Donald Ambler and Repatriation Commission - [2013] AATA 303

[2013] AATA 303

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2011/2329

Re

Donald Ambler

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
The Hon R J Groom AO, Deputy President

Date 15 May 2013

Place Hobart
Decision Summary
The Tribunal decides that:
(a)The applicant suffers from Recurrent Major Depressive Disorder and not from Post-traumatic Stress Disorder.

(b)In all other respects the decision under review is affirmed.

........................................................................
Deputy President
Catchwords
Veteran's Affairs - disability pension - applicant rendered defence service in Royal Australian Navy - traumatic incidents during service - claim of defence-caused PTSD - correct diagnosis is Recurrent Major Depressive Disorder - connection raised between disease and service rendered by applicant - relevant Statement of Principles does not uphold connection - disease not defence-caused - except for different diagnosis decision under review affirmed.
LEGISLATION
Veterans' Entitlements Act 1986 ss 70 (5), 120(4), 120B(3)

Statement of Principle's Concerning Depressive Disorder No. 28 of 2008
CASES
Repatriation Commission v Smith (1987) 15 FCR 327

Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Bawden (2012) FCAFC 176
Repatriation Commission v Warren (2007) 95 ALD 606
Repatriation Commission v Cornelius (2002) 69 ALD 250
Repatriation Commission v Wedekind [2000] FCA 649

Brew v Repatriation Commission (1999) 56 ALD 403
REASONS FOR DECISION
The Hon R J Groom AO, Deputy President
INTRODUCTION

This is a review of the decision made by the Veterans’ Review Board (“VRB”) on 7 March 2011.
The decision of the VRB affirmed an earlier decision of the Repatriation Commission which had refused Mr Ambler’s claim under the Veterans’ Entitlements Act 1986 (“the Act”) that the Post Traumatic Stress Disorder (“PTSD”) from which it was alleged he suffered was defence-caused.
Mr Ambler served in the Royal Australian Navy from 12 January 1981 to 12 January 2001. During his 20 year career in the navy he achieved several promotions and had attained the rank of Petty Officer prior to the date of his discharge.
The whole period of Mr Ambler’s full-time continuous service is “defence service” within the meaning of that term in s 68 of the Act.
The Repatriation Commission had previously accepted a number of other medical conditions suffered by Mr Ambler as being defence-caused. If it is established that he also suffers PTSD, or some alternative psychiatric condition, he would then be entitled to be paid a pension at a higher rate.
THE LEGISLATION
A person who has rendered defence service is eligible to receive a pension under Part IV of the Act if he or she suffers from an injury or disease which was “defence-caused”. An injury or disease is “defence-caused” if it “arose out of or was attributable” to any defence service. It is sufficient if the injury or disease was “contributed to in a material degree by or aggravated by” any defence service.
Section 70(5) of the Act relevantly provides as follows:
(5)For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part…

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: [2013] AATA 303
Decision Date

CaseChat Overview and Summary

The case of Donald Ambler against the Repatriation Commission involved a dispute over the nature and causation of Mr Ambler's mental health condition. The case was heard and decided by a tribunal that was empowered to review decisions made by the Repatriation Commission regarding Mr Ambler's medical condition and its connection to his service in the defence force. The primary legal issues before the tribunal were whether Mr Ambler's condition was post-traumatic stress disorder (PTSD) or recurrent major depressive disorder, and whether his condition was connected to his service in the defence force.

The tribunal carefully considered the medical evidence provided by various psychiatrists and psychologists. The tribunal noted that Mr Ambler's wife provided a witness statement identifying symptoms she had observed in him that are consistent with PTSD. The tribunal also considered the evidence of three psychiatrists who gave oral evidence, including two treating psychiatrists, Dr Carter and Dr Jensen, and an independent psychiatrist, Dr Sale. The tribunal reviewed written reports from these and other medical professionals. The tribunal found that Dr Carter consistently diagnosed Mr Ambler with PTSD, linking it to traumatic events during his service, while Dr Jensen changed her opinion over time. The tribunal ultimately decided that Mr Ambler suffers from recurrent major depressive disorder rather than PTSD, and that his condition was not connected to his defence service.

In light of the tribunal's findings, it decided to affirm the original decision of the Repatriation Commission in all respects except for the nature of Mr Ambler's condition, which it determined to be recurrent major depressive disorder. Consequently, the tribunal did not uphold the applicant's claim that his condition was connected to his defence service, and therefore, the tribunal was not reasonably satisfied that his condition was defence-caused.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Mrs Ambler also made a written statement (A5) and gave oral evidence. Mrs Ambler is a psychiatric nurse and it is interesting that her witness statement includes the heading “symptoms of PTSD”. She described in the statement various PTSD symptoms she has observed Mr Ambler suffering including details of “nightmares”, “irritability”, “mood swings”, “social phobia” and “stress”.The Medical Evidence Three experienced psychiatrists gave oral evidence at the hearing. They were two treating psychiatrists Dr Carter and Dr Jensen and a third psychiatrist, Dr Sale, who was engaged by the respondent to interview Mr Ambler and then to provide a written medico-legal report. In addition to that oral evidence the Tribunal had the benefit of reading written reports from Doctors Carter, Jensen and Sale as well as from other psychiatrists including Dr Auchincloss, Dr Wallace and Dr Reinhardt and also psychologists Ms Groombridge and Ms Johnston. It is not the Tribunal’s intention to canvass in detail in these reasons all of the varying medical opinions that have been provided but simply to highlight those portions of the evidence which most influenced it in reaching a conclusion about the medical condition suffered by Mr Ambler. There can be no doubt that Dr Carter had ample opportunity to observe Mr Ambler and to assess his medical condition. Mr Ambler was referred to him in 2010 for assessment and treatment. Dr Carter said he had attended Mr Ambler 42 times since May 2010 including during a period of hospitalisation at the St Helen’s Hospital in Hobart in January and February 2011. Dr Carter expresses a consistent view in his oral evidence and written reports that Mr Ambler is suffering PTSD “… which arose from traumatic events encountered as part of his work in the defence force” (the report of 16 October 2011). In that written report Dr Carter refers to four traumatic events which occurred in Mr Ambler’s naval service. Interestingly he includes an alleged incident in late 1983 when Mr Ambler is said to have seen some dead bodies in Indonesian waters. It would appear that incident is no longer relied upon by Mr Ambler as a cause of his medical condition. Dr Carter considers that Mr Ambler presents symptoms which satisfy a number of the DSM-IV criteria for the diagnosis of PTSD. They are detailed in his written report of 16 October 2011. He believes the “possible traumatic sequelae” began soon after the 1987 Otoma incident when contact was made with naval medical staff. Dr Carter is not surprised that other psychiatrists have diagnosed depression as “… PTSD, depression, anxiety disorder and substance abuse occur frequently either together or individually at different times during the evolution of PTSD …” (report of 18 August 2012). Dr Jensen’s evidence is particularly interesting. An increased knowledge of certain factors gained over time caused her to change her opinion. Dr Jensen had 29 consultations with Mr Ambler between 19 July 2000 and 1 November 2002. She also interviewed Mr Ambler for an hour on 10 December 2003 to assist her in preparing a detailed written report dated 16 December 2003.

Decision

Reasons for decision

As the SOP does not uphold the contention that the applicant’s condition of Recurrent Major Depressive Disorder is, on the balance of probabilities, connected with his defence service, the Tribunal, pursuant to s 120B(3) of the Act, is not reasonably satisfied that the condition is defence-caused. DECISION The Tribunal decides that :(a)The applicant suffers from Recurrent Major Depressive Disorder and not from Post-traumatic Stress Disorder. (b)In all other respects the decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/2329
Re	Donald Ambler
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	The Hon R J Groom AO, Deputy President
Date	15 May 2013
Place	Hobart