Daryl Walley and Repatriation Commission
[2012] AATA 196
•4 April 2012
[2012] AATA 196
Division Veterans' Appeals Division File Number(s)
2011/0864
Re
Daryl Walley
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President J W Constance Date 4 April 2012 Place Melbourne Decision Summary
The decision of the Repatriation Commission made 8 April 2010, which refused Mr Walley’s claim for acceptance of alcohol dependence as being war-caused, is affirmed.
.......[sgd J W Constance]..................
Deputy President J W Constance
CATCHWORDS
VETERANS' AND MILITARY COMPENSATION – Royal Australian Navy – whether a connection exists between the disease of alcohol dependence and the service rendered – whether the Statement of Principles No. 2 of 2009 upholds the contention that the disease of alcohol dependence suffered is on the balance of probabilities connected with the war service – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 70, 120(4) and 120B(3)
CASES
Lees v Repatriation Commission [2002] FCAFC 398
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Gosewinckel [1999] FCA 1273
SECONDARY MATERIALS
Statement of Principles concerning Alcohol Dependence and Alcohol Abuse No. 2 of 2009
REASONS FOR DECISION
Tribunal Deputy President J W Constance
Date 4 April 2012
INTRODUCTION
In 2010 the Repatriation Commission rejected Mr Walley’s claim that his alcohol dependence was war-caused within the meaning of the Veterans’ Entitlements Act 1986 (Cth). Had his claim been accepted he would have been entitled to an increase in the rate of pension payable to him as well as payment of necessary treatment expenses.
Mr Walley has applied to the Tribunal to review the decision of the Commission. For the reasons which follow the decision will be affirmed.
LEGISLATION
Section 70 of the Act provides for the payment of a pension to a member of the Defence Forces if the member is incapacitated from a defence-caused injury or disease.
Subsection 120(4) requires the Tribunal to decide the issues relating to the entitlement to a pension under section 70 to its reasonable satisfaction.
Subsection 120B(3) provides in part:
In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12);
…
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
BACKGROUND
The parties agree that the whole of Mr Walley’s service in the Navy is properly classed as defence service to which subsection 120(4) and subsection 120B(3) apply. They agree also that Mr Walley presently suffers from alcohol dependence and that Statement of Principles No. 2 of 2009 is applicable. I am satisfied that these agreements are appropriate.
ISSUES FOR DETERMINATION
The issues for determination are as follows.
(1)Does the material before the Tribunal raise a connection between the disease of alcohol dependence suffered by Mr Walley and the service rendered by him?
(2)Does the Statement of Principles No. 2 of 2009 uphold the contention that the disease of alcohol dependence suffered by Mr Walley is, on the balance of probabilities, connected with his war service?
MATERIAL BEFORE THE TRIBUNAL
Service documents
Mr Walley enlisted in the Royal Australian Navy on 17 November 1981. He was 20 years old at the time. His service continued until his discharge on 11 February 1988.
Between 13 December 1982 and 19 December 1983 Mr Walley was posted to HMAS SUPPLY.
Mr Walley’s evidence
Mr Walley gave evidence of three separate incidents in which he was involved during 1983 whilst serving on HMAS SUPPLY.[1]
[1] The exact dates of these incidents have been taken from the report of Writeway Research Service Pty Ltd dated 16 August 2011, exhibit R4.
High pressure steam leak 15 February 1983
Mr Walley was working alone in #2 pump room when an isolation valve ruptured allowing high temperature steam to escape. The jet of steam engulfed the ladder which was the normal means of exiting the room. Mr Walley sheltered in a cofferdam space adjoining the pump room for about 10 minutes. He then returned to the pump room and escaped by climbing up a series of plates welded to the pump room wall.
Engine room fire 13 May 1983
Lagging around a pipe caught fire in the engine room. Mr Walley was a member of the fire-fighting crew tasked with extinguishing the fire. He and another crew member were required to go part-way down a ladder into the engine room dragging a fire-fighting hose. He was at risk of falling approximately five-six meters. The fire was extinguished after about five minutes.
Refuelling incident 28 August 1983
The HMAS SUPPLY was engaged in refuelling another ship at sea. Mr Walley was stationed at the outlet valve in order to close the valve when required. During the operation the distance between the ships increased causing the hose connection and cables to snap and rebound in the immediate vicinity of Mr Walley. He was showered by fuel escaping from the fuel line.
Alcohol consumption
When he gave evidence to the Tribunal Mr Walley said that he started to consume alcohol on a regular basis whilst serving on HMAS SUPPLY. He began by consuming the ration of two cans of full-strength beer per night, but after the incident with the winch he increased his consumption up to 12 cans per night when the ship was in harbour and he was on shore. He described his alcohol consumption as being a “problem” in the mid‑eighties.
Between 9 January 1984 and 15 January 1985 Mr Walley was posted to HMAS SWAN[2] which was undergoing a refit in Williamstown, Victoria. During this time he lived with his parents. He told the Veterans’ Review Board that during this time he would sometimes consume three or four stubbies per day, sometimes more. He said that his average consumption was about 12 stubbies per day. His parents did not comment on his drinking habits at this time.[3]
[2] Exhibit A1 p.2.
[3] Exhibit R1 pp.34-35.
Mr Walley was posted to HMAS CEREBUS from 15 January 1985 until 3 February 1987.[4] Before the Tribunal he said that it was a lot easier to obtain alcohol on this posting and his drinking “just snowballed”. Before the Veterans’ Review Board Mr Walley said that the first comments as to his work performance made by his superiors were made in 1986-87. He described these comments as “subtle ... about pulling [his] head in with the drink.”[5] No disciplinary action was taken.[6]
[4] Exhibit A1 p.2.
[5] Exhibit R1 p.43.
[6] Exhibit R1 p.44.
When asked by the Board, Mr Walley expressed the opinion that his alcohol dependence started in late 1983.[7]
[7] Exhibit R1 p.49.
In his claim dated 1 February 2010[8] Mr Walley claimed a disability described as “Alcohol Dependant Abuse”. He stated further that:
Markedly increased levels required to obtain release. Unable to reduce or cut down amount consumed.
…
I believe that Navy service started this pattern and undiagnosed psychiatric events during 1983 aggravated this conditions [sic] and responsible for its increase.
[8] Exhibit A1 pp.37-51.
In response to the question “when did you first become aware of the signs and symptoms of the disability or aggravation of the disability? (approx. date if known)”, he replied “1992”.
Mr Walley’s personnel records
In an Alcohol Questionnaire dated 1 February 2010[9] Mr Walley completed the following table in response to the question “did the amount of alcohol you consumed change significantly at any time after you first started drinking alcohol?”
[9] Exhibit A1 pp.47-49.
Date of Change
New amount consumed
Reasons for Change
1984
12 heavy stubbies per day
On mess committee and more association with alcohol.
Date of Change
New amount consumed
Reasons for Change
1988
1992
06/92
12 Heavy stubbies per day
24 Heavy stubbies per day
Zero Alcohol
Discharge and missed Navy. New job. Hard to settle into civilian life.
Marriage breakdown
Unsuccessful rehabilitation
09/92
1995
2004
4 Heavy stubbies per day
12 Heavy stubbies per day
6-8 Heavy stubbies per day
Start of alcohol dependence
Stress of marriage separation
Work related problems
2010
10-12 Mid strength stubbies per day
I have alcohol interlock fitted to my vehicle and I am dependant on my daily alcohol consumption.
On 17 November 1987 Mr Walley completed a Health Examination Questionnaire in which he noted that his alcohol consumption had not changed.[10] However, on the evidence before me, it is not clear what period of possible change is covered by the questionnaire.
[10] Exhibit A1 p.30.
Mr Walley’s service medical records for the period 1983 to 1988 (inclusive) do not refer to excessive alcohol consumption.
Evidence of Dr Seabridge, Consultant Psychiatrist
Dr Seabridge assessed Mr Walley on 16 November 2010. He provided a report dated 3 December 2010[11] and gave evidence. Mr Walley gave Dr Seabridge a history of the incidents on board HMAS SUPPLY.
[11] Exhibit A1 p.99.
Dr Seabridge reported:
Mr Walley fulfils the criteria for Substance Dependence – Alcohol, commencing during his naval service, as a result of exposure to the described traumatic stressors.
…
In taking a full history from Mr Walley, there is nothing to suggest that he had been in any way traumatized by the break down [sic] of his first marriage, his alienation from his children, or his employment, or his financial status.[12]
[12] Exhibit A1 p.101.
When he gave evidence Dr Seabridge confirmed the opinions he expressed in his report.
Evidence of Dr Chester, Consultant Psychiatrist
Dr Chester assessed Mr Walley on 24 February 2010. He provided a report dated 16 March 2010 and gave evidence.
Dr Chester reported:
In my opinion Mr Walley has a long history of alcohol abuse and dependence but it is not clear whether he has strong motivation to address his problem given that he underwent rehabilitation on one occasion in 1992 and Mr Walley presents as ambivalent regarding this issue.
...
There is no clear relationship between Mr Walley’s alcohol abuse and his naval service given that there is no history or record of undue stress or trauma during his naval service.[13]
[13] Exhibit A1 pp.89-90.
Dr Chester gave evidence that Mr Walley had not provided him with a history of the incidents during his service on HMAS SUPPLY.
Dr Chester said that dependence on alcohol refers to a condition where a person cannot continue without alcohol consumption. He said that one determinant of dependence is a desire to stop consuming alcohol but being unable to do so. In his opinion Mr Walley showed a “definite ambivalence about stopping.”[14] He said that Mr Walley’s history showed that changes in his alcohol consumption were a result of his life events and that the increase in consumption in 1992 was indicative of this pattern.
[14] Transcript 6.2.12.
Dr Chester was asked if he could identify a time of the clinical onset of alcohol dependence. He said that he could not.
Report of Dr D’Souza, General Practitioner
On 24 February 2010 Dr D’Souza was Mr Walley’s general practitioner. On that day he completed a Work Ability Report in relation to Mr Walley.[15] In that report he recorded a diagnosis of alcoholism/alcohol dependence commencing in 1982. He commented that Mr Walley was “encouraged to drink and smoke during work in the Navy.”
[15] Exhibit A1 p.74.
REASONING
Issue 1: does the material before the Tribunal raise a connection between the disease of alcohol dependence suffered by Mr Walley and the service rendered by him?
Mr Walley gave evidence that he commenced to consume alcohol on a regular basis whilst posted to HMAS SUPPLY in 1983. He said that he consumed the rations provided to him and consumed larger quantities of alcohol when on shore leave. He said also that he increased his consumption after the refuelling incident in August 1983. Further Mr Walley said that his consumption of alcohol “snowballed” after he was posted to HMAS CEREBUS in January 1985 by reason of the ease with which he could obtain alcohol.
Dr Seabridge gave evidence that in his opinion there was a connection between the incidents Mr Walley experienced on board HMAS SUPPLY and his alcohol dependence.
On the basis of the material referred to I am satisfied that the material raises a connection between Mr Walley’s service and the claimed condition of alcohol dependence.
Issue 2: does the Statement of Principles No. 2 of 2009 uphold the contention that the disease of alcohol dependence suffered by Mr Walley is, on the balance of probabilities, connected with his war service?
Clause 4 of the Statement of Principles provides:
Basis for determining the factors
On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that alcohol dependence or alcohol abuse and death from alcohol dependence or alcohol abuse can be related to relevant service rendered by veterans or members of the Forces under the VEA, or members under the Military Rehabilitation and Compensation Act 2004 (the MRCA).
Clause 5 provides:
Factors that must be related to service
Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Clause 6 provides, in part:
Factors
The factor that must exist before it can be said that, on the balance of probabilities, alcohol dependence or alcohol abuse … is connected with the circumstances of a person’s relevant service is:
…
(b)experiencing a category 1A stressor within the two years before the clinical onset of alcohol dependence or alcohol abuse.
This is the only factor on which Mr Walley relies. I am satisfied on the material before me that this is the only relevant factor.
A category 1A stressor is defined in clause 9:
“a category 1A stressor” means one or more of the following severe traumatic events:
(a)experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured.
Mr Walley argues that each of the three incidents previously described is a category 1A stressor. However the Statement of Principles cannot be said to uphold the contention that the alcohol dependence is connected with Mr Walley’s service unless there is evidence that establishes, on the balance of probabilities, that he experienced a category 1A stressor within the two years before the onset of alcohol dependence.
On the evidence before me I am not satisfied on the balance of probabilities that the onset of Mr Walley’s condition of alcohol dependence was within two years of any of the incidents relied upon.
The meaning of “clinical onset” as used in the Statement of Principles was considered by the Tribunal in Re Robertson and Repatriation Commission:[16]
“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...”
The above approach was approved by the Full Court of the Federal Court in Lees v Repatriation Commission.[17]
[16] (1998) 50 ALD 668.
[17] [2002] FCAFC 398 at [16].
Mr Walley relies upon the evidence of Dr Seabridge. However Dr Seabridge’s opinion was that the alcohol dependence commenced “during [Mr Walley’s] naval service.” All of the incidents relied upon took place before 9 January 1984, being the last day of Mr Walley’s posting on HMAS SUPPLY. Mr Walley did not complete his naval service until 11 February 1988 Dr Seabridge’s evidence does not provide the basis for a finding that clinical onset was within two years of any of the incidents experienced by Mr Walley while on board HMAS SUPPLY.
In determining the date of clinical onset it is necessary to consider whether the condition claimed satisfied the description of the disease in the Statement of Principles at that time.[18]
[18] Repatriation Commission v Gosewinckel [1999] FCA 1273.
Clause 3(b) provides
Kind of injury, disease or death
…
(b)For the purposes of this Statement of Principles:
"alcohol dependence" means a psychiatric condition that meets the following diagnostic criteria (derived from DSM-IV-TR):
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 the alcohol to achieve intoxication or desired effect; or
(b)markedly diminished effect with continued use of the same amount of the alcohol.
(2)Withdrawal, as manifested by either of the following:
(a)the characteristic withdrawal syndrome for the alcohol; or
(b)the same (or a closely related) alcohol is taken to relieve or avoid withdrawal symptoms.
(3)The 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 the alcohol, use the alcohol or recover from its effects.
(6)Important social, occupational, or recreational activities are given up or reduced because of alcohol use.
(7)The 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 the alcohol (e.g., continued drinking despite recognition that an ulcer was made worse by alcohol consumption).
On the material before me I cannot be satisfied that at any time within two years after the events on HMAS SUPPLY Mr Walley’s pattern of alcohol use was manifested by three or more of the listed criteria occurring at any time in the same 12-month period.
The evidence as to Mr Walley’s pattern of alcohol use in the relevant period is very limited. Mr Walley said that he increased his alcohol consumption after the refuelling incident (28 August 1983) by drinking more when on shore leave, but it was not until 1984 that he increased consumption to an average of 12 stubbies per day. In his opinion his alcohol dependence began in late 1983. However Mr Walley is not qualified to make this assessment nor did he give evidence which would enable a qualified medical practitioner to make such a diagnosis. Furthermore he described his drinking pattern between January 1984 and January 1985 as three or four stubbies per day, sometimes more, with an average of about 12 stubbies per day. This pattern does not meet the requirements of paragraph (1) of the definition of alcohol dependence.
On the evidence before me none of the remaining requirements of the definition were met. There is no evidence of withdrawal symptoms or of alcohol being taken in larger amounts or over a longer period than was intended. Mr Walley did not indicate that he had a persistent desire to cut down his alcohol use in the relevant period. His unsuccessful attempt to substantially reduce his intake did not occur until 1992.
Mr Walley’s statements as to his work and social activities during 1984 and 1985 indicate that he continued to function normally in this regard and there is no evidence of disruption of any recreational activities. His service medical records do not indicate any problems with alcohol use. It was not until 1986-1987 that any comments were made by his superiors as to his alcohol consumption.
CONCLUSION
The decision of the Repatriation Commission made 8 April 2010, which refused Mr Walley’s claim for acceptance of alcohol dependence as being war-caused, will be affirmed.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.
..[sgd]..................................................
Associate
Dated 4 April 2012
Date of hearing 6 December 2011 Advocate for the Applicant Mr B Turner Advocate for the Respondent Mr K Rudge
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