Hawthorn and Military Rehabilitation Compensation Commission

[2008] AATA 634

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 634

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/0459

VETERANS’      AFFAIRS        DIVISION		)
Re		SHANE HAWTHORN

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Miss EA Shanahan

Date21 July 2008

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) EA Shanahan
  Member

COMPENSATION – military service – psychiatric disorder – schizophrenia – applicant claims post traumatic stress disorder – decision affirmed

Commonwealth Safety, Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

21 July 2008 Miss EA Shanahan

1.      Mr Hawthorn served in the Australian Regular Army (ARA) from 4 July 1990 to 8 August 1994.  He was discharged from the service following several disciplinary offences.  He has since made annual applications for re-enlistment.  On 14 January 2006 he lodged a claim for compensation with the Military Rehabilitation and Compensation Commission (MRCC), on the basis that his diagnosed chronic schizophrenia was service-caused or related.  The MRCC denied the claim on 2 May 2006. Mr Hawthorn sought review of the decision.  The MRCC reconsidered the decision and affirmed it on 16 January 2007 (the reviewable decision).  Mr Hawthorn then applied to the Administrative Appeals Tribunal for a review of the decision.

2. Mr Hawthorn was self represented. Ms A McMahon of counsel, instructed by Sparke Helmore solicitors, appeared for the Respondent. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents).  The parties tendered the following documents.

For the Respondent:

·T-Documents – Exhibit R1

·The clinical notes regarding Mr Hawthorn and compiled by Dr Shing  - Exhibit R2

·Reports of the Mental Health Review Board – Exhibit R3

·Extracts of medical records from the Maroondah Hospital – Exhibit R4

·Extracts from the Maroondah Medical Centre relating to psychiatric reports – Exhibit R5

The Applicant did not tender any documents but relied on letters he had written to the Tribunal and other bodies regarding his claim. 

3.      Mr Hawthorn gave evidence before the Tribunal.  The hearing of the matter was conducted on 25 September 2007 and Mr Hawthorn’s evidence was completed on that day.  He challenged the diagnosis of schizophrenia, claiming he suffered from post traumatic stress disorder (PTSD) resulting from traumatic events he experienced while overseas on special service during July and August 1994.  While detailed psychiatric reports and clinical notes were before the Tribunal, Mr Hawthorn had been treated in the public hospital system. As, his treating psychiatrists, psychologists, duty nurses and case managers changed every six months or so, no overall clinical picture regarding prognosis or opinion, with respect to his claim that his psychiatric condition was causally related to his army service, had been considered let alone provided to the Tribunal.

4.      The Tribunal determined that an independent psychiatric opinion should be obtained addressing both the diagnosis and causation.  Mr Hawthorn was reluctant to see a psychiatrist but agreed to an assessment on the papers by a psychiatrist.  Professor Graham Burrows was nominated to perform this assessment on the Respondent’s recommendation and his report was received by the Tribunal on 28 April 2008. 

Mr Hawthorn’s Evidence

5.      Mr Hawthorn had completed an apprenticeship as a plumber in 1990 but was unemployed when he enlisted in the ARA. At the time of enlistment, he had charges pending for being drunk and disorderly.  His psychological assessment on enlistment was satisfactory.  During this interview he expressed the desire to learn a new trade.  He underwent training in driving, servicing vehicles and radio.  He became a driver; predominately of armoured personnel carriers.  His rank was that of Trooper.  His service history revealed numerous disciplinary offences and he agreed that these were correct.  In the 1990s he committed six offences; two offences each in 1991, 1993 and 1994. The two offences in 1994 led to his discharge.  On 21 March 1991 he injured his left ankle and received a Department of Veterans’ Affairs pension at 20 per cent of the general disability rate for this injury.  On 14 January 1993 he suffered a fractured left jaw in a fight at a nightclub.  His claim for this injury was denied as it occurred off-base and in his own time. 

6.      On 30 May 1994 he was charged with using cannabis and the theft of army property (weapons).  He was found guilty, fined $469.00, detained for 14 days and discharged on 8 August 1994.  He believes these charges were unfounded and he was framed.

7.      Mr Hawthorn denied that he was discharged.  He said that in early July 1994 he was transported by helicopter from the base in Darwin to Indonesia.  Following this he underwent training, learned to fly, was seconded to the United States National Aeronautics and Space Administration (NASA)  and undertook repairs of two space satellites in orbit; captured Saddam Hussein in 1994, fought in Kosovo and Iraq; was involved in the Blackhawk helicopter crash (that occurred he says in 1994 not as reported in 1996) that killed several Special Air Service soldiers; was involved in protecting Princess Diana before her death in Paris; rescued the hostage Douglas Woods from Iraq; was involved in United Nations Peacekeeping Forces in eight different countries and many more similar exploits.  He says he achieved the rank of Flight Lieutenant Colonel in the Royal Air Force (NATO).  Mr Hawthorn says his efforts to obtain his service records from the United Kingdom, the United States Marines, NATO and NASA and the United Nations have been unsuccessful.  He says his service is still subject to the Secrecy Act.  He believes he is under surveillance and has had transistors or microchips implanted in his body.

8.      Following his discharge from the ARA Mr Hawthorn worked predominantly part time in a variety of jobs.  These included work as a plumber and gasfitter, tree removalist, security guard, timber stacker and a labourer until January 2007. 

9.      Mr Hawthorn says that in 1999 he told his parents of his service experiences as outlined above and they thought him nutty.  In May 1999 his brother-in-law took him to the Maroondah Hospital were he was psychiatrically assessed and treatment commenced.  After a period as an inpatient he was placed on a Community Treatment Order (CTO) and this has continued except for a short period in 2005. 

Documentary Evidence

10.     The medical and service records confirmed his illnesses and injuries and the multiple disciplinary offences.  In 1998 he was medically assessed, having again applied to re-enlist.  The examining doctor noted and recorded Mr Hawthorn’s abnormal psychiatric state and suicidal ideation.

11.     The medical records provided to the Tribunal document Mr Hawthorn’s attendance at the Murnong Community Mental Health Centre, his admissions to hospital, his visits to his general practitioner Dr Shing, the CTO and his appeals against these CTO’s to the Mental Health Review Board (the Board).  The diagnosis reached by the Murnong Community Mental Health Centre was chronic paranoid schizophrenia with a poor response to treatment, in that Mr Hawthorn’s delusions were unchanged.  Rapport between Mr Hawthorn and the staff at the Mental Health Centre had become strained following his failed appeals to the Board.  The CTO’s were considered necessary as Mr Hawthorn had not complied with voluntary undertakings to take his medication and as a result acute symptomatic deterioration had occurred.  This deterioration was characterised by aggressive behaviour toward others and it was believed by the treating psychiatric staff that he had injured himself in attempting to remove foreign objects from his gastro-intestinal tract.  This had resulted in bleeding which had been intensively investigated, with no cause found.  A blood transfusion was required when his haemoglobin fell to 7.3 grams per litre. 

12.     In 2005 Mr Hawthorn requested referrals to two psychiatrists for second opinions.  These confirmed the diagnosis and recommended that he should remain on CTO’s.

13.     Mr Hawthorn has detailed his service experiences in July and August 1994 in various letters and also provided copies of replies he had received from the Department of the Navy and the United States Marine Corps.  These replies are essentially an acknowledgement of receipt of his request.

14.     Despite the considerable volume of clinical records there was no psychiatric opinion addressing the question of the alternative diagnosis of PTSD or a causal relationship between Mr Hawthorn’s diagnosis of schizophrenia and his army service.

15.     Professor Graham Burrows assessed all the documentary evidence before the Tribunal and was provided with the transcript of the hearing of 25 September 2007, that is Mr Hawthorn’s evidence.  He concluded that Mr Hawthorn suffers from schizophrenia and this is unrelated to his defence service.  Professor Burrows said: Schizophrenia is now considered to be a biological and genetically predetermined disease.

Legislation

16.     In view of the evidence the relevant legislation providing compensation for service related diseases is not considered here in detail.

17.     It was not clear exactly what compensation, if any, Mr Hawthorn was seeking. When that  question was posed to him, he said his aim was to obtain his service records from the Royal Australian Navy, the Royal Australia Air force, the United Nations and the United State Marines. 

Tribunal’s Deliberations

18.     Based on all the evidence before it, the Tribunal finds that Mr Hawthorn’s psychiatric disorder/disease is not caused by his ARA service.  The decision under review is affirmed.

I certify that the eighteen (18) preceding paragraphs are a true copy of the reasons for the decision herein of
Miss EA Shanahan

Signed:         Dianne Eva
  Clerk

Date of Hearing  25 September 2007
Date of Decision  21 July 2008
Self Represented  Mr Shane Hawthorn
Counsel for the Respondent     Ms Ann McMahon
Solicitor for the Respondent     Ms Lydia Demetrios, Sparke Helmore