Fotek and Repatriation Commission
[2014] AATA 117
•5 March 2014
[2014] AATA 117
Division VETERANS' APPEALS DIVISION File Number
2013/3935
Re
Jan Fotek
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 5 March 2014 Place Brisbane The Tribunal affirms the decision under review.
............................Sgd..........................................
Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Disability pension – Operational service with Royal Australian Navy – Application of Statement of Principles – Appropriate diagnosis of psychiatric conditions – No factual basis for diagnosis of posttraumatic stress disorder – Posttraumatic stress disorder not war-caused – Decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 6C, 7, 9, 14, 37, 120, 120A, 196B
CASES
Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363
O’Dowd v Repatriation Commission [2013] FCA 991
Repatriation Commission v Bawden (2012) 206 FCR 296
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Warren (2007) 95 ALD 606
SECONDARY MATERIALS
Statement of Principles concerning Posttraumatic Stress Disorder, No. 5 of 2008 (As amended by Amendment Statement of Principles no 19 of 2014).
REASONS FOR DECISION
Mr R G Kenny, Senior Member
5 March 2014
BACKGROUND
On 5 August 2010, Jan Fotek lodged with the Repatriation Commission
(“the respondent”), in accordance with s 14 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), a claim for a disability pension in respect of a condition diagnosed as posttraumatic stress disorder. He contended that this was related to circumstances of his service with the Royal Australian Navy (“the RAN”) while he was serving in South Vietnam. On 14 December 2010, the respondent determined that Mr Fotek’s posttraumatic stress disorder was not related to his service. On 21 May 2013, the Veterans’ Review Board affirmed the decision.
ISSUES AND SERVICE
Mr Fotek served in the RAN from 3 January 1967 until 8 July 1988 and this included a period of eligible war service in the form of operational service, as provided for in s 7 and s 6C of the Act, respectively, from 14 September 1970 until 8 April 1971. He also served a period of defence service which is not relevant to this claim. Under s 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 by the veteran”.
The standard of proof to be used in determining diagnostic matters under the Act is provided for in s 120(4). This requires that such matters be determined on the balance of probabilities.[1] For issues of causation for operational service, the standard of proof is set out in s 120(1) of the Act. It 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.
[1] Fogarty v Repatriation Commission [2003] FCAFC 136, [34]-[35]; (2003) 37 AAR 363 at 373.
The application of that provision is affected by the terms of s 120(3) and s 120A of the Act, which require that consideration be given to any relevant Statements of Principles (“SoP”) that have been published by the Repatriation Medical Authority.
SUBMISSIONS
For Mr Fotek, Anthony Harding submitted that Mr Fotek experienced three stressful events in South Vietnam, each of which satisfied the diagnostic criteria for posttraumatic stress disorder and any one of which was responsible for causing that condition as provided for in s 9 of the Act. For the respondent, Bruce Williams submitted that Mr Fotek’s case did not provide evidence for a diagnosis of posttraumatic stress disorder and that, even if it did so, the condition was not attributable to his operational service in the manner provided for in s 9 of the Act in that none of the three events relied upon by Mr Harding occurred in the manner or with the effects claimed by Mr Fotek.
EVIDENCE
Mr Fotek
During his operational service, Mr Fotek was aged 19 years and he worked as a radar plotter in the operations room of HMAS Perth (“the Perth”). He described this as the Perth’s “nerve centre” in which all aspects of the activities were monitored. The ship’s captain was posted either in the operations room or in the adjacent area of the bridge.
The swimmer incident
On 11 October 1970, the Perth was on the gunline off the coast of Vietnam when three sailors reported seeing a swimmer in the water near the ship. The Perth immediately left the area and, when clear of other vessels, came to a stop so that the ship’s divers could undertake a search of the ship’s hull for mines. Mr Fotek said that, after about an hour, conditions became difficult for the ship’s divers with their lines becoming tangled and they were brought back on board. The search was abandoned even though only about half of the hull had been searched.
Mr Fotek felt scared at the time and had thoughts of “what if” there had been a mine which detonated and damaged or even caused the Perth to sink. He referred to
“not knowing the unknown” in relation to whether or not mines had been attached to the Perth by enemy swimmers. His concerns were that the search for mines had not been completed and that he was in the forward part of the Perth which, as with the
HMAS Voyager, had sunk when the vessel was cut in two by the HMAS Melbourne.
The prisoners incident
On 1 February 1971, while operating on the gunline, the Perth encountered a fishing boat with more people on board than usual. The boat was signalled alongside the Perth and the men on board were brought on to the Perth. Some of the men, Mr Fotek believed six of them, were Viet Cong who had wanted to surrender themselves. The Perth’s crew, apart from those required to tend the men, were required to remain below deck. That included Mr Fotek who was able to briefly emerge onto the deck to see the men and take photographs of them. On the intercom, he heard that a South Vietnamese patrol boat was to come and take the men into custody but he understood that the captain of the Perth was reluctant to release them because he was concerned for their safety. Mr Fotek understood that the patrol boat departed but returned later and took the prisoners away.
Mr Fotek was disturbed by the incident because of what he believed would happen to the men. He believed that the men would be killed by the South Vietnamese and thrown into the sea rather than be taken to shore as prisoners. He said that he felt like an executioner and described a sombre night on the Perth. Mr Fotek felt the impact of the prisoners incident years later when he watched media coverage of the Gulf War. He empathised with Iraqi soldiers who, like the Viet Cong prisoners, were only serving their country in the same way that he had done on the Perth. He said that he thinks of them from time to time but denied having nightmares or dreams about them.
The bombardment incident
One role of the Perth was to patrol off the coast of Vietnam on the gunline awaiting requests from spotters, either on the ground or in the air, for targets to fire upon. This happened on many occasions and, though he was not troubled by daylight firings,
Mr Fotek felt concern that, during night firings, because of the limited capacity of spotters to be fully aware of the nature of the target, civilians including children may have been killed. Mr Fotek referred to one daylight occasion when an aircraft spotter requested the Perth to fire upon a group of some 400 Viet Cong. The Perth commenced firing at the target as did a U.S. Coast Guard cutter. Mr Fotek said the cutter was armed with three inch guns which probably did not reach the target. The spotter advised that the firing resulted in some 100 casualties and he understood that these were all caused by the five inch guns of the Perth. Mr Fotek was not concerned with that firing event, stating: “It was war. We did what we had to do!” However, this event was different because of what occurred about two weeks later when the captain came into the operation room waving a piece of paper and declaring “All mine!! All mine!!” Mr Fotek said that the captain had received a signal in which half of the casualties had been attributed to the
U.S. cutter because it had also fired on the target. Mr Fotek was not aware of what the captain meant but later learned that he was resentful at having to share the “kill” with the other vessel. He said that he was horrified by the attitude of the captain to human life.
Medical evidence
In evidence were reports from psychiatrists Dr John Chalk, dated 23 February 2001, and Dr Jonathon Hargreaves, dated 8 December 2010. Dr Hargreaves completed a letter, dated 13 September 2012, and a further report, undated but completed in May 2013. Dr Hargreaves also gave evidence.
Dr Chalk saw Mr Fotek for the purpose of his report. He described Mr Fotek as
“a reluctant and a somewhat sparse historian”. Dr Chalk did not diagnose a psychiatric condition but wrote that Mr Fotek had symptoms of a major depressive illness.
Dr Hargreaves treated Mr Fotek from February 2010. In his first report, Dr Hargreaves noted that he was 15 years old when he joined the RAN and 19 years old when he went to South Vietnam. He referred to the prisoners incident and wrote that Mr Fotek had felt sadness when the prisoners were taken from the Perth because he thought that they may be killed. Dr Hargreaves also described the bombardment incident, noting that it did not affect Mr Fotek at the time but that, later when he saw broadcasts of the Gulf War, he began to think about the “terrible toll of war”. In relation to the prisoners incident, Dr Hargreaves also noted that Mr Fotek’s reaction was again delayed until the Gulf War. Dr Hargreaves did not refer to the swimmers incident in that report. He confirmed that it had not been mentioned to him by Mr Fotek. Dr Hargreaves described it in the 2012 letter, noting that Mr Fotek was afraid that the ship might be blown up and was alarmed that the Perth’s hull had not been searched completely because of the early recall of the ship’s divers. In his final report, Dr Hargreaves referred to Mr Fotek being distressed by the prisoner incident, at being horrified by the captain’s reaction to the attribution of “kill” numbers to the Perth and feeling quite afraid during the inspection of the Perth’s hull in the swimmer incident.
Dr Hargreaves diagnosed posttraumatic stress disorder and considered that each of the three incidents noted above satisfied the diagnostic criteria for that condition. He agreed that posttraumatic stress disorder may be delayed in its onset. Dr Hargreaves was questioned about the severe reaction to an event as required in the diagnostic criteria for posttraumatic stress disorder. In particular, he was asked whether that needed to be at the time when the stressful event occurred or whether the reaction could be considered as relevant even when it occurred years after the event. His response was that he was not sure if he could answer that question but he believed that there would always be some reaction at the time of the event.
RAN documentation
Copies of Reports of Proceedings (“the Report”) of the Perth for 1970 and 1971 were in evidence. The Report describes the swimmer incident, noting that sailors had reported a swimmer at 1945 hours on 11 October 1970. The report continued:
As conditions at the time were calm, with bright moonlight and excellent visibility and the ships movements had been restricted to a small area for some time, the report was evaluated as possibly correct. The ship immediately proceeded to the south east to clear the area. Once clear the ship stopped in the water and a bottom search was conducted. Nothing was found however and at 2300 HMAS Perth returned to the gunline.
The Report of the Perth for February 1971 refers to the prisoners incident as commencing with the sighting of the fishing boat at 0840 hours in the following way:
The boat was signalled alongside across the stern and each man was brought onboard to be stripped and searched. The boat was then searched for arms, concealed explosive devices or anything of interest. Nothing out of the ordinary was found. It was just a normal fishing boat with a crew of four. They had been hailed from the shore the previous night by seven HOI CHANHS (Viet Cong ralliers to the Government of South Vietnam) who asked to be taken in to surrender. The crew was obviously glad to be rid of them.
The arrival of a South Vietnamese patrol boat (PCF 55) alongside the Perth is noted in the Report which continued:
At 1314 hours USSCGC Morganthau… closed the scene and sent across a South Vietnamese Naval Officer by boat to progress the interrogation. On instructions from Market Time (Coastal Surveillance) Headquarters at AN THOI, the HOI CHANHS and fishing boat crew were transferred to PCF 55 and this vessel with the fishing boat in tow and the boat from USSCGC Morganthau, cast off and proceeded at 1350 hours…
In Annex H of the Report for February 1971, reference is made to the information gleaned from the interrogation of the prisoners. It concludes with the General Comment:
HOI CHANHS being escorted to RACH GIA CHIEU HOI Centre for further exploitation.
The Report describes many occasions when the Perth fired its guns on targets in response to requests from spotters. However, no specific reference appears in relation to the occasion described by Mr Fotek.
STATEMENT OF PRINCIPLES
The Statement of Principles No. 5 of 2008 (“the Statement of Principles”)[2] for posttraumatic stress disorder lists six diagnostic criteria which are taken from
DSM-IV-TR.[3] The first of these is
(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.[4]
[2] Statement of Principles concerning Posttraumatic Stress Disorder, No. 5 of 2008 (As amended by Amendment Statement of Principles no 19 of 2014).
[3] DSM-IV-TR is defined in cl 9 of the Statement of Principles to mean “The American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000”.
[4] Statement of Principles concerning Posttraumatic Stress Disorder, No. 5 of 2008, cl 3(b)(A).
The Statement of Principles also sets out the factors, at least one of which must exist, for posttraumatic stress disorder to be related to Mr Fotek’s RAN service. The factor in Statement of Principles No 5 of 2008 relied on by Mr Harding in relation to the swimmer incident reads:
(ba) having a perception of threat and/or harm to the integrity of the self as a consequence of being in what:
(i) the individual concerned; and
(ii) a reasonable person in the circumstances of that individual would have;
considered to be any or all of a threatening, hostile, hazardous and/or menacing situation and/or environment before the clinical onset of posttraumatic stress disorder; or";[5]
[5] Statement of Principles cl 6(ba).
The factor and a relevant definition in Statement of Principles No 5 of 2008 relied on by Mr Harding for the bombardment and prisoners incidents read:
(da) having a perception of threat and/or harm to the integrity of:
(i) a significant other; and/or
(ii) other persons known to the individual or with whom the individual concerned has had contact in the discharge of that individual's duties and/or responsibilities;
as a consequence of the individual concerned and the persons in (i) and/or (ii) being in the same or similar circumstances as the individual concerned which:
(iii) the individual concerned; and
(iv) a reasonable person in the circumstances of that individual would have;
considered to be any or all of a threatening, hostile, hazardous and/or menacing situation and/or environment but excluding a perception engendered from viewing or listening to mass media (unless such viewing or listening is part of that individual's duties and/or responsibilities) before the clinical onset of posttraumatic stress disorder; or";[6]
"a significant other" means a person who has a close family bond or a close personal relationship and is important or influential in one’s life;
[6] Statement of Principles cl 6(da).
CONSIDERATION
In Repatriation Commission v Warren,[7] it was noted that the introduction to DSM-IV-TR refers to the ‘Use of Clinical Judgment’ in the following terms:
‘DSM-IV is a classification of mental disorders that was developed for use in clinical, educational and research settings. The diagnostic categories, criteria, and textual descriptions are meant to be employed by individuals with appropriate clinical training and experience in diagnosis. It is important that DSM-IV not be applied mechanically by untrained individuals. The specific diagnostic criteria included in DSM-IV are meant to serve as guidelines to be informed by clinical judgment and are not meant to be used in a cookbook fashion. For example the exercise of clinical judgment may justify giving a certain diagnosis to an individual even though the clinical presentation falls just short of meeting the full criteria for the diagnosis as long as the symptoms that are present are persistent and severe. On the other hand, lack of familiarity with DSM-IV or excessively flexible and idiosyncratic application of DSM-IV criteria or conventions substantially reduces its utility as a common language for communication.’
[7] (2007) 95 ALD 606 at [13]. See also O’Dowd v Repatriation Commission [2013] FCA 991 at [27].
In that case, Kiefel J made the following comment in relation to the diagnostic process:
[27] It may be inferred that the SoP were written upon an assumption that if a veteran was found to be suffering from a condition classified by DSM-IV, a diagnosis in accordance with that manual would have been made. It was intended that the SoP apply where such a diagnosis was made. This assumption, of correspondence, might suggest the application of the SoP criteria in relation to the finding of the existence of the condition. There is however one difficulty with that approach. It is DSM-IV as a whole which will inform a clinical diagnosis, upon which a finding will be based. The manual itself explains that there is more to a diagnosis than the application of the criteria in a ‘cookbook’ fashion.
A person having symptoms which fall short of meeting the stated criteria may nevertheless be diagnosed as suffering from the condition. DSM-IV refers to the need to exercise clinical judgment, which I take to include the application of experience. In some cases the SoP criteria may not, therefore, be met.
[28] It cannot be inferred that the SoP were drawn on the basis of some misunderstanding as to the application of DSM-IV. They were drawn by reference to it. It could not, therefore, have been intended that the strict application of the criteria summarised in the SoP definition was to be a requirement of, or a substitute for, a proper clinical diagnosis. The threshold question in each case will be whether the diagnosis was one properly made, having regard to DSM-IV. Because clinical judgment is involved, differences of opinion may arise. They will need to be resolved by the tribunal on the materials before it.
While noting Her Honour’s comment that posttraumatic stress disorder may be diagnosed without all of the criteria in the Statement of Principles being met, I am satisfied that one material criterion which must be met for posttraumatic stress disorder to be diagnosed is cl 3(b)(A)(i)-(ii) of the Statement of Principles (“criterion A”). This is the exposure to a traumatic event and the appropriate response. In that regard, the Full Federal Court in Repatriation Commission v Bawden[8] said:
[47] …the decision-maker must be satisfied that a collection of symptoms manifests a diagnosable disease, and if it is so satisfied, it must then consider whether the illness or disease is war-caused. The point for present purposes is that PTSD can only be diagnosed as an illness or disease in terms of a traumatic event. …
The decision-maker needs to consider whether the veteran’s symptoms manifest any illness or disease resulting in incapacity. But, to the extent that the claim is for incapacity from PTSD and a decision-maker is not satisfied that a traumatic event produced those symptoms, the decision-maker cannot proceed to a diagnosis of PTSD.
[48] The point on which the present case turns is not one of insufficient correspondence between the symptoms described in the DSM-IV and those described by Mr Bawden; rather it is concerned with the inability of the decision-maker to be satisfied that Mr Bawden suffered a traumatic stress. A diagnosis of the disorder depends on satisfaction as to the historical fact of a traumatic stress.
[8] (2012) 206 FCR 296 at [47], [48]. It is noted that a different test for causation was applicable in that case because of the characterisation of the veteran’s service (as operational rather than, in the applicant’s case, defence service).
Dr Hargreaves has diagnosed posttraumatic stress disorder. However, I am reasonably satisfied that criterion A of the diagnostic factors is not met by the evidence in this matter.
Regarding the swimmer incident, the Report does not support some elements of the version given by Mr Fotek. Certainly, the incident occurred. However, the Report does not declare that the inspection of the Perth’s hull was not fully completed. Rather, it states that that the bottom search was conducted and the sea conditions were described as being “calm”. It is difficult to conceive the idea that the Perth would continue with its duties after an incomplete inspection following a finding that the report of a swimmer was “possibly correct”. Also, the Report indicated that the inspection procedure continued from 1945 hours to 2300 hours rather than the shorter period identified by Mr Fotek. Even if the swimmer incident was sufficient to satisfy criterion A(i), I am reasonably satisfied that criterion A(ii) is not met. Mr Fotek felt scared at the time, had thoughts of “what if” there had been a mine and referred to “not knowing the unknown”. Dr Hargreaves referred to him as afraid and alarmed but did so in the context of his understanding, as advised by Mr Fotek, that a full inspection of the Perth’s hull was not undertaken. As noted, I am reasonably satisfied that the inspection was completed. I am reasonably satisfied that those descriptions of his reaction at the time of the swimmer incident fall short of one which involved intense fear, helplessness or horror.
With regards to the prisoners incident, there is no evidence which would support Mr Fotek’s belief that the men were taken to their death on departing the Perth.
The Report describes the HOI CHANHs as being escorted to a Centre for further exploitation. I am reasonably satisfied that the incident was not a traumatic event in which Mr Fotek 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. In any event, I am also reasonably satisfied that Mr Fotek’s response did not involve intense fear, helplessness, or horror. He described being disturbed by the incident and feeling like an executioner. In his evidence and in the history given by him to Dr Hargreaves, he felt the impact of the prisoners incident years later when he watched media coverage of the Gulf War. Mr Harding submitted that there was no requirement that the response in criterion A(ii) be experienced after the event in criterion A(i). In this matter, the delayed reaction would need to span 20 years. I do not accept that contention and am reasonably satisfied that there must be a degree of contemporaneity between criterion A(i) and (ii). Any response that arose 20 years later when Mr Fotek observed coverage of the Gulf War is a response to that phenomenon rather than the prisoners incident. I am reasonably satisfied that Mr Fotek’s response at the time of the prisoners incident was also one that fell short of one which involved intense fear, helplessness or horror.
Although I have identified the third incident as a bombardment incident, the relevant event was not the bombardment itself or its consequences to life but, rather, the statement of the captain of the Perth about two weeks later. Mr Fotek had already been confronted with the death of some 100 Viet Cong and his response was simply that it was part of being at war. Dr Hargreaves reported that it did not affect Mr Fotek at the time but that, when seeing broadcasts of the Gulf War, he began to think about the “terrible toll of war”. That was 20 years later than the killing of Viet Cong and remote from the event.
I am reasonably satisfied that the bombardment or its direct consequences do not satisfy criterion A. What horrified Mr Fotek was the attitude of the captain to human life displayed some two weeks after the firing of the ship’s guns. I am reasonably satisfied that Mr Fotek’s observation of that attitude does not amount to exposure to a traumatic event that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others.
I am reasonably satisfied that a diagnosis of posttraumatic stress disorder cannot be made on the material before me. For that reason, Mr Fotek’s posttraumatic stress disorder is not war-caused in accordance with s 9 of the Act.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member ..............................Sgd........................................
Associate
Dated 5 March 2014
Date of hearing 17 February 2014 Solicitors for the Applicant Mr Anthony Harding, Haney Lawyers Solicitors for the Respondent Bruce Williams, Department of Veterans' Affairs
0
2
0