John Lees and Repatriation Commission
[2014] AATA 308
[2014] AATA 308
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/0605 & 2013/0606
Re
John Lees
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Dr W Isles, MemberDate 16 May 2014 Place Sydney The Tribunal affirms the decision under review.
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Senior Member J F Toohey
CATCHWORDS – VETERAN’S ENTITLEMENTS – operational service – whether veteran suffers from post-traumatic stress disorder – depressive disorder – alcohol dependence – whether conditions war-caused – whether reasonable hypothesis raised – decision under review affirmed
Legislation
Veterans Entitlements Act 1986 ss 24(1), 24(2), 120A, 120(1), 120(3), 120(4)
Cases
Repatriation Commission v Budworth 116 FCR 200
Repatriation Commission v Bawden [2012] FCAFC 176
Repatriation Commission v Deledio (1998) 83 FCR 82
Border v Repatriation Commission (No 2) [2010] FCA 1430
Bushell v Repatriation Commission (1992) 175 CLR 408
Cavell v Repatriation Commission (1988) 9 AAR 534
Forbes v Repatriation Commission [2000] FCA 328
Secondary Material
Statement of Principles concerning Posttraumatic Stress Disorder No. 5 of 2008
Statement of Principles concerning Depressive Disorder No.17 of 2007
Statement of Principles concerning Depressive Disorder No. 40 of 2010
Statement of Principles concerning Alcohol Dependence and Alcohol Abuse No. 1 of 2009
REASONS FOR DECISION
Senior Member J F Toohey
Dr W Isles, MemberBackground
Mr John Lees served in the Royal Australian Navy from January 1965 to January 1985. His service included ten trips on the HMAS Sydney to Vung Tau in Vietnam between April 1966 and November 1968, which constitute operational service for the purposes of the Veterans Entitlements Act 1986 (the Act).
Mr Lees suffers from a number of medical conditions which the Repatriation Commission (the Commission) has accepted are related to his service and for which he receives a disability pension.
Mr Lees seeks review of a decision of the Veterans Review Board (VRB) refusing his claim for service-related post-traumatic stress disorder (PTSD), depressive disorder and alcohol dependence, and assessing him as entitled to 50 per cent of the General Rate of pension from 24 November 2009 to 23 August 2011, and to 70 per cent from 24 August 2011.
Mr Lees contends that:
(i)he suffers from PTSD, depressive disorder and alcohol dependence, each of which is related to his operational service; and
(ii)he is entitled to the Special Rate of pension.
The Commission:
(i)disputes Mr Lees’ claim to suffer from service-related PTSD, depressive disorder and alcohol dependence; and
(ii)contends that he does not satisfy s 24(1)(b) or (c) of the Act, both of which must be satisfied if he is to qualify for the Special Rate of pension.
Standard of proof
In determining whether an injury or disease is related to a veteran’s operational service, the standard of reasonable hypothesis applies: s 120 of the Act. Whether a hypothesis is reasonable is assessed in accordance with any relevant Statements of Principles (SoPs), or determinations or declarations under the Act: s 120A.
In all other matters, the standard of proof is to the reasonable satisfaction of the Tribunal: s 120(4).
Summary of decision
For the reasons that follow, we are not satisfied that Mr Lees suffers from PTSD. We accept that the events he describes in his evidence occurred, but we are not satisfied that he experienced a traumatic event of the kind necessary for that diagnosis to be made out. As we are not satisfied that Mr Lees has PTSD, it is not necessary to decide whether he has service-related PTSD.
We are reasonably satisfied that Mr Lees suffers from depressive disorder which had its clinical onset around 2003. We are satisfied that he suffers from alcohol dependence dating back many years, possibly as early as 1966. In each case, however, a decision that the condition is war-caused depends on a reasonable hypothesis being made out connecting it with Mr Lees’ operational service. In each case, a reasonable hypothesis would rely on there being material pointing to his having experienced a category 1A or 1B stressor related to his service. As we are not satisfied that Mr Lees experienced either, we are satisfied beyond reasonable doubt that there is no sufficient ground for finding his conditions to be war-caused. In the case of alcohol dependence, an alternative reasonable hypothesis might be raised if there was material pointing to Mr Lees having a clinically significant psychiatric disorder at the time of onset of his condition.. For the reasons below, that hypothesis is not raised by the material before us.
In the claim for Special Rate of pension, we are not satisfied that Mr Lees is totally and permanently incapacitated within the meaning of s 24(1)(b) of the Act, or that he is prevented by his war-caused conditions alone from continuing to undertake remunerative work and is thereby suffering a loss of salary or wages that he would not otherwise be suffering. It follows that he cannot satisfy the criteria to qualify for Special Rate of pension.
Nothing in our decision should be taken to reflect adversely on Mr Lees’ honesty. We found him to be a genuine person who gave his evidence frankly and recalled events to the best of his recollection.
Does Mr Lees suffer from war-caused PTSD?
The first question we have to determine is whether we are reasonably satisfied that Mr Lees in fact suffers from PTSD. Only if so satisfied are we then required to determine whether his condition is related to his operational service: Repatriation Commission v Budworth 116 FCR 200; Repatriation Commission v Bawden [2012] FCAFC 176.
Whether Mr Lees suffers from PTSD requires examination of the symptoms he complains of by reference to relevant diagnostic criteria. Evidence from Mr Lees, his wife Barbara Lees, former shipmate Ronald James, treating and consulting doctors, and the report of an investigation by Writeway Research Services Pty Ltd, are relevant to this inquiry.
The diagnostic criteria for PTSD are drawn from the Diagnostic and Statistical Manual of Mental Disorders 4th edition (DSM-IV) and are set out in SoP No5 of 2008 (Post traumatic Stress Disorder). For the purposes of the SoP, PTSD means a psychiatric condition meeting the following diagnostic criteria:
(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; and
(B)the traumatic event is persistently re-experienced in one or more of the [ways described in the SoP].
In relating his PTSD to his operational service, Mr Lees relies on factor 6(a) in the SoP:
experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder;
A category 1A stressor in the SoP 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;
Mr Lees’ evidence
Mr Lees was 15 when he joined the Navy. He was 16 when he made his first trip to Vietnam on the HMAS Sydney. The ship would be at anchor in the harbour for one or two days.. Mr Lees describes being “in awe” on first arriving at Vung Tau at the activity in the harbour including flashes from explosions on shore at night. He says, the feeling wore off over time, however, and he started to wonder “what if ...”.
Mr Lees refers to the following as causing, or contributing to, his PTSD:
(i)having to undertake sentry duty at night on the HMAS Sydney;
(ii)an incident during which a soldier pointed a rifle at him and others;
(iii)being on small motor boats patrolling around the ship for enemy divers;
(iv)hearing “depth charges” exploding (by which it is agreed he means “scare charges”).
Sentry duty
On his first trips to Vietnam Mr Lees was assigned duty as a sentry officer on the upper decks while the HMAS Sydney was in Vung Tau harbour. As he recalls, he performed this sentry duty about nine times in all, in four-hour shifts. He and others had to patrol from the deck at night; they were given an unloaded rifle and flashlight, and a whistle to blow if they saw or heard anything suspicious. He was told that the duty officer would respond immediately if he blew the whistle and would tell him what to do.
Mr Lees says he blew his whistle “on numerous occasions” but no-one responded. He clarified in oral evidence that it could have been three to five times that he thought he saw something in the water; apart from once, when the duty officer found there was a branch floating in the water, no one came. He describes this as “a truly terrifying experience” because he thought the ship was under attack. A report from his treating psychiatrist, Dr Graham Altman, shows Mr Lees told Dr Altman:
There I am and I think the enemy is coming and no one came. I was terrified … total fear … I thought I was dead.
Counsel for the Commission put it to Mr Lees that other sailors were also patrolling and he could have gone and told someone if he saw something or if no-one came. Mr Lees did not disagree but still said he blew his whistle and no one came.
Giving oral evidence, Mr Lees described his sentry duty experience as “the crux of the thing” by which we understand him to say it was the most significant of his traumatic experiences, although this is not entirely clear from his evidence.
The rifle incident
Mr Lees describes an incident on board HMAS Sydney on his first or second trip to Vung Tau when he was with soldiers from the Australian Army who had completed their tour of duty. He was cleaning the ship’s stations near the mess deck when a soldier took a rifle and threatened him and some of the other soldiers; he was the only sailor present and he was terrified thinking the soldier was going to kill him.
Mr Lees concedes he is confused as to some of the details of this incident. In particular, he cannot be sure whether it was on the first or second trip to Vietnam (although he seemed certain it was one or the other at different points in his evidence) and he is unclear whether on the way to, or coming home from, Vietnam. His evidence about whether he reported the incident is also confused. At different points in his evidence to the VRB, he said he reported the matter, but also that he did not report the matter, to his divisional officer.
Apart from telling his friend, fellow sailor Ronald James, who was on board at the time (whose evidence is considered below), and telling Mrs Lees and her parents in about 1967, Mr Lees did not mention this incident again to anyone, including his treating psychiatrist, Dr Altman, until the morning of his hearing at the VRB on 13 October 2011. Mr Lees says it came up “out of the blue” on that morning. It was suggested to him by a VRB member that “a guy holding a rifle as close as you are to me… would be something that would jump straight back into [your] mind”. The transcript shows the following exchange:
MR LEES: Well, actually, it didn’t but, for some reason, the most – the incidents that really reminded me of Vietnam was the ones that are in [Dr Altman’s] report.
…
MR LEES: And, you know, be as it may, that was – that’s what really scared the shit out of me, was the ones in the report. This one was confrontational but was after the incidents ---
MR YOUNG: So it wasn’t as big a deal to you as the other stuff.
MR LEES: No, because it happened after the – the other incidents that I’ve – that I’ve already mentioned there.
At the resumed hearing of the VRB in November 2012, Mr Lees said he had spoken with Dr Altman, who had explained to him that he had “buried [the incident] so deeply” that it had been forgotten until something triggered the memory on that morning.
Boat patrol
Mr Lees gave evidence that, while on one trip to Vung Tau harbour, he was rostered on for four hour shifts over two and half days to join a three-man patrol in a small motor boat, continuously circumnavigating the ship to detect enemy divers. They dragged the water with pipes with barbed wire attached. Mr Lees says he was not told what they should do if they found an enemy diver and he felt “very apprehensive” in case they did. He told Dr Altman that, while patrolling in the small boats, he was scared of floating explosives and said “the whole time you are terrified”.
Scare charges
Mr Lees also described how, at night, scare charges would be thrown from the ship to deter enemy divers. He says they were never given warning when this was about to happen and, the first time he heard it, he had no idea what the explosion was and he was terrified and feared for his life.
Mrs Lees’ evidence
Mrs Lees gave evidence that she recalls Mr Lees telling her and her parents about the rifle incident in about 1967. This was before they married (in 1969) when he would stay with her family in between trips to Vietnam. She recalls Mr Lees saying he was frightened when the soldier pointed the gun at him and shepherded him and others to a particular area. He also told her how he was frightened on sentry duty, about the “depth charges”, and he was upset at how broken many young men were when they returned from the war. He rarely talked about his experiences in the war, and they never discussed the gun incident again.
Mrs Lees describes her husband’s drinking as “quite extensive” from around the time of his service. He would go to the pub every evening with her father before dinner, then drink more at home. She says his drinking has not changed much over the years although it can go up and down a bit.
Mrs Lees describes how her husband “began to break down a little” around the time he resigned from work. He was not coping and he was having nightmares. She said he has “nearly always” had nightmares about being unable to get out from down under the ship. Dr Tadros referred him to Dr Altman who prescribed medication, which was “a godsend”.
Ronald James’s evidence
Ronald James, who joined the Navy on the same day as Mr Lees, trained with him at HMAS Leeuwin in Western Australia, and did six or seven trips to Vietnam with him, gave evidence that Mr Lees told him about the rifle incident at the time it happened. Whereas Mr Lees was certain it happened on the way home after leaving Hong Kong, Mr James believes it happened on the voyage to Vietnam, although he agreed he could be wrong about this.
Mr James did not witness the incident but says Mr Lees told “a bunch of us” what had happened. He “didn’t look too happy”; he said a soldier had “gone off” and pointed a rifle at him and others. Mr James says Mr Lees was very agitated and anxious, and even days later was “very upset and uptight”. Mr James does not know if the incident was reported at the time. He and Mr Lees have remained in contact over the years but have never discussed it again.
The Writeway report
The VRB adjourned the hearing of Mr Lees’ application for a report by Writeway Research Service Pty Ltd into the alleged rifle incident. A report dated 3 August 2012 (the Writeway Report) is in evidence.
The researcher interviewed a number of senior officers who were on board the HMAS Sydney in 1966 and 1967. In summary, none recalled an incident like the rifle incident, and they said if a soldier had threatened others with a gun in any way, it would have been known about. A number described as “implausible” the suggestion that a soldier could get hold of a rifle in the manner claimed because there were standing orders that guns not be stowed on the mess deck, where Mr Lees recalls this incident occurring. One officer described it as “inconceivable” that a soldier would threaten a sailor who was doing his duty and said such an incident would have resulted in disciplinary action. Further, those interviewed said the incident could not have occurred on a voyage back to Australia because only a very small number of Army personnel were on board on return voyages.
Medical evidence
We heard oral evidence from Dr Anthony Dinnen and Dr Selwyn Smith, psychiatrists who assessed Mr Lees for these proceedings, and Dr Robin Chase, occupational physician, who assessed his capacity for work. We also have a report dated 6 September 2010 from Dr Altman, clinical notes from Dr VictorTadros who has been Mr Lees’ general practitioner for 30 years, and service records.
Dr Altman
Dr Altman did not give oral evidence. His report describes the stressful events recounted by Mr Lees as: sentry patrol; circumnavigating the ship in the small boat; and being in Vung Tau harbour at night, seeing and hearing bombs exploding onshore. In his evidence to us, Mr Lees described seeing flashes of bombs exploding and hearing artillery noise but said he knew they were not dangerous because they were on the horizon. Dr Altman’s report pre-dates the VRB hearing and makes no mention of the rifle incident.
Dr Altman reported that Mr Lees described symptoms indicative of the severe chronic war related post-traumatic stress disorder and he presented with a number of significant depressive symptoms indicative of a major depression.
Dr Dinnen
Dr Dinnen gave evidence that it is not uncommon for a person to repress the memory of a traumatic event, and he thinks this is what Mr Lees did with the rifle incident. He says the fact Mr Lees did not mention it, even to Dr Altman, for years is consistent with the suppression and denial of traumatic events which are features of PTSD.
Asked whether he had considered the possibility that Mr Lees had fabricated this incident, Dr Dinnen said he always considers that possibility but he did not think Mr Lees had fabricated it. He said he had read the comments of officers in the Writeway Report but he remained sure that, from Mr Lees’ account, that the incident had occurred.
Dr Dinnen diagnosed Mr Lees as suffering from PTSD with associated depressive disorder and alcohol abuse. In his opinion, Mr Lees experienced a category 1A stressor on a number of occasions, although he emphasised that this was “according to his subjective experience”. He conceded it is harder to diagnose PTSD in a person who suppresses and denies events but he nevertheless believes Mr Lees has PTSD, based on the separate and cumulative effect of the events as he “subjectively experienced” them.
Dr Smith
Dr Smith saw Mr Lees for assessment in September 2013. He had documents including Mr Lees’ written statement of evidence, medical reports including from Dr Dinnen, and transcripts of the VRB hearing. He does not consider Mr Lees meets the diagnostic criteria for PTSD or a depressive disorder.
Dr Smith was sceptical about whether the rifle incident occurred at all. He disagrees with Dr Dinnen about repressed memory. In his opinion, the phenomenon is extremely rare and usually only occurs with dissociative amnesia in cases of sexual abuse of a young child. Considering events at the time, and Mr Lees’ later history of stable service, employment and personal life, he did not think Mr Lees had repressed the memory, more probably that he simply did not recall it. He thought it possible that Mr Lees has “retrospectively falsified” the memory by which he did not suggest Mr Lees was being untruthful, rather that memories can become “falsified” over time for various reasons.
Even allowing the incident occurred, in Dr Smith’s view it does not meet the criteria for a category 1A stressor. He agreed that, if a gun is pointed at a person who does not know whether it is loaded or not, then “strictly speaking” if that person thought they were threatened death or injury, PTSD could result. However, he said, the DSM-IV in effect requires a person to be “overwhelmed with fear” and nothing in Mr Lees’ history at the time or since suggested a response of that type. He questioned why, if it was so distressing, it did not apparently intrude into Mr Lees’ work after he left the Navy, or into his marriage and social life, all of which appeared to have been successful.
Consideration
We do not understand the Commission to suggest, and we do not suggest, that Mr Lees has not been truthful in giving evidence. We found him to be a genuine and truthful person who did his best to recall events. However, not surprisingly given they occurred nearly 50 years ago and he has rarely discussed them, his memory for details such as dates and the sequence of events is poor. In our view, despite his best efforts, his evidence is not altogether reliable.
The Writeway Report raises serious questions as to whether the rifle incident occurred at all, but we accept Mr Lees’ evidence that an incident occurred which broadly met his description. However, a diagnosis of PTSD requires not only an event or events involving actual or threatened death or serious injury but also a response of intense fear, helplessness or horror.
In Border v Repatriation Commission (No 2) [2010] FCA 1430, Reeves J said:
The effect of the event and not the event itself that has to be assessed. Moreover, it is the veteran’s perception of the event that is critical, relevantly his or her perception that it posed a threat of death. If that perception was a reasonable one, it constitutes a life-threatening event within the terms of subpara (a). That perception will be a reasonable one if, judged objectively, from the point of view of a reasonable person in the position of, and with the knowledge of, the veteran, it was capable of, and did convey the threat of death. … this is a mixed objective and subjective test. Since there will be a very wide range of reactions to any event involving a threat of death, this test is not to be applied in an unduly restricted manner.
The evidence does not suggest that the rifle incident posed any actual or threatened death or serious injury to Mr Lees but we accept he may have perceived at the time that it did. No doubt the incident was unnerving and unsettling, even frightening, but we do not accept his response was one of intense fear, helplessness or horror.
We prefer Dr Smith’s opinion that Mr Lees does not meet the criteria for PTSD to Dr Dinnen’s opinion that he does. Dr Smith based his opinion on the specific events described by Mr Lees and his responses to them, taking into account his successful work and personal life for many years after leaving the Navy. Dr Dinnen appeared to base his opinion largely on Mr Lees’ “subjective” experience and the cumulative effect on a young sailor of experiences of war. He does not say the incidents described by Mr Lees provoked “intense fear, helplessness or horror”. While Dr Altman diagnosed him as suffering from PTSD, he also did not describe the intense response required by the diagnostic criteria.
For Mr Lees it is submitted that, individually and cumulatively, the events he described satisfy the description of a category 1A stressor. We do not agree that, considered individually, any of the events he describes meets that description. Nor do we agree that they can be considered cumulatively as meeting the criteria. The diagnosis requires “a traumatic event or events” meeting the description in the DSM-IV. We do not take that to mean that events which would not satisfy that description individually can be considered cumulatively, rather, that however many, each must meet the diagnostic criteria.
We are not satisfied on the material before us that Mr Lees suffers from PTSD.
Does Mr Lees suffer from Depressive Disorder or Alcohol Dependence?
Dr Dinnen gave evidence that, from the history he obtained from Mr Lees, his depressive disorder appears to have developed since 2003 (and, in his view, Mr Lees was suffering from chronic PTSD before and since that time).
Based on a reference in Mr Lees’ service records to symptoms of headache, nausea and vomiting in 1968, which Dr Dinnen says are consistent with an anxiety disorder, Dr Dinnen believes he may have suffered an anxiety disorder from 1968. In his opinion, that diagnosis was confirmed in 1971 when Dr David McGeorge, consultant psychiatrist, recorded Mr Lees as suffering from claustrophobia while working in confined spaces on board the HMAS Duchess. Dr McGeorge recommended Mr Lees not work in small spaces and he was transferred to a larger ship. According to Mr Lees, his symptoms resolved once he moved to a larger ship and he had no further symptoms. According to Dr Chase, Mr Lees “himself admitted that he did not suffer from any psychiatric disorders during his time in the Navy or after he left the Navy”.
Dr Smith gave evidence that Mr Lees did not reveal diagnostic criteria for a Depressive Disorder. He “did not find clear and convincing clinical evidence based upon his productive naval and subsequent career that he experienced depressive symptoms that markedly intruded into his interpersonal social and vocational functioning”. However, he conceded the possibility that, by the time he saw Mr Lees, his depressive symptoms could have improved substantially after being treated for some time with the anti-depressant, Lovan, which Mr and Mrs Lees both say had been very helpful. We are satisfied, on the material before us, that Mr Lees suffered from a form of depressive disorder since around 2003. Given that he suffered a single episode of claustrophobia which resolved when he was transferred and which did not recur, we are not satisfied that a single reference to symptoms in 1968 which are only possibly consistent with an anxiety disorder indicate clinical onset at that time.
The evidence about the extent of Mr Lees’ drinking is not entirely clear. An alcohol questionnaire which he completed in February 2010 suggests he was drinking amounts in 1966 which would have been difficult for him to consume while on duty might overstate his drinking at that time. However, by his own evidence, he has always been a heavy drinker although this does not appear to have interfered in his work or family life. Mrs Lees describes him as “a heavy drinker” whose drinking has been continuous from the time he was in the Navy. In her written statement, she estimated he was drinking a bottle of wine a night and no less than a bottle of scotch a week but it appears that he was drinking considerably less than this at the time of the hearing. There is also a reference in a report from Dr Anthony Johnson to Dr Tadros in May 2008 of Mr Lees drinking alcohol only “occasionally".
Dr Dinnen believes Mr Lees satisfies the diagnostic criteria for alcohol abuse but not alcohol dependence. In Dr Smith’s opinion, Mr Lees has experienced chronic alcohol dependence from the time he joined the Navy. [
Although neither Dr Dinnen nor Dr Smith considered in any detail all of the criteria for alcohol dependence as set out in the SoP, we are satisfied that Mr Lees suffers from alcohol dependence or abuse. Whether dependence or abuse, we find it had its clinical onset around the time of Mr Lees’ operational service in 1966.
Does Mr Lees suffer from war-caused Depressive Disorder or Alcohol Dependence?
The standard of reasonable hypothesis requires that we determine a condition to be war-caused unless we are satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination: s 120(1). We shall be so satisfied if the material before us does not raise a reasonable hypothesis connecting the condition with the veteran’s service: s 120(3).
The steps to be followed in determining whether a hypothesis is reasonable are set out in Repatriation Commission v Deledio (1998) 83 FCR 82. The Tribunal must:
(i)determine whether all of the material points to a hypothesis connecting the injury with the circumstances of the veteran’s service;
(ii)if so, ascertain whether there is in force a relevant SoP;
(iii)if so, form an opinion as to whether the hypothesis is reasonable, which it will be only if it conforms with an applicable SoP; and
(iv)consider whether it is satisfied, beyond reasonable doubt, that the veteran’s incapacity did not arise from a war-caused injury.
The material will raise a reasonable hypothesis if it points to “some fact or facts (“the raised facts”) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true”: Bushell v Repatriation Commission (1992) 175 CLR 408.
Each SoP sets out factors, at least one of which must exist as a minimum before we can be satisfied that a reasonable hypothesis is raised. In SoP No. 17 of 2007 (Depressive Disorder), (as amended by SoP No. 40 of 2010) Mr Lees relies on:
Factor 6(b)experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder;
In SoP No. 1 of 2009 (Alcohol Dependence and Alcohol Abuse), Mr Lees relies on:
Factor 6(a)having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse
Alternatively, Mr Lees relies on:
Factor 6(b)experiencing a category 1A stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse
For the reasons we have given above, a reasonable hypothesis connecting Mr Lees’ depressive disorder and alcohol dependence with his operational service on the basis of having experienced a category 1A stressor while on operational service is not raised on the material before us. Nor is a reasonable hypothesis raised connecting his alcohol dependence with his operational service on the basis of a clinically significant psychiatric condition at the time of clinical onset of alcohol dependence, because the material points clearly to the onset of his depressive disorder many years after the onset of his alcohol dependence.
It follows that we are satisfied beyond reasonable doubt that neither Mr Lees’ depressive disorder nor his alcohol dependence is war caused.
Does Mr Lees qualify for the Special Rate of pension?
To qualify for the Special Rate of pension, Mr Lees must satisfy the criteria in s 24(1) of the Act.
Mr Lees must be totally and permanently incapacitated, meaning that his incapacity from war caused injury or disease, or both, is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week: s 24(1)(b).
Mr Lees must also be, by reason of that incapacity from that war caused injury or disease, or both, alone, prevented from continuing to undertake remunerative work that he was undertaking and be, by reason thereof, suffering a loss of salary or wages, or of earnings on his own account that he would not be suffering if he were free of that incapacity: s 24(1)(c).
Mr Lees left the Navy in 1984 as a Chief Petty Officer with a NSW Trade Certificate as a fitter and turner, and a First Class Engine Drivers Certificate. He worked for a short period as a bus driver, then had a mowing and gardening franchise, then worked as a hydraulic technician. From 1986 to 2002 he worked as an air conditioning technician. He left that employment in July 2003 after what he describes as a “breakdown”. In October 2003 he joined a large company where he worked as a building manager until retiring in July 2009 on Dr Tadros’ advice. He has not been employed since.
Dr Chase saw Mr Lees in November 2013 for assessment of his capacity for work and the effect on his capacity of his accepted and non-accepted disabilities. Dr Chase rated each of his disabilities according to the Guide to the Assessment of Rates of Veterans’ Pensions (GARP). Of his current medical conditions, Dr Chase said his predominant complaint was “the alleged psychiatric disorder”. He found “no reason” why Mr Lees could not work full-time and said he would “certainly be capable” of working more than 20 hours per week (and up to full-time).
Dr Chase did not consider that either of Mr Lees’ “two major issues”, being his low back pain and his “alleged” PTSD were sufficient to say he was incapable of working, and none of his other accepted disabilities was a bar to him returning to work.
In Dr Dinnen’s view, Mr Lees is not capable of working as much as eight hours per week because of his psychiatric condition. He noted that he “ceased work because of his psychiatric symptoms, and on the advice of his local doctor and I believe would have been struggling to cope with work prior to that”. Dr Dinnen does not suggest that any other condition played a part.
If Dr Dinnen is correct and Mr Lees is not capable of working more than eight hours a week because of his psychiatric condition, that will not enable him to satisfy s 24(1)(b). That is because s 24(1)(b) provides that a war caused condition must, of itself alone, render a veteran incapable of working more than eight hours a week. There is no evidence on which we could be satisfied that any of Mr Lees’ accepted disabilities prevents him from working to that extent.
Further, if Dr Dinnen is correct and Mr Lees' psychiatric condition is the reason he ceased work and the reason he can no longer work, then he cannot satisfy s24(1)(c) because his war caused injury or disease must, alone, prevent him from continuing to undertake remunerative work. Where a condition that is not war-caused plays a part in preventing a veteran from continuing to undertake remunerative work, he or she cannot satisfy s 24(1)(c): Cavell v Repatriation Commission (1988) 9 AAR 534; Forbes v Repatriation Commission [2000] FCA 328.
Conclusion
For these reasons, we are not satisfied that Mr Lees suffers from war caused PTSD, depressive disorder or alcohol dependence. Nor are we satisfied that he qualifies for the Special Rate of pension. We regret that we must affirm the decision under review.
76. I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member and Dr W Isles, Member.
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Associate
Dated 16 May 2014
Date(s) of hearing 7 and 8 May 2014 Counsel for the Applicant Mr Tim Saunders Representative for the Respondent Mr Gerald Purcell
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