Collier and Repatriation Commission
[2005] AATA 295
•6 April 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 295
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1491
VETERANS' APPEALS DIVISION ) Re TERRY COLLIER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen;
Dr J D Campbell, MemberDate6 April 2005
PlaceSydney
Decision The decision under review is affirmed. (Sgd) MD ALLEN
…………………………………
Presiding Member
CATCHWORDS
VETERANS' ENTITLEMENTS – Application to have Post Traumatic Stress Disorder and Alcohol Dependence attributed to Applicant’s war service – Naval operational service – whether Applicant experienced severe psychosocial stressor – Tribunal satisfied that Applicant suffers from anxiety state and alcohol dependence/abuse – hypothesis not ‘reasonable’ as it fails to conform to Statement of Principles – decision under review affirmed.
Veterans’ Entitlements Act 1986 – sections 23, 24, 120, 120A
Repatriation Commission v Smith (1987) 15 FCR 327
Benjamin v Repatriation Commission (2001) 70 ALD 622
Woodward v Repatriation Commission (2003) 131 FCR 473
Repatriation Commission v Stoddart (2003) 134 FCR 392
Repatriation Commission v Deledio (1998) 83 FCR 82
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
REASONS FOR DECISION
6 April 2005 Senior Member M D Allen
Dr J D Campbell, Member1. By application lodged the 19th day of September 2003, the Applicant sought review of a decision by the Respondent that rejected his claim to have the disabilities described as “Post Traumatic Stress Disorder and Alcohol Dependence” attributed to his war service and increased the disability pension payable to him to 80 per cent of the General Rate but denied payment of pension at the Intermediate or Special Rates of pension.
2. As the Applicant had operational service as that term is defined in s 6C of the Veterans’ Entitlement Act 1986 (VEA) the standard of proof in this matter so far as relates to entitlement to pension is that prescribed by ss 120(1) and (3) VEA. Those subsections provide that any disease claimed by a veteran to be war-caused shall be accepted as being so caused unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal will be deemed to be so satisfied if, after consideration of the whole of the material before it, the Tribunal is of the opinion, that the said material does not raise a reasonable hypothesis connecting the disease with the circumstances of the service rendered by the said veteran. Pursuant to s 120A VEA a hypothesis will not be a “reasonable hypothesis” unless it conforms to a so called Statement of Principles (SoP) issued by the Repatriation Medical Authority.
3. Subsection 120(6) VEA provides that neither party to this review bears any onus of proof.
4. The manner in which the Tribunal must approach its task where a SoP exists is set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 namely:
“(1) The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
(2) If the material does not raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11).
(3) If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
(4) The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
5. The standard of proof in relation to all other matters for determination by the Tribunal is prescribed in ss 120(4) VEA namely that of to the Tribunal’s “reasonable satisfaction”. In Repatriation Commission v Smith (1987) 15 FCR 327 the Full Court of the Federal Court equated that standard to the civil standard of proof namely that of proof on the balance of probabilities.
6. The Applicant also had Defence Service as defined by Part IV of the VEA from 7 December 1972 until his discharge from the Royal Australian Navy (RAN) by sentence of Court Martial on 9 December 1992.
7. Notwithstanding the manner in which the Tribunal is required to approach the question of entitlement to pension as outlined in Deledio (supra), the first step is to ascertain the specific injuries or diseases suffered by the Applicant: see Repatriation Commission v Hancock (2003) 37 AAR 383. In making this finding, the standard of proof, as pointed out in Benjamin v Repatriation Commission (2001) 70 ALD 622 is that of the Tribunal’s reasonable satisfaction and in which the Statements of Principle (SoP) regime established by s196(B) VEA has no part to play.
8. There have been numerous psychiatrists’ reports regarding the Applicant’s mental state. These reports may be summarised thus:
13 January 1994 Dr Oleh Kay Generalised Anxiety Disorder
29 May 1995 Dr David Lord Post Traumatic Stress Disorder
28 March 1996 Dr Paul W Skerritt Anxiety Disorder
22 October 2002 Dr Ian Hayes Post Traumatic Stress Disorder
6 February 2004 Dr Anthony Dinnen Chronic Anxiety Disorder
3 February 2004 Dr Robert Haik Generalised Anxiety Disorder
9. In our opinion the most pertinent comments were made by Dr Skerritt in his report of 28 March 1996 to the Australian Government Solicitor. At page four of his report he states:
“Thus it would seem to me that the expenditure of a great deal of effort on whether the appropriate diagnosis is of a generalised anxiety disorder or post traumatic stress disorder, or combination of both, serves no very useful purpose. The question is of the relationship of the stressful event to the illness however it is classified.
It seemed clear to me that a frightening experience, the worst of his service career, initiated a variety of symptoms which have continued for the rest of his life.”
Dr Skerritt continued:
“It is thus my opinion that Mr Collier does suffer from a psychiatric condition, however it is classified, which can be related causally to his service…”
10. Likewise Dr Dinnen in his report diagnosis a chronic anxiety disorder “which has some elements of chronic post traumatic stress disorder”.
11. As has been pointed out by other medical practitioners with specialist qualifications who have given evidence in this Tribunal, both post traumatic stress disorder and generalised anxiety disorder are subsets in the Diagnostic and Statistical Manual of Mental Disorders under the general heading of “Anxiety Disorders”. As this Tribunal has pointed out on numerous occasions, the DSM was created for epidemiological purposes and in its introduction specifically cautions against its use in a forensic setting.
12. Notwithstanding the caveat upon its forensic use by its editors, the Respondent and the Repatriation Medical Authority responsible for the creation of the SoPs insist on using DSM criteria for the purposes of questions of causation of mental illness, whereas as can be seen in this matter, specific classification is not always possible.
13. Currently Dr Hayes is the Applicant’s treating psychiatrist. His diagnosis was PTSD and no doubt this is a relevant working diagnosis. Unfortunately Dr Hayes was not called in this matter. That a report was not sought from Dr Hayes was explained as due to funding difficulties however we specifically state for further reference that as the Administrative Appeals Tribunal Amendment Bill (passed by the Parliament but not yet proclaimed) specifically inserts into the AAT Act as ss 33(1AA)
“In a proceeding before the Tribunal for a review for a decision, the person who may do the decision must use his or her best endeavour to assist the Tribunal to make its decision in relation to the proceedings.”
We would regard it as a breach of the provisions of the AAT Act and a derogation from the Commonwealth’s self proclaimed status as a so called “model litigant” for a Respondent in this Tribunal to insist on the physical presence of a medical practitioner for cross-examination when cross-examination can be undertaken by use of a telephone or video link.
14. In saying this we restrict our comments to medical practitioners and other professionals whose evidence rarely involves issues of credit.
15. Although for treating purposes it matters little what particular label is given to the mental illness suffered by the Applicant, for the purposes of these proceedings it has profound effect. The SoP for PTSD is Instrument No.3 of 1999 as amended by Instrument No.54 of 1999. Those instruments do not require that the clinical onset of the disease occur with any particular timeframe. No doubt this takes into account the now well known and reported upon fact that PTSD can have a delayed onset.
16. In contrast, the SoP for anxiety disorder namely, Instrument No.1 of 2000, except for prisoners of war, requires as a factor that must exist in order to connect the said disease with a person’s service that the disease have its clinical onset within the two years immediately following the psychosocial stressor claimed to have caused the said anxiety state.
17. In order to make a decision regarding the specific type of anxiety disorder suffered by the Applicant, it is necessary to have regard to his evidence.
18. The Applicant joined the Royal Australian Navy (RAN) aged 15 years, direct from school. He was first posted to HMAS Leuwin in Western Australia, a junior recruit training establishment. His time there seems to have been uneventful although he experienced the usual ill treatment handed out to junior recruits by their immediate seniors.
19. Having completed recruit training, the Applicant was at age 17 posted aboard HMAS Sydney and made two trips to South Vietnam on that vessel. Nothing appears to have affected the Applicant as a result of these voyages although he pointed out that the reality of being in a war zone was somewhat sobering in contrast to the anticipation prior to departure.
20. After serving aboard HMAS Sydney, the Applicant was posted to HMAS Cerberus to undertake a cook’s course. He had elected to be trained as a cook. After trade training he was posted aboard HMAS Brisbane in 1970. During 1970 the crew of the Brisbane were training in order to deploy the vessel to South Vietnamese waters where it was to provide naval gun fire support to ground forces. The general reference is to HMAS Brisbane being on the “gun line” off South Vietnam.
21. Although the Applicant was a cook he also had duties in an ammunition magazine loading shells into a hoist which transmitted them to a gun turret immediately above. On 13 November 1970, off Jarvis Bay while undertaking a live firing exercise, a fellow rating in attempting to place a shell correctly into the ammunition hoist caught his foot in the hoist which proceeded to lift both the shell and the rating with his foot caught towards the gun turret.
22. Neither the Applicant nor the other sailors then in the magazine knew how to stop the operation of the ammunition hoist. The rating who had his foot caught was the only gunnery rating in the magazine and he had to shout out instructions as to how to release him. At the same time, commands were being issued from the gun turret as the supply of ammunition had ceased. As the Applicant stated, it took some ten minutes to stop the machinery, release the rating and calm down. He said he felt sick and scared at the same time, as he did not know what to do in order to assist.
23. When HMAS Brisbane did take up its position on the gun line off South Vietnam, the Applicant says he felt scared the whole time. He and other crew members, were aware that their sister ship HMAS Hobart had been attacked by American aircraft in a “friendly fire” incident and sailors aboard Hobart had been killed. His mess where he slept was directly below the forward gun and there was the noise of the gun firing and fired shells rolling around the deck making sleep difficult. The smell of cordite was throughout the ship.
24. During one three-week period he was reassigned from cooking duties to duties in the magazine. This period was stressful as apart from being in anti-flash gear and confined, his presence in the magazine brought back memories of the incident when the gunnery rating had his foot caught in the ammunition hoist.
25. To add to his feeling of apprehension, whilst on the gun line the ship was “closed down” so that he did not know where it was at any one time and he had no idea of just what was going to happen next.
26. When HMAS Brisbane was not on the gun line it went to places such as Subic Bay or Hong Kong to refit and replenish stores and ammunition. During these times the Applicant was granted shore leave and began to drink heavily. He says it was in this period that he first started drinking in order to get drunk. During one period of leave in Hong Kong he had a fight with a senior sailor who was also a cook. This resulted in his nose being broken and in his spending three weeks in the ammunition magazine while on the gun line.
27. In his written statement the Applicant also makes reference to an incident concerning a native vessel or sampan being attacked as it approached HMAS Brisbane in harbour. There is no corroboration for the Applicant’s account of this event and we do not place any reliance upon it.
28. Whereas the incident with the gunnery rating off Jervis Bay would have been eventful at the time, it appears the victim suffered no real harm. The Applicant acknowledged that the rating later was aboard HMAS Brisbane when it went to South Vietnam. We also do not regard the incident as coming within the type of event that is characterised as a severe stressor either in the SoP for PTSD nor, more particularly, in DSM IV. Likewise, although naturally upset, the Applicant’s reaction does not appear to have been one of intense fear helplessness or horror (Tribunal’s emphasis).
29. We find that the events off Jervis Bay preconditioned the Applicant so that being aware of it added to his stress while serving in the ammunition magazine of HMAS Brisbane off South Vietnam. The apprehension felt by him during this time, in particular the possibility of injury from friendly fire, was real and the better diagnosis for the purposes of these proceedings is that he suffers from an anxiety state.
30. The Applicant also suffers from the disease described as alcohol dependence or alcohol abuse. There is no doubt regarding both the presence and classification of this condition.
31. For completeness, we state that although a diagnosis of kleptomania has been postulated, given Dr Haik’s evidence that for such a diagnosis to be made all of the diagnostic factors listed in DSM IV must be present, we are reasonably satisfied that the Applicant does not suffer from that condition. In particular, we find that a very large number of the items stolen by him were of material used to him.
32. Following his service aboard HMAS Brisbane, the Applicant had a very successful carrier in the RAN raising to the rank of Chief Petty Officer and being in line to be promoted to Warrant Officer, which in the Navy is a restricted and highly prestigious rank. Unfortunately, the Applicant’s 25 year Navy career was terminated when he was dismissed from the service following a Court Martial at which he pleaded guilty to 67 charges of dishonesty.
33. The Applicant’s evidence was that after his period of operational service aboard HMAS Brisbane he continued to drink alcohol to excess, even resorting to after-shave lotion and orange juice when unable to obtain other alcohol. At sea he was generally allocated two cans of beer per day but was always able to obtain alcohol from those sailors who did not drink their allocation. Being a cook also allowed him to access alcohol used for cooking and in cooperation with stewards to get alcohol from the officers’ wardroom. Aboard HMAS Brisbane the cooks also used to make their own illicit alcohol using fruit. As we understand the Applicant’s evidence, ever since being aboard HMAS Brisbane he has continued to drink alcohol heavily and daily.
34. Dr Dinnen who was called by the Applicant, referred to the Applicant’s apparently successful naval career but stated that the Applicant’s reliance upon alcohol was evidence of dysfunction and pointed out that often a person who has an anxiety state can continue to carry out their duties stating “often the last thing to go is the workplace”.
35. The history Dr Dinnen obtained with regard to the Applicant’s alcohol intake is at page two of his report. He recorded a history of drinking 10 to 15 drinks a day. He also obtained a history of excessive gambling. In evidence, Dr Dinnen placed the clinical onset of the Applicant’s anxiety state as being in 1968 after the trips to South Vietnam aboard HMAS Sydney. Unfortunately, the Applicant received no psychological assessments during the course of his naval career until his Court Martial. He gave to the Tribunal a history of marital and family discord caused by him, and the service records provided evidence of a period of separation from his wife.
36. Notwithstanding these factors, the history of the Applicant’s naval career is of a sailor who advanced steadily through the ranks. During the course of that service he received several commendations for his work and until his Court Martial his disciplinary record had been good with no offences noted, much less alcohol related offences. Nor in his service documents are there any administrative warnings that he was not performing adequately in his rank or had an alcohol problem. The only reference to alcohol is a comment at a medical examination that he was obese because of his beer intake. Following that report, the Applicant was placed on an obesity programme and we note he appears to have passed all re-engagement medical examinations. That a person is drinking alcohol to the extent he gains weight does not constitute a diagnostic factor for alcohol abuse/dependence. Likewise, there is a difference between a person who drinks heavily and one who meets the diagnostic criteria for either alcohol abuse or alcohol dependence in either the SoP or DSM-IV.
37. The Applicant was cross-examined regarding his lifestyle immediately following service aboard HMAS Brisbane. It appears relatively unremarkable. He was living in barracks, first at HMAS Albatross from December 1971 to January 1972 then at HMAS Kuttabul. He worked as a cook, when off duty played sport, but drank a lot. He got on with his shipmates and went out with them.
38. Reference has been made previously to the commendations the Applicant received during the course of his service. At his Court Martial, reference was made by witnesses to his ability to get along with people and inspire those sailors subordinate to him.
39. We do not intend to quote extensively from the Applicant’s service records but as examples an evaluation report dated 12 February 1988 states:
“CPO Collier’s assessment is based on his performance as Housing Officer at CPSO WA.
He has shown excellent personal qualities in his dealings with service personnel and families, often under very trying circumstances. He reacts calmly and with understanding when confronted by irate tenants and shows sound common sense in the resolution of individual problems. He has delivered briefs to visiting dignitaries, both service and civilian, on housing matters showing excellent professional knowledge and appropriate tact and courtesy at all times.
CPO Collier takes the initiative to solve problems not only in his own area, but also as Divisional CPO for CPSO staff. He accepts responsibility readily and leads his subordinates with fairness and confidence.
He is well suited to the PSO environment by virtue of his temperament and professional attitude.”
We regard the above effusive personal report upon the Applicant in his duties as a Housing Officer as being of particular significance. The Applicant’s Naval trade was that of a cook, albeit by that time his duties as a senior non-commissioned officer were more of an executive catering officer. To undertake general administrative duties namely that of a housing officer, would have taken him out of his normal and familiar sphere of duties into a posting requiring different skills and attributes. That he was able to make a success of this role mitigates against his experiencing the symptoms of either an anxiety state or of alcohol abuse/dependence.
At his Court Martial, character evidence was given by amongst others Mr Hendry, an ex-member of the RAN who was the Base Facilities Officer for HMAS Stirling. In the course of his evidence he said:
“From my observation there was never any issue about not getting on with people. In fact he always was positive. He was bright. He seemed to have a lot of vitality which overflowed to those working around him and always seemed to be buzzing and moving. Certainly he wasn’t tardy or negative in the way he undertook his duties, and in more recent times, he’s been with me in my office working for about four months and has been engaged on a number of tasks associated with the current further development of Stirling and with projections to the stage 3. I found his input to be very professional, willingly given and he has applied himself for the task.”
Particularly pertinent evidence was given by John Patrick Casey, Roman Catholic Chaplain at HMAS Sterling who said to the Court Martial:
“Its been my observation that Chief Collier in his dealings with his people has inspired them to present themselves and be a credit to him in their duty, not just in the presentation of food, but the presentation of themselves as well.”
He was then asked.
“In relation to morale, perhaps I could ask you this? How is he regarded to your observation, by those who work with him? Answer: They speak highly of him, but it’s not just what people say. It’s what they do and how they act under another person’s leadership. His galleys, whether he’s there or not I’ve always found them pleasant places to visit. “
Later Chaplain Casey was asked:
“What can you tell the Court about that, about the family unit and his position there? Replied inter alia: “He has been a great support to them. Even though he is going the (sic) personal turmoil himself, he has been a great support to his wife and his family…”
Later in speaking of the Applicant’s wife he said,
“(She) is still very much in love with her husband.”
40. We are satisfied that the Applicant does suffer from an anxiety state and alcohol abuse/dependence. Further, we are satisfied that the material before us points to an hypothesis connecting the said diseases with the relevant service. That hypothesis is that given the two prior trips to South Vietnam aboard HMAS Sydney and the incident in the magazine off Jervis Bay whilst HMAS Brisbane was working up for its deployment to South Vietnam, the Applicant was vulnerable and the events of service in Vietnamese waters caused his current psychiatric illness of anxiety state and alcohol abuse/dependence.
41. There are currently in force so called SoPs relating to both anxiety state and alcohol abuse/dependence. The relevant SoPs are Instruments numbered 1 of 2000 and 76 of 1998. Both these Instruments were the SoPs in force at the time the Applicant made this current application to the Respondent to have the said diseases attributed to his operational service.
42. Instrument No.1 of 2000 requires as a factor connecting the disease of anxiety state to service that the veteran experienced a severe psychosocial stressor within two years immediately before the clinical onset of anxiety disorder.
43. The term “severe psychosocial stressor” is defined in the SoP as:
“Severe psychosocial stressor means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.”
44. As to what is an identifiable occurrence evoking feelings of substantial distress as the Full Court of the Federal Court pointed out in Woodward v Repatriation Commission (2003) 131 FCR 473, the stressor can be subjective so long as it is based upon reasonable grounds. Thus the Applicant’s apprehension as to what might happen to HMAS Brisbane whilst on the gun line off South Vietnam is a severe psychosocial stressor. See also the discussion in Repatriation Commission v Stoddart (2003)154 FCR 392.
45. Similarly, the SoP for alcohol dependence/abuse requires as factor 5(b) that the veteran experienced a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse. In that SoP experiencing a severe stressor is defined as:
“Experiencing a severe stressor means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence.”
We are satisfied given the discussion in Woodward and Stoddart (supra) the Applicant experienced a severe stressor for the purposes of Instrument No.76 of 1988.
46. Both SoPs require that the “clinical onset” of the disease be within two years of experiencing the stressor. The term “clinical onset” was explained in Lees v Repatriation Commission (2002) 125 FCR 331 in the following terms namely that there is a clinical onset of a disease either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present.
47. In Lees (supra) the Court also followed Weinburg J in Repatriation Commission v Gosewinckel (1999) 59 ALD 690 and pointed out that for a disease to exist all the symptoms (or features) given as the diagnostic criteria in the SoP must exist, not just some of them.
48. Thus to enable the Tribunal to say that within two years of the Applicant’s return from service aboard HMAS Brisbane he had the diagnostic criteria to enable a diagnosis of anxiety state to be made, he would have had to have had the following namely:
A. Excessive anxiety and worry (apprehensive expectation), which occur on more days than not for a continuous period of at least six months, about a number of events or activities; and
B. The person finds it difficult to control the worry; and
C. The anxiety and worry are associated with three or more of the following six symptoms, with at least some symptoms present for more days than not during the previous six month period:
(1). Restlessness or feeling keyed up or on edge
(2). Being easily fatigued
(3). Difficulty concentrating or mind going blank
(4). Irritability
(5). Muscle tension
(6). Difficulty falling or staying asleep, or restless unsatisfying sleep; and
D. The focus of the anxiety and worry is not confined to features of any other Axis I disorder; and
E. The anxiety, worry, or physical symptoms (as described in C. above) cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and
F. The anxiety and worry are not due to the direct physiological effects of a substance or a general medical condition and do not occur exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder.”
49. Unfortunately at no stage during his naval career until its end was the Applicant examined by a psychologist. Even then the psychological examination was directed more towards a plea in mitigation for his dishonesty rather than seeking to ascertain if any other psychiatric condition existed. What is known is that at no time did the Applicant seek medical attention for any such symptoms as outlined above and at no time did he come to any adverse attention because of any perceived failings.
50. In making the above statements we take into account the Applicant’s matrimonial difficulties but even then he does not appear to have withdrawn from life and he entered into another relationship.
51. On the material before us we cannot be reasonably satisfied that the clinical onset of the Applicant’s anxiety state was within two years of experiencing a severe psychosocial stressor.
52. Similar findings apply with regard to the Applicant’s alcohol dependence/ alcohol abuse. The diagnostic criteria in SoP for alcohol dependence are:
“A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:
(1) tolerance, as defined by either of the following:
(a) a need for markedly increased amounts of alcohol to achieve
intoxication or desired effect
(b) markedly diminished effect with continued use of the same
amount of alcohol
(2) withdrawal, as manifested by either of the following:
(a) the characteristic withdrawal syndrome for alcohol
(b) the same (or closely related) substance is taken to relieve or
avoid withdrawal symptoms
(3) alcohol is often taken in larger amounts or over a longer period than was intended
(4) there is a persistent desire or unsuccessful efforts to cut down or control alcohol use
(5) a great deal of time is spent in activities necessary to obtain alcohol, use alcohol or recover from its effects
(6) important social, occupational or recreational activities are given up or reduced because of alcohol use
(7) alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol.”
Whereas for alcohol abuse, the diagnostic criteria are:
A. A maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period:
(1) recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school, or home
(2) recurrent alcohol use in situations in which it is physically hazardous
(3) recurrent alcohol –related legal problems
(4) continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol
B. The symptoms have never met the criteria for alcohol dependence.”
53. As the Applicant’s service records and career history show he could not during the whole of his service career, much less within two years of experiencing the stressful events of service aboard HMAS Brisbane, fulfilled all of the above mentioned diagnostic criteria for either of the two separate conditions.
54. We find therefore that whereas we are reasonably satisfied that the Applicant has the diseases of anxiety state and alcohol abuse or alcohol dependence and that there exists a hypothesis linking those diseases with his operational service, that hypothesis is not a “reasonable hypothesis” as it fails to conform to the appropriate SoP.
55. The Tribunal is therefore deemed to be satisfied beyond reasonable doubt that the diseases of anxiety state and alcohol abuse or alcohol dependence suffered by the Applicant are not war-caused.
56. As the said diseases are not war-caused the Applicant cannot meet the criteria for payment of pension at either the Intermediate Rate or Special Rate as it is clear from the evidence of both occupational physicians Dr Anderson and Dr Harding Burns that the reason the Applicant is currently not in employment is because of incapacity occasioned by his alcohol dependence or alcohol abuse.
57. The decision under review is therefore affirmed.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr J D Campbell, Member
Signed: (E.Pope) .....................................................................................
AssociateDates of Hearing 22 March and 23 March 2005
Date of Decision 6 April 2005
Counsel for the Applicant Mr Neale Dawson
Solicitor for the Applicant Maurice Blackburn Cashman
Counsel for the Respondent Miss Rhonda HendersonSolicitor for the Respondent Australian Government Solicitor
0
11
0