Doering and Military Rehabilitation and Compensation Commission (Compensation)

[2019] AATA 752

Doering and Military Rehabilitation and Compensation Commission (Compensation) [2019] AATA 752 (23 January 2019)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2016/4715

Re:Brett Doering

APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal:Member A Ward

Date:23 January 2019

Place:Adelaide

The Tribunal sets aside the reviewable decision of the respondent of 26 August 2016 and decides in substitution for that decision that the applicant is not entitled to compensation for permanent impairment for Post-Traumatic Stress Disorder under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 on the basis that the condition became permanent prior to 1 December 1988.

...........................[Sgnd]...........................................

Member A Ward

Catchwords

COMPENSATION – Hearing on papers – Onset of permanent impairment of PTSD injuries – Date of trauma causing PTSD – Review of onset in hindsight – Onset of condition and diagnosis of condition factual issues – Injuries established before 1 December 1988 – Decision under review set aside.

Legislation

Safety, Rehabilitation and Compensation Act1988

Cases

Excell v Comcare [2008] FCA 757

REASONS FOR DECISION

Member A Ward

23 January 2019

INTRODUCTION

1. This is an application for review of a decision dated 26 August 2016 which determined that the applicant was entitled to compensation for Post-Traumatic Stress Disorder (PTSD) based on 25% whole person impairment, and that the applicant’s condition became permanent after 1 December 1988. Thus the issues for the Tribunal to determine are when the applicant’s accepted condition of PTSD became permanent, and, if it became permanent after 1 December 1988, to what compensation is the applicant entitled to under ss 24 and 27 of the Safety, Rehabilitation and Compensation Act1988 (the SRC Act).

2. This matter proceeded by way of a hearing on the papers. The parties filed a Statement of Agreed Facts, and the opinions of specialists Dr Christopher Veale and Professor Cherrie Galletly were provided in medical reports.

   BACKGROUND

3. The applicant was born on 29 September 1963. He enlisted in the Royal Australian Airforce (the RAAF) on 24 November 1981.  The RAAF referred the applicant for psychiatric treatment in July 1985.

4. In May 1987 the applicant travelled to the Cocos Islands to take part in military exercises. In June 1987, the applicant suffered a manic episode of such severity that he was admitted to the Cumberland Psychiatric Unit in Westmead, New South Wales, and the Concorde Hospital. He was diagnosed with Bipolar 1 Disorder. He was discharged from the RAAF on 23 November 1987 as medically unfit. 

5. On 11 June 1996 the applicant’s claim for an aggravation of his Bipolar Disorder was accepted as arising out of his military service.  The applicant was diagnosed with thyrotoxicosis in 1987 which was found to be caused by lithium prescribed to treat his Bipolar Disorder. In 1998 there were further admissions to hospital. The applicant’s whole person impairment for Bipolar Disorder was assessed at 40% on 4 September 1998.

6. On 12 August 2002, liability was extended to a condition of obesity on the basis that some of the applicant’s treatment for Bipolar Disorder could cause excessive weight gain. 

7. The applicant has been treated at the Repatriation Hospital in South Australia for his psychiatric conditions since approximately 2005. The applicant was treated by Dr Christopher Veale, psychiatrist, as an inpatient at the Repatriation Hospital, between 15 February 2007 and 12 April 2007, and as an outpatient from 30 April 2007.

8. A further Determination was made on 31 January 2012 and the applicant was found to suffer 60% whole person impairment as a result of Bipolar Disorder.

   CONSIDERATION

9. The applicant made a request on 28 October 2014 that the respondent’s liability be extended to include PTSD. The respondent accepted liability for PTSD on 20 November 2015. The question therefore arises as to when the PTSD injury became a permanent impairment. 

10. The respondent contends that the injury occurred in 1987 and thus is non-compensable by operation of s 124(3) of the SRC Act. That section provides that a person is not entitled to compensation under ss 24 or 25 in respect of permanent impairment that occurred before the commencing date of 1 December 1988.[1] 

    [1] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 27(3).

11. The applicant’s Claim for Rehabilitation and Compensation completed on 25 June 2013 is divided into various parts and enumerated issues. Issue 10 asks for what injury, disease or illness the applicant is claiming, to which he responded ‘PTSD’, and for which he states he first received medical treatment on 1 November 2012.[2]

    [2] There has been an amendment to the type-written document to reflect this.

12. Part three, issue 12 ‘Injury Information Details’ asks what task was being performed when the injury was sustained, to which the applicant responded “Service in the Solomon Islands.” The word ‘Solomon’ has also been altered and ‘Cocos’ has replaced it. This is consistent with the Statement of Agreed Facts summarised above.

13. The case of Excell v Comcare[3] discusses the factual finding to be contemplated in similar circumstances to this case. In that case, the finding was that the diagnosed psychological condition arose from the applicant's work and was permanent before 1 December 1998. The case makes it clear that the assessment has to be made with the benefit of hindsight to assess whether the condition was permanent at the relevant time.

    [3] [2008] FCA 757.

14. In Mr Doering’s case, there are differences in the medical opinions provided as to the onset of the permanent impairment.

15. The applicant was referred to Professor Galletly for an independent assessment of a number of issues arising out of his medical condition and claims. One of the particular issues to which Professor Galletly was directed was the onset of the PTSD. The consultation took place on the 11 September 2017. In her report of 15 September 2017 Professor Galletly recorded the following history: [4]

    PTSD: Mr Doering told me that his duties involved engagement with secretive information during the Cold War. He described the onset of PTSD in 1987 when he was locked up in Cumberland Hospital with his first manic episode. He said that he was put in headlocks and choked (presumably he was physically restrained to manage his disturbed behaviour). There were Chinese nurses on late at night and he couldn’t sleep. He thought that the nurses were Chinese people who were keeping him captive. He said that he was then taken over by four men and he thought that they were Russians. He said that they looked like Russians as they were bigger and older. These four men carried him to another ward and knocked him out. They wanted to give him a needle and he wouldn’t let them but in the end they did. He said it was 11.00 at night then suddenly it was sunrise.

    He believed he had been caught by the Chinese and Russians and was being tortured.  He believed they were interrogating him and he thought he was going to die. He thought for a long time that he was being held captive. When he was in seclusion he tried to escape.

    [4] Supplementary T Documents ST17.

16. The applicant also told Professor Galletly that he had another manic episode and had ideas of grandeur, but had not had similar ideas about the Chinese and the Russians as set out above occurring in 1987. He also told her that his belief of being held captive, being tortured, and would be killed, felt as if it “happened a couple of days ago”. The applicant further told Professor Galletly that he had post-traumatic symptoms “ever since” (the 1987 manic episode) concerning those events,[5] and when he had flashbacks or dreams involving these incidents he would wake up in a sweat and wanted to get a knife and cut his throat. He also noted there had been a variation in symptoms in that when he was suffering from depression (from Bipolar) he would have the nightmares three or four times per week, and otherwise they usually occurred about once every one to two weeks.

    [5] Supplementary T Documents ST17, page 3 of the report.

17. This describes the very real trauma affecting the applicant during the height of his manic attack at the time when he was an inpatient at the Cumberland Hospital in 1987. 

18. Professor Galletly also went through a number of other medical events that had affected the applicant from which he did not develop PTSD symptoms. One such event was a life-threatening haemorrhage. Professor Galletly recorded an incident when the applicant “had elevated CK at one stage and was in the ICU at Flinders Medical Centre for seven days, and told me that the staff there thought he might die.”

19. The applicant relies upon the medical evidence of Dr Veale, psychiatrist, who has treated him extensively (as noted in the Statement of Agreed Facts). Unfortunately, Dr Veale has provided different opinions on the important fact of the onset of injuries. The applicant points to the fact that there was neither diagnosis nor treatment of PTSD symptoms for a long time, and presumably not before 1 November 2012 as referred to on his Claim for Rehabilitation and Compensation.[6] The task being performed when the applicant sustained the injury is noted as “Service in the Cocos islands” which occurred in 1987. Thus there is an acknowledgment in that application of a delay between injury and diagnosis.

    [6] Dated 25/06/13 Part 10 (where typed date 01/11/2013 has been altered to 01/11/2012).

20. Dr Veale’s reports primarily deal with the Bipolar Disorder and indeed, a good deal of the evidence that is before the Tribunal in this matter concerns that. There is no reference to PTSD symptoms at all until 2012 or 2013. Before and during this time the applicant was having extensive treatment for Bipolar Disorder and its consequences.

21. In a report dated 29 May 2014,[7] Dr Veale was asked to consider a link between the claimed PTSD and the military service and he said “I note that Mr Doering attributes his PTSD to his military service in the Cocos Islands in May 1987”.  Dr Veale considered that the PTSD affected the applicant in between the mood swings which are the subject of the Bipolar Disorder, and that the PTSD is separate to the Bipolar Disorder. The Tribunal accepts that.

    [7] T Documents T4.

22. In that report Dr Veale said that the PTSD related to the events that occurred whilst the applicant was psychotic. In his mania the applicant thought he was placed in danger, and subsequently he had recurrent nightmares and thoughts about those situations. Dr Veale stated that the applicant “has also had a number of hospitalisations where he has been traumatised by being forced to have medication against his will and being restrained”.

23. Dr Veale made specific reference in the report to the mania leading him to become hospitalised which then gave rise to him having beliefs that he would die “especially when he is restrained and medicated against his will”.

24. These histories are consistent with those of Dr Galletly as I have noted above, and the Applicant told her it was the hospitalisation in 1987 when these events occurred.

25. Having formed the view that the PTSD arose as a consequence of service, (which was subsequently accepted by the Respondent on 16 June 2015) it was then necessary for Dr Veale to consider when that condition arose.  In a report dated 9 February 2015,[8] Dr Veale referred specifically to the applicant having periods of manic psychosis and delusional ideation. He commented:

    When he was admitted in the psychiatric unit in Sydney he believed he was being captured by Chinese spies and he was going to be killed when he was restrained and injected.

    [8] T Documents T5.

26. That is consistent with the events occurring during the applicant’s admissions to hospital in 1987,[9] and also the history obtained by Professor Galletly.

    [9] Statement of Agreed Facts point 5.

27. On 17 September 2015 Dr Veale wrote a further report[10] to clarify the situation with regards to the compensability of the applicant’s PTSD condition. He said that the PTSD was permanent and became permanent in 1987. Dr Veale was specifically advised of the significance of 1 December 1988 to the applicant’s claim, and considering that, still maintained that the condition became permanent before 1 December 1988.[11] Dr Veale’s attention was again specifically directed to that issue when he was asked by the Respondent on 30 September 2015 to provide further clarification regarding whether the PTSD became permanent before or after 1 December 1988. In a report dated 9 November 2015[12] responding to the specific question: “Did Mr Doering’s Post Traumatic Stress Disorder condition become permanent after December 1988?” Dr Veal opined as follows:

    After reflecting on his case again and the various timing of events I would have to say on the balance of probability the condition was permanent in 1987.

    [10] T Documents T13.

    [11] T Documents T13, page 52.

    [12] T Documents T15.

28. Dr Veale provided a further report on 31 March 2016[13] in which he significantly varied his opinion as stated in his several previous reports on the this pivotal issue. He stated that he did not ‘think I could say that his PTSD was permanent in 1987 as I couldn’t say he had evidence of symptoms until later than 1987’. Dr Veale said that as the great majority of the applicant’s hospitalisations were post-1987 ‘on that basis the condition became permanent after 1987’. This reversal of opinion seems to have been reached without adequate analysis of facts and histories, and the Tribunal does not accept this analysis of the evidence.

    [13] T Documents T18.

29. Professor Galletly performed a specific review of the applicant for these purposes and the history from him was of onset of problems following the manic episode in 1987 in the NSW (Sydney) hospital dealing with the Chinese and Russians and torture and injections. This was not an interpretation by Professor Galletly but the actual history provided by the applicant. It is consistent with the histories reported on by Dr Veale in all of his earlier reports. This was the cause of the PTSD which has continued to manifest itself since - often during distressing periods of time locked in psychiatric units. Whilst it was there, it was not specifically diagnosed until later due to the predominance of the Bipolar condition. However the clear memory of great stress and shock from the 1987 hospitalisations has been a consistent feature of his PTSD symptoms. Thus it has been permanent (or otherwise put ‘well established’) since inception when looking back over the years to make this assessment.

30. Referring back to the case of  Excell[14] the Court noted:

    [T]he impairment must have been permanent, that is to say likely to continue indefinitely, and that state of affairs must have been reached before the commencement date of the 1988 Act, if the applicant is to be excluded from lump sum compensation under that Act.

    [14] Excell v Comcare [2008] FCA 757, 45 – 47.

31. The Tribunal finds the PTSD injury was permanent when the applicant was exposed to the trauma in 1987, and as such prior to 1 December 1988.

    DECISION

32. As a consequence of the foregoing, the Tribunal finds that the reviewable decision of 26 August 2016 is to be set aside and substituted with a decision that the applicant is not entitled to compensation for permanent impairment for PTSD under ss 24 and 27 of the SRC Act on the basis that the PTSD became permanent prior to 1 December 1988.

I certify that the preceding 32 (thirty two) paragraphs are a true copy of the reasons for the decision herein of Member A Ward.

......................[Sgnd]..................................

Administrative Assistant Legal
Dated: 23 January 2019