Emmerton and Repatriation Commission
[2009] AATA 576
•4 August 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 576
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/5266
VETERANS' APPEALS DIVISION ) Re ANTHONY LAWRENCE EMMERTON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J G Short (Member) Date4 August 2009
PlaceAdelaide
Decision The Tribunal affirms the decision of the Repatriation Commission dated 12 December 2006 as affirmed by the Veterans' Review Board on 17 August 2007 determining that generalised anxiety disorder was not war-caused.
..............................................
J G SHORT
(Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans’ entitlements – operational service – claim that generalised anxiety disorder was war-caused – consideration of Statement of Principles – observing sonar reading which applicant considered may have been an enemy diver – observing wounded but treated soldiers in a hospital – landing craft trip from HMAS Brisbane to Da Nang Harbour and observing puff of smoke in foothills – decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth), ss 9, 120(1), 120(3), 120A and 196
Bull v Repatriation Commission (2001) 66 ALD 271
East v Repatriation Commission (1987) 16 FCR 517
Elliott v Repatriation Commission (2002) 73 ALD 377
Hardman v Repatriation Commission (2004) 82 ALD 433
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82White v Repatriation Commission (2004) 39 AAR 67
REASONS FOR DECISION
4 August 2009 Mr J G Short (Member) 1. Mr Emmerton was engaged in operational service in Vietnamese waters from 16 March 1971 to 11 October 1971 on board HMAS Brisbane. On 13 October 2006 Mr Emmerton lodged a claim for acceptance of conditions including “emotional disorder” now diagnosed as generalised anxiety disorder. The Repatriation Commission (the Commission) refused the claim for pension in respect of generalised anxiety disorder (GAD). On 17 August 2007 the Veterans’ Review Board (the VRB) affirmed the Commission’s decision in respect of GAD.
issue before the Tribunal
2. The issue before me is whether Mr Emmerton’s GAD is war-caused for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (the VE Act). Both parties accept the diagnosis of GAD.
background
3. Mr Emmerton asserts in the present proceedings, in essence, that certain stressful events occurred during his operational service, and caused the condition on which his claim is based. Mr Emmerton referred to three events which he suggested satisfied the requirements of either Statement of Principles (SoP) 1 of 2000 or 101 of 2007.
4. Mr Emmerton struggled to accurately recall the detail of the events and his evidence provided before me was inconsistent with some aspects of the history Mr Emmerton had previously provided, including the history previously provided to Dr Ewer and upon which Dr Ewer based his reports dated 22 October 1999, 13 November 2002, 20 October 2006, and 11 January 2008. After noting Dr Ewer’s difficulty in providing expert opinion evidence based upon the evidence Mr Emmerton provided to me, I adjourned further consideration of the matter so that Dr Ewer could again examine Mr Emmerton, after reading the transcript of the evidence Mr Emmerton provided on the first day of hearing, and after taking a further history from Mr Emmerton, and thereafter provide a further medical report. Dr Ewer provided his further report dated 17 April 2009 (Exhibit A2).
5. Dr Ewer’s most recent report confirmed a diagnosis of GAD and the existence of this condition has been accepted by both the applicant and the respondent. I find accordingly.
6. In his most recent report, Dr Ewer commented that Mrs Emmerton had told him that in her opinion Mr Emmerton did not provide an accurate description of the stressors when he recently gave evidence at the Administrative Appeals Tribunal. Dr Ewer said that he then asked Mr Emmerton to provide more detail in respect of the stressful events he believes adversely affected his mental state.
Sonar Room
7. Dr Ewer said that Mr Emmerton had told him that Mr Emmerton had been in the sonar room with a superior seaman, Leading Seaman Hartwell. Mr Emmerton told Dr Ewer that he thought that HMAS Brisbane was firing its guns at the time when Mr Emmerton detected an unfamiliar noise on the sonar. Mr Emmerton said that he thought that the noise represented an enemy diver attaching a mine to the hull of the ship. He discussed this with Leading Seaman Hartwell. He said neither sailor knew what the noise was. They reported the noise to the combat information centre. Mr Emmerton said that he and Leading Seaman Hartwell had been told to wait. He could not clearly remember how long he waited but thought it was sometime between 20 minutes and 2 hours. Mr Emmerton told Dr Ewer that “we were pissed off that we weren’t getting no response”. Mr Emmerton said that during this period he felt “very scared”. Mr Emmerton said that after 20 minutes to 2 hours a Lieutenant Commander Weeks arrived in the sonar room and analysed the sonar sound for about 5 to 10 minutes and then stated that it was the ship scrapping on the ocean bed. Mr Emmerton said that he doubted the explanation.
8. Mr Emmerton said that he thought scare charges were dropped into the water on this occasion, however he told Dr Ewer that he was “muddled up because of the historian’s report”. He said he thought scare charges were dropped but he really could not remember.
Landing Craft
9. Dr Ewer’s report recorded Mr Emmerton as telling him that he and 5 others were travelling from the ship to shore in a landing craft. He said they were given rifles but not given ammunition. It was his understanding that the leading seaman had ammunition. The trip was made in daylight and Mr Emmerton saw a puff of smoke “like a blast in the foothills”. Mr Emmerton could not recall how far away the puff of smoke was but he estimated it to be somewhere between 500 yards and 2 miles. Mr Emmerton said that he could not remember whether he heard anything on this occasion. Mr Emmerton is recorded as telling Dr Ewer that he was “so exposed” in the landing craft and he felt “pretty fearful” when he saw the smoke.
Hospital
10. Mr Emmerton is recorded as telling Dr Ewer that this hospital visit was the third most stressful event he had experienced in his time away from Australia. Mr Emmerton told Dr Ewer that he now accepts that the hospital was probably at Clark Air Base. He told Dr Ewer that he went to get something near the hospital. He could not remember how many patients were in the hospital. He thought he saw 10 to 15 patients “who were all badly wounded and bandaged”. Mr Emmerton could not remember how many patients were in the ward or whether the 10 to 15 patients were all in the one ward or whether they were in separate wards. Mr Emmerton told Dr Ewer that he could not recall whether any of the wounded Americans had limbs missing. Mr Emmerton told Dr Ewer that he did not speak to any of the patients in the hospital, and in answer to a question as to how the experience affected him, Mr Emmerton said “it was eye opening. I realised it could happen to anyone. I was fearful.”
legislative background
11. Section 9 of the VE Act provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:
“9 War-caused injuries or diseases
(1)Subject to this section, 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;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …”
12. Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
13. As the applicant has performed operational service, as defined in s 6 of the VE Act, the determination of whether his asserted conditions are war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those sections provide relevantly as follows:
“120 Standard of proof
(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.”
14. Under s 120A of the VE Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (“RMA”) has made a SoP in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
“(3)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.
Note: See subsection (4) about the application of this subsection.”
Subsection (4) of s 120A excludes the operation of subsection (3) in certain circumstances which are not relevant to the present proceedings.
consideration
15. The claimed condition of GAD is the subject of SoPs. I note that where a SoP exists I must apply the test prescribed by s120A(3) of the VE Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 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.”
16. In considering whether there is an hypothesis connecting Mr Emmerton’s GAD with his war service, and in applying the relevant Deledio steps to that end, I must consider all of the material before me, whether or not that material supports the hypothesis, as required by such cases as Bull v Repatriation Commission (2001) 66 ALD 271 at [21], the decision of Hill J in Hardman v Repatriation Commission (2004) 82 ALD 433 at [39] to [41], and Elliott v Repatriation Commission (2002) 73 ALD 377. In the last of these cases Stone J, at [25], likened the decision-maker’s task to striking out a statement of claim as failing to disclose a cause of action, where no consideration is given to whether the facts pleaded can be substantiated.
17. An hypothesis that (once again, after taking into account all of the material before me) could be said to be “obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous” would not be reasonable and would not point to the relevant connection with the veteran’s service (see Bull (supra) at [18], where Emmett and Allsop JJ explained the significance in this regard of East v Repatriation Commission (1987) 16 FCR 517). I refer also to Repatriation Commission v Bey (1997) 79 FCR 364 where in their joint judgment, Northrop, Sundberg, Marshall and Merkel JJ said in effect (at pages 372.9 to 373.1) that a “reasonable hypothesis” involves more than a mere possibility, and is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities.
18. As regards the first step in Deledio, I am satisfied that the material before me points to an hypothesis connecting the claimed condition with Mr Emmerton’s operational service. That hypothesis is that one or more of the asserted events resulted in Mr Emmerton suffering from GAD, and accordingly that condition is war-caused.
19. SoPs have been determined by the RMA pursuant to s 196(2) of the VE Act in respect of the conditions in question. The SoP in respect of GAD is Instrument No. 101 of 2007 and is the SoP currently in force. In this case it has been suggested that an earlier SoP, Instrument No. 1 of 2000, in force at the time when the claim for pension was lodged, is more favourable to Mr Emmerton and consequently if I am not satisfied that Instrument No. 101 of 2007 is satisfied, I must then consider whether the earlier SoP is satisfied. As there is a SoP in force in relation to the claimed condition, step 2 of Deledio is satisfied.
20. I now turn to the third step as enunciated in Deledio. This entails determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoPs. This step involves considering all of the material before me, but without making any findings of fact at this stage of the process. The history given by a veteran to a medical practitioner can constitute material before the Tribunal for this purpose: Lees v Repatriation Commission (2002) 125 FCR 331. Both the applicant and the respondent agreed, in the light of Dr Ewer’s most recent report, that the clinical onset of GAD was at or about the time of Mr Emmerton’s operational service and I find accordingly.
21. The applicant suggested that Instrument No. 1 of 2000 was more favourable to the applicant than Instrument No. 101 of 2007. Instrument No. 101 of 2007 requires that the veteran experienced a category 1A or 1B stressor within 5 years before the clinical onset of anxiety disorder or a category 2 stressor within 1 year before the clinical onset of anxiety disorder. These stressors are defined in section 9 of Instrument No. 101 of 2007 as follows:
“9. For the purposes of this Statement of Principles:
"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;
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e)being an eyewitness to or participating in, the clearance of critically injured casualties;
"a category 2 stressor" means one or more of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry:
(a)being socially isolated and unable to maintain friendships or family relationships, due to physical location, language barriers, disability, or medical or psychiatric illness;
(b)experiencing a problem with a long-term relationship including: the break-up of a close personal relationship, the need for marital or relationship counselling, marital separation, or divorce;
(c)having concerns in the work or school environment including: on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful work loads, or experiencing bullying in the workplace or school environment;
(d)experiencing serious legal issues including: being detained or held in custody, on-going involvement with the police concerning violations of the law, or court appearances associated with personal legal problems;
(e)having severe financial hardship including: loss of employment, long periods of unemployment, foreclosure on a property, or bankruptcy;
(f)having a family member or significant other experience a major deterioration in their health; or
(g)being a full-time caregiver to a family member or significant other with a severe physical, mental or developmental disability; …”.
22. I have considered the three events described by Mr Emmerton. I do not consider that any of those events meet or match the abovementioned definitions of categories 1A, 1B or 2 stressors. None of the events were life threatening or comprised an assault, and in relation to the hospital incident, I do not consider that Mr Emmerton’s experience of sighting wounded American soldiers who had been treated and were in hospital, satisfied the definition of a category 1B stressor. Mr Emmerton’s counsel eventually indicated that he did not press the hospital incident as satisfying either SoP.
23. The applicant suggested, however, that the sonar incident, and to a lesser extent, the landing craft incident did satisfy the definition of experiencing a severe psychosocial stressor as defined at paragraph 8 of Instrument No. 1 of 2000. This definition reads as follows:
“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems; …”.
24. This definition is used in factor 5(a)(ii) of the last mentioned SoP, that is “experiencing a severe psychosocial stressor within two years immediately before the clinical onset of anxiety disorder.”
25. In relation to the sonar incident, I have noted the evidence provided by Mr Emmerton, that he was in company with a more senior sailor in the sonar room of HMAS Brisbane when an unfamiliar sound was recorded on the sonar and that on reporting the incident, both sailors had been told to wait and that after some period between 20 minutes and 2 hours, an officer entered the sonar room, inspected the sonar reports and advised that he considered the sound to be non threatening.
26. In order to satisfy the definition of a severe psychosocial stressor, both an objective and subjective element must be present. Mr Justice Spender, in White v Repatriation Commission (2004) 39 AAR 67, at paragraph 32, made the following comment:
“In my opinion, the submission on behalf of Mr White that an event which in fact evokes feelings of substantial distress in a person satisfies the definition of ‘severe psychosocial stressor’ has to be rejected. Such a submission, that any occurrence no matter how trivial or innocuous it objectively is, can be a ‘serious psychosocial stressor’, means that the examples given in the definition of ‘severe psychosocial stressor’ would be not only irrelevant and devoid of utility, but positively misleading.”
27. Whilst I acknowledge Dr Ewer’s opinion that the sonar incident would meet the definition of a severe psychosocial stressor and that the incident evoked feelings of substantial distress in Mr Emmerton, given that he thought there was something threatening the ship and that he was in a war zone at the time, I consider that the event does not meet the prescribed definition of a “severe psychosocial stressor”. Mr Emmerton’s statement that “we were pissed off that we weren’t getting no response” and that while waiting for further response from the combat information centre, Mr Emmerton felt “very scared”, I am not satisfied that the objective element is met. The circumstances in my view are not in their nature or intensity of the kind listed in the examples provided in the definition. Mr Emmerton’s job was to report relevant sonar sounds. He did this. The sounds were eventually investigated by an officer and determined to be non threatening.
28. Dr Ewer described Mr Emmerton’s trip in the landing craft in Da Nang Harbour as “borderline” in meeting the definition of a “severe psychosocial stressor”. He said however that given that Mr Emmerton was in a war zone and that he was exposed and given that he thought the smoke represented a blast, this probably would just meet the definition of a “severe psychosocial stressor”. Mr Emmerton was in the company of others and was, on his evidence, up to 2 miles away from what he thought was a puff of smoke in the hills behind Da Nang. There is no suggestion that Mr Emmerton or his company were fired upon or indeed considered that they were being fired upon. The incident does not meet the objective element necessary to satisfy the definition of a “severe psychosocial stressor”.
29. Mr Emmerton’s counsel said that Mr Emmerton would not “press” the hospital incident. In any event I was not satisfied that the event as described by Mr Emmerton to Dr Ewer met either the objective or subjective elements of the definition of a “severe psychosocial stressor”. Dr Ewer commented on the event by saying that “the hospital incident probably would not meet the definition of a severe psychosocial stressor”.
30. For the above reasons, I consider that the hypothesis raised by the material before me is not consistent with any of the factors in Instruments No. 101 of 2007 or No. 1 of 2000. Consequently the SoPs do not uphold the asserted hypothesis connecting Mr Emmerton’s GAD with the circumstances of his operational service. As a result the hypothesis is not reasonable, and by virtue of s 120(3) of the VE Act, I must find beyond reasonable doubt that there is no sufficient ground for determining that the claimed condition was war-caused. As a result, Mr Emmerton’s claim must fail.
31. In the light of the abovementioned finding it is not necessary for me to consider the fourth stage of the process as explained in Deledio.
decision
32. For the above reasons, I affirm the decision under review.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Mr John Short, Member
Signed: .....................................................................................
B. Bills Admin AssistantDate/s of Hearing 20 March 2009
Date of Decision 4 August 2009
Counsel for the Applicant Mr N Floreani
Solicitor for the Applicant Tindall Gask BentleyAdvocate for the Respondent Mr C Ponnuthurai
Department of Veterans' Affairs (WA)
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