JOHN WRIGHT and REPATRIATION COMMISSION

[2009] AATA 187

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 187

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2770

VETERANS' APPEALS DIVISION		)
Re		JOHN WRIGHT

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr K S Levy RFD, Senior Member
Dr G J Maynard, Brigadier (Rtd), Member

Date19 March 2009

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

...............[Sgd]...............................

Senior Member

CATCHWORDS

VETERAN’S AFFAIRS – veteran’s entitlements – rate of pension payable – whether anxiety disorder is result of operational service – stressors suffered are not negative life events the effects of which are chronic in nature – decision under review affirmed

Veterans’ Entitlements Act 1986 (Cth) ss 5C, 5D, 6C, 9, 120(4), 120A, 120B, 196B(2)

Favelle Mort Ltd v Murray (1976) 133 CLR 580

Federal Commissioner of Taxation v St Hubert’s Island Pty Ltd (In Liq) (1978) 138 CLR 210

Lees v Repatriation Commission (2002) 74 ALD 68

Mines v Repatriation Commission (2004) 86 ALD 62

Repatriation Commission v Deledio (1998) 49 ALD 193

Repatriation Commission v Gosewinckel (1999) 59 ALD 690

Re Robertson and Repatriation Commission (1998) 50 ALD 668

Sherritt Gordon Mines Ltd v Federal Commissioner of Taxation [1977] VR 342

White v Repatriation Commission (2004) 39 AAR 67

REASONS FOR DECISION

19 March 2009 Dr K S Levy RFD, Senior Member
Dr G J Maynard, Brigadier (Rtd), Member          

INTRODUCTION

1.      The Applicant, John Wright, rendered service with the Royal Australian Navy (“RAN”) from 10 March 1967 to 9 March 1976.  He served on operational service in South Vietnam on HMAS Brisbane from 16 March 1971 to 11 October 1971.

2. Mr Wright made application to the Repatriation Commission to have recognition of a claim for anxiety disorder under s 9 of the Veterans’ Entitlements Act 1986 (“the Act”).  The Repatriation Commission rejected the application on 8 January 2008.  On review to the Veterans’ Review Board, the original decision was affirmed on 26 May 2008.  Mr Wright now appeals to this Tribunal.

ISSUE

3.      Counsel for the Applicant stated in opening submissions that there was no dispute as to diagnosis and no dispute as to onset of the condition.  It was put to the Tribunal that the only issue for determination was whether the Applicant met the criteria of a stressor: that is, whether there was a category 2 stressor in terms of Statement of Principle No 101 of 2007 (“the SoP”). 

EVIDENCE

4.      The record shows Mr Wright has service related disabilities of gastro-oesophageal reflux disease and sensorineural hearing loss in the left ear.  He was eligible for treatment only for his anxiety disorder, which has not been regarded as service related.  It is noted that the conditions of hiatus hernia, erectile dysfunction and duodenitis (NIF) are non-service related.  However, it was common ground that if the Tribunal finds in favour of the claim for anxiety disorder, the condition of erectile dysfunction should also be recognised.

5.      The claim in this case is premised on factor 6(c) of the SoP on the basis that Mr Wright has experienced a “category 2 stressor” within one year before clinical worsening of anxiety disorder.  It is noted that factor 6(a) provides for “experiencing a category 2 stressor within the one year before the clinical onset of anxiety disorder”.  A category 2 stressor is defined in paragraph 9 of the SoP as meaning:

“… one or more of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry:

…

(c)       having concerns in the work or school environment including:

on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful work loads, or experiencing bullying in the workplace or school environment”.

6.      The evidence which Mr Wright submits to support a category 2 stressor is shown in his statement: T documents, folio 29.  Mr Wright also provided a subsequent statement dated 24 August 2008.  In addition, he gave oral evidence consistent with those statements.  Essentially, he claimed that he experienced unscheduled aircraft activity while serving on HMAS Brisbane (in particular when entering Da Nang Harbour), and observed gun fire in the hills around this harbour once his ship was anchored.

7.      Mr Wright refers to his role in maintaining radar equipment on HMAS Brisbane.  He was required to attend the command post of the ship and observed officers undertaking monitoring activities.  He said he was mainly concerned with being bombed by “allied friends”.  In particular, he was referring to possible accidental fire from US aircraft as occurred when HMAS Hobart was fired upon during the early phases of the war in South Vietnam. 

8.      He stated that he took an interest in watching the monitoring of aircraft.  Mr Wright was concerned that they might come too close to HMAS Brisbane.  He also stated that even on some of his off-duty time, he went on to the upper deck to monitor whether HMAS Brisbane was going to be bombed so that he could make a quick escape.  He mentioned his concern about HMAS Brisbane escorting the USS Kitty Hawk and referred to “unscheduled aircraft activity”.  He also noted observing flashes of light in the hills and that he would be concerned about possible attacks.

9.      In cross examination, the Applicant said he enlisted in the RAN to avoid national service.  According to his statement, he was passionate about serving in the RAN, but not in the army.  He initially served overseas in the far-eastern strategic reserve, although he could not recall where his ship had visited.  He thought they may have gone to Japan, but was not sure.  He also said he could have taken the opportunity of discharging after six years service but he had no trade qualifications which would be recognised outside the RAN, and so decided to serve the remainder of his nine year engagement. 

10.     His evidence was that he volunteered to go to South Vietnam, as it was the last ship to be deployed there and therefore his last opportunity to gain entitlement to a war service loan.  On questioning by the Tribunal, he indicated he had not been concerned when he served on HMAS Melbourne and also that he had not previously been anxious during his RAN service. 

11.     Evidence was also received from Captain John Macdonald (Rtd) from Writeway Research Service.  Captain Macdonald provided a written report dated 20 November 2008 and also provided complementary oral evidence.  Captain Macdonald described the HMAS Brisbane as sailing on the seaward side of the USS Kitty Hawk, and therefore any aircraft returning from sorties on shore would have had to pass USS Kitty Hawk before reaching HMAS Brisbane.  He acknowledged that HMAS Brisbane and the ship’s company were “operating in a hostile and potentially dangerous environment”, but “no evidence could be found that any life threatening situations arose during that time”.  In oral evidence he described the situation in 1971 as being “busy but quiet in relation to immediate threats”.

SUBMISSIONS

12.     Mr Harding, for the Applicant, submitted that the change in wording in the SoP in relation to the meaning of “stressor” is significant.  He said the authority of White v Repatriation Commission (2004) 39 AAR 67 is no longer applicable. In relation to a “category 2 stressor”, he submitted that the meaning is now more restricted and that there is a lower threshold to be satisfied. He submitted that in factor 6(c) of the SoP, it merely has to be shown that there is a negative life event that has effect in the work environment. The term “category 2 stressor” is defined using the word “means” in paragraph 9 of the SoP. He submitted that there was constant aircraft activity, that the Applicant did have concerns and that those concerns were related to his war service, in the sense that it was related to the job he was performing and the environment in which he then worked.

13.     He pointed out that Mr Wright’s role did not involve use of the plotting equipment, which the Applicant indicated raised his awareness and concern about the possibility of friendly aircraft fire.  Mr Harding submitted that the Applicant’s interpretation may have been flawed (because he did not understand the equipment) and this may have increased his concern or anxiety.  He suggested that although it may have been an unwarranted perception on the part of his client, the existence of that unwarranted perception was a fact.  He referred to the Applicant stating that he had been sleep deprived while working on HMAS Brisbane and therefore he may not have been able to view the circumstances in an objective, logical or sensible way.

14.     Mr Harding  referred the Tribunal to paragraph (c) of the “category 2 stressor” definition in the SoP, which refers to “having concerns in the work or school environment including [emphasis added]: on-going disharmony … perceived lack of social support … perceived lack of control over tasks performed and stressful workloads, or experiencing bullying”.  He submitted that the word including denotes that the definition is not conclusive or exhaustive, as would be the case with use of the word means: Sherritt Gordon Mines Ltd v Federal Commissioner of Taxation [1977] VR 342 at 353 [40].

15.     Mr Williams, for the Respondent, argued that in relation to the words of the definition, the evidence did not reveal any lack of control in the workplace, any disharmony or lack of social support, or any problems in relation to Mr Wright’s relationships.  Mr Williams also submitted that the Applicant had knowledge of the HMAS Hobart event before he went to South Vietnam, and for which he volunteered.  He also submitted that even if Mr Wright did not fully understand the evidence from radar readings, it was not specifically relevant and should not be taken into account as the Applicant had direct contact with those in the command post and had the opportunity to clarify the situation.

CONSIDERATION

16. The Tribunal accepts that Mr Wright is a veteran in terms of s 5C of the Act. He has undertaken operational service (s 6C) and he submits that he has a war-caused psychiatric disease (s 5D) in that he has been diagnosed with generalised anxiety disorder. The report of Dr Bob Anderson dated 18 December 2007 attests to his present diagnosis and also states that Mr Wright’s condition of erectile dysfunction is secondary to the anxiety disorder. Dr Anderson considers that the most likely cause of both of these conditions is Mr Wright’s service in Vietnamese waters during his operational service. He opines that there were childhood experiences which may have been “fertile ground for the development of a psychiatric disorder. Nevertheless, he was accepted into the Navy, despite any theoretical vulnerability and later decompensated during service”.

17. The Tribunal is obliged in the first instance in dealing with this claim to satisfy itself of the correct diagnosis. The Tribunal must be satisfied to its reasonable satisfaction: s 120(4). The same standard of satisfaction is also applicable where a claim is made on or after the introduction of the system of SoPs on 1 June 1994. Sections 120A and 120B provide that justification.

18.     We accept Dr Anderson’s diagnosis as reflecting the Applicant’s current psychiatric status.  There is no evidence to the contrary.  In relation to clinical onset, there must be evidence of a symptom or feature which would enable a doctor to say that a disease was present at that time: Re Robertson and Repatriation Commission (1998) 50 ALD 668 at [23]. That principle has since been approved by the Federal Court: see Repatriation Commission v Gosewinckel (1999) 59 ALD 690; Lees v Repatriation Commission (2002) 74 ALD 68; Mines v Repatriation Commission (2004) 86 ALD 62.

19.     In relation to the time of onset of this condition, we note Dr Anderson’s comments about a potential pre-existing vulnerability.  We note the Applicant declared bed-wetting and nail-biting on enlistment, as recorded in his medical records: T documents, folio 89.  Dr Anderson’s observations about a previous pre-disposition to anxiety appear sound.  However, we note that the Applicant has also experienced a number of severely traumatic events over a considerable period with some of his children.  We consider that Dr Anderson did not give sufficient weight to those more recent events. We are not satisfied that clinical onset occurred during operational service.  Instead, we conclude it is more likely to be attributable to the more recent, troublesome events that have occurred in his family situation.

20.     However in the event that our assessment is not correct, we continue to assess the application as required by the process outlined in Repatriation Commission v Deledio (1998) 49 ALD 193.

21.     The first step of the Deledio process requires the Tribunal to consider the material and decide whether it points to a hypothesis connecting the condition with the circumstances of the Applicant’s service.  The hypothesis submitted to the Tribunal, that Mr Wright suffers from Generalised Anxiety Disorder as a result of his operational service, can realistically be raised.  We therefore determine that step 1 is satisfied. 

22.     Step 2 in the Deledio taxonomy requires the identification of any relevant SoPs. Instrument No 101 of 2007 has been issued under the auspices of s 196B(2) of the Act. The Applicant and Respondent are in agreement that this is the relevant SoP. The Tribunal also agrees.

23.     Step 3 of the Deledio analysis requires that we make an assessment about whether the hypothesis accepted in step 1 can be regarded as “reasonable”.  Essentially, this requires the Tribunal to determine whether the hypothesis raised is consistent with the template set out in the SoP. 

24.     Mr Wright’s counsel referred the Tribunal to factor 6(c) of the SoP.  This refers to the clinical worsening of an anxiety disorder in relation to a category 2 stressor.  Factor 6(a) also refers to a category 2 stressor, but in the context of clinical onset of the anxiety disorder occurring within one year after the category 2 stressor.  While submissions for the Applicant seem to refer to clinical worsening (ie that a pre-existing anxiety disorder was present), other submissions of counsel, together with the report of Dr Anderson, imply that initial onset occurred during operational service.  We consider both of those scenarios in the context of the analysis below.

25.     Paragraph 9 of the SoP defines “a category 2 stressor”.  It:

“… means one or more of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry:

…

(c)       having concerns in the work or school environment including:

on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful work loads, or experiencing bullying in the workplace or school environment”. 

26.     The opening clause of that definition reveals two requirements must be satisfied:

·Firstly, the incident involved must be a “negative life event”, which is exemplified by the description in subparagraph (c); and

·Secondly, the consequential effects of the “negative life event” must be “chronic in nature”.

27.     In relation to the first requirement, the “negative life event” explicated in subparagraph (c) of the definition refers to concerns in the work environment.  Examples are said to be “including” ongoing disharmony with fellow work colleagues, perceived lack of social support, perceived lack of control over tasks performed and stressful work loads, or experiencing bullying in the workplace.  Mr Harding, for the Applicant, submits that Mr Wright had concerns about the environment in which he worked on HMAS Brisbane and that these concerns are included in the definition: see Sherritt Gordon Mines Ltd v Federal Commissioner of Taxation [1977] VR 342. Indeed, some caution must be exercised when interpreting definitions that use the expressions means and includes: Favelle Mort Ltd v Murray (1976) 133 CLR 580 at 589; Federal Commissioner of Taxation v St Hubert’s Island Pty Ltd (In Liq) (1978) 138 CLR 210 at 216. However, the broad nature of the wording does, we think, imply a need to allow a more generous interpretation in relation to an Applicant’s claim. Mr Williams, for the Respondent, has submitted that none of the examples shown have any relationship to the evidence proffered by the Applicant. While that might be so, on the face of it, the word including shows that the examples are not to be interpreted as an exclusive class.  It might be that Mr Wright’s work environment could have been quite stressful because of the operational situation and for reasons other than the indicative examples shown in the definition.  The examples do imply, however, that there must be some evidence pointing to task oriented factors in the ordinary course of work, or a lack of social support or direct negative psychological impacts.  The Applicant referred to being charged with a disciplinary offence for leaving a light on whilst the ship was in Singapore.  This was in the course of his ordinary picket duties.  He also raised the concern about sleep deprivation and being made tense by the noise of the activity in the ship including, from time to time, gunfire.  None of these occurrences are outside the normal realm and expectation of servicemen’s duties and could not be expected to have a lasting affect. 

28.     Mr Wright also relies on an ongoing anxiety and/or fear about accidental attack from US aircraft.  Service in an operational area is anxiety producing.  The level of fear or anxiety will depend on the actual tactical situation.  Apart from a general ambience that the Applicant felt while in a state of heightened anxiety, there was no evidence presented that any information was given to Mr Wright to leave him with an expectation of an attack.  He relies on a possible attack by friendly aircraft, not by enemy forces. 

29.     However, the evidence shows that the attack on HMAS Hobart was quite different, as the aircraft in that case interpreted the movement of HMAS Hobart as enemy helicopter movement in very poor light.  In any case, the evidence from Captain Macdonald shows the position of HMAS Brisbane as being on the seaward side of USS Kitty Hawk and, therefore, if there was any problem with the coded transponders  (IFF) fitted in the aircraft, USS Kitty Hawk would have been involved before HMAS Brisbane.  The evidence shows there was no realistic enemy threat, at least from aircraft.  Even gunfire in the hills was shown to be probably 10 to 20 miles away from the ship.  Whilst he reported he saw gunfire at night, the evidence from the Writeway Research Service report shows that the only visits to Da Nang Harbour occurred during daylight hours.

30.     It was also submitted that the authority of White v Repatriation Commission (2004) 39 AAR 67 is no longer applicable. In that case, a distinction was made between a subjective element and an objective element in relation to assessing the perceptions and psychological effects on an Applicant.

31.     We accept that, subjectively, Mr Wright may have been far more sensitive and anxious than most sailors. His statement (folio 29, T documents) indicates he was sensitive even before he went to Vietnam, in that he was ridiculed when he was on HMAS Melbourne.  However, the incidents claimed do not, in our opinion, meet the standard implied by the examples shown in subparagraph 9(c) of the SoP.  We are therefore of the view that the incidents submitted were not “negative life events” as intended by the examples.  But even if that finding is wrong, an Applicant must also satisfy the second limb of this definition.  That is, the Applicant must show that the consequential effects of the stressor must be “chronic in nature”.  Chronic means lingering, lasting, constant, bad, intense, or severe: The Oxford English Dictionary, 2^nd ed, 1989.  The second limb of the definition requires a more objective assessment about whether these events could realistically be expected to have an impact on Mr Wright almost four decades after his RAN service.  In our view, Mr Wright’s concerns must be seen as idiosyncratic because they would be unlikely to affect other sailors to a like degree of intensity. We find that the stressors nominated could not have effects which are “chronic in nature” in the work environment described.  We also find that these would not lead to the ongoing distress which is claimed.  There is no service record, or any claim for the majority of the post service years, which allude to such effects: effects which could realistically link Mr Wright’s service with his anxiety condition.  While the absence of such evidence is not, of itself, of great weight, it assumes greater importance when considering the familial constellation and the traumatic events which Mr Wright and his wife have had to endure with some of their children over more recent years.

32.     In the circumstances, we find that the incidents claimed are not a category 2 stressor.  Consequently, step 3 of the Deledio process is not satisfied and therefore, as a matter of law, the application must fail.

DECISION

33.     The decision of the Repatriation Commission is affirmed.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy RFD, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member

Signed:   ............[Sgd]...............................................................
                Matyas Kochardy, Research Associate

Date of Hearing  25 February 2009
Date of Decision  19 March 2009
Counsel for the Applicant         Mr Anthony Harding
Solicitor for the Applicant          Cockburn Legal and Consulting
For the Respondent                  Mr Bruce Williams, Departmental Advocate