Glasby and Repatriation Commission
[2008] AATA 664
•31 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 664
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q200700070
VETERANS' APPEALS DIVISION ) Re DONALD GLASBY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr R G Kenny, Member Date31 July 2008
PlaceBrisbane
Decision The Tribunal affirms the decisions under review.
...............[Sgd]...............................
Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – operational service with Royal Australian Navy – application of Statements of Principles – appropriate diagnosis of psychiatric conditions – no factual basis for diagnosis of post traumatic stress disorder – diagnosis of anxiety disorder, depressive disorder and alcohol dependence – clinical onset of anxiety disorder, depressive disorder and alcohol dependence – reasonable hypothesis of relevant relationship to service raised for anxiety disorder and alcohol dependence – satisfied beyond reasonable doubt that conditions not attributable to eligible war-service – decision under review affirmed
VETERANS’ AFFAIRS – Veterans’ Entitlements – pension payable at 80% of the general rate – veteran not able to undertake remunerative work for more than 8 hours per week due to psychiatric conditions not war-caused – earnings-related rate of pension not payable –– decision under review affirmed
Veterans’ Entitlements Act 1986 ss 6C, 7, 9, 14, 15, 120, 120A
Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363
Keeley v Repatriation Commission (2000) 98 FCR 108; (2000) 60 ALD 401
Drew v Repatriation Commission [2008] FCA 537
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144
Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 131 FCR 473; (2003) 200 ALR 332; (2003) 75 ALD 420; (2003) 37 AAR 424
Repatriation Commission v Stoddart [2003] FCAFC 300; (2003) 134 FCR 392; (2003) 77 ALD 67; (2003) 38 AAR 176
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750REASONS FOR DECISION
31 July 2008 Mr R G Kenny, Member Background
1. Donald Glasby served with the Royal Australian Navy (“the RAN”) from 23 May 1958 until 22 May 1970. On 27 October 2004, he lodged with the Repatriation Commission (“the respondent”), in accordance with s14 of the Veterans’ Entitlements Act 1986 (“the Act”), a claim for a disability pension for “psychological problems” which he contended were related to his RAN service. On the same day, he also lodged, in accordance with s15 of the Act, an application for increase in his pension which is payable in relation to disabilities previously accepted as being related to his RAN service. These are bilateral sensori neural hearing loss with tinnitus and chronic solar skin damage with malignant change.
2. On 4 May 2005, the respondent accepted that Mr Glasby suffered from anxiety disorder and alcohol dependence but determined that those conditions were not related to his service. It also rejected the application for increase in pension and continued this at 80% of the general rate. The Veterans’ Review Board (“the Board”) affirmed the decisions on 26 June 2006.
Issues and Service
3. Mr Glasby completed periods of eligible war service in the form of operational service as provided for in s7 and s6C of the Act, respectively. This included trips on HMAS Sydney (“the Sydney”) to and from South Vietnam and periods on that vessel in Vung Tau Harbour. Under s9(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.
4. The standard of proof for determining diagnostic matters under the Act is provided for in s120(4) thereof. This requires that such matters be determined on the balance of probabilities[1]. That standard of proof is also applicable to assessment matters. For issues of causation for operational service, the standard of proof is set out in s120(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.”
[1] Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373
5. The application of that provision is affected by the terms of s120(3) and s120A of the Act which require that consideration be given to any relevant Statements of Principles that have been published by the Repatriation Medical Authority (RMA). Where a Statement of Principles has been repealed and replaced by another, the matter is to be considered, initially, under the later Instrument but, in the event that its requirements are not met, it is then to be considered under a repealed Instrument which was in force at the date of the claim[2]. In that way, an applicant gains the benefit of the most favourable criteria being applied.
[2] Keeley v Repatriation Commission (2001) 60 ALD 401 at 415, 422.
Submissions
6. Mr Clutterbuck, for the applicant, contended that the appropriate diagnoses were post traumatic stress disorder, chronic depressive disorder and chronic alcohol abuse. Further, he submitted and that these were causally related to an event which occurred while Mr Glasby was repairing an evaporator (“the evaporator incident”) on the first occasion that he was on HMAS Sydney in Vung Tau Harbour.
7. Ms McCulloch, for the respondent, submitted that Mr Glasby does not suffer from anxiety disorder, depressive disorder, post traumatic stress disorder or alcohol abuse or dependence and that, even if any such condition were established, there was no event, as required by the relevant Statements of Principles, which would provide a causal association with his eligible war service. She referred to inconsistencies in Mr Glasby’s evidence concerning his experience with scare charges prior to his first voyage to Vietnam, concerning his description of the circumstances in which the alleged stressful event occurred, concerning his alcohol consumption and concerning the presentation of alleged symptoms of any psychiatric condition.
8. Both Mr Clutterbuck and Ms McCulloch made submissions in which they agreed that an earnings-related pension under s23 or s24 of the Act would not be payable if Mr Glasby’s claim for acceptance of a psychiatric condition was not accepted and that, if that were the case, pension should continue at its current rate.
Evidence
The applicant
9. Mr Glasby gave the following evidence.
10. In his early years in the RAN, he qualified as an engine room artificer (ERA). He likened his training to that of a boiler-maker in civilian life. He left the RAN with the rank of Chief Petty Officer. He served on several RAN vessels including HMAS Warrego, Melbourne and Paluma before he was posted to HMAS Sydney. He was uncertain of whether the Sydney posting was in 1965 or 1966 but he completed several return voyages on this vessel to South Vietnam.
11. The evaporator incident occurred on the first of Mr Glasby’s voyages on Sydney and shortly after the vessel arrived in Vung Tau Harbour. He was directed to assist a senior ERA in the repair of one of the ship’s evaporators, a device for converting salt water to fresh water. It was located well below the water line and against the metal hull. Mr Glasby was unable to say whether the Sydney was a double-hulled ship with the evaporator located against the inner hull outside of which was a section for storage of fuel or water enclosed by an outer hull exposed to the sea. At the time, he believed that only the steel of the hull was between the evaporator device and the sea.
12. The evaporator was a steel structure approximately 2 metres high and 1.5 metres in diameter. The top of it had collapsed and, to effect its repair, Mr Glasby entered through an opening near the base, climbed a ladder to the top and took up a horizontal position on his back supported on an internal component of the evaporator. He carried a light, connected to a power lead, which he suspended above him from part of the evaporator’s structure and, in the confined space, began to operate a grinder. This was a tool powered by compressed air supplied by a hose. He agreed that his earlier references to the repair being carried out within the confines of a 24 inch pipe were not correct.
13. During the repair procedure, the light being used by Mr Glasby went out. This left him in complete darkness with the grinder still operating. He called for help from the senior ERA but got no response. Subsequently, he learned that the electricity lead for the light had been accidentally disconnected by another seaman and that the senior ERA had taken a cigarette break. Mr Glasby was able to stop the grinder by crimping the air hose. He then heard a loud explosion which he described as “an incredible noise”. This made him fear for his life as he believed that the Sydney was under attack. He managed to scramble down the ladder, losing bladder control as he did so. On exiting the evaporator, he noted three seamen working on a boiler. They appeared to be relaxed. He could not recall whether he spoke to them but believed he had not done so. He immediately ascended to the upper deck where he tried to gather his thoughts. There, he spoke to the senior ERA who told him that the noise had been the detonation of a scare charge and that he should change his clothes and take a coffee break before resuming duty. He did this and, after a couple of hours, was able to return to the evaporator which, in the meantime, had been repaired by the senior ERA. Mr Glasby experienced difficulty in returning to the engine room both at that time and subsequently when required to work in any confined space. On each such occasion, he experienced a form of panic attack with sweating, shaking, increased breathing rate and flashbacks. He did not have these feelings before the evaporator incident and did not report them to anyone because the RAN culture was “to have a few beers and forget it”.
14. Prior to his first voyage on the Sydney, Mr Glasby was not made aware of procedures involving the use of scare charges. He could not recall any training exercises, such as Operation Awkward, where the ship’s crew takes up action stations and where scare charges are dropped into the water around the vessel as a precaution against enemy divers. He recalled some involvement with training exercises but, as a crew member whose duties were discharged in the machinery spaces of the Sydney, he was posted to action stations in those areas and not on the upper decks where scare charge procedures may have been carried out.
15. Mr Glasby was a consumer of alcohol before the evaporator incident but substantially increased his consumption thereafter because it helped him to sleep. He had ready access to alcohol while on board the Sydney even when the vessel was in Vung Tao Harbour. His alcohol consumption continued to increase during the rest of his RAN service, though he was promoted to Chief Petty Officer, and in subsequent civilian life. He also experienced recurring nightmares and, in particular, one where he was trapped in a 44 gallon drum. He often demonstrated bouts of anger.
16. After leaving the RAN in 1970, he was a maintenance supervisor for three years at the Ampol refinery in Brisbane. From 1973 until 1996, he had various supervisory positions with Queensland Alumina Limited (QAL) in Gladstone. Initially, he was maintenance supervisor and then progressed to maintenance superintendent until 1992. His final position with QAL was maintenance manager from 1992 until 1996. He agreed that these progressions were the result of promotions in the company. At work, he was able, when necessary, to mask his feelings by shutting himself in his office and making himself unavailable to other employees. His managerial position involved him in many meetings which caused him significant problems because of his hearing difficulties. Eventually, these difficulties became too much for him and he decided to take early retirement in 1996. He has not worked since although, during the first 12 months, he was contacted on three separate occasions by QAL and invited to return to work on a contract basis. He declined these invitations.
Dr Janis Carter, psychiatrist
17. Dr Carter completed a report on 17 November 2004. Her first consultation with Mr Glasby was in July 2004 and she had five subsequent consultations with him. She described the evaporator incident as having occurred in a confined space and wrote that, when Mr Glasby managed to “scramble out of the pipe” and exit the evaporator, he asked the other seamen in the engine room what had happened and was told by them that there had been a detonation of a hand grenade alongside the ship. She referred to Mr Glasby suffering panic attacks when he subsequently entered the engine room. She also referred to increased alcohol consumption after the incident though she noted that Mr Glasby did not drink alcohol excessively until after he left the RAN. She described continuing problems in civilian life such that, by 1996, he found it difficult to control his symptoms. In particular, she described feelings of anxiety when he was required to enter dark and enclosed spaces at work. She said that, because he could not work effectively, he took early retirement at that time.
18. Dr Carter diagnosed Mr Glasby with generalized anxiety disorder. In her report, she made reference to the diagnostic criteria A to F and concluded that these were met by Mr Glasby as a result of the evaporator incident. She described symptoms of anxiety disorder from that time. She also diagnosed alcohol dependence and expressed the opinion that this developed subsequently in Mr Glasby because of his anxiety disorder. She considered that the diagnosis of post traumatic stress disorder was not open because, in her opinion, the evaporator incident, as described to her, was not sufficient to satisfy criterion A of the DSM IV diagnostic criteria for that condition.
Dr Peter Mulholland, psychiatrist
19. Dr Mulholland saw Mr Glasby in September 2007 and completed a report on 3 October 2007. He also gave evidence. He recorded the evaporator incident as involving Mr Glasby working in the confines of a 24 inch pipe for a few hours before the light went out and the explosion occurred; as feeling terrified and fearful for his life; as subsequently returning, with difficulty, to complete the job; and as being troubled thereafter by recurrent nightmares involving sensations of being trapped and feeling helpless. Dr Mulholland recorded Mr Glasby as being a heavy consumer of alcohol from the time of the evaporator incident with this being a problem when he was on shore leave from shortly after the incident. He also noted that Mr Glasby kept his feelings to himself because it was not the culture of the RAN to reveal such matters.
20. Dr Mulholland noted that Mr Glasby had consumed alcohol over a period in excess of 30 years in the form of rum and wine every day and typically at the level of 10 to 20 standard drinks per day. However, he also noted that QML pathology reports, conducted on the day that he saw Mr Glasby, did not reflect that consumption level. He noted Mr Glasby’s reference to having markedly reduced his intake in the few weeks before the consultation but, nevertheless, considered that abnormalities relating to such a high consumption level would have been picked up in the test results.
21. Dr Mulholland recorded Mr Glasby’s account that he ceased work in 1996 because of stress and work pressure, increasing difficulty in hiding his claustrophobic feelings and increasing problems with his hearing. He assessed that, because of his psychiatric condition with contribution from recurrent bouts of vertigo and dizziness, Mr Glasby was not capable of working for 8 hours per week.
22. Dr Mulholland noted the absence of any reference to psychiatric problems in Mr Glasby during his RAN service and the uniformly positive reports about his performance as an employee in responsible positions with QAL. He acknowledged that Mr Glasby advised him that he had kept his psychiatric difficulties to himself but, nonetheless, considered that this made it difficult to conclude that he was psychiatrically ill while he was functioning so well. He considered that the presence of a fully developed diagnosable psychiatric condition was not really consistent with the types of managerial positions that Mr Glasby had in civilian life even though he may have had some features of such a condition during that time.
23. The conditions diagnosed by Dr Mulholland were post traumatic stress disorder, chronic depressive disorder and chronic alcohol abuse. He considered that the conditions were not diagnosable until recent times although features of them were present from shortly after the evaporator incident. He considered it unlikely that Mr Glasby had diagnosable depression when he retired from work in 1996. He referred to his involvement in activities such as golf, gardening and tending to his 6 acre property as being inconsistent with depression. Dr Mulholland noted that Dr Carter had diagnosed alcohol dependence and he considered that this may be the case though he preferred the diagnosis of alcohol abuse. His opinion was that post traumatic stress disorder may have reached a clinical level by 2004 or perhaps one to two years before that.
24. Dr Mulholland said that his opinion that the evaporator incident met criterion A as a relevant stressor for post traumatic stress disorder was based upon his understanding that Mr Glasby, for some hours during the repair and on hearing the explosion, was confined within the limits of a 24 inch pipe. He considered that the absence of that constraint lessened the impact of the stressor even though he may have still been in a confined space. He said that it was possible that the incident could lead to post traumatic stress disorder but that it was less likely than was the case with the scenario initially described by Mr Glasby to him.
John MacDonald, RAN Captain (retired)
25. Writeway Research Service Pty Ltd is, from time to time, engaged by the respondent to prepare reports on contentions raised by veterans. These reports are prepared by retired service personnel after consultation with relevant records and individuals who were involved in aspects of service relevant to particular veterans. A report, dated 28 July 2007, in relation to the present matter was provided by a retired RAN Captain, John McDonald, who also gave evidence. He had service on several RAN vessels including HMAS Melbourne which he described as a sister ship, identical in its general design and structure, to HMAS Sydney.
26. In evidence was a plan of the Melbourne. Mr MacDonald identified the location of the position of the evaporator, the equivalent of which was the subject of repair by Mr Glasby. He described the vessel, like Sydney, as a double-hulled ship with the inner hull encased by an outer hull exposed to the sea and with watertight sections, between the two hulls. These sections were storage tanks, about three metres wide, for holding fuel or water. He described the evaporator as being located against the inner hull.
27. From his experience with scare charges, Mr MacDonald described the typical noise of a detonation as not constituting a huge explosion. He conceded that he had not been in the area around the engine room when a scare charge detonated. He agreed that the noise would startle a person who was not expecting it, particularly on occasions when the scare charge was detonated near to the ship’s side.
28. Mr MacDonald referred to conflict in the documentation relating to Mr Glasby’s service on the Sydney. He noted a reference in his service records to his having joined the Sydney on 24 September 1965 but he considered this to be incorrect as the vessel was, at that time, in the Philippines area en route to Vietnam. His analysis was to the effect that Mr Glasby, while posted to the Sydney in September 1965, actually joined the vessel on its return from that voyage in October 1965. This meant that Mr Glasby’s first voyage to Vietnam was on the Sydney’s next voyage in May 1966.
29. Mr MacDonald’s research revealed that Sydney took part in an Operation Awkward exercise in Jervis Bay on 21 March 1966. This would usually involve the dropping of scare charges but the records to which he gained access, and provided in a second report completed by him on 18 August 2007, did not confirm that this occurred on that exercise. Nevertheless, his opinion, based on his analysis of records and from discussions with relevant RAN personnel, was that it was not likely that anyone arriving in Vung Tau Harbour on board Sydney did not have an awareness of the use of scare charges.
The applicant’s wife
30. Mrs Glasby gave the following evidence. They married in 1960. Mr Glasby was a light drinker at that time and for the next few years because of their financial circumstances. He consumed alcohol socially rather than at home. He gradually increased his consumption which became worse in about 1970 and continued to increase after that. His current consumption is varied but comprises rum and wine in quantity from 2 or 3 and up to 6 or 7 drinks at a time. Over the years, there has been an increase in his outbursts of anger, particularly when driving the car, but also in the home. She described a long history of nightmares which manifests in Mr Glasby calling out and then waking in a lather of sweat.
Diagnosed conditions
31. Dr Carter has diagnosed generalised anxiety disorder and alcohol dependence. Dr Mullholland has diagnosed post traumatic stress disorder and chronic depressive disorder. He also diagnosed chronic alcohol abuse but conceded that the diagnosis of alcohol dependence made by Dr Carter may be appropriate. Mr Clutterbuck submitted that reliance should be placed solely on the report of Dr Mullholland. While it is the case that Dr Carter was not called as a witness, her report was in evidence. She has been responsible for treating Mr Glasby and saw him on at least six occasions prior to completing her report. I am satisfied that regard should be had to her report and, based on it and the concession by Dr Mulholland, I accept that the diagnosis of alcohol dependence is appropriate for Mr Glasby.
32. For post traumatic stress disorder, the relevant RMA Statement of Principles is Instrument No 5 of 2008 which repealed and replaced Instrument No 3 of 1999 (as amended by Instrument No 54 of 1999). These list six criteria, all of which must be met before post traumatic stress disorder can be found. The Statement of Principles is not, in itself, a diagnostic instrument but it was not in dispute that the six criteria reflect those that are found in the relevant diagnostic instrument DSM IV for post traumatic stress disorder. The first of those, criterion A, found in those Instruments, 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;”
33. Dr Carter considered that criterion A was not met by the evaporator incident. Dr Mulholland, in his report, considered that criterion A was met but qualified this in his oral evidence on learning that the evaporator incident had not occurred in the manner advised by Mr Glasby. This had Mr Glasby in the confines of a 24 inch pipe. He conceded that it was possible that the incident could lead to post traumatic stress disorder but that it was less likely than was the case with the scenario initially described by Mr Glasby. As noted above, diagnostic matters are determined on the balance of probabilities. In reliance on the evidence of Dr Carter who rejected the relationship and of Dr Mullholland who considered the relationship to be a possibility, I am satisfied on the balance of probabilities that criterion A is not met by the evaporator incident. As this is an essential threshold element of the diagnostic criteria, I am also satisfied to that standard that the factual basis for making a diagnosis of post traumatic stress disorder, in relation to that incident, is not present. It follows that consideration need not be given to issues of causation relating to post traumatic stress disorder[3].
[3] See Drew v Repatriation Commission [2008] FCA 537 at paras 8, 9.
34. The diagnoses of generalised anxiety disorder, alcohol dependence and chronic depressive disorder, unlike post traumatic stress disorder, do not depend upon the existence of a factor such as criterion A noted above. There is medical support for a diagnosis of each of those conditions and, accordingly, the issue for determination in relation to them is whether they or any of them arose out of or are attributable to the evaporator incident under s9(1)(b) of the Act.
Principles of Causation
35. 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. I am satisfied that the evaporator incident meets that requirement for Mr Glasby’s generalised anxiety disorder, alcohol dependence and depressive disorder.
36. The second of the four Deledio steps requires identification of the relevant Statement of Principles as published by the RMA. For anxiety disorder, this is Instrument No 101 of 2007 which repealed and replaced Instrument No 1 of 2000. For alcohol dependence, it is Instrument No 17 of 2008 which repealed and replaced Instrument No 76 of 1998. For depressive disorder, it is Instrument No 27 of 2008 which repealed and replaced Instrument No 17 of 2007 which, in turn, repealed and replaced Instrument No 58 of 1998.
37. The third Deledio step does not involve fact-finding but requires a consideration of the advanced hypothesis to determine whether it is reasonable. This requirement will be met if the hypothesis fits or is consistent with the template provided by a relevant factor in the Statement of Principles. These factors read:
Anxiety disorder
Instrument No 101 of 2007
“6(a)(ii) experiencing a category 1A stressor within the five years before the clinical onset of anxiety disorder; or(iii) experiencing a category 1B stressor within the five years before the clinical onset of anxiety disorder”;
Instrument No 1 of 2000
“5(a)(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder”;
Depressive disorder
Instrument No 27 of 2008
“6(a) for major depressive episode, recurrent major depressive disorder, dysthymic disorder and depressive disorder not otherwise specified only,(ii) experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder; or
(iii) experiencing a category 1B stressor within the five years before the clinical onset of depressive disorder”;
Instrument No 17 of 2007
“6(b) experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder; or(c) experiencing a category 1B stressor within the five years before the clinical onset of depressive disorder”; or
Instrument No 58 of 1998
“5(b) experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder”;
Alcohol dependence
Instrument No 17 of 2008
“6(a) having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence….; or
(b) experiencing a category 1A stressor within the five years before the clinical onset of alcohol dependence….; or(c) experiencing a category 1B stressor within the five years before the clinical onset of alcohol dependence….”;
Instrument No 76 of 1998
“5(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;”
38. The definitions relevant to terms used in those factors read:
“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;
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.
a clinically significant psychiatric condition means any Axis 1 or Axis II disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management. The ongoing management may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner.
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 other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe 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;
psychiatric disorder means any Axis 1 or 2 disorder of mental health attracting a diagnosis under DSM IV;”
39. If an hypothesis is reasonable, it will then be necessary to consider the fourth of the Deledio steps.
Reasonableness of Hypotheses
The stressor
40. A category 1A stressor and a category 1B stressor in the later Statements of Principles for anxiety disorder, depressive disorder and alcohol dependence are each defined to mean “a severe traumatic event”. In each case, a series of events which will qualify is particularised. As I read those definitions, one of those particularised events must be pointed to by the material in order for a reasonable hypothesis for a category 1A or category 1B stressor to be raised. The material relating to the evaporator incident does not point to Mr Glasby experiencing a life-threatening event or a serious physical attack or assault or to his being threatened with a weapon, being held captive, being kidnapped, or being tortured as required to meet the template provided in the definition of a category 1A stressor in those Statements of Principles for anxiety disorder (Instrument No 101 of 2007), depressive disorder (Instruments No’d 27 of 2008 and 17 of 2007) or alcohol dependence (Instrument No or 17 of 2008). Similarly, there is no material which points to Mr Glasby experiencing any of the five severe traumatic events itemized in the definition of a category 1B stressor in any of those Statements of Principles. No reasonable hypothesis is raised in relation to a category 1A or category 1B stressor for anxiety disorder, depressive disorder and alcohol dependence.
41. The definition of severe psychosocial stressor in the earlier Statements of Principles for anxiety disorder and depressive disorder requires an identifiable occurrence that evokes substantial distress. Unlike the definitions of a category 1A stressor or a category 1B stressor noted above, it provides examples of occurrences that would qualify rather than particularised incidents which must have occurred. The examples of identifiable occurrences contemplated by the Statement of Principles as psychosocial stressors cover a wide range of events suggesting resultant feelings which extend over a time-frame and which, thereby, have a social dimension to them. The only relevant “occurrence” in this matter is the evaporator incident. Any subsequent duty undertaken by Mr Glasby below decks in the Sydney or in any other confined space does not constitute an identifiable occurrence or recognisable event as required by the definition of a severe psychosocial stressor. The identifiable occurrence must be one which, subjectively, evoked feelings of substantial distress in Mr Glasby as well as one which, objectively, would evoke such feelings in a person exposed to that occurrence[4]. The evidence, particularly that of Dr Carter, points to the evaporator incident as meeting the requirements of the definition of severe psychosocial stressor being met which is applicable to anxiety disorder in Instrument No 1 of 2000. Though Dr Carter did not diagnose depressive disorder, the same definition arises in Instrument No 58 of 1998 and, therefore, is also pointed to in the material before me in relation to that condition.
[4] White v Repatriation Commission [2004] FCR 633
42. The meaning of the term experiencing a severe stressor in factor (b) of Instrument No 76 of 1998 for alcohol dependence is set out above. Both subjective and objective considerations are relevant in applying that definition: see Woodward v Repatriation Commission[5] and Repatriation Commission v Stoddart[6]. In Woodward, the Full Federal Court said:
“The definition extended to a person experiencing or being confronted with an event involving a threat of death or serious injury (etc), if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it was capable of conveying, and did convey, the risk of death or serious injury. In other words ‘experiencing’ should be construed as having at least this partially subjective connotation.[7]”
[5] (No. V531 of 2002) (2003) 75 ALD 420 at 445.
[6] (2003) 38 AAR 176 at 183.
[7] (2003) 75 ALD 420 at 445.
43. Placed at its highest from the perspective of Mr Glasby’s perception of the threat posed by the explosion and of its impact on him as he described it, the evaporator incident points to the requirements of experiencing a severe stressor being met.
Presence of a psychiatric condition
44. Dr Carter’s report points to Mr Glasby suffering from a psychiatric condition i.e. anxiety disorder at the time of the clinical onset of alcohol dependence or dependence as required by factor (a) in each of the Statements of Principles for alcohol dependence.
Clinical onset
45. While the material relating to the evaporator incident is consistent with the requirements of a severe psychosocial stressor for anxiety disorder and depressive disorder as well as those of experiencing a severe stressor for alcohol dependence, a reasonable hypothesis will only be raised in relation to those factors if the material also points to the clinical onset requirements in Instruments No’d 1 of 2000, 58 of 1998 and 76 of 1998. In each case, a time-frame of two years is given.
46. The term clinical onset has not been defined by the RMA but the requirement will be pointed to if symptoms have been described to a medical practitioner who is then able to state that the presence of those symptoms at a particular time indicates that the condition was present at that time[8].
[8] See Re Robertson and Repatriation Commission (1998) 50 ALD 668 at 670 and Repatriation Commission and Cornelius [2002] FCA 750.
47. Only Dr Mullholland has diagnosed depressive disorder and he described a recent onset of the condition. Indeed, on the basis of activities engaged in by Mr Glasby after his retirement from QAL, Dr Mullholland was of the opinion that depressive disorder was not present in 1996 although some features of the condition may have been present before then. This points to a clinical onset of depressive disorder well outside of the time-frame required by the Statement of Principles. That is also the case in relation to Dr Mullholland’s evidence concerning Mr Glasby’s alcohol-related psychiatric condition. Whilst he noted some history of the condition close to the evaporator incident, he was not able to nominate a clinical onset within the two year time-frame of the Statement of Principles. Dr Carter’s evidence was that heavy alcohol consumption commenced after Mr Glasby left the RAN some four to five years after the evaporator incident. The material does not point to a clinical onset of depressive disorder or alcohol dependence in accordance with the respective factors in Instruments No’d 58 of 1998 or 76 of 1998.
48. For anxiety disorder, Dr Carter referred to the six diagnostic criteria which are listed in the Statement of Principles for anxiety disorder. Her opinion was that those criteria were met in Mr Glasby’s case and that his symptoms started at the time of the evaporator incident. This is consistent with the time-frame of clinical onset required by the Statement of Principles for anxiety disorder.
49. For alcohol dependence in relation to its causal association with a psychiatric condition, the only time-frame is that the psychiatric condition be present at the time of the clinical onset of the alcohol dependence. Dr Carter’s opinion concerning anxiety disorder points to this requirement being met.
Summary
50. In summary, the material points to and is consistent with the requirements of factor (ii) in Instrument No 1 of 2000 for anxiety disorder and with factor (a) of Instrument No 76 of 1998 for alcohol dependence. This means that a reasonable hypothesis of a relationship between Mr Glasby’s service and those conditions is raised and it is necessary to consider the fourth of the Deledio steps for those conditions. The material does not point to other factors in the Statements of Principles for those conditions and no reasonable hypothesis with service is raised pursuant to those other factors. Similarly, the material does not point to the factors in the Statements of Principles for depressive disorder and no reasonable hypothesis with service is raised in relation to that condition.
Deledio Step 4: Are the conditions War-caused?
Post traumatic stress disorder and depressive disorder
51. As no diagnosis of post traumatic stress disorder can be made on the basis of the evaporator incident, this means that post traumatic stress disorder can not be a war-caused condition. As no reasonable hypothesis with service is raised in relation to depressive disorder, this means that depressive disorder is not a war-caused condition.
Anxiety disorder:
Severe psychosocial stressor
52. Mr McDonald’s research revealed that Sydney was involved in an Operation Awkward exercise in Jervis Bay on 21 March 1966 after Mr Glasby had been posted to the vessel. However, Mr Glasby’s unchallenged evidence was that, because of his job description, he was based below deck and he was not aware of scare charges being used. A second exercise was described by Mr McDonald but he was unable to confirm the use of scare charges at that time. While I accept the evidence of Mr McDonald that most RAN personnel arriving in Vung Tau Harbour would have been aware of scare charge procedures, I cannot be satisfied that Mr Glasby had knowledge of the procedure. I also accept Mr McDonald’s evidence that the evaporator was separated from the outer hull of the Sydney by storage tanks, up to three metres in width, and that, as a result, the detonation of the scare charge would not constitute a huge explosion. That is consistent with the description given by Mr Glasby in his evidence of other seamen near the evaporator. On one version of Mr Glasby’s evidence, they must have heard it as they were able to describe what it was and, yet, presented in a “relaxed” manner. I am satisfied that the sound of the detonation would do no more than startle a person, like Mr Glasby, who was not expecting it and that it did not have the dramatic impact upon him that he described in his evidence.
53. There are significant inconsistencies in Mr Glasby’s evidence. These relate to aspects of the evaporator incident, the extent to which he has experienced psychiatric symptoms since that incident, his alcohol consumption over the years and the reasons associated with his cessation of work.
54. In statements dated 29 May 2007 and 9 November 2005, in his evidence to the Board, and in the details he provided to Dr Mulholland, Mr Glasby said that, when carrying out the evaporator repair, he was working inside a 24 inch steel pipe. Dr Carter also referred to Mr Glasby “scrambling out of the pipe”. His evidence to the Tribunal was that he was not in a pipe but in the upper portion of the evaporator. Dr Carter recorded Mr Glasby as advising that, on leaving the evaporator, he spoke to the other seamen in the area and was told, at that time, of the source of the explosion. In his evidence, he was not sure whether he had spoken to them but said that the advice of the scare charge had come from the ERA on the upper deck. In his statement of 9 November 2005, Mr Glasby wrote that the senior ERA had completed the work inside the pipe and that he was able to assist in completing the job and recommissioning the evaporator. He told Dr Mulholland that he returned, with difficulty, to complete the repair himself. In his evidence, he said that it was completed by the ERA.
55. Mr Glasby has also given varied estimates of his alcohol consumption levels over the years. Clinical notes of Mr Glasby’s general practitioner, on 22 February 2006, refer to 3 standard drinks every day and on, 11 May 2004, “1 bottle of rum per week”. Neurologist Dr Paul Sandstrom, in a report dated 21 June 2005, wrote that he “imbibes several standard portions of alcohol daily”. Dr Carter noted that Mr Glasby drinks every day and consumes “1½ bottles of rum per week and also a bit over a bottle of wine per night”. Dr Mulholland noted a daily rum and wine consumption for more than 30 years at the level of 10 to 20 standard drinks per day. Significantly, Dr Mulholland’s opinion was that QML pathology reports were not consistent with the history that Mr Glasby gave.
56. Differing reasons have been given by Mr Glasby for ceasing work in 1996. In a lifestyle questionnaire completed on 28 April 1999, he did not nominate the “ill health” option on the form and stated that he “was able to take early retirement at 55” and that “stress level” and his “hearing deficiency” led him to the decision to retire. In a lifestyle questionnaire completed on 8 October 2004, he, again, did not nominate the “ill health” option and referred to his “inability to cope with the demands of the job”. In an employee report, completed on 28 January 2005, he said it was due to not being able to ‘handle stress due to worsening psychological problems; deepening depression due to same”. In a lifestyle questionnaire completed on 12 March 2006, he nominated the “ill health” option and referred to his “inability to cope with demands of the job (loss of hearing and stress related problems”. Mr Glasby’s letter of resignation from QAL, dated 1 April 1996, was in evidence. Therein, he proposed his early retirement with effect from 12 July 1996, more than three months later, and gave the following explanation:
“There are a number of reasons for this decision, the main one being the deterioration in my hearing which has been progressively worsening over recent years, despite careful protection from noise. The urge to travel before our age and health hampers our ability to climb mountains and descent into gorges is the other predominant reason for this move.”
57. These varying accounts on a range of matters cast doubt on the reliability of Mr Glasby and raise more than a reasonable doubt about the accuracy of his evidence concerning the evaporator incident and any impact that he may have experienced at the time.
Clinical Onset
58. Mr Glasby’s service medical records include various medical and psychological assessments. Discharge medical documents, dated 2 April 1970, refer to hearing loss from machinery noise and also back strain, dating from an incident involving repair of a steam line on the Sydney in 1967. No reference is made to any of the symptoms which might be referable to anxiety disorder. A report, dated 19 February 1968, describes Mr Glasby as having lost some of his enthusiasm for the RAN but as still being “keen on his work and trade”, as again needing “to be where the action is”, as having “good ability”, as being “impressive”, as having “no real problems” and needing “a more challenging job”. Service records show that Mr Glasby successfully completed courses in the RAN during the four years after the evaporator incident and was promoted to the rank of Chief Petty Officer during that time.
59. Mr Glasby also demonstrated a high achievement level after leaving the RAN. In evidence were records from QAL which detailed Mr Glasby’s annual performance appraisals within that company. From the commencement of his employment, these reflect a high level of competence, leadership and ability to work with associates. In a 1993 review, he is described as having well-developed management skills; as relating well to customers, peers and his own crew; and as being well respected throughout the plant. Comment of that favourable nature is repeated in the 1994 appraisal where he is also described as a good communicator and one who relates well to people of all levels by personal contact and discussion. These appraisals were reflected in successive promotions to the position of maintenance manager in QAL and several attempts by that company to re-engage Mr Glasby in the 12 months after he retired in 1996. An absence of any psychiatric reference is also reflected in Mr Glasby’s letter of resignation from QAL, dated 1 April 1996, which is set out above.
60. Mr Glasby was referred to various claims that he lodged with the respondent in the 1980s and 1990s and agreed that the documents he completed at those times did not refer to psychiatric problems. Mr Glasby explained that this was because he was not aware that he was suffering from a psychiatric condition and thought that his behaviour was normal. Despite that, Dr Mulholland’s evidence was that the presence of a fully developed diagnosable psychiatric condition was not consistent with the types of managerial positions that Mr Glasby had in civilian life even though he may have had some features of such a condition during that time. The presence of some features of a condition is not sufficient to demonstrate its clinical onset. All of the relevant diagnostic criteria must be present[9]. For anxiety disorder, these criteria are set out in the Statement of Principles and read:
[9] Lees v Repatriation Commission (2002) 125 FCR 331 and Youngnickel v Repatriation Commission [2004] FCA 1691
Instrument No.101 of 2000
“3(b) A. Excessive anxiety and worry (apprehensive expectation), which occur on more days than not for a continuous period of at least six months, about a number of events or activities; and
B. The person finds it difficult to control the worry; and
C. The anxiety and worry are associated with three or more of the following six symptoms, with at least some symptoms present for more days than not during the previous six month period:
(1). Restlessness or feeling keyed up or on edge
(2). Being easily fatigued
(3). Difficulty concentrating or mind going blank
(4). Irritability
(5). Muscle tension(6). Difficulty falling or staying asleep, or restless unsatisfying sleep; and
D. The focus of the anxiety and worry is not confined to features of any other Axis I disorder; and
E. The anxiety, worry, or physical symptoms (as described in C. above) cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and
F. The anxiety and worry are not due to the direct physiological effects of a substance or a general medical condition and do not occur exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder.”
61. Dr Carter referred to each of those criteria and described Mr Glasby as satisfying them. Her report is written in the present tense and, clearly, the meeting of those criteria enabled her to make the diagnosis of anxiety disorder when she saw him in 2004. However, she does not state that Mr Glasby suffered from the condition from the time of evaporator incident. Rather, she referred to his symptoms of the condition from that time. That analysis is consistent with the opinion of Dr Mullholland who accepted that symptoms may have been present but that the presence of a fully diagnosed psychiatric condition was not consistent with Mr Glasby’s subsequent service and civilian employment profile. Dr Carter referred to the position of responsibility that Mr Glasby had at QAL. However, her report does not indicate that she was aware of the highly praiseworthy periodic reports of Mr Glasby’s performance at QAL. Dr Mullholland was aware of these and his evidence raises more than a reasonable doubt that the clinical onset of anxiety disorder occurred within the two year period following the evaporator incident.
Condition not war-caused
62. On the material before me, I am satisfied beyond reasonable doubt that the evaporator incident was not an identifiable occurrence which evoked feelings of substantial distress in Mr Glasby, that he did not experience a psychosocial stressor as required in the Statement of Principles for anxiety disorder and that, though he now suffers from that condition, its clinical onset did not occur within the time-frame of 2 years as required by the Statement of Principles. This means that anxiety disorder is not war-caused in accordance with s9(1)(b) of the Act.
Alcohol dependence
63. Both Dr Carter and Dr Mulholland have accepted the presence of an alcohol-related psychiatric condition. Dr Carter’s opinion was that it developed after and because of his anxiety disorder. However, as that is not a war-caused condition, I am satisfied beyond reasonable doubt that the causal association in factor 5 (a) in Instrument No 76 of 1998 is not satisfied. This means that alcohol dependence is not war-caused in accordance with s9(1)(b) of the Act.
Assessment
64. I have noted the submissions of Mr Clutterbuck and Ms McCulloch concerning an earnings-related pension under s23 or s24 of the Act. I am reasonably satisfied that, as Mr Glasby’s psychiatric conditions are not war-caused, the requirements of those provisions are not met. I am also reasonably satisfied that pension should continue to be paid to Mr Glasby at 80% of the general rate.
Decision
65.The Tribunal affirms the decisions under review.
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed:...................[Sgd]...........................................................
Elizabeth Young, Research AssociateDate/s of Hearing 12 & 13 May 2008
Date of Decision 31 July 2008
Counsel for the Applicant Mr Clutterbuck
Solicitor for the Applicant Ms Debra Daniels
Advocate for the Respondent Ms Jean McCulloch, Departmental Advocate
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