Jennifer McKinley and Repatriation Commission
[2014] AATA 670
•12 September 2014
[2014] AATA 670
Division VETERANS' APPEALS DIVISION File Number(s)
2013/4333
Re
Jennifer McKinley
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Mr John Handley, Senior Member
Date 12 September 2014 Place Melbourne The Tribunal affirms the decision under review.
...............................[sgd].........................................
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – operational service in East Timor – whether alcohol dependence war-caused – diagnosis of psychiatric condition – whether applicant suffers posttraumatic stress disorder (PTSD) – previous application before the Tribunal concerning generalised anxiety disorder (GAD) – whether applicant estopped from pursuing current application – applicant entitled to pursue current application – finding of diagnosis of GAD and alcohol use disorder – neither war-caused – incidents relied on by applicant were not 1A or 1B stressors – decision affirmed.
LEGISLATION
Veterans' Entitlements Act 1986
Administrative Appeals Tribunal Act 1975
CASES
Re McDonell and Repatriation Commission (2013) 133 ALD 660
Comcare v Grimes and Another (1994) 50 FCR 60
Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80
Grant v Repatriation Commission (1999) 57 ALD 1
Summers v Repatriation Commission (2012) 130 ALD 32
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Border No 2 (2010) 191 FCR 163
Repatriation Commission v Bawden (2012) 206 FCR 296Woodward v Repatriation Commission (2003) 200 ALR 332
SECONDARY MATERIALS
Statements of Principles
Instrument N° 1 of 2009 concerning Alcohol Dependence and Alcohol Abuse
Instrument N° 29 of 2014 concerning Alcohol Use Disorder
Instrument N° 101 of 2007 concerning Anxiety Disorder (as amended by Instrument N° 42 of 2010 and N° 15 of 2011
Instrument N° 5 of 2008 concerning Posttraumatic Stress Disorder
Instrument N° 19 of 2014 concerning Posttraumatic Stress Disorder
REASONS FOR DECISION
Mr John Handley, Senior Member
Ms McKinley, the applicant in this review, was a member of the Australian Army between 12 February 1986 and 12 October 2005. She was engaged in operational service between 10 October 1999 and 1 February 2000 in East Timor.
The applicant was a Sergeant in the 1st Combat Service Support Battalion in Darwin as an administrative clerk. She was deployed to East Timor as a member of the 1st Combat Service Support Team (1CCST) which had been formed in September 1999 to support the 5/7 Royal Australian Regiment.
The applicant currently receives pension at 60 per cent of the general rate for knee and ankle injuries. In a Statement of Facts and Contentions lodged prior to the commencement of the hearing, the applicant’s solicitor contended that the accepted and claimed conditions, alone, impede the applicant from working more than 8 hours per week. Accordingly, it was contended that the applicant has an entitlement, eventually, for special rate pension payable pursuant to s 24 of the Veterans’ Entitlements Act1986 (the Act).
Previous application
The applicant previously made a claim upon the respondent arising out of the same period of service in East Timor, which ultimately concluded with a decision of this Tribunal (V200500970). The history of that application is as follows:
oa claim was made on 25 February 2005 for acceptance of the condition of Post Traumatic Stress Disorder (PTSD);
oa delegate of the respondent decided that the condition then suffered by the applicant was more properly diagnosed as generalised anxiety disorder (GAD). It was also decided that that condition was not related to the applicant’s operational service;
othat decision was affirmed by the Veterans’ Review Board (VRB) on 22 September 2005;
oduring the hearing in this Tribunal (differently constituted), Counsel for the applicant submitted that the preferred diagnosis was anxiety disorder. A consultant psychiatrist, who reported on behalf of the respondent, concluded that the applicant suffered a depressive disorder. In evidence, he agreed that the applicant also had an anxiety disorder. The Tribunal made that finding on the balance of probabilities (T16, paragraph 9, 10 and 13);
oconsequently, the Tribunal did not find that the applicant suffered PTSD
othe applicant did not claim, nor was any decision made by the respondent, the VRB or the Tribunal concerning alcohol abuse or dependence. The Reasons for Decision in the previous application record that the respondent conceded that if the Tribunal made a finding of war-caused depressive disorder, the respondent would concede that alcohol dependence was a secondary consequence.
othe Tribunal affirmed the decision of the VRB, on 3 May 2007.
Current application
This application has its origin in a claim:
omade by the applicant on 30 November 2012 for acceptance of the conditions of PTSD and alcohol abuse;
oOn 3 December 2012, a delegate of the respondent decided that the appropriate diagnoses were GAD and alcohol dependence. He also decided that neither condition was war-caused;
othe VRB affirmed the delegate’s decision on 30 May 2013. That is the decision under review in these proceedings; and
oCounsel for the applicant submitted that a finding should be made that the applicant does suffer PTSD and alcohol dependence attributable to her operational service.
Is the applicant entitled to pursue this application?
The respondent submitted that the applicant was estopped from making this application for review.
On a number of occasions, the Tribunal and the Federal Court have decided that issue estoppel does not apply in this Tribunal (ReMcDonell and Repatriation Commission (2013) 133 ALD 660 at [5]; Comcare v Grimes and Another (1994) 50 FCR 60 at 64 and 67; Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80 at [28]. Additionally, the Tribunal is entitled to determine the scope of a review and may inform itself in such a manner as it thinks appropriate (Administrative Appeals Tribunal Act1975 s 25(4A) and 33(1)).
Counsel for the applicant contended that his client was making a fresh application based on new Statements of Principle. He conceded that the decision previously made could not be ignored nor could the contents of documents received into evidence in that review be disregarded. However, he submitted that the current application was distinct from the previous application because the applicant does seek a finding of war-caused PTSD, as the appropriate diagnosis and this application also pursues acceptance of the condition of alcohol dependence which was not sought in the previous review.
Counsel for the respondent submitted that Statements of Principles (SoPs) issued subsequent to the previous application were of no relevance because the outcome of the review will be dependent on findings of fact. He submitted that an examination of the published Reasons for Decision in the previous application demonstrated that the correct or preferable decision was made on the material then before the Tribunal.
Subsequent to the conclusion of the hearing, both representatives lodged submissions on the estoppel issue which have been considered.
It is not difficult to imagine that the respondent would be frustrated by the current application. The applicant was previously represented by competent solicitors, well experienced in the veterans’ division of this Tribunal and by reputable counsel who conceded that the appropriate diagnosis was anxiety disorder. However, this application may be distinguished from the previous application. Whilst the applicant is seeking a finding of war-caused injuries based on the same period of operational service and is, in large part, relying on the same events, she is claiming an illness not previously litigated namely, alcohol dependence; she is pursuing PTSD and on the basis of material not before the previous Tribunal and she also sought an entitlement to special rate pension pursuant to s 24 of the Act, which was not previously claimed.
Additionally, it is arguable that her circumstances have changed to the extent that one of the treating doctors, Dr Peterson, reported previously that the applicant suffered from generalised anxiety disorder. He is now of the opinion that the applicant suffers from PTSD. From March 2014, the applicant has also been treated by Dr Jenkins, a psychiatrist, who gave evidence that she now suffers PTSD attributable to her service in East Timor. It follows that the findings of fact previously made may not be wrong; it may simply be … that the correct or preferable finding is one different from that previously made (Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80 at [28]).
Accordingly, I am satisfied that the applicant is not estopped from pursuing this application.
Evidence in the previous application
The Tribunal file of the previous application has been destroyed. Some of the documents relied on in the previous application are found within the T-documents in this application. The Tribunal has preserved, electronically, a copy of the list of exhibits which record a statement of the applicant dated 17 October 2005 (T10, p. 146) and a report from Writeway Research Service Pty Ltd dated 11 August 2006 (T13, p. 177). Those documents were tendered as Exhibits A1 and R3 respectively, in the previous application. The electronic record reveals that the applicant and Dr Strauss, a consultant psychiatrist, gave evidence.
The Writeway report was prepared following research by the Lieutenant Colonel Barry Morgan from 11 sources recorded by him at pages 10 and 11 of the report, being historical records, commanders’ diaries, personnel and medical records, Australian Defence Force websites and the book Mission Accomplished, East Timor: The Australian Defence Force Participation in the International Forces East Timor (INTERFET) written by Bob Breen. He distilled 10 incidents from the applicant’s statement and individually reported on them. Those incidents will be recorded below and his response to them, having regard to his research, will immediately follow (in italics):
(i)On her arrival at Dili airport the applicant recalled there were armed military personnel present. She and other comrades were in close proximity to East Timorese military and civilians. The atmosphere was tense, she was concerned for her safety but as a Sergeant she had leadership responsibilities and elected to appear calm whilst repressing her fears.
In the period 20 to 29 September 1999, the numbers of Indonesian Armed Forces (TNI) had reduced from 15,000 troops to a garrison of 1300 in Dili. Indonesian air force and marines had withdrawn from Comoro airfield and the port of Dili. INTERFET (International Forces East Timor) troops were in control of the airport from 28 September 1999. It is unlikely that any East Timorese civilians would have had weapons at the airport on 11 October 1999 when the applicant arrived.
(ii)When travelling from the airport to her base, the applicant sat in the front passenger seat of a Land Rover and was ordered to be at action where her rifle was loaded and ready to fire but without the release of a safety switch. The rifle was pointing out of the window and she was told to be vigilant.
On 11 October 1999 during discussions between 2 senior officers of INTERFET and TNI respectively, large numbers of East Timorese were reported to be yelling abuse outside a TNI compound. By mid-October, displaced East Timorese persons returning to Dili were abusing TNI personnel. On 11 October 1999, INTERFET forces numbered 5400 persons and on 12 October 1999 markets in Dili had reopened. Operational updates indicated Dili was returning to normality. Whilst clashes were continuing on the western border of East Timor, there were no reports of threats to which the applicant would have been exposed upon her arrival in East Timor.
(iii)An abandoned school building was used as accommodation after walls and the floor, which were covered in in blood and excrement were cleaned. The walls had bloody hand prints and messages written in blood warning Australian troops to leave East Timor.
An entry in the Commanders War Diary dated 15 and 16 October 1999 recorded that obtaining suitable accommodation had been a big problem. The apparent absence, previously, of conventional toilets was obvious.
(iv)The applicant travelled to Dili on approximately 6 occasions in the company of others. She was ordered to be armed at all times. On each occasion, she was terrified, she feared attack from civilians and local military and was aware of the risk of injury from pipe bombs. She was accompanied by junior soldiers and her fears were hidden.
The ADF East Timor handbook recorded that persons should not enter areas where they may be an easy target. It also records that the local militia were known to use a handmade pipe gun but there are no references to pipe bombs. Two persons from the army history unit who were in East Timor in October and November 1999, reported they had not ever seen pipe bombs amongst weapons that had been collected by Australian troops, nor had they heard of or been briefed on pipe bombs.
(v)The applicant, who had learnt the local language, overheard conversations with some local persons indicating that she and others were intruders, were interfering and did not want them to have a presence in East Timor. She could not distinguish civilians who supported or opposed the presence of Australian troops which caused her to be unable to trust any local persons.
As the TNI were loading their personnel onto an Indonesian ship on 13 October 1999, they cocked their weapons at East Timorese persons and were yelling abuse at them. TNI commanders eventually calmed their troops. Descriptions and photographs in the ‘Mission Accomplished’ book recorded many references to East Timorese persons being happy to witness the departure of the Indonesians and welcomed the INTERFET presence. There were examples of vigilantism within a small group of Falantil members, some of whom were detained, investigated and charged with offences. Some East Timorese persons were employed by 1CCST. They were also engaged in sporting activities with Australian personnel and references to those activities within the War Diary of the Commanding Officer indicated that he trusted the local employees.
(vi)The applicant recalled travelling on one occasion to Balibo and said she was ordered to be at action. She and the driver occupied the vehicle, she was scared for her safety and she sat with her rifle out of the window throughout the journey. The applicant recalled that she stayed in Balibo overnight.
An entry in the War Diary on 19 October 1999 recorded that members engaged in transport were “enjoying the trips out to the Badlands and morale continues to be high across the team.” Balibo was under the control of 2 RAR until it was relieved by 5/7 RAR on 3 January 2000. If one vehicle containing 2 persons only is travelling, standard operation protection measures dictated a ‘low threat state,’ defined as weapons can be slung but loaded (T13, p. 194). The applicant’s description of the journey does not suggest that the weapon state was ‘action’ which is defined as weapons to be carried at all times, minimum of 2 vehicles and 4 personnel with weapons, frag vest and helmet to be worn. There was no record found of the applicant’s journey on this occasion.
(A general description of a low threat state is found at Attachment 1 to the Writeway report – T13, p. 210 – which records that there is a threat greater than associated with peacetime service training; direct opposition is not expected; introduced dangers are prevalent; local violence and civil disturbance or terrorist activity may present a threat; the operational situation is stable and generally secure.)
(vii)The applicant recorded that at around Christmas time her commanding officer accused her of being antisocial. She recorded that she did not mix with other persons outside duties because she needed time to compose herself. She also recorded that she often cried when in the shower but otherwise pulled herself together and did not show fear.
The Commanding Officer did identify persons’ in his War Diary either by name or appointment, for good or bad reasons when they came to his attention. The applicant’s name is not recorded in his diary. Three entries made by him on 22, 23 and 25 December recorded comments such as ‘all log staff are now in the groove and operating well;’ ‘morale is reasonably high’, ‘very very high’ and ‘still super high;’ ‘no problems, no complaints, no need for micromanagement.’
(viii)There was an occasion when the applicant was ordered to stand to after a suspicious sighting, at night, outside the perimeter. The applicant recalled standing at her window keeping watch with her rifle ready. She observed flashes of gunfire and could hear noise which indicated that the action was close.
Other than an occasion during a drill on 25 October 1999 – refer contention (ix) below, the only record located of a person standing to in the 1CSST compound at night, was of a dentist, who received a signal whilst on duty of a potential militia attack ‘in the West’ on 20 October 1999. There is no record in the Commander’s War Diary of any flashes of gunfire.
(ix)There were occasions where the applicant was engaged in perimeter patrols outside the wire to ensure insurgents were not hiding. She recalled that wearing a Kevlar vest was not likely to save her from a pipe bomb explosion. During her tour, she was never shot at nor did she see anyone killed or shot.
The commanding Officer recorded in his War Diary on 25 October 1999 that 1CSST personnel were drilled in ‘stand to’ and ‘actions on’ in connection with security procedures when engaged in roving patrols within the wire. This entry points to 1CSST personnel being required to undertake perimeter patrols.
(x)The applicant attended the hospital at Dili and saw casualties which contributed to her emotional state.
The Writeway report records that there were a number of hospital facilities in or around Dili. They were the 1st Field Hospital, also known as the INTERFET hospital, initially located at Dili airport but moved later to a building which was a former museum and a medical support unit established within the 1CSST compound. The INTERFET hospital and the medical unit at 1CSST treated INTERFET and East Timorese civilian casualties. The United Nations Military Hospital was established after the applicant left East Timor on 23 February 2000. There is a record of the applicant attending an appointment at the INTERFET hospital on 27 December 1999 (refer to paragraph 30).
Evidence in this application
The applicant gave evidence in this review and relied on a statement prepared by her on 11 December 2013 (Exhibit A1).
The applicant said she has not worked since she was discharged from the Army, as medically unfit, in 2005. She said there are days when she is unable to leave her home, she is unable to cope with crowds and other people and her anxiety and depression gets the better of her.
In her statement, the applicant referred to 6 of the incidents recorded above. She did not refer to the incidents numbered (ii), (v), (viii) and (ix).
In relation to her arrival at Dili airport (incident (i) above), the applicant recorded that she:
… was confronted by Indonesian Soldiers who had their rifles pointed at two of the girls who were with me. I understood Indonesian and overheard them saying things to the effect that the soldiers could take these girls around the back, have their way with them and no one would know. I told these girls to get out of sight and not to go anywhere on their own. This incident frightened me enormously as I was responsible for the girls (Exhibit A1 at [12]).
In her evidence, the applicant confirmed the presence of Indonesian soldiers. When she was reminded in cross-examination that she had not identified those persons in her first statement, she said she was sure they were there. When she was reminded that the historical records obtained for the preparation of the Writeway report revealed that Indonesian troops had withdrawn from the airfield in the preceding month, she said that she had remembered seeing them. She also said that she was highly medicated on her arrival at Dili.
The applicant was taken to the findings made by the Tribunal in the previous review (T16, at [19])), which recorded that she had thought that armed soldiers present at the airport may have been Indonesian and may have been hostile, she could not recall any hostile acts. It was suggested that those findings were inconsistent with her evidence in this review and in her most recent statement that rifles were pointed at her and some of her colleagues. She said she could not recall whether she was affected by prescription medication when she gave evidence in the previous application.
The journey to Balibo was the subject of incident (vi) above. In paragraph 13 of her recent statement, she recorded that when she travelled to Balibo, Indonesian soldiers were talking about disposing people and they were alluding to her. She understood their language because she had been trained as a linguist. In her evidence, she recorded that the Indonesians had been saying how easy it would be to get rid of us. She said those comments were really frightening and she has nightmares about that experience.
The applicant’s attention was drawn to her previous statement which did not make any reference to the presence of Indonesian soldiers or overhearing conversations of any type. It was suggested to her that the journey to Balibo was not the subject of any findings in the previous Tribunal decision. However, at paragraph 24 of his reasons, Member Ermert referred to the sixth incident and this appears to be the occasion the applicant travelled to Balibo. The evidence before the Tribunal was of the applicant having overheard conversations of local persons who she thought could have been Indonesian sympathisers and who were saying that they did not want the Australians in the country. Member Ermert was satisfied that there was no evidence that the applicant experienced substantial distress from any of the occurrences (T16, at [43]) and recorded the applicant had agreed in cross-examination that her concerns were mainly a fear of the unknown.
In a medical report dated 1 July 2012 prepared by Dr Peterson, a psychiatrist who had previously treated the applicant, recorded that the applicant had:
… recently recollected overhearing the conversation of 2 casually employed Indonesian-speaking men during which they appeared to be making plans to, at least, steal materials. She now recalls being fearful that they might be infiltrators intent on more than casual theft… (T20, p.325b)
The applicant was asked whether she overheard that conversation in Balibo. She said that was a separate incident (however, it has not ever been recorded in either of her statements nor was any reference made to it in the previous Tribunal decision.
The applicant’s recent statement recorded the experience of premises intended for accommodation where blood and excrement was present and which had to be cleaned (incident (iii)) (Exhibit A1, at [14]). There was a similar description found within her previous statement. In this review she said her major fear from that experience was she would get shot and not be coming home.
Incident (iv) above refers to the applicant being terrified, on each of the 6 occasions that she travelled to Dili and was aware of a risk of injury from pipe bombs. Although she did not refer to the occasions when she travelled to Dili in her statement, she did record she was under enormous strain worrying about pipe bombs and hostile Indonesians (Exhibit A1, at [15]). The Tribunal previously heard that the applicant was concerned about the risk of injury from pipe bombs (T16, at [23]). During cross-examination in this review, she said she had no memory of any incident involving a pipe bomb.
At paragraph 11 of her recent statement the applicant recorded that the Commanding Officer did not engage her skills as a linguist, he did not want her on his staff and preferred to have his own sergeant. In evidence, the applicant said she was mainly engaged in clerical work and her skills as a linguist were rarely used. This issue appears to relate to incident (vii) above. The previous decision records that the applicant was accused by her Commanding Officer of being antisocial, that he had waved his finger at her and his tone and words were not friendly (T16, at [25]).
The remaining incident recorded in the applicant’s statement concerns the applicant’s attendance at a hospital in Dili (incident (x)). At paragraph 16 she recorded that she saw many casualties. She made a similar recording in her previous statement. In this review, she said she attended the hospital on a number of occasions and saw many casualties – both civilians and army personnel – with missing limbs and bloodied bandages. She later said most of the persons were East Timorese civilians. In cross-examination, she said she attended the hospital for administrative purposes, to collect documents and on those occasions, she saw patients who were on stretchers or sitting in hallways. She said the limbs appeared to be missing. She recorded in her first statement that those experiences contributed to her emotional state. In her most recent statement, she said it added to my state of anxiety.
Medical and related evidence
The applicant was involved in a motor vehicle accident in Tasmania in April 1997 when she was a pillion passenger on a motorcycle. She suffered serious injuries and a subsequent fear of riding a motorcycle. She was subsequently diagnosed with PTSD as a consequence of that accident (Report of Dr Stern, psychiatrist, 13 June 1997 – T4, p. 88). It was also reported that she was suffering persisting nightmares. She commenced civil proceedings to recover compensation and/or damages as a consequence of the accident.
On 27 December 1999, about 2½ months after she commenced operational service and whilst in East Timor, she sought and obtained an assessment by a psychiatrist due to an ongoing court case for compensation for injuries sustained in a MVA in ‘97. The doctor noted that the applicant:
…seems to be coping very well. Despite the stressors of operational deployment, she has not been revisited by memories/nightmares of the incident and reports she is functioning well. It was concluded that her anxiety levels are within normal limits whenever she rides a motorbike. Nightmares have been non-existent for at least 12/12. Generally does not appear to have any of the symptoms of chronic PTSD. In her opinion she is fine and all has returned to normal (T3, p. 34 and 63).
The applicant said when she returned to Australia after completing her service in East Timor, she was unable to cope with crowds, she remained at home most days with doors locked, she experienced nightmares and suffered anxiety. She reacted adversely to the sounds of helicopters. Her marriage broke down and she commenced self-harm. She commenced abusing alcohol and by 2003/2004, she was drinking a bottle of whisky each day and estimated consuming 80 standard drinks per week.
In cross-examination, the attention of the applicant was drawn to the comment of the psychiatrist who assessed her in December 1999 that she was functioning (coping) well. The applicant said there was an unwritten rule that you don’t disclose mental illness and tell doctors/others that you are not functioning well.
The applicant voluntarily resigned from the regular Army in February 2000, 4 weeks after she returned from East Timor. In her application for discharge, the applicant recorded that she and her husband were purchasing a home on a rural property in Tasmania and in order to qualify for a Defence home loan, one or both of them were required to live in it. Additionally, she recorded that she and her husband, who was also enlisted, had lived apart for the preceding 9 months, (her previous marriage had ended because of her absence in the Army) and she intended to engage in veterinary studies at a university which required her to be employed at a veterinary clinic. She indicated that if her application was approved, she would serve with the Army Reserve (Personnel File, p. 227). The applicant confirmed that the contents of that application were truthful but added that she had enough of the Army.
The application for discharge was apparently not granted because her performance was appraised for the period 1 March 2000 to 7 July 2000. The comments recorded were expressed in very positive terms. She was recommended for promotion to Warrant Officer 2 but it was considered that she was not ready for promotion because her general attitude and outlook is of a soldier content to mark time rather than displaying the drive and initiative required of a Warrant Officer. Nonetheless, the assessing officer recorded that he would be keen to have SGT McKinley as a member of my staff in the future (Personnel File, p. 246).
The records indicate that the applicant did commence service with the Army Reserves later in 2000. She was assessed for her performance in the period 30 September 2000 to 1 October 2001. She was again regarded very positively and was acting at Warrant Officer 2 level exceptionally well. She was well regarded by personnel, she displayed good leadership potential and was efficient in her administration (Personnel File, p. 252).
In October 2000, the applicant was examined on a medico-legal basis, in connection with her claim for compensation following the motor vehicle accident, by Dr Burges Watson, a psychiatrist, in Hobart. His report was confined entirely to the applicant’s response to and the consequences of the motor vehicle accident. He concluded that the applicant did have PTSD in 1997 when she consulted Dr Stern and thereafter, had significant symptoms for 12 to 18 months. He reported that she had continuing residual symptoms, which were not incapacitating, her prognosis was good but she was vulnerable to an aggravation of her post-traumatic stress disorder symptoms (T5, p. 89-91).
The applicant agreed that Dr Watson did not record any history of her difficulty coping in the preceding 9 months after she returned from East Timor. She reaffirmed her earlier evidence of not disclosing mental illness because if you tell doctors something is wrong you will lose your career.
After completing a period of service with the Army Reserves, the applicant re-enlisted in the Army. On 19 April 2005 she was examined by a military medical panel and was found to be suffering PTSD, depression and anxiety. On 21 April 2005, her service with the Defence Force was terminated on the basis that she was medically unfit (Personnel file, p. 368 – 374).
On 25 May 2006, the applicant was examined by Dr Nigel Strauss, a psychiatrist, who was engaged by the respondent for the purposes of the previous application. He reported that the applicant’s marriage ended in about 2002, she left Tasmania and returned to Darwin and was later transferred to Queenscliff in Victoria (T12, p. 156-176).
The applicant agreed that she developed severe psychiatric problems, as Dr Strauss reported (at p. 164), when she was in Queenscliff. She was isolated, financially insecure, drinking large quantities of alcohol and was abusing prescribed medication. She had also been physically abused by her husband.
Dr Scott Jenkins
Dr Jenkins is a psychiatrist, practising in Bundaberg, where the applicant resides. He provided a report to the applicant’s solicitor dated 23 April 2014 (Exhibit A3). He first consulted with the applicant on 20 March 2014 and has consulted with her on three subsequent occasions.
He reported that the applicant suffers alcohol dependence, having obtained a history from her of consuming an average of 120g of alcohol daily. He was also satisfied the applicant suffered PTSD which was attributable to her service in East Timor.
Prior to the request to provide a report, it would appear that he was given a number of documents. He referred to a report of Dr Carol Newlands who treated the applicant in 2005 and provided a report to the respondent (T6, p. 92-105).
Dr Newlands obtained a comprehensive history from the applicant and considered whether the reported stressors satisfied the clinical diagnoses of PTSD or GAD. She concluded that the latter diagnosis was more appropriate. Dr Jenkins reported that the stressors recorded by Dr Newlands were consistent with the history that he obtained. He concluded that she had a full constellation of symptoms and the stressors were clearly traumatic which, in his opinion, satisfied the diagnosis of PTSD under DSM IV.
In evidence, when Dr Jenkins was asked to describe the history of stressors obtained from the applicant, he said his attempts to do so caused the applicant to become agitated and loud. He said she found it difficult to describe her service experiences because she became distressed. He said she did speak in general terms of being in fear, concern for her safety and being frightened. In his opinion, the most severe incidents which the applicant confronted in East Timor was her sense of not being wanted, being exposed and observing graffiti on the walls of a building.
Dr Jenkins said the applicant fell apart in approximately 2004 or 2005 which, in his experience was consistent with a PTSD and alcohol genesis because the symptoms of PTSD commonly evolve as persons become older. He said there was no answer to why she fell apart in 2004/5. Dr Jenkins was apparently aware of the most recent SoP for PTSD (N° 19 of 2014) because it was his opinion that the applicant satisfied factor 6(ba). He said she also satisfied the most recent SoP for alcohol dependence (N° 29 of 2014).
In cross-examination, Dr Jenkins was asked whether the applicant’s history to him satisfied Part A of the DSM IV clinical definition of PTSD. He said this was always the issue. In his opinion, her stressors did not appear to meet Part A. He interpreted the stressors as her belief that her life was in danger. In his opinion, the difference in diagnosis between PTSD and GAD was the severity of the stressors.
Dr Jenkins said it was possible that the history that he obtained was not as reliable as the histories the applicant had given to doctors previously. He said the diagnosis that he made was based entirely on the history he obtained from the applicant.
Dr Jenkins was asked to consider a history taken by Dr Strauss, pre-existing service, of the applicant experiencing violence from her father, who excessively consumed alcohol, her parents separating when she was aged 13 and her mother subsequently consuming excessive quantities of alcohol. He was also asked to consider that the applicant had been unsuccessful in 2 marriages, had sustained injuries in a motorcycle accident and had also endured violence in one of her marriages. Dr Jenkins maintained his opinion that the diagnosis he made was consistent with her service in East Timor because at present, 8 years after her second marriage ended, she is in a stable relationship but her symptoms continue to persist.
Dr Rob Peterson
Dr Peterson has been a consultant psychiatrist for 42 years. He is not a Fellow of the Australian and New Zealand College of Psychiatrists (FRANZCP). He previously treated the applicant.
Dr Peterson prepared two reports dated 24 November 2006 (T20, p. 323-325) and 1 July 2012 (T20, p. 325a-325c).
In his first report, Dr Peterson concluded that Dr Newlands had provided a carefully reasoned diagnostic formulation in her conclusions that the applicant suffered GAD. In his second report, he concluded that the applicant suffered PTSD and alcohol abuse.
In cross-examination, Dr Peterson explained that he diagnosed GAD in his first report because he had insufficient data of her East Timor experiences of specific events.
In his second report, he recorded 2 incidents in service supporting his diagnosis, namely, the applicant’s role as an interpreter which placed her in a uniquely stressful role because she could understand the conversations of persons, and an event which she recently recollected of overhearing a conversation between 2 men speaking the Indonesian language who she feared might have been infiltrators.
Dr Peterson agreed that those incidents did not suggest PTSD type stressors but said in the context of her being in a state of fear and trepidation throughout her service, she regarded those incidents as being both major and threatening.
In response to a comment in his second report of the applicant having a pervading fear of sabotage, Dr Peterson said the applicant was aware that attempts at sabotage and ambush might involve the use of pipe bombs. He agreed that her state of anxiety amounted to an over-reaction of non-threatening events.
CONCLUSION AND REASONS FOR DECISION
The applicant has claimed an acceptance of the conditions of PTSD and alcohol abuse.
Within the assessment period, which commenced on 30 November 2012, there have been two clinical definitions applicable to the illness associated with excessive use of alcohol. The first concerned the diagnoses of alcohol dependence and alcohol abuse under DSM IV. The other diagnosis, made under DSM V is alcohol use disorder. Each definition contains an almost identical descriptive preamble, namely, a maladaptive pattern of alcohol use leading to clinically significant impairment or distress… The remaining clinical criteria in each definition refer to the daily consequences and affect upon the person excessively using alcohol. Each element of the definitions need not be repeated. The respondent conceded in its Statement of Facts and Contentions that the applicant is alcohol dependent. It falls within the definitions in each edition of the DSM. The respondent’s concession is properly made.
The applicant maintained her contention that a finding of PTSD should be made on the balance of probabilities, despite contrary opinions that the appropriate diagnosis was GAD. The respondent did not make submissions concerning GAD prior to the hearing but did in its closing submissions.
The Tribunal’s function is inquisitorial, it is bound to determine the application on the material before it and:
…in doing so, it is obliged not to limit its determination to the “case” articulated by an applicant if the evidence and the material which it accepts, or does not reject, raises a case on a basis not articulated by an applicant (Grant v Repatriation Commission (1999) 57 ALD 1 at [18]; Summers v Repatriation Commission (2012) 130 ALD 32 at [60]).
I am satisfied, on the balance of probabilities that the applicant does suffer GAD. The report of Dr Newlands, which concluded that the appropriate psychiatric disorder was GAD, is compelling and is to be preferred. It is also worthy to note that the applicant commenced treatment with Dr Newlands after she moved to Queenscliff which, on her evidence, was at about the time that she commenced to develop severe psychiatric symptoms (which were also reported by Dr Strauss).
The opinions of Dr Jenkins and Dr Peterson are not persuasive.
Dr Jenkins had difficulty obtaining a history from the applicant. On the basis of the history that he did obtain, he said there were 3 incidents which he regarded as the most severe incidents, namely her sense of not being wanted, being exposed and observing graffiti. However, although he said he did consider Part A of the PTSD definition, when he distinguished the conditions of GAD and PTSD he had regard only to the severity of symptoms. This does not suggest that he gave proper or any consideration to Part A especially by regard to the 3 incidents above.
There was no evidence that Dr Peterson considered Part A.
It therefore follows that I have decided the applicant does not suffer PTSD. I will later record the reasons for that finding.
In determining whether there is an incapacity by war-caused injury or disease, I must follow the 4 stage analysis recorded in the decision of Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 which may be summarised as follows:
i)the Tribunal must consider all the material before it to determine whether the material points to a hypothesis connecting the injury or disease with the circumstances of the veteran’s service. Findings of fact are not made at this stage;
ii)if the material does raise a hypothesis, the Tribunal must determine whether a SoP is in force;
iii)if a SoP is in force, the Tribunal must then determine whether the hypothesis is reasonable. It will be reasonable if the hypothesis fits or is consistent with the template within the SoP. The raised hypothesis must contain one or more factors within the SoP, as determined by the Repatriation Medical Authority, which must exist as a minimum and be related to the veteran’s service. If the hypothesis does contain one or more of those factors, it could not be said to be contrary to proved or known scientific facts nor fanciful. If the hypothesis fails to fit the template, it will not be reasonable and the claim will fail.
iv)the Tribunal must then consider whether it is satisfied beyond reasonable doubt that the injury or disease is not war-caused. If it is not so satisfied, the claim will succeed. If it is so satisfied, the claim will fail. Findings of fact are only made at this stage of this process.
Absent any findings of fact at the first Deledio stage, I am satisfied that the material does point to hypotheses connecting the applicant’s GAD and alcohol abuse and the circumstances of the applicant’s service.
There are SoPs in force in respect of each hypothesis within the assessment period, namely:
(a)Alcohol – Instrument N° 1 of 2009 (Alcohol Dependence and Alcohol Abuse) and N° 29 of 2014 (Alcohol Use Disorder). The recent SoP is concerned only with an amending clinical definition following the introduction of DSM V.
(b)GAD – Instrument N° 101 of 2007 (Anxiety Disorder). This SoP has been amended by instrument N° 42 of 2010 and N° 15 of 2011. Those amendments are not relevant to this review.
The relevant factors within the SoPs applicable to alcohol use disorder (factor 6(b) and (c)) and the GAD (factor 6(a)(ii) and (iii)) are identical, namely:
experiencing a category 1A stressor within the five years before the clinical onset of [alcohol use disorder/anxiety disorder]; or
experiencing a category 1B stressor within the five years before the clinical onset of [alcohol use disorder/anxiety disorder].
The expressions a category 1A stressor and a category 1B stressor are defined, also identically in paragraph 9 of each instrument as follows:
“a category 1A stressor” means one or more 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)being an eyewitness to a person being killed or critically injured;
(b)viewing corpses or critically injured casualties as an eye witness;
(c)being an eyewitness to atrocities inflicted on another person or persons;
(d)killing or maiming a person; or
(e)being an eyewitness to or participating in, the clearance of critically injured casualties;
An eye witness is defined as:
a person who observes an incident first hand and can give direct evidence of it. This excludes a person exposed only to media coverage of the incident;
Additionally, the applicant in her Statement of Facts and Contentions, relied on factor 6(a) in the earlier SoP for alcohol dependence and abuse, namely:
(a)having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse.
(The condition GAD is a clinically significant psychiatric condition as defined in both Instruments).
I am satisfied that each hypothesis is reasonable because it fits and is consistent with the template of applicable factors within each SoP and which exist as a minimum. The third Deledio stage has therefore, been satisfied.
At the fourth and final Deledio stage, I must determine whether I am satisfied beyond reasonable doubt that the injury/disease did not arise from a war-caused injury. Only at this stage will findings of fact be made. Ten issues were distilled from the applicant’s statement in the first application and which were considered by the author of the Writeway report.
During cross-examination in this review, when it was put to the applicant that her description of a number of events were inconsistent with the report of the Writeway author, her response was (or words to the effect) was he there? I understood those words to mean that the applicant was giving evidence that was truthful and was based on her first-hand experience of being present in East Timor for 3 ½ months between 10 October 1999 and 1 February 2000.
I accept that there were many occasions when the applicant was anxious and subjectively felt concerned for her safety. However, her recollection and description of events is inconsistent with a significant body of documented historical material, much of which was contemporaneously produced. Neither the applicant nor her representative challenged any of that material in this review, nor was the Writeway author called to give evidence. His report was based on his research of the historical material. I have had many occasions in reviews of veterans’ applications to read the reports of consultants engaged by the Writeway organisation. I was impressed by the quantity of documents and historical sources that were accessed in conducting the research. I also regard the report as balanced.
I am also conscious that the relevant events occurred more than 14 years ago and the applicant’s interpretation and recollection of those events have also changed since she gave evidence in the previous application. The report of Dr Peterson of 1 July 2012 records that the applicant had recently recollected overhearing a conversation which caused her to be fearful. He reported that the history he obtained of that event was of the applicant in fear that those persons were infiltrators. She has never given that evidence.
The focus in the remainder of this decision will be on whether the applicant experienced one or more of the severe traumatic events recorded under the description of a category 1A and 1B stressor.
The severe traumatic events within the ambit of a category 1A stressor can be narrowed because there was no evidence that the applicant was subjected to any serious physical attack or assault including rape and sexual molestation, nor held captive nor tortured or kidnapped. The only issue therefore to be considered as a category 1A stressor is whether she experienced a life threatening event.
The applicant recorded in her first statement that armed military personnel were present on arrival at Dili airport (incident (i)). In her second statement, she said she was confronted by Indonesian soldiers who had their rifles pointed at her and to other persons. In evidence, she said she was sure that it was Indonesian soldiers who were present at the airport. She also said she was affected by medication when she arrived at Dili. Being confronted by a person with a rifle, irrespective of whether it was an Indonesian soldier or another person probably constitutes experiencing a life-threatening event and/or being threatened with a weapon. However, I am not satisfied that such an event occurred. The historical records reveal that Indonesian air force personnel and marines had left the Dili airfield and the port of Dili before the applicant arrived. INTERFET, that is, allied forces, were in control of the airport from 28 September 1999. The applicant may have observed a member of the allied forces holding a rifle, whilst acting as a guard or otherwise. It is unlikely that a member of the Indonesian forces would have been armed and present at the airport 12 days after Indonesia withdrew and if that did occur it most certainly would have been reported, no less than it being on the occasion of the arrival of Australian forces.
The occasion of the applicant travelling from the airport to her base in the Land Rover and ordered to be at action with her rifle loaded (incident(ii)) was not an event or incident recorded in the applicant’s second statement (for the purpose of this application) nor was it the subject of any evidence in this review.
Observing a building smeared with blood and excrement which was intended to be used for accommodation would have been shocking (incident (iii)). The applicant said in evidence that her major fear from that experience was that she would be shot and not be coming home. Objectively it is difficult to comprehend that reaction but subjectively, I acknowledge that the applicant realised that those premises were probably the site of some previous atrocity.
When the applicant travelled to Dili on about 6 occasions in the company of others, she had been ordered to be armed and on each occasion she said she was terrified, she feared attack from civilians and local military and feared injury from pipe bombs (incident (iv)). In her second statement, the applicant repeated, although not specifically in relation to her journeys to Dili, her fear of pipe bombs. There was no evidence of pipe bombs in East Timor from the documents completed by Army personnel and recorded in the Writeway report. In this review, the applicant said she had no memory of any incident involving a pipe bomb.
The applicant referred in her first statement to overhearing conversations in the Indonesian language which she interpreted as she and others being intruders and were not wanted in East Timor (incident (v)). The second report of Dr Peterson refers to an occasion where the applicant overheard a conversation by persons she feared may have been infiltrators. The applicant did not refer to these occasions in her second statement. The Writeway report referred to some non-specific examples of vigilantism by some persons who were detained, investigated and charged with offences.
The applicant recalled travelling to Balibo on one occasion, having been ordered to be at action, as the sole passenger in a vehicle where she sat with a rifle out of the window (incident (vi)). In her second statement, she recorded that on the occasion she travelled to Balibo, she heard Indonesian soldiers speaking in a threatening or menacing manner and she was frightened. (There is some uncertainty about the occasions when she overheard conversations and the content of them).
None of the above incidents or the other three incidents namely, the relationship between the applicant and her Commanding Officer (incident (vii)), standing at her window after a reported suspicious sighting (incident (viii)) and engaging in perimeter patrols (incident (ix)) satisfied me that on each of those occasions the applicant experienced a life threatening event.
The veteran’s perception of these events, that is, whether they posed a threat of death, is critical. The perception must be reasonably held, judged objectively from the point of view of a reasonable person in the position of and with knowledge of the veteran. The threat must also have been capable of and did convey the threat of death (Border v Repatriation Commission (No 2) (2010) 191 FCR 163 at [67]).
None of the incidents would satisfy these criteria.
The reaction of being in fear and being frightened (incidents (v) and (vi)) being the only events to which the applicant expressed a basis for concern do not support, a finding of a reasonably held and objectively judged perception of those events being life-threatening. Her reactions – fear and fright – absent any other additional description – do not convey a perception of the threat of death.
I cannot comprehend, that the applicant or a reasonable person in her position could perceive a threat of death when, 2 days after she arrived in East Timor, Indonesian troops had withdrawn, Dili was returning to normal and pipe bombs were never reported. When she travelled to Dili and Balibo, she overheard conversations. None of those incidents could reasonably amount to a perception of a threat of death, no less because she was armed and there was no evidence that the persons she overheard were carrying weapons or caused any physical threat or assault.
It could not reasonably be found at an objective level that her relationship with the commanding officer, standing at her window, being engaged in perimeter patrols, attending the hospital or her presence in the accommodation she was forced to clean conveyed a threat of death. I also dismiss as a fact that she was confronted by an Indonesian soldier with a rifle when she arrived in Dili.
Whilst the effect of an event as opposed to the threat is to be assessed, I am not satisfied that there was any threat and accordingly, there could be no reasonably held perception of a threat of death.
I am not satisfied that the applicant experienced any event which falls within a category 1B stressor because:
a)she was not an eyewitness to a person being killed or critically injured;
b)there was no evidence that the applicant viewed corpses or critically injured casualties as an eyewitness (as defined). She did attend a hospital in Dili (incident (x)). In her first statement, she referred to observing casualties. In her second statement, she referred to observing many casualties. In this review, she said that she attended the hospital on a number of occasions, observed civilian and army casualties with missing limbs and bloodied bandages. When challenged, she said that the limbs appeared to be missing. The applicant’s evidence does not point to the persons she observed as being critically injured casualties. The location on those persons’ bodies of the bloodied bandages is not known. A more comprehensive description of the persons might permit an assumption to be reasonably drawn about whether those persons were in fact casualties and whether they were critically injured. It is unclear whether the incident, observed first hand by a person who asserts to being an eyewitness is the incident that caused the critical injuries or the incident of observing the person/s, later, with injuries of that description. The applicant did not observe injuries being sustained and for reasons given above, I am not satisfied that she was an eyewitness to critically injured casualties.
c)the applicant was not an eye witness to atrocities inflicted on another person or persons;
d)she did not kill or maim another person; and
e)she was not an eye witness to nor did she participate in the clearance of critically injured casualties.
In his closing submissions counsel for the applicant argued, that in the alternative to a finding of his client not having experienced a category 1A or 1B stressor or within the five-year period before the clinical onset of the alcohol use disorder, it was open to find on the material that she suffered a clinical worsening of that condition within the same period, consistent with other factors within the applicable SoPs (Alcohol Use Disorder – factors 6(h) and (i); GAD – Instrument N° 101 of 2007 factors 6(c)(i) and (ii)).
With respect, I am not satisfied that submission has merit.
Irrespective of whether an application is pursued on the basis of clinical onset or clinical worsening, there must be a finding on the probabilities that events or circumstances occurred in service which – for the purposes of this review – constitute 1A or 1B stressors.
For reasons given above, I am not satisfied that the applicant did experience a category 1A or 1B stressor. That finding is fatal to the application, no less also to the submission of clinical worsening. Accordingly, I am satisfied beyond reasonable doubt that the conditions of Alcohol Use Disorder or GAD were not war-caused.
PTSD
The relevant SoPs for PTSD are N° 5 of 2008 and N°19 of 2014 (Posttraumatic Stress Disorder).
The clinical diagnosis of PTSD found within DSM IV was reproduced in Instrument N°5 of 2008. Part A of the diagnosis is reproduced as follows:
(A)the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person’s response involved intense fear, helplessness, or horror.
The other SoP issued within the assessment period for PTSD – N° 19 of 2014 – only amends factors at paragraph 6 of the previous instrument. It did not amend Part A.
It is clear from Part A of the DSM IV definition that unless a person has been exposed to a traumatic event as described, a diagnosis cannot be made.
There were a number of medical opinions supporting the diagnosis of PTSD. The Full Federal Court decision in Repatriation Commission v Bawden (2012) 206 FCR 296, comprehensively analysed a number of previous decisions of the Federal Court involving PTSD. The Full Court concluded there must be a finding of an applicant having suffered a traumatic event within the meaning of Part A of the clinical definition within DSM IV (as it existed ) in order to find a diagnosis of PTSD, on the balance of probabilities.
In Bawden, their Honours concluded at [47]:
…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.
Noting that the Tribunal at first instance was not satisfied that the veteran had suffered a traumatic event, their Honours said at [48 – 49] A diagnosis of the disorder depends on satisfaction as to the historical fact of a traumatic stress and a finding that a traumatic event has occurred is indispensable to a diagnosis of PTSD.
It therefore follows that a diagnosis of PTSD is not permissible without a finding of the applicant having been exposed to a traumatic event. I am not satisfied that the applicant was exposed to a traumatic event within the meaning of Part A of the PTSD definition. Accordingly, I cannot find the applicant does suffer from PTSD.
I deferred deciding the issue of PTSD because to do so earlier would have caused findings to be made about the circumstances of service, when consideration was being given to making findings, on the probabilities, of the other illnesses suffered by the applicant. Both processes are distinct. It would have also been impermissible to make findings of fact about the circumstances of service before consideration was given to the first of the 3 Deledio stages.
The clinical diagnosis of PTSD, unlike a number of other psychiatric illnesses, is predicated on exposure to a traumatic event as defined, with a response involving intense fear, helplessness or horror. Without that exposure and response, the diagnosis cannot be made.
On the basis of the findings made above in relation to the applicant’s service, she did not experience or witness an event that involved actual or threatened death or serious injury nor a threat to her physical integrity or others. Even if she was confronted with such an event (Woodward v Repatriation Commission (2003) 200 ALR 332 at [122]), based on her observation of persons in the Dili hospital (incident (x)) and the occasion in Balibo when she heard language she interpreted as threatening or menacing (incidents (v) and (vi)), her responses, as she said and for reasons recorded earlier, did not involve intense fear, helplessness, or horror.
On the basis of the applicant’s evidence and my earlier findings, I am satisfied that the applicant does not satisfy Part A in the DSM IV definition.
It is for the reasons expressed immediately above that I am satisfied, on the balance of probabilities, that a finding cannot be made that the applicant suffers PTSD.
DECISION
The decision under review will be affirmed.
I certify that the preceding 111 (one hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior Member
..............................[sgd]..........................................
Associate
Dated: 12 September 2014
Date(s) of hearing 26 August 2014 Date final submissions received 9 September 2014 Advocate for the Applicant Mr D. De Marchi Solicitors for the Applicant De Marchi & Associates Advocate for the Respondent Mr K. Rudge Solicitors for the Respondent Department of Veterans' Affairs Review Branch
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