had had the same problems when he was working as a clerical officer at the Water Commission. He was getting headaches and was feeling nauseous and was drinking heavily. He stated "It was affecting my work and I just wasn't coping there either. … There would still be the same problems".
Since reducing his hours Mr Carne said he felt more relaxed, coped better, his sleep had improved and home life was better. As stated in paragraph 56, we find on the evidence that Mr Carne is able to undertake remunerative work for 16 to 24 hours a week. Working part-time or intermittently does not in itself render Mr Carne eligible for pension at the intermediate rate. Section 23 (1) (b) is affected by s 23 (2) which provides:
. . .
(2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a)…
(b)in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking - if a veteran is undertaking, or capable of undertaking, that work for more than 20 hours per week.
. . .
The Tribunal has found that Mr Carne is capable of undertaking remunerative work for up to three shifts a week totalling 16 to 24 hours a week. On one interpretation that means that he is capable of undertaking his work for more than 20 hours per week. However it may be that if we had figures as to the actual hours worked since Mr Carne reduced his shifts, it would be apparent that on average he does not work more than 20 hours per week, and only does so on those occasions when he is asked to do so to help his employer out. If such were the circumstances it may be reasonable to find that Mr Carne, in general, is not undertaking or capable of undertaking his work for more than 20 hours a week.
We do not have enough information to decide whether or not Mr Carne is entitled to the intermediate rate of pension. We therefore consider it appropriate to give Mr Carne 14 days to provide documentation from his employer as to the hours he has worked since he stopped working full-time. Once that material is received both parties will have liberty to make written submissions or to apply to bring the matter on for further hearing on the issue whether Mr Carne is entitled to the intermediate rate of pension and if so from what date.
The Tribunal will affirm the decision of the Repatriation Commission rejecting Mr Carne's claim to have PTSD accepted as a war-caused disease. The Tribunal will vary the decision of the VRB as to assessment to provide that Mr Carne is entitled to pension at 70% of the General Rate with effect from 1 January 1997. The Tribunal will adjourn the issue of entitlement to intermediate rate of pension to allow further evidence to be produced and for the parties to then consider what further steps are required.
I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member, Mr W McLean, Member and Assoc. Prof. J Maynard, Member
Signed: Anne O'Rourke
AssociateDate/s of Hearing 25 February 2000
Date of Decision 27 June 2000
Counsel for the Applicant Mr D Hyde
Solicitor for the Applicant De Marchi & Associates
Counsel for the Respondent Nil
Solicitor for the Respondent Nil
Departmental Advocate Mr K Herman
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