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.
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…
Details
AGLC
Keys and Repatriation Commission [2000] AATA 992
Case
[2000] AATA 992
Decision Date
CaseChat Overview and Summary
In the case of Keys and Repatriation Commission, the applicant, Mr. Keys, sought a disability pension from the Repatriation Commission due to post-traumatic stress disorder (PTSD). Mr. Keys alleged that the PTSD was a result of an accidental shooting incident during his service in the Australian Navy and was further aggravated by the lack of appropriate clinical management provided by the navy. The case was heard and decided by the Administrative Appeals Tribunal (AAT).
The legal issues before the Tribunal were whether Mr. Keys suffered from PTSD, if the onset of the condition was linked to the accidental shooting incident, and whether the navy's clinical management of his condition contributed to the aggravation of PTSD. Additionally, the Tribunal had to determine whether Mr. Keys was eligible for a disability pension under the Veterans' Entitlements Act 1986.
The Tribunal found that Mr. Keys had PTSD, which stemmed from the accidental shooting incident in 1974 or shortly thereafter. The Tribunal also concluded that the onset of Mr. Keys' PTSD predated any aggravation caused by his war service. Furthermore, the Tribunal determined that Mr. Keys was unable to obtain appropriate clinical management for his PTSD and physiological condition, and the underlying pathology of his PTSD was worse due to the navy's inadequate clinical management.
Based on these findings, the Tribunal set aside the decision under review and remitted the matter to the Repatriation Commission for the assessment of Disability Pension payable to the applicant in respect of the condition of post-traumatic stress disorder. The effective date of the decision was 18 August 1997.
This decision highlights the importance of appropriate clinical management for veterans suffering from PTSD and the impact it can have on their eligibility for disability pensions. The Tribunal's decision also reinforces the need for the Repatriation Commission to consider the totality of a veteran's circumstances when assessing their claims for disability pensions.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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:
Decision
Reasons for decision
In 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. DECISION For 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, MemberSigned: ..................................................................................... AssociateDate of Hearing 31 March 2000 Date of Decision 14 November 2000Representative of the Applicant Ms A Toliopoulos Representative of the Respondent Ms S Breuer