Gutteridge and Repatriation Commission
[2006] AATA 324
•6 April 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 324
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/293
VETERANS' APPEALS DIVISION ) Re GEOFFREY GUTTERIDGE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date6 April 2006
PlaceBrisbane
Decision The Tribunal sets aside the decision under review in relation to post traumatic stress disorder, alcohol abuse/dependence and hypertension. The Tribunal substitutes its decision that these conditions are war-caused in accordance with section 9 of the Act; that Mr Gutteridge is entitled to receive a pension for associated incapacity from post traumatic stress disorder with effect from and including 26 February 2003; that he is entitled to receive a pension for associated incapacity from alcohol abuse/dependence and hypertension with effect from and including 28 April 2003; and that the matter of assessment be remitted to the respondent. ...........[Sgd]........
Mr RG Kenny
Member
Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/293
GENERAL ADMINISTRATIVE DIVISION )
Re GEOFFREY GUTTERIDGE Applicant And
REPATRIATION COMMISSION
Respondent
CORRIGENDUM [2006] AATA 324
Tribunal
Mr RG Kenny, Member
Date
6 June 2006
PlaceBrisbane
THE TRIBUNAL DIRECTS THAT in paragraphs 21 and 26 of the Tribunal’s reason for decision in the above matter, dated 6 April 2006, the reference to visits to Dr Holm being at “six monthly intervals” should read “six weekly intervals”.
MEMBER
CATCHWORDS
VETERANS’ AFFAIRS – disability and pension – operational service with Royal Australian Navy – operational service rendered by veteran – application of Statements of Principles – post traumatic stress disorder – alcohol dependence or abuse – hypertension – reasonable hypothesis of relevant relationship to service raised – satisfied beyond reasonable doubt that conditions war-caused – date of effect for informal claim - assessment of pension remitted to respondent
Administrative Appeals Tribunal Act 1975 s 37
Veterans’ Entitlements Act 1986 ss 9, 14, 20
Fogarty v Repatriation Commission (2003) 37 AAR 363
Repatriation Commission v Deledio (1998) 83 FCR 82
White v Repatriation Commission [2004] FCA 633
Woodward v Repatriation Commission [2003] FCAFC 160
Repatriation Commission v Stoddart [2003] FCAFC 300REASONS FOR DECISION
6 April 2006 Mr RG Kenny, Member Background
1. Geoffrey Gutteridge (the applicant) completed a period of service with the Royal Australian Navy from 4 June 1965 until 3 June 1974. On 28 July 2003, he lodged a formal claim for a disability pension for post traumatic stress disorder, hypertension and alcohol abuse or dependence with the Repatriation Commission (the respondent) in accordance with section 14 of the Veterans’ Entitlements Act 1986 (the Act). Previously, on 26 May 2003, he had completed and lodged a claim which did not comply with the requirements of section 14 of the Act in respect of post traumatic stress disorder. On 7 November 2003, the respondent rejected those claims and this was affirmed by the Veterans’ Review Board on 4 April 2005. On 19 May 2005, Mr Gutteridge sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
2. Mr Gutteridge is in receipt of disability pension under the Act at 60% of the general rate. This is in respect of the following conditions which have been determined to be related to his eligible service: gastroesophageal reflux disease tinea and bilateral sensorineural hearing loss with tinnitus.
Hearing
3. At the hearing, Mr Gutteridge was represented by Mr E George of counsel and the respondent was represented by Mr B Williams, Departmental advocate. The material tendered and taken into evidence included the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents).
Issues and Service
4. Mr Gutteridge served with the Royal Australian Navy from 4 June 1965 until 3 June 1974. That part of his service from 7 December 1972 until his discharge constitutes defence service as provided for in sections 69 and 70 of the Act. However, it is common ground that Mr Gutteridge’s claims do not relate to that period of service and I am satisfied that the claimed conditions are not defence caused. Also, it is not disputed that, in the earlier part of his service, Mr Gutteridge rendered periods of operational service as defined in section 6C of the Act on various naval vessels as follows:
HMAS Yarra 25 April 1966 – 9 May 1966
30 May 1966 – 9 June 1966
HMAS Sydney 8 April 1967 –22 April 1967
28 April 1967 – 12 May 1967
19 May 1967 –14 June 1967
20 December 1967 – 3 January 1968
17 January 1968 –16 February 1968
27 March 1968 – 26 April 1968
HMAS Vendetta 28 October 1970 – 9 November 1970
HMAS Vampire 21 November 1972 – 26 November 1972.
5. The standard of proof for determining diagnostic matters is provided for in subsection 120(4) of the Act and this requires that such matters be determined to the Tribunal’s reasonable satisfaction which means that they must determined on the balance of probabilities: see Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373. The standard of proof applicable to the matter of causation is set out in subsection 120(1) which reads:
“(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.”
6. The application of that provision is affected by the terms of subsection 120(3) and section 120A 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).
Applicant’s case
7. Mr George contended that Mr Gutteridge experienced a severe stressor whilst carrying out his duties on HMAS Yarra on 25 April 1966. It was further contended that this led to the development of post-traumatic stress disorder and to the consequential development of alcohol dependence or abuse which, in turn, led to the development of hypertension. Mr George also submitted that, as a result of the effects of all these conditions on Mr Gutteridge, he has been unable to continue with remunerative work and that, therefore, his pension should be assessed under section 24 of the Act at the special rate. However, he also requested that any such assessment process be remitted to the respondent for further determination.
Respondent’s case
8. Mr Williams submitted that Mr Gutteridge had not experienced a severe stressor such that it would lead to the development of post traumatic stress disorder and that, without such a stressor, it was inappropriate for post traumatic stress disorder to be diagnosed. Rather, he submitted, the appropriate diagnosis was depressive disorder. However, even for that condition, he submitted that the alleged incident on HMAS Yarra did not constitute a severe psychosocial stressor and the condition could not be found to be related to Mr Gutteridge’s service. For alcohol dependence or abuse, Mr Williams again submitted that the alleged event did not satisfy the requirement of being a severe stressor and, therefore, the condition could not be related to service. For hypertension, Mr Williams conceded that, if the alcohol abuse/dependence was accepted as being related to service, this would provide the means for also recognizing that hypertension was so related. Mr Williams also submitted that any assessment of the rate of pension should be remitted to the Repatriation Commission.
Evidence
9. The service event relied upon by Mr Gutteridge as the cause of his psychiatric conditions occurred on 25 April 1966 on board HMAS Yarra after a live firing exercise. The ship had been closed to action stations for the 4.5 inch gun crew, of which Mr Gutteridge was a member. At the completion of the action, the gun crew was directed to return all unused ammunition to the magazine. Normally, this was done via the upper deck but, on this occasion because of rough weather, the gun crew was directed to pass the live ammunition shells down through the internal hatches. Mr Gutteridge was holding a shell and was positioned at the entry to the hatch when the hoist mechanism caught his foot and jammed it so that he was unable to move it. He described feeling extreme pain as well as a sense of panic and helplessness. He thought that he may lose part of his foot. He attempted to lodge the shell in a storage rack a metre or so in front of where he stood. The shell missed the rack and fell about 1 metre to the floor of the magazine where, because of the rough conditions, it rolled around the floor. Mr Gutteridge’s immediately feared that the shell would explode. He noted that other seamen evacuated the area. His foot was trapped for five to seven minutes before the mechanism could be released but the pain continued as did his fear that he may have severely damaged his foot. He was taken to the sick bay where his boot was cut away and first aid applied.
10. The following summary of the incident appears in an inpatient record from HMAS Yarra:
This Ord ME sustained a crushing injury to his right foot which was caught in the shell hoist during a 4.5 inch gunnery exercise – his foot was caught for about 5 – 7 minutes. He was wearing boots.
Examination revealed that there was a diamond shaped area about 4 cm by 21/2 centimetres overlying the metatarso–phalangeal joints for the 3 and 4 digits and a smaller area a ½ cm diam. just laterally; of skin that had been compressed. It looked divitalized and “parchment like”. There was in the centre of the large area a small laceration 21/2 cm long through which extensor tendon could be seen. The whole dorsum of the foot was swollen, both pulses were easily palpable, it was suspected there was a fractured metatarsal bone and loss of sensation to the 4th digit was observed, together with impaired sensation to 3rd and 4th digits.
X-ray confirmed the presence of an undisplaced fracture just proximal to the head of the 4th metatarsal. Management was conservative with rest, antibiotics and local dressing with Sofratulle. However the central part of both affected areas sloughed and became minimally infected. After 5 days he was discharged to light duties and is coming to the sick bay on alternate days for dressings.
There is still loss of sensation to the 4th digit but the central areas are granulating in and should be healed within one week.
(T documents – folio 72)
11. Mr Gutteridge conceded that his training had taught him that the shell would not detonate until it was armed which occurred on firing. As it was not armed, it was not likely that it would explode. However, he also said that, in his training, he had been told to treat each shell as having potential to explode because of the chance that it may be fitted with a faulty mechanism. Mr Gutteridge said that a telegram was sent to advise his parents that he had been injured and he was then directed to write a letter to them shortly afterwards to explain what had happened in more detail. The incident occurred on Mr Gutteridge’s first day of operational service when he was 18 years of age.
12. Mr Gutteridge said that he did not consume alcohol before he joined the Navy at 17 years of age when the legal age for hotel entry was 21 years. On first going to sea, he was offered beer but he did not imbibe because he did not like the taste. However, after the incident relating to his foot, the ship had returned to Hong Kong and he went on shore leave with fellow seamen and went to the China Fleet Club and imbibed alcohol in quantity. He said that it helped him to relax and that it was like medicine which helped him to sleep well. He continued to consume alcohol thereafter. Mr Gutteridge said that alcohol consumption did not interfere with his ability to perform his navy duties but that it began to impact upon other work capacities in the 1970s.
13. Dr Ivan Holm has been Mr Gutteridge’s treating psychiatrist since May 2003. The first psychiatrist that Mr Gutteridge saw was Dr Jonathon Hargreaves. This was in 1998 when he had been advised by his local doctor to see a psychiatrist and Dr Holm was recommended. However, there were difficulties in travelling to Cleveland where Dr Holm practised and, therefore, Mr Gutteridge went to Greenslopes Hospital where he consulted Dr Hargreaves. Mr Gutteridge did not tell Dr Hargreaves about the incident relating to his foot. He said that he had discussed it with his advocate and they had decided to withhold that information from Dr Hargreaves because he wasn’t sure whether or not he had been on operational service when the incident happened. He said that he recalled the incident very clearly but was uncertain where the vessel was at the time. Mr Gutteridge said that, in order to determine whether he was on operational service or not, he obtained his service medical records which contained the account of the treatment he had after the incident. He agreed that he had made his first claim for acceptance of psychiatric conditions in 1997 and that he did not receive his service medical records until 1998. He said that he did not read them because they went to his doctor rather than to himself. This was Dr Larry Gahan who went through the documents but told Mr Gutteridge that he could find nothing of assistance to him. Dr Gahan returned the documents to Mr Gutteridge who passed them to his advocate. The advocate then advised him that he had been on operational service at the time of the incident. Mr Gutteridge said he had been aware of this when he received the initial rejection by the Repatriation Commission. He said that he then told Dr Hargreaves about the incident but that Dr Hargreaves appeared not to believe him. This upset him and he told Dr Gahan who then arranged for him to see Dr Holm. This was in 2003. Mr Gutteridge agreed that, between 1998 and 2003, he had been aware that he had been on operational service when he injured his foot and that he did nothing to further his claim in that period.
14. Mr Gutteridge said that he gets attacks, which he now knows are panic attacks, from time to time and that, when he was asked about this by Dr Kingswell, a psychiatrist who interviewed him on 3 August 2005, he wasn’t sure what he meant by the term. Mr Gutteridge said that, at that time, he thought the events that he experienced were related to his heart rather than to some psychiatric reaction.
15. After he left the Navy, Mr Gutteridge was employed by the Commonwealth Department of Works in Brisbane as a boiler-room attendant. He enjoyed the work because he was largely on his own or with a small range of people to whom he could relate. He said that he was not able to relate well to most people and resisted requests by the employer to do fieldwork. In 1981, he went to Greenslopes Hospital to work on the boilers and remained in employment there until 1996 when he was made redundant because specifications no longer required a boiler room attendant. He underwent psychological assessment for retraining and made efforts to engage in various kinds of work with Queensland Health and with the Archives Stores at Cannon Hill. He described difficulty in coping with the work and the people and felt unable to continue. He said that he now undertakes volunteer work with the Pine Rives branch of the Returned and Services League of Australia where he enjoys working in the company of other veterans.
16. Mr Gutteridge said that he has no hobbies although he does play computer games but watches little television. He said that he takes daily medication for his gastroesophageal reflux and that the ringing in his ears drives him crazy at times. He said it is present all the time although it varies in intensity. He takes no medication for his psychiatric conditions and said that this was because he suffered from an acute bout of Rhabdomyolysis in 2000 and Dr Hargraves was concerned that medication might reactivate the condition.
17. The applicant’s wife gave evidence that Mr Gutteridge suffers from anxiety attacks when he becomes sweaty and needs to sit down. Mrs Gutteridge said that he gets really agitated and is unable to drive and she needs to talk him through it. She said that he drinks approximately 1 or 2 bottles of Scotch each week as well as beer with additional drinking when he’s not at home.
Medical evidence
18. Dr Hargreave’s provided reports dated 30 January 1998, 6 May 1998 and 28 September 2003. In his first report, he diagnosed dysthymia or chronic depression. In his second report, he also diagnosed psychoactive substance abuse related to Mr Gutteridge’s alcohol consumption. He recorded the following history:
He said he rarely drank alcohol before he joined up with the navy. It was on board the HMAS Yarra at the age of 18 that he began drinking heavily and he blamed this on deep unhappiness aboard that ship, and he hated his experiences there and saw no way of escaping the situation. He felt intimidated and roughly treated by officers on the ship and he was in a low rank and felt bullied. For instance he said he was “charged” for having a button missing and the penalty was withholding leave. He became bitter at the arbitrary discipline he alleged occurred. He said he drank heavily to cope with the situation whenever they where in harbour or when he had shore leave. The drinking had a binge pattern, mainly drinking while he had the chance. Naturally while at sea there were significant restrictions on the drinking of the crew. He said he developed dependence on alcohol during this period.
19. Dr Hargraves nominated stressors that Mr Gutteridge had referred to during his navy service, namely concern about being required to take part in a landing party; random and arbitrary discipline from his superiors; the chasing of Indonesian vessels which were known to be armed with missiles and being exposed to the detonation of charges underwater to protect a vessel against enemy divers; and the distress he felt at the sight of Vietnam veterans returning to Australia.
20. In his final report, Dr Hargreaves repeated the history of Mr Gutteridge’s heavy drinking on HMAS Yarra from the age of 18 years which he attributed mainly to problems associated with his life on board the vessel. He maintained his previous opinion that Mr Gutteridge suffered from dysthymia and alcohol abuse/dependence. Dr Hargreaves also described the incident on HMAS Yarra when Mr Gutteridge injured his foot. This was referred to briefly but he described Mr Gutteridge‘s concern at the time that he might have “a permanent loss of sensation or limp”. Additionally, he reported that Mr Gutteridge had stated that he had experienced difficulty collecting evidence about his navy injuries.
21. Evidence was given by Dr Holm. He said that he had seen Mr Gutteridge on about 25 occasions and now sees him at six monthly intervals. He first saw him in May 2003 and provided reports dated 21 October 2003 and 5 October 2004. He referred to the incident on HMAS Yarra and expressed the opinion that this was a stressor which involved a threat of death and the experiencing of intense fear and helplessness by Mr Gutteridge. He considered that it was of particular relevance because of his age at the time. Dr Holm considered that there were two elements to the incident, each of which would constitute an independent stressor. The first of these was the aspect of the incident relating specifically to Mr Gutteridge’s foot. He said that the in-patient report of the injury demonstrated that it was caused by severe pressure which had a crushing effect on his foot despite the fact that he was wearing a boot and it was not unreasonable that an 18-year-old would have a real fear of permanent injury. The second aspect of the incident related to the fear of explosion. He agreed that the incident was probably not accompanied by feelings of horror but said that fear and helplessness would have been present. Dr Holm recognized that Mr Gutteridge’s training should have reassured him that the shell would not explode but, nevertheless, he believed that there would have been a sense of panic as indicated by the reactions of the other seamen.
22. Dr Holm diagnosed post-traumatic stress disorder with associated alcohol abuse and dependence. He was aware that Mr Gutteridge had previously suffered from Rhabdomyonysis and that this meant that he was no longer on medication. However, he said that his condition was at such a level that he really ought to be taking medication for his post traumatic stress disorder. He said that Mr Gutteridge had described to him events which he experienced from time to time and which would constitute panic attacks. Dr Holm considered that post traumatic stress disorder had been present in Mr Gutteridge for some years but was unable to be specific about the time-frame. He thought that there was no major dysfunction until after he was made redundant at Greenslopes Hospital. He noted that there had been attempts to re-engage Mr Gutteridge in the workplace but that these had been unsuccessful and he considered that this was due to his psychiatric conditions.
23. Dr Kingswell saw Mr Gutteridge on 3 August 2005 and prepared reports dated 9 September 2005 and 12 December 2005. He recounted the experience on HMAS Yarra and expressed the opinion that the event was rather trivial in nature with only a remote chance of there being an explosion. He did not consider that the event was sufficient to meet the first of the criteria for post traumatic stress disorder. Despite that, Dr Kingswell conceded that, if it happened in the way described, it would have been very concerning for Mr Gutteridge to see the other seamen hurrying away. Further, he agreed that the prospect of permanent foot damage would raise a fear in Mr Gutteridge and that his age at the time would have increased his vulnerability. Dr Kingswell considered that there were certain factors missing to enable a diagnosis of post traumatic stress disorder to be made. He said that if he had any nightmares, they were only infrequent. If he had intrusive memories, it was only in particular circumstances such as when he heard a helicopter. He said this was really a gloomy mood rather than post traumatic stress disorder. He said that he agreed with the diagnosis given by Dr Hargreaves of dysthymic disorder and depression.
24. Dr Kingswell described the alcohol consumption pattern given to him by Mr Gutteridge as one which developed at the time of the incident in 1966 and one which was dependent on the amount of shore leave that he was able to obtain. Dr Kingswell considered that, on the basis of the extent to which he is able to engage in volunteer work with the RSL, Mr Gutteridge was capable of working for at least eight hours per week although less than 20 hours per week. He considered that it was possible, with more active treatment and workplace rehabilitation, that a greater capacity for work would be achieved although he noted that he was now 57 years of age and hadn’t worked in a remunerated capacity for 9 years.
25. Dr Greg Knight is a consultant occupational physician. He assessed Mr Gutteridge on 6 October 2005. Dr Knight did not consider that the physical or mental conditions from which Mr Gutteridge suffered would impact upon his capacity for remunerative work and he noted that he was able to maintain a productive role of at least 8 hours per week of voluntary work for the RSL. He noted that Mr Gutteridge had expressed an interest in attending an advocacy course in November and that he expressed significant competence with basic computer skills. He considered that Mr Gutteridge’s volition was the limiting factor in obtaining work and he considered that he could work for eight hours per week and probably more than 20 hours per week. He also noted that he had been quite happy to continue in the sort of work he had been doing at Greenslopes Hospital prior to his forced redundancy in 1996.
Diagnoses
26. There is no dispute in this matter concerning the diagnosis of alcohol abuse/dependence and hypertension. The psychiatric evidence consistently confirms the diagnosis of the former and Dr Gahan reported, on 18 July 2003, that Mr Gutteridge has been suffering from hypertension since the mid 1990s. I am reasonably satisfied that those two conditions are present. I have noted Mr. Williams’ submissions concerning post traumatic stress disorder and his reliance on the evidence of Dr Hargreaves and Dr Kingswell. However, Dr Hargreaves was not aware of the incident involving Mr Gutteridge’s foot injury while he was treating him and I am satisfied that Dr Kingswell, in his oral evidence, resiled to an extent from his reference to that incident as being “triviaI”. I am also reasonably satisfied that Dr Holm is well placed to make the diagnosis of post traumatic stress disorder. He first saw Mr Gutteridge in May 2003 and has now seen him on about 25 occasions. He continues to see him regularly at six monthly intervals. Dr Holm was referred to the diagnostic criteria in DSM-IV which are imported into the RMA’s Statements of Principles concerning post traumatic stress disorder. His evidence was that the six requirements listed there are met in Mr Gutteridge’s case and I accept his evidence in that regard.
Principles of Causation
27. 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 accept Mr George’s submission that there are hypotheses of a relationship between Mr Gutteridge’s service and each of the three conditions: post traumatic stress disorder, alcohol abuse/dependence and hypertension.
28. The second of the four Deledio steps requires identification of the relevant Statements of Principles as published by the Repatriation Medical Authority (RMA). For post traumatic stress disorder, this is Instrument No 3 of 1994; for alcohol abuse/dependence, it is Instrument No. 76 of 1998; and, for hypertension, it is Instrument No 35 of 2003 as amended by Instrument No 3 of 2004.
29. The third Deledio step requires a consideration of whether any of the hypotheses raised is a reasonable one and this requirement will be met if an hypothesis fits the template provided by a relevant factor and any associated definition in the Statement of Principles. For post traumatic stress disorder, these read:
“5(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
‘experiencing a severe stressor’ means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ 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;”
30. For alcohol abuse/dependence, they read:
5(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
“psychiatric disorder” means any Axis 1 or 2 disorder of mental health attracting a diagnosis under DSM IV
31. For hypertension, the relevant factor reads:
5(b) consuming an average of at least 20 grams per week of alcohol for a continuous period of at least 6 months immediately before the clinical onset of hypertension which cannot be decreased to less than an average of 200 grams per week of alcohol; or…
32. If an hypothesis for a condition under consideration is reasonable, it will then be necessary to consider the fourth of the Deledio steps. This will require a finding that the relevant condition is war-caused unless I am satisfied beyond reasonable doubt that such is not the case.
Reasonableness of Hypotheses
33. This third step of the Delidio process does not involve findings of fact and, for the purposes of considering the reasonableness of the hypothesis, I have accepted the summary of evidence, set out above, given by Mr Gutteridge.
post traumatic stress disorder
34. The analysis of experiencing a severe stressor for post traumatic stress disorder involves a consideration of both objective and subjective elements: see White v Repatriation Commission [2004] FCA 633, Woodward v Repatriation Commission [2003] FCAFC 160 and Repatriation Commission v Stoddart [2003] FCAFC 300. Also, it is not a requirement that there be an actual threat: see Stoddart at paragraphs 30 and Woodward at 131-142. In Stoddart the Full Federal Court adopted the following statement from Woodward’s case (at paragraph 142):
“…the definition extended to a person experiencing or being confronted with an event involving 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.”
35. The components of the definition of experiencing a severe stressor relate to an event that involved actual death or serious injury; threat of death or serious injury; or threat to the veteran’s or another person’s physical integrity. The same objective/subjective analysis as noted above must be equally applicable to each part of the definition. The material before me points to Mr Gutteridge experiencing an event which was, judged objectively from the point of view of a reasonable person of his age and with his knowledge, capable of conveying a risk of least serious injury to himself in the sense of his foot being badly injured. Taken in isolation, the experience involving the dislodged live ammunition is in a different category. An objective analysis by trained navy personnel with knowledge of the propensity of unarmed shells to explode, would not convey a similar threat of serious injury. However, when taken in conjunction with the circumstances Mr Gutteridge described himself to be in for some five to seven minutes in the presence of the dislodged shell and where other seamen evacuated the area, this points to a heightened perception of the risk faced by him. The material before me in relation to Mr Gutteridge is consistent with the template of experiencing a severe stressor in the Statement of Principles for post traumatic stress disorder.
36. No specific time frame has been given for the timing of the onset of Mr Gutteridge’s alcohol abuse/dependence but Dr. Holm’s opinion and Mr Gutteridge’s evidence about his consumption patterns points to the development of the condition after the events on HMAS Yarra and, in turn, this points to the factors in the statement of principles for alcohol abuse/dependence being met in this case. That is also the situation with respect to hypertension in that the material points to an onset which follows the development of alcohol abuse/dependence.
37. The material before me raises reasonable hypotheses of a relationship to service of post traumatic stress disorder per medium of the incident on HMAS Yarra; of a relationship between post traumatic stress disorder and alcohol abuse/dependence; and of a relationship between alcohol abuse/dependence and hypertension. At this stage, this does not mean that they are related to Mr Gutteridge’s service. Rather, the evidence relating to the hypotheses must be considered under the fourth of the Deledio steps. The conditions will be war-caused unless I am satisfied beyond reasonable doubt that this is not established by the evidence.
Deledio Step 4: Are the conditions War-caused?
38. When Dr Holm heard the summary contained in the in-patient record which was completed on the day of Mr Gutteridge’s foot injury, he noted the description of it being “divitalized” and of the “exposed extensor tendon” as well as the other displayed features and that this arose despite the fact that he had been wearing a boot at the time. Dr Holm was of the opinion that Mr Gutteridge’s foot had been subjected to severe pressure and considered it would be reasonable for an 18 year old in that situation to fear serious injury if not severance of part of his foot. Dr Kingswell took a different view when he described the injury as trivial although, as noted above, I consider that he resiled from that position somewhat in his oral evidence. In any event, his focus was on the injury and it is not so much the injury, taken by itself, which constitutes the experiencing of a severe stressor in this matter but, rather, the injury coupled with the circumstances in which the injury came about. In that regard, Dr Kingswell conceded that it would have been very concerning for Mr Gutteridge and that the prospect of permanent foot damage would raise a fear in him especially given his age.
39. There are some aspects of Mr Gutteridge’s evidence which have not been fully and properly explained. This includes his reasons for not advising Dr Hargreaves when he saw him initially of the incident concerning his foot and not raising it for some years thereafter. I have taken that into account in considering this matter and am unable to be satisfied beyond reasonable doubt that Mr Gutteridge did not experience a severe stressor on HMAS Yarra which has led to the development of his post traumatic stress disorder in accordance with the mechanism set down in the Statement of Principles. Similarly, I am not satisfied beyond reasonable doubt that this condition did not play a causal role in the development of his alcohol abuse/dependence. His evidence was that he began to consume alcohol after the incident and that is consistent with the timing of the commencement of heavy alcohol consumption described by Dr Hargreaves and in accordance with the relevant Statement of Principles. In turn, I am not satisfied beyond reasonable doubt that his hypertension did not develop consequentially in the manner detailed in the Statements of Principles relating to that condition. That being the case, I can not be satisfied beyond reasonable doubt that these conditions are not war-caused.
40. Mr Gutteridge lodged a formal claim for a disability pension for hypertension and alcohol abuse/dependence with the respondent, in accordance with section 14 of the Act, on 28 July 2003. Pursuant to subsection 20(1) of the Act, the effective date for the determination in relation to those conditions is 28 April 2003. For post traumatic stress disorder, the formal claim was also lodged on 28 July 2003 but, on 26 May 2003, he had lodged an informal claim in respect of that condition. As the formal claim was made within 3 months thereof, then the effective date for the determination in relation to post traumatic stress disorder, pursuant to subsection 20(2) of the Act, is 26 February 2003.
Decision
41. The Tribunal sets aside the decision under review in relation to post traumatic stress disorder, alcohol abuse/dependence and hypertension. The Tribunal substitutes its decision that these conditions are war-caused in accordance with section 9 of the Act; that Mr Gutteridge is entitled to receive a pension for associated incapacity from post traumatic stress disorder with effect from and including 26 February 2003; that he is entitled to receive a pension for associated incapacity from alcohol abuse/dependence and hypertension with effect from and including is 28 April 2003; and that the matter of assessment be remitted to the respondent.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Jeff Mills
Legal Research Officer
Date/s of Hearing 1 March 2006
Date of Decision 6 April 2006
Counsel for the Applicant Mr E George
Solicitor for the Applicant Sciacca and Associates
For the Respondent Mr B Williams, Departmental Advocate
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