CTFL and Repatriation Commission (Veterans' entitlements) - [2020] AATA 238

CTFL and Repatriation Commission (Veterans' entitlements) [2020] AATA 238 (19 February 2020)
Division:VETERANS’ APPEALS DIVISION
File Number(s): 2017/3073
Re:CTFL
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:A G Melick AO SC, Deputy President
Date:19 February 2020
Place:Hobart

The Tribunal affirms the decision under review.
..........................[sgd].........................................
A G Melick AO SC, Deputy President
VETERANS’ AFFAIRS – claim for Defence-caused conditions – alcohol use disorder – whether the condition was Defence caused – standard of proof s120 of the Veterans’ Entitlements Act 1986 – what was required as a part of the Applicant’s duties – conditions related to personal life and not Defence force - decision under review affirmed
Legislation
Veterans’ Entitlements Act 1986 (Cth)
Cases
Roncevich v Repatriation Commission [2005] HCA 40
Roncevich v Repatriation Commission [2006] AATA 660
Holthouse v Repatriation Commission [1982] FCA 562
Secondary Materials
Repatriation Medical Authority’s Statement of Principles
REASONS FOR DECISION
A G Melick AO SC, Deputy President
19 February 2020

On 23 February 2015, the Applicant made a claim to the Repatriation Commission for alcohol use disorder (the disorder) in remission. The claim was refused on 30 April 2015 and the refusal was upheld by the Veterans’ Review Board on 6 April 2017.
On 22 May 2017 the Applicant applied for review by this Tribunal and for various reasons relating to the Applicant’s attempts to prosecute his case. The review was not heard until 27 September 2018.
BACKGROUND
The Applicant claimed (inter-alia) that the disorder arose from a perceived lack of workplace support and social isolation because of his homosexuality, which caused him to drink excessively partly in an attempt to gain acceptance. There was no dispute that the Applicant had an alcohol abuse disorder in remission and the question to be determined was whether or not that disorder was caused by his military service.
FACTS
At the hearing, the Applicant tendered and adopted an undated written statement filed on 19 March 2018. The following evidence was obtained from that statement and his cross examination.
The Applicant joined the Army as a national serviceman in 1972 and trained as a cook. He noted that this is where he became aware of the bullying in the Armed Forces and discovered that there was a perceived lack of social support.
It is relevant that the Applicant is homosexual, although after several incidents and comments he decided to keep his lifestyle secret “because of the innuendo that was dished out about ‘jack men’ and ‘alternate lifestyles’”.[1]
[1] Applicant’s personal statement (undated), submitted 19 March 2018, p1.
As his posting was in a remote location, he was forced into a confined community and stated he had to be very careful during social activities because of his sexuality, as it was repeatedly stated that his type would be “dealt with (in the Army way)”.[2]
[2] Ibid.
After qualifying as a cook he was posted to a Military barracks in Victoria as a pool cook. He stated that he “became a loner to avoid…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] AATA 238
Decision Date: 19 February 2020

CaseChat Overview and Summary

This matter concerned an application by CTFL against a decision of the Repatriation Commission concerning veterans' entitlements. The applicant claimed that his alcohol abuse disorder, which was in remission, arose from his military service. Specifically, he alleged that a perceived lack of workplace support, social isolation due to his homosexuality, and attempts to gain acceptance led to excessive alcohol consumption. The central question before the court was whether this disorder was caused by his military service.

The legal issues before the court were whether the applicant's alcohol abuse disorder was a "disease or injury" for the purposes of the relevant legislation, and if so, whether it was "war-caused" or "service-caused." This required the court to determine if the applicant's experiences of social isolation, bullying, and the need to conceal his homosexuality in the military environment were significant contributing factors to the development of his alcohol abuse disorder. The court also had to consider the weight of other potential contributing factors, such as a family history of alcoholism.

The Deputy President found the applicant to be an honest witness and accepted his account of experiencing bullying and social isolation due to his homosexuality during his military service. While acknowledging the applicant's enjoyment of his role as a cook and the absence of traumatic events, the Deputy President considered the medical evidence. One psychiatrist opined that the applicant's alcohol dependence developed as a result of his military service circumstances, though he was hesitant to diagnose an adjustment disorder retrospectively. The other psychiatrist noted a strong genetic predisposition to alcohol use disorder, given the applicant's parents and brother were also described as alcoholics, and considered this a major contributor. This psychiatrist also suggested that cultural factors within the military and the applicant's attempts to conceal his homosexuality may have played a minor role, but did not consider them substantial factors compared to the genetic predisposition.

The Deputy President ultimately concluded that while the applicant's experiences in the military may have contributed to his alcohol use disorder, the evidence did not establish that these factors were the primary or substantial cause. The strong genetic predisposition identified by one of the medical experts was considered a significant factor. Therefore, the application was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The Applicant claimed (inter-alia) that the disorder arose from a perceived lack of workplace support and social isolation because of his homosexuality, which caused him to drink excessively partly in an attempt to gain acceptance. There was no dispute that the Applicant had an alcohol abuse disorder in remission and the question to be determined was whether or not that disorder was caused by his military service.FACTS At the hearing, the Applicant tendered and adopted an undated written statement filed on 19 March 2018. The following evidence was obtained from that statement and his cross examination. The Applicant joined the Army as a national serviceman in 1972 and trained as a cook. He noted that this is where he became aware of the bullying in the Armed Forces and discovered that there was a perceived lack of social support. It is relevant that the Applicant is homosexual, although after several incidents and comments he decided to keep his lifestyle secret “because of the innuendo that was dished out about ‘jack men’ and ‘alternate lifestyles’”.[1][1] Applicant’s personal statement (undated), submitted 19 March 2018, p1. As his posting was in a remote location, he was forced into a confined community and stated he had to be very careful during social activities because of his sexuality, as it was repeatedly stated that his type would be “dealt with (in the Army way)”.[2][2] Ibid. After qualifying as a cook he was posted to a Military barracks in Victoria as a pool cook. He stated that he “became a loner to avoid all the bullying that would inevitably happen” to him.[3] He was unable to maintain friendships as a result of becoming socially isolated.[3] Ibid, 3. In about 1974 the Applicant transferred to a Military barracks in Tasmania where, although the barracks was more relaxed than his previous posting, he continued to protect his way of life by keeping to himself. By this time the Applicant had begun abusing alcohol. One night he was admitted to the Repatriation Hospital with alcohol poisoning after the President of the Mess Committee found him vomiting blood in his quarters. The Applicant was discharged from the hospital and had to make his own way back to the barracks (although I note from my own knowledge that the hospital is actually next door to the barracks) and was not offered any follow-up treatment. The Applicant’s bed was in the same state as it was when he was admitted to hospital, so he had to clean it up himself and continue with work the next day. He still continued to drink and kept his lifestyle to himself as he was mainly drinking off base. The Applicant maintained that he was socially isolated throughout his career and unable to maintain friendships of any kind. He had concerns about disharmony with work colleagues, perceived lack of social support and perceived bullying in the workplace. When cross-examined, the Applicant conceded that he did not experience any traumatic events in the military and that he enjoyed being a cook.

Evidence

Evidence Before The Court

I found the Applicant to be an honest and frank witness and am satisfied as to the correctness of the facts set out above.MEDICAL EVIDENCE Dr George Hyde, consultant psychiatrist, examined the Applicant on an unspecified date and provided a brief report dated 23 March 2018. The history obtained was consistent with the evidence set out above and Dr Hyde opined that the Applicant’s alcohol dependence developed as a result of the circumstances surrounding his Military service. Dr Hyde noted that the Applicant did not currently have any symptoms consistent with an adjustment disorder. He also stated that it was difficult to make a diagnosis of such a disorder in retrospect and even more difficult to make a diagnosis in the presence of active substance dependence. Accordingly, he did not feel confident to provide an opinion on the presence of an adjustment disorder during the period 1973 to 1981 or subsequently thereafter. He noted that the Applicant reported that since ceasing alcohol consumption in 2006 his mood and anxiety levels had improved. Dr Peter Miller, consultant psychiatrist, examined the Applicant on behalf of the Respondent on 24 October 2017 and provided a report dated 7 November 2017. The history given to Dr Miller was consistent with that outlined above and the Applicant attributed the use of alcohol to a wish to avoid revealing his homosexuality to colleagues and superiors. He believed that he drank in order to avoid contact with women. He noted that the Applicant ceased his drinking 11 years before the consultation after medical complications and ceased nicotine use nine years before the consultation. The Applicant had not worked since retiring in 2002. He noted the Applicant lived alone in a flat with a limited range of interests including gardening, watching TV, reading and walking. He noted the Applicant had regular contact with three siblings, although expanded in cross examination that the Applicant suggested this contact was about four to five times a year. Dr Miller noted the Applicant was taking no psychotropic medication. Dr Miller also noted that the Applicant’s parents were both alcoholics and one brother was a heavy alcohol user. Upon examination of the Applicant’s mental state, Dr Miller noted that the Applicant is a 65-year-old man who engaged comfortably in the assessment. His mood was bright, he was not anxious and he was able to give a fluent account of his life history and difficulties. The Applicant did not report any mental symptoms and told the doctor that he was content with his life as it was. The doctor was not able to ascertain any memory or other cognitive impairments from the Applicant's long period of alcohol abuse. He assessed the Applicant as having a history of alcohol use disorder and having been in remission for 11 years. Dr Miller opined as follows:(a)The Applicant suffers from an alcohol use disorder in remission as per DSM – 5.(b)Alcohol use disorder in remission is a recognised psychiatric diagnosis and remains as a diagnosis even after many years of remission, because liability to fuller lapse is life-long.(c)There are commonly multiple courses for alcohol or other drug use disorders, and in the Applicant's case both parents and one brother described by him as alcoholics, indicating a powerful genetic contribution which is well described in the literature. Cultural factors may also play a significant part in alcohol consumption in certain occupations and the Military is or was no exception, as is working as a chef. So, the Applicant, as a relatively young person with a strong genetic loading, found himself working in an environment where alcohol use was rife.(d)The third reason attributed by the Applicant was his wish to avoid revealing his homosexuality. It is difficult to know whether this would have played a part but in my opinion, this factor did not play a major a substantial part, given the very large role played by the first two factors. No doubt sustained attempts to conceal his sexual orientation aroused anxiety, which has become the Applicant's key source of attribution for alcohol use.(e)In my opinion the strong family history was a major or substantial contributor to the Applicant’s alcohol use disorder, with the other two factors playing a minor part.(f)The clinical onset of the active alcohol use disorder would have been in 1972, the first year he was in the Military.(g)His disorder was at such a level of severity that the Army, I would have thought, should have known or made some careful enquiries through the medical staff about the extent of the Applicant's alcohol use. He said that he and a few colleagues would spend all their days off-duty drinking on a ‘pub crawl’.(h)It is likely that the Applicant's depressive disorder had contribution from alcohol use and his attempts to conceal his homosexuality, but this seems not to have come to the attention of the Military throughout his time he was serving. LAW

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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