JUREY and REPATRIATION COMMISSION

[2011] AATA 393

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 393

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. 2009/4451

VETERANS' AFFAIRS DIVISION		)
Re		ROBERT WILLIAM JUREY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal G. D. Friedman, Senior Member and Dr R. Blakley, Member

Date7 June 2011

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

..............................................

Senior Member

VETERANS' AFFAIRS ‑ veterans’ entitlements - depressive disorder - stressful events - date of clinical onset - whether condition war-caused

Veterans' Entitlements Act 1986 ss 9, 120(1)

Benjamin v Repatriation Commission (2001) 70 ALD 622

Kaluza v Repatriation Commission [2010] FCA 1244

Lees v Repatriation Commission [2002] FCAFC 398

Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

7 June 2011 G. D. Friedman, Senior Member, and Dr R Blakely, Member

1.      Robert Jurey served in the Royal Australian Navy from 27 July 1968 to 4 June 1972.  His service included a period on board HMAS Sydney from 8 February 1969 to 25 February 1969 and from 8 May 1969 to 30 May 1969; and on board HMAS Hobart from 16 March 1970 to 9 October 1970, which constitutes operational service under the Veterans' Entitlements Act 1986 (the Act).

2.      Mr Jurey is in receipt of a disability pension at 80 per cent of the general rate.  He suffers from a number of medical conditions, several of which have been accepted by the respondent as war-caused.  On 20 November 2008 he lodged a claim for incapacity from a psychiatric condition he described as anxiety arising from stressful events during his service.  His claim was rejected by the respondent and the Veterans’ Review Board.  Mr Jurey is seeking review of the decision.

LEGAL FRAMEWORK

3. Section 9 of the Act provides that where an injury or disease results from an occurrence that happened while the veteran was rendering operational service or where it arose out of, or was attributable to that service, the injury or disease will be taken as being war-caused. Causation questions such as these, where a veteran has rendered operational service, are addressed by applying the standard of proof in s 120(1) of the Act. That requires decision-makers to determine that an injury or disease is war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.

4.        In the circumstances of this case, where Mr Jurey has rendered operational service, the issue of whether the diagnosed condition was caused by operational service is to be decided by reference to the four-step process identified by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98:

1.        The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.  No question of fact finding arises at this stage.  If no such hypothesis arises, the application must fail.

2.        If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP [Statement of Principles] determined by the Authority under s 196B(2) or (11).  If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3.        If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one.  It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP.  The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)).  If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.  If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

4.        The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury.  If not so satisfied, the claim must succeed.  If the Tribunal is so satisfied, the claim must fail.  It is only at this stage of the process that the Tribunal will be required to find facts from the material before it.  In so doing, no question of onus of proof or the application of any presumption will be involved.

ISSUES

5.        The issues before the Tribunal are:

·Does Mr Jurey suffer from a psychiatric condition?  If so:

·Is the condition war-caused?

DOES MR JUREY SUFFER FROM A PYSCHIATRIC CONDITION?

6.        The Tribunal is required to determine to its reasonable satisfaction whether Mr Jurey suffers from any particular injury or disease (Benjamin v Repatriation Commission (2001) 70 ALD 622). Mr Jurey told the Tribunal that he left school after Year 10 and joined the Victorian Railways, where he worked in administration until enlisting in the navy at the age of 19 years. He completed an initial course in underwater weapons and was posted to HMAS Hobart for further training.  In January 1969 he was posted to HMAS Sydney, and departed for Vietnam on 8 February 1969, arriving at Vung Tau harbour on 15 February 1969 for a six-hour visit to load and unload personnel and stores.  On his second voyage he arrived in Vung Tau on 19 May 1969 for a similar purpose, after which he was posted to HMAS Watson in Sydney for further training.  He joined HMAS Hobart on 17 November 1969, and from 16 March 1970 to 9 October 1970 the ship was based in the Philippines and was attached to the US 7th Fleet and was engaged in operations off the coast of Vietnam.  On his return from Vietnam he married and returned to Sydney, where he was granted a discharge on compassionate grounds in 1972.

7.        Mr Jurey stated that he returned to work at Victorian Railways, but had difficulty adjusting to civilian life.  He became moody, withdrawn and depressed, and had problems relating to his wife and children.  Mr Jurey explained that he felt sad and lonely, and was drinking to excess.  Eventually his wife took him to see a psychiatrist in the 1980s, and this was followed by several other psychiatrists, none of whom he found particularly helpful, until in 2001 he consulted Dr C Schrueder, consultant psychiatrist.  Mr Jurey emphasised that he still feels anxious about financial and family matters, and remains withdrawn, lethargic and suffers from disturbed sleep.

8.        Mrs L Jurey told the Tribunal that she has been married to Mr Jurey since 1970.  She said that when he returned from his third voyage to Vietnam he was socially withdrawn, short-tempered, moody and was overly concerned about safety.  Mrs Jurey stated that by the mid-1980s his emotional state worsened, and she insisted that he seek medical treatment, resulting in a referral in 1988 to Dr T Peyton, consultant psychiatrist, although she observed no real improvement when he commenced taking antidepressants. 

9.        In an undated report written in 2009 Dr Schrueder took a history of depressive symptoms and the onset of anxiety that began in 1985 to 1990 after developing slowly following discharge from the navy and before he sought psychiatric treatment in 1988.  Dr Schrueder stated that Mr Jurey presented as depressed and withdrawn, with low energy and self-esteem, and he diagnosed recurrent major depressive disorder with probable dysthymic disorder and an anxiety disorder.  Dr Schrueder prescribed antidepressants, which resulted in some improvement in Mr Jurey’s psychological state.

10.      In a report dated 8 April 2010 Dr A Sheehan, consultant psychiatrist, took a history of anxiety and depression that was first noted in the mid-1980s, and reported that Mr Jurey presented with mildly depressed mood, and with lowered self-esteem and self-confidence.  Dr Sheehan took into account his examination of Mr Jurey and reports from other psychiatrists, and diagnosed chronic major depressive disorder with features of traumatisation.  He identified multiple factors such as operational service, chronic back pain, marital and occupational factors.

11.      On 6 November 2001 Dr R Peterson, consultant psychiatrist, diagnosed a dysthymic disorder with clinical episodes consistent with a diagnosis of major depressive disorder, and said that service-related factors were relevant.  On 28 December 2004 Dr J Gelb, consultant psychiatrist, diagnosed anxiety disorder with secondary depression and took a history of depression and anxiety since the mid- 1980s. Dr Gelb stated that Mr Jurey returned from operational service having changed significantly and with noticeable anxiety symptoms which later became chronic. 

12.      On 30 November 1998 Dr G Freed, consultant psychiatrist, reported symptoms of anxiety, mood and sleep disturbance and fluctuating levels of depression, and diagnosed dysthymic disorder.  Dr Freed noted that Mr Jurey had indicated that his wife recognised his mood and sleep disturbance, as well as marital difficulties and his harsh attitude towards his children, and had arranged for the referral to Dr Peyton in 1988.  On 21 January 2010 Dr T Entwisle, consultant psychiatrist, examined previous reports and noted that Mr Jurey has variously been diagnosed with a generalised anxiety disorder and a chronic dysthymic disorder.  He diagnosed a chronic adjustment disorder with depressed and anxious mood, and identified contributing factors including war service, sense of non-acceptance of his contribution after his service, chronic difficulties in adjusting to the civilian workplace, and problems with his marriage, as well as his back pain.  In oral evidence Dr Entwisle agreed that the various diagnoses are often used interchangeably, and that in this case Mr Jurey satisfied the criteria for a diagnosis of depressive disorder.

13.      Dr Peyton stated in a letter to the referring doctor on 6 June 1988 that he had been seeing Mr Jurey since March 1988 and that the presenting problem was tension at home, with Mr Jurey describing himself as cautious and meticulous, and his wife being less so, and that there were arguments over many issues.  Dr Peyton concluded that the couple had been working hard to improve the situation.    

14.      The Tribunal acknowledges that various diagnoses have been made by psychiatrists.  The Tribunal accepts the evidence from Dr Entwisle that some of the conditions are interchangeable, and on balance the Tribunal finds that the weight of medical evidence supports a diagnosis of a depressive condition.  The Tribunal finds that Mr Jurey suffers from depressive disorder. 

IS THE CONDITION WAR-CAUSED?

15.      Mr Jurey stated that his operational service led to his depressive disorder.  In a written statement dated 16 September 2009 he said that he was generally apprehensive during his trips to Vietnam.  He listed two specific stressors.  The first occurred on board HMAS Sydney in 1969 when he was assisting the quarterdeck sentry (situated about 15 feet or 4.5 metres above the waterline) and was given the task of dropping scare charges overboard while the vessel was at anchor at Vung Tau harbour (the scare charges event).  Mr Jurey explained that scare charges are small hand-held explosives, similar to hand grenades, that are designed to protect the ship from underwater attack by enemy divers, and are activated by removing a pin and throwing the device into the water.  He stated that he had received no prior training and at the time had relied on instruction from his superior.  He said that when he pulled the pin on the device he felt scared and became very anxious as he feared that he might detonate the charge while he was on deck.  Mr Jurey said that he threw about five scare charges in a five-hour period on the day in question.

16.      Under cross-examination Mr Jurey agreed that his superior had explained the process of activating the scare charge adequately and that the procedure for removing the pin and throwing the device was not difficult.  All the scare charges were thrown from the deck successfully.  However he maintained that he was worried about the consequences of a mishap.

17.      The second stressor occurred on board HMAS Hobart in 1970 during Mr Jurey’s final voyage to Vietnam.  He told the Tribunal that the ship was alongside USS Firedrake undertaking a replenishment operation when he observed a US sailor washed overboard (the man overboard event).  Mr Jurey stated that he had been working in his ship’s laundry and had gone up on deck for a break when he witnessed the incident.  The sailor fell between the two ships and was swept away behind the vessels.  There was an immediate alert.  Mr Jurey said that he feared the sailor would be swept under the propellers of one of the ships, as both vessels were moving and there was considerable turbulence in the water.  He stated that he saw an Australian diver jump into the water and swim to the sailor’s aid, and observed that both appeared to be struggling in the water.  He was concerned that they would drown.

18.      Mr Jurey explained that he was recalled to the laundry shortly after the sailor fell overboard, and when he completed his duties about four hours later he learnt that the sailor had been rescued.  He said that during this period he was shocked and upset, and was concerned about the welfare of the sailor.  He felt sick not knowing the sailor’s fate.  He did not hear any broadcast about the incident.  Under cross-examination Mr Jurey agreed that the rush of water between the vessels and the movement of the vessels contributed to the sailor being swept away after falling into the water, but disagreed that there was little likelihood of the sailor being sucked into the propellers.  He agreed that he only observed the incident for about one or two minutes before being recalled to the laundry, and that he did not ask anyone about the outcome of the rescue until his shift ended.

19.      Mr Jurey told the Tribunal that after his final voyage to Vietnam he was suffering depression and anxiety, and became withdrawn socially.  He resumed duties with the Victorian Railways but continued to suffer from emotional problems.

20.      In a report dated 26 February 2010 for Writeway Research Service Pty Ltd Commodore P Mulcare stated in respect of the scare charges event that there are always inherent dangers in handling explosives, but that throwing scare charges is a relatively simple procedure.  He noted that there is no record of scare charges being thrown from HMAS Sydney on the date in question, and that scare charges were normally used only in the event of a suspected or confirmed attack by enemy swimmers.  He said that scare charges would not normally be thrown from the ship’s deck but instead from the ship’s cutters, which are small boats carried by the ship to unload personnel and items of equipment.  Under cross-examination Commodore Mulcare agreed that there is no evidence to show that all scare charges were thrown from cutters rather than from the deck of HMAS Sydney during the relevant period.

21.      In respect of the man overboard event Commodore Mulcare stated that records of HMAS Hobart indicate that the sailor was rescued eleven minutes after falling from the deck of USS Firedrake and suffered no physical injuries.  He was returned to his ship about 30 minutes later.  Commodore Mulcare added that when the sailor fell overboard there would have been a broadcast throughout HMAS Hobart about the incident, and another shortly afterwards notifying the ship’s company that both the sailor and the rescuer were safe, although under cross-examination he agreed that there is no evidence that such broadcasts were made or that any broadcast was audible in the ship’s laundry at the time.

22.      Dr Sheehan stated in his report that Mr Jurey had given a history of no formal training in throwing scare charges and feared that the charge might explode.  In respect of the man overboard event, Mr Jurey had reported that the incident made him realise his vulnerability while on a ship, particularly of falling overboard.  Dr Freed concluded that service in the navy and particularly in Vietnam were contributory and ongoing factors in relation to Mr Jurey’s psychiatric condition, although Dr Freed did not mention the two alleged stressors.  Dr Peterson took a history of anxiety during service in Vietnam and a number of events in particular, but no mention of the two alleged stressors.  Dr Gelb took a history of Mr Jurey feeling anxious and stressed when he was instructed to throw scare charges, as he had never received previous instruction about their use.  Dr Gelb also noted that Mr Jurey had referred to the man overboard event and had indicated that he was afraid that both men would drown, and since then had expressed a continuing fear of water and of drowning.

23.      Dr Entwisle recorded that Mr Jurey described the scare charges event and that he was not trained in the approved procedure.  Mr Jurey had said that he was frightened that he might make a mistake or damage a support vessel.  Dr Schrueder referred to anxiety experienced in the navy and subsequently when recalling wartime experiences, but took no history of the two alleged stressors.

24.      In relation to the first step from Deledio, after considering all the material including evidence from Mr Jurey, Mrs Jurey and the psychiatrists about his depressive disorder and operational service, the Tribunal determines that the material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by Mr Jurey.  Therefore he satisfies the first step.

25.      In relation to the second step from Deledio the Tribunal has ascertained that there is in force an SoP, being SoP Nº 27 of 2008 concerning Depressive Disorder so Mr Jurey satisfies the second step. 

26.      In relation to the third step from Deledio, the Tribunal has considered all the material, including the evidence from Mr Jurey, Mrs Jurey and the medical evidence.  The Tribunal considers that the material points to the hypothesis linking Mr Jurey’s operational service with his depressive disorder.  Therefore, Mr Jurey satisfies the third step.

27.      In relation to the fourth step from Deledio, the Tribunal must decide whether it is satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Jurey’s depressive disorder was due to his operational service within the meaning of s 9 of the Act. It is at this stage that the Tribunal is called upon to make findings of fact. The claim will succeed unless one or more of the facts necessary to support the hypothesis is disproved or the truth of a fact inconsistent with the hypothesis is proved.

28.      Factor 6 of SoP Nº 27 of 2008 provides:

(a) for major depressive episode, recurrent major depressive disorder, dysthymic disorder and depressive disorder not otherwise specified only,

…

(ii) experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder; or

(iii)experiencing a category 1B stressor within the five years before the clinical onset of depressive disorder; or

…

In paragraph 9 of the SoP:

"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 eyewitness;

(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;

…

29.      There is no definition of the term clinical onset in the SoPs or in the Act.  In Lees v Repatriation Commission [2002] FCAFC 398 the Full Federal Court of Australia stated at [13] in respect of the expression clinical onset:

...It is an expression whose meaning has been considered by the Tribunal on several occasions including in Re Robertson & Repatriation Commission (1998) 50 ALD 668 and Re Witten & Repatriation Commission (1998) 54 ALD 605. It was also considered by Branson J in Repatriation Commission v Cornelius [2002 FCA 750... Her Honour said at [26]:

Before it could form the above opinion, the Tribunal was required to consider the meaning of the expression "clinical onset" as used in clause 5(a) of the SoP. The Tribunal accepted the appropriateness of the approach adopted by the Tribunal in Robertson v Repatriation Commission (AAT 12666, 2 March 1998), namely that

"... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present...."

30.      In Kaluza v Repatriation Commission [2010] FCA 1244 Jacobson J stated at [92] and [93]:

The meaning of the expression “clinical onset” was considered by the Full Court in Lees. The effect of what their Honours (Heerey, Moore and Kiefel JJ) said at [13] was that there is aclinical onsetof a disease, either:

·when a person becomes aware of some features or symptoms which enable a doctor to say that the disease was present at that time; or

·when a finding is made on investigation which is indicative to a doctor that the disease is present.

The definition therefore emphasises the need for a determination of theclinical onsetby medical evidence. It is for the doctor to say when theclinical onsetoccurred by the presence of features or symptoms. But the clinical onset is not necessarily when the patient first sees a doctor for medical treatment.

31.      In respect of the depressive disorder suffered by Mr Jurey, the Tribunal takes into account that Dr Peterson and Dr Entwisle concluded that service-related factors were relevant to the condition.  Dr Sheehan observed that clinical onset occurred approximately when Mr Jurey first consulted a psychiatrist in the 1980s after slowly developing symptoms of a psychological or psychiatric condition following discharge from the navy.  This is consistent with Mr Jurey’s evidence and the evidence from Mrs Jurey that issues including mood disturbance and marital difficulties led her to arrange a referral to Dr Peyton in 1988.  It is also consistent with the history taken by Dr Schrueder of the onset of anxiety in 1985 to 1990; by Dr Gelb who took a history of depression and anxiety since the mid-1980s; and by Dr Freed who noted the referral to Dr Peyton in 1988.

32.      On balance after considering the medical evidence the Tribunal concludes that the symptoms of the condition began after Mr Jurey’s naval service and reached a point in the mid-1980s when he became aware of his psychological features or symptoms which later enabled a medical diagnosis of his condition and treatment to commence.  The Tribunal finds that clinical onset of depressive disorder is the mid-1980s, so Mr Jurey cannot satisfy factor 6(a)(ii) or 6(a)(iii) of SoP Nº 27 of 2008 because the scare charges event (1969) and the man overboard event (1970) occurred more than five years before the clinical onset of the condition.  Consequently there is no need for the Tribunal to determine whether either or both of the events constitute category 1A or 1B stressors.

33.      It follows that Mr Jurey does not satisfy the fourth step.  Therefore the Tribunal is satisfied beyond reasonable doubt that there is no causal connection between Mr Jurey’s depressive disorder and his operational service during the relevant period.

DECISION

34.      The Tribunal affirms the decision under review.

I certify that the thirty-four [34] preceding paragraphs are a true copy of the reasons for the decision of:

G. D. Friedman, Senior Member and Dr R Blakley, Member

Kate Conners

Associate

Dates of hearing:  16 and 17 August 2010, 14 December 2010, 27 May 2011

Date of decision:  7 June 2011
Counsel for the applicant:                  Ms A McMahon
Solicitor for the applicant:                   Williams Winter
Counsel for the respondent:               Mr G Purcell
Solicitor for the respondent:                Department of Veterans’ Affairs