Hawkins and Repatriation Commission
[2001] AATA 565
•21 June 2001
DECISION AND REASONS FOR DECISION [2001] AATA 565
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/672
VETERANS' APPEALS DIVISION )
Re KENNETH ALFRED HAWKINS
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal M J Sassella, Senior Member
Date21 June 2001
PlaceSydney
Decision The Tribunal affirms the decision under review.
[Sgd] M J Sassella
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – hypertension - impotence - osteoarthritis right shoulder - gout - depressive disorder - trait anxiety - alcohol dependence – post traumatic stress disorder – psychoactive substance abuse - whether condition related to war service –whether condition satisfies the relevant Statement of Principles – stressful event – reasonable hypothesis linking condition to war service
Veterans' Entitlements Act 1986, ss ss 7(1)(c), 13(1)(b), (d), 14(1), (3), (4), 20(1), 21A, 120(4). 120B(1), (3), (4)
Statement of Principles concerning Psychoactive Substance Abuse, No 6 of 1994
Harris v Repatriation Commission [2000] FCA 873
Repatriation Commission v Binding [1999] FCA 974
Budworth v Repatriation Commission [2001] FCA 317
REASONS FOR DECISION
21 June 2001 M J Sassella, Senior Member
History of the application
On 9 June 1998 Kenneth Alfred Hawkins ("the Applicant") lodged an application with the Department of Veterans' Affairs ("the DVA") claiming certain conditions as war or defence caused (T4). The conditions as stated on the application were hypertension, impotence, lumbar spondylosis, osteoarthritis, gout, cervical spondylosis, post traumatic stress disorder ("PTSD") and varicose veins. He stated on the application that service related alcohol abuse and obesity had caused his hypertension and that his impotence was caused by excessive drinking and continuous use of medication to control hypertension. The Applicant claimed that his lumbar and cervical spondylosis and osteoarthritis were caused by a trauma experienced due to a plane crash in 1944/45, as was his PTSD.
On 21 October 1998 the Repatriation Commission ("the Respondent") refused the Applicant's claim for "hypertension, impotence, lumbar spondylosis, osteoarthritis right shoulder, osteoarthritis right knee, gout, cervical spondylosis, varicose veins both legs, depressive disorder and trait anxiety and alcohol dependence" (T9). The Respondent found variously that either the conditions were not related to service, that they failed to meet the requirements of the relevant Statement of Principles ("SoP") or that there was insufficient evidence of the claimed condition.
On 29 October 1998 the Applicant lodged an application for review of the above decision with the Veterans' Review Board ("the VRB") (T10).
On 4 December 1998 the Respondent wrote to the Applicant informing him that it had decided not to conduct a review pursuant to s 31 of the Veterans' Entitlements Act 1986 ("the Act") (T12).
The decision under reviewThe decision under review is that of the VRB dated 22 February 1999 (T13) which affirmed the decision of the Repatriation Commission of 21 October 1998. In relation to alcohol dependence the VRB relied on the report of Dr Richardson of 31 August 1998 (T8) where he stated that the Applicant's psychiatric condition was not related to wartime service but to alcohol abuse. The Applicant's alcohol dependence could therefore also not be related to service as per paragraph 5(a) of the relevant SoP. The VRB further found that the plane crash incident did not satisfy the definition of a "severe stressor" which would then satisfy paragraph 5(b) of the relevant SoP.
The VRB found in relation to hypertension that the Applicant had high blood pressure both at the time of enlistment and discharge. It was further found that there was no evidence that the condition was aggravated by war service. The Applicant did not weigh significantly more upon discharge that he did on enlistment and the VRB had already found that his alcohol dependence was not war caused. The Applicant had insufficient evidence that would reasonably satisfy the VRB that his hypertension satisfied any of the SoP requirements concerning hypertension.
The Applicant had also claimed lumbar and cervical spondylosis, attributing them to trauma suffered as a result of a plane crash during 1944. There was no evidence of any injury to the spine immediately after or within 24 hours of the crash. The VRB relied on the Applicant's own statement of 17 June 1998 where he stated that a slight bruise on the hip was his "only apparent injury" (folio 45 of the T documents). It further noted that upon discharge the Applicant had stated that he had suffered no injury during his service and that the medical examination at this time found that his neck and back were normal.
The Applicant had also claimed that his conditions of osteoarthritis right shoulder and right knee were related to the previously mentioned plane crash. Again the VRB relied on the Applicant's own statement that he had suffered no severe injury at the time. There was no evidence of "trauma to a joint" which would satisfy any of the SoP factors.
The VRB examined the medical evidence in relation to the Applicant's varicose veins and found no evidence that his circumstances satisfied the relevant SoP.
In relation to PTSD, the Applicant had claimed that this condition was also related to his service, attributable to the aircraft crash. The VRB noted the report of Dr Richardson, psychiatrist, of 31 August 1998 (T8) where it specifically states that the Applicant does not suffer from PTSD. The report further stated that the Applicant's psychiatric history was not related to war service and that he was not entitled to a DVA payment. The VRB found no evidence of a severe psychosocial stressor, incurred during service, that would have caused depressive disorder. The circumstances of the Applicant's condition did not meet the SoP requirements.
There is no SoP which covers trait anxiety and the VRB relied again on the report of Dr Richardson of 31 August 1998 (T8). Dr Richardson stated that the Applicant suffers "by nature" from trait anxiety. The VRB found no evidence that this condition was related to the Applicant's eligible service.
On 7 May 1999 the Applicant lodged with the Administrative Appeals Tribunal ("the Tribunal") an application for review of the decision of the VRB.
BackgroundThe following is largely from Dr Richardson's report (T8).
The Applicant was born on 3 September 1925. His parents separated when he was about 10 years old. He initially lived with his father for three years while his sister lived with his mother. At age 13 he went to live with his mother and older sister in Bondi (Exhibit A3). He left school at age 14 gaining his intermediate certificate and then worked in clerical and accountancy positions. The Applicant married in 1948 and separated in 1973. At this time he was drinking excessively and was suffering from impotence. He remarried in 1970 but the marriage broke down 7 years later, again due to sexual problems.
The Applicant has two sons from his first marriage and one daughter from his second. He is in regular contact with his younger son and daughter but has no contact with his older son (Exhibit A3).
The Applicant studied accountancy through the CRTS scheme and worked for a furniture company in Dulwich for 21 years until 1968. When his first marriage broke down he moved to Wauchope where he managed a plywood mill, finishing as general manager. He then managed a motel in Port Macquarie for five years, eventually living there for 20 years. It was there that he met his second wife. After the breakdown of that marriage he moved to Forster/Tuncurry where he has lived for the past 12 years (Exhibit A6).
The Applicant lives alone, renting an apartment from the Department of Housing. He currently has no DVA entitlements.
The Applicant served in the Royal Australian Air Force ("the RAAF") from 1 January 1944 to 25 July 1945. He trained as an airman, but was discharged before the end of war. This service constitutes eligible service as defined in the Act.
In "late 1944 or early 1945" the Applicant was involved in a plane crash (folio 45 of the T documents). He was flying a Tiger Moth aircraft during training in Benalla. He suffered only minor injuries at the time and continued flying the following day, despite being "very shocked".
On 17 June 1998 the Applicant completed a claimant alcohol questionnaire for the DVA (T5). He stated that he started consuming alcohol on approximately 14 January 1944, drinking once per week. At that time he drank two schooners of beer on each occasion. In an attached statement the Applicant stated that he started drinking after joining the RAAF. He was under constant pressure due to study, exams, physical training and discipline, all of which were new experiences. Drinking on Friday nights was a means of relaxing. After the Applicant went to Narrandera with the 8EFTS he started binge drinking on weekends. After his return to civilian life he continued drinking four to six schooners per day. He had put on two stone in weight during his service, due to his excessive drinking, and started to have blood pressure and gout problems. The Applicant stated on the form that he currently drank every day, in the amount of three to four schooners of beer and one or two glasses of wine on each occasion.
The Applicant completed a lifestyle questionnaire for the DVA, also on 17 June 1998 (T6). He described himself as tense and a little anxious and irritable. He had problems sleeping and gets "cranky from pain". The Applicant found it difficult to discuss problems and was moody and irritable most of the time. He blamed these problems on his drinking habits and his impotence. He further stated that these two problems led to the split of his family and his two divorces. His impotence was the reason why his second marriage ended. The Applicant has difficulty walking, has knee pains, arthritic hands and feet, gout and leg and toe cramps. He had difficulty using public transport and has special fittings in his home to assist him with his mobility. The Applicant attached his own statement to the questionnaire, stating that his disabilities had restricted him in playing golf, dancing and forming relationships. He described himself as withdrawn, "very tense" and desperate.
Statements of Mr Sidaway and Mr ColeMr Albert Sidaway provided a statement on behalf of the Applicant on 21 July 1999 (Exhibit A1). Having known him well since 1938, and sharing many interests, Mr Sidaway stated that he was surprised and disturbed by the Applicant's increased drinking habits.
Mr George Cole, another long-term friend of the Applicant, provided another statement on his behalf dated 21 July 1999 (Exhibit A2). He stated that the Applicant was "easily upset and irrational reliving his experiences in the RAAF and consuming large amounts of alcoholic beverages to overcome his remorse. Mr Cole further stated that the Applicant's drinking habits had upset his family and "all those who knew him."
Statement of the ApplicantOn 21 September 1999 the Applicant wrote a statement about his wartime experiences (Exhibit A4). Specifically he provided a more detailed account of the Tiger Moth plane crash. He stated that upon landing the weather conditions had changed dramatically with an extremely strong wind, tipping the plane onto its wing, whereupon it flipped over. The Applicant fell out of the plane on his neck and right shoulder. Although he felt severe pain he ignored it in order to get away from the plane, fearful that it would explode. He stated that his neck and shoulder were sore for several weeks. The Applicant also described in this statement how he started drinking during RAAF training at 2ITS at Lindfield. He got into the habit of drinking five to six schooners at a time, although the regularity or otherwise of his drinking habit at this time was not mentioned. After he left the RAAF he drank four to six schooners per day in addition to wine or spirits at night. He blamed his failed marriages on his alcohol abuse.
Documentary medical evidenceOn 9 April 1999 Dr Schmidtman, consultant psychiatrist, reported on the Applicant (Exhibit A3). He recorded the details of the Tiger Moth crash and how the Applicant described intense feelings of guilt and shame associated with this experience. The Applicant further stated that he had experienced recurrent distressing memories of the plane crash and avoids things that will remind him of it; "he often lies awake at night thinking about the crash." Dr Schmidtman noted the Applicant's history of social withdrawal, difficulties with relationships, recurrent bouts of depression and alcohol abuse. He diagnosed the Applicant as having "chronic PTSD and secondary depression and alcohol abuse, conditions related chronologically to his plane crash whilst a trained pilot during World War II."
On 30 July 1998 Dr Laden, general practitioner, provided a series of medical reports for the DVA (T7). In relation to hypertension he stated that the onset of alcohol dependence and obesity occurred in 1944 and 1947 respectively. He again noted the onset of obesity as 1947 on the medical report relating to the Applicant's gout. The gout had been treated with Chlotride and Lasix since 1958.
In relation to varicose veins Dr Laden found no "thrombophlebitis of deep vein in a lower limb or the pelvis", no "congestive cardiac failure" nor any "abdominal tumour causing lower limb venous obstruction."
Further, in the report relating to lumbar spondylosis, the Applicant had suffered no lumbar intervertebral disc prolapse. Dr Laden stated that the Applicant did suffer a trauma to the lumbar spine as a result of the air crash of 1945 and noted that the Applicant had suffered approximately two weeks of pain "as a direct result of the injury". He also noted this history in relation to the osteoarthritis and cervical spondylosis forms that he completed for the Applicant. (This history of pain is not consistent with the Applicant's own statement regarding injury and pain).
Dr Laden noted that Dr Patterson, urologist, had confirmed a diagnosis of impotence in 1994 and that the clinical onset of the condition was in 1982. The condition has been unresponsive the drug caverject. Dr Laden also noted that chlotride could be a contributing factor to the clinical onset of impotence.
On 31 August 1998 Dr Richardson, consultant psychiatrist, provided a report on the Applicant (T8). In addition to noting the Applicant's social and work history he concluded:
"In summary, Ken does not suffer from post traumatic stress disorder. He suffers from long trait anxiety and alcohol dependence. In later years he has suffered from major depression requiring anti-depressants. I do not believe that his psychiatric history reflects on his war time service and I do not think that he has an entitlement regarding PTSD."
On 23 September 1999 Professor Sambrook, rheumatologist, provided a report on the Applicant (Exhibit A5). The Applicant stated that the reason no injury was recorded by medical staff at the time was that he was embarrassed about the crash and that if he had complained he feared that he might have been discontinued from training. Professor Sambrook diagnosed cervical and lumbar spondylosis as well as osteoarthritis of the right shoulder. Using the Guide to the Assessment of Rates of Veterans' Pensions ("GARP") he gave an assessment of 10 under table 3.1.1 for the right shoulder. He gave the knee a rating of 10 under table 3.2.4. The rating under table 3.3.1 for the cervical spine was 5 and 10 for the thoracolumbar spine. Professor Sambrook stated that the Applicant did suffer a discrete injury with symptoms lasting for more than seven days which is within the SoP requirements. Even allowing for the lack of evidential documentation, he found that there was a reasonable hypothesis linking the back and neck conditions to war service, especially in light of the Applicant's history of the incident and that x-rays showed a change that was "somewhat more than expected for his age."
On 21 October 1999 Dr Dinnen, consultant psychiatrist, wrote a report on the Applicant (Exhibit A6). The Applicant told Dr Dinnen that he drank three or four glasses of port and four schooners of beer each day. The Applicant further stated that he had had depression for the last four to six years. Alcohol abuse led to the breakdown of his first marriage and the second was affected by his impotence. The Applicant's relationships usually did not last long because of this condition. The Applicant expressed disappointment at the report of Dr Richardson (T8) because it focussed on his unhappy childhood and failed to mention that he was happiest when he was living with his mother in Bondi. Dr Dinnen also took a history from the Applicant of the Tiger Moth crash, which was consistent with his other accounts of the incident. Dr Dinnen stated that "the patient's symptoms of depression no doubt are more attributable to life events such as his upbringing, the failure of two marriages, and health problems in recent years." Dr Dinnen could not provide a diagnosis consistent with the SoP. However Dr Dinnen did state that the Applicant's chronic alcohol abuse does satisfy the criteria set out in the SoP for alcohol abuse and that it is a war caused condition. He gave this a GARP rating of 9.
On 27 October 1999 Dr Miller, consultant physician, reported on the Applicant (Exhibit A7). He also took a history of the crash incident which was consistent with the Applicant's other accounts of what happened as well as his feelings of guilt and shame which accompanied it. Dr Miller further noted that the Applicant suffered from memory loss and hypertension, being treated with chlotride, as well as gout and impotence. In relation to hypertension Dr Miller found that "the clinical worsening of the condition satisfies the definition under this instrument as treatment was commenced." He further found that there was a relationship between alcohol dependence and war service. The SoP was satisfied in that the Applicant was involved in a potentially fatal plane crash. The Applicant started drinking more heavily and more regularly after the crash. On the balance of probabilities "his alcohol dependence relates to his war service." Assuming that this is accepted, the Applicant's hypertension should also be accepted as relating to war service. Dr Miller further stated that the Applicant's condition of gout satisfies factor 5(b) of the relevant SoP in that he was treated with a thiazide diuretic before the clinical onset of the condition. "If his hypertension is accepted, then I consider that his gout should also be accepted." Further Dr Miller believed that because the Applicant was suffering from alcohol dependence at the time of the onset of impotence, he satisfies factor 5(n) of the SoP. Again, if alcohol abuse is accepted as being war caused, so should his impotence. The following ratings under GARP were found:
Hypertension 5 points
Alcohol dependence 25 points
Impotence 15 points
Gout 8 points
Total 44 points
On 2 December 1999 Dr Hession reported on the Applicant (Exhibit R1). He also took a detailed history of the claimed conditions and his early upbringing as well as his service. It was his opinion that none of the claimed conditions were related to the Applicant's service. Alcohol dependence does not satisfy the SoP in that he was not suffering from a psychiatric disorder at the time of the clinical onset of the condition and there was no severe stressor within one year immediately before the clinical onset. There was no evidence that hypertension was related to war service, and Dr Hession noted that his blood pressure was in the hypertensive range as early as 6 December 1943. Because the hypertension and alcohol abuse are not related to service, nor can the claimed condition of impotence be so related. Dr Hession further stated that lumbar and cervical spondylosis are, in the case of the Applicant, age related and allied to the constitutional degenerative condition of osteoarthritis. There is no relationship with war service. Further there is no evidence that the osteoarthritic right shoulder and knee are related to the plane crash, thereby linking the condition to service. For this to be the case a fracture, dislocation or other intra-articular injury would have had to occur at the time. The Applicant's varicose veins are a constitutional condition and not related to war service. In regard to depressive disorder and trait anxiety, Dr Hession agrees with Dr Richardson (T8) that there is no connection with war service and that the latter condition is constitutional in nature.
On 8 February 2000 Dr Schultz, consultant psychiatrist, reported on the Applicant (Exhibit R2). He noted that the Applicant did suffer from anxiety after the war, consulting a psychiatrist in the 1960s, who prescribed Valium. Dr Schultz found that the circumstances of the crash during the Applicant's training have become more prominent in the Applicant's life because of the legal proceedings, "but don't appear to have played a major role in his life otherwise." He further found that the problems the Applicant was experiencing were due to prevailing pressures rather than being associated with the accident.
On 26 July 2000 Dr Schultz provided a supplementary report on the Applicant (Exhibit R3). He confirmed his earlier opinion that the Applicant's alcohol abuse does not satisfy the SoP in that his drinking habit predated the Tiger Moth accident and there were no other stressful events during his service that would have led to alcohol abuse. The psychiatric problems are related to the alcohol abuse and not to the plane crash.
Dr Schultz gave evidence at the Tribunal hearing. He had diagnosed alcohol dependence on the basis of the Applicant's history of excess consumption of alcohol over many years. The cause of the Applicant's drinking was his tendency to relate to things in an anxious way. In effect a vicious circle develops. He has a problem. He resorts to alcohol. The problem worsens. He drinks more alcohol. Dr Schultz identified marital problems as a precipitant.
Dr Schultz understood that the drinking to excess began while the Applicant was serving and it occurred early during service. Early on there was daily drinking. Binge drinking then commenced. The Applicant had reported a daily consumption of 50g of alcohol. This is excessive. 20g a day is about the maximum recommended. This equates to two standard drinks.
Where drinking causes damage to health, occupation and relationships drinking becomes alcohol abuse. Dr Schultz understood that the Applicant worked successfully for the NRMA despite his drinking. There seemed to be no career problems. The Applicant's problems were with his relationship with his wife.
Dr Schultz doubted that the Applicant had experienced a severely stressful event when he had the airplane accident. While stress and its effects are person-specific and may depend on a person's age, gender and personality, in the present case the Applicant was aged 18 at the time of the accident, he was keen to become a bomber pilot, the accident was equivalent to "a young kid having a stack".
Mr Godwin told Dr Schultz that the Applicant had said that he felt he had "faced death" in the Tiger Moth incident. He asked if this could equate with a car accident such as is mentioned as a possible severely stressful event in the SoP on psychoactive substance abuse or dependence. Dr Schultz responded that there are many different types of car crash. The SoP requires that a car accident must cause serious physical injury to a person. That does not seem to have occurred with the Tiger Moth.
Ms Sadleir picked up on this assessment in her cross-examination. She noted that Dr Schultz had said Mr Hawkins had a coping style that did not cope well with stress. She asked whether the incident with the Tiger Moth would be likely to affect such a person disproportionately. Dr Schultz said that such an incident could have a greater significance to such a person but that in Mr Hawkins' case it was not the only significant event in his life.
Dr Schultz told Ms Sadleir that Mr Hawkins' drinking at Narrandera was within the normal range. Indeed, compared to his peers, it is possible that Mr Hawkins drank less than they did. Dr Schultz did not see it as significant that the Applicant's drinking habits seemed to worsen after the Tiger Moth incident. He was only 18 at that stage and it would be most unusual for a person under that age to drink heavily.
Dr Schultz told Ms Sadleir that Mr Hawkins, after the Tiger Moth incident, felt guilty and responsible rather than anxious.
On 27 July 2000 Professor Sambrook gave a brief report on the Applicant at the request of the Applicant's representative (Exhibit A8). He stated that the clinical onset of cervical spondylosis was a few years after his service. He further stated that, based on the given history and the x-ray evidence, it was more than probable that the air crash contributed to the development of the neck and shoulder problems.
Dr Dinnen also provided a supplementary report on the Applicant on 27 July 2000 (Exhibit A9). He confirmed his earlier opinion that a clinical diagnosis of PTSD could not be established but that the Applicant satisfies factor 1(c) of the SoP in relation to his alcohol abuse.
Dr Dinnen gave evidence at the Tribunal hearing. He explained that his diagnosis of alcohol abuse at page 5 of his report (Exhibit A6) was based on the Applicant's pattern of heavy drinking from his time in the RAAF. The Applicant saw it as a problem. He attributed it to the accident. Dr Dinnen thought this would satisfy SoP 6 of 1994.
Dr Dinnen described the emotional consequences for the Applicant in his self perceptions from the crash. He had been in an accident. He had seen his life as under threat. Dr Dinnen referred to petrol "dripping on" the Applicant (which cannot be correct as the Applicant said that the petrol tank wound up underneath him and this appears also in Dr Dinnen's report at page 3). The Applicant felt shame and guilt. The Applicant foresaw problems qualifying as a flier. His recollections were refreshed as he spoke about his problems. He had to face the fact that he "was not the flier he thought he was". He had a secret to keep. This was that the accident was, in his view, his own fault.
Dr Dinnen considered that the Applicant's drinking had been within normal limits for someone in his group at earlier stages. After the accident it changed in quality and a new pattern was established.
Dr Dinnen saw the airplane accident as a stressful event. The airplane upturned. The petrol was trickling. The harness contained the Applicant. The Applicant was in a state of great apprehension.
Dr Dinnen addressed SoP 6 of 1994. He considered factor 1(a) ("a severely stressful event immediately prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service") or factor 1(c) ("a severely stressful event immediately prior to the clinical worsening of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service") to be satisfied, depending on when the substance abuse became morbid.
In cross-examination Mr Godwin took Dr Dinnen to the definition of "psychoactive substance abuse or dependence" in paragraph 4 of the SoP. The definition requires a maladaptive pattern of use attracting a stated ICD code that is indicated by either of two phenomena. One is continued use of the substance despite knowledge of having a persistent social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance. Mr Godwin asked Dr Dinnen when Mr Hawkins knew of any problem he had and that it was being adversely affected by his drinking. Dr Dinnen replied that such realisation does not come until the person reaches "rock bottom". He reinterpreted the definition as meaning that the victim continues to use the substance despite the fact that it is exacerbating his or her social or other problems. Mr Godwin put to Dr Dinnen that the impairment ratings he had assigned in Exhibit A6 were comparatively low. Dr Dinnen replied that the Applicant's alcohol abuse was not a condition of major proportions.
Mr Godwin asked how the airplane crash could meet the requirements for a "severely stressful event". This is defined in the SoP as "a psychologically distressing event that is outside the range of usual human experience … such as simple bereavement, chronic illness, business losses and marital conflict .. [and possibly including] natural disasters (for example devastating floods or earthquakes), accidental disasters (such as car accidents with [sic] resulted in serious physical injury to a person), deliberately caused disasters (such as bombing) and torture" (paragraph 4). Dr Dinnen said the events had a specific emotional significance to the Applicant. It was an unusual accident because of what it meant to the Applicant in his career in the RAAF and his relationship with his peers. It had a strong psychological significance.
Mr Godwin indicated that the incident did not seem to reduce the Applicant in the eyes of his colleagues. His evidence was that they were sympathetic. They presented him with the broken propeller from the airplane for him to mount. None of the cohort received their "wings" because of the cessation of the war. Dr Dinnen responded by noting that the Applicant nevertheless avoided contact with his colleagues.
Dr Dinnen did not accept that the Applicant's alcohol consumption over time changed simply in relation to the readiness of the availability of alcohol. In his view the increased consumption underwent a qualitative change.
Mr Godwin referred Dr Dinnen to folio 48 of the T documents where the Applicant mentioned in a statement written in June 1998 that after service he saw his pre-service friends who, themselves, had served in the forces. This might suggest that he was not all that embarrassed by the events during service. Dr Dinnen replied that he would prefer to rely on the history he had taken.
Relevant legislationThe relevant legislation in this matter is the Veterans' Entitlements Act 1986 ("the Act") ss 7(1)(c), 13(1)(b), (d), 14(1), (3), (4), 20(1), 21A, 120(4). 120B(1), (3), (4), the Statement of Principles concerning Psychoactive Substance Abuse, No 6 of 1994, the Statement of Principles concerning Generalised Anxiety Disorder, No 49 of 1994 and the Statement of Principles concerning Cervical Spondylosis, No 57 of 1998:
"7 Eligible war service
(1) Subject to subsection (2), for the purposes of this Act:
…
(c) a person who has rendered continuous full-time service (not being operational service) as a member of the Defence Force during World War 2, being service that commenced before 1~ July 1947, shall be taken to have been rendering eligible war service while the person was so rendering continuous full-time service; and
…""13 Eligibility for pension
(1) Where:
…
(b) a veteran has become incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:…
(d) in the case of the incapacity of the veteran—pension by way of compensation to the veteran;in accordance with this Act."
"14 Claim for pension
(1) Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3).
Note 1: some dependants do not have to make a claim (see section 13A).
Note 2: if it is uncertain whether a person is a dependant and as a result a pension is not payable to the person under section 13A, the person may make a claim for the pension under section 14. The Commission will determine whether the person is entitled to be granted a pension (see subsection 19 (3)).
…(3) A claim for a pension:
(a) shall be in writing and in accordance with a form approved by the Commission;
(b) shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and
(c) shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).(4)Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.
…"
"20 Date of operation of grant of claim for pension
(1) Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, approve payment of the pension from and including a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14 (3) (a) was received at an office of the Department in Australia.
…"
"21A Determination of degree of incapacity
(1) The Commission shall, subject to subsections (2) and (3), determine the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions.
(2) Subject to subsection (3), the degree of incapacity shall be determined as 10% or a multiple of 10%, but not exceeding 100%.
(3) The Commission may determine that the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, is less than 10% (including 0%), and, where it does so, it shall not assess a rate of pension, but shall refuse to grant a pension to the veteran on the ground that the extent of the incapacity of the veteran from that war-caused injury or war-caused disease, or both, is insufficient to justify the grant of a pension."
"120 Standard of proof
…(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
…"
"120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
(b) a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
Note 1: Subsection 120 (4) is relevant to these claims.
Note 2: For hazardous service and member of the Forces see subsection 5Q (1A).
…(3) In applying subsection 120 (4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:(i) a Statement of Principles determined under subsection 196B (3) or (12); or
(ii) a determination of the Commission under subsection 180A (3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B (3), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be."
Statement of Principles concerning Psychoactive Substance Abuse, No 6 of 1994
"1. Being of the view that, on the sound medical-scientific evidence available to the Repatriation Medical Authority, it is more probable than not that psychoactive substance abuse or dependence and death from psychoactive substance abuse can be related to eligible war service (other than operational service) rendered by veterans and defence service (other than hazardous service) rendered by members of the Forces, the Repatriation Medical Authority determines, under subsection 196B(3) of the Veterans' Entitlements Act 1986, that the factors that must exist before it can be said that, on the balance of probabilities, psychoactive substance abuse or dependence or death from psychoactive substance abuse or dependence is connected with the circumstances of that service, are:
(a) a severely stressful event immediately prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service; or
…
2. Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to 1(e) must be related to any service rendered by a person.
…
4. For the purposes of this Statement of Principles:
"DSM-IV" means the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders;
"ICD code" means a number assigned to a particular kind of injury or disease in the International Classification of Diseases 9th Revision, US Department of Health and Human Services, Pub. No 80-1260;
…
"psychoactive substance abuse or dependence" means a maladaptive pattern of use, attracting ICD code 303 or 304, that is indicated by either:
(a) continued use of the substance despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance; or
(b) recurrent use of the substance when use is physically hazardous (eg driving while intoxicated);
"severely stressful event" means a psychologically distressing event that is outside the range of usual human experience (that is, outside the range of common experiences such as simple bereavement, chronic illness, business losses and marital conflict). Such events could include natural disasters (for example devastating floods or earthquakes), accidental disasters (such as car accidents with resulted in serious physical injury to a person), deliberately caused disasters (such as bombing) and torture."
Appearances
The Tribunal convened a hearing in this matter in Sydney on 28 July 2000. Ms E Sadleir from the NSW Legal Aid Commission represented the Applicant. Mr Godwin from the DVA advocacy unit represented the Respondent.
Documentary material before the TribunalThe Tribunal had before it the following documentary evidence.
Exhibit TD1 – Section 37 Statement, 28 June 1999.
Exhibit A1 – Statement by A Sidaway, 21 July 1999.
Exhibit A2 – Statement by Mr G Cole, 21 July 1999.
Exhibit A3 – Report by Dr L Schmidtman, psychiatrist, 9 April 1999
Exhibit A4 – Statement by Applicant, 21 September 1999.
Exhibit A5 – Report by Professor P Sambrook, rheumatologist, 23 September 1999.
Exhibit A6 – Report by Dr A Dinnen, psychiatrist, 21 October 1999.
Exhibit A7 – Report by Dr M G Miller, physician, 27 October 1999.
Exhibit A8 – Report by Professor P Sambrook, rheumatologist, 27 July 2000.
Exhibit A9 – Report by Dr A Dinnen, psychiatrist, 27 July 2000.
Exhibit A10 – Applicant's amended statement of facts and contentions, 27 July 2000.
Exhibit A11 – Applicant's closing submissions, 31 October 2000.
Exhibit R1 – Report by Dr G Hession, 2 December 1999.
Exhibit R2 – Report by Dr N Schultz, psychiatrist, 8 February 2000.
Exhibit R3 – Report by Dr N Schultz, psychiatrist, 26 July 2000.
Exhibit R4 – Respondent's statement of facts and contentions, 28 July 2000.
Exhibit R5 – Respondent's closing submissions, 31 October 2000.
Applicant's evidence
Ms Sadleir commenced on the Applicant's behalf by informing the Tribunal that the Applicant was not proceeding at this stage with the appeals on the orthopaedic conditions, ie lumbar spondylosis, cervical spondylosis and osteoarthritis. This was because of the recent Federal Court decision in Harris v Repatriation Commission [2000] FCA 873 which had been decided on 4 July 2000 and was on appeal to the full court.
The Applicant is not pressing his claim in respect of varicose veins (Exhibits A10, A11).
The parties had agreed that they would submit that the conditions of gout, hypertension and impotence should be accepted disabilities if the Applicant's alcohol abuse is accepted as war-related. SoP 6 of 1994 concerning psychoactive substance abuse or dependence is the relevant SoP.
Other relevant SoPs are SoP 65 of 1998 concerning hypertension, 89 of 1997 concerning gout and 98 of 1996 concerning impotence.
The central issue was whether factor 1(a) of SoP 6 of 1994 has been satisfied, ie that the Applicant suffered "a severely stressful event immediately prior to the clinical onset of psychoactive substance abuse or dependence, and [that he] maintain[ed] the abuse or dependence post-service".
In oral evidence the Applicant said he first started drinking alcohol in January 1944 as a trainee in the RAAF. His family had been teetotal. He had worked for the NRMA as a clerk in the repair depot before enlisting at age 18. He would drink on Friday afternoon after work as a regular weekly activity. He would have two or three schooners of beer a night. He had beer occasionally on other weeknights.
He was sent to Narrandera to learn how to fly. This took 60 hours of flying time. He was there for "quite a while". He wanted to be a bomber pilot. He drank less at Narrandera than in Sydney. He was confined to base. He had four or five drinks on one day a week. There was no binge drinking. Drinking helped to release tensions.
He was sent to pick grapes at one stage. He was then posted to Tocumwal where he was a storeman. He was still in the air crew.
He then moved to Benalla in Victoria. He was put into a refresher course. His drinking pattern changed at Benalla following the airplane crash.
The Applicant described the airplane crash. He had flown close to 100 hours. This was a routine flight. The conditions were perfect. A strong wind arose after 90 or more minutes of flying. Flying was suspended. There was a dust storm. The Applicant landed. The airplane veered to the left and tipped over. The petrol tank was beneath the Applicant but there was no explosion or fire. The Applicant was in fear of an explosion. He pulled the release cord and fell three or four feet on his head and neck. He recalls seeing no doctor. He was dazed and in shock. He was concerned that he would have to cease flying. A flagon of wine and some beer were produced at the time for the Applicant. He recalls drinking too much red wine. It cut the pain. He was also concerned about having to face a "scrub test" the next day which could end his flying career. He passed the scrub test despite some rough landings.
He forced himself to fly again for the remaining weeks of the course. He became nervous and worried. Flying became "hard work".
He drank on from then. Repeatedly in his evidence the Applicant located the start of his drinking problem at the time of the accident and the final party at Benalla.
Postings were then released. The Applicant was selected to go to Richmond, NSW. There was a party at the end of the course. This was when he had his first real binge drink. He vomited from drinking for the first time.
At Richmond the Applicant drank more heavily because drink was more readily available in nearby hotels. He commuted between Bondi and Richmond sometimes. He explained that he drank in order to relax. He remained at Richmond for three or four months. He left the RAAF to return to the NRMA. He drank when he returned to his home. His father did not condone the drinking but accepted that the Applicant could make up his own mind at age 19 ½.
In cross-examination the Applicant described flying a Tiger Moth. They bounce around a bit. They are controlled with a joystick. They bounce upon landing. They fly at a speed of 80 to 90 mph and land at 40 to 45 mph.
Mr Hawkins said that his colleagues were sympathetic and supportive after the airplane accident.
Mr Godwin for the Respondent referred to some discrepancies in the documents.
In T5 at folio 48 (written in 1998) the Applicant refers to binge drinking on weekends in town at Narrandera. He had told Ms Sadleir that he had not binged until after the airplane crash at Benalla. There is no mention of the airplane crash in this statement, which covers the entire period of the Applicant's service and his post-service life.
In Exhibit A4 the Applicant again refers to binge drinking at Narrandera.
The Applicant was unable to explain why he binge drank on the night of the airplane accident when he was concerned about the scrub test due on the next day.
The Applicant makes a great deal of the guilt he felt at the accident in his statement in Exhibit A4. He explained to Mr Godwin that others were able to land safely in the adverse conditions.
Mr Hawkins told Mr Godwin that he had been competent in his job at the NRMA after service. He was also able to operate successfully in social environments.
He first saw his drinking as a problem at Richmond. His drinking did not cause Mr Hawkins problems at work. He had no hangovers. He found drink a problem if playing sport socially. He has been engaged in amateur sport in cricket and later in hockey as a manager/coach.
His marriage problems stemmed from his alcohol consumption. These problems began soon after he left the RAAF.
In final submissions provided in writing (Exhibit A11) Ms Sadleir made the following main arguments.
The Applicant was content that his claim in respect of PTSD should be treated as a claim in respect of alcohol dependence and abuse. Drs Dinnen and Schultz diagnosed this latter condition as his appropriate condition.
The Applicant satisfies SoP 6 of 1994. He satisfies factor 1(a) in that he suffered a severely stressful event immediately prior to the clinical onset of psychoactive substance abuse or dependence and he maintained the abuse or dependence after service. Ms Sadleir cited Re Witten and Repatriation Commission (1998) 54 ALD 605 as authority concerning the meaning of clinical onset. At paragraph 19 (page 608) Mrs Hallowes, Senior Member, said, "'clinical onset' means the onset of symptoms which a medical practitioner would diagnose as attributable to the relevant condition". Mrs Hallowes proceeded to say:
"A disorder may not, in fact, have been diagnosed during the relevant period, in this application, within 30 days following trauma with respect to rotator cuff syndrome, but, with the benefit of hindsight and taking into account symptoms described by a veteran, it would need to be possible for a medical practitioner to express the opinion that the described symptoms established the clinical onset of the disorder during the relevant period."
The Applicant suggested in evidence that his increase in drinking immediately followed the Tiger Moth incident. However Dr Dinnen said that it commenced in earnest about eighteen months after discharge from service when associated symptoms of sleep disturbance, weight gain and relationship problems began.
Ms Sadleir conceded that the clinical onset was some time after the suggested severely stressful event, the Tiger Moth incident, but submitted that, in the context of a person with a long term problem of 50 years of alcohol dependence, a stress event six months prior to the development of symptoms can be seen as having occurred "immediately" prior to the clinical onset, as is required by the SoP. She quoted Drs Dinnen and Schultz who said in evidence that alcohol dependence or abuse or long term drinking problems develop over time as a result of how the person deals with life experiences and lifestyle.
Ms Sadleir argued that the Tiger Moth incident was a severely stressful event. The definition in the SoP (paragraph 4) refers to a psychologically distressing event. Reference to "psychologically" implies the subjective experience. The event must be unusual and, in the experience of the Applicant, psychologically distressing. She argues that the examples in the SoP all involve some threat of death or serious injury. Ms Sadleir cited the Federal Court decision, Repatriation Commission v Binding [1999] FCA 974, in which Marshall J considered a somewhat similar requirement in a SoP on PTSD. Ms Sadleir put to the Tribunal that Marshall J approved the statement made by the Tribunal in that case that an event had occurred where the veteran had experienced rather than witnessed or being confronted with threatened death or serious injury. No actual death or serious injury occurred. The veteran was below deck and the Tribunal accepted that he perceived a threat to his personal integrity.
The Tribunal notes that this proposition may have been undermined by the recent Federal Court decision in Budworth v Repatriation Commission [2001] FCA 317 in which the Court approved the approach of the AAT in that case where the AAT held that it was necessary, in a PTSD claim being assessed by reference to DSM-IV, that there be an "intense fear" which required "a high level of reaction" (paragraph 60).
Ms Sadleir wrote:
"The Applicant was involved in a plane crash. He flipped the plane on landing and landed upside down, strapped in the cockpit, underneath the petrol tank thinking that the plane might explode at any minute. In actual fact the plane did not explode and the Applicant escaped from the crash with only minor injuries. However his evidence given to the Tribunal was that he thought he was going to die. It is therefore submitted that this event does represent a threat of death or serious injury, and as such fits within that class of events that can be classified, for the purposes of SoP No: 6/1994 as a severely stressful event. … The Applicant … thought he was going to die, he was embarrassed about the accident and he felt guilty for causing it. As a result he started to drink and developed a drinking pattern that became the condition of alcohol dependence or abuse. On the Applicant's own evidence he found this accident psychologically distressing." (paragraphs 7.7 – 7.8)
Respondent's position
The Respondent's final submissions (Exhibit R5) made the following points.
The Respondent agrees that the accurate diagnosis is alcohol abuse rather than PTSD.
The Respondent quoted from the transcript as regards the nature of the Tiger Moth incident. Mr Godwin submitted:
"From the Applicant's written and oral evidence the tiger moth landed 'in a very very strong wind' (P-13 Line 28) and 'if the wind was 50 miles an hour you could almost land at nothing' (P-19 Line 22). 'The aeroplane was actually drifting to the left … the plane tipped on its left wing and just flipped over and I was upside down' (P-13 Lines 38, 38).
"This was not clarified with the Applicant but the impression that I get is that the plane landed in a strong cross wind, at a very slow speed in relation to the ground, and was flipped over sideways. The main point is that this was not a crash in the usual sense of the word. It was a flipping over by the wind, at low (if any) speed. The fact that the plane was repairable (P-30 Line 1) is consistent with this."
Mr Godwin then addressed the SoP requirements. He considered the requirement for a severely stressful event. He said that the examples given in paragraph 4 of the SoP are "of extreme events". The example of the car accident is of a car accident with serious consequences, "an awful and terrifying accident". "The Applicant's accident in the tiger moth is not in the same category as the examples."
Mr Godwin noted that Dr Dinnen referred to "the patient's minor accident" in his report (Exhibit A6, page 5). He agreed in evidence that the accident "as a factual event" does not meet the definition. It was the "specific emotional significance that took it into that range " (P-40 Lines 24-26).
Mr Godwin examined the Applicant's admitted responses to the incident. He said that he feared for his life because the petrol tank might explode. He had feelings of guilt because he had damaged the plane. He feared being scrubbed from the flying course. Dr Miller recorded (Exhibit A7, page 1) that the Applicant was very scared because of the danger of fire. Dr Dinnen understood that the Applicant had fears because petrol was dripping onto him (P-32 Line 37), however in oral evidence he accepted that this must be incorrect because of other evidence that the petrol tank was below the Applicant (P-34 Line 39ff). This erroneous understanding apparently influenced Dr Dinnen in his opinion.
Mr Godwin quotes Dr Dinnen as saying, "psychiatrists … are burdened with having to make assumptions about mental processes, and to bolster that by historical evidence … I say never let the facts get in the way of a good argument" (P-42 Line 36ff). He goes on to say that both Drs Miller and Dinnen overstate the Applicant's response to the fear of fire or explosion. "They might be seen as bolstering their assumptions with non existent history." Mr Godwin concedes that a fear of fire or explosion might arise in anyone in an accident where there is a fuelled engine. That does not make the event severely stressful.
Mr Godwin pointed to indicators that the event could not have been as stressful as claimed. The Applicant flew again the next day. Dr Schultz gave evidence that the Applicant's fear of being scrubbed was greater than his fear of flying on the next day (P-52 Lines 37-40). He did not see the accident as particularly stressful to Mr Hawkins as "somebody who is 18 and desperate to drop bombs on Japan or Germany, it's probably more akin to the young person driving a racing car who's had a bit of a stack. You wouldn't expect it to be a particularly stressful event" (P-50 Line 14).
Mr Godwin addressed the Applicant's stated feelings of guilt about damaging the airplane. The Applicant, Mr Godwin said, confirmed that no one blamed him for the accident. The Applicant's colleagues presented him with a cut down airscrew as a memento. In Exhibit A4 (21 September 1999) the Applicant said he had intended to have it mounted. It was submitted that a high level of ongoing guilt is inconsistent in these circumstances. Mr Godwin noted that Dr Richardson's report (T8) makes no mention of guilt.
Mr Godwin further impugned Dr Dinnen's evidence. He said that the Applicant "avoided contact with air force colleagues for many many years no doubt because he would be seen as the one who didn't get his wings" (P-41 Line 30). This was not consistent with the Applicant's account that he was "one of the boys" and nothing changing with his pre-service friends back from duty (P-43 Line 36).
Mr Godwin referred to Dr Richardson's report (T8) where he wrote, "He does not have to avoid memories of the war, and in the last year or two he has been attending reunions".
Mr Godwin addressed when alcohol abuse had its clinical onset. The Applicant's oral evidence (P-47 Line 14ff) indicated that the Applicant's alcohol histories as given to doctors had been overstated. This led Dr Dinnen to find that his alcohol abuse clinically worsened during service. Dr Schultz had looked for evidence of when the Applicant's drinking settled into a pattern of daily excessive drinking occurring for an extended period of time, not for only a week or two, and not confined to binges (P-56 Line 20). That is the type of drinking required for alcohol abuse.
The Applicant's evidence included: (i) drinking episodes during service were not real binges: (ii) binges came a lot later (P-24 Line 29); (iii) at Narrandera there could be a quiet Saturday in town with "a few beers" (P-16 Line 15); (iv) after the Tiger Moth incident friends produced a flagon of wine and some beers; (v) a few weeks later, at the closing party at the training school everyone drank more than usual and the Applicant vomited; and (vi) at Richmond the Applicant drank more because of availability. He said "we didn't drink heavily … we couldn't afford to … I don't think they'd be very happy if a busload of drunken airmen flying next morning got out of it (P-13 Line 11). He said they certainly let off steam on weekends with two, three or four beers. A binge to them was three, four or five beers. (Transcript P-22 Line 16; P-23 Line 7)
Mr Godwin quoted Dr Schultz as saying that the Applicant's pattern of drinking during service "wouldn't be regarded as being unusual or abnormal" (P-48 Line 30).
The Applicant appears not to have drunk heavily on the day of the accident. He flew the next day and he passed the scrub test.
Mr Godwin again relied on Dr Schultz's evidence. Dr Schultz described an abnormal level of drinking as a level regarded as likely to damage one's health and "when there may be the threat of or actual social and personal consequences of drinking, for example, losing jobs, relationship problems and so forth" (P-48 Line 31). This is consistent with paragraph 4 of the SoP which requires "a maladaptive pattern of use". Mr Godwin attached extracts from DSM-IV relating to substance abuse. These require substantial problems that recur within the same 12 months period. This did not occur with the Applicant during service. Mr Godwin noted that, post-service, the Applicant worked well at the NRMA. He continued to play hockey until age 35 and continued as a hockey club selector and manager. "The first evidence of any social dysfunction which might have been alcohol related was with his wife soon after their marriage in 1948-50 (P-26 Line 11, P-27 Line 7)."
Referring to the requirements in the definition of "psychoactive substance abuse or dependence" in paragraph 4 of the SoP Mr Godwin submitted that there is no evidence of persistent or recurrent problems of the kinds mentioned in paragraph (a) during service or until some years after service. There is no evidence of the hazardous behaviours described in paragraph (b).
Mr Godwin concluded by submitting that the aircraft accident does not meet the requirements of the SoP definition of a "severely stressful event" at the objective level in the SoP or at the subjective level argued for. The psychiatric condition of psychoactive substance abuse or dependence developed post-service and some years after the aircraft accident. The clinical onset of psychoactive substance abuse or dependence did not immediately follow the accident and there was no maintaining of the condition post-service because it had no service onset. The Applicant's alcohol abuse does not meet the requirements of the SoP and is not war-caused.
Findings on material questions of fact with reference to evidence and other material in supportThe Tribunal has framed these reasons without the benefit of access to the transcript.
The Tribunal finds that the Applicant engaged in eligible service in the RAAF under s 7(1)(c) of the Act between the dates 1 January 1944 and 25 July 1945 (T3).
The Tribunal finds that during eligible service the Applicant experienced an accident landing a Tiger Moth aircraft at Benalla in late 1944 or early 1945 (T4, folio 45).
The Tribunal finds that the Applicant sustained only minor injuries (bruised hip, shock) at the time and that he flew the next day, surviving a scrub test (T4, folio 45).
The Tribunal finds that on 19 June 1998 the Applicant lodged under s 14(3) of the Act a valid claim for a number of conditions said to be war-caused (T4). The conditions included in that claim that are pressed in this application are psychoactive substance abuse or dependence, hypertension, gout and impotence (Exhibit A11).
The Tribunal finds that this, being a case involving "eligible" rather than "operational" service, is a case where the Tribunal must reach a state of reasonable satisfaction that the conditions are war-caused if the Applicant is to succeed in his appeal (s 120(4) of the Act).
The Tribunal notes that the Applicant and the Respondent agree that, if the Tribunal finds in favour of the Applicant regarding his condition of psychoactive substance abuse or dependence, the other claimed conditions will also be war-caused (Exhibits A11, R5). The Tribunal would simply observe that, while this may be so, it remains a matter for the Tribunal to be independently convinced that such is the case.
The prime issue in resolution of this appeal is whether the Tribunal can reach a state of reasonable satisfaction that the Applicant's psychoactive substance abuse or dependence is war-caused.
The Tribunal finds in this respect that the correct diagnosis of the Applicant's disability is psychoactive substance abuse or dependence. The parties agree on this (Exhibits A11, R5) relying on the diagnoses of Drs Dinnen and Schultz. The major piece of evidence before the Tribunal to suggest that the Applicant has PTSD, the condition in respect of which he originally claimed, is Dr Schmidtman's report of 9 April 1999 (Exhibit A3). The Tribunal has decided that it prefers the reports of Drs Dinnen, Schultz, Miller (Exhibit A7) and Richardson (T8) on this point. In the Tribunal's view, Dr Schmidtman's history is inaccurate in that he describes the Tiger Moth accident in terms far more graphic than reality would suggest is justified. It is incumbent on the Tribunal to make its own decision as to the appropriate diagnosis unfettered by the Applicant's own diagnosis of the condition (Budworth (supra)).
The Tribunal notes that it must reach reasonable satisfaction that the Applicant's condition meets the requirements of SoP 6 of 1994 (s 120B of the Act). Paragraph 4 of that SoP defines "psychoactive substance abuse or dependence" as meaning continued use of the substance (here alcohol) despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance. Alternatively, the SoP allows that it may mean recurrent use of the substance when use is physically hazardous (eg driving while intoxicated).
The Tribunal is satisfied that the Applicant's condition is consistent with this definition. The Tribunal finds, in particular, that his alcohol consumption has adversely affected his social relationships, notably family relationships. It has also apparently wrought adverse physical effects such as hypertension and impotence. The Tribunal notes the lay evidence of Messrs Sidaway and Cole (Exhibits A1 and A2) who describe the adverse effects of Mr Hawkins' drinking on his relationships with family and friends.
Considering SoP 6 of 1994 a number of factors have to be satisfied. These factors are:
There must have been a severely stressful event (paragraph 1(a)) as defined in paragraph 4.
The severely stressful event must have occurred immediately prior to the clinical onset of psychoactive substance abuse or dependence (paragraph 1(a)).
The psychoactive substance abuse or dependence must have been maintained post-service (paragraph 1(a)).
The stressful event must be related to any service rendered by the Applicant (paragraph 2).
There must have been a severely stressful event (paragraph 1(a)) as defined in paragraph 4.
The Applicant contends that the Tiger Moth accident was a severely stressful event. Ms Sadleir argued strenuously that the definition in SoP paragraph 4 permits account to be taken of the subjective impact of the event on an a victim. Ms Sadleir said this event was outside the ordinary run of events such as a bereavement or marital conflict and that the Applicant considered himself at risk of death or serious injury when the accident happened. He feared that the plane might explode and he was strapped into it. He also harboured feelings of guilt and embarrassment.
In reply Mr Godwin pointed out that the Tiger Moth accident was not to be equated to the examples in the SoP definition (devastating floods or earthquakes, car accident with serious physical injury to a person, bombing, torture). He put to the Tribunal that the Tiger Moth incident was not a crash in the usual sense of the word. It was a flipping over of the plane by the wind at low (if any) speed. The aircraft was repairable.
The Tribunal finds that it is not reasonably satisfied that the requirement for a severely stressful event has been demonstrated in this case. Essentially the Tribunal adopts the arguments put by Mr Godwin. The accident was reasonably sedate as aircraft accidents go. The Applicant's injuries were apparently minor. The Applicant sought much assistance from Dr Dinnen's evidence but, as Mr Godwin's submissions demonstrate, Dr Dinnen's evidence indicated a misunderstanding of a number of factual aspects of the incident, for example, the petrol was not dripping onto the Applicant. The Tribunal notes that, even if the Applicant feared an explosion, he was readily able to release his harness and escape from the airplane. The Tribunal notes also that the damage to the craft appears to have been minor and that the Applicant flew the next day passing a scrub test.
While that in large part disposes of this case, the Tribunal should comment in relation to the other issues.
The severely stressful event must have occurred immediately prior to the clinical onset of psychoactive substance abuse or dependence (paragraph 1(a)).The Tribunal noted with interest Ms Sadleir's ingenious argument that the onset of Mr Hawkins' psychoactive substance abuse or dependence should be regarded as having occurred immediately after the stressful event. The Tribunal finds largely from the Applicant's own evidence that the clinical onset of his psychoactive substance abuse or dependence was in about 1948. This is at least three years after the Tiger Moth accident. Again, the Tribunal accepts in large part the submissions put by Mr Godwin.
The Applicant's evidence, cited by Mr Godwin, was that drinking episodes during service were not real binges. Binges came a lot later. At Narrandera there were quiet Saturdays in town with a few beers. At Benalla the only evidence of drinking was when his friends produced a flagon of wine and some beers after the accident. A few weeks later at the closing party everyone drank more than usual. The Applicant made himself sick. Later, at Richmond, the Applicant drank more because of ready availability of alcohol. The Applicant said that in service they did not drink heavily. They could not afford to do so. They would let off steam on weekends with at most about four beers with a binge being up to five beers. The first evidence of any problems of the sort mentioned in the definition of psychoactive substance abuse or dependence in the SoP was a reference to marital problems attributed to alcohol consumption in 1948 to 1950.
The Tribunal accepts Ms Sadleir's submission that the onset of psychoactive substance abuse or dependence can be regarded as immediate even where it occurs over a period of gradually increased alcohol consumption. However, in this case, the Tribunal considers the period to have been too long to qualify as immediate.
The psychoactive substance abuse or dependence must have been maintained post-service (paragraph 1(a)).The Tribunal would have had no difficulty finding this factor satisfied had it found the clinical onset to have occurred immediately after a severely stressful event. However, the Tribunal has not found that there was a severely stressful event and has not found that the psychoactive substance abuse or dependence had its clinical onset immediately after the relevant event.
The stressful event must be related to any service rendered by the Applicant (paragraph 2).The Tiger Moth accident occurred as part and parcel of eligible service. Had the other requirements been met the Tribunal would have found in the Applicant's favour in respect of this factor.
ConclusionThe Tribunal has reached the conclusion that the Applicant does not qualify for a Disability Pension in respect of his condition of psychoactive substance abuse or dependence. This means that he cannot qualify for a pension in respect of hypertension, gout or impotence, each of which required a positive finding in relation to psychoactive substance abuse or dependence before there could be a similar finding in relation to it. The Tribunal has no option other than to affirm the primary decision as it relates to lumbar spondylosis, osteoarthritis right shoulder, osteoarthritis right knee, cervical spondylosis, varicose veins both legs, depressive disorder and trait anxiety and alcohol dependence because the Applicant did not press these conditions before the Tribunal.
DecisionThe decision under review is affirmed.
I certify that the 130 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member.
Signed: .....................................................................................
AssociateDate of Hearing 28 July 2000
Date of Decision 21 June 2001
Solicitor for the Applicant Ms E SadleirAdvocate for the Respondent Mr P Godwin
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