Cooper and Military Rehabilitation and Compensation Commission

[2004] AATA 1385

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1385

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/466

GENERAL ADMINISTRATIVE DIVISION		)
Re		SCOTT RONALD COOPER

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Dr K S Levy, Member

Date23 December 2004   

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

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

KS Levy
  Member

CATCHWORDS

COMPENSATION - Claims – Application for review of decision to deny liability for Post Traumatic Stress Disorder – Applicant had no operational service – Whether diagnosis of Post Traumatic Stress Disorder correct – Decision under review affirmed

Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 124(10)
Veterans’ Entitlements Act 1986
Commonwealth Employees’ Compensation Act 1930
Compensation (Commonwealth Employees’) Act 1971

Comcare v  McGuire [1996] 683 FCA 1
Duncan v Comcare [2004] AATA 666
Joyce v Australian Postal Corporation [2002] FCA 854

REASONS FOR DECISION

23 December 2004   Dr K S Levy, Member         

Introduction

1.      This is an application by Scott Ronald Cooper (“the applicant”) in accordance with section 29(1) of the Administrative Appeals Act 1975 for review of a decision dated 7 May 2004. That decision affirmed the determination dated 17 September 2003 to deny liability for the applicant’s claimed condition of post traumatic stress disorder (PTSD) pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”). As part of the applicant’s claims, he referred to his having served in South Vietnam on operational service, which if substantiated, would invoke provisions of the Veterans’ Entitlements Act 1986.

2.      The applicant was self-represented at the hearing.  The respondent was represented by Mr C Clark of Counsel instructed by Ms S Railton of the Australian Government Solicitor’s Office.

Legislation

3. This is an application for review under section 43 of the Administrative Appeals Tribunal Act 1975. The claims made, the reviewable decision, and submissions from the respondent centred on requirements for the applicant’s claim to satisfy section 4(1) of the Act. As the incidents relate to the applicant’s military service from 1967 to 1973, the requirements of the Commonwealth Employees’ Compensation Act 1930 and the Compensation (Commonwealth Employees’) Act 1971 must be considered.

4.      The relevant provisions of the above statutes are –

§  Commonwealth Employees’ Compensation Act 1930

“10(1)  Where –

(a)an employee is suffering from a disease and is thereby incapacitated for work; or

(b)       the death of an employee is caused by a disease,

and the disease is due to the nature of the employment in which the employee was engaged by the Commonwealth, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with this Act as if the disease were a personal injury by accident arising out of or in the course of his employment.

…..

16(1)    The Commissioner shall not admit a claim for compensation under this Act for an injury unless notice of the accident has been served upon him as soon as practicable after it has happened, and before the employee has voluntarily left the employment of the Commonwealth, and unless the claim for compensation has been made –

(a)       within six months from the occurrence of the accident; or

(b)in case of death – within six months after advice of the death has been received by the claimant:

Provided always that –

(i)the want of or any defect or inaccuracy in the notice shall not prevent consideration of the claim by the Commissioner if he finds that the Commonwealth is not prejudiced by the want, defect or inaccuracy, or that the want, defect or inaccuracy was occasioned by mistake, absence from Australia or other reasonable cause; and

(ii)the failure to make a claim within the period above specified shall not prevent consideration of the claim by the Commissioner if he finds that the failure was occasioned by mistake, absence from Australia or other reasonable cause.”

§  Compensation (Commonwealth Employee’) Act 1971

“Persons in relation to whom the Act applies

7.(1)Subject to this section, this Act applies to and in relation to a person who is employed by the Commonwealth or by a prescribed authority of the Commonwealth whether he is so employed under a law of the Commonwealth or of a Territory or under a contract of service or apprenticeship.

(2)       Without limiting by implication the generality of the last preceding sub-section-

(a)  a Commonwealth Police Officer or a member of the Police Force of a Territory forming part of the Commonwealth;

(b)       a member of the Defence Force; or

…..

30. Without limiting by implication the operation of the last preceding section, where-

(a)  an employee has suffered or is suffering from a disease or the death of an employee results from a disease;

(b)       the disease is a disease of a kind specified in the regulations as a  disease that is related to employment of a kind so specified; and

(c)the employee was, at any time before symptoms of the disease first became apparent, engaged by the Commonwealth in employment of that kind,

then, for the purposes of this Act, unless the contrary is established, the employment in which the employee was so engaged by the Commonwealth shall be deemed to have been a contributing factor to his contraction of the disease.

31.(1)Any employment in which an employee who has contracted a disease was engaged by the Commonwealth at any time before symptoms of the disease first became apparent shall, unless the contrary is established, be taken for the purposes of this Act to have been a contributing factor to his contraction of the disease if the incidence of that disease among persons who have engaged in such employment is significantly greater than the incidence of that disease among persons who have engaged in employment generally in the place where the employee was ordinarily employed.

….

(4) An incapacity for work or facial disfigurement of, or a loss suffered by, an employee shall be taken for the purposes of this Act to have been contributed to by a disease, or by an aggravation, acceleration or recurrence of a disease, if, but for that disease, or that aggravation, acceleration or recurrence, as the case may be -

(a)        the incapacity, disfigurement or loss would not have occurred;

(b)     the incapacity would have commenced, or the disfigurement or loss would have occurred, at a significantly later time; or

(c)the extent of the incapacity, disfigurement or loss would have been significantly less.

….

54.(1) Compensation in relation to an employee is not payable under this Act to a person unless a claim in writing for the compensation was served, as prescribed, on the Commissioner by or on behalf of the person within the prescribed period.

(2) If the claimant is the employee, the prescribed period for the purposes of the last preceding sub-section is -

(a)       in the case of a claim in relation to an injury to the claimant -

(i) the period of six months commencing on the day of the injury; or

(ii) if the claimant was not, immediately after the injury, aware that he had  sustained an injury-the period of six months commencing on the day on which he became so aware;

(b)in the case of a claim in relation to a disease contracted, or an aggravation, acceleration or recurrence of a disease suffered, by the claimant-the period of six months commencing on the day on which the claimant became aware of the contraction of the disease, of the commencement of the aggravation or acceleration of the disease or of the recurrence of the disease; or

(c)in the case of a claim in relation to loss of, or damage to, an artificial limb or other artificial substitute, or a medical, surgical or other similar aid or appliance, used by the claimant, being a loss or damage that arose in circumstances referred to in section 28 of this Act-

(i)the period of six months commencing on the day of the occurrence of the accident that resulted in the loss or damage; or

(ii)     if the claimant was not, immediately after the accident, aware that the accident had resulted in the loss or damage-the period of six months commencing on the day on which he became so aware.

(3) If the employee has died and the claimant is his legal personal representative making a claim in pursuance of sub-section (1) of section 55 of this Act, the prescribed period for the purposes of sub-section (1) of this section is -

(a)       in the case of a claim in relation to an injury to the employee -

(i)the period of six months commencing on the day of the injury; or

(ii)if the employee did not become aware before his death that he had sustained an injury-the period of six months commencing on the day on which the claimant became aware of the death of the employee;

(b)in the case of a claim in relation to a disease contracted, or an aggravation, acceleration or recurrence of a disease suffered, by the employee -

(i)the period of six months commencing on the day on which the employee became aware of the contraction of the disease, of the commencement of the aggravation or acceleration of the disease or of the recurrence of the disease; or

(ii)if the employee did not become aware before his death that he had contracted a disease or suffered an aggravation, acceleration or recurrence of a disease-the period of six months commencing on the day on which the claimant became aware of the death of the employee; or

(c)     in the case of a claim in relation to loss of, or damage to, an artificial limb or other artificial substitute, or a medical, surgical or other similar aid or appliance, used by the employee, being a loss or damage that arose in circumstances referred to in section 28 of this Act-

(I)the period of six months commencing on the day of the occurrence of the accident that resulted in the loss or damage; or

(ii)if the employee did not become aware before his death that the accident had resulted in the loss or damage-the period of six months commencing on the day on which the claimant became aware of the death of the employee.

(4)If the employee has died and the claimant is a dependant of the deceased employee claiming compensation in respect of his death, the prescribed period for the purposes of sub-section (1) of this section is the period of six months commencing on the day on which the claimant became aware of the death of the employee.  

(5)If the claimant is a person to whom the compensation is payable by virtue of paragraph (b) or paragraph (c) of sub-section (5), or sub-section (9), of section 37, or by virtue of section 44, of this Act, the prescribed period for the purposes of sub-section (1) of this section is the period of six months commencing on the day on which the liability to pay the cost to which the claim relates arose, or on which the expenditure to which the claim relates was incurred, as the case may be.

(6)       Where-

(a)a claim purporting to be a claim referred to in sub-section (1) of this section has been served on the Commissioner;

(b)the claim, as regards the time or manner of service, failed to comply with the requirements of that sub-section; and

(c) the Commonwealth would not, by reason of the failure, be prejudiced if the claim were treated as a sufficient claim, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause, the claim shall be deemed to have been served in accordance with that sub-section.

§  Safety, Rehabilitation and Compensation Act 1988

“4        Interpretation

(1)       In this Act, unless the contrary intention appears:

‘disease’ means:

(a)       any ailment suffered by an employee; or

(b) the aggravation of any such ailment; being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.

‘injury’ means:

(a)       a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment; but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.

‘ailment’ means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

….

7(4)For the purposes of this Act, an employee shall be taken to have sustained an                injury, being a disease, or an aggravation of a disease, on the day when:

(a) the employee first sought medical treatment for the disease, or aggravation; or

(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee; whichever happens first.

....

14       Compensation for injuries

(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

(2)Compensation is not payable in respect of an injury that is intentionally self-inflicted.

(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.

…..

16       Compensation in respect of medical expenses etc.

(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

(2)Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.

….

(4)An amount of compensation payable by Comcare under subsection (1) is payable:

(a)       to, or in accordance with the directions of, the employee;

(b)if the employee dies before the compensation is paid and without having paid the cost referred to in subsection (1) and another person, not being the legal personal representative of the employee, has paid that cost—to that other person; or

(c)if that cost has not been paid and the employee, or the legal personal representative of the employee, does not make a claim for the compensation—to the person to whom that cost is payable.

(5)Where a person is liable to pay any cost referred to in subsection (1), any amount paid under subsection (4) to the person to whom that cost is payable is, to the extent of the payment, a discharge of the liability of the first-mentioned person.

….

124  Application of Act to pre-existing injuries

(1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.

(1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.

(2)A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:

….

(b) where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the injury, loss or damage was suffered; or

(c) in any other case—under the 1971 Act as in force when the injury, loss or damage was suffered.

(3)A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date, if:

(a) the person received compensation of a lump sum in respect of that impairment or death under the 1912 Act, the 1930 Act or the 1971 Act; or

(b) the person was not entitled to receive compensation of a lump sum in respect of that impairment or death:

….

(ii)where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the impairment or death occurred; or

(iii) in any other case—under the 1971 Act as in force when the impairment or death occurred.

(4)The amount of compensation (if any) that a person is, by virtue of this section, entitled to receive under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing day, shall be the same as the amount of the compensation that would have been payable to that person, if this Act had not been enacted, under:

(a) where the impairment or death occurred before the commencement of the 1930 Act—the 1912 Act;

(b) where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act—the 1930 Act as in force when the impairment or death occurred; or

(c) in any other case—the 1971 Act as in force when the impairment or death occurred.

….

(10)     Where:

(a)proceedings for the recovery of compensation under the 1912 Act, in respect of any injury suffered before the commencement of the 1930 Act, were not maintainable by a person because of section 5 of the 1912 Act;

(b)a claim for compensation by a person under the 1930 Act, in respect of an injury suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act, was not admissible because of section 16 of the 1930 Act; or

(c)a claim for compensation by a person under the 1971 Act, in respect of an injury suffered after the commencement of the 1971 Act but before 1 July 1986, was not admissible because of section 54 of the 1971 Act, as that section was in force before 1 July 1986;

that person is not entitled to compensation under this Act in respect of that injury.”

Background

5.      Mr Cooper was born on 8 March 1950.  He is now aged 54 years.  He was an only child, having spent the initial part of his childhood in Sydney.  His family moved to Casino when he was in primary school.  His mother died when he was 9 years old.  He reported to a psychiatrist that he did not cry at the time and just felt numb.  He was not allowed to go to the cemetery for his mother’s funeral.

6.      The applicant left school at age 17 and joined the Army. There is some variation in accounts of his service from the time of completion of his initial/recruit training. Dr Inglis Synnott, psychiatrist, reports that after recruit training at Kapooka, the applicant “went straight away into intelligence.  He was stationed outside of Toowoomba”.  Dr David Alcorn, psychiatrist, reports that after he left Kapooka the applicant studied “at the Melbourne signals unit after psychological tests showed that he had the aptitude for Morse code”.  At the hearing, the applicant indicated that, after Kapooka, he went to the School Signals at Balcombe.  Other records show that he was at Watsonia Barracks after recruit training.  

7.      Evidence was presented that his service record was as follows –

o   Recruit Training – 1 RTB, Kapooka – 17 April 1967 to 17 June 1967

o   Initial Employment Training/Assessment – Watsonia Barracks – 18 June 1967 to 27 July 1967

o   Trade Training – 7 Signals Regiment Cabarlah – 28 July 1967 to 15 December 1967

o   Op Sig Training, Cabarlah – 16 December 1967 to 6 February 1969

o   697 Sig Tp 121 Sig Sqn 7 Signals Regiment – 7 February 1969 to May 1970

o   121 Sig Sqn Singapore – 18 May 1970 to 14 December 1971

o   Return to Australia – 15 December 1971

o   Re-engagement vetoed by Commander 6 Task Force – 16 July 1973

o   He had eligible Defence Service from 7 December 1972 to 1 August 1973.

8.      Mr Cooper maintains in relation to the second last entry above, that he vetoed his own re-engagement.

9.      The service history above was compiled from the report by Lieutenant Colonel Murray, on behalf of Writeway Research Service.  These have apparently been compiled from a copy of his service records.  From this chronology, there is no evidence of operational service which would grant an entitlement to be considered under the Veterans’ Entitlements Act 1986. While Mr Cooper did not argue this as a legal point (understandably as he was self-represented), neither did Counsel for the respondent. In light of the evidence presented, I have proceeded on the basis that the claim is to be assessed under the SRC Act (and relevant previous statutes) and that operational service is not relevant.

10.     His post-military service involved residing in Warnambool where he worked with Telstra for 15 years and then as an upholsterer.  He started a surf products business and then moved to Queensland in 1994.  He developed psychological difficulties in 1996 and has not worked since.   

11.     He reported to Dr Alcorn that he had been married four times –

o   First marriage (in 1968 for 2 years)

o   Second marriage (in 1974 for 17 years)

o   Third marriage ( in1993 for 1 year)

o   Fourth marriage (in 1995 for 2 years)

12.     He has apparently informed Dr Synnott approximately six months before the hearing that he was a “normal person” until 1996.

Evidence

13.     Oral evidence was provided at the hearing by the applicant, and by Mr Daniel Clarke and Dr Robyn Hewland, for the applicant.  Dr David Alcorn provided oral evidence on behalf of the respondent.

14.     Documentary evidence was admitted as follows:

Exhibit 1 “T” Documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975

Exhibit 2Report by Dr David Alcorn dated 27 October 2004

Exhibit 3DVA File including Dr Hewland’s report

Exhibit 4Report by Dr Pease

Exhibit 5Report by Psychiatrist, Dr Chris Cantor

Exhibit 6Report by Psychiatrist, Dr Robyn Hewland

15.     Evidence on oath was provided firstly by the applicant.  He informed the Tribunal that the origin of his claim for trauma-related incidents emanates from his seeing a television programme on the Falklands War in 1996 and that he saw an image of a Gurkha soldier.  He claimed that he had flashbacks of his previous military experience in Singapore with the Gurkhas in 1969 to 1971, and had not since recovered.   He claimed to be severely psychologically impaired and had not worked since 1996.

16.     Evidence was provided by Mr Daniel Clarke at the request of the applicant.  Mr Clarke served twelve years in the Australian Army and six years in the Royal Australian Air Force.  He subsequently worked for the Department of Corrective Services for some time and held a position of responsibility.  He is a Justice of the Peace for Queensland.  His testimony was that he had served in Singapore with Mr Cooper and was present at an incident at a Gurkha bathhouse.  He verified the incident had occurred whereby Gurkha soldiers angrily challenged them in the use of their bathhouse and that at one point they feared for their lives.  However, his evidence differed from Mr Cooper’s in that he stated that rather than lasting for four hours with a knife to his throat, Mr Clarke stated it only last 6 to 8 minutes and that the Gurkhas were armed with guns, and that he had no recollection of the presence of knives.  This conflicts with Mr Cooper’s evidence to psychiatrists, particularly in relation to  his consultation with Dr Cantor. 

17.     Mr Clarke further stated that they were held at gunpoint and were on their knees for the duration of the confrontation, but that when a Gurkha officer arrived, the matter was resolved quickly.  He also stated that the Gurkhas may have offered them refreshments after the incident but could not be sure.  He said that such hospitality had been offered by Gurkhas on other occasions.

18.     There was evidence that the applicant’s general practitioner, Dr Patricia Pease, saw him once in 2001 and again on 7 August 2002, where Dr Pease’s notes of consultation highlight his attendance with the Vietnam Veterans’ Association in Maroochydore and that his life had deteriorated and wanted to get an Army pension.  She saw him again five months later and she noted not much had changed in his condition.  Mr Cooper mentioned “…coming up 30 years since Army service”, undoubtedly a reference to his inability to divulge any information about his Signals service. 

19.     A further consultation occurred on 22 September 2003 and the records show that he was upset that the doctor did not believe his version of events.  An appointment was made for him to see a psychiatrist, Dr Robyn Hewland.  On 7 October 2003 Dr Pease’s records note that Mr Cooper had informed her that he would not see Dr Hewland again until he had seen her report.  His appointment with Dr Pease on 13 February 2003 seems to have occurred only because he needed a doctor to complete various forms for compensation purposes.

20.     Prior to attending Dr Hewland, the applicant attended upon Dr Chris Cantor, psychiatrist from the north coast of Brisbane.  This appointment was made at the request of the Department of Veterans’ Affairs.  It occurred on 24 September 2002. 

21.     Dr Cantor has reported that Mr Cooper had watched 25 or more Malays being massacred by Gurkhas in front of 200 people.  The records of Dr Cantor state “Mr Cooper is saying that he ‘once saw a head nearly come off’”.  On another occasion he claimed that he had witnessed the bodies of an English family hanging.  Dr Cantor’s records note Mr Cooper was “very vague – evasive”.  In his evidence to the Tribunal, Mr Cooper made it apparent that he did not like Dr Cantor and that he had apparently ended his last appointment abruptly.

22.     Three months later he consulted Dr Robyn Hewland and saw her on two occasions – 3 February 2003 and 20 February 2003.  She diagnosed Mr Cooper as having PTSD, following the use of the Davidson structure interview.  She noted that he had had constant threats to his life, and that he was “…a very anxious, suspicious, distressed male who found it difficult to talk about himself”.  She recorded the Gurkha incident as being of 4 hours duration with a knife to his throat.  She accepted, as he had put it to her, that he had served in South Vietnam and that he could not provide much detail as he was bound by the Official Secrets Act.

23.     Dr Hewland also provided a report dated 2 December 2003.   Dr Alcorn commented on Dr Hewland’s report on behalf of the applicant and noted in his report of 28 October 2004 –

“Unusually, this report is directed to the address of the subject of the report.” [emphasis added]

She concluded that Mr Cooper’s symptoms were attributable to PTSD alone and that he had no other symptoms which would be considered with a psychotic or delusional illness.   Inconsistent with other claims of the applicant, Dr Hewland also specifically mentions in that report that Mr Cooper had never claimed to have served in Vietnam. 

24.     Dr Inglis Synnott examined Mr Cooper on 19 April 2004 and provided a report to the Military Compensation and Rehabilitation Service dated 23 April 2004.  He noted that Mr Cooper’s work history and reporting symptoms were “not congruent with a post traumatic stress disorder”.  His conclusion was –

“In my opinion, there is insufficient evidence to attribute his current anti-social and avoidant behaviour to events that occurred whilst serving in the Australian Army in the early 1970s.”

25.     Dr Alcorn provided an exhaustive and very analytical report dated 26 August 2003.  At that time, he believed Mr Cooper’s presentation was not consistent with PTSD and thought the most likely diagnoses, in order of likelihood, were –

“1.       Delusional Disorder,

2.        Major Depressive Disorder with (Mood Incongruent) Psychotic Features,

3.        NO psychiatric diagnosis in the following circumstances –

§  (a)  if the subject’s perceptions and events recounted corresponded with         the objective truth – for which there is NO extant evidence

§  (b)  the subject is reporting psychiatric symptoms for non-psychiatric    reasons (e.g. anticipated receipt of disability benefits),

4.        Post-traumatic Stress Disorder.”

26.      Dr Alcorn’s provided a supplementary report on 27 October 2004.  There he noted inconsistencies in Mr Cooper’s evidence given to different psychiatrists and made some critical observations.  After noting numerous inconsistencies and after a detailed analysis, Dr Alcorn concluded that his original diagnosis of delusional disorder was now less likely and that the better diagnosis would be one of NO psychiatric disability.

Consideration

27.     The Tribunal has thoroughly considered the whole of the oral evidence and the documentary evidence in the exhibits.  The relevant statutory law and case law has also been considered.  In particular, Comcare v. McGuire [1996] 683 FCA 1 and Duncan v. Comcare [2004] AATA 666 assisted the Tribunal in determining this case.

28.      Mr Cooper lodged his claim for compensation for post traumatic stress disorder on 20 May 2003, which he claims is due to his military service during the period 1967–1973. To consider this claim under the Safety Rehabilitation and Compensation Act 1988, transitional provisions under section 124(10) are relevant and requires preconditions in subsections (b) and (c) to be satisfied – that is, to lodge a claim for compensation within 6 months of the occurrence of the injury (subject to special consideration under section 16 of 1930 Act); or within 6 months of becoming aware of the disease subject also to provision for special consideration (see section 54 of 1971 Act).

29. Given the service period and the broad ranging activities involved in the claims in this case, the first consideration is section 16 of the CommonwealthEmployees’ Compensation Act 1930.  That section does not allow a claim for compensation for “a disease” unless notice has been served upon the Commonwealth as soon as possible and before the employee voluntarily leaves the employment of the Commonwealth.  The claim itself must have been made within six months of the incident.  There are exemptions however.  These are –

(i)In relation to a notice of the disease such that if there is a want or deficiency of provision of the notice, it may still be considered if it does not cause prejudice to the Commonwealth to do so, or that the failure to provide the notice was not occasioned by a mistake, absence from Australia or another reasonable cause.

(ii)In relation to the failure to make a claim within a six month’s period, consideration may be given to it in circumstances of the making of a mistake, absence from Australia or reasonable cause.

30. A considerable amount of time has passed since the incidents, which are the subject of this claim. There is some inconvenience to the Commonwealth in trying to produce records of matters which have occurred so long ago. However, there is some evidence supporting the occurrence of some events and the presence of Mr Cooper on those occasions (e.g. the Gurkha bathhouse incident). Therefore, I am of the view that this does not produce an insurmountable problem for the Commonwealth and, accordingly, it does not ultimately prejudice the Commonwealth. Indeed, the Commonwealth responded with all required material without any hesitation. There was clearly a failure by Mr Cooper to lodge a notice and also to lodge a claim within six months of the incidents. However, it is reasonable to conclude that this tardiness would not be unreasonable if Mr Cooper was suffering from a psychiatric disease or did not have an appreciation of his condition or the impact of some incidents claimed, until many years later. In these circumstances, I consider Mr Cooper’s claim for compensation should be allowed to be considered and be deemed to comply with section 16 of the 1930 Act and with section 54 of the 1971 Act, thus allowing a determination of the claim to be made under the SRC Act 1988. For the purposes of this application and consistent with the above, there was agreement that PTSD, if proved, is a “disease” and therefore is an “injury” within the meaning of that term under Section 4 of that Act (Joyce v Australian Postal Corporation [2002] FCA 854).

31.     I turn now to an evaluation of the evidence.  There was evidence of a flight from Changi Airport in Singapore to Butterworth in Malaysia which revealed some evidence of risk, but on the account of Mr Daniel Clarke, much of the risk became obvious only after the flight.  There was no corroborated evidence of being shot at in the air.  Evidence was also given concerning the Gurkhas attacking protestors or intimidating Mr Cooper while on escort with a paying officer, but that also was not substantiated.  The incident involving Gurkhas when Mr Cooper and other Australian soldiers used their bathing facilities is accepted as a fact before the Tribunal.  Overall, the extent of the fear and trauma of incidents as claimed by Mr Cooper is contradicted in part by other evidence.  The extent of the psychological effects and the likelihood the claims are motivated solely by his attempt to get a disability pension have been noted.  All of the claims made have been, to a greater or lesser degree, diminished by most of the accepted psychiatric assessments.   

32.     The differences in the psychiatric evidence were mostly summarised in the last report provided by Dr David Alcorn on 27 October 2004.  In that report, he has had access to all of the specialist reports and then provides a comparative analysis.  Some of the major issues are –

§  Dr Hewland seemed to accept most of Mr Cooper’s claims without question, even though some were extraordinary, e.g. “three-quarters” of 183 members of his signalling regiment has committed suicide.  Compared to population statistics, the Tribunal considers that this would seem to have invited further enquiry.  However, Dr Hewland said in evidence that she did not accept the claims made without question – she viewed them for internal consistency and reasonableness.  The likelihood of such evidence being reasonable seems to be open to question.

§  Mr Cooper described threats by Gurkhas for four hours (with a knife to his throat) but did not provide this significant information to Dr Alcorn in his appointment on 8 August 2003.  Equally significantly, he did not provide this information to Dr Cantor, the first psychiatrist who examined him in relation to the alleged traumas, but he seemed to be “more bothered” about ongoing contact from the Army in relation to “intelligence systems”. 

§  His claim of having witnessed the massacre of 25 Malay nationals when he was seen by  Dr Chris Cantor, were not reported to Dr Hewland six months later.  This would be expected to be a significant event from a psychiatric point of view.

§  His claim to Dr Cantor of having seen an English family murdered and hanging was not reported to Dr Hewland.

§  It is noted that when seeing Dr Synnott, the applicant explained his previous application under the Veterans’ Entitlements Act 1986 in the following terms - “….they were of no help” rather than the more accurate answer that the claim had been refused.

§  Interestingly however, Dr Hewland was satisfied that the applicant’s condition (in her opinion, PTSD) was not related to his eligible service.

33.     The diagnosis by Dr Hewland of PTSD is based on the Davidson Structured Interview which he explained in oral evidence, is designed specifically for PTSD.  She did this as she stated that that is what was requested of her by the Department of Veterans’ Affairs.  However, Drs Alcorn and Synnott, who have an entirely different diagnosis of Mr Cooper, have based their opinions on a broader psychiatric examination to endeavour to identify any psychiatric diagnosis.  Ultimately, both those specialist doctors concluded that Mr Cooper does not suffer from any psychiatric order on the basis of the weight of psychiatric evidence. Consequently, I accept the views of Dr Alcorn and Dr Synnott in preference to the diagnosis of Dr Hewland.

34.     Overall, it is noted that after leaving the Army and until 1996, he claimed to have led a normal life.  His employment history is in part evidence of this and is inconsistent with a diagnosis of PTSD.  Other factors to differentiate Mr Cooper’s symptoms from a diagnosis of PTSD are highlighted by Dr Alcorn’s evidence.

35.     Dr Alcorn informed the Tribunal of the characteristics of PTSD sufferers and that Mr Cooper’s presentation did not closely resemble someone with PTSD symptoms. Specifically, he stated that Mr Cooper exhibits a significant degree of blame attribution to others and claims that others have lied. Also Mr Cooper focuses clearly on the stressor – the Gurkhas or the eyes of the Gurkhas. However, Dr Alcorn said that patients with PTSD often do not identify the stressor clearly for two reasons – they are usually in a disorganised state and they present their view of their circumstances in an indirect way; also, those who suffer severe PTSD usually have an avoidant aspect of their behaviour and discussion of the real stressor usually has to be drawn out of them by questioning. Mr Cooper could be differentiated from the more usual PTSD victims in these characteristics. In particular, Mr Cooper blamed others consistently in a number of the incidents he alleges occurred (although Dr Alcorn noted there was one exception to that in relation to an incident in Singapore).

36.     Another significant feature in the psychiatric evidence is that PTSD sufferers are generally reluctant to tell the detail of their trauma. Dr Alcorn noted that Mr Cooper’s narration has some aspects which satisfy that characteristic, but that was not universally true of the veteran’s evidence. He stated that “…other elements of his story were told with quite a lot of energy”.  Also, these victims do not usually “act out the feelings that they report they have”.  Mr Cooper highlighted to Dr Hewland that he might become violent if threatened. This report of aggressive feeling is again a little unusual for those with PTSD. This also indicates an absence of avoidance which Dr Alcorn points out as a very important feature of PTSD and that severe PTSD sufferers will usually avoid things that remind them of the stressor. Indeed, Dr Alcorn identified a pattern of absence of avoidance in Mr Cooper’s reporting his history, for example, attending a reunion of his former Unit and joining the Army Reserve for a period following his service in the Australian Regular Army. There was some social isolation reported by the veteran, but in Dr Alcorn’s opinion, this was as a result of his unusual beliefs about earlier events rather than from fear of contact with people as would be the typical case with a PTSD sufferer.

37.     There was evidence also that some of the attitudes displayed by Mr Cooper may not be related to any of the incidents claimed by Mr Cooper but may be attributable to antisocial tendencies or attitudes. Reference was made by Dr Alcorn particularly to the veto exercised by a Formation Commander of Mr Cooper’s re-engagement, in that regard.

38.     Evidence about the mental state examination of a person with PTSD was also produced. As stated earlier, the account of a person with PTSD would be expected to be disorganised. As such, their account may be circular or not sequential as one might expect as a logical explanation to be. Their concentration may therefore be poor and have thoughts presented haphazardly rather than in a coordinated and connected manner. Dr Alcorn compared the person one might expect to have PTSD and told the Tribunal Mr Cooper did not show the kind of disorganised thinking one would expect with an individual who had post traumatic stress disorder. He noted that an official diagnosis would require an examiner to consider an alternative diagnosis of malingering, and that this is most uncommon in cautioning examiners to consider a differential diagnosis when PTSD is in issue.

39.     Dr Alcorn’s evidence was that in addition to the variance  in the characteristics which a PTSD sufferer would experience compared with those of Mr Cooper, Dr Alcorn referred to the “temporal instability” of what appears to have been narrated to different psychiatrists at different points in time. However, the variations in content and in emphasis in Dr Alcorn’s view are significant and therefore, this increases the unreliability of much of the applicant’s evidence.

40.     Dr Alcorn concluded that the evidence admits three possible conclusions: firstly, that he has a delusional disorder, which is not factually correct although it is firmly held by the applicant and not reconcilable with him; secondly, that it is a fabrication; and thirdly, that his belief about the disappearance of a former Prime Minister is true but concealed. Dr Alcorn’s professional assessment is that neither of these three possibilities are consistent with post traumatic stress disorder.

41.     In addition to the psychiatric evidence, the Tribunal had the report of Lieutenant Colonel Peter Thornton Murray (Rtd), a former officer of RA Sigs in the Australian Regular Army and a former Commanding Officer of 7 Signals Regiment.  Colonel Murray was requested through Writeway Research Service on behalf of the respondent to provide an assessment of Mr Cooper’s claims.  Colonel Murray provided a reasoned report which concluded that Mr Cooper had never served in South Vietnam based on Mr Cooper’s personal record of service and a website for 7 Signals Regiment which shows the nominal roll of all soldiers who served in that unit in Vietnam.  Mr Cooper is not listed there.  He refers to Mr Cooper having been gazetted for a Vietnam medal but that this was subsequently cancelled.  Colonel Murray opined that a clerk may have mistaken Scott Cooper for a Murray Cooper, who did serve with that unit in South Vietnam.  While the dates for the latter overlap with Mr Scott Cooper’s military service, the dates gazetted appear to be for a period when he was posted to Singapore.  This does not prove conclusively that Mr Cooper never served in Vietnam, but it is less likely to be the case given other evidence provided by Writeway Research Service.

42.     Colonel Murray also points out that the claim that Mr Cooper had served in Vietnam for three months prior to his 19^th birthday is undoubtedly incorrect.  He points to the record where Mr Cooper qualified as an Operations Signaller on 6 February 1969, just 29 days before his 19^th birthday.  Also, he was still at Cabarlah on 16 April 1969 (that is, 39 days after his 19^th birthday) as he was then warned by his Commanding Officer for various offences.  Colonel Murray’s report highlights that the claim by Mr Cooper, that he himself vetoed his re-engagement in 1973, is also incorrect.  Colonel Murray indicates that the records reveal that Mr Cooper’s re-engagement was vetoed by Commander 6 Task Force, and this would be most likely to have occurred at the request of his Commanding Officer.

43.     When asked about his military offence history, Mr Cooper claimed he had a number of offences when in his first three years of service and before he went overseas.  Upon his return, he claimed he had only one offence.  There was no other evidence presented to further clarify his record of service offences.

44.     Having heard Mr Cooper and other witnesses, taking the psychiatric reports and the other documentary evidence into account, Mr Cooper therefore does not have a compensable “disease”. The Tribunal has decided that on the balance of probabilities, Mr Cooper has no psychiatric disability or that the symptoms are reported without a psychiatric basis.  The Tribunal has concluded that the inconsistencies in the evidence do not support a link between the claimed disabilities and Mr Cooper’s military service.

45.     The Tribunal affirms the decision under review.

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy, Member

Signed:         Camille Banks
  Associate

Date/s of Hearing  4 and 5 November 2004
Date of Decision  23 December 2004                   
The Applicant appeared in person
Counsel for the Respondent     Mr C Clark
Solicitor for the Respondent     Australian Government Solicitor