DWYER and REPATRIATION COMMISSION
[2010] AATA 646
•27 August 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 646
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2422
VETERANS' APPEALS DIVISION ) Re ROBERT KENNEDY DWYER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Brigadier C Ermert (Retd), Member
Dr R Blakley, Member
Date27 August 2010
PlaceMelbourne
Decision
The Tribunal varies the decision under review to the extent that Mr Dwyer does not suffer from obsessive compulsive personality disorder. The Tribunal affirms the decision in all other respects.
(sgd) C Ermert
Member
VETERANS’ AFFAIRS – operational service in Butterworth, Malaysia, and Ubon, Thailand – whether psychiatric and other conditions war-caused - diagnoses of conditions - four stages of Deledio reasoning ‑ hypotheses connecting conditions with operational service ‑ Statements of Principles ‑ hypothesis does not fit Statements of Principles – decision varied that veteran does not suffer OCPD – decision affirmed in all other respects.
Veterans’ Entitlements Act 1986 ss 9, 120(1), 120(3), 120A, 120A(3), 196A, 196B(2), 196B(14)
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
REASONS FOR DECISION
27 August 2010 Brigadier C Ermert, Member
Dr R Blakley, Member
1. Mr Robert Kennedy Dwyer, the veteran, was born in 1931 and served in the Royal Australian Air Force (RAAF) from 1948 to 1973. During the period from May 1964 to July 1966 Mr Dwyer served in Butterworth, Malaya, and Ubon, Thailand. This service has been accepted as comprising operational service in accordance with the provisions of the Veterans’ Entitlement Act 1986 (the Act).
2. Mr Dwyer contends that during his operational service he encountered a number of incidents which caused him considerable stress. He was tasked with the recovery of an engine from a crashed Australian Sabre aircraft, but was unable to do so, attracting criticism from his peers. On one occasion it was suspected that insurgents sabotaged a homing beacon on the airfield. There was a period of three to four days on which an amber security alert was declared and troops were required to carry weapons, lay sandbags and prepare for evacuation. Mr Dwyer’s living quarters were only 300-400 yards from the airstrip and planes took off and landed every 15 minutes over a four week period. Also, Mr Dwyer was concerned by reports that insurgents were in the vicinity of Penang Island near the married quarters in which his wife and family were living.
3. On 8 August 2008 Mr Dwyer submitted a claim to the Repatriation Commission for a pension on the basis that his heart problems and anxiety problems were war caused. On 2 October 2008 the Repatriation Commission refused his claim for war causation of ischaemic heart disease (IHD), hypertension and obsessive compulsive disorder. My Dwyer applied for a review of the decision. On 20 April 2009 the Veterans’ Review Board (VRB) varied the psychiatric diagnosis to obsessive compulsive personality disorder (OCPD) but otherwise affirmed the decision under review. This matter is an application for a review of the decision of the VRB.
THE HEARING
4. At the hearing Mr Dwyer was represented by Mr P Tatti from De Marchi and Associates. The respondent was represented by Mr K Rudge, an Advocate with the Department of Veterans’ Affairs. Mr Dwyer gave evidence and the Tribunal heard evidence from Dr R Peterson, consultant psychiatrist. For the respondent the Tribunal heard evidence from Dr G White, consultant psychiatrist.
The Tribunal had before it the documents the respondent submitted pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. The Tribunal took in the following evidence: for the applicant a statement by Dr R Peterson; for the respondent reports by Drs G White and NR Rose, consultant psychiatrists, Professor R Harper, consultant cardiologist, Dr D Wilson, military historian, clinical notes of Dr B Sterling and clinical notes of Romsey Medical Centre. The Tribunal also took into evidence the transcript of the VRB proceedings.
THE ISSUES
5. The first issue to be determined in this case is the diagnoses of Mr Dwyer’s claimed conditions.
6. The second issue is whether those conditions are war-caused.
WHAT ARE THE DIAGNOSES OF THE CLAIMED CONDITIONS?
7. The Tribunal’s first task is to determine the diagnoses for the conditions claimed by Mr Dwyer. The standard of proof is to the Tribunal’s reasonable satisfaction: Repatriation Commission v Budworth (2001) 116 FCR 200; Repatriation Commission v Cooke (1998) 90 FCR 307; and Repatriation Commission v Gosewinckel (1999) 59 ALD 690. Consistent with these cases, in Benjamin v Repatriation Commission (2001) 70 ALD 622 the Full Court of the Federal Court stated at 634:
…When the commission, or the tribunal on review, is required to determine whether a veteran is suffering from a particular injury or disease, that issue must be decided to the reasonable satisfaction of the decision-maker, in accordance with s 120(4) of the Act: …
8. The claimed conditions are:
(a)Post traumatic stress disorder (PTSD),
(b)OCPD,
(c)Hypertension,
(d)IHD, and
(e)Aortic stenosis.
9. Both parties agreed that a finding of war-causation or otherwise in relation to hypertension would apply also to IHD and aortic stenosis. The acceptance of war-causation of either of these conditions would require a prior acceptance of the war-causation of Mr Dwyer’s hypertension. Accordingly the Tribunal will consider the conditions of PTSD, OCPD and hypertension, and proceed to the other conditions only to the extent necessary.
PTSD
10. It is the applicant’s contention, based on a report and oral evidence by Dr Peterson, that Mr Dwyer suffers from PTSD and that it is service-related. In his report dated 9 May 2010 (Exhibit A1) Dr Petersen states My initial clinical impression, confirmed by direct and corroborative history and examination, was there is a clear history of emotional problems that do appear to be service-related and that the most appropriate diagnosis would be Post Traumatic Stress Disorder. Dr Peterson goes on To substantiate the Diagnosis of Post Traumatic Stress Disorder, the essential diagnostic criterion is that the individual must have been exposed to an event or events likely to produce distress in anyone who does so. I note there is some dispute over the details of the Sabre crash in Ubon; Mr Dwyer is clear in his description of these details and of his reaction to them.
11. In his oral evidence Dr Peterson described Mr Dwyer’s reaction to the news of the aircraft crash was one of extreme fear of death and destruction. When pressed further by the Tribunal on the issue of Mr Dwyer’s reaction Dr Peterson referred to his handwritten notes and said that Mr Dwyer had used the word concerned. Dr Peterson then agreed that it was his own extrapolation of the reaction from concerned to extreme fear. In contrast with that extrapolation Mr Dwyer’s oral evidence of his reaction was that he found the situation very disturbing.
12. In his written report and in his oral evidence Dr Peterson also stated that Mr Dwyer had recurrent and intrusive recollections of the air crash event. However in his oral evidence Mr Dwyer agreed that the recurrent aspect of the event was the criticism and derision of his colleagues in regard to his advice at the time that the engine of the crashed plane was irrecoverable. The engine was in fact recovered soon after the crash by other people. Further, Mr Dwyer’s evidence was that his ruminations and reflections of the crash incident were all about the derision he suffered from his colleagues, and the subsequent lack of promotion in his career.
13. In contrast Dr White stated in his written report of 28 October 2009 (Exhibit R1) that Mr Dwyer does not suffer from a psychiatric condition. Dr White confirmed this opinion in his oral evidence. When asked about Mr Dwyer’s reaction to the plane crash event Dr White said the reaction was not indicative of the shock and horror of a traumatic event. Dr White said that Mr Dwyer did not display the reactions and ongoing symptoms of PTSD. When interviewing Mr Dwyer, Dr White saw no sense of a fearful involvement with the crash itself. Mr Dwyer did not witness nor experience the actual crash and he could not suffer PTSD as a result of hearing about the crash. He said that Mr Dwyer‘s reflections were a festering about issues of authority and derision.
14. Other medical opinions relating to the diagnosis of Mr Dwyer’s claimed psychiatric condition were given by Drs Rose and D’Ortenzio. In his report dated 9 April 2001 (Exhibit R3) Dr Rose stated I could find no evidence of overt psychiatric illness. In answer to the question of his final diagnosis Dr D’Ortenzio said in his report dated 28 August 2008 (T10, page 62) The only diagnosis that I think is appropriate in this case is that of an Obsessive Compulsive Personality Disorder. I considered the diagnosis of an Anxiety Disorder, but the symptoms are transient and insufficient to make the specific diagnosis there. There is no history of any prolonged depressive episodes to make a diagnosis of Depression.
15. In the view of the Tribunal the PTSD diagnosis of Dr Peterson was significantly influenced by Dr Peterson’s view that Mr Dwyer reacted to the plane crash event with extreme fear and that his subsequent recollections and ruminations related to his fear of the crash. The Tribunal compares that view with the evidence of Mr Dwyer that his reaction to the crash was one of concern and being very disturbed, and that his subsequent reflections were related to the derision he received from his fellow officers over his inability to recover the engine. At no time has Mr Dwyer given any indication that his response to the plane crash was anything approaching intense fear, helplessness, or horror as provided for in the Statement of Principles (SoP) concerning PTSD, namely No.5 of 2008. Dr Peterson’s views of the symptoms pointing to a condition of PTSD are not consistent with the Tribunal’s view of the evidence presented. Indeed the Tribunal considered that Dr Peterson’s extrapolation of Mr Dwyer’s reaction to the crash event was a significant distortion of the history Mr Dwyer gave him. The Tribunal noted also Dr Peterson’s evidence that he had failed the examinations for entry to the Royal Australian and New Zealand College of Psychiatrists. Consequently the Tribunal gave less weight to the opinions of Dr Peterson.
16. As a result of its considerations the Tribunal is satisfied on the balance of probabilities that Mr Dwyer does not suffer from PTSD and finds accordingly.
OCPD
17. Dr D’Ortenzio records a diagnosis of OCPD for Mr Dwyer. In his report Dr D’Ortenzio stated that his diagnosis was supported by a pervasive lifelong pattern of preoccupation with control, orderliness and things being done in the right way. This has intruded a lot into his life in both social and occupational spheres. He has been a very conscientious, responsible and obsessional man who has not been able to delegate to others. He shows quite marked rigidity and stubbornness and has done so, right throughout his life (T10, page 62).
18. In contrast Dr White stated in his report There were no ongoing major effects on his activities of daily living from psychiatric symptoms…There are obsessive-compulsive personality traits, but these are not generally regarded as a ‘psychiatric condition’ (Exhibit R1, pages 3 and 6). In his oral evidence Dr White said that for personality traits to be diagnosed as disorders they would have to result in constant distress and/or have a pervasive adverse affect on personal relationships. He said that he saw no evidence that Mr Dwyer’s traits constituted a personality disorder, however he did say that the clinical diagnosis of traits versus a disorder can be a contentious issue for clinicians.
19. From his examination of Mr Dwyer, Dr Rose could find no evidence of overt psychiatric illness.
20. In considering the differing opinions the Tribunal prefers those of Drs White and Rose that Mr Dwyer is not suffering a condition of OCPD. The Tribunal is persuaded by the explanation of Dr White that for traits to be considered as disorders they would have to be constantly distressing and/or have a pervasive adverse affect on relationships. That explanation is consistent with the criteria derived from DSM-IV-TR as shown in the SoP for Personality Disorder, namely No.70 of 2008 which requires an enduring pattern across a range of personal and social situations and which leads to clinically significant distress or impairment in social, occupational, or other important areas of functioning. While Mr Dwyer gave histories of his characteristics of stubbornness, inflexibility, rigidity leading in some cases to irritability, his evidence to the Tribunal was that he had a successful career of 26 years in the RAAF, rising in rank from an apprentice to Flying Officer, with the rank of Squadron Leader on discharge. He also gave evidence of a normal social life while in the RAAF. There is no evidence before the Tribunal of significant distress or impairment in social, occupational or other important areas of functioning.
21. As a result of its considerations the Tribunal is satisfied on the balance of probabilities that Mr Dwyer does not suffer a clinical condition of OCPD and finds accordingly.
HYPERTENSION
22. In his report dated 13 October 2009 (Exhibit R2) Professor Harper states that Mr Dwyer suffers from hypertension. There was no dispute between the parties over this diagnosis. The Tribunal is reasonably satisfied that Mr Dwyer is suffering from hypertension and finds accordingly.
IS THE VETERAN’S HYPERTENSION WAR‑CAUSED?
23. The question of whether an injury or disease is taken to be war‑caused is covered in section 9 of the Act. This section provides that:
(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service; …
24. There was no disagreement that the relevant period of the veteran’s service constituted operational service as defined in the Act. Thus, the question of whether his claimed condition is war‑caused is to be determined by applying sections 120(1) and 120(3) of the Act. Those sections provide that:
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
25. Section 120A of the Act provides that, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (RMA) has determined a SoP in respect of a particular kind of injury or disease, the reasonableness of a hypothesis is to be assessed by reference to that SoP. As section 120A(3) provides:
For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
26. Section 196A of the Act provides for the establishment of the RMA. Section 196B(2) of the Act provides:
If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a)operational service rendered by veterans;
…
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d)the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
…
27. The reference in section 196B(2) of the Act to a particular kind of injury, disease or death being related to service is expounded in section 196B(14) of the Act. Section 196B(14) provides that:
A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b)it arose out of, or was attributable to, that service;
…
28. Where a condition is the subject of an SoP the Tribunal must apply the test prescribed by section 120A(3) of the Act, as explained by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98, in the following way:
1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
29. Adopting the Deledio line of reasoning the Tribunal considered whether Mr Dwyer’s hypertension was war-caused.
HYPERTENSION
Step 1 – Does the material point to a hypothesis connecting the veteran’s hypertension with his operational service?
30. The hypothesis advanced on behalf of Mr Dwyer is that during his operational service in Ubon he increased his consumption of alcohol which led to his condition of hypertension. Mr Tatti contended that two blood pressure readings taken in March 1966 exceeded the minimum levels specified in the definition of hypertension contained in SoP No.3 of 2004 (as amended) and that these readings indicate the clinical onset of hypertension.
31. Mr Dwyer gave uncontested evidence of the increase in his level of alcohol consumption while stationed in Ubon. Extracts from an Outpatient Clinical Record (Exhibit A3) show that on 10 March 1966 Mr Dwyer had a blood pressure reading of 130/95 and on 11 March 1966 he had a reading of 140/95. Both readings exceed one or other of the minimum levels of 140/90 contained in the SoP.
32. Although there is no medical diagnosis of the clinical onset of hypertension occurring in 1966, the Tribunal accepts that there is material before it which points to the hypothesis.
Step 2 – Is there an SoP in force which deals with the relevant condition?
33. Instrument Nº 35 of 2003, as amended by Instrument No.3 of 2004 and SoP No.11 of 2008, concerns hypertension and is in force.
Step 3 – Does the hypothesis fit the template of the SoP?
34. Before it can be said that the hypothesis is reasonable it must contain one or more of the factors which the RMA has determined to be the minimum which must exist and be related to the person’s service.
35. The relevant factors in this case are factors 5(a) and 5(b) which state:
(a)being obese at the time of the clinical onset of hypertension; or
(b)consuming an average of at least 300 grams of alcohol per week for a continuous period of at least the six months before the clinical onset of hypertension;
36. The element common to both factors is the clinical onset of Mr Dwyer’s hypertension. Mr Tatti’s contention is that the clinical onset occurred in March 1966 as evidenced by the blood pressure readings in Exhibit A3.
37. Mr Rudge drew to the attention of the Tribunal the definition of hypertension as provided for in SoP 35 of 2003 which states at 2.(b):
For the purposes of this Statement of Principles, “hypertension” means permanently elevated blood pressure, evidenced by:
(i)a usual blood pressure reading where the systolic reading is greater than or equal to 140mmHg or where the diastolic reading is greater than or equal to 90mmHg; or
(ii)the regular administration of antihypertensive therapy to reduce blood pressure,
This definition excludes temporary elevations in blood pressure from conditions such as acute renal failure, neurogenic hypertension, eclampsia, pre-eclampsia or medications.
38. Mr Rudge contended that the blood pressure readings in 1966 do not indicate permanently elevated blood pressure and referred to subsequent readings of 130/90 on 14 April 1967 (T4 page 45), 135/85 on 22 April 1971, and 130/70 on 9 August 1973. Mr Rudge submitted that these latter readings showed that Mr Dwyer’s blood pressure was in fact decreasing and was therefore not permanently elevated as required by the definition.
39. In his report dated 13 October 2009 (Exhibit R2, pages 1 and 2) Professor Harper stated …Mr Dwyer had blood pressures taken during his military service and in essence, they were all normal apart from a blood pressure of 130/95 on 10 March 1966, and 140/95 on 11 March 1966. Subsequently however up until 9 October 1981 he had eight blood pressure readings, all of which were in the normal range. Subsequent to the readings on 9 October 1981 of 170/105, he had two further readings recorded at the Blood Bank namely 180/100 on 9 March 1982 and 170/120 on 9 December 1982. These blood pressure readings are clearly abnormal. He was then started on treatment for hypertension and in general his blood pressure has been reasonably controlled since then. On this basis I conclude that the clinical onset of hypertension was 9 October 1981.
40. The Tribunal accepts the evidence of Professor Harper and finds that the clinical onset of Mr Dwyer’s hypertension was 9 October 1981.
41. Factor 5(a) of the relevant SoP requires the person to be obese at the time of the clinical onset of hypertension. There is no medical diagnosis before the Tribunal of Mr Dwyer being obese at any time. Indeed his own evidence was that he considered himself to be overweight on his return to Australia in 1967. He undertook a course of tablets and increased his exercise levels. As a result his weight came down and stayed stable from then on. The Tribunal is satisfied that factor 5(a) is not met in this case.
42. Factor 5(b) of SoP No.11 of 2008 requires the person to consume an average of at least 300 grams of alcohol per week for a continuous period of at least the six months before the clinical onset of hypertension. In his evidence Mr Dwyer clarified the variations in the different histories of his alcohol consumption and confirmed that after his last period of service in Ubon he decreased his alcohol consumption and from then until 1981 his alcohol consumption was on average one bottle of beer a day on three or four days a week, with two to three glasses of wine on the other days. There was no evidence presented, nor submissions made that this quantity of alcohol amounts to 300 grams per week. In considering the evidence and applying its common understanding of average alcohol contents the Tribunal is not satisfied that the provisions of factor 5(b) of 300 grams of alcohol per week are met in this case.
43. From its considerations of the relevant factors the Tribunal is satisfied that the hypothesis does not fit the template of the SoP. Accordingly the Tribunal finds the hypothesis to be not reasonable. As a consequence the claim that Mr Dwyer’s hypertension is war-caused fails at this point, and the Tribunal finds that Mr Dwyer’s hypertension is not war-caused.
IHD AND AORTIC STENOSIS
44. The Tribunal has found that Mr Dwyer’s hypertension is not war-caused. The acceptance of war-causation of hypertension is, in this case, a prior requirement for the acceptance of war-causation of Mr Dwyer’s IHD and aortic stenosis. The relationship of both conditions to war service depend on the existence of war-caused hypertension. Accordingly the Tribunal finds that Mr Dwyer’s conditions of IHD and aortic stenosis are not war-caused.
CONCLUSION
45. The Tribunal has found that Mr Dwyer does not suffer from PTSD or OCPD and as a consequence there can be no claim for consideration of these conditions as war-caused.
46. In addition the Tribunal has found that Mr Dwyer’s hypertension, IHD and aortic stenosis are not war-caused.
47. These findings mean that Mr Dwyer’s claim is not successful.
DECISION
48. The decision under review is varied to the extent that Mr Dwyer does not suffer from OCPD. In all other respects the decision is affirmed.
I certify that the forty-eight [48] preceding paragraphs are a true copy of the reasons for the decision herein of
Brigadier C Ermert (Retd), Member
Dr R Blakley, Member
(sgd): Leah Berardi
Clerk
Date of Hearing: 20 August 2010
Date of Decision: 27 August 2010
Solicitor for the applicant: Mr P Tatti, De Marchi and Associates
Solicitor for the respondent: Mr K Rudge, Department of Veterans’ Affairs
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