HNGN and Military Rehabilitation and Compensation Commission (Compensation)
[2018] AATA 4096
•2 November 2018
HNGN and Military Rehabilitation and Compensation Commission (Compensation) [2018] AATA 4096 (2 November 2018)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/5376
Re:HNGN
APPLICANT
AndMilitary Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal:Senior Member Dr M Evans
Date:2 November 2018
Place:Perth
The Reviewable Determination dated 29 September 2016 is affirmed.
...............[sgd].........................................................
Senior Member Dr M Evans
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ entitlements – Military Rehabilitation and Compensation Act – whether Applicant suffers from posttraumatic stress disorder – peacetime injury – perception of “experiencing a severe stressor” – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 25(1), 33(1)(c)
Military Rehabilitation and Compensation Act 2004 (Cth), s 5(1), s 6, s 6(1), s 23, s 23(1), s 27, s 31, s 196B(1), s 196B(3), s 319(1), s 335(3), s 336, s 337, s 339(3), s 345(1),
s 350(2), s 354(1), Pt 4 Ch 2Veterans’ Entitlements Act 1986 (Cth), s 120(4)
CASES
Repatriation Commission v Bawden (2012) 206 FCR 296
Repatriation Commission and Smith (1987) 15 FCR 327
Repatriation Commission v Warren (2007) 95 ALD 606
Perich and Secretary, Department of Social Services [2018] AATA 963
Pollock v Wellington (1996) 15 WAR 1
Stoddart v Repatriation Commission [2003] FCA 334
SECONDARY MATERIALS
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th edition, American Psychiatric Association Publishing, 2013)
Freckelton I and Selby H, Expert Evidence: Law Practice, Procedure and Advocacy (5th ed, Thomson Reuters Lawbook Co, 2013)
Repatriation Medical Authority, Statement of Principles concerning Posttraumatic Stress DisorderNo. 83 of 2014 (Repatriation Medical Authority, 24 September 2018), clause 3(b), clause 5, clause 6(a) and (b), clause 9
REASONS FOR DECISION
Senior Member Dr M Evans
2 November 2018
BACKGROUND TO THE APPLICATION
The Applicant was born in 1982 and served in the navy as an aircraft technician from 13 August 2001 until 8 October 2011 when she was discharged for being medically unfit for service (T48, page 164).
On 11 December 2014, the Applicant made a claim for posttraumatic stress disorder (PTSD), tenosynovitis in her left foot, left foot neuroma and left foot 4th toe fusion (T23, page 87). The claim was received by the Department of Veterans’ Affairs (the Department) on 18 December 2014 (T23, page 89).
In a determination dated 25 September 2015 (the Determination), a delegate of the Military Rehabilitation and Compensation Commission (MRCC) accepted the Applicant’s claim for liability for “chronic tenosynovitis of the left peroneous longus tendon with effect from 10 March 2007”, but rejected the Applicant’s claim for liability for PTSD (T35, page 116).
In a letter dated 15 October 2015, lawyers acting for the Applicant sought an extension of time to prepare a request for reconsideration of the delegate’s Determination (T36, page 124). An extension of time until 31 January 2016 was approved by a review officer of the MRCC in a letter dated 26 October 2015 (T37, page 125).
A copy of the reconsideration request is not before the Tribunal, however, a letter dated 29 September 2016 from a review officer from the MRCC refers to a request for reconsideration being made by the Applicant’s solicitor on 13 May 2006 (T44, page 145).
In the letter dated 29 September 2016 (T44, page 145-152), the review officer affirmed the Determination dated 25 September 2015 denying liability for PTSD (the Reviewable Determination).
On 7 October 2016, the Applicant lodged an application with the Administrative Appeals Tribunal (the Tribunal) to review the Reviewable Determination (T2, page 3-7).
ISSUES
The Tribunal notes that the Applicant has confined her claim to the PTSD condition and consequently, both the Applicant and Respondent’s submissions and the presentation of evidence to the Tribunal were based on the claim of PTSD (Applicant’s Closing Submissions, Respondent’s Closing Submissions, see also agreement between counsel in transcript, 4 July 2018, page 137).
The issues which require determination by the Tribunal in this matter are:
(a)Whether the Tribunal is reasonably satisfied that the Applicant suffers from PTSD.
(b)If so, whether the Applicant’s PTSD is due to her defence service under the provisions of the Military Rehabilitation and Compensation Act 2004 (Cth) (MRC Act) and the relevant Statement of Principles.
If the Tribunal is not reasonably satisfied that the Applicant suffers from PTSD, it is unnecessary to determine the second issue.
JURISDICTION
Section 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides that the jurisdiction of the Tribunal is given to it by other “enactments”, which grant it jurisdiction to review certain decisions made under those enactments. Section 25(1) of the AAT Act states:
(1)An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
Section 354(1) of the MRC Act provides that “[a]n application may be made to the Tribunal for review of a reviewable determination”.
Section 5(1) defines “Tribunal” to be the Administrative Appeals Tribunal.
Section 345(1) of the MRC Act provides that a “reviewable determination” means “a determination under subsection 350(2) revoking, confirming or varying an original determination…”
Further, s 345(1) of the MRC Act defines an “original determination” to mean “a determination of the Commission under this Act (including a determination under subsection 347(3) or 347A(2) or (4)) that is not specified in subsection (2)…”
In the current application, the “original determination” was the Determination dated 25 September 2015 (T35).
The “reviewable determination” was the 29 September 2016 Reviewable Decision of the review officer from the MRCC (T44), which was made under s 350(2) of the MRC Act following a request for a reconsideration of the original Determination from the Applicant’s solicitors (referred to in T44). Consequently, the Tribunal has jurisdiction to review the Reviewable Determination.
MATERIAL BEFORE THE TRIBUNAL
The application was heard over three days, being 19 March 2018, 20 March 2018 and a resumed hearing on 4 July 2018. The matter was originally listed for a two day hearing, however, the Tribunal adjourned the hearing at the end of the second day to afford the Applicant the opportunity to call her treating psychiatrist, Dr Mathew Samuel, to give evidence about his PTSD diagnosis for the Applicant.
The Applicant was represented by Mr Carl Ponnuthurai from Perth Legacy. The Applicant was accompanied by her partner and her mother who attended to support her. The Respondent was represented by Mr Matthew Hawker who was assisted by Ms Daphne Jones-Bolla from Sparke Helmore.
The following witnesses gave evidence to the Tribunal and were cross-examined:
(a)The Applicant;
(b)Witness A, a former navy work colleague of the Applicant;
(c)Dr Lawrence Terace, Consultant Psychiatrist; and
(d)Dr Mathew Samuel, the Applicant’s treating Psychiatrist.
The following material was admitted into evidence on 19 March 2018:
(a)the Applicant’s Statement of Facts, Issues and Contentions dated 9 May 2017 (Exhibit A1);
(b)the Applicant’s Statement of Issues dated 8 May 2017 (Exhibit A2);
(c)Statement of Applicant (38 pages) dated 3 May 2017 (Exhibit A3);
(d)Witness Statement of a retired defence force member with seven attachments, undated but received by the Tribunal on 11 May 2017 (Exhibit A4);
(e)Department of Defence OHS Incident Report dated 5 October 2004 (Exhibit A5);
(f)Department of Defence Event Report prepared 7 December 2004 (Exhibit A6);
(g)Hazard Report generated on the Defence Aviation Hazard Reporting and Tracking System with an accessed date of 27 March 2017 (Exhibit A7);
(h)Applicant’s Statement dated 3 May 2017 (Exhibit A8);
(i)Statement of Witness A, undated but received by the Tribunal on 11 May 2017 (Exhibit A9);
(j)Statement of Applicant dated 10 February 2017 with three attached pages from a training manual (Exhibit A10);
(k)Applicant’s Outpatient Clinical Record with entry dated 5 October 2004 (Exhibit A11);
(l)Section 37 Documents, numbered T1 through to T51 (three volumes) (Exhibit R1);
(m)Respondent’s Statement of Facts, Issues and Contentions dated 7 June 2017 (Exhibit R2);
(n)Department of Defence Event Report prepared 7 December 2004 and Hazard Report generated on the Defence Aviation Hazard Reporting and Tracking System with an accessed date of 27 March 2017 (Exhibit R3);
(o)Medical report of Dr Lawrence Terace dated 25 February 2017 (Exhibit R4);
(p)documents produced under summons from Bentley Medical Centre and Kelvale Medical Group, received by the Tribunal on 15 March 2018 (Exhibit R5); and
(q)a two page document taken from St Vincent’s Sydney Private Hospital website showing qualifications and contact details for Dr Lee Hardwick (Exhibit R6).
The following material was admitted into evidence at the hearing on 4 July 2018:
(r)medical records produced under summons from Dr Mathew Samuel, received by the Tribunal on 27 June 2018 (Exhibit R7); and
(s)the curriculum vitae of Dr Lawrence Terace, Consultant Psychiatrist (Exhibit R8).
The Tribunal also had the following written closing submissions before it:
(t)the Applicant’s Written Closing Submissions, dated 25 July 2018;
(u)the Respondent’s Written Closing Submissions, dated 14 August 2018; and
(v)the Applicant’s Written Closing Submissions in reply to the Respondent’s Closing Submissions, dated 15 August 2018.
LEGAL FRAMEWORK
Section 6 of the MRC Act outlines the “[k]inds of service to which this Act applies”. Section 6(1) of the MRC Act provides:
(1)In this Act:
(a)warlike service means service with the Defence Force that is of a kind determined in writing by the Defence Minister to be warlike service for the purposes of this Act; and
(b)non-warlike service means service with the Defence Force that is of a kind determined in writing by the Defence Minister to be non-warlike service for the purposes of this Act; and
(c)peacetime service means any other service with the Defence Force; and
(d)defence service means warlike service, non-warlike service or peacetime service. (Original emphasis.)
The Applicant’s service would constitute “peacetime service” under s 6(1)(c) of the MRC Act, which is also “defence service” under s 6(1)(d) of the MRC Act.
Section 23 of the MRC Act provides:
(1)The Commission must accept liability for an injury sustained, or a disease contracted, by a person if:
(a)the person’s injury or disease is a service injury or disease under section 27; and
(b)the Commission is not prevented from accepting liability for the injury or disease by Part 4; and
(c)a claim for acceptance of liability for the injury or disease has been made under section 319.
Note 1:The standard of proof mentioned in subsections 335(1) and (2) applies to claims that the injury or disease is a service injury or disease that relates to warlike or non-warlike service.
Note 2:The standard of proof mentioned in subsection 335(3) applies to the following:
(i)claims that the injury or disease is a service injury or disease that relates to peacetime service;
(ii)all claims when determining whether a person sustained a particular injury or contracted a particular disease;
(iii)all claims when determining whether the Commission is prevented from accepting liability for the injury or disease by Part 4.
Section 27 of the MRC Act provides that:
For the purposes of this Act, an injury sustained, or a disease contracted, by a person is a service injury or a service disease if one or more of the following apply:
(a)the injury or disease resulted from an occurrence that happened while the person was a member rendering defence service;
(b)the injury or disease arose out of, or was attributable to, any defence service rendered by the person while a member;
(c)in the opinion of the Commission:
(i) the injury was sustained due to an accident that would not have occurred; or
(ii) the disease would not have been contracted;
but for:
(iii) the person having rendered defence service while a member; or
(iv) changes in the person’s environment consequent upon his or her having rendered defence service while a member;
(d)the injury or disease:
(i) was sustained or contracted while the person was a member rendering defence service, but did not arise out of that service; or
(ii) was sustained or contracted before the commencement of a period of defence service rendered by the person while a member, but not while the person was rendering defence service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service rendered by the person while a member after he or she sustained the injury or contracted the disease;…
The claim made by the Applicant on 11 December 2014 was a claim made under s 319(1) of the MRC Act, which provides:
(1)A claim may be made under this section for one or more of the following:
(a)acceptance of liability by the Commission for a service injury sustained by a person or a service disease contracted by a person…
Part 4 of Chapter 2 of the MRC Act is titled “When the Commission is prevented from accepting liability for service injuries, diseases and deaths”. The simplified outline of this part in s 31 of the MRC Act outlines the exclusions which may prevent the Commission from accepting liability for an injury, disease or death which relate to: serious defaults or wilful acts by the person; reasonable counselling about a person’s performance as a member; false representations by the person; if certain circumstances relating to travel during peacetime service occurred; and the person’s use of tobacco products. None of these exclusions apply to the Applicant.
Reasonable satisfaction standard of proof
The standard of proof applicable to claims relating to peacetime service is stated in
s 335(3) of the MRC Act which provides, in part:
…the Chief of the Defence Force or the Commission must, in making any determination or decision in respect of a matter arising under this Act, the regulations, or any other instrument made under this Act or the regulations, decide the matter to his, her or its reasonable satisfaction. (Emphasis added.)
“Reasonable satisfaction” has been interpreted by the courts to be “the standard of proof required in civil litigation”, namely the balance of probabilities. For example, in Repatriation Commission and Smith (1987) 15 FCR 327, when interpreting an equivalent provision, s 120(4) of the Veterans’ Entitlements Act 1986 (Cth) (the VEA), the Federal Court stated at 335:
Even if the Tribunal is not bound by the traditional evidentiary principles, s 120(4) constitutes a clear direction to the Tribunal that it must be reasonably satisfied before it makes any decision. In my opinion, this could only have been intended to introduce the standard of proof required in civil litigation.
Further, s 337 of the MRC Act provides:
Nothing in section 335, or in any other provision of this Act, imposes on:
(a)a person claiming compensation or claiming for the acceptance of liability; or
(b)the Commission, the Commonwealth, the Department or any other person in relation to such a claim;
any onus of proving any matter that is, or might be, relevant to the determination of the claim.
Section 336 of the MRC Act is titled “Commission not entitled to make certain presumptions”. It provides:
Nothing in section 335, or in any other provision of this Act, entitles the Commission to presume that:
(a)an injury sustained by a person is a service injury; or
(b)a disease contracted by a person is a service disease; or
(c)the death of a person is a service death; or
(d)a person is entitled to be granted compensation.
Section 339(3) of the MRC Act provides:
(3)In applying subsection 335(3) to determine a claim, the Commission is to be reasonably satisfied that an injury sustained, or a disease contracted, by a person, or the death of a person, is a service injury, a service disease, or a service death, only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular defence service rendered by the person while a member; and
(b)there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12) of the Veterans’ Entitlements Act 1986; or
(ii) a determination of the Commission under subsection 340(3) of this Act; and
(c)the material, and the Statement of Principles or the determination (as the case may be), upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
Statement of Principles
Statements of Principles are determined by the Repatriation Medical Authority (s 196B(1) of the VEA). Section 196B(3) of the VEA provides:
(3)If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to:
(a)eligible war service (other than operational service) rendered by veterans; or
(b)defence service (other than hazardous service and British nuclear test defence service) rendered by members of the Forces; or
(ba)peacetime service rendered by members;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(c)the factors that must exist; and
(d)which of those factors must be related to service rendered by a person;
before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.
In the current application, the relevant Statement of Principles (SOP) is the Statement of Principles concerning Posttraumatic Stress Disorder No. 83 of 2014 (SOP No. 83 of 2014).
Clause 3(b) of SOP No. 83 of 2014 defines PTSD with reference to the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th edition, American Psychiatric Association Publishing, 2013) (DSM-5):
(b) For the purposes of this Statement of Principles, ‘posttraumatic stress disorder’ means a psychiatric disorder which meets the following criteria (derived from DSM-5):…
The first of these criteria is criterion A of clause 3(b) of SOP No. 83 of 2014, which is relevant to the current application:
A.Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:
(i)directly experiencing the traumatic event(s);
(ii)witnessing, in person, the event(s) as it occurred to others;
(iii)learning that the traumatic event(s) occurred to a close family member or close friend. In cases of actual or threatened death of a family member or friend, the event(s) must have been violent or accidental; or
(iv)experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (for example, first responders collecting human remains; police officers repeatedly exposed to details of child abuse). This criterion does not apply to exposure through electronic media, television, movies, or pictures, unless this exposure is work related…
Further, clause 5 of SOP No. 83 of 2014 provides that “… at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.”
The factors which the Applicant relies upon in the current application are set out in clause 6(a) and (b) of SOP No. 83 of 2014 which provides:
The factor that must exist before it can be said that, on the balance of probabilities, posttraumatic stress disorder or death from posttraumatic stress disorder is connected with the circumstances of a person’s relevant service is:
(a)experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder; or
(b)experiencing a category 1B stressor before the clinical onset of posttraumatic stress disorder;…
Clause 9 of SOP No. 83 of 2014 defines a category 1A stressor and a category 1B stressor as follows:
For the purposes of this Statement of Principles:
‘a category 1A stressor’ means one of the following severe traumatic events:
(a)experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;
‘a category 1B stressor’ means one of the following severe traumatic events:
(a)killing or maiming a person;
(b)being an eyewitness to a person being killed or critically injured;
(c)being an eyewitness to atrocities inflicted on another person;
(d)participating in the clearance of a corpse or a critically injured casualty; or
(e)viewing a corpse or a critically injured casualty as an eyewitness;
‘a corpse’ means the human remains or body parts of one or more persons who have met a violent or horrific death;
Note:Examples of a violent or horrific death may include death due to suicide, gunshot, improvised explosive devices, natural and technological disasters, terrorist attacks or motor vehicle accidents. Seeing a closed body bag or viewing a body in an open-casket coffin are excluded from this definition.
So how is PTSD to be diagnosed? Should it be diagnosed with reference to the applicable SOP, or with respect to the DSM-5 (which replaced the DSM-IV)? Guidance can be found in Repatriation Commission v Bawden (2017) 206 FCR 296 (Bawden). In Bawden, at [44] the Court cited the following with approval:
44In Repatriation Commission v Warren (2007) 95 ALD 606 at [24]-[25], Kiefel J explained the two-stage process, and the legitimate use of the DSM-IV at the diagnosis stage:
[24]The function of the SoP, in general terms, is to identify the minimum factors which must be present in the circumstances of the veteran’s case, to provide the necessary linkage between the disease suffered and operational service. The factors necessarily refer to the disorder in question. The principal purpose of the definition of each of PTSD and alcohol dependence is to permit a determination as to whether the SoP applies to the condition as found by the tribunal, presumably upon the basis of a clinical diagnosis. The diagnostic criteria for the disorders in the SoP are said to be ‘those specified in DSM-IV, and are as follows’. The criteria are intended as part of the definition for the purpose of the application of the SoP.
[25]The anterior, or threshold, question for the tribunal is whether the veteran suffers from the disease as claimed. It is a distinct and separate statutory question, in the nature of a precondition to any entitlement to a pension. There is no provision of the VEA which expressly requires the tribunal to have regard to the SoP criteria in determining this question. The requirement that the tribunal be reasonably satisfied that the veteran suffers from the claimed disease will usually require medical opinion. A clinical diagnosis of a condition classified under DSM-IV would necessarily have regard to that manual and the criteria provided by it.
In summary, the threshold question for the Tribunal is one of clinical diagnosis in accordance with the criteria in the DSM-5. This question is one of fact – namely whether the correct diagnosis for the Applicant is one of PTSD, which necessarily requires an examination of the expert medical evidence. If the Applicant does not suffer from PTSD, the Tribunal does not need to proceed to consider the next question regarding the application of the SOP to determine the linkage between the PTSD and the Applicant’s operational service.
In Bawden, the Full Court of the Federal Court continued on to explain, at [47]-[48]:
47In our respectful opinion… the decision-maker must be satisfied that a collection of symptoms manifests a diagnosable disease, and if it is so satisfied, it must then consider whether the illness or disease is war-caused. The point for present purposes is that PTSD can only be diagnosed as an illness or disease in terms of a traumatic event. It may be that, as Dr White suggested in his evidence before the Tribunal, there are PTSD-like diseases not falling within the DSM-IV description, such as, for example, an adjustment disorder or a depressive disorder. The decision-maker needs to consider whether the veteran’s symptoms manifest any illness or disease resulting in incapacity. But, to the extent that the claim is for incapacity from PTSD and a decision-maker is not satisfied that a traumatic event produced those symptoms, the decision-maker cannot proceed to a diagnosis of PTSD.
48The point on which the present case turns is not one of insufficient correspondence between the symptoms described in the DSM-IV and those described by Mr Bawden; rather it is concerned with the inability of the decision-maker to be satisfied that Mr Bawden suffered a traumatic stress. A diagnosis of the disorder depends on satisfaction as to the historical fact of a traumatic stress.
Thus, when considering the diagnosis of PTSD, the Tribunal will need to consider whether the traumatic event occurred. In the words of the Federal Court in Bawden, at [49], “A finding that a traumatic event has occurred is indispensable to a diagnosis of PTSD”.
THE APPLICANT
The Applicant relies upon an incident which occurred on 5 October 2004 during a maintenance test flight of a navy helicopter, during which the Applicant was partially covered in oil (the Oil Incident). The Applicant claims that this incident was a stressor before the clinical onset of PTSD (Exhibit A1, paragraph 4.4 and the Applicant’s Written Closing Submissions, para [8]). The Oil Incident occurred during a test flight which occurred after maintenance of a navy helicopter during which an autorotation was undertaken. This involves the engine being disengaged from the main rotor system to check that the aircraft will descend at a certain rate in an emergency (see, for example, evidence of Witness A, transcript, 19 March 2018, page 43).
The Applicant only seeks to rely on the Oil Incident as part of her current application. There was however, another incident that occurred in April 2005 following the crash of a navy helicopter that the Applicant had worked on, which killed two of her colleagues. The Applicant stated that she was part of a team that unloaded the caskets from an aircraft upon their return to Australia and carried the caskets containing the bodies through a saluting line to a ceremony (Exhibit A3, page 16) (the Navy Helicopter Crash Incident).
Several statements from the Applicant which describe the Oil Incident were before the Tribunal. In Exhibit A3, page 12, a statement in which the Applicant describes many of her experiences in the navy, the Applicant described the Oil Incident as follows:
Aircraft PAN (Incident) during a maintenance test flight with [name omitted], Witness A, [name omitted], and myself together with [name omitted] and [name omitted]. I got covered with hot oil and other contaminates that leaked down and had filled the drip pan during an auto rotation. We lost altitude fast and an engine was shut down. When the pilots were asked to land immediately by the LS, the pilots ignored the request even though I was covered head to toe in hot oil. Upon landing I was assessed by MCA and returned to work with new clothing and boots to complete a (sic) AC563, (accident report).
I was called to the Warrant Officers office where [name omitted] and [name omitted] asked me to give a statement about the aircraft accident. The pilots had claimed that [Witness A] had shouted and made demands to the pilots during the accident. I informed them that he didn’t at any stage raise his voice at the pilots during the accident.
I later heard through the investigating officer at the squadron that the emergency lubrication line of the main rotor gear box (sic) was not done up and failed to get a maintenance quality inspection (MQI) check. This meant that the oil from the gearbox was being pumped directly into the drip pan and consequently over me.
I subsequently started to have spots come up on my face and the Dr thought that I would need dermatological assistance as it is linked to being covered in oil earlier that month.
In her statement dated 10 February 2017 (Exhibit A10), the Applicant provided a more detailed statement about the Oil Incident as follows:
When we were doing a Ground to hover test I informed [Witness A] that there was a (sic) unusual leaking coming from the soundproofing. It was not a (sic) usual leak or from area on the aircraft that was common to leak. The leak was within limits of flow rate (otherwise know (sic) as drops per second). My supervisor said we will keep and (sic) eye on it during the testing.
Whilst doing our 100 knots test the leak had exceeded the flow rate and I informed my supervisor [Witness A] to review. He informed the pilots of the issue and that we should return to base and investigate and no longer continue the test flight.
Pilot [name omitted] decided to proceed with the completion of the test flight as every (sic) in the flight was normal and the testing was all serviceable. We started to do a (sic) autorotation as soon as we begun the drip pan above me (sits under the main rotor gearbox), fell due to being over full and the force of the autorotation starting. I got covered head to toe in hot oils and hit in the head with the soundproofing and drip pan and [name omitted] got partially covered on the left side of his body, mostly on his arm and leg. We lost more altitude at the time which was due to the lack of oil pressure in the main rotor gearbox, (we went from 10,000ft to 2000ft in seconds). The oil continued to leak into the cabin. [Witness A] asked the Pilots to land immediately in a safe location because of the leak and that he had two personnel covered in oil. The pilots were distracted with alarms in the cockpit and I clearly heard as the pilots gained control of the aircraft that they lost pressure in the no 1 engine and had to shut it down.
As I was unable to see what was happening, I could only hear what was happening. [Name omitted who was also covered in oil] assisted me whilst trying to get some of the oil off my face. The Pilots were making calls over the radio ‘PAN PAN PAN’. … [Witness A] wanted the aircraft landed immediately for the safety of all persons on board and the Pilots couldn’t hover due to the MRGB oil pressure and had to do a PAN or hot landing which they needed a runway. the (sic) whole time numerous Alarms continued to blare.
We landed safely and as soon as the aircraft shutdown myself and [name omitted who was also covered in oil] were removed from the aircraft. I was placed immediately into the emergency deluge shower and then taken to the base medical centre for a (sic) assessment. After being assessed by medical staff I was given a new uniform and underclothes and sent back to the Squadron with eye flushing liquid.
In a further statement dated 3 May 2017 (Exhibit A8), the Applicant describes the Oil Incident in more detail than in her previous statements. This statement (Exhibit A8) appears to be the same statement as the one dated 10 February 2017 (Exhibit A10) which has been amended to include additional detail about how the Applicant perceived the incident. In this revised statement, the Applicant described how she felt after being covered in the oil (Exhibit A8, page 1-2):
I felt helpless and felt we were going to crash as the pilots were panicking and there was a lot of yelling, I was afraid that we were going to crash and I was going to be more hurt than I already was or I was going to die. I was panicking and could feel people trying to help get the oil off me. I know I was shouting, get it out of my eyes help get it out of my eyes, its burning. I just wanted us to land and get out of the aircraft as quickly as possible.
I was unable to see what was happening, I could only hear what was happening. [Name omitted who was also covered in oil] assisted me whilst trying to get some of the oil off my face. The Pilots were making calls over the radio ‘PAN PAN PAN’ and during that period I thought we were crashing, and that I it (sic) meant we were going to impact with the ground, I thought I was going to die any moment. …[Witness A] wanted the aircraft landed immediately for the safety of all persons on board and the Pilots couldn’t hover due to the MRGB oil pressure and had to do a PAN or hot landing which they needed a runway. the (sic) whole time numerous Alarms continued to blare. Time felt slow almost still, and the journey to land felt like forever to get back to base, I had no idea what was happening around me, where we were, and if we were landing all going to crash.
The pilots carried out a hot landing and I could here (sic) all the sirens of emergency crews, as soon as the aircraft shutdown myself and [name omitted who was also covered in oil] were pulled from the aircraft by some people but I don’t know who and that it was aggressively (sic), I was placed immediately into the emergency deluge shower as somebody told me to take the helmet off and my overalls. All I could smell was the oil and had I think a medic trying to flush out my eyes. I was scared cause I didn’t know if this oil would make me go blind. I felt embarrassed cause I was stripping down to my underwear and t shirt in front of all the people that were present on the tarmac. I was in shock, and felt overwhelmed and couldn’t breathe because there was so much going on around me. I wanted to cry but couldn’t. I was covered in a towel and taken to the hospital still coated in oil as it wouldn’t come off and I just wanted it off me. I wanted a real shower and I wanted to see.
I began thinking that I breathed some of this oil in and its absorbed into my skin. what will this oil do me? Why did the pilots ignore us as began to get angry cause we were ignored and I am being poked and prodded and felt like I was going to die and then taken to the base Medical Centre for a assessment (sic).
After being assessed by medical staff I was given a new uniform and underclothes and sent back to the Squadron with eye flushing liquid. the medics didn’t really know what to do, they had me flushing my eyes and to take a shower with soap. No matter how much I flushed my eyes but my vision was still blurry and stingy and itchy. No matter how much I washed myself the film of oil wouldn’t go. The medical checked or temperate (sic) blood pressure and that was it. The doctor came in for a moment and sent us on our way in white sperm suits to get new underwear and uniform.
When returning to the Squadron the focus by my senior staff and officers was on the conduct by [Witness A] and not on what happened to the aircraft. I was so frightened and when returned to the squadron and all the questions of what happened instead are you okay. I hid in the female bathroom and cried. I felt like I just skipped death and was overwhelmed by everything that had just happened, I was still flushing my eyes and felt exhausted. We were called to meet in the flight line room and was told it all a part of our job by [name omitted] and that the best thing to do is get on with it and was sent to work on other aircraft. I couldn’t think straight and wanted the shift to end and get away from work and the aircraft as fast as possible.
The evidence before the Tribunal indicates that the Oil Incident did occur. An incident report was made (Exhibit A5) which describes the incident as “on completion of auto-rotation oil (ox27) sprayed from MRGB drip tray into cab” with an “exposure date” of 5 October 2004. The “brief description of injury or illness” was recorded on this form as “eye contaminated”. An event report was also made, recording the date the event occurred as 5 October 2004, and with a “reported date” of 7 December 2004 (Exhibit A6). This event report contains minimal details and does not record what happened to the Applicant, with the exception of stating: the Applicant as the person reporting the incident; the “severity” as “minor personal injury”; the “mechanism of injury” as “single contact with chemical or substance”; and the “nature of injury” as “poisoning and toxic effects of substances”. The “event details” are described as “[o]n completion of auto-rotation, oil (OX27) sprayed from MRGB drip tray into cab.”
A hazard report (Exhibit A7) was completed after an investigation of the incident. However, there is no reference to the Applicant, or to the oil leaking on any person, or to any injuries suffered in this report. The hazard report, in the section headed, “hazard narrative” states as follows (Exhibit A7, page 2):
During maintenance test flight small amount of oil was noticed dripping from forward section of gearbox. Maintenance was contacted to confirm if there had been a previous oil spill with the reply being negative. AC elected to reduce the sortie length and commence RTB. On the return to NAS crew continued with MTF schedule. Whilst initiating the decel component of the computer rigging check, maintenance personnel in the rear alerted the aircrew that a large amount of oil had leaked into the cabin. Maintenance personnel were loud and exhuberant in their attempt to warn the crew. CP immediately checked fire warning lights and Ts and Ps. No1 Engine Oil pressure appeared to drop by approximately 5psi and there were no other dangerous indications. AC was notified and No1 SSL was retarded to Grd Idle. Oil pressure continued to drop and engine was shut down when oil pressure passed 15 psi. Prior to shutting down No1 engine, both AC and CP confirmed aircraft in SSE condition. A PAN was declared and aircraft was returned to NAS with aircrew continuing to monitor situation.
The confusion that the Applicant described after she was covered in the oil in her evidence is reflected in the following “analysis” of the “oil leak” in the hazard report (Exhibit A7, page 2):
… the backseat crew for the MTF consisted of only maintenance personnel. Initial report from MTF maintainers indicated a large amount of oil was entering the rear cabin. The manner of this information transmission led to some confusion and distraction in the cockpit. Communication breakdown between cabin crew and cockpit resulted in ambiguity as to the source of oil. Cockpit crew followed SOP’s in checking for dangerous indications. Upon noting dropping engine oil pressure engine crew diagnosed that the engine was losing oil rapidly and therefore retarded SSL. As the oil pressure continued to drop below minimum AC elected to carry out engine shutdown iaw FRCs. Aircraft RTB using single engine technique. On RTM maintainer visually inspected aircraft and determined that the MRGB was the source of oil leak. Maintainer subsequently found a pipeline that was only hand tight.
The following statement appeared at the end of the “findings” section (Exhibit A7, page 2):
Initial indications are that a combination of maintenance error, oil gauge malfunction, crew communications breakdown, inadequate aircraft crew composition and faulty airborne diagnosis resulted in the MGB oil leak followed by an engine shutdown.
It is also relevant to note that the hazard report recommended that there be a “requirement for a qualified backseat crewman for all flights carrying non-aircrew personnel” (Exhibit A7, page 3).
A clinical outpatient record (Exhibit A11) recorded the Applicant presenting for medical treatment “post engine failure onboard … [Navy Helicopter] 20/60 mins ago”. It recorded “oil (ox-27/Jetoil 2) exposure” and “oil on R [right] side of patient”, “oil in R [right] eye”, “blotchy sight out of R [right] eye” and “slight stinging”.
Witness A, who was present during the Oil Incident, was called by the Applicant to give evidence to the Tribunal about the incident in addition to providing a written statement (Exhibit A9). In his written statement, Witness A stated:
[The Applicant], [name omitted who was also covered in oil], [name omitted] and myself were maintainers in the back of one of the … [Navy Helicopter] conducting a Maintenance test flight… During the test flight we noticed oil started dripping from the main rotor gearbox drip tray. Initially this wasn’t a big issue, but as time went on the drips got more frequent, I believed the drips were excessive so I spoke with the two Pilots in the front of the aircraft and told them that there was excessive oil dripping from the gearbox drip tray and that we should probably head back to base.
They decided that they wanted to proceed with the test flight and then head back.
During and Auto rotation (sic) the weight of the excessive oil that was sitting in the drip tray was too much and drip tray partially gave way and dumped a large amount of oil over [the Applicant] and [name omitted who was also covered in oil]. At this point I told the pilots that a large amount of oil had been dumped in the back of the aircraft and that they should get the aircraft on the ground.
There was some confusion up the front and for some reason they decided to shut number 1 engine down. After they shut the engine down they decided not to land the aircraft in a panic as I requested but to fly back to the base and call a PAN (Possible Assistance Needed) over the radio and perform a running landing.
After we shut the aircraft down we conducted an inspection of the aircraft and discovered a gearbox oil lubrication line that wasn’t tightened properly.
Witness A’s evidence to the Tribunal indicated that his perception about the Oil Incident, and his observations about the effect that it had on the Applicant when it was occurring, were quite different to the perceptions described by the Applicant, as indicated by the following exchange (transcript, 19 March 2018, page 44):
SENIOR MEMBER: … I’d just like to ask one question. When the oil was dumped on the applicant, what was your assessment of the situation? Like, how were you feeling about the situation?
WITNESS A: At the time, it was a little bit excessive, the amount of oil, so it was abnormal and I spoke to the pilots and I said, ‘look, we’ve just lost a lot of oil, I think you need to land this aircraft soon’.
SENIOR MEMBER: What was your emotional state?
WITNESS A: Well, I’ve known the – I’ve been working on the aircraft for some time, I know it’s got an emergency lubrication system in the main rotor gearbox, which a light will come on, that tells you you’ve still got 20 minutes of flying left before that gearbox runs out of oil. So I mean, my assessment and my advice to get that aircraft on the ground was purely an assessment to say, look, let’s – to make things – well, not to heighten any more problems or cause any more dramas, but get the aircraft on the ground soon. I don’t – I wasn’t feeling in any danger, but I mean, that was my assessment to get it on the ground.
SENIOR MEMBER: What about the others in the plane?
WITNESS A: I don’t know. I don’t know their emotional state. I know once we said that and the pilots said, ‘no, no, we’re just going flying it home’, we weren’t too bad. I mean, the mood was a bit jovial and that’s when the pilot actually made a remark for us to calm down and things are going to be all right. But we were all actually just in the back having a bit of fun and it wasn’t – we weren’t about to kiss our ass goodbye or anything.
SENIOR MEMBER: Thank you. Mr Hawker?
MR HAWKER: Thank you. Just one, does that include the applicant as well? She was part of that group in the back with you, that was feeling a bit jovial?
WITNESS A: Yes. After the initial shock, obviously, of having all the oil dumped over you, yes, I mean, I tried to lighten the scene up a bit just to keep everyone in the back calm. I mean, there was no terrifying moments or anything where we thought the world was going to end.
With respect to these differences in perception, Counsel for the Applicant argued that Witness A:
… can only speak for his own internal response to the incident of 5 October 2004. While he was able to make light of it, the Applicant was not able to do so. As a relatively junior and inexperienced maintainer, she did not have the personal knowledge and was not in a position, to see that the situation was not as dangerous as she believed (Applicant’s final closing submissions dated 15 August 2018).
In support of this submission, Counsel for the Applicant submitted that the knowledge and circumstances of the Applicant need to be taken into account when assessing a threat. Counsel for the Applicant cited the Federal Court decision in Stoddart v Repatriation Commission [2003] FCA 334 as authority (Applicant’s Written Closing Submissions dated 25 July 2018, para [10]). Although Stoddart relates to the reasonable hypothesis standard of proof in the context of a statement of principles, it does provide useful guidance as to the nature of the perception of a severe stressor. Mansfield J stated, at 379, of Stoddart:
[55]In my judgment the language of the definition of ‘experiencing a severe stressor’ caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (that is, are subjectively experienced) the risk of death or serious injury or to physical integrity.
The Tribunal accepts that at the time of the incident, the Applicant was relatively junior, as she had only served in the navy since 2001. It is plausible that the Oil Incident may have affected her more than some of her fellow maintenance crew members with more experience, for example, Witness A, who was the Applicant’s supervisor. The Applicant could not see what was occurring because she had oil in her eyes, however, she would have heard the shouting and confusion between the maintenance crew and the cockpit, which must have been very frightening for her. Indeed, experiencing such an event would likely be frightening to a reasonable person in the position of the Applicant, and with her knowledge.
In contrast, Counsel for the Respondent submitted “…that the Tribunal ought not to accept that the Applicant’s evidence is reliable” (Respondent’s Written Closing Submissions dated 14 August 2018, para [5.2]). The reasons put forward by the Respondent included the inconsistencies in the evidence of the Applicant and Witness A. Specifically, the Applicant stated under cross-examination that, after her discharge from the navy, she was offered a job by Witness A, however Witness A denied making any job offers to the Applicant (transcript, 19 March 2018, page 45). The Respondent also referred to inconsistencies in the Applicant’s evidence regarding whether she was offered psychological counselling after the Oil Incident. In her evidence, the Applicant referred to avoiding seeking counselling due to fearing breaches of confidentiality and the information being used against her, however, the medical documentation before the Tribunal shows that she was aware she could self-refer to counselling, and that she had done so in the past (transcript, 19 March 2018, page 17-25).
The Respondent also referred to contemporaneous medical notes made by medical practitioners who examined her during her service, including a navy psychologist in 2007 who stated “[h]er economy with the truth has placed significant doubt on her version of events” (T49, page 256) and in a specialist referral document where the referring medical practitioner stated:
Seems confused, misses appointments, changes stories, says different things to different people on the same day – 3 or 4 versions in one day. Quite outright lies, trying to get out of returning to work. She has been fit for desk work for over a month, cleared by the surgeon, but making up numerous stories to get out of work… (T51, page 547).
Under cross-examination, the Applicant stated that she did not agree with these observations at para [55] above. Section 33(1)(c) of the AAT Act provides that “[i]n a proceeding before the Tribunal…the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate”. The Tribunal regards it as appropriate to afford no minimal weight to these accounts because, although the notes record the contemporaneous impressions of these medical professionals, they are untested by cross-examination, and indeed, the reference to “different people” is hearsay and unreliable.
The Tribunal also notes that there are some further inconsistencies in the following exchange with the Applicant under cross-examination (transcript, 19 October 2018, page 19-21) regarding her completion of two mental health questionnaires after the Navy Helicopter Crash Incident. These were a “Critical Incident Mental Health Support (Initial Screening)” (T49, page 274, date stamped 7 April 2005) and a “Critical Incident Mental Health Support (First Follow-up)” (T49, page 276, date stamped 2 May 2005):
MR HAWKER: So the first one [questionnaire] is 7 April, page 275. The second box up from the bottom that answers – asks the question:
Please answer the following questions by indicating yes or no.
Since the event –
and that’s referring to the April 2005 event –
have you had any distressing memories, thoughts or images about any other major event that has happened to you?
Do you see that question?
APPLICANT: M’mm.
MR HAWKER: Your indication was no. Do you see that?
APPLICANT: But what I can also see is that I haven’t signed that document and it’s not my writing.
MR HAWKER: What I am suggesting to you is that is your answer?
APPLICANT: What I am saying to you is that is not my writing. I filled out the front sheet and it is not signed by me.
MR HAWKER: What do you say to the accuracy to that response?
APPLICANT: I think it is an insufficient document that needs to be submitted because it’s not signed by me or my supervisor on page 278.
MR HAWKER: Do you agree with the response that says no?
APPLICANT: No.
MR HAWKER: Do you agree that you gave that response that says no?
APPLICANT: No, I don’t agree that I gave that response. This could be anyone’s form put in my document.
In summary, in the full exchange of para [57] above (see transcript, 19 March 2018, page 19-21), the Applicant recalls completing two mental health questionnaires, but then denied that they were the actual questionnaires she completed because they were unsigned. The answers given, if indeed they were given by the Applicant to the question “[s]ince the event have you had any distressing memories, thoughts or images about any other major event that has happened to you” in both questionnaires were “no” and suggest that the Applicant was not suffering from PTSD because she was not showing any symptoms.
The inconsistencies outlined above raise some concerns in the mind of the Tribunal as to the reliability of the Applicant’s recollection of the Oil Incident. There is no doubt that the Oil Incident did occur, that the Applicant felt frightened, that she could not see because she had oil in her eyes, and that there was confusion between the maintenance crew and the cockpit. However, there is some doubt in the mind of the Tribunal as to the extent of what the Applicant experienced, particularly as her two subsequent statements regarding the Oil Incident were amended to include additional details relevant to the Applicant’s claim of PTSD. There were inconsistencies between the evidence of the Applicant and the Applicant’s own witness (Witness A). The Applicant denied the accuracy of the content of medical records which were contrary to her claim. Also, the incident and hazard reports, as well as medical notes, from the day of the incident did not record any psychological symptoms.
The Tribunal does not, however seek to make conclusive findings about the credibility of the Applicant, but merely wishes to emphasise that the evidence, as presented to the Tribunal, raises some doubt as to whether the Oil Incident was a severe stressor for the purpose of a diagnosis of PTSD. Indeed, a possible explanation for the inconsistency in the Applicant’s evidence, was described by Dr Terace in his evidence to the Tribunal as follows (transcript, 4 July 2018, page 124):
MR HAWKER: From a psychiatric point of view, are you able to reconcile the two accounts, the two versions of events of the same incident?
DR TERACE: They’re very disparate accounts, so I can’t. The disparities are so substantial, I can’t – I mean have, if [Witness A] was in the cockpit and didn’t know what was happening in the main part of the helicopter. There are possibilities to consider. Firstly, memory is an unreliable tool for all of us and most frequently, our recollections of the past are filtered through our brain, through our experiences, through our emotions, other cognitive processes. So our recollections of autobiography, which are events in our lives, aren’t necessarily accurate and that’s quite a common finding in both psychology and psychiatry.
And there is a phenomenon called ‘retrospective misattribution’ which means that we all tend to form a view about ourselves and our lives and form opinions about events in the past and the relationship of experiences, that is often not correct because we filter our memories in so many ways, mostly unconsciously actually. That’s the only way I can reconcile those two quite disparative descriptions, but whose version of events is to be believed is not for me to determine.
It is therefore essential to analyse the expert medical evidence before the Tribunal, particularly that of Dr Samuel and Dr Terace, with respect to their diagnosis of the Applicant, and whether she can be correctly diagnosed with PTSD, in accordance with the
DSM-5.
MEDICAL EVIDENCE
Before examining the evidence of Dr Samuel and Dr Terace, it is relevant to refer to the results of an assessment of the Applicant by Dr Hardwick, which occurred approximately four years after the Oil Incident.
Dr Hardwick
Dr Hardwick was not called as a witness, however, the documentary evidence before the Tribunal shows that on 20 March 2008, a navy doctor referred the Applicant to Dr Hardwick (T50, page 547). Dr Hardwick is a Psychiatrist at St Vincent’s Private Hospital in Sydney and has a Bachelor of Medicine/ Bachelor of Surgery (MBBS), as well as being a Fellow of the Royal Australian and New Zealand College of Psychiatrists (FRANZCP) (Exhibit R6).
In the specialist referral form, the referring doctor asked that Dr Hardwick assess the Applicant for a “personality disorder” and to “rule out depression or other psychiatric illness that might require treatment” (T50, page 547). After seeing the Applicant twice, Dr Hardwick, in a handwritten psychiatric assessment dated 19 May 2008 (T50, page 542) concluded that (page 544):
… I could not find any current Axis I or II disorder. There may have been some abnormal illness behaviour but this appears to have settled as she is keen to return to all her previous duties.
Dr Hardwick concluded by stating that there was “[n]o need for me to r/v [review] unless further problems arise” (T50, page 544). This evidence suggests that the Applicant was not suffering from a psychological illness at the time that Dr Hardwick examined her.
Dr Samuel
Dr Mathew Samuel, a Consultant Psychiatrist, has been treating the Applicant since the end of 2014 and has been a Consultant Psychiatrist since 2007 (transcript, page 99, 4 July 2018). Dr Samuel’s qualifications include a Bachelor of Medicine/ Bachelor of Surgery (MBBS), and he is a Fellow of the Royal Australian and New Zealand College of Psychiatrists (FRANZCP) (T30, page 105).
On 11 December 2014, the Applicant submitted an “application for health care in respect of post-traumatic stress disorder” (T22, page 81) and a claim for liability which was received by the Department of Veterans’ Affairs on 18 December 2014 (T23, page 83). In the “injury or disease details sheet” (T24, page 91-92) which accompanied her claim for liability, the Applicant described her “injury or disease” as “post traumatic stress disorder” and gave the following response to the question “how do you believe your service caused, contributed to or aggravated this injury or disease?”:
Workplace bullying, harassment, career letdown, aircraft accidents, sexual harassment, isolation, left out colleagues deaths and teammates involved, and intimidation by superiors, service injury.
The Applicant’s general medical practitioner stated in the “medical practitioner” section of the “injury or disease details sheet” (T24, page 92), signed on 12 December 2014, that the medical diagnosis for the Applicant was “post traumatic stress syndrome” based on a “[c]onfirmed diagnosis by consultant psychiatrist (Dr Samuel)”.
In a letter dated 14 January 2015, the Department of Veterans Affairs wrote to Dr Samuel (T27, page 96), who the Applicant had stated as her treating specialist in her claim, seeking his opinion regarding the Applicant’s claim for the condition of PTSD.
In a letter dated 25 March 2015 addressed to the Departmental Medical Officer at the Department of Veterans’ Affairs, Dr Samuel stated that “[the Applicant]…has Post Traumatic Stress Disorder as per the DSM IV guideline” (T30, page 105). Dr Samuel further stated that “the most likely cause of the conditions (sic)” was:
i.Working as a female in the Navy
ii.Harassment due to her pregnancy
iii.Left behind in an operation due to lack of female accommodation
iv.Intensive and brutal interrogation by a senior officer
Under cross examination at the Tribunal hearing, Dr Samuel also confirmed that in addition to the above likely causes, the Navy Helicopter Crash Incident was also a triggering event for the Applicant’s PTSD (transcript, 4 July 2018, page 105).
In response to a question about the date of onset of the condition, Dr Samuel listed the following factors, which instead appear to be possible stressors for the diagnosis of PTSD (T30, page 106):
i.Being covered in boiling and carcinogenic oil when the oil line in the helicopter broke and the officer insisted on flying.
ii.Survivor guilt following the crash of a … [Navy] helicopter.
iii.Being ordered to start up a helicopter when it was clearly unsafe.
At the hearing, the Tribunal asked Dr Samuel to clarify the importance of these incidents given that they appeared not to directly relate to the question that was being asked (which related to the onset of the condition). Dr Samuel provided the following clarification (transcript, 4 July 2018, page 108-109):
The incident which, you know, she was covered in the oil, and the survivor guilt following that … helicopter crash, which did not find its place in 2(a), in hindsight are the most important stressors and have been part of the flashbacks and nightmares over the last few years, and also the fact that she was subjected to bullying and harassment in the Defence as well. So if you ask me now, in hindsight, what are the triggers, I think I would put those three as the important triggers or important events which could explain the diagnosis of PTSD.
Under cross examination at the Tribunal hearing, Dr Samuel was unsure as to the date of clinical onset of the condition of PTSD. The following exchange is relevant (transcript, 4 July 2018, page 105):
MR HAWKER: When you said that you’re satisfied that she has experienced the onset of post traumatic stress disorder, when do you say was the date of clinical onset to that condition?
DR SAMUEL: That’s a good question. I don’t know that I have actually recorded that anywhere. I think, you know, that’s hard for me to say, because I don’t think there was any date of onset. But what I could say was that when she came in she had all those symptoms in December 2014, and I don’t think anyone has made the diagnosis of – as far as I know – PTSD before that, before I made the diagnosis.
In response to a question regarding the severity of the condition, Dr Samuel further stated in his report of 25 March 2015 (T30, page 106) that “[i]n my opinion [the Applicant] has moderate to severe PTSD due to intrusive thoughts, repeated dreams, avoiding places and memories. [The Applicant] is also socially avoidant and hypervigilant.”
On 24 August 2016, the Department of Veterans’ Affairs requested from the Applicant’s general practitioner a “formal diagnosis for… [the Applicant] in order to provide treatment for anxiety disorder, depressive disorder” (T41, page 138) in response to a further claim submitted by the Applicant and received by the Department on 19 August 2016 (T38, page 126). In response, Dr Samuel completed a “diagnostic report” on 29 August 2016, where he confirmed that, in accordance with the DSM-IV and the DSM-5, the Applicant was suffering from anxiety disorder and depressive disorder (T41, page 139). He did so by crossing the boxes next to “anxiety disorder” and “depressive disorder”. Dr Samuel did not cross the box for PTSD, which was left blank (T41, page 139).
The Tribunal asked Dr Samuel to clarify this different diagnosis. The following exchange is relevant (transcript, 4 July 2018, page 106):
SENIOR MEMBER: You mentioned before that, … a patient’s diagnosis can evolve?
DR SAMUEL: Yes.
SENIOR MEMBER: The reason why I’m asking about this is that it appears that on 25 March in your report – it’s at T30 – you diagnose the applicant as having post traumatic stress disorder, and there’s another form that I have on the file where – it was on 29 August 2016 – you had to tick a few boxes on a form and return that to Veterans’ Affairs?
DR SAMUEL: Yes.
SENIOR MEMBER: So that’s at page 138/139 of the T documents?
DR SAMUEL: Yes, I ticked the anxiety disorder and – yes. Depressive disorder, yes.
SENIOR MEMBER: So I guess my question was, is that indication that the applicant had recovered or was no longer suffering from post traumatic stress disorder, or can you just sort of explain to me about why you chose those particular boxes?
DR SAMUEL: Yes. Let me just bring that up, because I’m just having a look. Did that form have PTSD as well?
SENIOR MEMBER: Yes. It had anxiety disorder, depressive disorder, and the next one down was PTSD.
DR SAMUEL: Yes.
SENIOR MEMBER: And the next one alcohol, and the next one substance.
DR SAMUEL: Yes, that was because, in my opinion, she already had a diagnosis of PTSD and that was just an additional thing – the DVA asked me what else she could have. And again, PTSD, as far as I know, and this is what I have learned in my psychiatry, is that it is also an anxiety disorder. It comes under the umbrella of anxiety disorder anyway, and she already had the PTSD diagnosis.
In his evidence to the Tribunal, Dr Samuel explained that his diagnosis was based on the self-reported symptoms of the Applicant when she first saw him in December 2014 (transcript, 4 July 2018, page 105). Further, Dr Samuel stated (transcript, 4 July 2018, page 101):
… as a treating doctor, we look at the symptoms; we look at the human body as a whole, and invite the diagnosis that has on that individual. So we cannot sometimes go with the DSM‑5 criteria all the time, although it is written in black and white. It is actually not a recipe book in which you can come out with a particular problem and then try to box people in by saying, well, you have this much criteria, you belong to this. But when we see a cluster of symptoms, and that’s where I see, in HNGN’s case, is a cluster of symptoms, which to my knowledge over the last four years since I’ve been treating her, and the other psychologists and other people who have looked after her in Hollywood, we very much feel that she has got PTSD.
Further, when asked about the DSM-5 criteria, Dr Samuel stated (transcript, 4 July 2018, page 111-112):
… when I look at a client I don’t look at the DSM V and I don’t actually probably look through all the minutiae of details and say, well, do you really satisfy the criteria A for me to, you know, treat someone to be respectfully truthful to you because, you know, I mean, like I said I am a treating psychiatrist and I don’t – of course I look at the veracity of the truth unless otherwise specified because, you know, I see a wide range of people so look, if you ask me are you completely satisfied with the – with that particular wording in DSM V, I may not be but at that, you know, when I look at her and when I look at her symptoms and when I look at her response and when I look at her body language and when I look at her symptoms and her – the impact on her life in general, I feel that, you know, that there was a definite threat to her life.
Further, Dr Samuel states (transcript, 4 July 2018, page 113):
…as a treating psychiatrist, I don’t go into details regarding what exactly happened because I look at these things because some of these people, some of the – when I look after people with PTSD, the trigger episode can be quite difficult for them to remember. And I think, you know, sometimes people can decompensate very significantly if I ask again and again. So and that is when I usually ask them to write down an experience in a very safe and secure moment. And my clinical practice has always been to look at, you know, the symptoms, rather than looking at the episodes. Because, to me, episodes are episodes and they don’t become a real big part in my treating…
Further to this comment from Dr Samuel that he did not “go into details regarding what exactly happened”, it was apparent to the Tribunal that Dr Samuel’s understanding of the facts of the Oil Incident differed slightly from the facts as confirmed in other evidence before the Tribunal, including the evidence of the Applicant and Witness A. This is indicated by the following exchange between Dr Samuel and Counsel for the Respondent during cross-examination (transcript, 4 July 2018, page 113):
MR HAWKER: Sorry. What’s your understanding – when you say the oil incident, what’s your understanding of – or what is the history that you are relying on in terms of the oil incident? What do you understand took place?
DR SAMUEL: Well, she felt that, you know, she was covered in oil. She was not allowed to, you know, use the washroom appropriately. And the navy, you know – or the defence did not follow the process as far as I know. I think again, look, I don’t know what the processes involved but from a pure layman’s point of view, that safety was not looked at, and her welfare as a human being was not looked after. And there was a threat that, you know, she could – you know, she could have a serious injury or a catastrophic incident while she was having this particular episode. So she felt that her safety and her life was in significant, you know, danger.
MR HAWKER: And an important part of that is that you said she was covered in oil and she wasn’t allowed to use the washroom?
DR SAMUEL: Yes.
MR HAWKER: Are you aware whether she had overalls on or not at the time?
DR SAMUEL: No, I don’t know. I don’t know.
MR HAWKER: Are you aware where she was at the time it happened?
DR SAMUEL: I think, you know, I could only go with what she has written and it’s again her account of experience. I don’t have any other evidence other than, you know, there is no – I haven’t got anything in front of me from a defence point of view to say whether these things were right or wrong. So that’s why, you know, I would say that I wouldn’t know. I mean, if I just say whatever she has written is right, you know, it wouldn’t be right, isn’t it, because there is no other collaborative evidence. So, again, as the treating doctor I have to go along with what she says. And, I think, you know, she felt that at that particular point of time her life was in danger.
Dr Terace
Dr Lawrence Terace has been a Consultant Psychiatrist since 1993 (transcript, 4 July 2018, page 117). Dr Terace has a Bachelor of Medicine/ Bachelor of Surgery (MBBS) from the University of Western Australia, conferred in 1987 (transcript, 19 March 2018, page 55; Exhibit R8). He has been a Fellow of the Royal Australian and New Zealand College of Psychiatrists (FRANZCP) since 1994, and has experience working with veterans in the trauma program at Hollywood Hospital where he was the principal psychiatrist from 1995 to 1998 (Exhibit R8).
Dr Terace examined the Applicant on 15 February 2017, and produced a medical report dated 25 February 2017 (Exhibit R4). Dr Terace commented on the last page of his report that “I did not find sufficient evidence on the balance of probabilities to find a diagnosis of a Post-Traumatic Stress Disorder in the present or in the past” (Exhibit R8, page 29).
Dr Terace stated his opinion as follows (Exhibit R4, page 26):
5.... In my opinion, [the Applicant’s] mental state in the present and past has principally represented an interaction between aberrant personality traits and her perception of her experiences.
6.I found insufficient evidence to support causation, on the balance of probabilities) (sic) of her mental state from claimed events of the … helicopter crash, which she did not witness, or the events in which she was covered in oil.
7.Whilst… [the Applicant] claims she was mistreated during her military experience this may only be argued to have contributed to her mental state at that time if the evidence supports that she was mistreated and that she was not simply subject to normal administrative action including disciplinary action.
8.However, [the Applicant] has long since left the military and her present mental state probably represents the interaction between constitutional vulnerability, particularity aberrant personality characteristics, and other psychosocial stressors as described which are not military in origin.
The following comments from Dr Terace regarding Dr Samuel’s report of 11 December 2014, is informative in terms of Dr Samuel’s diagnosis of PTSD based upon the symptoms reported to him by the Applicant. Dr Terace stated (Exhibit R4, page 20):
I noted that Dr Mathew Samuel describes nightmares but does not specify what type, daytime tremors, significant anxiety, comfort eating, heightened alertness and that small triggers take her back to the naval days – but these symptoms are relatively non-specific and are insufficient evidence, on their own, to support the diagnosis of a Post-Traumatic Stress Disorder in my opinion with respect to my learned colleague, and may be explained by a variety of personality factors and psychosocial stressors.
When asked to comment on the records produced by Dr Samuel’s under summons (Exhibit R7), Dr Terace stated (transcript, 4 July 2018, page 121):
… in summary, the interpretation I had from those notes, was that again, the applicant had been unfortunate in suffering ongoing stressors of both an acute and chronic nature, which would cause distress in most persons, let alone in the psychologically vulnerable person. But I didn’t have evidence in those reports to cause me to change the opinion I had rendered. Whilst I respect Dr Samuel and respect his opinion and his right to his opinion, that evidence itself wasn’t sufficient to cause me to change the opinion rendered, but rather was consistent with the pattern over time, established in the medical documentation of the applicant having confronted many unfortunate stressors and personal tragedies over time. And I considered it in the context of her psychological vulnerability that her psychological responses were understandable to those recurrent stressors over time.
In his evidence to the Tribunal, Dr Terace further explained why he thought a diagnosis of PTSD was not applicable to the Applicant (transcript, 4 July 2018, page 118-119):
…the essential construct of post-traumatic stress disorder is that the extreme stressor occurs, in most cases, there are prospective, almost invariably, symptoms since that time, even in delayed post-traumatic stress disorders which occur after six months and I could not find any prospective evidence of post-traumatic symptoms in all the documentation I reviewed from the reports of the psychologists, by Karen Glynn or Helen Rutland or Phil Newland, or Dr Brown, Dr Manderson, Dr Hardwick, Dr Zidarney at that time. And rather found that the applicant had been very unfortunate and had suffered a substantial number of stressors over time, some of which she attributed to her military experience and others which were described as being external, relating to some very unpleasant circumstances, including, I think, a tragic miscarriage as well.
Then, in reviewing the symptoms in the documentation and also my own examination, I did not have enough evidence to meet criteria for post-traumatic stress disorder or to explain the symptoms that could not be explained in other terms, which I think are probably best expressed as a psychologically vulnerable person who suffered a substantial number of stressors across life and continues to suffer those stressors in the present. And my opinion, to me, that was a better, intellectual and clinical fit for understanding her symptoms. So in summary, whilst I accept, as I stated previously, it’s in the realm of possibilities, I did not have sufficient evidence as an impartial assessor, in reviewing all the evidence to lead me to that conclusion on the balance of probabilities.
In summary, Dr Terace’s opinion was that the Applicant did not suffer from PTSD, but rather, the diagnosis of an adjustment disorder with anxiety was more appropriate (transcript, 19 March 2018, page 58):
…I concluded that if I accepted the veracity of the history and the validity of the presentation that HNGN was describing – my apologies, the applicant, was describing a state of upset or distress, which I called ‘an adjustment disorder with anxiety’ in relation to some very relevant psycho-social stressors in her personal life.
CONSIDERATION
The Tribunal is often faced with having to weigh the evidence of an Applicant’s treating practitioner, against the evidence of an independent medical examiner, with each having their own advantages and disadvantages. These were discussed in the decision of Perich and Secretary, Department of Social Services [2018] AATA 963 (Perich) by Deputy President Boyle and Senior Member Evans who stated at [37]:
37.In their book Expert Evidence: Law, Practice, Procedure and Advocacy (Thomson Reuters Lawbook Co, 2013) at page 283-284, Professor Ian Freckelton QC and Hugh Selby [Freckelton and Selby] discuss the advantages and disadvantages of evidence from ‘treating health practitioners’ and ‘assessors who do not treat the patient’. With respect to treating health practitioners, they state (at 283):
There are many circumstances in which a report is commissioned from a treating health practitioner. There is a fallacy that such a report is not an ‘expert report’. In fact, such reports are expert reports – their authors possess specialised knowledge based upon their training, study or experience (see, eg, r 44.01 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic)). Moreover, the facts and opinions in such reports are often particularly valuable for litigation because the treater is likely to have a longitudinal perspective in relation to the patient’s condition – for instance, detailed knowledge of the patient that spans the pre- and post-injury periods and which is uncontaminated by, or much less contaminated by, the litigation process (see Rimmer (1989, p23). An issue for such report writers is the expectation of the courts that as soon as an expert provides a report for use by the courts, the author has a primary responsibility to the court and not to be an advocate for their patient (Medical Practitioner’s Board of Victoria (2006)). This transmogrification of role is not always as well appreciated as it needs to be by treating medical practitioners but can be addressed, at least to some extent, by provision by commissioning solicitors of the relevant code of ethics or practice guidelines for expert report writers.
Further, Deputy President Boyle and Senior Member Evans state in Perich at [44] that:
44.Freckelton and Selby also discuss the implications of a medical report written by an ‘assessor’. They state (at page 283-284):
Many reports are commissioned from assessors who do not treat the patient but are asked as part of the forensic process to provide an independent assessment of the patient. These are often called ‘third party reports’. The advantage of such reports is that they are generally commissioned from practitioners who are familiar with the needs and expectations of the litigation process. In addition, they are unaffected by contaminants such as therapeutic bias or treatment advocacy. However, their limitation is that they are commissioned for forensic purposes and, often, comparatively little time is spent by the assessor with the patient, meaning that the assessment is either somewhat superficial or heavily dependent upon patient self-report.
In summary, the treating practitioner has the benefit of a longitudinal perspective, and will often have built up a relationship of trust with a patient over a period of many months or even years. This is advantageous because the patient may be more honest and forthright due to this relationship of trust, however as indicated by Freckelton and Selby, there is a risk of therapeutic bias and the acceptance by the treating practitioner of the self-reported symptoms of the patient.
An independent medical examiner, on the other hand, will reach a diagnosis based on a review of a patient’s medical records, and may only see the patient for an examination on one or two occasions before compiling a report detailing their diagnosis. They will consequently not have the benefit of a longitudinal perspective which will mean that their diagnosis cannot be revised over time. However, the independent medical examiner will have the benefit of reviewing the substantive medical records of the patient which may include the opinions of numerous treating practitioners over time. Additionally, as they do not have an ongoing relationship with the patient, the independent medical examiner may form a more objective view than the treating practitioner. They may be more inclined to question the self-reported symptoms of the patient, but as indicated by Freckelton and Selby, there is a corresponding risk that the independent medical examiner may accept the self-reported symptoms of the patient.
In Perich at [48], Deputy President Boyle and Senior Member Evans also stated:
48.The question remains as to which doctor’s evidence should be preferred. Although section 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT ACT) provides that, “In a proceeding before the Tribunal...the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate”, the Tribunal is of the opinion that it is appropriate to apply the following principle regarding expert opinion evidence, as summarised by Anderson J in Pollock v Wellington (1996) 15 WAR 1 as follows:
Unless the process of inference by which an opinion is reached is expressed in a manner which permits the conclusions to be scrutinised and a judgment made as to its reliability, the opinion can carry no weight: see Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370, esp at 390.
This Tribunal notes that there is another illustrative passage from the decision of Anderson J in Pollock v Wellington (1996) 15 WAR 1, at 3, which provides guidance that is relevant to evaluating expert evidence:
Before an expert medical opinion can be of any value the facts upon which it is founded must be proved by admissible evidence and the opinion must actually be founded upon those facts: see Ramsey v Watson (1961) 108 CLR 642; Trade Practices Commission v Arnotts Ltd (1990) 21 FCR 324; Parric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844 at 845-846.
As with any other evidence, expert opinion must be comprehensible and the conclusions reached must be rationally based. A court ought not to act on an opinion, the basis for which is not explained by the witness expressing it: see Steffen v Ruban (1966) 84 WN (Pt 1) (NSW) 264.
The Tribunal has considered the evidence of the Applicant and Witness A, in the context of the medical evidence. As noted earlier in these reasons, the Tribunal had some concerns, after reviewing the evidence of the Applicant, as to whether the Oil Incident was a severe stressor for the purpose of a diagnosis of PTSD.
The documentary evidence of Dr Hardwick, discussed at paragraphs 63 and 64 above, suggests that as at 19 May 2008, he did not believe that the Applicant was suffering from any disorder and concluded that there was no need for a further review unless further problems arose. This is consistent with the observation of Dr Terace in his evidence at the Tribunal hearing, that delayed onset of PTSD symptoms was rare and that approximately 75% of people will meet the full criteria of PTSD within six months (transcript, 4 July 2018, page 128). Further, in his evidence to the Tribunal, Dr Samuel was unable to specify the date of clinical onset of the Applicant’s PTSD and was only able to confirm that when he saw her in December 2014 she had the symptoms of PTSD (transcript, 4 July 2018, page 105). If the Applicant was suffering from PTSD as a result of a triggering event, namely the Oil Incident, which occurred in 2004, it is likely that she should have been experiencing symptoms by 2008.
Further, with respect to Dr Samuel, the Tribunal has some concerns that when giving a formal diagnosis on 29 August 2016 (T41, page 139), Dr Samuel crossed the boxes next to anxiety disorder and depressive disorder, but not PTSD. The Tribunal does note Dr Samuel’s explanation at the hearing that he had previously provided a diagnosis of PTSD, and that he was being asked to comment on other conditions which the Applicant may be suffering from. He also explained that PTSD comes under the “umbrella” of anxiety disorder. With respect to Dr Samuel, this explanation does raise some doubt in the mind of the Tribunal as to whether the more plausible explanation was that the Applicant was in fact suffering from an adjustment disorder with anxiety, as identified by Dr Terace. The Tribunal notes Dr Terace’s comment that (transcript, 4 July 2018, page 131):
She’s been very unlucky and has suffered stress after stress after stress. In those circumstances I would expect to see ongoing recurring adjustment disturbances such that where one ends and the other begins is difficult to determine in those cases. It’s actually very common and probably in a very common presentation in long-term psychiatry.
In Dr Samuel’s opinion, there were several events which contributed to his diagnosis of PTSD, of which the Oil Incident was one, so it is fair to say that although he regarded the Oil Incident as significant, it was part of a series of incidents affecting the Applicant, and was not in and of itself a severe stressor. Additionally, Dr Samuel’s evidence to the Tribunal was that he did not rigidly follow the DSM-5 criteria, and that he instead focused on looking at the Applicant’s self-described symptoms when treating her. This is problematic because, applying Warren, a clinical diagnosis of the condition under the DSM-5 is required, and as noted by Dr Terace in his evidence to the Tribunal, the existence of a category A stressor is important in order to distinguish the symptoms described by the Applicant, which are somewhat general in nature, from those associated with other psychiatric disorders (see for example, transcript, 4 July 2018, page 132). Further, as noted above in the excerpts from Pollock v Wellington, it is important for an expert medical opinion to be founded on established facts. However, Dr Samuel appeared to have a general and slightly inaccurate understanding of the facts of the Oil Incident, as illustrated by his comment that the Applicant was not allowed to use the washroom (transcript, 4 July 2018, page 113) and by his reference to the Applicant being “covered in boiling and carcinogenic oil” (T30, page 106).
In conclusion, the Tribunal prefers the evidence of Dr Terace, over that of Dr Samuel. Based on his medical report, and the evidence that he gave to the Tribunal at the hearing, Dr Terace had a more comprehensive understanding of the facts of the Oil Incident, having reviewed all of the Tribunal documents, as well as the Applicant’s medical records, prior to writing his report and giving his evidence to the Tribunal. In the Tribunal’s opinion, Dr Terace undertook a more detailed forensic medical analysis with less reliance on the self-reported symptoms of the Applicant and was able to give details as to the basis for his diagnosis with reference to the DSM-5.
CONCLUSION
Based on the analysis above, the Tribunal is not reasonably satisfied that the Applicant suffers from PTSD. As the Tribunal is not reasonably satisfied that the Applicant suffers from PTSD, it is unnecessary to determine the second issue.
The Tribunal realises that this outcome will be disappointing for the Applicant. She evidently had a difficult time in the navy and has experienced many stressful events in her life over the years. These events may have contributed to her suffering from adjustment disorder and anxiety. However, this application concerned the very specific question of whether the Applicant suffers from PTSD, and the Tribunal cannot be reasonably satisfied, based on the medical evidence before it, that she does suffer from PTSD specifically.
DECISION
For the reasons outlined above, the Reviewable Determination dated 29 September 2016 is affirmed.
I certify that the preceding 101 (one hundred and one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans
......[sgd]..................................................................
Associate
Dated: 2 November 2018
Date(s) of hearing: 19 and 20 March 2018; 4 July 2018 Advocate for the Applicant: Carl Ponnuthurai Representative for the Respondent: Daphne Jones-Bolla Counsel for the Respondent: Matthew Hawker Solicitors for the Respondent: Sparke Helmore
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