Keys and Repatriation Commission
[2000] AATA 992
•14 November 2000
DECISION AND REASONS FOR DECISION [2000] AATA 992
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1998/1815
VETERANS' APPEALS DIVISION )
Re MAXWELL JOHN KEYS
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr M J Sassella, Senior Member Dr M E C Thorpe, Member
Date14 November 2000
PlaceSydney
Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent for assessment of Disability Pension payable to the Applicant in respect of the condition of post-traumatic stress disorder. The date of effect of the decision is 18 August 1997.
..............................................
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – disability pension – post-traumatic stress disorder – appropriate clinical management – clinical onset – contribution or aggravation – statement of principles.
Veterans' Entitlements Act 1986 ss 9(1)(b), 13(1)(b), 14, 16(a), 70(5)(d), 120(4), 120B
Brew v Repatriation Commission [1999] FCR 80
Johnston v Commonwealth (1982) 150 CLR 331
Repatriation Commission v Keeley (2000) 98 FCR 108
Ogston Industries Pty Ltd v Lucas (1967) 116 CLR 537
Re Gibson and Repatriation Commission (1999) 55 ALD 194
Repatriation Commission v Bendy (1989) 18 ALD 144
Repatriation Commission v Gosewinckel [1999] FCA 1273
Repatriation Commission v Wedekind [2000] FCA 649
Repatriation Commission v Wellington [1999] FCA 1552
Repatriation Commission v Yates (1995) 38 ALD 80
Treloar v Australian Communications Commission (1991) 12 AAR 535
REASONS FOR DECISION
Mr M J Sassella, Senior Member Dr M E C Thorpe, Member
On 18 November 1997 the Applicant lodged a claim for a Disability Pension on the basis of his alleged condition of post-traumatic stress disorder ("PTSD") (T4). On 28 February 1998 the Respondent rejected that claim (T8). On 9 March 1998 the Applicant lodged an application for review of that decision with the Veterans' Review Board ("VRB") (T9). On 23 November 1998 the VRB made its decision in which it affirmed the decision of the Respondent (T17). This decision was notified to the Applicant is a letter dated 8 December 1998 (T18). On 16 December 1998 the Applicant lodged an application for review of the decision as affirmed by the VRB with the Tribunal (T1).
At the hearing the Applicant was represented by Ms Toliopoulos of the Legal Aid Commission and the Respondent was represented by Ms Breuer of the Department of Veterans' Affairs.
The documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (TD1) were admitted as evidence along with the following material:
Exhibit No Description Date
A1 A2 A3 A4 R1 R2 Applicant's Amended Statement of Facts and Contentions Statement of Maxwell J Keys Report of Dr Smith Report of Dr White Respondent's Statement of Facts and Contentions Report of Dr Schultz 28 March 2000 19 March 2000 2 November 1999 24 September 1999 30 November 1999 6 September 1999
BACKGROUND
The Applicant was born on 27 March 1954. He joined the Royal Australian Navy ("the navy") on 11 July 1970 and was discharged on 10 July 1976. His eligible service ran from 7 December 1972 until 10 July 1976.
On 21 April the Applicant, aged 20, was injured in a gunshot accident while on weekend leave at home in Goulburn. He was in hospital from 21 April 1974 until 1 May 1974 and then at home until 4 May 1974. He then returned to the navy, rejoining his ship on 6 May 1974.
After discharge he worked as a self-employed taxi driver in Goulburn, NSW, between 1976 and 1983. He then worked for the State Rail Authority in Goulburn as a fireman-assistant driver/locomotive until 1987. He then worked self-employed in a Caltex service station in Goulburn for some years. He then learned motor vehicle finance and worked at that for a year. He was dismissed from that employment because, he said in evidence, he had tackled his employed about the unacceptable way he treated his employees. Then he worked again as a self-employed taxi driver in Goulburn. He then became a carer for mentally disabled people looking after themselves in housing located in the community.
At the time of the hearing in March 2000 the Applicant was unemployed and on a social security disability support pension. He said in his pension claim (T4) that his disability made taxi driving impossible at a safe level because of his nervous problem. He was unable to trust or have confidence in others which made it difficult for him to work with others. He views many day-to-day activities as life threatening. He cannot relax, lacks concentration and anxious.
Further facts emerged in the oral and documentary evidence before the Tribunal.
THE LAWThe Applicant considered that he qualified for a Disability Pension under s 13(1)(b) of the Veterans' Entitlements Act 1986 ("the VE Act") on the basis that he had become incapacitated from a war-caused injury or a war-caused disease in accordance with s 9(1)(b) of the VE Act. As discussed above, he therefore lodged a claim under s 14(1) and (3) and s 16(1) of the VE Act.
"13. Eligibility for pension
(1) Where:
…(b)a veteran has become incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)in the case of the death of the veteran- pensions by way of compensation to the dependents of the veteran; or
(d)in the case of the incapacity of the veteran – pension by way of compensation to the veteran;
in accordance with this Act.
…"
"9 War-caused injuries or diseases(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
…
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…"
"14 Claim for pension(1)Subject to subsection (2), a veteran, or a dependent of a deceased veteran, may make a claim for a pension in accordance with subsection (3).
(3) A claim for pension:
(a)shall be in writing and in accordance with a form approved by the Commission;
(b)shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and
(c)shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).
…"
"16 Who may make claim or application
A claim under subsection 14(1) for a pension for a veteran or for a dependent of a deceased veteran, an application under subsection 15(1) for an increase in the rate of pension payable to a veteran or an application under subsection 15(2) for a pension for a veteran may be made:
(a) by the veteran or dependent, as the case may be;
…"
As the Applicant's service was not operational service, his claim was to be determined on the standard of proof provided for by s 120(4) of the VE Act. This requires that the Respondent or the Tribunal decide the matter to its reasonable satisfaction. This has been taken in a number of cases to import into the section the civil standard of proof. Thus it can be said that a decision-maker must be satisfied that a relevant state of affairs is more probable than not. Section 120(6) provides that neither the Applicant nor the Respondent bears any onus of proving any matter that is or might be relevant to the claim.
"120 Standard of Proof
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
…
(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
…"
Section 120(4) is affected by s 120B. Section 120B(3) relevantly provides:
"120B…
…
(3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); …
…
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
…"
In 1994 the Repatriation Medical Authority determined under s 196B(3) a Statement of Principles concerning PTSD, Instrument No 16 of 1994. This was amended by Instrument No 226 of 1995 but those amendments did not affect the substance of the original instrument. The applicable Statement of Principles, as amended, is referred to as "the SOP" in these reasons for decision.
Paragraph 1 of the SOP sets out the factors that must exist before it can be said that, on the balance of probabilities, PTSD, or death from PTSD, is connected with the circumstances of service. They are:
"1. …
(a)experiencing a stressor prior to the clinical onset of post traumatic stress disorder; or
(b)experiencing a stressor prior to the clinical worsening of post traumatic stress disorder; or
(c)inability to obtain appropriate clinical management for post traumatic stress disorder."
Paragraphs 2, 3 and 4 are as follows:
"2.Subject to clause 3 (below) at least one of the factors set out in paras 1(a) to 1(c) must be related to any service rendered by a person.
3. The factors set out in paragraphs 1(b) and 1(c) apply only where:
(a)the persons post traumatic stress disorder was contracted prior to a period, or part of a period, of service to which the factor is related; and
(b)the relationship suggested between the post traumatic stress disorder and the particular service of a person is a relationship set out in paragraph 8(1)(e), 9(1)(e) or 70(5)(d) of the Act.
4. For the purposes of this Statement of Principles:
'DSM-IV" means the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders;
"experiencing a stressor" means the following (derived from DSM-IV):(a) the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person's, or other people's, physical integrity; and
(b) the person's response to that event involved intense fear, helplessness or horror;
"post-traumatic stress disorder" means a psychiatric condition meeting the following description (derived from DSM-IV):
(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;
(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 following ways:
(i)recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii)acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv)intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event;
(v)physiological reactivity on exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event; and
(c) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i)efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii)efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii)inability to recall an important aspect of the trauma;
(iv)markedly diminished interest or participation in significant activities;
(v)feeling of detachment or estrangement from others;
(vi)restricted range of affect (eg, unable to have loving feelings);
(vii)sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(d) persistent symptoms of increased arousal (not present before the trauma), as indicated by two of more of the following:
(i)difficulty falling or staying asleep;
(ii)irritability or outbursts of anger;
(iii)difficulty concentrating;
(iv)hypervigilance;
(v)exaggerated startle response; and
(e) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(f) the disturbance causes clinically significant distress or impairment in social, occupational other important areas of functioning."
In relation to paragraph 3(b) of the SOP, in this matter it would be s 70(5)(d) of the VE Act that would apply to the Applicant. That provision is as follows:
"70…
(5)For the purposes of this Act, the death of a member of the Forces…or member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
…
(d)the injury or disease from which the member died, or has become incapacitated:
(i) was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease…"
DOCUMENTARY EVIDENCE
Much of the documentary evidence before the Tribunal is discussed below in relation to its use at the hearing. However, some documents available to the Tribunal were not referred to during the hearing. What they are, and what relevance they have, is now summarised.
Document T6 is treating doctor, Dr Burgess's report dated 22 December 1997 relating to Mr Keys' PTSD symptoms. Key elements in this report are as follows:
Mr Keys was anxious when driving his taxi. He feared a passenger sitting behind him might attack him. He was fearful of the next passenger he might pick up.
Dr Burgess considered Mr Keys depressed and anxious in October 1997 when he saw him. He was still driving the taxi at that time.
His condition makes Mr Keys anxious at home and short with his wife and children.
Mr Keys' daily activities were affected by his condition. He was anxious about his passengers in his taxi. He withdrew into himself. He avoided socialising outside the family. He did not feel like playing golf very much.
Psychologist Charles Brull was counselling Mr Keys fortnightly. He was scheduled to see psychiatrist Dr Koller. He had never been admitted to hospital for the condition.
Dr Burgess and Mr Brull thought Mr Keys' condition was PTSD but Dr Burgess awaited Dr Koller's opinion.
Dr K Koller's report dated 11 February 1998 is at T7. Its key points are:
Mr Keys told him that from "say 1976 onwards" he seemed to mix poorly with people and he avoided company. He never again returned to hunting. When driving a taxi he had passengers sit in the front so that he could watch them. He would be greatly aroused by sudden noise such as a whistle.
Mr Keys' diagnosis is chronic PTSD.
Dr Koller concentrates entirely on the shooting incident as the stressor causing the PTSD. There is no reference to inappropriate follow up treatment in the navy.
The documents at T13, T14 and T15 are statements by friends and by Mr Keys' mother prepared for the appeal to the VRB. Mr Malcolm MacLean prepared T13 on an unknown date. Relevantly he wrote:
He and the applicant were neighbours who grew up together and took up shooting together. He stated that Mr Keys gave up shooting altogether after he was shot.
Mrs Audrey Keys, mother of the Applicant, prepared document T14 which is also undated. Relevantly it stated:
After the shooting accident she did not know whether Mr Keys would live or die.
The Applicant told her and Dr Crawford that when he reported back to the navy he would be sent back home for a couple of weeks to fully recover.
Mr Keys was given no leave when he returned to the navy. Mrs Keys feels that an important and necessary trauma recovery period was not utilised.
Mr Keys "never said too much about not receiving any clinical help from the Navy but [she] feel[s] the Navy should have known and treated someone with a serious gunshot wound a lot more professionally."
"As Max's mother I knew something was wrong when not long after [he returned to his ship], Max applied to be discharged."
Mr and Mrs Russell and Pat Chambers provided document T15 which is undated. Relevantly it states:
Mr and Mrs Chambers were next door neighbours to Mr Keys' family.
They agreed to allow Mr Keys and his friends to engage in target shooting on their property on the day of the gunshot accident.
THE HEARING
Opening submissions
At the hearing Ms Breuer for the Respondent outlined her case. She identified three issues as before the Tribunal:
1) Diagnosis: The stressful event could be the fact that the Applicant was shot accidentally while target shooting with friends during leave from the navy. This would meet the applicable Statement of Principles. Ms Breuer referred at the time to Instrument No 4 of 1999 as the appropriate Statement of Principles. Since the hearing it has been clarified by the Federal Court of Australia in Repatriation Commission v Keeley (2000) 98 FCR 108 that the correct Statement of Principles is that in force on 28 February 1998, the date of the primary decision. This was Instrument No 16 of 1994 as amended by Instrument No 226 of 1995. Paragraph (a) of the definition of "post-traumatic stress disorder" would be relevant. This requires amongst other things that the person, here the Applicant, has been exposed to a traumatic event in which he "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 his "response involved intense fear, helplessness, or horror". The alternative stressor could be the way the Applicant was treated by the navy after he was shot. Ms Breuer said it could not be both. She submitted that it would be inappropriate for the Applicant to regard any inappropriate clinical management accorded him by the navy as the stressful event.
2) The question of whether the Applicant was unable to obtain appropriate clinical management in the navy. The Applicant can claim eligible service, not operational service, thus, under s 120(4) and s 120B of the VE Act, the Tribunal must reach a state of reasonable satisfaction in respect of this argument. Ms Breuer said that the Tribunal would have to consider this question in the light of treatment standards of the time, 1974, for PTSD, a condition not available for diagnosis as long ago as that. The question is what was common practice at that time.
3) If it is held that the Applicant did not receive proper clinical management, whether the Applicant's condition is any worse at present than it would have been even if he had received better treatment. Ms Breuer argued that if the Applicant's condition is no worse then he cannot succeed.
Ms Toliopoulos for the Applicant submitted that the Applicant suffers from PTSD. The stressor was the accidental shooting. The PTSD condition was worsened because of the Applicant's inability to obtain appropriate clinical management.
Applicant's evidence
The Applicant provided a written statement dated 19 March 2000 (Exhibit A2). It covers similar ground as his oral evidence but there are some differences in emphasis. In Exhibit A2 Mr Keys mentioned how the navy taught recruits the importance of weapons, especially rifles. Every working day the recruits did rifle drill. They were shown how to shoot and told how important it was to shoot accurately and quickly.
Marksmanship was encouraged and rewarded with the "crossed rifles" badge that a proven marksperson could wear on a sleeve. The Applicant was a candidate for the crossed rifles and worked towards gaining it.
While serving on a ship it was not possible to practise target shooting frequently. The Applicant made use of a rifle range for target practice near his home when he was on leave.
Mr Keys took steps in 1974 to be able to leave the ship as soon as he could and to seek an early discharge from the navy. He left the ship at the end of 1974. He had a further 18 months of service which he carried out performing desk duties in Canberra.
The Applicant's evidence during the hearing elicited the following information:
When he enlisted in the navy at age 16 the Applicant agreed to serve for 12 years. His first year was spent in academic work. He then moved into communications work. He was a technical operator on the ship's bridge. This involved inter-ship communication via semaphore, morse code and encrypted messages.
On 21 April 1974, when he was 20 years old, the Applicant was on short leave. He was a keen target shooter and he wanted to qualify for the navy's "crossed rifles" badge. He usually used a rifle range for practice. During his leave he sought to use it with two other naval officers but it was already in use. He approached a neighbour for permission to use the neighbour's property. The neighbour agreed. The accident occurred when a rifle in the back of the station wagon in which the Applicant and the other naval officers were travelling went off accidentally. The bullet penetrated the back of the Applicant's seat. He was in the front passenger seat. The bullet went through the Applicant's lower back and emerged under the skin on the front of the Applicant's body. The Applicant was rushed to hospital in fear for his life.
In hospital he underwent a laparotomy and he still thought he might die. He was in great pain and was surprised by the many tubes into and out of his body in addition to the extent of the laparotomy scar. The bullet crushed two ribs and grazed the Applicant's liver.
The Applicant saw his surgeon, Dr Crawford, on 4 May 1974 and was discharged from hospital into his parents' care on 5 May 1974. This is borne out in T3, folio 14. Dr Crawford apparently expected the Applicant to be on sick leave however he was returned to duty.
The Applicant travelled by rail from Goulburn to Sydney Central and from there by cab to Garden Island. He was still in substantial pain. He saw the ship's doctor, Dr Ball, on 6 May 1974. That doctor seemed shocked and commented on the scarring. He approved the Applicant's return to duty specifying light duties for seven days. This appears in T3, folio 21.
In fact, light duties were not available. Even reaching the bridge from sleeping quarters required considerable effort. He had to walk 100 metres and then climb seven sets of 12 steps that were steep to the extent that they were ladder-like. He had to negotiate this course at the start and end of each day, at lunchtime, if he went to the toilet and at morning and afternoon tea time. The Applicant could not climb to his bunk in sleeping quarters. He had to sleep on the lower bunks assigned to other sailors who were on leave at the time. When he first returned to duty he skipped morning and afternoon teas because of the physical stresses. His duties included cleaning, general maintenance and raising and lowering flags twice a day. He did not protest because Dr Ball was an officer and in the hierarchical navy structure it was not possible to question the judgement of an officer. Thus, having been released into sick leave by his own specialist, the Applicant felt that he had in fact been returned to duties that were not light. He conceded, however, that some if the most strenuous duties, such as some requiring stretching, were not required. His supervisor was aware that there were some restrictions. The Applicant feared that his surgery would rupture. He tried to protect himself by moving slowly and using railings, etc for support.
The Applicant left the navy prematurely on 10 July 1976. He was still upset about the treatment he had received from the navy in the post-operative stage. After that experience things had begun to go badly for the Applicant. He was sent on a joint Australian/USA/New Zealand operation, Kangaroo I, in Queensland several weeks after discharge from hospital. He saw and suffered from some rough handling during the operation and he resolved that he could not take it for much longer. He was also concerned that he was not doing his job properly. He was unable to read some flashing signals from another ship at one time. This was a new development. At the same time he felt he could not trust those around him.
The Applicant gave notice of his intention to leave the navy. This was a two-year process. He had to serve out his time, six more months, on his then current ship and then give 18 months notice of his intention to leave. This was required if his discharge was to be honourable.
The Applicant then discussed the post-service employment listed earlier. He mentioned that after he gave up taxi driving and the carer work he saw a psychologist who eventually referred him on to a psychiatrist, Dr Koller, in Goulburn. He saw Dr Koller once and has since seen two psychiatrists regularly, Dr White in Canberra and Dr Smith in Burwood.
The Applicant then discussed his psychiatric treatment. He had been seeing Dr White for 18 months by the time of the hearing. Dr White prescribes him Inderal. This medication deals with a shivering sensation the Applicant can develop. Dr White has diagnosed the Applicant as suffering from chronic PTSD.
The Applicant with support from Dr White registered for a PTSD course at Burwood to find out more about the condition. Dr Smith screened him for the course. The Applicant was still seeing Dr Smith at the time of the hearing because it was the tail end of the course. The course was three days a week over 12 weeks.
The Applicant described his PTSD symptoms. These were as follows:
He feels constantly nervy.
He does not trust anyone, especially anyone in authority.
He is reluctant to leave his house.
He does not make friends. Only one person visits and he does so about every three months.
He does not sleep well. He has trouble getting to sleep. He wakes several times during the night thinking of navy experiences, especially his premature return to work.
He has dreams and nightmares. His wife wakes him from nightmares and he finds he is lying in a pool of sweat. The nightmares refer to happenings on the ship.
He can be short with his children, aged 10 and 13. The relationship is loving and good, however.
His wife and the Applicant have been together 20 years.
Asked to sum up how he felt the navy failed to look after him, the Applicant said:
"Well, ma'am, they didn't look after me the one time I needed help and that was, you know, I'd given them years of training and I was actually rewarded with extra time and extra money through putting it back in. The one time I needed help they did quite the opposite. They made me do something that was just unheard of. I knew it was wrong and yet I was made to do something that was – that I don't think any other person has ever been through and it was wrong and you can't forgive people for doing something like that when it was 1974. They should have been aware and should have known. There was no after – I went back to that ship and there was nothing, not one contact."
The Tribunal asked the Applicant what his relationships with his navy colleagues at the same rank had been like and whether they had changed. He explained that continuing friendships were rare because the population on a boat was continuously changing. There was no real alteration in the nature and quality of these relationships after the shooting accident.
Ms Breuer then cross-examined the Applicant. She established the following:
Despite the Applicant's fears, his wound did not reopen when he returned to duty.
The Applicant did not consult Dr Crawford about his concerns. The Applicant emphasised that the navy would take a very dim view if he had done this. The navy expected its officers to use navy doctors and not unilaterally seek outside help. Additionally he could not leave the ship unless he had been granted leave.
In response to a number of questions suggesting that the Applicant could and should have returned to the ship's doctor and told him of his worries the Applicant explained why he felt he could not second guess a navy doctor. In essence this was something that the Applicant said was just not done, especially by a 20 year old. The ship's doctor's assessment was definitive. He also mentioned that he had returned to the ship's doctor with a painful twisted ankle after a minor accident soon after his return to work. The ship's doctor did not raise the operation or its aftermath and made no inquiries about the Applicant's progress or any work problems he might have had at the time.
Ms Breuer then moved on to consideration of the Applicant's PTSD symptoms.
As regards the dreams he had the Applicant was unable to say whether they related to the shooting or the follow up treatment. He would know he had been dreaming. He would have been restless. The bedclothes would be disturbed and he would have sweated profusely. However, the specifics of the dreams he could not recall.
His conscious thoughts soon after the shooting were predominantly about his predicament; about his mystification as to how he was being handled by the navy; about returning to the ship in pain and having to change into his work clothes. He was adamant that his conscious thoughts were about the after-treatment rather than the shooting itself. In his view the immediate aftermath of the shooting had been entirely satisfactory. Things went badly when he returned to the navy.
As regards intrusive thoughts, the Applicant has had these since soon after the shooting. He sees things around him that for one reason or another remind him of his predicament when he was both shot and when he returned to work.
Ms Breuer asked the Applicant how he had met his wife before they married and whether they have mutual friends. The Applicant explained that they were near neighbours and were introduced by mutual friends. They do not have ongoing friendships.
Ms Breuer asked the Applicant about aspects of his employment history of about 21 years. One of his fears driving taxis was that he might be attacked from behind.
The Applicant answered questions about what had prompted him to claim a disability pension. He explained that an RSL man had assisted him. He had started seeing his doctor in 1997 because he was beginning to faint or pass out. He could no longer control his anxieties by masking them.
Ms Breuer queried why the Applicant had not recorded his concerns when discharged from the navy. This refers to the medical record at discharge document at T3, folio 15 of the documents before the Tribunal as Exhibit TD1. There is nothing about the Applicant's concerns in that document. The Applicant said that he feared that he might be required to stay in the navy if he caused any such difficulties. He had enlisted for 12 years and was exiting after six, including 18 months notice. He did not want to jeopardise his discharge.
Dr Smith
The next witness was Dr S M Smith, psychiatrist. He had provided a written report to Ms Toliopoulos which was Exhibit A3. It was dated 2 November 1999. That report recites much of the earlier factual matters but also made the following points:
He had first seen the Applicant on 5 July 1999. He diagnosed his condition as PTSD.
He had arranged for the Applicant to enter the PTSD program at St John of God Hospital where the Applicant attended regularly after joining the program.
He had seen reports by Dr N Schultz and Dr B White.
He noted that the Applicant received no psychological counselling or debriefing in connection with the shooting accident.
One factor that concerned the Applicant when back on his ship was that it would be the same doctor who had returned him to work who would be involved in the surgical procedure if the operation wounds were to burst.
The sight of corridors and stairways continues to serve as significant cues and triggers in recalling the particularly troubled time the Applicant had back on his ship.
On the ship the thought of anyone touching or bumping him caused the Applicant added anxiety.
He had difficulty getting dressed, walking, climbing stairs and concentrating.
The Applicant was struck by the fact that no one asked about his well being when he returned to the ship.
After the Applicant gave notice of his wish to be discharged from the navy he feared that conflicts in Vietnam or Timor would flare up and he would have to serve in that zone.
The Applicant lacks confidence in others, especially those in authority. He is withdrawn and isolated from others. He is vigilant and startles easily. He experiences sleep impediments and anxiety. He is avoidant and has no close friends. He continues to experience intrusive and troubled thoughts. He is easily angered. He continues to harbour strong suspicions about the navy and this is heightened by errors in navy documentation.
The Applicant developed a PTSD as a result of the shooting incident on 24 April 1974. The incident threatened death and caused serious injury. The Applicant's response involved intense fear, helplessness and horror. The Applicant was convinced he would die and these fears came to the fore when he was ordered to return to work. He had no confidence in the navy doctor who did this after a cursory examination. What occurred was not what Dr Crawford had expected. Dr Crawford thought the Applicant would be in a naval hospital or at home with his family. The failure of the navy to recognise the injuries that the Applicant had experienced resulted in the persistence of recurrent and intrusive distressing recollections of his accident with fears that his wounds would break down. On the ship the Applicant experienced a sense of a foreshortened future. His sleep patterns were impaired. He had difficulty concentrating. He was hypervigilant. He startled easily. He experienced irritability.
The symptoms described were compatible with chronic PTSD. The symptoms have persisted.
Naval physicians and psychologists at the time (1974) should have recognised the significant nature of Mr Keys' injury and the need for appropriate trauma debriefing. This would have been available to civilians and should have been equally available to naval personnel. Had Mr Keys received appropriate assistance his PTSD would not have progressed to the extent that it has and would not have become chronic PTSD.
Acute states of PTSD are best handled by immediate treatment geared to promoting the integration of the traumatic experience. Chronic states of PTSD require multi-modal, individual or group treatments that are often but not always trauma focused but are aimed at integration. Medications should be offered but may be rejected by the patient. Long-term supportive therapy measures are often indicated.
Mr Keys should have been offered the opportunity to "abreact his affects and images connected with the trauma. The telling of the tale is often desirable and may help to minimise dissociation which could otherwise lead to severe chronic morbidity". Abreaction might involve individual therapy, group therapy, hypnosis, intravenous barbiturates or benzodiazepine medications. The principles involved in treating PTSD include brevity, immediacy, centrality, proximity (close to the event), expectancy of return to full functioning and superficiality (avoiding dredging up deep issues). Competent medical practitioners would have known such principles at the time. Mr Keys was not provided with such supports and this has played a substantial role in his ongoing disorder.
A civilian would have been allowed a longer period of recuperation at home than the Applicant had.
The Applicant's relatively passive personality profile meant he was most reluctant to disclose his true feelings on the ship and in the navy.
Mr Keys has benefited to a moderate degree from his attendance at the PTSD program.
In his oral evidence the following additional or corrective material emerged:
The Applicant's diagnosis is PTSD with generalised anxiety disorder to the point of panic.
The Applicant satisfied the DSM-IV diagnostic tool, ie the criteria set out in the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders. The requirements were met in the following ways:
1) There must be an event that threatens death or serious injury to the person or others. There must be a significant stressor. The shotgun wound experienced by Mr Keys satisfies this criterion.
2) The traumatic event must be persistently re-experienced through any of various ways including distressing recollections of the event in the form of images, thoughts or perceptions. This is satisfied in Mr Keys' case if he is exposed to a ship or stairs he must climb. He would experience overwhelming stress to the point of panic. This criterion can also be satisfied if the person experiences physiological reactivity on exposure to internal or external cues that resemble an aspect of the traumatic event. In Mr Keys' case this applies to cues replicating the shooting or subsequent events. The physiological effects are sweating and hyperactivity. Similarly, this criterion can be satisfied where the person experiences psychological stress at exposure to cues resembling the traumatic event. Mr Keys is overwhelmingly troubled, anxious, fearful when exposed to cues. Flashback episodes are also relevant in testing this criterion. Mr Keys experienced significant flashback episodes. He experienced memories and dreams from the first stages. His dreams now, however, are still distressing, but less directly related to the traumatic events.
3) There must be persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness. There must be present at least three of a possible seven manifestations of this behaviour. In Mr Keys' case he does not like to talk and he does not discuss what happened to him. He tries to avoid activities arousing recollection of the trauma. He avoids the navy, for example. He has a diminished interest in participation in significant activities. He is markedly withdrawn, avoidant and unproductive despite his work efforts after the event.
4) There must be persistent symptoms of increased arousal with two or more specific examples being satisfied. Relevantly, Mr Keys has sleeping difficulties; he has been irritable; he has been on edge; he has had difficulty concentrating; he is continually hypervigilant. He scans the environment, fearful of further harm befalling him. He demonstrates startle responses. He jumps easily.
5) These symptoms must persist for more than one month. They certainly have in Mr Keys' case.
6) There must be clinically significant distress or impairment in social, occupational or other important areas of functioning resulting from the disturbance. Dr Smith was confident that this requirement was met in Mr Keys' case.
The stressor in Mr Keys' case was more than the shooting. It was that plus the fear of dying and the fear of further harm befalling him when he had to go back on board the ship. He feared haemorrhage and re-hospitalisation and possible surgery at the hands of the naval doctor who had examined him upon his return and ordered him back to work.
The fact that Mr Keys' evidence was that he remembers in his dreams references to stairs and corridors but not to shooting may suggest psychogenic amnesia. He may be blocking out painful memories, which is not unusual after stressful events.
The failure by navy personnel to inquire about Mr Keys' condition when he returned to work is significant. If it suggests dismissal of the symptomatology and a denial of the underlying psychological pain the individual is experiencing that can add to the stress. It can be worse than the initial stressor.
Mr Keys would not question navy authority. He is non-aggressive and non-assertive. He was conditioned to obey orders. His parents were fairly authoritarian so that is consistent.
The failure of the navy to clinically manage Mr Keys' injuries contributed to the worsening of his PTSD.
Proper clinical management of Mr Keys' condition when he returned to the navy would have involved these elements: acknowledgment that an unfortunate incident had occurred; an opportunity for Mr Keys to express how he was doing; an invitation to Mr Keys to discuss his concerns; discussion of his thoughts on a return to work and a possible time frame; provision of psychological assistance; possible introduction of tranquilising or hypnotic medication; and the general provision of a supportive environment. This would be reasonable even at a time before PTSD was an established diagnosis. Military authorities were experienced in handling war trauma. Any physician confronted by a patient with a gunshot wound would expect there to be psychological overlay to the wound. This was known as adjustment reaction before PTSD was a ready diagnosis.
Dr Smith said that he agreed with the contents of Dr White's report but not with Dr Schultz. He commented that he could not discern what Dr Schultz's diagnosis is. He also disagrees with Dr Schultz where Dr Schultz says that PTSD counselling after the event may make the situation worse.
Most PTSD patients can be rehabilitated. They adjust with time. It is tragic that in Mr Keys' situation this has gone on for so long. His prognosis is poor because the condition sets in if it is not treated within two years.
Ms Breuer cross-examined Dr Smith. The following points emerged:
Mr Keys' PTSD had its onset immediately after he was shot. The attitude of the navy compounded, exacerbated and exaggerated the diagnosis and got in the way of any healing.
Ms Breuer queried how it can be said that Mr Keys experiences flashbacks to things that did not happen, such as the reopening of his surgical wounds. How could these be flashbacks? The witness explained that the flashback is more to the subjective feelings and fears the patient had at the time. Dr Smith did concede that, on some understandings of the meaning of a flashback, it could be said that Mr Keys did not experience flashbacks.
Dr Smith's assessments as regards Mr Keys' sleep problems and intrusive thoughts are based on Mr Keys' recounting of his symptoms over the years. The doctor could not speak with certainty about whether these symptoms were present in 1974.
Dr Smith regarded both the gunshot and the post-operative treatment as conducive to the onset of PTSD. The existence of two stressors exacerbates the condition.
Dr Smith considers that the subjective effect of a stressor on the affected person is of prime importance. An event that might not be traumatic for another person can be traumatic for a particular patient. It is nevertheless a relevant stressor.
Although it took Mr Keys over 20 years to seek help for his PTSD this is not unusual. Dr Smith mentioned that even today an occasional World War II veteran can present for the first time with PTSD. Dr Smith was unaware of what had prompted Mt Keys to come forward. He considered that Mr Keys may have thought he was not entitled to any help.
Ms Breuer referred to a comment in the report by Dr White to the effect that, even if Mr Keys had had counselling that may not have completely prevented the development of PTSD. Dr Smith agreed with that. He said that supportive treatment does not always work but it should be tried and normally is.
Dr White
The next witness called by the Applicant was Dr B White, psychiatrist, who wrote three reports. The first was dated 3 August 1998 (T11). The second was dated 13 November 1998 (T12). The third was a report dated 24 September 1999 (Exhibit A4). In those reports he made the following relevant points:
He first saw Mr Keys on 3 July 1998.
Currently Mr Keys has intrusive thoughts every day of the shooting. He has initial insomnia and takes up to ninety minutes to get to sleep. He has dreams but no recall of them. He is restless and perspires excessively at times. He usually wakes twice a night. His concentration is poor. His memory is reduced. He is irritable with his children. He is easily startled particularly with loud noises and this has occurred since the shooting. He has invasive memories and thoughts that he could easily have died.
The Applicant does not watch television programs that bring up memories and thoughts of being shot. After being shot he sold his rifle. He has lost his trust in people since the shooting. He has limited social life and few friends. He has become anxious in particular areas. When taxi driving, for instance, he was worried about possible collisions with trains travelling on parallel tracks.
Mr Keys has a history of hypertension.
Mr Keys has a chronic PTSD related to the shooting incident. By today's standards his follow up after returning to duty was not adequate and this is likely to have contributed to a worse prognosis, although better follow up may not have completely prevented development of PTSD.
Dr White wrote: "Having served as a medical officer in the Royal Australian Air Force in the 1980's my recollection of the expectations for post-op recovery at the time is that 10 days post-op rest for a laparotomy would have been considered inadequate for anywhere near full recovery and especially considering the nature of the gunshot wound then my recollection of a reasonable standard of care at that time would have been to expect further time off on sick leave and then light duties which would not have entailed repeatedly climbing ladders and therefore he would not have been fit for duty on a ship at that time." If Mr Keys had been a civilian a basic level of medical practice would have been to have recommended a much longer convalescence at home.
Mr Keys is currently unfit for work on medical grounds. He is permanently unfit for any full-time or part-time employment for which he is suited by education, training or experience for more than eight hours a week. He is unfit for retraining because of poor concentration.
Mr Keys' PTSD will continue for the foreseeable future with fluctuating severity depending on whether he suffers significant stresses.
In Dr White's oral evidence the following additional points emerged:
In addition to, or in association with, PTSD Mr Keys has a depressive disorder and some phobic responses.
Dr White addressed the criteria for PTSD in DSM-IV and, unlike Dr Schultz, but in accord with Dr Smith, he found that Mr Keys satisfies these. This is for the following reasons: The traumatic event was the shooting. There was a serious wound with potential to be fatal if untreated and requiring a laparotomy. He was unsophisticated and believed that gunshot wounds were fatal. He had intrusive, distressing memories about the incident. These were re-experiencing phenomena. He tends to avoid situations that bring back memory. He has had psychological distress on significant exposure to reminders or cues that resemble a component of the incident. He has been estranged from other people. He has had sleep disturbance. He has had mood changes. He has had exaggerated startle response. He has in fact experienced the full range of PTSD symptoms.
Although the key component of PTSD is the traumatic incident there are other factors that contribute to the prognosis either good or bad such as the patient's physical management which, in Mr Keys' case, was not appropriate. The interaction between the psychological and the physical is intimate. Physical recovery is critical.
An appropriate period of recuperation for Mr Keys would have been three or four weeks followed by light duties on return to work. There would be no ladder climbing, for example. He would not have been working on a ship at all.
Dr White has considerable experience in handling PTSD. He has a military background. In his psychiatric training he spent a year in Sydney at an establishment specialising in the treatment of trauma survivors. He wrote a thesis based on that work. The majority of Dr White's clinical practice is treating any current serving military or ex-military veterans. He works with PTSD sufferers in his hospital work, notably in a recently commenced PTSD treatment program. He belongs to the Australasian Society for Traumatic Stress Studies, the Australian Military Medicine Association and the Association of Military Services of the United States of America.
Dr White queried the earlier evidence that Mr Keys' memories and dreams are not of the shooting incident but are of the return to the ship. Dr White has a history from Mr Keys that he experiences memories of the shooting especially when exposed to reminders. Dr White said, however, that Mr Keys would certainly also be distressed by the subsequent management of his condition.
From his military experience Dr White understood Mr Keys' sense of disappointment with the navy. He said that like most teenage recruits Mr Keys had ideals and expectations of the service and what their role was and how the military would protect and care for them in return. There was a general idea that if one served 20 years in the military one would then have access to medical care, transport benefits, death benefits and superannuation. This came partly from what recruits were told in the recruitment process, in their induction training and it was a social expectation. The recruits understood that they could be sent anywhere, any time, that they were on duty 24 hours a day every day, that they did not receive overtime pay and that they could be sent into danger or hardship. However it was worth it because the military would guarantee to look after a recruit in return for these sacrifices. Mr Keys found the navy wanting when he had cause to call upon it for assistance.
Dr White did not think that the navy took less interest in Mr Keys' predicament merely because the accident occurred when he was off duty. The military is prepared to cover any medical problem a service person has, regardless of its connection with service. He did think, however, that the circumstances in Mr Keys' case may have meant the military authorities were less aware of the magnitude of his injury than they would otherwise have been.
In cross-examination by Ms Breuer the following additional points were recorded:
Ms Breuer suggested that Mr Keys' doctor, Dr Crawford, could have arranged for a transfer of Mr Keys from the hospital in Goulburn to the navy if he had thought that necessary. Dr White responded by stating that he understood that Dr Crawford understood he would be released into the care of family.
Dr White could not speak with confidence about most of Mr Keys' PTSD symptoms, if any, in 1974, although he has recorded that Mr Keys recalls experiencing an exaggerated startle response since the shooting. In his work with Mr Keys he had concentrated on the more recent history.
Dr White does not accept that Mr Keys does not re-experience the shooting incident. He has been seeing Mr Keys for about two years and when Mr Keys is exposed to reminders he has stress and vivid memories of the shooting which are still distressing. Dr Schultz, in a single interview, would not have had the time to unearth this. Dr White said that the navy's post-operative treatment was an issue for Mr Keys but that it did not expunge the experience of the shooting which was the singular incident that started the problem. The post-operative management compounded the problem initiated by the shooting.
Dr White was asked about rates of recovery from PTSD but responded by saying that a prognosis for a PTSD patient is not good if management after the trauma is not good enough.
Post-trauma debriefing became common in the 1980s. It was unusual in the 1970s. However, the concept of good psychological care is not new and some ideas on this involved physiological recuperation in 1974.
Dr White had been given a history suggesting that, at base, the navy's failure to allow Mr Keys several weeks of recuperation was a contributing factor causing Mr Keys' condition to become permanently worse.
Dr Schultz
Dr N J Schultz, psychiatrist, was then called as a witness by the Respondent's representative. He had provided a report dated 6 September 1999 (Exhibit R2) in which he made the following points:
There is insufficient evidence for diagnosis of a PTSD. Mr Keys experienced an injury that would satisfy the normal criteria for PTSD in that it was life threatening and he has some features found in PTSD, eg he becomes alarmed at the sound of loud banging noises. However, there is little else that specifically relates to the disorder. He cited symptoms including social withdrawal, nightmares and night-time ruminations. But the nightmares had unknown content and the ruminations were not of the shooting but of being sent back to work by the ship's doctor. He had anxiety symptoms such as rapid pulse, hot flushes, sweating and feeling "uptight" but these symptoms are not exclusive to PTSD.
Mr Keys may be angry with the navy for "letting him down". He had an expectation that the navy would help look after him in the event of something going wrong. The shooting proved this was not so. Since then he has been overly cautious, not trusting of people and socially withdrawn. This does not explain his anxiety over loud banging noises, which is related to the shooting.
Mr Keys may have a vulnerable personality.
If Mr Keys has a PTSD it is a result of the shooting which was not a navy activity.
Mr Keys may be none the worse for not having been offered trauma counselling following the shooting. There is growing evidence that it is ineffective in relation to PTSD. It may make the situation worse. Dr Schultz in treating patients after a trauma encourages them to maintain their usual occupational, social and personal lives where possible.
Had Mr Keys been offered formal counselling about the shooting his disenchantment with the navy may have been detected and addressed at the same time.
Some form of psychiatric and psychological management should be of value to Mr Keys but his attempt to litigate the condition may worsen the condition and the inappropriate use of the PTSD label may cause Mr Keys to attribute his problems externally rather than look within himself where Dr Schultz believes the problems lie.
In his oral evidence Dr Schultz made the following additional points:
The navy's treatment of Mr Keys does not really fit a description that satisfies the requirements for PTSD. While the shooting would attract a possible diagnosis of PTSD Mr Keys' concerns relate far more to his treatment in the navy.
In relation to the shooting, it does not attract a diagnosis of PTSD because it is not the subject of Mr Keys' dreams and flashbacks.
As regards the navy's treatment of Mr Keys he seems to have carried his anger about that with him for over 20 years because he sees it as the focus for difficulties he has experienced later in life.
Dr Schultz characterised the Applicant's fears of his wounds opening up when he returned to work as unrealistic. He noted that today it is common for surgical patients to be discharged from hospital much earlier than was the case in 1974. The aim is now to get post-operative patients moving as soon as possible. They can run a risk of a thrombosis if left inactive too long after an operation.
Dr Schultz did not agree with Dr Smith that a stressor could have existed consisting of Mr Keys' fear that if his wound did open it would be the ship's doctor who would operate to fix the problem. That would not be a situation where death or fear was imminent and horrifying. There would be a chance for dialogue and discussion.
Dr Schultz agreed that a stressful event such as the gunshot could bring on a PTSD which is exacerbated by a subsequent event such as the navy's treatment of Mr Keys. However Dr Schultz did not think that applied here because the gunshot did not loom large in Mr Keys' dreams and flashbacks.
Dr Schultz doubted that Mr Keys actually experiences flashbacks in the relevant sense. He experiences thoughts rather than a visual or photographic recollection.
As regards the quality of treatment received by Mr Keys in 1974 Dr Schultz considered that there was nothing remarkably out of order about Mr Keys' post-operative treatment in 1974 or about the failure to treat any possible PTSD he may have been suffering. Trauma debriefing would not be seen as required by most general physicians at that time. Additionally, he disagrees with Dr Smith that trauma and its effects would have been diagnosed readily or commonly by a general physician in 1974. At that time anxiety neuroses, panic disorders and anxiety disorders were known and treated but PTSD was not. Had Mr Keys presented to a psychiatrist in 1974 and discussed his problems the psychiatrist would have wanted to offer him treatment, but it would not be for what we now know as PTSD. He regards abreaction treatment as ineffective and no longer used. The greater majority of PTSD conditions resolve reasonably rapidly without any treatment, even today.
Ms Toliopoulos then cross-examined Dr Schultz but no new information was forthcoming.
APPLICANT'S FINAL SUBMISSIONS
The advocates made final submissions in writing.
Ms Toliopoulos for the Applicant argued that the Applicant relies on paragraph 1(b) of the SOP. This applies where a PTSD is connected with the circumstances of service in that the veteran experienced inability to obtain appropriate clinical management for PTSD.
Ms Toliopoulos pressed the Tribunal to find that the Applicant has a PTSD on the basis of evidence from Drs Smith and White and to prefer the evidence of these treating psychiatrists to that of Dr Schultz who saw the Applicant for approximately an hour. The evidence of all three psychiatrists is described in full earlier in these reasons.
Ms Toliopoulos referred to the decision in Re Gibson and Repatriation Commission (1999) 55 ALD 194 on the question of "appropriate clinical management". This case related to the condition of multiple osteochondromatosis but the statement at 218-9 would appear applicable generally. The Tribunal in that case stated (at 218-9):
"…
The phrase 'appropriate clinical management' is not defined in the SoP and should be interpreted according to its commonly understood meaning having regard to standard prudent medical practice. Clinical management is an ongoing and dynamic process and 'appropriate clinical management' of a disease, in the tribunal's opinion, involves the timely diagnosis, and the preparation and execution of a plan of action and treatment, of that disease by a suitably qualified and competent medical practitioner exercising due care, skill and diligence.
…"
Ms Toliopoulos suggested that Mr Keys, far from receiving appropriate clinical management, received no clinical management at all. The ship's doctor failed to take into account the treating specialist's instructions that Mr Keys be placed on sick leave.
Ms Toliopoulos submitted that the navy's failure to treat the physical aspects of Mr Keys' gunshot wound contributed to a worsening of Mr Keys' PTSD. She referred to several decisions on contribution. The first was the decision in Repatriation Commissionv Bendy (1989) 18 ALD 144 where Davies J discussed contributory causation and found that a merely fanciful contribution would not suffice. The other decision was Treloar v Australian Communications Commission (1991) 12 AAR 535 in which the full Federal Court said (at 542):
"…
…All that is required is that the relevant aspects of employment [in this case war service] add their measure to the creation of the condition, its aggravation or acceleration. They must, in truth, be part of the cause. If they are not, then they do not 'contribute'.
…Once the link is established, however, it matters not that the contribution be large or small.
…"
Ms Toliopoulos relied on Dr Smith's opinion that if Mr Keys had been given appropriate treatment his PTSD would not have progressed to the extent it has and he would not have developed a chronic PTSD.
RESPONDENT'S FINAL SUBMISSIONS
Ms Breuer for the Respondent argued that as the Applicant's case is that his PTSD arose out of or was contributed to by the gunshot incident on 21 April 1974 which did not occur on service he cannot argue that his claimed condition was caused by eligible service. He cannot rely on paragraph 1(a) in the SOP, ie that he experienced a stressor connected with the circumstances of service prior to the clinical onset of PTSD. The Applicant must rely, therefore, on paragraphs 1(b) or 1(c) of the SOP, ie experiencing a service related stressor prior to a clinical worsening of PTSD (paragraph 1(b)) or inability to obtain appropriate clinical management for PTSD (paragraph 1(c)). Ms Toliopoulos of course opted to rely on paragraph 1(c).
Paragraph 3 of the SOP provides that paragraphs 1(b) and 1(c) can apply only where two conditions are fulfilled. These are:
3(a)The person's PTSD must have been contracted prior to a period, or part of a period, of service to which the factor is related.
3(b)The relationship suggested between the PTSD and the particular service of the veteran is a relationship set out in any of s 8(1)(e), s 9(1)(e) or s 70(5)(d) of the VE Act. This in effect means that the veteran's service must have contributed in a material degree to, or aggravated, the PTSD
In considering the application of paragraph 1(c) Ms Breuer submitted that the tribunal must determine the following issues:
(a)Did Mr Keys suffer from PTSD arising out of the shooting incident on 21 April 1974?
(b)If yes, did the clinical onset of PTSD predate Mr Keys' return to work on 6 May 1974?
(c)Was Mr Keys unable to obtain appropriate clinical management for PTSD?
(d)Is the underlying pathology of Mr Keys' PTSD permanently worse than it would otherwise be because of any alleged inappropriate clinical management?
As regards issues (a) and (b), Ms Breuer said that for Mr Keys to satisfy the SOP and succeed it will be necessary to find that he had PTSD as a result of the shooting incident on 21 April 1974, and that his PTSD had its clinical onset before Mr Keys returned to his ship on 6 May 1974.
Ms Breuer pointed to a difficulty, however, in that paragraph (e) of the definition of PTSD in paragraph 4 of the SOP requires that the PTSD symptoms have been experienced for more than one month before there can have been a clinical onset. In Mr Keys' case there had not yet been a clinical onset when he was returned to the ship on 6 May 1974.
As Ms Breuer submitted, the Federal Court in Repatriation Commission v Gosewinckel [1999] FCA 1273 held that under ss 120A and 120B of the VE Act a decision maker must apply a relevant statement of principles even if medical evidence suggests that it is too restrictive in a particular case.
As regards whether Mr Keys has PTSD the Respondent conceded that the shooting incident was a relevant stressor in accordance with paragraph (a) of the definition of PTSD in paragraph 4 of the SOP. This accords with the evidence of Dr Schultz and the applicant's own psychiatrists.
The Respondent did not accept that Mr Keys satisfied the requirements in paragraphs (b) – (f) of the definition of PTSD in paragraph 4 of the SOP between 21 April 1974 and 6 May 1974. The Respondent suggested that the evidence of Drs Smith and White was of low probative value as they admitted that they had not taken histories of the Applicant's symptoms between 21 April 1974 and 6 May 1974. There was only a record of a startle response at so early in the process. The missing elements were such symptoms as re-experiencing and avoidance of stimuli.
Referring to issue (c), whether there was an inability to obtain appropriate clinical management for PTSD, Ms Breuer noted that the Applicant himself had criticised the alleged inappropriate clinical management of his physiological symptoms. He had not criticised any lack of psychiatric assistance.
Secondly Ms Breuer stressed that there had to be an inability to obtain appropriate clinical management. In Mr Keys' case he had access to a naval medical officer who assessed him. Mr Keys may not have agreed with the treatment he was given by that medical officer but he did receive treatment. Even if the Tribunal accepts Mr Keys' evidence that he was personally inhibited in seeking further medical treatment from the naval medical officer, the treatment was available if he had sought it. He was not unable to obtain clinical treatment.The Respondent contended that the Applicant suffered no adverse physical consequences by returning to work 15 days after the shooting. He had a personal apprehension that his wounds could rupture but this in fact came to nothing.
The Respondent submitted that the naval medical officer and the navy more generally, responded appropriately to the Applicant on the basis of the knowledge they had of the Applicant. The Applicant had not communicated his concerns. It was not accepted practice in 1974 to offer treatment in an intrusive or insistent way to those who were not seeking treatment. Ms Breuer relied on Dr Schultz's evidence on this point.
The Respondent argued that the Applicant could have contacted Dr Crawford, his specialist surgeon, to discuss his concerns. He could have done this on weekend leave. However, he did not. He did not tell the naval medical officer that he understood that Dr Crawford wanted him to be on sick leave for a time after his return to the navy. He also said in evidence that he had decided to try to ride out the pain because he thought the navy was not interested in his injuries.
The Respondent's representative cited Brew v Repatriation Commission (1999) FCR 80 in her submissions and that Federal Court decision is illuminating on the concept of inability to obtain appropriate treatment. Merkel J, with whom Mansfield J agreed, said (at 87-88):
"…
It is well established that the Court is here concerned with beneficial legislation intended to confer significant benefits on veterans with the consequence that a beneficial, rather than a strict or narrow, approach should be taken to the construction of the legislation. In the present context that means that whether 'inability' is established in a particular case is to be approached as a matter of practical reality rather than by a theoretical approach to that issue.
In my view Sundberg J was quite correct in treating the meaning of 'inability' in cl (1)(e) as 'lack of ability; lack of power, capacity, means' (the Macquarie Dictionary) or 'the condition of being unable; lack of ability, power or means': the New Shorter Oxford Dictionary. The dictionary definitions embrace what may fairly be described as objective barriers such as lack of power, capacity or means or a subjective barrier such as the 'condition of being unable'. Whether the objective or subjective barrier to obtaining treatment is made out in a particular case depends upon the facts of that case.
Thus, if Sundberg J was saying that cl 1(e) is confined to an inability that is an 'objective barrier to obtaining treatment', I would respectfully not agree with his Honour. However, I doubt that his Honour was intending to exclude factors, whether external, objective or otherwise, that result in a claimant for a pension being in a 'condition of being unable' to obtain treatment.
…His Honour ought not to be taken as having concluded that external factors, such as a threat of sanctions by superior officers if treatment is sought, cannot constitute or result in an inability to obtain treatment within the meaning cl 1(e) where, by reason of such factors, the claimant understandably concludes that she is unable to obtain appropriate treatment.
…Plainly, if the sanctions threatened are such that, as a matter of practical reality, the person threatened could not reasonably be expected to take steps to obtain treatment that could fall within 'inability' in the sense discussed above.
…In my view it would be erroneous to limit 'inability' to 'some overwhelming psychological or emotional incapacity'. If a veteran is subjected to any psychological or emotional circumstances which are such that, as a matter of practical reality, the veteran could not reasonably be expected to take steps to obtain appropriate clinical management for a medical condition I see no reason why those circumstances are not capable of constituting a 'condition of being unable' to obtain treatment.
…"
The Tribunal will have more to say as to the application of this passage to the present case later in these reasons.
The Applicant's psychiatrists gave evidence that the navy should, in 1974, have provided counselling or other psychiatric assistance to the Applicant. Ms Breuer submitted that the navy's performance in this regard should be assessed by reference to the standards of clinical management common at the time of the trauma. It was argued that to impose responsibility on the forces for the implementation of standards in advance of those generally prevailing would ignore one of the requirements in the SOP. In the SOP paragraph 2 it is a requirement that at least one of the factors set out in paragraphs 1(a) to (c) must be related to any service performed by the person. The Respondent cited several authorities for the proposition that the relevant standard by which to judge is the standard of treatment prevailing at the time of the manifestation of the condition. These include Repatriation Commission v Wellington [1999] FCA 1552 per Marshall J at paragraph 16, and Repatriation Commission v Wedekind [2000] FCA 649 per Kenny J at paragraph 17.
Ms Breuer submitted that the evidence given by Dr White as to medical standards applicable at the time of Mr Keys' treatment was flawed because he referred to standards that he said applied in the 1980s. Therefore, Dr White's assertion that the treatment accorded to Mr Keys fell below those standards should, she inferred, be given little or no weight.
As regards issue (d), whether the Applicant's PTSD was made permanently worse because of the alleged inappropriate clinical management available in the navy, Ms Breuer made several submissions. The Tribunal would have to determine that Mr Keys' PTSD was contributed to in a material degree by, or was aggravated by, Mr Keys' eligible service as provided by s 70(5)(d) of the VE Act. In this regard the Tribunal must be satisfied that the applicant currently has PTSD and that his underlying pathology as it relates to PTSD is worse than it would otherwise have been but for the clinical management in 1974.
Ms Breuer argued that Mr Keys does not currently suffer from PTSD and does not satisfy the requirements for PTSD in the SOP. Ms Breuer referred to the evidence given by Dr Schultz, discussed above, to support her argument. Further she criticised Dr Smith's evidence that Mr Keys experiences flashbacks about a rupture of his wound occurring and his having to undergo further surgery. Ms Breuer said that this is not a relevant flashback because the wound did not in fact rupture and Mr Keys did not require further surgery. She said that Dr Smith conceded that Mr Keys did not experience flashbacks.
Ms Breuer argued that there is a fundamental mismatch between what all agree was the stressor in Mr Keys' case, ie the shooting accident, and his experiencing of the other requirements in DSM-IV. With the exception of the alarm Mr Keys experiences when he hears a loud bang, an event reminiscent of the gun shot, he associates these with his post-operative treatment, which has not been cited as the relevant stressor. He does not, for example, appear to avoid stimuli related to the shooting accident. He satisfies some of the other criteria, eg sleep problems, difficulty concentrating, but these are equally incidental to general anxiety problems and do not conclusively indicate PTSD. The Respondent did not accept that Mr Keys experiences increased arousal symptoms or that most of his symptoms relate to the shooting accident.
Ms Breuer submitted that Mr Keys' current symptoms are in substance his subjective disenchantment with the navy's response to his injury which he suffered while on leave. The Respondent submitted that the Applicant's anger and disappointment with the navy are not sufficient to support a diagnosis of PTSD.
On the question whether the underlying pathology of Mr Keys' condition, if it is PTSD, is worse now than it would have been but for the navy's allegedly inappropriate clinical management in 1974, Ms Breuer referred to s 70(5)(d) of the VE Act and to several decisions on the point. These included Repatriation Commission v Yates (1995) 38 ALD 80, Repatriation Commission v Wedekind [2000] FCA 649 and Johnston v Commonwealth (1982) 150 CLR 331. In essence Yates' case (supra) says that an aggravation of an injury or disease involves more than a temporary worsening of symptoms. It should have an effect with a duration longer than the period of worsening of symptoms caused by the service, although it need not last as long as the disease itself does. It does not have to be literally permanent.
The Wedekind and Johnston cases (supra) suggest that compensation is payable where a person suffers an increase in the severity of a disease and his or her service contributes by actually making the disease worse or by delaying medical treatment which would arrest the natural course of the disease.Ms Breuer summarised, "The condition must actually be made worse by war service and not simply become worse." She cited Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 at 593 as stated by Windeyer J. Ms Breuer submitted that there is no probative evidence that any PTSD condition that Mr Keys may be suffering has been made worse than it would have been as a result of any allegedly inappropriate clinical management of the condition by the navy. In support she referred to Dr White's evidence that a better follow up may not in itself have completely prevented the development of PTSD. She referred too to Dr Schultz's opinion that there is growing evidence that trauma counselling is ineffective in preventing or even reducing the effects of PTSD.
THE ISSUESThe Tribunal is impressed by the format adopted by Ms Breuer in her final submissions and adopts it for the purpose of identifying the issues for determination in this matter. The issues emerge in the following way:
The Applicant relies on paragraph 1(c) of the SOP as the basis for arguing that he has a PTSD condition that is war-caused. This means that he is arguing that he has a PTSD condition connected with the circumstances of service on the basis of his inability to obtain appropriate clinical management for PTSD within the service.
He is arguing also that paragraph 3 of the SOP is satisfied in that his PTSD was contracted prior to or during service and his service must have contributed in a material degree to, or aggravated, the PTSD.
The list of issues incorporated within this scheme is as follows:
1) Did Mr Keys suffer from PTSD arising out of the shooting incident on 21 April 1974?
If the answer in issue 1 is "yes", did the clinical onset of PTSD predate any contribution or aggravation to the condition for which the navy was responsible?
3) If the answer in issue 2 is "yes", was Mr Keys unable to obtain appropriate clinical management for his PTSD?
4) If the answer in issue 3 is "yes", was the underlying pathology of Mr Keys' PTSD worse permanently or for an appropriate length of time because of any inappropriate clinical management?
FINDINGS ON MATERIAL QUESTIONS OF FACT AND CONSIDERATION OF ISSUES
Issue 1 - Did Mr Keys suffer from PTSD arising out of the shooting incident on 21 April 1974?
There is evidence that Mr Keys suffers now from PTSD arising out of the gunshot accident. Indeed, all the medical experts agree that the gunshot incident was sufficiently traumatic for it to be a stressor related to a PTSD condition.
There are differences of opinion, however, as to whether the other criteria in DSM-IV which must be satisfied for PTSD are satisfied in Mr Keys' case. Most of the medical experts consider that they are. The Tribunal considers this to be the opinion of Dr Koller (T7), Dr Smith (Exhibit A3 and oral evidence), and Dr White (T11, T12, Exhibit A4 and oral evidence). Each of these doctors is confident that Mr Keys has PTSD and that he fulfils the DSM-IV criteria.
It is true, as Ms Breuer said in her final submissions, that Dr Smith was shaken somewhat in cross-examination as regards his acceptance that the Applicant experiences flashbacks, a shorthand rendering for a requirement in DSM-IV and in the SOP, paragraph 4, definition of "post-traumatic stress disorder" in that definition's paragraph (b), for a requirement that a PTSD sufferer must experience intrusive recollections, images, thoughts, dreams, re-experiences, etc of the traumatic event. Ms Breuer was relying to an extent on the evidence given by Dr Schultz where he, alone amongst the medical experts, considered that Mr Keys does not have PTSD. Dr Schultz said in evidence that Mr Keys tends to experience thoughts rather than visual or photographic recollections which are what is really necessary for a relevant flashback. Dr Schultz also found problematic the Applicant's evidence that he recalled little or nothing of his dreams and that, if he did remember, he tended to recall his post-operative experience in the navy rather than the shooting when having what he regarded as flashback episodes.
The Tribunal has considered this evidence and finds it more probable than not that Mr Keys has PTSD at the present time. It is impressed by the unanimity of Mr Keys' treating doctors. As regards Dr Schultz's doubts the tribunal finds Dr Schultz less persuasive than the treating psychiatrists for the following reasons:
The treating psychiatrists had found that the shooting incident was the core of Mr Keys' psychiatric condition. This had emerged as they had sessions with him. It was less likely to emerge in a single consultation such as he had with Dr Schultz. There could also be an element of psychogenic amnesia, as Dr Smith put it in his evidence, in the applicant's apparent lack of concentration on the shooting both before the tribunal and when he saw Dr Schultz. This could also explain the applicant's lack of recall of the specifics of his dreams.
Dr Schultz's understanding that a requirement for a flashback episode is that it be visual rather than conceptual seems at odds with paragraph (b) of the requirements in the SOP for PTSD. Paragraph (b) requires that the traumatic event must be persistently re-experienced in one or more of a number of listed ways. These include "recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions" (Tribunal's emphasis).
The treating doctors were confident that all of the requirements of DSM-IV were met in Mr Keys' case. They would no doubt attribute Dr Schultz's inability to identify some of them to the relatively short time he was able to spend with Mr Keys. They on the other hand have seen him more often and over a longer period.
The issue then becomes whether Mr Keys had PTSD in 1974 or whether it emerged later.
Ms Breuer made a considerable deal of the inability of the treating doctors, Dr Smith and Dr White, to speak authoritatively of Mr Keys' PTSD symptoms as they were, if present at all, in 1974, soon after the shooting. In their evidence (discussed above) the treating psychiatrists had clearly concentrated on the applicant's current condition when treating him. This is of course understandable but, from the Tribunal's perspective, unfortunate. There is, however, some documentary evidence that might support the Respondent's argument that Mr Keys did not experience PTSD immediately after the shooting.
Dr Koller in T7 reported that Mr Keys had told him that from "say 1976 onwards" he seemed to mix poorly with people and he avoided company. In Exhibit A2 the Applicant paints a picture of a relatively normal and supportive recovery period in the time prior to his return to the navy. He is near supportive family and a sympathetic doctor. He appears confident that the navy will treat him properly when he returns to it. It is, of course, also the Applicant's evidence that the prime factor in his PTSD is the poor post-operative treatment he feels he received from the navy.
Despite these indications, the Tribunal considers that on balance the Applicant very probably had an early onset PTSD. This is for several reasons:
The nature of the injuries themselves. The pain experienced by the applicant must have been excruciating. His liver was grazed and two ribs were crushed. He had experienced a laparotomy which left a wound of considerable size.
The Applicant was young (20 years old) and unsophisticated. Dr Smith in the evidence summarised earlier fully described the horror and fear the Applicant felt when shot. Dr Smith mentioned that at the time of the shooting Mr Keys was convinced that he would die. This was Mr Keys' evidence also in his statement in Exhibit A2.
The Tribunal does not accord much weight to Dr Koller's report that Mr Keys experienced certain symptoms, in accordance with a history he gave, only from 1976. Mr Keys' recall of chronologies and exact dates was not always reliable when he gave evidence in the hearing. This was notably so in his employment history as he recalled it. Reconstructing the progress of his symptoms is a similar exercise. 1976 is also the year when he left the navy. Prior to then his social existence was submerged in the navy culture. Even if his recall of developing antisocial tendencies in 1976 is accurate it is likely that these only became obvious when he was no longer in the navy. As regards Dr Koller, it is noteworthy that the Applicant told him nothing of the inadequate post-operative care he received from the navy. While this may suggest that Mr Keys had no concern about the alleged inadequate care at the time this is unlikely. It has been such a feature of his discourse with his mother and with his treating psychiatrists that it is more likely that Dr Koller concentrated on the shooting accident in his session with Mr Keys and that Mr Keys either did not see it as appropriate to raise the treatment issue or that Dr Koller may have neglected to pick up on it if it was raised. The shooting accident has an undeniable immediate impact and would seem to explain a great deal when mentioned.
As a subsidiary point, the Tribunal notes the evidence from Mr Keys' mother at T14. It was not long after Mr Keys returned to his ship that his mother became aware of his resolve to leave the navy. Mr Keys has always seen the post-operative treatment issue as a major part of the traumatic aftermath of the accident and it is clear that he was motivated by his feelings in this early aftermath to leave the navy. It is probable that PTSD symptoms played a part in his decision-making at this time.
Issue 2 - If the answer in issue 1 is "yes", did the clinical onset of PTSD predate any contribution or aggravation to the condition for which the navy was responsible?
As the Tribunal has found it more probable than not that the Applicant developed PTSD soon after the gunshot accident in 1974 the issue of when it had its clinical onset becomes important. Ms Breuer argued that, as paragraph (e) of the definition of "post-traumatic stress disorder" in the SOP requires the duration of the disturbance (as indicated by the relevant symptoms in the other paragraphs) to be for more than one month, this requirement would not have been satisfied by the time Mr Keys rejoined his ship. He rejoined his ship some 15 days after he was shot. Another way of expressing this is to say that by the time Mr Keys rejoined his ship the PTSD had not, under the SOP, become an established condition.
Ms Breuer correctly cited the case of Repatriation Commission v Gosewinckel [1999] FCA 1273 for the proposition that a Statement of Principles will stand and must be satisfied even if there is medical evidence that another medical opinion differs from that embodied in the statement. However, the Tribunal is not convinced in this matter that paragraph (e) of the SOP definition causes the problem suggested by Ms Breuer. The Tribunal has found that Mr Keys' PTSD had its onset on or soon after 21 April 1974. Paragraph (e) was therefore satisfied by about the end of May 1974 at the latest. If the Applicant were unable, at and from that date, to obtain appropriate clinical management for his PTSD from the navy it would seem that the SOP, to that extent anyway, is satisfied. While the navy's post-operative intervention commenced on 6 May 1974, it continued in that Mr Keys was under the navy's care for medical purposes from that date until he was discharged in July 1976.
The specific requirement in paragraph (e) of the definition in the SOP, that the disturbance has had a duration of more than one month, is clearly satisfied in the Tribunal's view. The evidence suggests that Mr Keys has suffered from PTSD for over 20 years.
Issue 3 - If the answer in issue 2 is "yes", was Mr Keys unable to obtain appropriate clinical management for his PTSD?
The Tribunal accepts Ms Breuer's submissions that the appropriateness of the navy's clinical management of Mr Keys' condition must be assessed by reference to the standards of the day, not by reference to the standards prevailing in the year 2000. Ms Breuer accurately cited relevant authorities on this point. She also cited the evidence from Dr Schultz as to attitudes to trauma counselling not just in the 1970s but in today's climate also. She criticised Dr White's argument that the navy should by the general standards prevailing in the services have provided counselling and other psychological or psychiatric assistance to the Applicant. He was referring to standards he knew to prevail in the 1980s. Mr Keys was injured in 1974 and this reduced the value of Dr White's evidence. The Tribunal notes this point. However, the Tribunal was impressed by other evidence on this point. Dr Smith wrote that appropriate trauma debriefing would have been available to civilians experiencing a similar trauma in 1974 and this should have been equally available to naval personnel. The principles of abreaction and other relevant principles discussed by Dr Smith in his reports as appropriate to dealing with trauma cases would, he said, have been known to competent medical practitioners at the time.
In his oral evidence Dr Smith said that proper clinical management of Mr Keys' condition when he returned to the navy would have involved these elements: acknowledgment that an unfortunate incident had occurred; an opportunity for Mr Keys to express how he was doing; an invitation to Mr Keys to discuss his concerns; discussion of his thoughts on a return to work and a possible time frame; provision of psychological assistance; possible introduction of tranquilising or hypnotic medication; and the general provision of a supportive environment. This would be reasonable even at a time before PTSD was an established diagnosis. Military authorities were experienced in handling war trauma. Any physician confronted by a patient with a gunshot wound would expect there to be psychological overlay to the wound. This was known as adjustment reaction before PTSD was a ready diagnosis.The Tribunal considers this to be thoughtful, cogent evidence of what could reasonably be expected from a competent medical practitioner in charge of a gunshot victim in 1974. At the same time the Tribunal recognises that there was powerful evidence from Dr Schultz that was sceptical as to the value of post-trauma counselling and other psychological or psychiatric intervention. Dr Schultz also said that such intervention can sometimes do more harm than good and that most PTSDs resolve without intervention after some months. Dr Smith disagreed vehemently with Dr Schultz. It appears to the Tribunal that there may be several different theories about the correct psychological/psychiatric approach in dealing with trauma victims. The Tribunal is inclined to prefer the views of the two experienced psychiatrists who have been treating Mr Keys. The Tribunal is also in a position to observe that Mr Keys does not appear to have benefited from there having been a lack of counselling and similar intervention early in the piece in his case.
The Tribunal has therefore concluded that Mr Keys did not receive appropriate clinical management from the navy in respect of his PTSD. However, was he unable to receive appropriate clinical management, as the SOP requires?
The Respondent's arguments here are complex and really split into two segments. As regards the treatment for PTSD the argument seems to be that the treatment was appropriate as it met the standards set generally in 1974. For reasons given already the Tribunal has not accepted this.
However, as regards the second segment, treatment for the gunshot/laparotomy wound, the arguments are different. They reduce down to:
The navy did all that could be expected of it given the level of knowledge of the Applicant's injuries and concerns that it had.
The Applicant had other options available. He could have consulted Dr Crawford, his treating specialist. He could have returned to the naval medical officer and explained his concerns but he did not.
The Applicant recovered without any mishap. His concerns and fears were misplaced. He had access to a naval medical officer who made an assessment which proved successful in the long run. His treatment was appropriate.
The Tribunal considers that the principles expounded in Brew v Repatriation Commission (1999) 94 FCR 80, discussed above in paragraph 56, are useful in this context. The Applicant can be said to have been unable to obtain appropriate clinical management "…if [he was] subjected to any psychological or emotional circumstances which [were] such that, as a matter of practical reality, [he] could not reasonably be expected to take steps to obtain appropriate clinical management for a medical condition…" (Merkel J at 88).
In his oral evidence the Applicant spoke convincingly of his belief that he just could not question the judgement of senior officer such as the naval medical officer. He satisfactorily explained why he felt he could not return to that medical expert and ask him to reconsider his decision to send the applicant back to work. He similarly convincingly explained why he felt he could not consult his previous personal doctor, Dr Crawford. He did not explicitly say so, but surely he would have expected repercussions if he had done that and Dr Crawford had sought to intervene on his behalf with the navy. The applicant was young at 20 years. He had been in the navy for four years and had absorbed the navy's necessarily hierarchical culture which required that orders and superior judgement be obeyed. He was not and is still not an assertive person. The Tribunal was impressed by Mr Keys' answers in oral evidence on these matters. He was clear and consistent and very apparently sincere regardless of the tone of any questioning. Ms Breuer did refer to his assertiveness when he took on an employer and was dismissed as a result. The Tribunal considered this episode but concluded that it was out of character and must have reflected the gravity of that particular situation. It also occurred when Mr Keys was aged about 40.
The Tribunal concluded for these reasons that Mr Keys was unable, within the prescription in the Brew case (supra), to obtain appropriate clinical management of both his PTSD and his gunshot wound.
In relation to the treatment he was given for the gunshot wound, the Tribunal considers that, on balance, this was not appropriate. The Tribunal was impressed by Dr White's evidence that 10 days post-operative rest for a laparotomy would have been considered inadequate in the air force in the 1980s for anything near a full recovery. He said in evidence that three or four weeks recuperation followed by light duties, not on board a ship, would have been more usual. At the same time the tribunal noted Dr Schultz's evidence that it is common today for post-operative patients to be released much earlier than was the case in 1974. The Tribunal accepts that this is correct but the tribunal has already referred to authority that says that the standard is that applicable at the time when the veteran suffered from the relevant medical condition, here 1974. Mr Keys' expectations, then, in 1974 as regards the treatment he should have received from the navy were appropriate expectations, even if today they may seem extreme.
The Tribunal considered the argument that the treatment accorded Mr Keys was appropriate because his wound did not rupture and he recovered in due course. While this was a fair argument it appears to the tribunal that Mr Keys' relatively successful physiological recovery did not result because the navy had exercised all due care in dealing with Mr Keys. The evidence, notably from Dr White, was that the navy had failed in this when compared to treatment standards applied to civilians. The successful outcome seems to have been more a matter of good fortune.
Issue 4 - If the answer in issue 3 is "yes", was the underlying pathology of Mr Keys' PTSD worse permanently or for an appropriate length of time because of any inappropriate clinical management?
The Tribunal has answered "yes" to issue 3. Mr Keys was unable to obtain appropriate clinical management for his PTSD condition. He was also unable to obtain appropriate treatment for his physiological condition, in the view of the tribunal. This latter finding is not centrally relevant to the satisfaction of the SOP which is concerned with the PTSD condition rather than the physiological condition. However, the two conditions are interlinked in Mr Keys' case. On one analysis, supported by Dr Smith, the stressor was more than the shooting. It was that plus the fear of dying and the fear of further harm befalling him when he had to go back onto the ship. On another analysis, also supported by Dr Smith, Mr Keys' PTSD came on immediately after he was shot but the attitude of the navy compounded, exacerbated and exaggerated the diagnosis and got in the way of any healing.
Dr White's analysis was that Mr Keys has chronic PTSD related to the shooting incident. His follow up after returning to duty was not adequate and this is likely to have contributed to a worse prognosis, although better follow up may not have completely prevented development of PTSD. Later Dr White said that the key component of PTSD is the traumatic incident but that other factors contribute to the prognosis such as the patient's physical management which, in Mr Keys' case, was not appropriate. The interaction between the psychological and physical is intimate. Physical recovery is critical.
The requirement that s 70(5)(d) of the VE Act is satisfied requires the Tribunal to be satisfied, if the SOP is also to be satisfied, that any aggravation of Mr Keys' injury or disease by the navy involves more than a temporary worsening of symptoms. It should be a permanent effect or, at least, a duration longer than the worsening of symptoms caused by the service. So much is required in Repatriation Commission v Yates (1995) 38 ALD 80.
The Tribunal's preferred view of the evidence in this case is that Mr Keys' PTSD was caused by the shooting incident and that it was, if anything, aggravated by his war-service. On this analysis there is no need to consider whether there are two PTSD conditions, one stemming from the shooting and another stemming from the post-operative care. There is also no need to consider the possibility of one condition of PTSD caused by both the shooting and the post-operative care. That would raise the question of whether service contributed to the condition.
The question for the Tribunal therefore is whether the aggravation of Mr Keys' PTSD occasioned by the navy's inappropriate clinical management of his condition has had the required adverse effect on the underlying pathology of Mr Keys' condition. This is a difficult test. It is difficult to describe and to apply. However, the Tribunal is satisfied from the evidence given by the applicant and by his treating psychiatrists that Mr Keys' PTSD is a considerably more complicated and serious condition that it would be if he had received supportive post-trauma treatment and civilian standard physiological treatment from the navy in 1974. In the Tribunal's view this satisfies the requirements in paragraph 3 of the SOP.
CONCLUSIONIn view of the above findings the Tribunal is satisfied that Mr Keys has PTSD and has had PTSD since the shooting incident in 1974 or very soon after. It is satisfied also that the clinical onset of Mr Keys' PTSD predated any aggravation of the condition caused by Mr Keys' war service. The Tribunal is satisfied that Mr Keys was unable to obtain appropriate clinical management for his PTSD and also for his physiological condition. The Tribunal is satisfied that the underlying pathology of Mr Keys' PTSD is worse than it would otherwise be because of inappropriate clinical management by the navy.
DECISIONFor the above reasons the Tribunal sets aside the decision under review and remits the matter to the Respondent for assessment of Disability Pension payable to the Applicant in respect of the condition of post-traumatic stress disorder. The date of effect of the decision is 18 August 1997.
I certify that the 96 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Dr M E C Thorpe, Member
Signed: .....................................................................................
AssociateDate of Hearing 31 March 2000
Date of Decision 14 November 2000
Representative of the Applicant Ms A Toliopoulos
Representative of the Respondent Ms S Breuer
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