Greenhill and Military Rehabilitation and Compensation Commission

[2004] AATA 1105

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1105

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/885

GENERAL ADMINISTRATIVE DIVISION		)
Re		TERRENCE GREENHILL

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen
Dr P D Lynch, Member

Date22 October 2004

PlaceSydney

Decision The decision under review is affirmed.

(Sgd)  M D Allen

..............................................

Presiding Member

CATCHWORDS

WORKERS’ COMPENSATION – claim for PTSD arising from incidents during RAAF service between 1967 and 1972 - conflicting history as to effect of alleged traumatic events upon Applicant - preference for Applicant’s initial account.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1998 s14, s124

REASONS FOR DECISION

22 October 2004 Senior Member M Allen
       Dr P D Lynch, Member  

1.      By application made on 30 May 2003, the Applicant sought review of a reviewable decision dated 20 May 2003 that affirmed a prior determination that the disease of post traumatic stress disorder (“PTSD”) was not attributal to the Applicant’s employment in the Royal Australian Air Force.

2.      The original Respondent in this matter was the Department of Defence acting pursuant to a delegation from Comcare however, consequent upon the coming into effect on 1 July 2004 of the Military Rehabilitation and Compensation Act 2004, the Respondent became the Military Rehabilitation and Compensation Commission, although liability is still to be assessed under the Safety Rehabilitation and Compensation Act  1988.

3. As the allegedly traumatic events deposed to by the Applicant occurred prior to 1971, had we been satisfied that the Applicant did indeed suffer from a PTSD then pursuant to section 124 of the Safety, Rehabilitation and Compensation Act 1988 we would have to consider the effect of the Commonwealth Employees’ Compensation Act 1930 upon these proceedings, as the Applicant’s evidence that he had nightmares and flashbacks in 1968 which were disturbing and interfering with his life clearly evidences an impairment as at that time.

4.      The Applicant’s claim to have the disease of PTSD accepted as a compensable injury pursuant to the SRC Act 1988 was lodged on 4 September 2002. The basis for the claim is a report by Psychiatrist Dr Koller dated 25 July 2002 that states that the Applicant suffers from PTSD and which implicated five allegedly traumatic incidents occurring during the Applicant’s service with the Royal Australian Air Force (“RAAF”) as the cause of the disease.

5.      The diagnosis of PTSD is disputed by the Respondent. For its part the Respondent states that the Applicant is suffering a major depressive disorder resulting from events not related to his RAAF service.

6.        The Applicant gave evidence of the five incidents which Dr Koller implicated as causative of his PTSD.

7.      The Applicant enlisted in the RAAF in December 1967 and was trained as an airfield fireman. In 1968 whilst at RAAF base Pearce in Western Australia, a fire truck on its way to a crashed aircraft rolled over and a friend of the Applicant was killed. He was not present at this time but later when he was required to sit in the same seat as the deceased had occupied he would worry about it and as he put it, it would “freak me out”.

8.      The second incident concerned a pit fire also at Pearce RAAF base. The Applicant was directing a fire hose towards the blaze when the nozzle shattered throwing him on to the edge of the burning pit.

9.      The third incident was again at Pearce RAAF base when the fire tender the Applicant was driving rolled and he was in the cabin and a cylinder of CO2 gas filled the cabin of the tender with CO2. In addition, the Applicant was concerned that the gas might explode. Since that time, he has had a fear of confined spaces and has had nightmares about it. He said that he gets a spinning feeling in his head and the sound of sirens causes him to get flashbacks about the fire tender rolling. These symptoms got worse as he got older but he coped by going out and getting drunk.

10.     While on duty at RAAF base Williamtown, an aircraft loaded with bombs made a forced landing with its wheels retracted. As it landed, its fuel tanks ruptured and the Applicant as part of the duty fire crew was responsible for getting to the aircraft and preventing any fire. He described this as a very tense event as the bombs would have exploded if the aircraft caught fire. He did describe his reaction at this time as more relief than anything.

11.     During the year 1971 at Richmond RAAF base, the Applicant suffered chemical burns when the contents of a drum blew onto him covering his arms and face, and had it not been for the actions of another fireman in quickly pouring a large amount of water over him from the fire truck he would have been scarred for life. As it was, he was hospitalised for one week and was in considerable pain. He said that he still has flash backs regarding this incident. We note that whereas the Applicant’s evidence was that he was in hospital for one week, his service medical documents reveal he was admitted to hospital on 6 March and was discharged on 8 March.

12.     This fifth incident with the acid burns is regarded by the Applicant as the most significant. The second most significant incident was the rolling of the fire tender while the Applicant was driving it and the third most significant incident was when he was nearly thrown into the burning pit by the fire hose nozzle shattering. He described the other incidents as scaring him at the time but part of the job.

13.     In 1973 the Applicant was diagnosed with ulcerative colitis and as a result was discharged from the RAAF. In cross examination the Applicant conceded that he had told psychiatrist Dr Kaplan that the disruption to his life was due to colitis and not the earlier events.

14.     A further blow to the Applicant was the accidental death of his eldest son in 1998.  While we have however no reason not to accept the Applicant’s evidence that although it is an event he and his family will never get over they have rallied together and got on with life, it is obviously an event that must be considered when assessing the various stressors impacting upon the Applicant.

15.     On 11 October 2001, the Applicant made a claim upon the Department of Veterans Affairs (“DVA”) pursuant to the Veterans’ Entitlements  Act 1986 for several conditions including “stress”. In his application to the DVA the Applicant stated that the condition had been caused by “stressful events in the RAAF as a fireman”.

16.     As a result of this application the Applicant consulted Dr Kaplan at the request of the DVA. Dr Kaplan examined the Applicant on 30 November 2001 and took a history of the five incidents whilst in the RAAF deposed to by the Applicant in these proceedings. 

17.     Exhibit R4 is the DVA file regarding the Applicant’s claim. In the letter of referral to Dr Kaplan, a Medical Practitioner employed by the DVA stated, inter alia:

“…DSM-IV classification should be used for the diagnosis of any psychiatric condition (s) suffered by the veteran. The primary diagnosis should be clearly identified as well as any associated illness. Its relation with specific events during service should be thoroughly explored and reported. It is expected that any other factors impacting on the present or past mental status of the veteran would be identified, whether related to service or otherwise…”

18.     Given this specific referral we are satisfied that Dr Kaplan properly considered whether the events the Applicant claimed as stressful had indeed contributed to his psychiatric state. We are also satisfied that the Applicant was well aware that he had implicated events whilst a fireman and that his statement to Dr Kaplan that until 1972 service life was “great” was how he regarded events as at the time of consultation.

19.     At page two of his report Dr Kaplan records:

“…Until 1972, Mr Greenhill described service life was (sic) as ‘great’ and enjoyed his time. The work was challenging and he had little difficulty. He got on well with his colleagues and led an active sporting and recreational life…”

Dr Kaplan then goes on to record the events referred to by the Applicant as stressors. However at page three of his report Dr Kaplan states:

“…Mr Greenhill believes his problems started in late 1972 when he was transferred to Canberra. He explained that the work pattern was different. There were only four firemen who had to do 24-hour rosters, shared amongst them. There was no backup if anything went wrong and he felt under pressure. There was a considerable turnover of planes at the base, leading to frequent false alarms. Invariably, nothing came of this, but it put pressure on the resident firemen.

In November 1972, he first developed gastrointestinal symptoms associated with abdominal pain, cramps, spasm, diarrhoea and constipation. An initial consultation did not reveal anything but the following year he was diagnosed with ulcerative colitis, a bowel disease.

This made work extremely difficult. He had to remain close to a toilet as calls of nature were frequent and often uncontrolled. As a result of false alarms on duty, he would have to rush out and this led to several embarrassing episodes of soiling. As a result, he changed to day shift, but this did not improve the situation. To cope, he began smoking and drinking…”

In referring to the Applicant’s post service history Dr Kaplan stated at a page 4 of his report:

“…Mr Greenhill described his mental state over these years as ‘not easy’. He tended to worry about his problems, fearing bowel cancer. He was also worried about his ability to support his family…”

And concluded his report by stating:

“…This presentation reflects a complex interaction of stressful life events, physical illness and emotional disorder. While the assessment of ulcerative colitis does not fall into my discipline, it is widely accepted that this is an autoimmune illness and not caused by psychological problems. However, ulcerative colitis is a chronic, disabling and difficult illness, leading to occupational and lifestyle changes, in addition to depression and anxiety. These changes are listed as psychological factors affecting medical condition.

In addition, due to his illness and the death of his son in 1988, Mr Greenhill has a major depressive disorder of moderate severity….

Unfortunately, despite having gone to some lengths to consider this problem from every possible angle, I cannot attribute the problems listed above to his service in the RAAF. It is understandable that Mr Greenhill would blame the onset of his illness on his work situation at the time. However, there is no way that this can be shown to be the case and he is, in all likelihood, demonstrating effort after meaning: rationalising the cause of his illness on an obvious external cause.”

20.     In evidence in-chief Dr Kaplan reiterated that the Applicant had given him a history of having enjoyed service life until experiencing the symptoms of colitis. Dr Kaplan did not obtain from the Applicant any history of having experienced “flashbacks” of events whilst in the RAAF. Questioned regarding the five allegedly traumatic incidents he stated that at the time he interviewed the Applicant his interpretation was that the Applicant did not regard them as important.

21.     Dr Davies, Psychiatrist, reviewed the Applicant at the request of the Respondent and also opined that the Applicant did not suffer a PTSD but was depressed as a consequence of his ulcerative colitis.

22.     In a report dated 20 December 2002, Dr Davies records that the Applicant told him that he was beginning to hate the fire service because of the constant call outs. He refers to the fact that the Applicant’s service records show no evidence of his suffering anxiety or depression prior to his developing ulcerative colitis. In a second report dated 21 August 2003 Dr Davies adhered to this opinion.

23.     Cross examined about the various incidents in the Applicant’s service Dr Davies stated that these incidents had no causal link to the Applicant’s current psychological condition although they were events upon which the Applicant would, because of his current condition, ruminate.

24.     Dr Davis was further pressed in cross examination as to the contribution the several events on service would have made to the Applicant’s current mental state but was quite adamant that whereas there was the possibility they may have contributed this was not a probability. He further stated that whereas the five nominated events were stressors there was no history of the Applicant having reacted with intense fear, helplessness or horror as required by the diagnostic criteria for a PTSD in the DSM-IV. Likewise, the Applicant’s current major depression was not worse that it otherwise would have been as a result of these events.

25.     Dr Koller is the Applicant’s treating psychiatrist. In a report dated 25 July 2002 he made a diagnosis of PTSD resulting from six incidents described to him by the Applicant. In Dr Koller’s history as well as the five incidents deposed to by the Applicant in these proceedings, he recorded numerous calls for fire duties placed upon the Applicant whilst at RAAF base Fairbairn, which occasioned “great anxiety” to the Applicant.

26.     As we understand Dr Koller’s evidence, whereas any one of the traumatic events described by the Applicant could have caused a PTSD, in his view it is the cumulative effect of all of them that has resulted in the Applicant’s current mental state.

27.     During the course of his cross examination Dr Koller was questioned regarding the Applicant’s failure at any previous time to mention to any general practitioner or to any other medical investigator, including an investigation for sleep apnoea, that he suffered from nightmares or flashbacks. Dr Koller’s response to this question was quite unsatisfactory and he was at pains to avoid a direct answer.

28.     Likewise, Dr Koller avoided a direct answer to the question of whether the Applicant did in fact have a PTSD in 1971 when he described to Dr Kaplan his service life as “being great until 1972”.

29.     During his cross examination Dr Koller made the statement that:

“my task when I saw him was just to do the PTSD aspect, and I’m not denying what other doctors have described…”

Unfortunately Dr Koller was not asked to explain further what he meant by this but it would seem to indicate that Dr Koller had at the very least a preconception that the Applicant was suffering PTSD as opposed to some other psychiatric illness.

30.     To our mind Dr Koller having made a diagnosis of PTSD has become committed to that diagnosis and is quite inflexible and unwilling to consider any history that might cast doubts upon that diagnosis. As a result we consider that his opinions are of marginal use in determining this matter.

31.     Dr McMurdo, Psychiatrist, saw the Applicant on 20 May 2004 and had the advantage of having the reports of Drs Gertler, Kaplan, Davies and Koller together with the Applicant’s statement.

32.     In the history obtained by him Dr McMurdo records that the Applicant saw a close friend killed when a fire truck rolled. This is contrary to the evidence of the Applicant who stated that he was not present when his friend was killed.

33.     Whereas Dr McMurdo did make a diagnosis of PTSD  in the course of cross examination the history taken by Dr Kaplan was put to him and Dr McMurdo stated that on that history he would not have diagnosed PTSD . In addition, if there were no history of nightmares or flashbacks then that would negate a diagnosis of PTSD according to Dr McMurdo in cross examination.

34.     On 10 July 2003, the Applicant was examined by psychiatrist Dr Gertler at the request of his solicitors. As recorded in his report of 15 July 2003, Dr Gertler obtained a history that in 1972 the Applicant was experiencing increased levels of anxiety and was hyper-reactive to the sounds of alarms or sirens. Dr Gertler made a diagnosis of PTSD caused by traumatic incidents occurring during the Applicant’s RAAF service.

35.     In a second report dated 20 May 2004 Dr Gertler adhered to his diagnosis of PTSD and disagreed with the diagnosis Dr Davies and Dr Kaplan namely that of a major depressive disorder.

36.     Cross examined, Dr Gertler agreed that if the history was other than he recorded then a diagnosis of PTSD could not be maintained. This was particularly so if the Applicant had not mentioned nightmares and flashbacks as they are specific to PTSD .

37.     Dr Gertler also agreed that a history of service life as given to Dr Kaplan was not one to be expected of someone with a service caused PTSD.

38.     Any diagnosis of the Applicant’s condition and its cause is dependent upon the accuracy of the history obtained. In this regard we are particularly mindful of the history obtained by Dr Kaplan as it was Dr Kaplan who first saw the Applicant and the history taken by him is quite extensive and has not been demonstrated to be inaccurate by any other evidence placed before us.

39.     Although the Applicant gave evidence that he had nightmares since 1968 as a result of the fire truck rolling over we find it significant that no mention of nightmares was ever made to Dr Kaplan nor is there any complaint of nightmares recorded prior to seeing Dr Koller.

40.     The history taken by Dr Kaplan was traversed in the cross examination of Drs McMurdo and Gertler and those Drs agreed that on the history taken by Dr Kaplan they would not have diagnosed a PTSD.

41.     It is impossible to ignore the fact that the Applicant was discharged from the RAAF due to ulcerative colitis and as a result of that condition has undergone extensive surgical procedures, and has been rendered incapable of working. In addition, he has other illnesses such as polyarthritis and tinnitus. On the history taken by Dr Kaplan, his discharge from the RAAF together with the diagnosis of ulcerative colitis led to a period of unsettled behaviour. Compounding his ill health was the tragic death of his eldest son.

42.     Cross examined, the Applicant stated that he had wanted to stay in the RAAF and agreed that he had told Dr Kaplan that the disruption to his life was due to colitis and not to the earlier allegedly traumatic events.

43.     We are satisfied that the history taken by Dr Kaplan is correct, in particular it is unaffected by any suggestion that it was tailored to fit a diagnosis. We are therefore satisfied that the diagnosis of a major depressive disorder resulting from the Applicant’s ulcerative colitis is the correct one and that this condition has no causal reference to the circumstances of his service in the RAAF. The decision under review will therefore be affirmed.

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of:

Senior Member M D Allen
  Dr P D Lynch, Member

Signed:         (E.Pope)
            .....................................................................................

Associate

Dates of Hearing  28 June 2004; 29 June 2004; 7 October 2004

Date of Decision  22 October 2004
Counsel for the Applicant         Mr D Richards
Solicitor for the Applicant          Slater & Gordon
Counsel for the Respondent     Mr G Johnson
Solicitor for the Respondent     Australian Government Solicitor