Charman and Repatriation Commission

[2004] AATA 1310

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1310

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/1248

VETERANS' APPEALS DIVISION		)
Re		NORMAN CHARMAN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms R Hunt, Senior Member.

Date9 December 2004

PlaceSydney

Decision The decision under review is affirmed.

….[sgd]Ms R Hunt….

Senior Member

CATCHWORDS

VETERANS' ENTITLEMENTS - whether injury aggravated by eligible war service – existing condition – existing condition must have been made worse - claim for post traumatic stress disorder (PTSD) - conflicting medical opinions - on balance of probabilities Applicant did not suffer from PTSD.

Veterans' Entitlements Act 1986 ss 120, 120A

Statement of Principles concerning PTSD (Instrument No 3 of 1999 as amended by Instrument No 1 of 2000)

Benjamin v Repatriation Commission (2001) 70 ALD 622

Nowlan v Repatriation Commission (1991) 23 ALD 298

Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537

Re Conway and Repatriation Commission (1988) 14 ALD 673

Re Trigg and Repatriation Commission (1990) 20 ALD 194.

Repatriation Commission v Deledio (1998) 49 ALD 193

Repatriation Commission v Hancock (2003) 37 AAR 383

Woodward v Repatriation Commission (2003) 75 ALD 420

REASONS FOR DECISION

9  December 2004

SUMMARY

Ms R Hunt, Senior Member          

1.      Before the Tribunal, the Applicant, Mr Charman, is claiming that he suffers from post traumatic stress disorder (PTSD) and that his condition was aggravated by events during his operational service. On 25 June 2003, the Veterans’ Review Board (the Board) affirmed the decision of a delegate of the Respondent assessing Mr Charman’s claim for medical treatment and a pension for incapacity from conditions claimed as alcohol dependence, irritable bowel syndrome, hypertension, chronic airways limitation, bilateral sensorineural hearing loss with tinnitus and PTSD. The Board affirmed the decision to refuse some of Mr Charman’s claims and the assessment of his entitlement at 30% of the general rate. The Board made the same finding as the delegate that there was no reasonable hypothesis connecting Mr Charman’s PTSD with operational service.

2.      In the review application to the Tribunal made on 29 July 2003, Mr Charman sought review only of that part of the decision rejecting his claim to have PTSD accepted as a war-caused disease.  Mr Charman now claims that his condition was not war-caused initially but that he already suffered from the condition before he did war service. He seeks recognition that his condition was aggravated during eligible war service. The Respondent argued that Mr Charman did not suffer from PTSD at all. On the evidence before me, the Tribunal has found that Mr Charman does suffer from PTSD but has affirmed the decision of the Board that he is not entitled to a pension related to this condition. The Tribunal has found that his PTSD was not aggravated during his operational service for the reasons set out below.

BACKGROUND

3.      Mr Charman is a Korean War veteran and served with the Far Eastern Strategic Reserve (FESR) on HMAS Melbourne during the Malayan emergency. His agreed periods of eligible war service and operational service were from 27 October 1954 to 3 December 1954, between 21 September 1956 and 12 October 1956 and, again, between 17 March 1958 and 3 April 1958. In total, he served with the Royal Australian Navy (the RAN) from 11 March 1952 to 10 March 1958 and from 17 June 1958 to 16 June 1964.

4.      Mr Charman gave oral evidence at a Tribunal hearing. He recounted having witnessed several distressing or horrifying incidents before he performed wartime service. Mr Charman told the Tribunal that he participated in rescue and recovery operations as a requirement of his duties while serving with the RAN. He submitted that the main stressors, including an accident he witnessed at his base in England, occurred during the 1950s. Mr Charman’s case as argued involved acceptance that a series of traumatic events contributed to his developing PTSD. Subsequent events which took place during his war service aggravated the condition. More details of his evidence are set out below under “discussion of evidence and submissions”.

LEGISLATION AND ITS APPLICATION

5.      Compensation by way of pension is payable under section 9(1)(e) of the Veterans’ Entitlement Act 1986 ( the Act) where a veteran suffers from an injury or disease which existed before service and this condition has been aggravated during eligible war service. There is no dispute that Mr Charman had periods of eligible war service and operational service. The parties agree that Mr Charman was in operational service during his stint in Korea and in the FESR.

6.      The parties in the present case agree that a Statement of Principles (SoP) covers PTSD in the present case. The Respondent referred to SoP No 3 of 1999 as amended by No 1 of 2000.  Mr Charman’s representative suggested that he satisfied factor 5(b) of SoP No 3 of 1997. This is an incorrect reference as no SoP of this title deals with the disorder. Expert medical evidence heard by the Tribunal referred to factor 5 of SoP No 3 of 1999 as amended by No 1 of 2000 and the Tribunal is satisfied that this is the governing SoP in this case. Where a relevant SoP exists, sections 120 and 120A of the Act requires the Tribunal to be satisfied, beyond reasonable doubt, that the hypothesis connecting the injury suffered by the Applicant with the circumstances of the particular service rendered by the Applicant be reasonable. Also, the Tribunal must approach its task as explained by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97. Further, the criteria that must be met for this psychiatric condition, under SoP 3 of 1999, (being derived from the Diagnostic and Statistical Manual of Mental Disorders 4^th edition (DSM IV)) at 2(B), involve exposure to a traumatic event which is persistently re-experienced. However, Mr Charman is contending he has suffered aggravation of pre-existing PTSD and is not claiming that his condition is the result of any hypothesis connecting the condition to eligible service, other than by way of aggravation.

DISCUSSION OF MEDICAL EVIDENCE AND SUBMISSIONS

7.      The Board was reasonably satisfied that Mr Charman had PTSD but that there was no sufficient ground for determining it was war-caused. The Respondent argued before the Tribunal that Mr Charman does not suffer from PTSD but had mild symptoms of an anxiety disorder which did not fulfil the requirements for an anxiety disorder according to DSM IV or the SoP governing PTSD. The expert medical opinion before the Tribunal as to whether Mr Charman suffered from PTSD was conflicting. The Tribunal’s task was also made more difficult as the medical reports were not predicated on the submission made before the Tribunal that the condition was pre-existing and aggravated during operational service, apart from a brie reference in Dr Dinnen’s report dated 20 October 2003.

8.      Before embarking on the Deledio steps outlined, the first step is to ascertain the specific injuries or diseases suffered by an applicant: see Repatriation Commission v Hancock (2003) 37 AAR 383. In making this preliminary finding, the standard of proof is that of reasonable satisfaction or the balance of probabilities. See Benjamin v Repatriation Commission (2001) 70 ALD 622 and Repatriation Commission v Cooke (2001) 64 ALD 411.

9.      The Respondent relied on the report of Dr Haik, dated 10 February 2004, (Exhibit R1) to show that Mr Charman does not suffer from the disease or injury claimed. The Respondent also tendered a series of medical reports and clinical notes and a historian’s report. Mr Charman tendered the report of Dr Anthony Dinnen, dated 20 October 2003, and made reference to additional reports of doctors included in the Tribunal documents. He argued that these reports established he suffered from PTSD and the condition was aggravated during operational service.

10.     Dr Gordon Davies, psychiatrist, on 11 August 1997, reported long term elements of a PTSD Syndrome as a result of experiences in the RAN and noted Mr Charman struggled to cope by denial. Dr Patrick Morris, consultant psychiatrist, to whom Mr Charman was referred by another treating doctor, made a provisional diagnosis of “mild anxiety with some relationship to PTSD but not symptomatic”, on 11 October 2001.. Dr Karl Koller, consultant psychiatrist, who saw Mr Charman at the request of an adviser, furnished a report on 5 December 2002. Dr Koller diagnosed chronic PTSD and recommended continuing treatment. He noted a further appointment had been made.  The Board made its finding of PTSD on the basis of Dr Koller’s report.

11.     Dr Dinnen noted the first psychiatric report as that of Dr Gordon Davies in 1997 and concluded in his own comprehensive report that Mr Charman suffered from mild post traumatic stress disorder consequent to operational service. Dr Dinnen further stated that Factor 5(b) in SoP No 3 of 1997 was satisfied. Factor 5(b) in the SoP No 3 of 1999, which was included in the documents before the Tribunal as the appropriate SoP, deals with “experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder”.  Dr Dinnen referred to the 1999 SoP in giving oral evidence and I have taken Dr Dinnen’s report as meaning to refer to factor 5(b) in the 1999 SoP.

12.     Dr Dinnen found that Mr Charman, after having experienced a series of stressful events during his 12 years in the RAN, did suffer from chronic mild PTSD. Dr Dinnen recorded that his view accorded with that of Dr Davies and Dr Koller. He believed that the breakdown of Mr Charman’s marriage and the death of his daughter had increased the severity of his condition. He also agreed with Dr Davies’ view that he coped through denial and this was apparent when he did not mention the death of his daughter at interview. Dr Dinnen observed that PTSD, while classically consequent to a single event, was more commonly found as an accumulation of traumatic experience. He concluded his report with the opinion that Mr Charman “does suffer from mild post traumatic stress disorder consequent to operational service…”.

13.     On the other hand, Dr Haik, who saw Mr Charman at the request of the Respondent, reported on 10 February 2004 that he found no evidence of Mr Charman’s being afflicted with PTSD. Dr Haik made a very thorough analysis and set out reasons why he disagreed with the reports of other psychiatrists which were available to him. He believed that Mr Charman had been able to adjust to the stressors to which he was exposed. Otherwise, he would not have been able to work as a member of a rescue team both in the RAN and in the mines. He found Mr Charman had mild symptoms of an anxiety disorder which required treatment but did not meet the full DSM IV criteria for PTSD. He considered it was reasonable to suggest that he did suffer PTSD prior to 2002 (page 9, paragraph 4 of report). Dr Haik did not make a conclusion about possible aggravation during operational service as he had dismissed a diagnosis of PTSD at the time of making his report.

EVIDENCE OF SEVERE STRESSORS

14.     As to whether Mr Charman experienced a severe stressor during operational service, which aggravated his pre-existing condition, the Respondent again denied he had the condition. In the alternative, the Respondent said there had been no acceleration beyond the normal progression of the disease to constitute clinical worsening.

15.     The first incident said to have been a severe stressor causing or contributing to Mr Charman’s PTSD was in 1952 when he was working at HMAS Albatross at Nowra. He was in air traffic control when an aircraft crashed and he assisted in picking up body parts. In 1954, he served in the Far East. While stationed later at HMS Heron in the United Kingdom, he witnessed a mid-air collision where both pilots were killed. The next incident occurred in 1956 when he still was stationed in England. A plane crashed into a two-storey house and then cart-wheeled into a caravan park at the end of the runway at Yeoville in heavy fog. He was in the fire crew and had to attend the crash. Among the dead, Mr Charman told the Tribunal, was a young mother who was cut in half and her baby. Mr Charman told how he was detailed to recover the aircraft and bodies and found the episode very upsetting. He had known the pilot and his wife well and had played rugby union with the pilot. Another time, while stationed in Lossiemouth, Scotland, he attended the funeral of a British pilot killed in another air accident and told the Tribunal that he started to think he was involved in air accidents wherever he went.

16.     The next incident was the crash of an aircraft while Mr Charman was in training in Moreton Bay outside Brisbane. He was standing on the flight deck of his vessel when he saw the aircraft stall after take-off and crash intro the sea. Both the pilot and observer were killed. He knew these persons and the incident upset the whole squadron. He told the Tribunal only two helmets were recovered and that he attended the funerals at sea.

17.     Following the aircraft crash, Mr Charman’s ship returned to Nowra and disembarked all the aircraft for testing.  He re-embarked about three weeks later at Jervis Bay and the ship headed for Singapore before operating off the coast of Malaya during the Emergency.  The ship returned to Jervis Bay where, on 6 August 1956, he saw smoke in the sky and knew it was another aircraft crash.  He became aware the pilot was killed when the chaplain and senior officer were looking for a relative to break the news to the deceased pilot’s wife.

18.     In 1958, Mr Charman went back on his former ship, HMAS Melbourne, where he served as a flight deck director for approximately 2½ years. He found this occupation very nerve-wracking as pilots’ lives depended on the flight deck crew. He said he saw a few crashes during this time including a gannet that crashed into the sea. He also described two close personal encounters when something went wrong with landings while he was on deck.

19.     On leaving HMAS Melbourne, Mr Charman did a course and became a petty officer. He then worked in the control tower at HMAS Albatross as an air traffic controller. He was on duty when the news came in of the disaster when HMAS Melbourne “ran over” HMAS Voyager. He knew a lot of people on board and was upset at the news and again the next day when the lists of missing persons came out. Over the years in the navy he knew many people who had died as the result of accidents. Mr Charman also told of personal events in his life including separation from his wife and the death of their daughter. These events were referred to in the reports of Dr Dinnen, Dr Haik and other reports in evidence.

20.     The Respondent suggested the only event raised which occurred during operational service was a sea venom crash in 1959/1960. Referring to the historian’s report tendered, this event most likely occurred on 9 May 1960 when a gannet ditched into the sea and the pilot “did not sustain any real injuries”. The Respondent argued this was not a severe stressor and that, even if a factor had been met, the hypothesis linking the alleged condition to eligible service had to be reasonable. I note that a gannet and a sea venom are different types of aircraft and that Mr Charman referred to more than once incident.

FINDINGS AND REASONS

21.     DSM IV in listing the diagnostic criteria for PTSD states that the person’s response to the traumatic event must involve intense fear, helplessness or horror. The Respondent has argued that events during operational service were not severe stressors and that, even if a factor had been met, the hypothesis linking the alleged condition to eligible service had to be reasonable.

22.     From my reading of section 9(1)(e) of the Act, it is not necessary that the events experienced during operational service be of the same level of intensity to show aggravation of the disease or injury. The provision merely requires an aggravation of a pre-existing condition.

23.     I accept that Mr Charman was quite clearly affected by the deaths of various people before the crash of the gannet and/ or sea venom and other flight deck incidents occurring during operational service. I further accept that a series of accidents and incidents occurred during Mr Charman’s operational service although these events were less severe than those he had experience prior to his operational service. I note also that the body of medical opinion is that Mr Charman suffered from PTSD at least up to 2002. Even Dr Haik, who found Mr Charman did not suffer PTSD in 2004, was of the opinion that it was reasonable to suggest he had suffered from PTSD up to the year 2002. The further questions for the Tribunal are whether there is evidence that his reaction to events during eligible service brought about an aggravation or acceleration of his condition such as to constitute clinical worsening? 

24.     In Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 Windeyer J stated at 593-594 that aggravation means that an existing condition must have been made worse, not that it has simply become worse. I also note that aggravation of the underlying disease must be distinguished form aggravation of the symptoms of the disease. See Re Trigg and Repatriation Commission (1990) 20 ALD 194. The degree of aggravation need not be severe but must be more than minimal: Nowlan v Repatriation Commission (1991) 23 ALD 298.  By applying these guidelines to the reports before me, I am not satisfied that Mr Charman’s condition was worsened by incidents during operation service and that, even if it did worsen for a time, that this is not currently the position.

25.     In view of the recent medical opinion of Dr Dinnen expressed in 2004 that Mr Charman suffers from mild chronic PTSD only, and that he already had a pre-existing PTSD before he performed his operational service, it is difficult to come to a conclusion that Mr Charman’s condition was made worse or accelerated as a result of his operational service. At best, continuing upsetting experiences during operational service may have resulted in a continuation of Mr Charman’s disorder. This state of affairs does not, in my opinion, amount to the injury or disease having been contributed to in a material degree by, or aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease, as set out in section 9(1)(e).

26.     Dr Haik in 2004 found no PTSD condition at all. Medical reports before the Tribunal apart from those of Dr Haik and Dr Dinnen pre-date 2004 and are of limited assistance to the Tribunal in assessing aggravation. While aggravation does not necessarily have to be continual (Re Conway and Repatriation Commission (1988) 14 ALD 673, a condition that is temporary in nature does not qualify and the medical reports are not current. They do not establish that PTSD is still continuing. Further, none of the reports apart from that of Dr Dinnen’s described Mr Charman’s condition as having been aggravated by events during operational service. Therefore, none of the reports apart from Dr Dinnen’s supports Mr Charman’s case as to aggravation.

27.     It follows that the Tribunal is not satisfied on the balance of probabilities or at all that Mr Charman suffered aggravation of PTSD in accordance with section 9(1)(e) of the Act. The Tribunal further agrees with the Board’s finding that, although Mr Charman does suffer from PTSD, there is no reasonable hypothesis established that connects Mr Charman’s PTSD with operational service.

28.     Consequently, I find that Mr Charman’s pension entitlement should not be varied and the decision of the Board should be affirmed.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Robin Hunt, Senior Member

Signed:         .....................................................................................
  Associate: Reuben Mansour

Date of hearing  1 September 2004
Date of decision     9 December 2004
Solicitor for the Applicant  Fairbairn Lawyers
Representative for the Repatriation Commission           Ms Shontelle Kenny