Hart and Repatriation Commission

[2004] AATA 380

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 380

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/803

VETERANS' APPEALS  DIVISION		)
Re		NEIL HART

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Professor B J McCabe, Senior Member and Dr. Kennedy, Member

Date16 April 2004 

PlaceBrisbane

Decision The decision under review is set aside. 

...........…..Sgd............................

Senior Member

CATCHWORDS

VETERANS AFFAIRS – pensions and entitlements – applicant applied for pension at special rate - applicant suffers obsessive-compulsive disorder – no Statement of Principles exists for obsessive compulsive disorder - whether obsessive compulsive disorder can be connected to eligible service – decision set aside

Bushell v Repatriation Commission (1992) 175 CLR 408

Veterans’ Entitlements Act 1986

REASONS FOR DECISION

16 April 2004

Professor B J McCabe, Senior Member;
Dr. Kennedy, Member       

Introduction

1.      Neil Hart has asked the Tribunal to review a decision of the respondent to deny an application for a pension paid at the special rate. In addition to his accepted disabilities, the applicant claims to suffer from post traumatic stress disorder (PTSD), obsessive compulsive disorder (OCD), or both. He says he is permanently incapacitated as a result of his condition, however it is diagnosed.

2.      The Veterans’ Review Board affirmed the respondent’s decision, although it concluded the applicant suffered from PTSD.

The material before the Tribunal

3. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. It was also provided with

·Two statements of the applicant dated 14 April 2003 and 21 October 2003;

·A statement of the applicant’s wife, Fiona Hart, dated 14 October 2003;

·Three reports of Dr Foxcroft dated 6 April 2001, 28 August 2001 and 12 June 2003;

·Two reports of Nicole Detering dated 21 June 2000 and 19 January 2004;

·Three reports of Dr Kingswell dated 8 April 2003, 28 May 2003 and 24 September 2003.

4.      The applicant was represented by Mr O’Conner and Mr Anderson of counsel. Mr Williams represented the respondent.

The facts

5.      The applicant rendered eligible service with the multi-national peacekeeping force in the Sinai between 27 July 1998 and 10 January 1999. He was involved in an incident while driving a motor vehicle on 31 October 1998. He says he was driving through a small township that was poorly lit. The road was narrow. He said four children pushing bikes appeared out of the night in the centre of the road. He swerved to miss them. He missed the children by a narrow margin but passed into the path of an oncoming car. He narrowly avoided colliding with the car. He was unsure whether he hit any of the children; his passengers urged him not to stop to find out, as it was a dangerous area. The applicant said he felt ill subsequently: he said he experienced nausea and headaches in the immediate aftermath of the incident.

6.      The applicant described the incident in the Sinai in some detail in his oral evidence and in his written statement. We have no reason to doubt his account.

The medical evidence and questions of diagnosis

7.      In order for the applicant’s claim with respect to PTSD to succeed, he must demonstrate he experienced a severe stressor. Dr Kingswell pointed out that diagnoses of PTSD are relatively rare in car accidents – and there was not even a car accident in this case. In most cases, the stressor was the product of intentionally cruel or shocking behaviour, such as torture. He emphasised the stressor must be severe. The incident in this case was not sufficiently serious to justify a diagnosis of PTSD, and could not amount to a severe stressor.

8.      Dr Kingswell added the flashbacks and checking behaviour referred to by Dr Foxcroft as evidence were not properly considered because they were explicable by OCD, of which we will say more shortly. He also expressed doubts over whether the applicant’s symptoms satisfied the criteria.

9.      After reviewing all the medical evidence, we accept Dr Kingswell’s view that the incident on the road in the Sinai does not amount to a severe stressor. We are therefore unable to accept that the statement of principles dealing with PTSD can be satisfied.

10.     We turn then to the diagnosis of OCD. There is no statement of principles dealing with OCD. The medical experts agree the applicant suffers from the condition. Dr Kingswell agrees the applicant is unable to work because of that condition.

11.     The dispute is over whether there is a causal connection between the OCD and the traffic incident in the Sinai. Dr Foxcroft and Ms Detering suggest there may be a causal connection; Dr Kingswell is more sceptical, but he concedes there is a temporal connection. His written report suggests stressors might contribute to the onset of the condition. His report also suggests the stressor does not have to be severe, as the statement of principles with respect to PTSD requires. In his oral evidence, he said there was no real evidence in the literature of a connection between stress and the onset of OCD. But he conceded it was impossible to rule out a connection.

Assessing the causal connection in the absence of a statement of principles

12. The Repatriation Medical Authority has not published a statement of principles applicable to OCD. Where the applicant claims his condition arose out of his service as part of a peace-keeping force, the decision-maker must accept there is a causal connection unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making the determination: s 120(2) Veterans’ Entitlements Act 1986. Section 120(3) goes on to say the decision-maker shall be satisfied beyond reasonable doubt that there is no connection if it is unable to divine a reasonable hypothesis connecting the injury and the service in question.

13.     The question for the Tribunal in this case is clear enough. Is there a reasonable hypothesis connecting the events in the Sinai with the applicant’s OCD?

Establishing a causal connection: how much evidence is required to establish a link?

14.     The leading case on the extent to which an applicant must go in establishing a causal connection between a condition and his or her service is Bushell v Repatriation Commission (1992) 175 CLR 408. In that case, Mason CJ and Deane and McHugh JJ said (at 414) that it did not matter if a proposition did not have extensive support in the medical literature. Provided the proposition was not contrary to proven facts and was put forward by a respected medical practitioner, that would be enough to support a claim – even if it is a minority view and other eminent medical practitioners disagree (at 415).

15.     That appears to be the case here. There is some basis for believing there is a connection between the distressing events the applicant witnessed in the Sinai and the onset of OCD upon his return. He showed no symptoms before he went to the Sinai, according to his wife, although he was apparently a conscientious soldier. This is consistent with Dr Kingswell’s observation of a temporal connection between the condition and his service.

16.     We note the applicant’s father committed suicide in the year before his departure for peace-keeping duties. That was undoubtedly distressing, although there was some uncertainty on the medical evidence about the effect on the applicant. Dr Foxcroft in particular said the applicant was actually coping quite well. Dr Foxcroft is the treating psychiatrist, and his view must therefore weigh heavily. In any event, evidence of another stressful event does not make it implausible or fanciful that the incident in question was a contributing factor to the onset of the OCD.

17.     It follows we are satisfied there is a reasonable hypothesis connecting the applicant’s OCD with the incident on the road in the Sinai.

Does the applicant satisfy the requirements of s 24(1)?

18.     Having established a causal connection between his condition and his service, the applicant says he is entitled to a pension at the special rate because his condition prevents in from working.

19.     This question can be disposed of shortly. The respondent accepted the requirements of s24(1)(a) and (b) were satisfied if the applicant suffered from OCD, and that s 24(1)(c) would be satisfied if the applicant was found to suffer from OCD alone given the medical evidence. We are satisfied that is the case.

Conclusion

20.     The decision under review is set aside. The applicant suffers from OCD that arises out of his peace-keeping service. He is incapacitated and prevented from working as a result of OCD alone. The earliest date of effect of this decision is 24 August 2000.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Professor B J McCabe, Senior Member; and Dr. Kennedy, Member.

Signed:         .....................................................................................
  Associate: Thomas Ritchie

Date/s of Hearing: 20 February 2004
Date of Decision: 16 April 2004
The Applicant was represented by Mr O’Connor and Mr Anderson of counsel.
The Respondent was represented by Mr Williams, a departmental advocate.