Hall and Repatriation Commission

[2004] AATA 1161

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1161

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/1940

VETERANS’ APPEALS DIVISION		)
Re		FRANK HENRY HALL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Robin Hunt, Senior Member

Date8 November 2004

PlaceSydney

Decision The Tribunal affirms the decision under review.   ………………………
  Robin Hunt
  Senior Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – eligible war service – generalised anxiety disorder (GAD) – conflicting diagnoses - claim that condition related to service - consideration of stressors – meaning of "severe psychosocial stressor" – application of Statement of Principles.

Veterans’ Entitlements Act 1986, sections 120(4) and 120B

Statement of Principles concerning GAD (Instrument No 2 of 2000)

Repatriation Commission v Deledio (1998) 49 ALD 193

Benjamin v Repatriation Commission (2001) 70 ALD 622

RepatriationCommission v Hill (2002) 69 ALD 581
Stoddart v Repatriation Commission (2003) 74 ALD 366
White v Repatriation Commission [2004] FCA 633
Repatriation Commission v Law (1980) 31 ALR 140
Lee and Repatriation Commission (1986) 11 ALD 56
Repatriation Commission v Smith (1987) 12 ALD 798
Woodward v Repatriation Commission (2003) 75 ALD 420
Re Woodward and Repatriation Commission (2002) 72 ALD 288
Re Slattery andRepatriation Commission (1998) 52 ALD 90

REASONS FOR DECISION

8 November 2004	Robin Hunt, Senior Member
summary

1.        The applicant, Mr Frank Henry Hall, served in the Royal Australian Air Force from 6 May 1941 to 20 November 1945 inside Australia. The Respondent accepts that Mr Hall’s service is eligible war service under the Veterans’ Entitlements Act 1986 (the Act). On 23 June 2003, a delegate of the Respondent accepted Mr Hall’s claim that he suffered from certain disabilities and assessed his disability pension at 80% of the general rate. The delegate rejected that part of Mr Hall’s claim in respect of generalised anxiety disorder or “GAD”, determining that any such disorder was not related to service. On 13 November 2003, the Veterans’ Review Board affirmed the delegate’s decision. That part of the decision rejecting the claim for GAD is the subject of the present application for review by this Tribunal. The Tribunal has affirmed the decision of the Board for reasons set out below.

background

2.        Mr Hall volunteered for the Royal Australian Air Force and, after a delay of some months and postings to various locations within Australia, he commenced training as a pilot. In 1944, Mr Hall was posted to Temora in NSW and his claim, which is the subject of this review, relates to an event which he describes having taken place during his posting there. Mr Hall claims that, during the breakout of Japanese prisoners of war from the Cowra prison camp on 4 August 1944, he was sent out in the back of a truck with other trainees to search for escaped prisoners.  Mr Hall believes that this incident caused him to develop GAD and he presented medical evidence in support of this claim.

legislation

3.        Section 120 is relevant to Mr Hall’s claim under Part II of the Act, for a pension in respect of incapacity from injury or disease. The standard of proof identified by section 120 varies according to the service rendered by the veteran.  The Respondent correctly concedes that Mr Hall rendered eligible service and that the appropriate standard of proof in relation to this matter is identified by section 120(4). The standard of proof set out by section 120(4) for making a decision is ‘reasonable satisfaction’.

4.        Section 120B of the Act further requires the Tribunal to be reasonably satisfied that the injury is defence caused only if the evidence before the Tribunal raises a nexus between the injury and the service and, there is in force a Statement of Principles (SoP) that upholds the contention that the injury is, on the balance of probabilities, connected with that service.

5.        The SoP which applies to generalised anxiety disorder, the condition at issue in this matter, is instrument No.2 of 2000. The SoP criteria that must be met for the alleged psychiatric condition include several factors which must exist before it can be said that the disorder is connected with the person’s service. Clause 4 of the SoP states that at least one of the factors set out in clause 5 must be related to service. Clause 5 firstly provides at paragraph (a)(i) that the person must have experienced a severe psychological stressor within one year immediately before the clinical onset of anxiety disorder or have met other criteria. The remaining criteria set out in paragraphs 5(a)(ii) to (vi) are not cumulative but are further indicators.

6.        The SoP also sets out symptoms under A, B, C, D, E and F that are features of GAD. Various terms are defined for the purposes of the SoP including “generalised anxiety disorder” and “severe psychosocial stressor”. A severe psychosocial stressor means “an identifiable occurrence that evokes feeling of substantial distress in an individual….”. Examples given in this definition include being shot at, death or serious injury, assault, major illness or injury, divorce or separation, loss of employment and major financial or legal problems.

evidence

7.        At a hearing before the Tribunal on 31 August 2004, Mr Hall had legal representation and gave oral evidence. Mr B O’Keefe an historian and Doctors A Hordern and J A Roberts, both consultant psychiatrists, gave oral evidence and told the Tribunal they had extensive experience with veterans. The witnesses had furnished written reports which were before the Tribunal (Exhibit R2, Exhibit A1 and Exhibit R1 respectively). The Respondent contended that Mr Hall did not suffer from any psychiatric condition and relied on the written opinion of Dr Roberts, consultant forensic psychiatrist, dated 29 April 2004 (Exhibit R1).

8.        Mr Hall told the Tribunal about the frightening experience he suffered on 4 August 1944 when he was sent out in the back of a truck with other trainees to search for escaped Japanese prisoners during the Cowra breakout. Mr Hall said he believed the Japanese were extremely dangerous because they were fanatics who would commit suicide rather than be captured. Yet he was sent out in a truck with 5 to 7 other inexperienced recruits with a powerful searchlight and no weapons. Only an officer in the front seat had a gun. Mr Hall had virtually no weapons training and wondered what he could do if he actually encountered a desperate escaped Japanese prisoner. Mr Hall gave evidence that, while the party had been out searching all night, he felt his life was in danger. It was the most frightening experience of his life. The next day, he had learned that an Australian officer and four soldiers had been killed by the escapees. Mr Hall explained that he knew they had been beaten to death and this event scared him more. Mr Hall had recurrent thoughts about it and had discussed it with the other recruits at the time. Mr Hall was angry that they had been sent out unprotected and unarmed when there were Australian soldiers stationed at Temora. Mr Hall thought he was lucky not to have been killed and remained angry and continued to have the incident on his mind but continued to do as he was told until he was discharged from service. Mr Hall did not tell anyone about his concerns when he was discharged as he just wanted to get on and rebuild his life. Mr Hall said he found it hard to settle down and was irritable and tense when the incident at Temora came up. Being busy had kept his mind off the incident but when he retired he had more time to think about it. Mr Hall worried about his family, his health and his lifestyle. Mr Hall had a happy marriage but he and his wife did not socialise much and he had avoided crowds and arguments for 10 years or more. He did not attend ANZAC Day marches but was a member of the RSL. Mr Hall presented as a truthful and thoughtful witness.

9.        Mr O’Keefe’s report (Exhibit R2), set out a brief description of the Cowra breakout and its aftermath together with his knowledge of any repercussions or action taken at Temora in response. Various accounts taken from persons who were at Temora at the time of the breakout were attached. Mr O’Keefe had been unable to find any reference to the search which Mr Hall described but there was reference to a state of emergency being declared and guards being posted at Temora. Mr O’Keefe gave oral evidence to the same effect as that set out in his written report.

10.      Dr Hordern provided a medico-legal report for Mr Hall, dated 28 April 2004 (Exhibit A1) and gave oral evidence in person to the Tribunal. Dr Hordern noted that Mr Hall appeared to be in reasonably good health, his judgment was good, and that “he displayed some insight into the causation of the psychiatric symptoms that have troubled him intermittently since August 1944”. Dr Hordern set out what Mr Hall told him about the incident at Temora on 5 August 1944, especially how he had been extremely scared by the incident and news the following day of killings that occurred on the night of the breakout. Dr Hordern had also spoken to Mr Hall’s wife who said that Mr Hall had been very irritable intermittently for no reason. Dr Hordern diagnosed mild to moderate GAD and that the condition had existed since August 1944. He suggested that, given his age of 83 years, Mr Hall was unlikely to improve. Dr Hordern concluded that Mr Hall suffered the symptoms set out under A, B, C, D, E and F in the SoP for GAD, that he had experienced a severe psychological stressor immediately, i.e., less than one year before the clinical onset of the disorder, and that he suffered from all the symptoms and features of the disorder set out in the SoP immediately after experiencing their causal stress.

11.      At the Tribunal hearing, Dr Hordern told the Tribunal that he empathised with Mr Hall as he had been exposed to a similar incident in the UK but that at least he had been armed. When cross-examined, Dr Hordern displayed some impatience and said that he knew what the diagnosis was and did not know who had made the SoP criteria up. Dr Hordern expressed the opinion that he was more experienced than Dr Roberts. Dr Hordern believed Mr Hall worried “excessively” about the Temora incident or he would have dismissed it from his mind. He thought it was self-evident that the phrase used in the SoP,  “finds it difficult to control the worry”, applied to Mr Hall and that people who had obsessive traits sometimes buried their anxiety in work and controlled it that way. Dr Hordern observed that Mr Hall did not display irritability, another SoP criterion, at his consultation but his wife had mentioned that Mr Hall displayed this symptom. Dr Hordern noted that Mr Hall’s concentration was affected to the extent that he told him that he had slowed down and had difficulty.

12.      Among other observations, Dr Hordern said that he believed the Temora incident was a “severe psychosocial stressor” and there was no need to look for another factor. Dr Hordern had not delved into Mr Hall’s divorce from his first wife and had not known he had previously been married to another woman. When asked whether he found that Mr Hall suffered from substantial distress, he said he had no doubt as to this and that it was self-evident.

13.      Dr Roberts examined Mr Hall on 20 April 2004, and provided a report accordingly. Dr Roberts gave oral evidence verifying the contents of his report and analysing stressors and symptoms of generalised anxiety disorder as well. Dr Roberts told the Tribunal he had formed the opinion that Mr Hall did not fulfill the criteria for a psychiatric diagnosis of any type. Dr Roberts did not consider that Mr Hall fulfilled criteria clinically or in regard to aspects of the SoP for generalised anxiety disorder. Dr Roberts’ report highlighted that Mr Hall said at the consultation that he had not undergone any treatment for any nervous condition. He found this circumstance very telling as expanded upon below.

14.      In analysis of the causal stressors and symptoms set out in the relevant SoP, Dr Roberts noted that Mr Hall may have been frightened on the night of the breakout but the experiences he described did not amount to a severe psychological stressor in his view. Dr Roberts also made reference to other events in Mr Hall’s life, to his general health and to other problems but still concluded that he did not suffer from GAD. When giving oral evidence, Dr Roberts again stated that Mr Hall suffered from no psychiatric condition. Dr Roberts dealt with aspects of the SoP and testified that Mr Hall’s condition did not conform to any of the causal factors in the SoP. Dr Roberts confirmed that he had used SoP factors 5 and 6 methodology in reaching his conclusion. He postulated that the complaints or symptoms experienced by Mr Hall were insufficient to meet the criteria for determining the disorder claimed as defined in the SoP nor as derived from DSM-IV.

15. Dr Roberts noted Mr Hall’s own perception was that he did not need any psychiatric assistance or management. For example, although Mr Hall had seen Dr Koller (Exhibit R3) no treatment was prescribed as a result. An examination of the clinical notes of Mr Hall’s general practitioner, Dr Vanza (Exhibit R4) also showed no treatment indicated other than sleeping pills. Dr Roberts added that a patient’s perception played a role in diagnosis and that patients generally brought themselves forward for treatment in cases of GAD.

16.      As to clause B of the definition of “generalised anxiety disorder” in the SoP, Dr Roberts found no evidence of Mr Hall having difficulty controlling the worry. Dr Roberts went through the SoP criteria in some detail, finding little correlation between Mr Hall’s condition and the criteria. He told the Tribunal that he found no observable signs of any anxiety disorder. He commented that everyone exhibits some signs of anxieties but that this does not mean that a disorder is present. He further observed that he was not alone in noting Mr Hall’s calm demeanor. He noted Dr Hordern’s report referred to the very normal conduct of Mr Hall. Dr Roberts also found no evidence of substantial distress in Mr Hall’s conduct, noting that he described the occurrence of the search as “scary on the night” and only finding out about the associated deaths the following day. This did not amount, in his view, to substantial distress that required treatment.

17.      Mr Hall’s representative also referred to the reports furnished by Dr K Koller to the Respondent for psychiatric assessment dated 29 May 2003 (T8 pp. 57-61). Dr Koller found Mr Hall to have shown GAD commencing during World War II, but did not give the necessary date of onset within one year.  Instead, it certified onset within 2 years.  The representative submitted that Mr Hall’s case was supported by the opinion of Dr Koller and that Dr Koller clearly meant Mr Hall had experienced a severe psychosocial stressor within one year before the clinical onset, that being the time factor in the SoP which applied to GAD. 

discussion of evidence

18.      Mr Hall must first establish he has the condition claimed, in this case, GAD. He next must raise a connection between his service and any condition from which he is suffering pursuant to section 120B(3) of the Act. The manner in which the Tribunal must approach its task where a SoP exists was set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193, which concerned a war-caused condition and depended on other sections of the Act but is nevertheless similar to the present situation. There are four steps to be considered in assessing whether an applicant will succeed in a claim. Firstly, the Court at 206 referred to the need to find a reasonable hypothesis connecting the injury and the service. However, the first step in the present case, which is covered by sections 120(4) and section 120B as explained above, is that the Tribunal must decide the matter to its reasonable satisfaction according to subsection 120(4). The Tribunal must find, on the material before it, a connection raised between the condition and the service according to subsection 120B(3). The Tribunal must then determine if there is an SoP determined under subsections 196B(3) or (12), or a determination. If an SoP is in force, the Tribunal must be reasonably satisfied that it is consistent with the injury or disease, which is connected, on the balance of probabilities, with that service.

does the applicant suffer from generalised anxiety disorder?

19.      There is conflicting psychiatric opinion before the Tribunal presented principally by Dr Hordern and Dr Roberts.  Dr Koller’s report contained a deficiency as to the appropriate date of clinical onset. The expert opinions before the Tribunal are at odds and I prefer the opinion of Dr Roberts as he expressed his negative opinion in terms clearly related to the criteria in SoP 2 of 2000, which is the standard which Mr Hall must fit. Dr Hordern did not clearly identify symptoms in accordance with the SoP. Dr Koller’s opinion is also not so thoroughly framed in terms of the SoP and was not tested by Dr Koller’s giving oral evidence before the Tribunal. Therefore, I prefer to rely on the opinion of Dr Roberts and find that Mr Hall has not established that he does suffer from GAD. I have further considered whether Mr Hall might be suffering from any other disorder as recommended by the Full Court of the Federal Court in Benjamin v RepatriationCommission (2001) 70 ALD 622 but am unable to find, on the material before me, that he suffers from any other disorder other than those already found by the delegate. As Mr Hall has not established to the satisfaction of the Tribunal that he has the disorder claimed, his application must fail.

did the applicant experience a severe psychological stressor?

20.      In addition, for a SoP factor to be raised by the material before the Tribunal, the material must point to every essential element of the factor: Repatriation Commission v Hill (2002) 69 ALD 581. SoP No 2 of 2000 requires that the factors in clause 5 exist on the balance of probabilities. On the evidence before me, the main factor argued in this instance is that at paragraph 5(a)(i) of SoP 2 of 2000. This is the factor expressed as the applicant’s experiencing a severe psychosocial stressor within one year prior to the clinical onset of GAD.

21.      The term “severe psychosocial stressor”, as defined by SoP 2 of 2000. The definition includes the need to establish an identifiable occurrence and other aspects referred to below. The position of Mr Hall is that he experienced such a stressor when undertaking a search for escaped Japanese prisoners. The Tribunal accepts on the evidence submitted by the both parties, that there was an “identifiable occurrence” in that the breakout is well documented and Mr Hall appeared to be a witness of truth who was still recalling the occurrence which involved him in a search. Mr Hall told the Tribunal he still was concerned about what might have happened had he encountered any escapees. Also see Repatriation Commission v Law(1980) 31 ALR 140.

22.      The Respondent’s position is that the search at Temora may not have occurred and, if it did, nothing eventuated so far as Mr Hall was concerned. He and his companions discovered no prisoners and nothing of note happened to Mr Hall. The Respondent drew attention to the non-exclusive definition of severe psychosocial stressor in the SoP and compared the incident at Temora with these examples of stressors, noting that the matters listed were significant and actual events. The Respondent argued that a mere search for dangerous escapees did not compare with the type of events described in the SoP.

23.      The Respondent drew attention to the discussion of “substantial distress” in White v Repatriation Commission [2004] FCA 633 and suggested that Mr Hall had not experienced this degree of distress. His Honour, Spender J, suggested that the occurrence which triggered the stressor should be one which objectively was one such as to evoke particular feelings in the person exposed to the occurrence and that the occurrence did evoke these feelings of substantial distress. The Respondent argued that Mr Hall did not exhibit substantial distress and, objectively, the occurrence of the search during the breakout was not an event to trigger such a response. Again, the Federal Court in Repatriation Commission v Stoddart (2003) 74 ALD 366 provides an authority on the interpretation of "experiencing a severe stressor", Mansfield J stating at paragraph 55:

“In my judgment the language of the definition of ‘experiencing a severe stressor’ caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing these events, are capable of and did convey (that is, are subjectively experienced) the risk of death or serious injury or to physical integrity.”

24.      In the more recent matter of Woodward v Repatriation Commission(2003) 75 ALD 420, the Full Court considered the definition of "experiencing a severe stressor", concluding that the Tribunal in that matter had considered the expression in too narrow a manner when addressing Deledio (supra), step 4. Re Woodward and Repatriation Commission(2002) 72 ALD 288 was in respect of a claim for the acceptance of PTSD as a war-caused disease, resulting from operational service in the Australian Army. The Tribunal in that matter was not satisfied that a reasonable hypothesis had been raised, also referring to Re Slattery and Repatriation Commission (1998) 52 ALD 90. Part of the appeal before the Full Court focused on the question of whether the Tribunal properly interpreted and applied terms including “experienced a severe stressor”. The Full Court stated at 442:

"The definition of "experiencing a severe stressor" has three elements that relate to a person’s encounter with an event involving death – the person must have "experienced, witnessed or [have been] confronted with an event that involved death...". Plainly enough, although the elements may overlap in any particular situation, the definition will be satisfied if any one of them is present. As a matter of ordinary language, the field that the definition is intended to cover is bounded by the three different elements. It follows that for the purposes of the definition a person may be "confronted with" an event that he or she has neither experienced nor witnessed.

In any event, as a matter of ordinary usage to be "confronted" with something means to be brought face to face with it physically or, perhaps more commonly, in the mind. If the thing being confronted is an event, usage does not require that the person be present at the event she or he "confronts". This in no less the case when the confronting event is one involving death or serious injury."

25.      By way of example, the Full Court in the matter of Woodward v Repatriation Commission (supra) referred to a member of the armed forces taking part in casualty clearance or attending casualties in a sick bay. The Full Court considered the material before the Tribunal to have pointed unequivocally to there having been an event involving death, and that Mr Woodward had been "brought face to face with the reality of death on active service". Their Honours referred to Stoddart (supra) in which Mansfield J considered that the SoPs did not distinguish between actual and perceived threat.

26.      This is a view which Mansfield J considered accords with the common meaning of "threat", defined in the Macquarie Concise Dictionary as "an indication of probable evil to come; something that gives indication of causing evil or harm". Again at 379:

"...the definition of "experiencing a severe stressor" caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (that is, are subjectively experienced) the risk of death or serious injury or to physical integrity."

27.      The Full Court considered this reasoning "persuasive" and that it should be followed, but further stated that it expressed no opinion about a situation in which the perception of a threat, although real in the mind of an individual, is not objectively reasonable. More importantly, in my view, the decision of the Tribunal must be based on “material that is relevant and logically probative” and should draw a distinction between probabilities and mere possibilities: see Repatriation Commission v Smith(1987) 12 ALD 798 per Beaumont J at 800.

28.      Under s 120(4) of the Act, the Tribunal must decide the matter to its reasonable satisfaction. I have compared the identifiable occurrence that affected Mr Hall with the examples of severe psychosocial stressor set out in the definition. On the evidence before me, the threat to Mr Hall, while real in his own mind was not very likely to result in his death or serious injury. By his own account, Mr Hall was on the back of a truck with other trainees and equipped with a searchlight and no weapons. While an encounter with the escaped prisoners had the potential to be extremely serious, Mr Hall has given evidence that he and the others were simply searching. He has not suggested that they were ordered to enter into combat if they located any escapee and the fact that they were not issued with weapons supports this. As it turned out, the party did not encounter any prisoners and returned to the base after no encounter of any sort. While the judgments referred to above do not exclude the possibility of a perceived threat amounting to a severe stressor, in the circumstances, and taking account of the reasoning by their Honours in Stoddart, Re Slattery and Woodward, the Tribunal is not satisfied that the event amounts to a severe psychosocial stressor. I have not found such a stressor to my reasonable satisfaction as required under s 120(4).

decision

29.      The Tribunal affirms the decision under review.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Ms R Hunt, Senior Member

Signed:         .....................................................................................
  Associate: Reuben Mansour

Date of Hearing                  31 August 2004
Date of Decision                 8 November 2004
Solicitor for the Applicant                           Fairburn Lawyers
Representative for the Respondent          Ms Kenny