Higgs and Repatriation Commission
[2007] AATA 1538
•11 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1538
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/51
VETERANS' APPEALS DIVISION ) Re ROBERT LESLIE HIGGS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member PJ McDermott, RFD
Dr G J Maynard, MemberDate11 July 2007
PlaceBrisbane
Decision We set aside the decision under review and substitute a decision that Mr Higgs has generalised anxiety disorder as well as alcohol dependence with effect from 22 September 2004. We remit the matter of assessment of pension to the Repatriation Commission.
.................[Sgd].............................
Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – operational service – whether anxiety disorder, post traumatic stress disorder and alcohol dependence are war-caused – consideration of Statements of Principles – decision under review set aside.
Veterans’ Entitlements Act 1986 (Cth) ss 6, 9, 13, 120, 120A, 196A, 196B
Repatriation Commission v Cooke (1998) 52 ALD 1
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Deledio (1998) 83 FCR 82
Stoddart v Repatriation Commission (2003) 197 ALR 283REASONS FOR DECISION
11 July 2007 Senior Member PJ McDermott, RFD
Dr G J Maynard, Member
Introduction
1. Mr Robert Higgs was engaged in operational service with the Australian Army in Vietnam. We have to decide whether he has war-caused conditions of alcohol dependence, generalised anxiety disorder (GAD) or post traumatic stress disorder.
Decisions
2. On 29 March 2005 the Repatriation Commission (the Commission) made a decision that generalised anxiety disorder was not war-caused, and assessed pension at 80% of the general rate.
3. Mr Higgs sought a review of this decision from the Veterans’ Review Board. On 16 December 2005 the Veterans’ Review Board affirmed the decision with respect to generalised anxiety disorder and assessed pension as being payable at 90% of the general rate.
4. Mr Higgs has now applied to this Tribunal to review the decision of the Veterans’ Review Board.
Issues before the Tribunal
5. This application raises the issues of whether the applicant has the conditions of alcohol dependence, generalised anxiety disorder or post traumatic stress disorder and, if so, whether the conditions are war-caused conditions for the purposes of s 9 of the Veterans’ Entitlements Act 1986 (the Act).
Date of Effect
6. If Mr Higgs is successful in his application, the earliest date of effect is 22 September 2004.
Background
7. Mr Higgs served in the Australian Army from 30 September 1969 to 29 September 1971.
8. Mr Higgs has operational service in Vietnam from 5 February 1971 to 2 September 1971.
9. Mr Higgs asserts in these proceedings that certain stressful events occurred during his operational service, and caused the conditions on which his claim is based.
10. Mr Higgs has referred to the following stressful events:-
(a) Helicopter crash
(b) Dead Vietnamese person in Vung Tau;
(c) Death of brother in Australia
(d) Death of Lt Mathers
(e) Visit to Vung Tau hospital
(f) Misfire of M60 machine gun
(a) Helicopter crash
11. Mr Higgs has referred to a helicopter crash. In his statement of 21 June 2006, he stated:
“An Iroquois helicopter was hit by enemy ground fire and was brought down outside the wire at the fire support base. An officer was killed by this fire. I understand the round entered the under body of the chopper and hit the officer in the head causing his death. Brains and body fluids were evident in the chopper and troops who had ventured close were taking photos of both the exterior and interior of the chopper. These were quite graphic. I can recall not going through the wire however the chopper was in full view and so was the body and the other remains. These photos were widely distributed throughout the base and pictured human brains, blood and body pieces” [ex. A2].
12. At the hearing Mr Higgs stated that he did not get within 20 metres of the helicopter.
(b) Dead Vietnamese person in Vung Tau
13. Mr Higgs has referred to an incident in Vung Tau. In his statement of 21 June 2006, he stated:
“In the instance I witnessed, Vietnamese were involved in a fight with Americans which ended in one Vietnamese being killed and while the body was on the ground being kicked was also being pissed on. The crowd quickly dispersed prior to the arrival of the “White Mice” (police). I still have recollections of this incident and the brutality shown by the Americans”.
14. In cross-examination Mr Higgs gave no real explanation of why he watched the beating of the Vietnamese person for 10 minutes. He mentioned his lack of respect for Vietnamese.
(c) Death of brother in Australia
15. Mr Higgs stated that whilst he was in Vietnam his brother was killed in a road accident in Roma in July 1971. He was deeply affected by that death. He gave an account of his insubordinate behaviour to a warrant officer because he was not allowed to return to Australia for his brother’s funeral. He was “locked up” for the night and officially charged. He recalls being locked up in a steel shipping container for the night. On his evidence the applicant was advised of his brother’s death in a most inappropriate manner.
(d) Death of Lt Mathers
16. Mr Higgs stated that he was at Fire Support Base (FSB) Pamela when Lt Mathers was killed. He had been involved on the radio during the fatal incident and was present during the funeral. Mr Higgs was reported to have cried at the funeral of Lt Mathers.
(e) Visit to Vung Tau hospital
17. Mr Higgs had visited the hospital in Vung Tau to see some friends. The patients had been severely wounded in an incident when their armoured personnel carrier was attacked with a rocket propelled grenade (RPG).
(f) Misfire of M60 machine gun
18. Mr Higgs stated that he had been close to the trajectory when an M60 machine gun had been fired accidentally at FSB Beth. He remarked: “I recall an unauthorised discharge of a M60 at FSB Beth and men ducking for cover, I was one” [ex. A1, p4].
Medical Evidence
19. Dr Ashim Majumdar, a consultant psychiatrist, provided a report which was admitted into evidence: report dated 22 September 2002 [ex A, T4, fols. 21-25]. Dr Majumdar then concluded that Mr Higgs has generalised anxiety disorder which has occurred as a result of his experience in Vietnam [ex. A, T4, fol. 24].
20. Dr Janis Carter, a consultant psychiatrist, provided three reports which were admitted into evidence: report dated 28 October 2003 [ex A, T4, fols. 73-79]; report 18 January 2005 [ex A, T4, fols. 91-102]; report dated 17 March 2006 [ex. A7].
21. Dr Carter in her reports has presented varying diagnoses.
22. In her first report of 28 October 2003, Dr Carter concluded that Mr Higgs presents with symptoms of generalised anxiety disorder [ex A, T4, fols. 73-79].
23. In her second report of 18 January 2005, Dr Carter gave the opinion that Mr Higgs presents with post traumatic stress disorder and alcohol dependence [ex A, T4, fols. 91-102].
24. In her third report of 17 March 2006, Dr Carter gave the opinion that Mr Higgs suffers from generalised anxiety disorder with a fairly low grade post traumatic stress disorder [ex. A 7].
25. Dr Maxwell Katz, psychiatrist, gave a report which was admitted in evidence: report dated 11 May 2005 [ex. A, T4, fols 151-155]. In his report Dr Katz gave his opinion that Mr Higgs suffers from generalised anxiety disorder.
26. Dr Eric De Leacy, a consultant psychiatrist, gave two reports which were admitted in evidence: report dated 4 March 2005 [ex. A, T4, fols 133-143]; report dated 8 March 2006 [ex. R1]. In his reports Dr De Leacy gave the opinion that the current level of anxiety of Mr Higgs is not sufficient to interfere with his employment. On direct questioning Dr De Leacy stated that Mr Higgs had generalised anxiety disorder as well as an alcohol dependence condition with an onset in Vietnam. In oral evidence he appeared to accept more readily the existence of the required stressor as sufficient to diagnose GAD than appeared to be the case in his written report.
Legislative Background
27. Section 9 of the Act provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:
“9 War-caused injuries or diseases
(1) Subject to this section, and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …”
28. The expression “operational service” is defined in ss 6 to 6F of the Act. Under s 6C, a person renders operational service if he or she is, inter alia, allotted for continuous full-time duty in an operational area. There is no issue that the applicant has not rendered operational service.
29. Section 13(1) of the Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
30. As the applicant has performed operational service, as defined in s 6 of the Act, the determination of whether his asserted conditions are war-caused is to be made by applying ss 120(1) and 120(3) of the Act. Those sections provide relevantly as follows:
“120 Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.”
31. Under s 120A of the Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (“RMA”) has made a Statement of Principles (SoP) in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
“(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this section.”
32. Subsection (4) of s 120A excludes the operation of subsection (3) in certain circumstances which are not relevant to this application.
33. Section 196A of the Act provides for the establishment of the RMA. Section 196B of the Act provides that if the RMA is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to operational service rendered by veterans, the RMA must determine a SoP in respect of that kind of injury, disease or death setting out the factors that must as a minimum exist, and which of those factors must be related to service rendered by a person, before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of the veteran’s service. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to operational service” is expounded in s 196B(14). This provides relevantly, in effect, that a factor causing or contributing to an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
Consideration
34. We must initially give consideration to the appropriate diagnosis of the conditions of Mr Higgs.
35. The Full Court of the Federal Court of Australia has ruled that the issue of whether a disease exists is to be decided to the reasonable satisfaction of the Commission: see Repatriation Commission v Cooke (1998) 52 ALD 1 at 6. This is the standard that is prescribed by s 120(4) of the Act, which is the civil standard of proof: see Repatriation Commission v Smith (1987) 15 FCR 327.
36. We initially mention that generalised anxiety disorder and post traumatic stress disorder are alternative diagnoses.
37. We have come to the conclusion that Mr Higgs has generalised anxiety disorder rather than post traumatic stress disorder. This is the preponderant view that is put forward by four psychiatrists, including in two reports of Dr Carter.
38. Only Dr Carter gave a firm diagnosis of post traumatic stress disorder. One of the matters relied upon by Dr Carter to base her conclusion was the Davidson Scale for PTSD. On one assessment she gave a high score. In contrast, Dr De Leacy considered that the Davidson interview would indicate that the criteria are barely met [ex. A, T4, fol 138]. Dr Carter remarked that the fluctuation in the patient’s condition explained the variation in scores. However, we have borne in mind that the observations of Dr De Leacy, who considers that the Davidson interview is a self-assessment of symptom severity, and it should be viewed as such.
39. We have also relied upon the evidence of Dr De Leacy and Dr Carter to come to the conclusion that Mr Higgs can be regarded as having an alcohol dependence condition. We, however, consider that this condition is not a severe condition.
40. We observe that the following SoPs have been made:
- Alcohol Dependence or Alcohol Abuse, Instrument No 76 of 1998
- Anxiety Disorder, Instrument No 1 of 2000.
41. Where a SoP exists we are required to apply the test which is prescribed by s120A(3) of the Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98:
“1 The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2 If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3 If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4 The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
42. Having regard to the evidence of Dr De Leacy we are satisfied that the evidence before us points to a hypothesis connecting the generalised anxiety disorder as well as the alcohol dependence of Mr Higgs with his operational service. Accordingly the “first step” in Repatriation Commission v Deledio is satisfied.
43. The “second step” in Repatriation Commission v Deledio requires us to ascertain whether there is a SoP which has been determined by the RMA.
44. We have already mentioned that SoPs have been determined by the RMA pursuant to s 196B(2) of the Act in respect of the conditions in question:
· Alcohol Dependence or Alcohol Abuse, Instrument No 76 of 1998
· Anxiety Disorder, Instrument No 1 of 2000.
45. We must now turn to the third step as enunciated in Deledio. This entails determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoP.
46. We will initially consider the Alcohol Dependence or Alcohol Abuse SoP.
47. Under clause 4 of the Alcohol Dependence or Alcohol Abuse SoP at least one of the factors set out in clause 5 must be related to the relevant service (being operational service) rendered by the veteran.
48. In clause 5 the relevant factor which is in contention is factor 5(b) which refers to the veteran “experiencing a severe stressor”. This is defined as follows:-
. “…the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
….
…events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
49. We have considered the stressors that have been outlined by Mr Higgs. One stressor is predominant. Mr Higgs stated that he had been close to the trajectory when an M60 machine gun had been fired accidentally at FSB Beth. In his report Dr De Leacy stated that “the only event that I consider would have been classified as a true criteria A event would be the incident involving the discharge of the machine gun in which there was a real possibility of being killed” [ex. A, T4, fol 138]. We consider that this event would certainly be regarded as coming within the definition of “experiencing a severe stressor”. This is because the accidental discharge would be a “threat of death or serious injury”.
50. Having regard to the observations of Mansfield J in Stoddart v Repatriation Commission (2003) 197 ALR 283 at [55], we consider that the accidental discharge event, judged objectively from the point of view of a reasonable person in the position of the applicant was capable of and did convey (on a subjective basis) the risk of death or serious injury or a threat to physical integrity.
51. Factor 5(b) also requires that the stressor occur within the two years immediately before the clinical onset of alcohol dependence. We consider that this is satisfied in this case in view of the evidence of Dr De Leacy who testified that the clinical onset of alcohol dependence occurred while Mr Higgs was in Vietnam.
52. For these reasons we consider that the “third step” in RepatriationCommission v Deledio is satisfied in respect of the claim for alcohol dependence.
53. We will next consider the Anxiety Disorder SoP.
54. Under clause 4 of the Anxiety Disorder SoP at least one of the factors set out in clause 5 must be related to the relevant service (being operational service) rendered by the veteran.
55. In clause 5 the relevant factor which is in contention is factor 5(a)(ii) which refers to the veteran “experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder”. A “severe psychosocial stressor” is defined, in clause 8, as follows:-
. “…an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at...”
56. For the reasons we have earlier stated in paragraph 49, we consider that this event would certainly be regarded as coming within the definition of “experiencing a severe psychosocial stressor”. We consider that the accidental discharge of an M60 machine gun would certainly evoke a feeling of substantial distress in an individual. We observe that the definition refers to “being shot at”.
57. Having regard to the observations of Mansfield J in Stoddart v Repatriation Commission (2003) 197 ALR 283 at [55], we again consider that the accidental discharge events judged objectively from the point of view of a reasonable person in the position of the applicant was capable of and did convey feelings of substantial distress.
58. We have also had regard to the medical evidence of Dr De Leacy that while Mr Higgs was in Vietnam there was a degree of anxiety present as well as some alcohol-related difficulties [ex. R1, fol. 2].
59. We now have to proceed to consider the “fourth step” in Repatriation Commission v Deledio.
60. We must proceed to consider under s 120(1) whether we are satisfied beyond reasonable doubt that the incapacity of Mr Higgs did not arise from a war-caused injury. If we are not so satisfied, then the claim must succeed.
61. We have considered the Writeway report of 28 July 2006. The author of that report confirms that there was an accidental discharge of an M60 machine gun. The author is able to confirm that an accidental discharge of an M60 machine gun did occur at a time when Mr Higgs was rendering operational service in Vietnam. This discharge was not recorded in the unit diaries [ex. R4, pp. 7-8].
62. We note that Mr Higgs considered that the event occurred when he was at FSB Beth, whereas the author of the Writeway report concluded that the event occurred at FSB Ziggie. We have taken into account the evidence of Dr De Leacy that whilst Mr Higgs was in Vietnam there was a degree of anxiety present as well as some alcohol-related difficulties [ex. R1, fol. 2]. This may explain the confusion of identifying the base.
63. In these circumstances we are not prepared to make a finding beyond reasonable doubt that the incapacity of Mr Higgs did not arise from a war-caused injury. The claim of Mr Higgs must succeed.
64. There is no material before us to justify an increase in the rate of pension. We observe that Mr Higgs has full-time employment in what appears to be a middle-management public servant position. We consider that the question of any variation to his pension should be determined by the Commission.
Decision
65. For the above reasons, we set aside the decision under review and substitute a decision that Mr Higgs has generalised anxiety disorder as well as alcohol dependence with effect from 22 September 2004. We remit the matter of assessment of pension to the Repatriation Commission.
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member PJ McDermott, RFD and Dr G J Maynard, Member
Signed: .....................................................................................
Legal Research OfficerDate/s of Hearing 14 December 2006; 27 March 2007
Date of Decision 11 July 2007
For the Applicant Ms B Carter-Nicoll of Counsel
Haney Lawyers
For the Respondent Mr M Smith, Department Advocate
0
6
0