Hale and Military Rehabilitation and Compensation Commission

[2006] AATA 16

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 16

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/1098

GENERAL ADMINISTRATIVE DIVISION		)
Re		VICTOR HALE

Applicant

And MILITARY REHABILITATION
AND COMPENSATION
COMMISSION

Respondent

DECISION

Tribunal Ms M J Carstairs, Member

Date12 January 2006

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

.................[Sgd]........................

M J Carstairs
  Member

CATCHWORDS

COMPENSATION – post traumatic stress disorder – service in CMF and Army Reserve – whether stressors from this service – other explanations of psychiatric disturbance - decision affirmed.

REASONS FOR DECISION

12 January 2006      Ms M J Carstairs, Member      

1.      Victor Hale has been diagnosed as suffering from post traumatic stress disorder (PTSD), a psychiatric condition that may arise when a person is exposed to extreme traumatic stress.  Mr Hale seeks compensation for the condition as being a mental injury which arose out of, or in the course of, his duties with the Citizens Military Forces (CMF), later the Australian Army Reserve.

2.      Putting aside for the moment the question of whether PTSD is the correct diagnosis of Mr Hale’s psychiatric condition, a central issue in determining Mr Hale’s claim for compensation is what might have caused his condition.  Mr Hale says that it resulted from a number of stressful experiences while he was engaged in Army Reserve duties. 

3.      The respondent says that Mr Hale faces several difficulties in drawing any connection between PTSD and his duties in the Army Reserve.  The respondent points out that Mr Hale was not diagnosed with PTSD until 2002, that is, many years after the occurrence of any stressful events in the Army Reserve.  The respondent also refers to Mr Hale’s employment for some twenty-five years in the Victorian Police Force, in which employment he was exposed to stressful incidents.  This raises the question of whether that civilian employment, rather than his Army service, might be the cause of any psychiatric disturbance from which he now suffers.   

THE ISSUES

4. Section 14 of the Safety, Rehabilitation and Compensation Act1988 provides that the respondent is liable to pay compensation in respect of an injury suffered by an employee if the injury results in incapacity for work or impairment.  In subsection 4(1) of the Act, the term injury is defined as including mental injury (or aggravation of injury) arising out of or in the course of employment and extends to a disease (defined to include any ailment or aggravation of any such ailment contributed to in a material degree by the person’s employment).   

BACKGROUND

5.      Mr Hale served with the Australian Army between 20 May 1953 and 10 November 1987.  He undertook a period of full-time National Service from 27 April 1954 to 1 August 1954.  However, most of his thirty-five years of Army service was part-time (T20) – it seems that he was required to attend annual training camps in the CMF and Army Reserve, including some four training weekends per year and a  commitment of 21 days per year for annual camps (exhibit R1).

6.       In 1962 he joined the Victorian Police Force and he served there firstly until 1983 when he was medically discharged, having reached the rank of Senior Constable.  A few years later, Mr Hale rejoined the Victorian Police as a Police Reservist, and was given permission to resume full-time duties in July 1987.  He again retired from the Victorian Police Force, this time finally, in October 1988 at the age of fifty-four.  After that, Mr Hale and his wife moved to Queensland where he and his wife operated a snack bar, which closed after about five years as it was proving unprofitable to continue.  Mr Hale also worked as a security guard but ceased completely at the age of sixty in 1994.  He now undertakes some voluntary work with the RSL as an advocate.

7.      Mr Hale did not lodge his claim for compensation for PTSD with the respondent until 2002, fifteen years after the last of his service in the Army Reserve.

MR HALE’S ARMY RESERVE EXPERIENCES

8.      In drawing a connection between his Army service and his psychiatric condition, Mr Hale relied on four stressors that occurred in his reservist duties:

§  An accident in November 1956 during a CMF training exercise at Wonga Park in Victoria when a colleague, Lieutenant J McDonald, had both hands blown off when charges he was lighting for a simulation exercise exploded prematurely.

§  An incident in 1967 in which another colleague, Lieutenant M Leffers, was killed in a motor vehicle accident when he was returning an Army vehicle which Mr Hale knew to be defective and had urged him not to drive.

§  An incident at Puckapunyal in 1973 involving live grenades.

§  An incident of short-fired mortars where troops, including Mr Hale, were endangered during exercises at Puckapunyal.

9.      Mr Hale set out the detail of these stressful events in T11.   He also gave oral evidence about them.  It seemed to me that while all four were distressing events or narrow escapes, stressful at the time and capable of occasioning fear of impending harm, it is only the incident with Lieutenant McDonald that would meet the required level of severity of stressor to sustain a possible diagnosis of PTSD, in accordance with recognised criteria in the Diagnostic and Statistical Manual of Mental Disorders (4^th Ed) (DSM-IV).  

10.     Mr Hale’s evidence about the incidents, other than the one involving Lieutenant McDonald, lent support to that conclusion as well.  From Mr Hale’s description of the grenade incident, there was no doubt that he was in immediate danger, but he responded skilfully and was able to continue the shoot.  He confirmed this also to Dr J Reddan, clinical psychiatrist, and as she pointed out in her oral evidence, we all experience near misses in life that will not necessarily have a lasting impact.  Mr Hale acknowledged himself that the impact of all incidents except the injury to Lieutenant McDonald faded with time (T11).  I concluded that the only stressor that came within the requisite level of severity of stressor was that involving Lieutenant McDonald.

11.     There were real issues however about how involved Mr Hale may have been with that incident.  According to Mr Hale, when Lieutenant McDonald was injured, Mr Hale was positioned 3-4 metres away and was one of the first on the scene after the explosion.  He said that he rolled Lieutenant McDonald over and saw that he had both forearms blown off.  Mr Hale said he tried to organise blankets for him so that he would not go into shock.  Despite Mr Hale’s insistence about his immediate involvement, the records of the Court of Enquiry investigation of the incident (exhibit A2) lend no support to Mr Hale being immediately or directly involved.  Others who were directly involved gave evidence to the Enquiry and it is unlikely that if Mr Hale was directly involved that he would not have been approached to give evidence. 

12.     Mr C Bell, who was a Platoon Sergeant at the time of the incident, provided a statement (T28) but was not called to give oral evidence.  I drew little assistance from his statement.   Mr I Robertson (T22) also prepared a statement and gave oral evidence that he was at the scene of the injury to Lieutenant McDonald within two to three minutes.  He could not say confidently that he saw Mr Hale there, though he thought that he probably was there. 

EVIDENCE FROM VICTORIAN POLICE PERSONNEL RECORDS

13.     Mr Hale’s evidence was that in his police service he was exposed to scenes of violence, including suicides and murder, but that nothing he experienced in the police force equalled the impact of the traumatic injury to Lieutenant McDonald.  He said that his experiences in the police force were occupational problems and his Army service made him better able to cope with what he experienced in the Victorian Police Force.  In his written statement (exhibit A3) he said:

Whilst I was in the Victoria Police I was not exposed to any shootouts with criminals or other events which traumatised me.

14.     However, the personnel records from Victoria Police presented a more complex picture.  In a letter dated 14 October 1981 (exhibit R5), Mr Hale wrote to the Chief Superintendent of Police, seeking referral to the Government Medical Officer for consideration of his future with the police.  Mr Hale stated in his letter to the Chief Superintendent that when he joined the Police Force he was in excellent physical and mental health, but had suffered illnesses of a more serious nature subsequently, including that :

§  on 10 July 1966 while directing traffic at Flemington Racecourse he was knocked down by a car and required 23 days of sick leave;

§  when Mr Hale next returned to work in August 1966 he was detailed for traffic duties but collapsed when carrying out those duties and was taken to the Police Hospital, where he was diagnosed with a traumatic nervous condition and anxiety state.  He had a further 24 days sick leave, and a further period of 18 days in December 1966.

15.     In his letter Mr Hale then stated that those problems in 1966 had never lessened, and in July 1981 he sought help from psychiatrists, Dr S Preradovic and Dr J Riley, who diagnosed him with anxiety and depression.  After writing this letter identifying his issues, Mr Hale required substantial sick leave for most of the remainder of 1981.   As noted above, he was medically discharged from the Victorian Police in 1983. 

THE MEDICAL EVIDENCE

16.     Dr M Katz, consultant psychiatrist, has treated Mr Hale, approximately every three weeks, since 2003.   In a report dated 4 May 2005 (exhibit A1), Dr Katz said that Mr Hale was referred to him by his general practitioner for PTSD management.  Dr Katz said that Mr Hale told him that the onset of his symptoms was about twelve years earlier (that is about 1991, the date Mr Hale also identified in his compensation claim: T5).  Dr Katz said that Mr Hale told him that the symptoms of flashbacks, nightmares and distressing thoughts related to his experiences in the Army Reserve. 

17.     Dr Katz said:

Developmentally Mr Hale denied any significant sensitising or traumatising experiences that might have predisposed him to acquiring the presenting history of disturbances with Mr Hale reporting that the first re-triggering of his memory of sensitising events occurred around 1991 in association with flashbacks and nightmares of being witness to seeing his friend Lieutenant McDonald having his arms blown off on a weekend exercise subsequent to which retriggering Mr Hale recalled that he began to experience re-the re-emergence of other memories of sensitising events to which he was exposed during his reservist years, and which events are now well documented and include incidents on the grenade range when Mr Hale was in fear of his own safety and the safety of others as well as an incident that occurred whilst out with a mortar platoon when the mortar bombs began falling in the vicinity of observers, and Mr Hale has also experienced intrusive racing thoughts about the death of an Army mate who apparently died 25 minutes after driving off in an Army car that Mr Hale knew had been declared ‘beyond local repair’ by the Army mechanics.

…..

On the basis of my professional association with Mr Hale and the history of incidents both documented and reported to me by Mr hale that occurred during his reservist years I am of the opinion Mr Hale has symptomatic disturbances with specific content relating to the same that fulfil the criteria for making the diagnosis of Post Traumatic Stress Disorder…and which condition is manifestly distinct from any other conditions Mr Hale might have premorbidly or concurrently experienced, such as depressed mood which can be concomitant with Post Traumatic Stress Disorder or a separate entity relating to the attrition of nervous energy though other life stressors or, moreover, as an endogenously promoted version of the same. (exhibit A1)

18.     Dr Katz noted in his report that Mr Hale acknowledged in consultations that during his Victorian Police service he had witnessed road traumas, and had been confronted by an armed man, and had experienced a nervous breakdown and major depression towards the end of his policing career.   In his oral evidence Dr Katz said that he had not had access to Mr Hale’s Victorian Police records, and was unaware Mr Hale had been injured in a motor vehicle accident at Flemington in 1966.

19.     In his oral evidence Dr Katz emphasised that Mr Hale only spoke during consultations about re-experiencing events from his army service, particularly the injuries to Lieutenant McDonald in 1956.  Dr Katz accepted that this thought content re-emerged for Mr Hale in 1991. That is, Mr Hale was not describing to Dr Katz any re-experiencing of stressful incidents from his police service.  (Re-experiencing the traumatic event is one of several symptoms required to diagnose the presence of PTSD.)  Dr Katz acknowledged that a delay of nearly forty years in the experience of symptoms was unusual, but pointed out that delayed onset was not itself controversial in diagnosing PTSD.

20.     Dr J Reddan, consultant psychiatrist, prepared several reports on Mr Hale’s psychiatric condition.  In the first she presented Mr Hale’s psychiatric history based on her history-taking from Mr Hale and his wife at a consultation in March 2004.  Subsequently, Dr Reddan had access to additional sources of information, including the Victorian Police Personnel Records, which allowed her to develop a more comprehensive longitudinal profile of Mr Hale’s psychiatric history than Mr Hale had provided.  

21.     Dr Reddan’s report dated 27 April 2004 (exhibit R1) dealt with the details of the stressors Mr Hale experienced in the Army Reserve.  Mr Hale also told Dr Reddan that he had not attended a psychiatrist until the early 1990’s. 

22.     Dr Reddan did not set out any particular psychiatric diagnosis, but she did comment that Mr Hale did not demonstrate a startle response, avoidance, distress or hyper-arousal, which are some of the expected symptoms of PTSD.  She also noted that Mr Hale seemed to have been exposed to experiences in the Victorian Police Force which were more life-threatening than the events in the Army Reserve.  Dr Reddan did suggest that there was evidence that Mr Hale suffered from a mood disorder.  However she pointed out that the symptoms of a number of different psychiatric disorders overlap, making the task of diagnosis difficult.  

23.     In her first report Dr Reddan deferred conclusive comments on causation, pending her receipt of additional materials.  In her two subsequent reports (exhibit R2 and R3) Dr Reddan commented that Mr Hale’s longitudinal psychiatric history was more complicated than he had presented to her.  The matters that he had not revealed to her included:

§  that he had been involved in two motor vehicle accidents in 1966 and about this time developed a psychiatric condition of a post-traumatic kind.  He was referred to a psychiatrist, and was prescribed barbiturates then commonly in use in the treatment of anxiety disorders;

§  that he had been treated with anti-psychotic drugs in 1981;

§  that was treated by a psychiatrist Dr Reilly at Epworth Hospital in Victoria, for a number of years;

§  that he was discharged from the Victorian Police Force and had been diagnosed with an anxiety condition; and

§  that Mr Hale had a more extensive history of attendance at psychiatrists/ counsellors in the 1990’s than he had revealed to her;

24.     Dr Reddan concluded, (exhibit R3), that Mr Hale had developed a psychiatric disorder in 1966 after he was knocked down by a car at Flemington when carrying out traffic duties.   She considered that the most likely diagnosis of his condition then was PTSD.  She noted in her oral evidence that when he next returned to traffic duties after his sick leave, his symptoms peaked and he passed out and had to be hospitalised.  He then later developed psychiatric symptoms in 1981, for which he required substantial sick leave and ultimately medical discharge from Victoria Police. 

25.     From her oral evidence it was clear that Dr Reddan thought that the 1981 episode was a mixture of anxiety and depression.  Dr Reddan observed that despite his lengthy sick leave from police duties in 1981 Mr Hale was able to continue throughout this time attending at Army Reserve camps, and his doing so had attracted unfavourable comment from within the Victoria Police.  In other words, she said he was not demonstrating any avoidance of participation in the Army duties, and she inferred from this that those duties were not causing Mr Hale anxiety or mood disturbance.

26.     Dr Reddan commented that it is common for people who have psychiatric, and particularly mood disorders, to ruminate over past negative events and it is easy to confuse these ruminations, which are merely symptoms of the disturbance, with the cause of the disturbance.  She considered that the reason that Mr Hale started to experience symptoms about 1991 was more likely to be a combination of the financial difficulties he was experiencing with the takeaway business, and factors of age, ill health, and Mr Hale’s focus on compensation issues.  

27.     Dr Reddan said that it stretched credibility to connect symptoms experienced in 1991 with happenings in the Army Reserve, when Mr Hale showed no features of avoidance of Army reserve duties and no hyper-arousal as would be expected with PTSD.  She thought it more likely that in 1991 Mr Hale was suffering from anxiety and depression and these conditions led him to ruminate on all the unhappy occurrences in his life, including what had happened to Lieutenants McDonald and Leffers. 

CONCLUSION

28.     Deciding this matter relied on having an accurate and complete history.  This always is necessary, but it is essential in cases such as this, where a lengthy period has elapsed between the occurrence of the claimed injury and the lodgement of a claim for compensation for it.  Much depended on Mr Hale being truthful and accurate in his recall.  Mr Hale demonstrated by his manner in giving his evidence that he was strongly committed to his view that his psychiatric disturbance related to his duties in the Army Reserve and he was not amenable to challenges to his view.  I was satisfied that Mr Hale, for whatever reason, had withheld relevant information from both Dr Katz and from Dr Reddan.   

29.     I do not have to form a concluded view of what is the correct diagnosis of Mr Hale’s current psychiatric condition, because I do not accept that, irrespective of how that condition is described, it is related to his service in the Army Reserve.   I accept Dr Reddan’s views that Mr Hale’s psychiatric condition is multifactorial in origin and has manifested at different times as mood disorders and as anxiety disorders (including PTSD).

30.     Taking into account Dr Reddan’s examination of earlier medical information (such as was available) it is possible to conclude, on the balance of probabilities, that Mr Hale suffered from PTSD after he was hit by a car at Flemington in 1966.  I accept Dr Reddan’s assessment that he most likely was suffering anxiety in 1981 and that this caused him to seek treatment for an extended period then, and to seek his discharge from the Victorian Police Force. 

31.     Both Dr Katz and Dr Reddan referred to incidents that took place during Mr Hale’s police service.  Dr Reddan referred to Mr Hale telling her that he was assaulted and fell through a roof, rolled a police car multiple times, was shot at and fired his weapon in return.  Mr Hale had told Dr Katz some of this, including experiencing road trauma and a shotgun incident, but Dr Katz appears to have accepted uncritically Mr Hale’s self-assessment that Army discipline and regimentation helped him in his policing life and he was not troubled by it.  In his evidence at the hearing, Mr Hale referred to other horrific incidents that took place during his Victorian Police service.  The Victorian Police records of his attendance at psychiatrists does not support a conclusion that Mr Hale was untroubled by his police service.

32.       Dr Reddan considered that differences between her reports and the conclusions reached by Dr Katz were attributable to Dr Katz being placed at a disadvantage in formulating a diagnosis without having access to the Victorian Police records.  Those records place Mr Hale’s current psychiatric disturbance in a longitudinal history of disturbances dating from at least 1966.   In the end it was a simple choice to prefer the conclusions of Dr Reddan as they are more solidly grounded in a comprehensive history and based on a more accurate and complete record than was available to Dr Katz.   Having that context allows Dr Reddan’s report to make sense in a way that Dr Katz’s does not.   

33.     Dr Katz’s report uncritically accepts Mr Hale’s account of his Army Reserve experiences.  Dr Katz does not address whether in fact the incidents that Mr Hale relies upon would be capable of being severe stressors to support a diagnosis of PTSD.   

34.     I accept the submission that, as his treating psychiatrist, Dr Katz was concerned primarily with supporting his patient.  This has led him to minimise, as also does Mr Hale, the occurrence of a number of identifiably traumatic incidents during his Police service, and to attribute causation to more unlikely causes in Mr Hale’s army service.  Whilst I do not dismiss the opinion of Dr Katz about Mr Hale’s psychiatric state, I do not accept his conclusion that he suffers from PTSD now, or that it is related to incidents in Mr Hale’s Army service.  

35.     Accepting the evidence of Dr Reddan as I do, I was satisfied that when Mr Hale experienced psychiatric disturbance in 1991 this disturbance more likely than not was related to other events in his life that were stressful to him, including increasing age and ill health, and the financial troubles he was experiencing with the take-away business.  I accept Dr Reddan’s evidence that psychiatric disturbances can wax and wane and that Mr Hale had a lengthy history of disturbances, which on the evidence from Victoria Police related to his police service.  This prior history of disturbance may have made him more susceptible in 1991.  To the extent that the disturbance in 1991 included ruminations upon experiences of his duties in the Army Reserve, I accept Dr Reddan’s evidence that the better view is that these ruminations were symptoms of Mr Hale’s mood disorder and should not to be taken as the cause of an underlying condition.  

36.     I was satisfied that Mr Hale has suffered from PTSD in the past, related to his injury at Flemington when carrying out traffic duties.  I do not accept that Mr Hale suffers from PTSD that is related to his Army Reserve duties.  It is far from clear that he was exposed to a severe stressor (Criterion A in DSM-IV) during that service, and I accept Dr Reddan’s evidence that he does not show any evidence of another key indicator of the condition, avoidance of stimuli associated with the trauma (Criterion B in DSM-IV).

DECISION

37.     The Tribunal affirms the decision under review.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member

Signed:         Jeff Mills
  Legal Research Officer

Date/s of Hearing  1 September 2005
Date of Decision  12 January 2006
Counsel for the Applicant         Mr R Clutterbuck
Solicitor for the Applicant          Mylne Lawyers
Counsel for the Respondent     Ms E Ford
Solicitor for the Respondent     Phillips Fox