Guy and Repatriation Commission - [2001] AATA 685

DECISION AND REASONS FOR DECISION [2001] AATA 685

ADMINISTRATIVE APPEALS TRIBUNAL )

) Q2000/134,135

VETERANS' APPEALS DIVISION       )
           Re      COLIN MACKENZIE GUY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr. D.W. Muller, Senior Member Dr. K.P. Kennedy, OBE, Member Mr. I.R. Way, Member

Date22 June 2001
PlaceBrisbane

.............(Signed)................................
D.W. MULLER
SENIOR MEMBER

CATCHWORDS
VETERANS' APPEALS – Oesophageal reflux, alcohol abuse, stressful event

REQUEST FOR WRITTEN REASONS FOR DECISION

Mr. D.W. Muller, Senior Member
Dr. K.P. Kennedy, OBE, Member Mr. I.R. Way, Member

This is an application to review a decision to reject claims that the applicant's disabilities of oesophageal reflux and alcohol abuse are war-caused.
This matter was heard on 22 June 2001. At the end of the hearing the Tribunal gave an oral decision, to affirm the decision to reject the applicant's claim to have oesophageal reflux and alcohol abuse accepted as war-caused disabilities.
The Tribunal accepts that the applicant, Colin Mackenzie Guy, suffers from oesophageal reflux. The Tribunal also accepts that he suffers from a degree of alcohol abuse, but that his alcohol abuse is not serious. It has never done him any physical harm. It has never caused him any problems at work. He has been able to work as a policeman for just over 30 years. He rose to the rank of Inspector. He worked in the Commissioner's office. Obviously his so-called alcohol abuse has been at the lower end of the scale. It has been essentially a voluntary, socially based pastime. He can restrict his intake when he wishes to. Nevertheless, he probably drinks a little bit more than he should.
The question is whether the oesophageal reflux and the alcohol abuse are war-caused. It is conceded by the respondent that if the alcohol abuse is war-caused, then it follows that the oesophageal reflux is also war-caused. If the alcohol abuse is to be held to be war-caused, it has to, under the Statements of Principles, either be brought on by a war-caused psychiatric condition, or by an occurrence of a stressful event which occurred during war service.
The applicant served in the Australian Navy in the 1950s. The proposition has been put that the applicant was subjected to some stressful events whilst he was serving in Japanese and Korean waters between mid-1954 and early 1955. There was, at that stage, no warlike enemy action. There was an uneasy truce. He never experienced any military or naval engagements or fighting. The stressful events are said to have been events which occurred on board ship. One was a stand to in which it was thought that there might have been an enemy aircraft approaching – needless to say, it did not. There were other events involving him as a stoker and having to be in cramped or a claustrophobic situation in the bowels of the ship.
The question really arises then, as to whether or not Mr. Guy suffered in 1954/55 or thereabouts from a generalised anxiety disorder. The applicant relies on the evidence of Dr. Carter, psychiatrist, who has given the opinion that the applicant suffered from a psychiatric disorder in 1954 and has done ever since.
Dr. Carter has given a diagnosis of what she believes to have been the applicant's state of psychiatric well-being forty years ago. She has attempted to reconstruct what may have been the position based on what she has been told by the applicant and based on the documents available to her. The applicant has given a history to Dr. Carter which she says indicates that he may have been suffering from a psychiatric disorder in 1954.
What Dr. Carter bases her retrospective diagnosis on is the evidence that in 1954/55 Mr. Guy, whilst in port, would go with the other sailors and drink to excess – get drunk – and sometimes get himself into trouble. Her evidence was that that indicates to her that Mr. Guy must have had some psychiatric illness, or otherwise he would not have done such a thing. She also went on to say that Mr. Guy has suffered from the disorder ever since. She attributed his continuing enjoyment of alcohol to a psychiatric disorder.
On the other hand, Dr. Kingswell, psychiatrist, gave evidence that the mere fact that Mr. Guy got drunk and sometimes became disorderly whilst he was with other sailors in port, does not necessarily indicate that he was then suffering from a psychiatric illness. Dr. Kingswell said that the contrary is indicated by the facts that Mr. Guy was able to function properly in the Navy and got himself promoted.
There is no claim by the applicant, nor on his behalf that he currently suffers from any psychiatric disorder, nor that he has for any of the past forty years. He retired from the police service at age 55 in 1988 with a rank of Inspector. He retired voluntarily. He was not forced out through illness, or for inefficiency, and he has lived in retirement for the last 13 years. He has been a long serving president of his RSL subgroup and has led an active social life.
When it comes to choosing between the evidence of two different medical witnesses in these types of cases, it is said that the Tribunal should not choose if the two propositions put forward by the medical people are equally tenable. It is said that one hypothesis may be just as valid and hence reasonable as the other. However, in this case, the Tribunal has concluded that Dr. Carter's proposition that Mr. Guy has suffered a lifelong psychiatric illness because he has enjoyed drinking alcohol is untenable. Her proposition that Mr. Guy had a psychiatric illness in 1954 based solely on the fact that when he was a young sailor he got drunk and got into trouble when he was in port, is a very shaky basis for making such a diagnosis.
The Tribunal rejects that diagnosis. The Tribunal finds that Mr. Guy did not suffer from a psychiatric illness in 1954/55 and he has never suffered from one. He simply likes drinking beer due to peer pressure and a desire to socialise.
As for any stressful events on service, the Tribunal does not accept that the applicant suffered from anything too stressful. He never saw any military or naval action of a warlike nature. He might have been a bit frightened now and again, but not to the extent required by the Statement of Principles to produce a psychiatric illness nor to cause him to go off and get drunk to forget his troubles, forget his worries, or to get over any terrible trauma. He has had none of that.
The Tribunal finds that the applicant's mild alcohol abuse is not war-caused, and, consequently, neither is the oesophageal reflux. The decision to refuse the acceptance of the claim for those disabilities as war-caused is affirmed.
I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Senior Member; Dr. K.P. Kennedy, OBE, Member, Mr. I.R. Way, Member.
Signed:         .....................................................................................
           B. Hitchcock,           Secretary
Date/s of Hearing  22 June 2001
Date of Decision  22 June 2001
Request for Written Reasons 1 August 2001
Counsel for the Applicant        Mr. D. O'Gorman
Solicitor for the Applicant         Gilshenan and Luton
Respondent  Mr. M. Smith, departmental advocate