Church and Repatriation Commission

[2010] AATA 1042

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1042

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2009/4813

VETERANS’ APPEALS DIVISION		)
Re		STANLEY CHURCH

Applicant

And  REPATRIATION COMMISSION

Respondent

DECISION

Tribunal  Senior Member Bernard J McCabe

Date 22 December 2010

Place Brisbane (heard in Townsville)

Decision  The Tribunal sets aside the decision under review and decides in substitution that the applicant has experienced a clinical worsening of his PTSD condition as a consequence of operational service. His major depression and alcohol abuse conditions are also linked to his service as a result. The matter should be remitted to the Commission for assessment with a date of effect of 14 October 2008.

...................[Sgd]...........................

Senior Member

CATCHWORDS

VETERANS’ COMPENSATION – post-traumatic stress disorder – depressive disorder – alcohol abuse disorder – whether applicant experienced clinical worsening as a result of operational service – claims of stressful events – historical discrepancies – decision set aside.

Veterans’ Entitlements Act 1986 (Cth), s 120

Repatriation Commission v Milenz (2006) 93 ALD 107

REASONS FOR DECISION

22 December 2010 Senior Member Bernard J McCabe

1.      Stanley Church joined the Navy in 1963 when he was 15 years of age. He served aboard HMAS Melbourne when that ship collided with HMAS Voyager in 1964. He was still on the Melbourne when it collided with USS Frank E Evans in 1969. He developed post-traumatic stress disorder (PTSD) as a result of the Voyager incident in particular. He subsequently developed major depressive disorder and alcohol abuse disorder.

2.      Mr Church is not eligible for a pension as a result of the Voyager and Evans incidents because they did not occur while he was on operational service. But Mr Church now points to three other incidents that he claims occurred while he was on operational service after the collisions. He said those events caused a clinical worsening of his existing PTSD condition. He has sought a pension under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) on that basis.

The background facts

3.      Mr Church joined the Navy as a young man. He worked as a stoker. Most of his time was spent in the boiler room of the various ships on which he served. He was on the Melbourne the night that it collided with the Voyager. He took an active role in assisting the injured sailors who had been taken from the sea after the Voyager sank.  The events he described were clearly distressing. He gave evidence to the effect that he experienced sleeplessness, bad dreams and intrusive recollections for a period following the incident. He also began to drink. But he said he began to feel better after a while. He said his experience of the subsequent collision with the Frank E Evans was less distressing, if only because he was at work in the boiler room when the collision occurred and he did not have the opportunity to go on deck until many hours after the incident. He agreed that memories of the Voyager incident flooded back when the Evans collision occurred but said he got over it relatively quickly.

4.      I suspect Mr Church may have downplayed the seriousness of his reaction to what occurred at the time of the Voyager and Evans collisions. But I will say more about that later.

5.      Mr Church said there were three other stressful events that occurred during the course of his operational service. He said the most serious of these was an incident in the boiler room of HMAS Duchess in 1971. As he explained it, the boiler room was sealed and pressurised. One accessed the boiler room through an airlock that enabled the relatively high pressure to be maintained. Air was pumped into the boiler room under pressure from intakes on the deck of the ship. The ship conducted what was known as an “NBC attack defence exercise”. “NBC” stands for “nuclear, biological or chemical” attack. As part of the exercise, the air intakes on the deck were sealed and air was pumped through filters. The temperature in the boiler room climbed quickly as the exercise progressed. It exceeded 70 degrees Celsius. One of the four crew-members for whom Mr Church was responsible collapsed as a result of the heat. The man was a friend of Mr Church. He had to be taken away for medical treatment. Mr Church said he had no choice but to contact the bridge and ask them to terminate the exercise and restore the regular air-flow. That process took at least ten minutes.

6.      Mr Church said he thought that the lives of his crew were in grave danger when the exercise went awry. He was particularly worried about the life of the man who collapsed.

7.      There is no record of this exercise occurring while the ship was on operational service (although the ship’s records uncovered by Commodore Mulcare, who provided a report and gave evidence, said an exercise did occur off the east coast of Australia some time before). Mr Church said in his statement that he recalled the exercise took place as the ship was approaching Vung Tau, although I understand he conceded it may have occurred as the ship was leaving port. Mr Honchin, for Mr Church, pointed out that Mr Church would not have been qualified to be in charge in the boiler room until he received the appropriate certification. That occurred on the day the ship left Vung Tau. Mr Church said he thought the exercise was part of a major exercise, but he was not certain of that.

8.      The second incident occurred aboard HMAS Vampire in Vung Tau. The date is unclear, but I infer it must have occurred on one of Vampire’s three trips to Vung Tau between 1966 and 1967. Mr Church says he was standing on the deck when the ship’s cutter approached. The small boat had been on guard duty, searching for Viet Cong frogmen who might try and mine the ship while it lay at anchor in the harbour. He said he saw a body lying on the bottom of the boat. The Vietnamese man was naked from the waist up. Mr Church assumed the man was dead. He said that assumption was shared by other sailors who saw the incident. Once again there is no reference to the incident in the ship’s records. That is surprising: Commodore Mulcare said such an incident would certainly have been worthy of a detailed entry in the ship’s report of proceedings and its daily log – if it had happened.

9.      The third incident occurred aboard HMAS Vampire in 1966. It involved scare charges. Mr Church said he knew scare charges were likely to be used in Vung Tau. He says he also knew why the charges were likely to be used, which was a source of worry in itself. Early one morning, before the ship was due to depart, Mr Church was on duty in the engine room. He said he had just started the main cooling pump. Shortly thereafter, there was a loud explosion in the water close by. He said the ship seemed to move suddenly in response to the explosion. It was louder than the scare charges that were typically thrown from the cutter some distance away, and which tended to explode with a distant thud. He says he thought the ship had struck a mine and in his statement he said he immediately expected the side of the ship to cave in. He scrambled up top and discovered that the officer of the watch had thrown a charge into the water immediately alongside the ship when he saw bubbles in the water. It turns out the bubbles were caused by the piece of machinery Mr Church had been operating. From what the officer told him, Mr Church believed the charge – which may or may not have been a hand grenade, as opposed to a standard scare charge – was thrown into the water at a point which was about 2 metres from where he had been working.

The medical evidence

10.     The preponderance of the medical evidence said Mr Church suffers from PTSD, major depressive disorder and alcohol abuse. The evidence makes it clear that the PTSD condition had its onset in the aftermath of the Voyager collision. The other two conditions followed from the PTSD as a matter of course.

11.     Dr Likely, the treating psychiatrist, said the applicant’s PTSD had begun to settle down after the Voyager incident. Dr Likely said Mr Church was in partial remission by the time of the exercise in the boiler room. But that incident caused a marked resurgence of symptoms, including sleeplessness, bad dreams and intrusive recollections and arousal. Those symptoms appeared with increased frequency and intensity. While those observations rely on the applicant’s self-reporting, and the self-reporting only occurred some time after Dr Likely began to treat Mr Church, I note there is no direct evidence to contradict Mr Church’s account.

The legal framework

12. Claims must be assessed under s 120 of the Act. Having arrived at a diagnosis, s 120 requires that I satisfy myself that a reasonable hypothesis exists. That means I must be satisfied on the whole of the material before me that the material points to a connection between the applicant’s operational service and his claimed conditions.

13. The applicant’s hypothesis did not take its final shape until the medical evidence was completed at the hearing. The hypothesis is that the applicant’s pre-existing PTSD condition was exacerbated by a number of incidents occurring during the course of operational service. That worsened condition led to the development of major depressive disorder and the alcohol abuse condition. I am satisfied there is material that points to that conclusion. I also acknowledge that the relevant statement of principles (“SoP”) for PTSD is No 5 of 2008. The SoP for depressive disorder is No 27 of 2008 and the SoP for alcohol abuse is No 1 of 2009. The Commission has conceded that the applicant necessarily succeeds in relation to the depression and alcohol claims if he is successful in respect of PTSD.

14.     It then becomes necessary for me to consider whether the applicant’s story fits the template of the relevant SoP. In particular, I must decide whether any of the three events in question qualify as either a category 1A or category 1B stressor within the meaning of the SoP. I must also decide whether the deterioration in his condition is capable of being regarded as a “clinical worsening” of the condition in the sense intended in the SoP.

The stressors

15.     It seems to me that the applicant’s account of witnessing a body in the bottom of the Vampire’s cutter does qualify as experiencing a category 1B stressor. I note that the examples in the SoP of category 1B stressors include “viewing corpses”. The applicant says he saw the body in plain view from about 10 metres. There was some speculation at the hearing over whether the individual in the bottom of the boat really was dead. It was never formally confirmed but Mr Church said everyone he spoke to about the incident at the time shared his assumption that they were viewing a dead body. I am satisfied that was a reasonable conclusion for any person in Mr Church’s position with his background, knowledge and experience.

16.     I am also prepared to accept that the scare charge incident described by Mr Church aboard the Vampire could reasonably be regarded as a life threatening event. According to Mr Church, the explosion in the water occurred at an unusually close range from the ship, and it was right outside the hull alongside where he was working. He said he thought the ship had been mined and he expected the hull to give way. I accept anyone in Mr Church’s position could have regarded this unusual explosion (as opposed to the ordinary scare charge explosions) as a life-threatening event, and thus a category 1A stressor.

17.     That leaves the boiler-room incident. Mr Stoner, for the respondent, conceded that the events described by the applicant were capable of being regarded as a category 1A stressor. I accept the concession was appropriately made. The lives of the crew members were obviously in danger during the course of the exercise; one crew member was overcome by the extreme heat. I accept it could be regarded as a life-threatening event. 

Clinical worsening

18.     Dr Likely said the applicant’s symptoms re-emerged with particular intensity following the boiler room incident. That incident occurred in 1971. It remains to be seen whether the reappearance of the symptoms amounts to a clinical worsening of the condition within the meaning of the SoP.

19.     The leading case on this point is the Federal Court’s decision in Repatriation Commission v Milenz (2006) 93 ALD 107. That case considered whether there had been a clinical worsening of an alcohol abuse condition. Finn J said it was not enough for the Tribunal to find the applicant was drinking more heavily after a particular event. His Honour said the Tribunal must refer back to the diagnostic criteria in the SoP when it was considering whether there was a clinical worsening of the condition. Mr Stoner questioned whether there was enough evidence before me to reach a view that there had been a clinical worsening in that sense.

20.     I am satisfied there is evidence of a clinical worsening of the applicant’s condition. Dr Likely gave evidence that the applicant was experiencing more of the symptoms referred to in the diagnostic criteria. He referred to the applicant speaking of re-experiencing the events (especially the event in the boiler room) (criterion B), avoidance of stimuli (criterion C), hyper-arousal (criterion D), and significant distress or impairment (criterion F). The evidence also suggested the symptoms have persisted for a long time (criterion E).

21.      I acknowledge Dr Likely’s opinion is based on the applicant’s self-reporting. But it is only once I have satisfied myself that his story is capable of fitting the template set out in the SoP that I can turn to the question of whether I should accept his account.

22.     I acknowledge there is evidence in the records that is not consistent with the applicant’s account of the incidents in question. Commodore Mulcare, who prepared a report for Writeway Researchers, said there was no record of the boiler room incident in the ship’s documents. Those documents suggested an NBC defence exercise had been conducted in Australian waters before the ship commenced operational service. The applicant insists it occurred in Vietnamese waters. Commodate Mulcare also doubted whether a ship’s officer would use a hand grenade in place of a scare charge, although he accepted it was likely there were hand grenades on board. He also rejected the suggestion that the ship’s log and record of proceedings would fail to mention a body being recovered from the water.

23.     I am troubled by these discrepancies in the evidence. The absence of contemporaneous records is especially troubling in circumstances where the applicant was a poor historian. Although I accept he gave his evidence truthfully, he had a poor recollection of events. His memory of what occurred is undoubtedly affected by the passage of years and the fact of his psychiatric conditions.

24.     While acknowledging the discrepancies in the evidence, I am not persuaded the applicant’s account of the boiler room incident should be disbelieved. His recollection of the event in his evidence was comparatively clear. The fact the ship’s records do not refer to it (but they do refer to a major NBC defence exercise off the Australian coast) might be because the exercise in the boiler room was a discrete exercise.

25.     I would also accept the applicant’s account of his symptoms in the aftermath of the boiler room incident that were recounted to Dr Likely. Again, I acknowledge Mr Church was a poor historian, and it is reasonable to have some doubt about the reliability of his evidence. But his account is not effectively or substantially contradicted by other evidence. I think it is appropriate that it be accepted.

Conclusion

26.     The decision under review should be set aside. The applicant has experienced a clinical worsening of his PTSD condition as a consequence of operational service. His major depression and alcohol abuse conditions are also linked to his service as a result. The matter should be remitted to the Commission for assessment with a date of effect of 14 October 2008.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed: .............................[Sgd]..............................................
  Patrick MacDonald

Dates of Hearing  7 December 2010 
  8 December 2010
Date of Decision  22 December 2010
Counsel for the Applicant              Mr D Honchin

Solicitor for the Applicant               Michael Purcell, Purcell Taylor Lawyers

Advocate for the Respondent        Mr J Stoner