Hollywood and Military Rehabilitation and Compensation Commission (Compensation)
[2019] AATA 5032
•29 November 2019
Hollywood and Military Rehabilitation and Compensation Commission (Compensation) [2019] AATA 5032 (29 November 2019)
Division:VETERANS’ APPEALS DIVISION
File Number: 2017/6421
Re:Robert Hollywood
APPLICANT
AndMilitary Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:29 November 2019
Place:Melbourne
The Tribunal affirms the decision under review.
........................................................................
Dr Stewart Fenwick, Senior Member
Catchwords
MILITARY COMPENSATION – naval service – post traumatic stress disorder – alcohol dependence – whether applicant has conditions claimed – when conditions manifested – applicable test for causation – decision affirmed
Legislation
Compensation (Commonwealth Government Employees) Act 1971
Commonwealth Employees’ Rehabilitation and Compensation Act 1988
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007
Cases
Comcare v Sahu-Kahn [2007] FCA 15
Hicks and Repatriation Commission [2004] AATA 266
Langfield and Repatriation Commission [2001] AATA 888
O’Leary and Repatriation Commission [2002] AATA 583
Phillips and Repatriation Commission [2011] AATA 602
Profitt and Repatriation Commission [2006] AATA 250Read and Military Rehabilitation and Compensation Commission [2017] AATA 1109
Wright v Commonwealth of Australia [2005] VSC 200
REASONS FOR DECISION
Dr Stewart Fenwick, Senior member
29 November 2019
BACKGROUND
Mr Hollywood applied for a review of a decision dated 15 August 2017. The decision, made by a delegate of the Respondent, affirmed a decision dated 3 March 2017 rejecting claims made under the Safety Rehabilitation and Compensation Act 1988 (the SRC Act) for several conditions.
The claims originally included physical and psychological injuries, however Mr Hollywood ultimately only pursued his claims for post-traumatic stress disorder (PTSD) and alcohol dependence. He was assisted in his application by a legal representative, but at the time of the hearing before me he was self-represented.
The matter has its origins in Mr Hollywood’s service in the Royal Australian Navy between 24 May 1971 and 6 April 1972. As part of his service, Mr Hollywood was posted to HMAS Stalwart and during a voyage he fell overboard and was rescued. Later in the same voyage, while on shore in the Philippines, he claims to have witnessed shootings of civilians. Mr Hollywood also sought to rely upon other aspects of his brief period of service outside these specific incidents.
There are conflicting opinions about the diagnosis of PTSD, and only one specialist was called to give evidence at the hearing. Additional medical evidence was submitted to the Tribunal, as well as material related to a prior claims history under a State compensation scheme, in addition to the T documents.
LEGISLATIVE FRAMEWORK
Mr Hollywood’s claim under the SRC Act was captured by transitional provisions relating to the commencement of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (the DRC Act) on 12 October 2017. However, it is necessary to first identify a range of possibly applicable legislative frameworks.
Under Part X of the DRC Act, conditions suffered before the commencing day may be compensable under the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act). This legislation was in force at the time of Mr Hollywood’s service and until the commencement of the SRC Act on 1 December 1988. The SRC Act was first enacted as the Commonwealth Employees’ Rehabilitation and Compensation Act 1988.
The SRC Act is the relevant legislation for any conditions that manifested between 1 December 1988 and the commencement of the DRC Act. However, during this time the definition of ‘disease’ changed as a result of the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007.
Therefore, there are three different formulations of disease that are potentially applicable:
(a)The 1971 Act (between 1971 and 1988) – when the employment was a ‘contributing factor’ to the contraction of the disease (s 29);
(b)The SRC Act (between 1988 and 2007) – when the employment contributed ‘in a material degree’ to the condition (s 4(1) SRC Act as made); and
(c)The SRC Act (between 2007 and 2017) – when the condition was ‘contributed to, to a significant degree’ by the employment and where ‘significant degree’ means ‘a degree that is substantially more than material’ (s 5B).
The definition of ‘injury’ has remained consistent (s 27 of the 1971 Act and s 5A of the SRC Act) and is defined as being compensable if it arises ‘out of or in the course of’ the employment. I note that the exclusionary provisions in s 5A of the SRC Act relating to reasonable administrative action and its predecessor in the SRC Act as made (within the definition of ‘injury’ in s 4(1)) are not engaged by the circumstances of this claim.
It is also common to the different forms of the legislation that both an injury and a disease may be either mental or physical (s 5 of the 1971 Act and ss 4, 5A and 5B of the SRC Act). The term ‘ailment’ is added to the definitions of disease in the SRC Act to achieve this result.
It is necessary to determine whether Mr Hollywood’s conditions are to be categorised as either an injury or a disease. I also note that the provisions are circular in the sense that ‘disease’ is either deemed to be an injury (in the case of the 1971 Act) or defined to be an injury when the requisite legislative tests for disease are satisfied.
Where there is a finding that Mr Hollywood’s claimed PTSD and alcohol dependence are diseases, the identification of the appropriate causal test connecting the condition(s) with his employment depends also upon a finding of when the particular condition is said to have arisen.
ISSUES
The issues for consideration are:
(a)does Mr Hollywood suffer the conditions of PTSD and alcohol dependence?
(b)if so, when did the conditions arise, and what is the relevant legislative test to apply?
(c)is the relevant causal test with his employment satisfied?
EVIDENCE
Incidents
As noted above, Mr Hollywood’s claim arises principally from two sources, being an overboard incident and two sets of shootings said to have been witnessed in the Philippines. There is no dispute in this matter as to the occurrence of the overboard incident. It is documented in official records which were lodged with the Tribunal by Mr Hollywood’s legal representative. The records also confirm the berthing of HMAS Stalwart at both Subic Bay and Manila.
I note the ship’s log for Tuesday, 1 February 1972 records the following in and around the overboard incident:
1329 Man overboard … Sailor was ORDWTR Robert Ernest Hollywood …
1341 Man recovered by seaboat seaboat hoisted
The ‘HMAS Stalwart Report of Proceedings February 1972’ records that at the time, it was sailing in company with several other ships, HMAS Melbourne, Supply, Hobart and Duchess. It also records the overboard incident:
At 1315 (-11) on Tuesday 1st, whilst on passage in the Solomon Sea, ORD R. E. HOLLYWOOD, R110482, fell overboard when working over the side. He was quickly recovered by seaboat and suffered no ill effects. He was wearing a life jacket at the time and subsequent investigations revealed that the knot on his lifeline slipped when he lost his grip on the ship’s side.
The Report of Proceedings records that HMAS Stalwart berthed at Subic Bay between 0930 Thursday 10 February and 1030 Sunday 13 February, 1971. After departing Subic Bay the ship berthed at Manila at 1630 the same day. The ship remained in Manila until 0930 on Wednesday, 15 February 1971. The ship then engaged in exercises and visited Hong Kong. A further berthing at Subic Bay is recorded between 1020 Sunday 12 March and 0900 Monday 13 March 1971.
The locations are relevant to the extent that there are references in the evidence to shootings incidents having taken place in or near Olongapo City and/or Manila. Mr Hollywood gave evidence that Olongapo City was reached by a bridge from the Subic Bay base, and provided photos at the hearing. There is no independent evidence relating to the shooting incidents.
In an undated statement (T30, p135) Mr Hollywood describes the shooting of children swimming in a creek under the bridge to Olongapo City, and an incident where a policeman shot a young child about two meters away from him, leaving him spattered with blood. He also states in this document, ‘there were many more shootings I witnessed, however these two stuck in my mind particularly as they were ‘up close and personal’. In a signed statement dated 26 October 2018 lodged with the Applicant’s Statement of Facts, Issues and Contentions, Mr Hollywood provides a similar account of the shooting at the creek, and the shooting of a young child close to him by a policeman.
Medical conditions
There are, broadly, two sets of medical material relevant to Mr Hollywood’s conditions. One group of material arises from documents summonsed by the Respondent and submitted at the hearing. This includes documents from a Queensland WorkCover claim made by Mr Hollywood following a fall in 2004 while working as a Brisbane River ferry driver. This fall ended his work on the ferries which had commenced in 1996.
There is additional material in this first group drawn from a period of admission as a voluntary psychiatric inpatient in 2012, and other medical reports arising from ongoing treatment prior to the current claim.
The second set of material arises from the current claim, and includes contemporary specialist reports. The diagnosis of PTSD arises only indirectly in the first group, but is the subject of specialist opinion in the contemporary material. Another feature of the medical documentation is that Mr Hollywood’s military service only arises as a core element of his medical history in the second set of materials.
Dr Mark Whittington, Psychiatrist, in his report of 13 April 2006 (Exhibit R1 at pp 36-48) diagnosed Mr Hollywood with Major Depressive Episode and Alcohol Dependence which ‘are a consequence of his pain and inability to work’. The report makes a passing reference to naval service and records stressors including episodes of family violence in Mr Hollywood’s childhood, and family deaths.
Dr Whittington’s report is referenced in a decision of WorkCover Queensland, dated 8 May 2006 (R1, pp 1-2), in which the agency accepted the injuries listed as Major Depressive Episode and Alcohol Dependence.
Mr Hollywood was referred by a treating GP to Mr David Churchward, Psychologist, and attended at different intervals between 2008 and 2011. Notes of consultations (R1 at 77-108) record ‘psychologist @ Bond Uni – possible PTSD’ and ‘hypervigilance, PTSD by previous psychologist’.
Mr Churchward’s notes refer extensively to Mr Hollywood’s problems with pain management, prescription drug use, alcohol use, and family violence as noted above. However, he also recorded a history of Mr Hollywood falling overboard while in the Navy and being ‘in water 8-9 minutes before alarm raised’. He also recorded that Mr Hollywood had ‘viewed people killed on several occasions’ while in the Philippines. This is the first record made of the incidents.
This history of family violence as a child is also prominent in the records from Mr Hollywood’s period as an inpatient in 2012. Records of this admission (R1 at pp 110-174) do not reveal any reference to military service or the overboard or shooting incidents. Mr Hollywood is described in the admission notes as a ‘difficult historian’. He also is reported as having given a history of ‘depression and anxiety since he was 20 years old’. There is no reference in this material to a history of military service, or to the incidents.
The first diagnosis of PTSD is in the report of Dr Pralay Mazumdar, Consultant Psychiatrist, to whom Mr Hollywood was referred by his GP. Included in exhibited material is a Department of Veterans’ Affairs (DVA) pro-forma diagnosis sheet completed by hand, dated 6 July, 2017 (R1 at pp 185). Dr Mazumdar diagnosed Mr Hollywood with PTSD with Depression and Alcohol Abuse. After referring to the overboard incident and ‘American army shooting children dead for nothing in Philippines’ it states, in my reading of the text:
These incidents happened between 24th May 71 & 6 April 72 when he [indecipherable]. Currently he experiences nightmares, flashbacks, extreme anxiety, reliving the experience and alcohol abuse and dependence as part/symptoms of P.T.S.D
Ms Alison Crotty, Psychologist, to whom Mr Hollywood was originally referred for pain management issues also made a diagnosis of PTSD. Her report dated 9 November 2017 (T28 at pp 123-128) refers to both of the critical incidents from Mr Hollywood’s naval service. In relation to the shootings, she reports that he witnessed ‘at least a dozen’ murders of civilians’. Her report does not reveal what other material she was briefed with, although she refers to Dr Mazumdar’s report. It appears that she administered tests to Mr Hollywood to assess his psychological state.
Ms Crotty states that Mr Hollywood reports ‘having suffered trauma-related symptoms since leaving the Navy in 1972’ and that they have ‘become more frequent, severe and intrusive since 1972’. She also refers briefly to incidents during naval training of what I would summarise under the term ‘bastardisation’; that is, unpleasant bullying conduct.
Ms Crotty states that Mr Hollywood’s symptoms are ‘consistent with a DSM-V diagnosis of Posttraumatic Stress’ and that he also suffers from alcohol dependence ‘secondary to his trauma-related symptoms and pain.’ Ms Crotty states that her opinion is supported by the clinical interview conducted by Dr Mazumdar. She states that Mr Hollywood suffers alcohol dependence and has used alcohol to manage physical pain and psychological distress.
Mr Hollywood was also diagnosed with PTSD, major depressive disorder, and alcohol use disorder in a consultation with Dr Anthony Cidoni, Consultant Psychiatrist, following referral by Mr Hollywood’s legal advisers. In his report of 27 August 2018 (R1 at pp 275-284) Dr Cidoni states that the PTSD symptoms started ‘around 1974’, with major depression and alcohol dependence from the 1980’s. He further concludes that PTSD is directly related to Mr Hollywood’s service, referring in particular to the overboard incident, the other conditions being secondary to it. Dr Cidoni makes relatively general references to the shooting incidents, stating that Mr Hollywood described seeing children shot by a U.S. soldier, children in the water used as target practice, and other people shot dead.
In support of his conclusion as to the onset of PTSD, Dr Cidoni cites Dr Mazumdar who he states found that ‘symptoms had their onset in 1972’. Dr Cidoni states Mr Hollywood reported symptoms comprised nightmares up to five nights a week, memories up to daily and flashbacks up to one to two times per month. He also described avoidance of triggering events, such as children running, with onset not specifically dated.
Dr Cidoni records Mr Hollywood’s history of alcohol use at up to one bottle of beer per day in the Navy, rising to a maximum of two bottles of wine and half a bottle of bourbon up to four years ago, and recently one litre of wine per night. Mr Hollywood reported binge drinking between shifts as a ferry driver.
Dr Cidoni also discusses the report dated 3 March 2017 by Dr Anthony Sheehan, Consultant Psychiatrist, to whom Mr Hollywood was referred by the DVA. In his report (T22, pp 89-101) Dr Sheehan diagnosed Mr Hollywood with alcohol dependence, dating to enlistment in the Navy in 1971, but found ‘currently reported clinical symptoms’ to be ‘subsyndromal’ and ‘do not fulfil the criteria for a diagnosis of posttraumatic stress disorder’. He states further that Mr Hollywood ‘reported no particular avoidant symptoms … he reported no flashbacks or other intrusive images or trauma symptoms’. Dr Sheehan does report a history of intermittent recurrent dreams related to the overboard incident.
In Dr Cidoni’s opinion, Dr Sheehan had not adequately documented Mr Hollywood’s symptoms and, while noting avoidant behaviour, failed to reference this in his diagnosis.
Associate Professor George Mendelson, Consultant Psychiatrist, prepared a report (R1, at pp 286-321) dated 30 November 2018 on behalf of the Respondent. He also appeared at the hearing to give evidence. In his report he found that ‘there is no basis for the diagnosis of Posttraumatic Stress Disorder’, and also made a diagnosis of ‘Alcohol Dependence, currently in partial remission (controlled alcohol consumption)’. I will address Associate Professor Mendelson’s oral evidence separately below.
In relation to PTSD, Associate Professor Mendelson stated in his report: ‘the extensive clinical records that I have reviewed do not contain any support for Mr Hollywood’s claims that he had experienced symptoms of PTSD since the incidents in early 1972’. Associate Professor Mendelson was of the opinion that symptoms were reported after having contact with an ‘RSL Advocate’ and in relation to a DVA white card application. Further, Associate Professor Mendelson stated there were no contemporaneous clinical records supporting a diagnosis. On this basis, he also disagreed with Dr Cidoni’s diagnosis, although acknowledging that Dr Cidoni made that diagnosis having ‘accepted as accurate the history given to him’ by Mr Hollywood.
Associate Professor Mendelson’s report includes the following relevant history taken from Mr Hollywood about the incidents:
·‘regular’ nightmares for the past 46 years about trying to swim;
·that he had been in the sea for forty minutes while the logbook records a period of eleven minutes;
·an American serviceman shooting children in the water; and
·a few days after, a policeman shooting a child in the head and Mr Hollywood being ‘splattered with blood and brains’.
At another point in his report Associate Professor Mendelson describes both shootings as taking place in Olongapo City.
Associate Professor Mendelson records Mr Hollywood as having told him that ‘I learned to drink in the Navy’. He also reported ‘problems with alcohol’ following the workplace accident in 2004 and at one stage drinking up to 20 standard drinks a day.
Associate Professor Mendelson records a typewritten version of Dr Mazumdar’s report provided to him which is different to the version set out above. The typewritten version reads as follows:
These incidents happened between 24th May 71 and 6th April 72 when he was in ADF consequently he experience [sic] Nightmares flashbacks extreme anxiety reliving the experience with alcohol abuse and depression as part/symptom of PTSD.
Associate Professor Mendelson also considered Dr Whittington’s report. As noted above, Dr Whittington diagnosed Mr Hollywood with Major Depressive Disorder and Alcohol Dependence. Associate Professor Mendelson notes that Dr Whittington records that Mr Hollywood had, at that time, no formal past psychiatric history and provided no history of incidents while serving in the Navy.
Associate Professor Mendelson’s report also considers a range of other medical and psychological treatment received by Mr Hollywood in relation to his then employment related claims. Associate Professor Mendelson observes that these reports, covering a period of 13 years, do not reference naval service. In treating reports, Mr Hollywood’s presentation of severe depression, anxiety and alcohol use at that time was related to the associated work related injury.
Associate Professor Mendelson reports that Mr Hollywood told him that he had experienced depression associated with anxiety commencing when he was about 20 years old. The report also notes a history of treatment with antidepressants and anxiolytic medication since 2002. Associate Professor Mendelson diagnosed Dysthymia, a subtype of Persistent mood [affective] disorders.
As noted above, Associate Professor Mendelson diagnosed Alcohol dependence in partial remission. He states further that there is ‘no support for the view that Mr Hollywood’s Alcohol Dependence was attributable to his service in the RAN’, citing in support the report of Dr Whittington.
Mr Holywood’s evidence
Mr Hollywood gave evidence that on 1 February 1972, he was directed to paint a portion of the ship which required him to hang over the side. He tied himself off with a rope, however his rope gave way and he fell back while painting after some rubbish was thrown overboard by other sailors. The ship continued on and he ‘was told’ a helicopter was sent to locate him, and then he was picked up by the sea boat. Mr Hollywood stated that he has two nightmares, one where the ships ‘screws’ are coming and he could not swim away, and another where the ship sails away.
In relation to the shootings, Mr Hollywood stated that in the Philippines he teamed up with an American sailor and when crossing a bridge over what was called ‘Shit Creek’ he saw an American civilian shooting at children. Later, in Manila, he saw a ‘kid shot’ dead, ‘blown to bits’. He acknowledged that he may have in the past confused the location of events and had previously reported the second shooting had been in Olongapo City. Mr Hollywood stated he had not told anyone about the shootings, including his wife, until around ten years ago.
Mr Hollywood described some episodes of drinking in and around his service and he also referred to drinking in relation to the deaths of family members in the years following his service. He gave brief evidence about his experience in the workforce, his period of inpatient admission and his workplace accident in 2004 when he was a ferry driver. He stated he became depressed because he had been a skipper/captain but following that accident was no longer working.
A statement from Mr Hollywood’s wife dated 11 October 2018 was taken into evidence (Exhibit A1), but she did not give oral evidence. In this statement, Mrs Hollywood states that her life after marriage in 1973 what ‘not as I envisaged it would be’. This was because her husband: ‘drank more alcohol … he drank with friends and at home. Sleep eluded him and bad dreams flourished. The alcohol did not help’. Her statement also notes that: ‘his mental health issues were always there, reminding him of falling overboard. His hypervigilance was constant’. These statements all appear in the context of their early years of family life.
Mrs Hollywood confirms in her statement some aspects of Mr Hollywood’s service that also appear in the medical record more generally. That is, that following what appears to have been a successful period in recruit training, Mr Hollywood decided that he did not want to continue his career in the Navy. Despite being persuaded to continue his service, Mr Hollywood subsequently left his first official post without approval of leave and spent a total of 53 days away, most of it with her. His parents assisted in returning him to the Navy, who fined him and posted him to HMAS Stalwart.
In cross-examination, Mr Hollywood confirmed his period of military service between May 1971 and April 1972. He also confirmed he was discharged fit for duty, and was not aware of any psychological issues at this time.
Mr Hollywood was shown a DVA Claim Form completed by him and a medical practitioner dated 28 June 2015 (T10, pp 21-36). He was questioned about the section describing ‘Psych. Problems’; ‘Sleeping disorders from seeing ship sail away after falling overboard’. In response to the question ‘When did you first become aware of the signs and symptoms of the disability, or aggravation of the disability?’ Mr Hollywood wrote ‘1972’. Mr Hollywood stated in evidence that this was a reference to the incident and not the onset of symptoms.
Mr Hollywood was asked when he first experienced nightmares and he responded ‘not in 1972’ but rather ‘way down the track’. He stated that he first experienced nightmares in the mid to late 1980’s, at a time when he experienced hallucinations about deceased family members.
In relation to his work history, Mr Hollywood confirmed that he had worked as a deck hand on a square rigged vessel on the Gold Coast, and on the Brisbane River ferry service from 1996. When asked about this history of work on the water, Mr Hollywood stated that he was comfortable on water ‘so long as I can see land’. He confirmed in evidence that he currently lives on a converted fishing trawler and had done so for the past five years.
Mr Hollywood stated that the first person to suggest to him he may have PTSD was Mr Churchward. He also stated this was the first person he had told about seeing children shot. He believed that he may have seen another psychologist between 2004 and 2008, drawing on Mr Churchward’s notes of a consultation at Bond University.
Mr Hollywood stated that he ‘never wanted to talk about’ PTSD but came to the realisation he may have the condition within the last one to two years. He confirmed that he had received assistance from an RSL advocate from the time of his father’s death around 2012 or 2013. His father had been in possession of a DVA Gold Card himself.
Associate Professor Mendelson’s evidence
Associate Professor Mendelson confirmed his diagnosis of Dysthymia or persistent mood disorder, and intermittent anxiety and depression, more severe after 2004. He was asked about the conclusion in his report that Mr Hollywood did not suffer PTSD and that his current condition is not caused by his naval service. Associate Professor Mendelson stated that a diagnosis of PTSD requires both psychological and biological reactions. He stated that nightmares can be a manifestation of PTSD, but alone are not sufficient. Other symptoms include reliving or flashbacks, dissociative experiences and also hyperarousal, nervous system priming and a reclusive lifestyle. Associate Professor Mendelson stated that a diagnosis generally requires, in addition, corroboration.
In response to a question from myself Associate Professor Mendelson stated that his diagnosis was based on the World Health Organisation’s ICD-10 (referenced in his report in relation to Dysthymia). He stated that ICD-10 is not as specific or prescriptive as DSM-V, which he considered uses a ‘checklist’ of symptoms. Further, as to the issue of corroboration, Associate Professor Mendelson clarified that, in his opinion, it was important for there to be consistency in symptoms from the time of the traumatic stress.
In cross examination, Mr Hollywood asked Associate Professor Mendelson why he disagreed with all the other opinions provided and did not address alcohol abuse issues. Associate Professor Mendelson observed that Ms Crotty was not a clinical psychologist, and stated that he did deal with Mr Hollywood’s alcohol disorder. It was put to Associate Professor Mendelson that he ‘cherry-picked’ background information and spent only one hour and twenty minutes in consultation with Mr Hollywood. Associate Professor Mendelson replied that he spent time reviewing the documentary record looking for consistency in history.
Mr Hollywood proposed to Associate Professor Mendelson that there ‘were things I didn’t tell people’ and had not taken into account his alcohol use. Associate Professor Mendelson stated that in his opinion, Mr Hollywood was functioning prior to 2004. Based on his understanding of his reported history, Mr Hollywood became qualified, worked effectively and, notwithstanding other work incidents and medication, his life was ‘proceeding in a reasonable fashion’. Associate Professor Mendelson stated that Mr Hollywood’s symptoms did not lead to impairment of function to a clinically significant extent.
In response to a question from myself about differences in reported histories, Associate Professor Mendelson stated that people with PTSD do sometimes have difficulty telling people about their symptoms and psychological symptoms in general, but this has to be weighed against a person’s ability to function in society.
SUBMISSIONS
In the written statement lodged with the Tribunal on Mr Hollywood’s behalf, it is submitted that Dr Cidoni’s diagnosis of PTSD should be accepted. While the submission notes that Dr Cidoni stated that the condition became symptomatic in 1974, it is also submitted that the condition could be considered as having had a delayed onset. The decisions of the Supreme Court of Victoria in Wright v Commonwealth of Australia [2005] VSC 200 and of the Tribunal in Read and Military Rehabilitation and Compensation Commission [2017] AATA 1109 were cited in support of this submission.
It was further submitted that it is open to the Tribunal to find that if Mr Hollywood first sought treatment for PTSD in 2008, the relevant legal test was whether the condition was contributed to ‘to a significant degree’ by Mr Hollywood’s employment. The submission refers to Dr Cidoni’s conclusion that the overboard incident was a significant cause of the PTSD.
In relation to alcohol dependence, it was submitted that the Tribunal should conclude that Mr Hollywood used alcohol to mitigate the emerging symptoms of PTSD. As he was first diagnosed with alcohol dependence by Dr Whittington in 2006, it is submitted that the relevant test of causation is that of ‘material degree’.
At the hearing Mr Hollywood himself submitted that his symptoms did not manifest until ‘later on’, that it he did not ‘wake up in 1972 with PTSD’. He stated that he only recently accepted that it might apply to his situation. Mr Hollywood also stressed the concept of comorbidity; that both conditions ‘ran at the same time’.
The statement lodged with the Tribunal on behalf of the Respondent submits that the reports of Associate Professor Mendelson and Dr Sheehan are to be preferred, noting the absence from the extensive medical record of a history consistent with psychological trauma arising from Mr Hollywood’s service in the Navy. It distinguishes the reports of Dr Cidoni, Dr Mazumdar and Ms Crotty as they are not supported by contemporaneous clinical records. The statement contends further that the conditions diagnosed by Associate Professor Mendelson were not contributed to, to a material or significant degree, by his service.
At the hearing it was submitted on behalf of the Respondent that given the acceptance of alcohol dependence in Mr Hollywood’s WorkCover claim, the primary issue before the tribunal was the PTSD claim. The opinion of Associate Professor Mendelson is to be preferred and the Respondent accepted the submission on behalf of Mr Hollywood that this should be understood as arising in 2008, and that the relevant causal test was whether his service contributed to it ‘to a significant degree’. It was submitted that the Tribunal should be cautious when applying the exceptions under s 5B(2) of the SRC Act given the state of the medical evidence in which there was a lack of references to his service in the majority of the documentary record.
CONSIDERATIONS
Medical conditions
The first issue for consideration is whether Mr Hollywood suffers from the claimed conditions of PTSD and alcohol dependence. Issues that arise in relation to PTSD are:
·the incidents said to give rise to the condition;
·the consistency in evidence relating to onset of symptoms; and
·the divergent diagnoses.
I am satisfied that when serving in HMAS Stalwart, Mr Hollywood fell overboard and was rescued. His history of the time spent in the water appears to have varied and to contrast somewhat with the official record. However, I do not consider this aspect of the evidence to substantially affect the finding.
I am also satisfied that Mr Hollywood was present in both Subic Bay and/or Olongapo City, and also Manila, during his time in HMAS Stalwart. However, Mr Hollywood has given different versions of the shooting incidents over time. The first recorded version is the brief note in Mr Churchward’s records in 2008. He next provided a history to Dr Sheehan in 2017 referring to shootings. The timing of the record made by Mr Churchward is consistent with Mr Hollywood’s own evidence at the hearing that he had told no one, including his wife, until around ten years ago.
I note that the Tribunal has addressed similar claims in other matters. These include the shooting of civilians in Olongapo City in 1965,[1] the shooting of a civilian in Subic Bay in around 1970/71,[2] and a child being shot in Subic Bay in 1974.[3] In these decisions the Tribunal did not accept that the incidents described actually took place. Two further decisions address claims of the shooting of U.S. servicemen.[4] While the particular findings in these decisions to not bear directly on Mr Hollywood’s claims, they may indicate that the experience he asserts is not entirely unknown. However, they also might indicate that such claims need to be carefully scrutinised.
[1] O’Leary and Repatriation Commission [2002] AATA 583.
[2] Phillips and Repatriation Commission [2011] AATA 602.
[3] Profitt and Repatriation Commission [2006] AATA 250.
[4] Hicks and Repatriation Commission [2004] AAT 266 and Langfield and Repatriation Commission [2001] AATA 888.
Scrutiny is required due to the inconsistencies in Mr Hollywood’s descriptions of the shooting incidents. Specifically, the references in some accounts to Mr Hollywood witnessing multiple shootings, beyond the two specific incidents cited, and a possible total of ‘at least a dozen’ overall. There are also variations in numbers apparently reported in relation to the shooting at the creek. In several accounts no figure is placed on the numbers, but elsewhere it is stated to be eight to nine.
Given the, at times, very graphic description of the shooting of a young child, I think it reasonable to expect Mr Hollywood to have a very strong recollection of these events. Further, while I accept Mr Hollywood’s presence in the locations in question, it seems implausible that he may have experienced such a potentially high number of shootings in a period of time spanning approximately five days and four nights in total.
Against these concerns, I take into account several factors. I note that the earliest independent medical record is dated many years prior to Mr Hollywood seeking to make claims for compensation, which suggests that the history is not a recent invention. Mr Hollywood provided in evidence an account of the silence he claims to have maintained over the years in relation to the incidents, and attempted to address the variation among the locations for the shootings. Moreover, the shooting incidents were not pursued in cross examination at the hearing and, overall, the Respondent has not raised a direct challenge to the evidence.
On balance, therefore, I am unable to positively find that the shooting incidents did not take place. I accept, however unlikely, that there is at least a possibility that the events, or events like those described, may have taken place.
The earliest medical material relating to PTSD is equivocal. There is an indirect reference to PTSD in the notes of Mr Churchward (‘possible PTSD’), in 2008. This relates to a consultation that Mr Hollywood stated in evidence took place with a psychologist at Bond University sometime between 2004 and 2008. Neither amounts to evidence of a diagnosis of PTSD.
There is a body of later medical opinion supporting a diagnosis of PTSD including the opinions of Dr Mazumdar in 2017, followed by that of Ms Crotty later the same year and then Dr Cidoni. This material, in general, cites a history of symptoms going back to the time following Mr Hollywood’s departure from the Navy. Only Ms Crotty states the diagnostic tool used, which was DSM-V.
These reports largely reflect the evidence provided by Mr Hollywood’s wife, although she did not give oral evidence at the hearing. In contrast, Mr Hollywood himself was clear in his evidence. He stated that what might be understood as symptoms of PTSD did not emerge until the 1980’s.
The Respondent’s specialist reports do not support the diagnosis of PTSD. Dr Sheehan found it was ‘subsyndromal’, and Associate Professor Mendelson diagnosed a separate condition. Specifically, Associate Professor Mendelson was of the opinion that PTSD symptoms were not corroborated, particularly given the absence of references to Mr Hollywood’s military service elsewhere in the medical record. He was also of the opinion that Mr Hollywood’s personal history in general did not reveal the kind of functional impairment required to support a diagnosis.
Having considered the written and oral evidence in relation to PTSD, I am not persuaded that Mr Hollywood can be considered to have this condition. I prefer the evidence of Associate Professor Mendelson for the following reasons. His written report is far more extensive than any other report provided. He examined very thoroughly a large documentary record, and explained in evidence how this informed his diagnosis. This includes his observation on the absence of references to military service for a very large portion of Mr Hollywood’s extensive medical record. I note this itself includes specialist assessment of Mr Hollywood’s mental health arising in the WorkCover Queensland claim, and his period of inpatient admission.
I do not accept that Dr Mazumdar’s short handwritten diagnosis adequately reflects the state of the evidence regarding the onset of Mr Hollywood’s symptoms. Ms Crotty relied on this report in part in making her diagnosis. Given Associate Professor Mendelson’s observations about Ms Crotty’s professional qualifications, I note from her report she holds Graduate and Postgraduate Diploma level qualifications in Psychology and holds a Master of Psychology, specialising in Health Psychology. Dr Cidoni relied in part on these diagnoses in reaching his own opinion.
Dr Cidoni was not called to give evidence. His report, while thorough and based on a range of other written material, is not as comprehensive as that of Associate Professor Mendelson. I also note that he relied upon the history provided by Mr Hollywood regarding the onset of symptoms. As noted above, Mr Hollywood’s own oral evidence appears to contradict this history.
I note the submission made in relation to possible late onset of PTSD. Again, I prefer the opinion of Associate Professor Mendelson which I find to be most consistent with the evidence overall. Further, his opinion was framed, in evidence, in the context of the diagnostic criteria he used which I consider allows me to place additional weight on his opinion.
Does Mr Hollywood suffer from alcohol dependence? There is consistency of diagnosis in relation to this claim, with the distinction that in Associate Professor Mendelson’s opinion, Mr Hollywood’s alcohol dependence is in partial remission. This diagnosis was not explored at the hearing, although I note the observation in his report that Mr Hollywood’s alcohol use is ‘controlled’.
I understand remission to refer to a lessening, or absence, of symptoms, in which case ‘partial remission’ indicates some continuing experience of the condition. I therefore accept on the material provided that Mr Hollywood has the condition alcohol dependence.
The issue that then arises is when this condition manifested and what causal test should be applied in relation to the relevant military service. Associate Professor Mendelson expresses the opinion that Mr Hollywood’s alcohol dependence is not related to his military service, relying on Dr Whittington’s report. Dr Cidoni accepts that the condition relates to Mr Hollywood’s service, relying on Dr Sheehan’s report.
There is little if any distinction across the various medical reports as to a link between Mr Hollywood’s alcohol dependence and his prior medical history related to his accepted worker’s compensation claim. The reports of both Dr Whittington and Dr Sheehan explicitly relate alcohol dependence to pain management issues.
There is also evidence that Mr Hollywood consumed alcohol in volume prior to his 2004 workplace injury and consequent diagnosis of dependence. It is the evidence of Mrs Hollywood that he drank at a level that affected his relationship with her from the early days of their marriage, that is from shortly after leaving service. While Ms Crotty refers to alcohol use in relation to trauma, she also more specifically notes that Mr Hollywood’s alcohol use is related to pain management, and reduces with better pain management.
Dr Sheehan made a finding that there is a greater than 50% contribution of Mr Hollywood’s service to the condition, based on the information provided by Mr Hollywood that he commenced drinking in the military. However, as noted, Dr Sheehan also observes that alcohol intake increased in response to pain management issues. I also note that Mr Hollywood joined the military at the age of eighteen which appears on its own to be sufficient to explain the reported absence of alcohol use prior to naval service.
On balance, based on the material before me, I am satisfied that Mr Hollywood’s alcohol dependence arose in relation to pain management associated with a workplace injury in 2004.
Accordingly, the legislative framework that applies is that in place under the SRC Act between 1988 and 2007. Under s 4(1) of the SRC Act as made, an ailment includes mental ailment and I therefore consider alcohol dependence to be an ailment. Further, ‘disease’ is defined as any ailment, or its aggravation, that was ‘contributed to, to a material degree, by the employment’. I consider that ‘material’ is best understood as requiring a level of contribution that is substantial or considerable, in the context of other possible contributing factors.[5]
[5] Per Finn J in Comcare v Sahu-Kahn [2007] FCA 15, at paragraphs 13-16.
I find, for the reasons set out above in relation to the making of the diagnosis, that Mr Hollywood’s alcohol dependence does not meet this evaluative threshold.
CONCLUSION
I accept that Mr Hollywood’s period of military service was somewhat atypical. It is also the case that Mr Hollywood himself was deeply ambivalent about a career in the military, resulting in it being extremely short. However, I accept that the overboard incident was most likely a challenging experience. I am less satisfied that the shooting incidents occurred, but cannot state with any confidence that they did not take place. However, as stated above, I am not satisfied that he has PTSD as claimed. Mr Hollywood has a long and complex medical history. A significant component of this history arises from his employment elsewhere, and this is specifically the case with his alcohol dependence.
DECISION
For the reasons given, the Tribunal affirms the decision under review.
I certify that the preceding 94 (ninety-four) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member
.....[sgd]...................................................................
Associate
Dated: 29 November 2019
Dates of hearing: 29 and 30 August 2019 Applicant: In person Advocate for the Respondent: Nam Nguyen Solicitors for the Respondent: Sparke Helmore Lawyers
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