Ellis and Repatriation Commission
[2007] AATA 1714
•30 August 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1714
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/633
| VETERANS’ APPEALS DIVISION ) | |
| Re | MICHAEL ELLIS |
Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date 30 August 2007
Place Brisbane
Decision
The Tribunal affirms the decision under review.
...............[Sgd]...............................
Heather Baldwin
District Registrar
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – operational service with Royal Australian Air Force – application of Statements of Principles – no diagnosis of post traumatic stress disorder - no reasonable hypothesis of relevant relationship to service raised – decision affirmed
Veterans Entitlements Act 1986 (Cth) ss 6C, 7, 9, 14, 69, 120, 120A
Repatriation Commission v Smith (1987) 15 FCR 327
Benjamin v Repatriation Commission (2001) 70 ALD 622
Fogarty v Repatriation Commission (2003) 37 AAR 363
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
| 30 August 2007 | Mr RG Kenny, Member |
Background
Michael Ellis (the applicant) served with the Royal Australian Air Force (the RAAF) for 20 years. On 17 May 2002, he lodged with the Repatriation Commission (the respondent), in accordance with section 14 of the Veterans’ Entitlements Act 1986 (the Act), a claim for a disability pension for conditions including post traumatic stress disorder, tension headache and irritable bowel syndrome which he contended were related to his RAAF service. On 16 July 2002, the respondent determined that irritable bowel syndrome and tension headache were not war-caused and that Mr Ellis did not have post traumatic stress disorder. On 24 August 2005, the Veterans’ Review Board (the Board) affirmed that decision.
The respondent also determined, on 16 July 2002, that pension was payable to Mr Ellis at sixty percent (60%) of the general rate in relation to incapacity associated with previously accepted conditions of sensori neural deafness, tinnitus, gastro-oesophageal reflux disease, tinea and alcohol dependence. That decision was effective from 17 May 2002. With the assessment matter, the Board determined that the appropriate rate of pension was fifty percent (50%) of the general rate from 17 May 2002 and 70% from 12 July 2005.
On 10 October 2005, Mr Ellis sought review of those matters by the Administrative Appeals Tribunal (the Tribunal).
Issues, Service and Standard of Proof
Mr Ellis was 20 years of age when he enlisted in the RAAF in which he served from 4 April 1961 until 1 June 1981. He had completed his trade qualification as a metal worker before he enlisted and served in that capacity in the RAAF. He rendered eligible war service in the form of operational service, as provided for in sections 7 and 6C of the Act, respectively. This was in South Vietnam from 28 September 1965 until 30 May 1966. He also rendered a period of defence service, as provided for in s 69 of the Act, from 7 December 1972 until his discharge but no contentions arise out of that service. Rather, Mr Ellis contends that, in South Vietnam, he underwent certain experiences which were causally related to the subsequent development of his claimed conditions.
The standard of proof for determining diagnostic matters and also matters of assessment under the Act is provided for in subsection 120(4) thereof and this requires that such matters be determined to the decision maker’s reasonable satisfaction. This has been held to import the civil standard of proof so that matters must be determined on the balance of probabilities: see Repatriation Commission v Smith (1987) 15 FCR 327 at 335; Benjamin v Repatriation Commission (2001) 70 ALD 622 at 634; and Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373.
The standard of proof applicable to whether an injury or disease is causally related to operational service is set out in subsection 120(1) of the Act which reads:
“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.
The application of that provision is affected by the terms of subsection 120(3) and also by section 120A of the Act which requires that consideration be given to any relevant Statements of Principles that have been published by the Repatriation Medical Authority (RMA). Under paragraph 9(1)(b) of the Act, a condition will be war-caused if it arose out of, or was attributable to, any eligible war service rendered.
Submissions
Mr Clutterbuck, for the applicant, advised that the only matter raised for the Tribunal’s consideration was the entitlement matter for which the appropriate diagnosis was post traumatic stress disorder. He submitted that this condition developed in response to any or some of five stressful events. The first was the shelling of the airfield at Vung Tau where Mr Ellis was directed to take cover in a protective bunker and advised that he and his fellow ground staff would be abandoned in the event of an enemy attack. The second was when he was in the township at Vung Tau, realised that it was the subject of enemy attack and ran blindly through darkened streets to return to his accommodation which was at Villa Nguoc. The third was his viewing the headless body of a Korean soldier under an aircraft on the runway at the airfield at Vung Tau. The fourth was when he saw “packages” loaded onto an aircraft on which he was travelling as part of a “trap run” and which he subsequently learned contained the bodies of American servicemen. The fifth involved coming under enemy attack while salvaging parts from an “aircraft graveyard”.
Mr Williams, for the respondent, submitted that Mr Ellis did not suffer from post traumatic stress disorder and that the claim for that condition should be dismissed on that basis.
The Applicant’s Evidence
Mr Ellis gave the following evidence. He was in Vietnam as a tradesman and had not undergone any specific training relating to combat activities.
The first of the events which occurred to him in South Vietnam was while he was working on the airfield at Vung Tau when the base came under attack from enemy mortar and machine-gun fire. He and approximately 30 other airmen relocated themselves into a bunker in a prearranged move. He was in fear of his life but did as he was told by going to the bunker. It had been explained to them that they would be the final defence should an assault on the base take place, and they would be left behind whilst air crew and administration staff would be flown to safety in Manila or Singapore.
The second incident was the most frightening of those that he experienced. He was in the township of Vung Tau eating a meal at about 7 or 8 pm on a Saturday night. He was by himself. He heard sounds which he described as a “crunch” noise and believed it to be coming from exploding mortar shells. He ran into the street where he heard people calling out that they were being attacked. He ran to his accommodation at Villa Nguoc plunging headlong through the darkened streets. On arriving at the villa, he was told to access his rifle and to “have a beer”. He proceeded to consume whisky because, in the event that he was overrun by enemy forces, he “didn’t want to know about it”. He stayed on his bed with his rifle and whisky until the “all clear” was given. He was in a state of panic when running blindly though the town to the villa because he did not know what was happening though he believed the town, which was about 2 to 3 kilometres from the airfield, was under attack.
The third incident occurred when he was working on aircraft on the tarmac. Apart from doing sheet-metal work on aircraft, he would undertake other general work and, on one occasion, he went to assist with the loading of a plane. He saw the body of a Korean soldier lying on the tarmac. He had been decapitated by a propeller. He didn’t see the incident occur but was told what happened by another man who had been completing a pre-flight inspection of an aircraft. The Korean soldier had been boarding an aircraft when his hat blew off and he was hit by another plane’s propeller. Mr Ellis immediately returned to a hangar where he sat on a box and thought that it could have been him. It was the first time that he had ever seen a dead body.
In relation to the fourth incident, Mr Ellis said that, from time to time, he would perform the role of an assistant on a “trap run”. He produced a document in which he listed a series of 10 flights which he recalled having taken. This involved joining the air crew of a plane which flew to small airfields transporting locals and their belongings from place to place. On one occasion, a palette was loaded onto the plane. The palette contained baggage which was wrapped in ponchos. He took no particular notice of this until after landing when he was advised that they were bodies of US serviceman. He described his reaction as one which made him wonder at the purpose of what he was doing and whether he would be going back to Australia in that way.
In the fifth incident, he was working with an American company (Dynelectron Corporation) which was contracted to repair RAAF Caribou aircraft. He was a member of a crew who travelled to an airfield called Quin Nohn which he described as an “aircraft graveyard” from which parts were salvaged. Whilst working on a particular plane, the airfield came under attack and he, again, feared for his life as he was not armed. He estimated that the enemy activity occurred some 500 to 600 metres away from where he was working and he was not aware of what the enemy fire was directed at.
By way of reaction to the various events, Mr Ellis said that he “went inside himself” and, later, began to consume increased levels of alcohol. It was not any particular incident which caused him to consume alcohol heavily but, rather, an accumulation of things including feelings of anxiety on his initial arrival in Saigon, in civilian clothes, where no one met him to explain what he needed to do. He conceded that he continued to have difficulty with alcohol-related problems during his service although, eventually, he was promoted to the rank of sergeant.
After he left the RAN, Mr Ellis completed a university course and became a trade teacher at a TAFE. He enjoyed the work but had trouble getting on with other staff members and eventually took a retirement package in 1999. At that stage, he realised that he needed assistance for his health problems and, after attending RSL counselling sessions, was referred to psychiatrist, Dr C Danesi. He also saw another psychiatrist on one occasion. This was Dr J Wainwright. He was disturbed by some of the questions that were asked by Dr Wainwright because they raised issues about his aboriginality and, in particular, he found it very uncomfortable when asked about his deceased mother.
Medical Evidence
A report was provided in this matter by psychiatrist, Dr W Wright. Psychiatrists Dr C Danesi and Dr J Wainwright provided reports and also gave oral evidence.
Dr Wright
Dr Wright examined Mr Ellis in June 2002. He recorded him as saying that he had served in South Vietnam in a non-combatant role and that, whilst he had sometimes been close to military action, he was never involved and had not witnessed any killings or woundings. Dr Wright concluded that, on the information before him, there was no evidence that Mr Ellis suffered from post traumatic stress disorder, anxiety disorder or depression.
Dr Danesi
Dr Danesi first saw Mr Ellis in 2000. Since then, he has prepared several medical reports. On 28 August 2000, he reported that Mr Ellis had displayed no symptoms of panic disorder, obsessive-compulsive disorder, social anxiety disorder or psychosis. Dr Danesi recorded the incidents involving the salvaging of aircraft parts when gunfire was heard from about a “half a mile” away, the aircraft “trap run”, people running from gunshots in the streets and the Saturday night experience when Mr Ellis believed mortars were fired into the town. Dr Danesi diagnosed alcohol dependence which, at that time, he described as being in full remission.
In his report of 17 February 2003, Dr Danesi noted that he had resumed his habit of consuming alcohol. In his report of 12 July 2005, Dr Danesi entered diagnoses of post traumatic stress disorder, alcohol dependence in partial remission and pathological gambling in remission. He considered that the post traumatic stress disorder had its onset when he was serving in Vietnam. Dr Danesi made reference to “being near a contact, probably half a mile away, for a number of hours while he was salvaging parts of a plane”; to people running from gunshots in the streets; and to having mortar landing a couple of hundred metres from him. Before preparing his report of 11 May 2006, Dr Danesi spoke with Mr Ellis’ wife. He said that she had noted significant changes in Mr Ellis after he returned from Vietnam and this confirmed Dr Danesi’s diagnosis of post traumatic stress disorder. He further confirmed this in his report of 11 August 2006.
In his evidence, Dr Danesi said that the diagnosis of post traumatic stress disorder had not been appropriate when he completed his earlier reports. He said that the symptoms may have been masked by Mr Ellis’ heavy alcohol consumption or his personality and he had to disentangle the effects of the alcohol and post traumatic stress disorder.
Dr Wainwright
Dr Wainwright interviewed Mr Ellis on 23 November 2005 and completed his report on 7 December 2005. He was of the opinion that Mr Ellis did not have a psychiatric illness. He reached that conclusion on the basis of his psychiatric examination, testing, the history given to him and other reports that he read. The incidents recounted to Dr Wainwright were being mortared at the air base when they were required to shelter in a bunker; being mortared in Vung Tau on Saturday night and running back to his villa; seeing a Korean soldier with his head chopped off; and hearing machine-gun fire whilst salvaging aircraft parts at Quin Nohn. He recounted to Dr Wainwright that the “biggest thing” was being told that that would be left behind when the air crew left the base. Dr Wainwright was of the opinion that there was no stressful event which would precipitate post traumatic stress disorder. He said that the events would cause him to become anxious at the time but that the impact would be a temporary one and not associated with any subsequent post traumatic stress disorder.
In his long and very detailed report, completed after a 3 hour interview, Dr Wainwright referred to his mental state examination of Mr Ellis. He described him as being relaxed and cooperative throughout the interview and as showing no evidence of any hyperarousal, even when describing events in Vietnam. Dr Wainwright described him as smiling often during the interview and becoming tearful on one occasion only when he referred to the death of his mother. He described his speech and mood as being normal and with no evidence of any inability to experience pleasure. He described him as displaying good attention and concentration throughout the interview and subsequent psychometric testing.
Dr Wainwright agreed that the consumption of alcohol can mask symptoms of post traumatic stress disorder but also that it would take a minimum of six months abstinence to remove the effects of alcohol dependence. He said that the testing he conducted revealed no objective evidence of alcohol abuse when he saw him.
Dr Wainwright denied that any questions he posed to Mr Ellis improperly raised issues of aboriginality and that there were no reactions to indicate that Mr Ellis had any concerns during the interview. He denied that he advised Mr Ellis to trace his aboriginal heritage or that he should seek assistance from an aboriginal organisation.
Other evidence
Evidence was given by Ken White who served at Vung Tau at the same time as Mr Ellis. He recalled that, on 12 March 1966, the base was subjected to enemy mortar attack. He and other airmen had completed their duties and were preparing to have dinner. He was uncertain about the time and variously declared that it may have been at around 5.30 to 6 pm or 8 to 8:30 pm. He didn’t think it was as late as 10 pm. Damage was inflicted on some buildings and aircraft. He recalled that Mr Ellis had not been on the base at the time of the attack. He was not directly aware of any mortar shells being fired at or contacting the township but was subsequently advised that some erratic shells had landed in the township.
Reports in relation to the present matter were completed by Dr David Wilson who worked with the Department of Defence until 2004 where he was the head of the RAAF historical section. Dr Wilson annexed various documents to his reports including RAAF Transport Flight Monthly Reports for the periods when Mr Ellis was at Vung Tau. These record that the airfield was mortared on the night of Saturday 12 March 1966 at 10pm (2200 hours). No reference is made to an attack on the township at that time. Also, no other attacks are described but reference is made to several alerts of impending attacks on the airfield, to all members having been thoroughly briefed on the action that they were to take during any alerts and to weapons training having been conducted.
The documents provided by Dr Wilson do not include any RAAF record of the incident involving the beheaded Korean soldier, of flights undertaken by Mr Ellis in Vietnam or of cargo carried by any individual aircraft.
In evidence was a document downloaded from the internet which appears to be a version of events in Vietnam from the perspective of the Viet Cong. It gives a different account of the attack on 12 March 1966 from that in the RAAF documents. For example, it refers to 138 mortar shells landing in the area where 300 Americans were watching movies outdoors and into the airfield where 37 planes were destroyed.
Diagnosis
Post traumatic stress disorder
The relevant RMA Statement of Principles is Instrument No 3 of 1999 as amended by Instrument No 54 of 1999. It lists six criteria (paragraphs 2(b)(A) to (F)), all of which must be met before a diagnosis of post traumatic stress disorder can be made. Paragraph 2(b)(A) reads:
(A) the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person’s response involved intense fear, helplessness, or horror;
Of particular significance to issues of diagnosis is the specialist psychiatric evidence. Dr Wright and Dr Wainwright concluded that Mr Ellis does not suffer from post traumatic stress disorder. Dr Wright was not advised of any of the five incidents advanced by Mr Ellis and was told that Mr Ellis was “never involved and had not witnessed any killings or woundings”. Dr Wainwright referred to four of the incidents, omitting that relating to aircraft travel with the bodies of American servicemen. Dr Wainwright observed and commented upon the demeanour of Mr Ellis as he detailed, with no apparent difficulty, the events to him during his interview.
Mr Ellis advised Dr Wainwright that the most significant of the events was that which involved the suggestion that he and other ground crew may have been required to remain on the base, in the event of an attack, after the air crew abandoned them. This was the first of the five incidents outlined in Mr Ellis’ evidence. Mr Ellis referred to an attack from enemy mortar and machine-gun fire at that time. However, apart from the incident of 12 March 1966 when Mr Ellis was not at the base, RAAF records refer only to several alerts of impending attacks on the airfield. I am reasonably satisfied that these are not sufficient to meet either requirements of criterion A(i) or (ii) for post traumatic stress disorder, noted above.
Mr Ellis did not refer to the incident with the Korean airman to Dr Danesi. Also, this incident was not perceived by Mr Ellis to be as significant as that identified as the main stressor nominated to Dr Wainwright (fear of abandonment after attack) or as that identified to the Tribunal as the main stressor ie the events of 12 March 1966. That is not surprising given Mr Ellis’ description of his reaction at the time. He returned to a hangar, sat on a box and thought that it could have been him who had been injured in that way. I am reasonably satisfied that this event does not meet the requirements of criterion A(ii) for post traumatic stress disorder, noted above. I am also satisfied that this is the case with Mr Ellis’ observation of aircraft baggage which he subsequently learned contained the bodies of deceased American soldiers. Again, his reaction was one of wonder at the purpose of what he was doing and whether he would be taken back to Australia in that manner. I am also reasonably satisfied that the same conclusion applies to the situation at Quin Nohn where Mr Ellis was involved in salvaging of aircraft parts for the reason that the requirements of criteria A(i) and A(ii) are not met. The enemy activity was described to the Tribunal as having occurred some 500-600 metres away from where he was working. He told Dr Danesi it was about half a mile away. There was no suggestion that enemy fire was directed at the point where he was working and, in any event, he was uncertain of what the activity was.
The final matter relied upon by Mr Ellis concerns the events at Vung Tau on 12 March 1966. His evidence to the Tribunal was that this was the most significant of the stressors. It is not disputed that the airfield was attacked by mortars that evening. The RAAF records described some 50 to 60 rounds of 85 mm mortar landing on the airfield with 2 rounds landing in the aircraft parking area and another 2 rounds landing close by. The records show that the attack occurred at 10pm, that 2 aircraft sustained damage and that no casualties were suffered by the RAAF. Mr Ellis described the sounds as occurring at about 7 or 8pm. There is no evidence that mortars landed in the township where Mr Ellis was having a meal. Mr White gave evidence that, subsequently, he heard that this had happened but he had not confirmed this. Mr Ellis heard the sounds of what he believed to be exploding mortar shells. His evidence was that the base was some 2 to 3 km away from his location. It may well have been those sounds that he heard. He ran quickly back to his villa where he was instructed to access his rifle and have a beer. This event was not referred to Dr Wright. It was detailed to Dr Wainwright who concluded that this was not a sufficiently stressful event to meet the requirements of criterion A in the Statement of Principles. I am also reasonably satisfied that this is the case. There was clearly no concern expressed by those at the villa who suggested to Mr Ellis that he “have a beer”. In this matter, I have not given any weight to the internet document noted above (para 30) concerning the events of 12 March 1966 because its authorship and status are unknown.
On the basis of the above analysis, the diagnostic criteria for post traumatic stress disorder are not met by Mr Ellis. Clearly, that is not consistent with the opinion of Dr Danesi. Mr Clutterbuck submitted that the opinion of Dr Danesi should be preferred to that of Dr Wainwright. In one sense, criticism was directed at Dr Wainwright’s evidence because of Mr Ellis’s perception that Dr Wainwright had, in some way, passed negative aspersions on his aboriginality. In his evidence, Dr Wainwright denied this and I accept his denial in that regard. I have noted the very comprehensive and carefully reasoned report of Dr Wainwright and, in particular, consider that he dealt with matters of aboriginality in Mr Ellis’ background in a sensitive manner.
In submitting that preference should be given to the report of Dr Danesi, Mr Clutterbuck relied upon the fact that his recent reports were completed after having consulted with Mr Ellis’ wife which gave him insight into the true nature of Mr Ellis’ psychiatric condition. While I accept that such contact has the capacity to enhance the understanding of the extent to which a person presented with psychiatric symptoms, it does not alter the analysis undertaken by the psychiatrist of the alleged stressful events for the purposes of determining whether they meet the diagnostic criteria in the Statement of Principles. This is a matter to be determined on the basis of the description given of those events, in this case by Mr Ellis, and not on the basis of the presentation of any subsequent symptoms of a psychiatric nature. From as early as 2000, Dr Danesi was given information about the events involving the salvaging of aircraft parts, seeing the bodies of American servicemen during the aircraft “trap run” and experiencing the sounds of mortar shells on 12 March 1966. Nevertheless, he was not able to identify these as triggering events for post traumatic stress disorder. The characteristics of those events are not coloured by information subsequently provided by Mrs Ellis. Like Dr Wainwright, Dr Danesi did not initially consider the events to meet the diagnostic criteria for post traumatic stress disorder. As noted above, I am reasonably satisfied that is the case. I have also noted that Dr Wainwright denied the presence involved the criterion concerning hyperarousal.
I am reasonably satisfied, on all of the evidence, that the diagnostic criteria for post traumatic stress disorder are not met. In particular, this is because the evidence does not satisfy the requirements of paragraph 2(b)(A) in the Statement of Principles.
Statements of Principles
The Statement of Principles for post traumatic stress disorder includes causal factors and associated definitions. Insofar as relevant, they read:
experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder
experiencing a severe stressor means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlement Act applies, events that qualify as stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
Principles of Causation
The Federal Court, in Repatriation Commission v Deledio (1998) 83 FCR 82 at 92, set out a four-step procedure for determining issues of causation in relation to operational service. The first of these requires that there be material which points to an hypothesis connecting a claimed condition with service. For post traumatic stress disorder, no such hypothesis arises because of my finding that the condition is not present in Mr Ellis. This means that the condition is not war-caused under s 9(1)(b) of the Act.
Decision
The Tribunal affirms the decision under review.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: ............................................................
F Kamst, Legal Research Officer
Hearing: 7 February 2007; 5 July 2007
Date of Decision 30 August 2007
Counsel for the Applicant Mr R Clutterbuck
Solicitor for the Applicant Haney Lawyers
For the Respondent Mr B Williams, departmental advocate
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