Kirkman and Repatriation Commission - [2002] AATA 718

DECISION AND REASONS FOR DECISION [2002] AATA 718

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1999/1173

VETERANS' APPEALS DIVISION )

Re      WAYNE KIRKMAN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent
DECISION

Tribunal Mr B J McCabe, Member

Date23 August 2002
PlaceBrisbane

Decision      The Tribunal affirms the decision under review
  ...................(Sgd)......................
  Mr B J McCabe
  Member
CATCHWORDS
VETERANS' AFFAIRS – pension – whether applicant is suffering from service related disabilities – PTSD and depression - whether applicant has suffered a "severe stressor"

Veterans' Entitlements Act 1986 ss 9, 120
Repatriation Commission v Gorton (2001) 65 ALD 609
Holthouse v Repatriation Commission (1982) 1 RPD 287

REASONS FOR DECISION

23 August 2002 Mr B J McCabe, Member

Introduction

Mr Wayne Kirkman was a soldier. He claims to be suffering from a mental disorder as a result of his service with a peace-keeping force in Namibia in 1990. The respondent rejected his claim and refused to pay compensation, although it accepted claims he made in respect of other conditions. The Veterans' Review Board affirmed the decision. The applicant has now approached the Tribunal. He insists he is suffering from a service-related condition for which he ought to be compensated under the provisions of the Veterans' Entitlements Act 1986.
Evidence Before the Tribunal
The respondent provided the Tribunal with the relevant documents under s 37 of the Administrative Appeals Tribunal Act 1975. The applicant gave evidence in person. The Tribunal was also furnished with statements from the applicant, his former wife, Julie Caldeira and Jeff Cullen. The Tribunal received medical reports from Doctors Jenkins, Mulholland and Likely. Doctors Jenkins and Mulholland gave oral testimony as well.
The Facts
Wayne Kirkman was born on 29 July 1962 and he enlisted in the army on 18 September 1979. Mr Kirkman was a career soldier. He was discharged from the army with the rank of sergeant in 1999. From April to September 1989 he served as part of an Australian contingent attached to the United Nations Peace Keeping Force in Namibia.
The applicant was a member of the Corps of Engineers while in Namibia. His principal duties involved the supervision and operation of earthmoving equipment. But he also participated in patrols and he, and the men who served under him, were occasionally required to take sentry duty. Guerrillas were still active in the area in which the Australians were serving.
The applicant was exposed to a number of distressing and stressful situations during his service in Namibia. He witnessed grinding poverty, starvation and illness that made him angry. There were some incidents in particular that he said affected him:

(a)He witnessed a motor vehicle accident and had to give first aid to one of the occupants of the crashed vehicle. He says he was particularly affected by the incident because the vehicle had been racing the vehicle in which he was travelling;

(b)A Police Officer was murdered at the Police post adjacent to the applicant's quarters;

(c)Two local people came to the Australian base in a distressed state. One of them was suffering from a machete wound to the head and was bleeding profusely following an assault that was not witnessed by the applicant;

(d)The local populace exhibited a hostile attitude towards the Australians. While on leave or out for dinner, members of the local population would make antagonistic remarks or behave in a menacing fashion. The applicant conceded he was never actually assaulted;

(e)A 9 year-old boy with whom the applicant had formed a bond during the early part of the deployment was accidentally killed. The child had "hung around" the construction site on which the applicant was working, and the soldiers had allowed him to sit on the equipment and provided him with some food and clothes. The applicant learned of the boy's death some weeks after the event.

There was one other significant incident in Namibia. The applicant was a lance corporal in charge of ten soldiers camped in a compound. There was a water tower about 20-30 metres off the ground that served as an observation post. Two soldiers would be on guard duty at the top of the tower at any given time. One evening, the applicant was doing his rounds when he noticed there was a light coming from the top of the tower. He climbed the ladder to inspect and found only one soldier bent over a small fuel stove making tea. The other soldier was apparently on a toilet break. Fires were not permitted and the applicant instructed the soldier to put it out. Mr Kirkman said the soldier picked up his rifle and pointed it at the applicant, saying "Fuck off, Kirkman". The weapon was loaded. The applicant was standing on the top of the ladder at the time, exposed. He said the whole incident took about fifteen seconds. He descended the ladder and reported the matter. He had nothing further to do with the soldier, who was apparently sent home and discharged from the Army.
Mr Kirkman says he was shaken by the incident. He knew the soldier in question well, and had been on friendly terms with him. Mr Muller, for the applicant, pointed out soldiers needed to be able to rely on their comrades, and being threatened by one of those same colleagues must have been very disturbing. I have no reason to doubt Mr Kirkman's account of the incident, and I am satisfied that it was very upsetting.
The applicant separated from his wife after his return from Namibia. He acknowledged in his evidence that his marriage was deteriorating before he left on his tour of duty in Africa. His wife was opposed to him going: he conceded in cross-examination that his decision to go to Namibia damaged his relationship. He said he became aware during his time away that his relationship was effectively over. He said he handled the breakdown of his marriage as well as could be expected. The split was amicable. He denied the stress associated with his separation and divorce contributed to his subsequent depression.
Mr Kirkman consulted his general practitioner in 1999 about depression. He received some counselling and medication and was referred to a psychiatrist, Dr Jenkins. He sought help at the insistence of his partner.
The applicant says he began to drink heavily in recent times. He says his alcohol abuse is the product of his depression. He suffers from bad dreams and has flashbacks to his time in Namibia, he says.
I am satisfied that Mr Kirkman witnessed disturbing things in Namibia. He claimed he was upset by the state of the country and the poverty and the starvation. He seemed to be particularly affected by the condition of the children. But I also think he was exaggerating his own condition. He was not an entirely satisfactory witness. He had a poor recollection of events like meetings with doctors and correspondence. Most obviously he said he thought the meeting with Dr Mulholland lasted fifteen minutes. Dr Mulholland vehemently denied this and said it lasted closer to an hour and fifteen minutes. I accept Dr Mulholland's version of events. It would have been impossible to glean all the information contained in his report in a short meeting. Mr Kirkham was also confused over the number of times he had seen Dr Jenkins. He said he thought it was three times (he wondered whether it was four times) when Dr Jenkins said he saw him six times. There was also the claim of alcohol abuse. Dr Mulholland made it clear in his evidence (discussed below) that there was no evidence of alcohol abuse.
The Medical Evidence
Dr Likely, a psychiatrist, examined the applicant and completed a report on 23 October 1998. Dr Likely concluded the applicant suffered from Post Traumatic Stress Disorder (PTSD), major depressive disorder and alcohol abuse.
Dr Jenkins was the applicant's treating psychiatrist. He saw the applicant on six occasions from December 1999. He saw the applicant for the last time in March 2001, although that meeting was for the purposes of gathering information in connection with the applicant's claim. He provided two reports to the applicant: one dated 7 December 1999, and the second dated 30 April 2001.
Dr Jenkins concluded the applicant was suffering from Post Traumatic Stress Disorder. He said, in his report dated 7 December 1999, there was no doubt the PTSD was "directly a result of his military service particularly regards his 6 months in Namibia". In his subsequent report, Dr Jenkins suggested the PTSD was exacerbated by alcohol abuse. But he added he was not satisfied the applicant suffered from major depression or dysthymia.
Dr Mulholland examined the applicant on 10 July 2000 at the request of the respondent. He prepared an extensive report dated 1 August 2000. Dr Mulholland concluded Mr Kirkman did not suffer from PTSD although he probably did suffer from a depressive disorder. Dr Mulholland added it was unlikely the applicant experienced anything during his military life that would have caused the depressive disorder. Dr Mulholland added there was no evidence of alcohol abuse in the blood and urine tests he commissioned. He said there should have been signs of the abuse if Mr Kirkman was drinking as much as he claimed.
The Decisions of the Respondent and the Veterans' Review Board
The respondent rejected a claim in respect of depressive disorder. The applicant's claim in respect of other disabilities was accepted and he was granted a pension at 50% of the general rate. The Veterans' Review Board varied the decision to reject a claim for PTSD as well.
The Law
Sections 120(1) and (3) combined to require that the decision-maker apply the reasonable hypothesis test in deciding the veteran's claim. That means, in effect, that a claim in respect of injury, disease or death related to eligible service must be found to have been caused by that service unless the decision-maker is satisfied beyond reasonable doubt there is no basis for making that determination. Section 120(3) goes on to provide the decision-maker shall be taken to be satisfied beyond reasonable doubt if there is a reasonable hypothesis connecting the injury, disease or death with the service rendered by the person.
When examining whether or not a reasonable hypothesis has been made out, s 120A requires the decision-maker to have regard to the relevant Statement of Principles (SoP) published by the Repatriation Medical Authority. In this case, SoP No 58 of 1998 applies to claims of depressive disorder. There are two SoP's dealing with PTSD: No 15 of 1994, and No 3 of 1999 which replaced the 1994 statement. Allsop J (with Emmett J agreeing) in the Full Court in Repatriation Commission v Gorton (2001) 65 ALD 609 said (at 623) that upon review the Tribunal must apply the SoP in force at the time of the review but – if the veteran is unsuccessful – it should then consider his or her position under the SoP that was in force at the time of the original decision.
The Relevant Statements of Principles
Mr Kirkman claims to be suffering from PTSD and/or a depressive disorder. The effect of s 120 is that the condition will only be compensable where it is referable to some kind of eligible service. Mr Kirkman was in Namibia with the peacekeeping force, which qualifies as eligible service. There was no dispute about that. But it is still necessary to establish that (i) he has a condition and (ii) there is a causal connection between the service and the condition.
(a) The Statements of Principles dealing with PTSD
The 1999 SoP refers to the definition of PTSD contained in DSM-IV. It requires that:
"(A) the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person's response involved intense fear, helplessness, or horror…"

The definition goes on to say that the person will consistently re-experience the traumatic event, avoid stimuli associated with the trauma, experience numbing of responsiveness and experience persistent symptoms of increased arousal. The condition must persist for more than one month and the disturbance must cause significant distress or impairment.
The SoP acknowledges at paragraph 3 that PTSD can be related to service like that undertaken by Mr Kirkman. But paragraph 4 says that at least one of the factors set out in paragraph 5 must be present before the relationship can be said to exist. Two of the factors refer to the existence of a "severe stressor" that triggers the condition, or its worsening. The other factor refers to an inability to obtain appropriate clinical management of the PTSD.
The expression "experiencing a severe stressor" is defined at paragraph 8 of the SoP to mean:
"…the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person's or another person's physical integrity…events that qualify as stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence…"
The 1994 SoP refers to the presence of "stressors" rather than "severe stressors". Paragraph 4 of the SoP defines the expression "experiencing a stressor" to mean:
"(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 that event involved intense fear, helplessness or horror…"

(b) The Statement of Principles dealing with depressive disorders

SoP No 58 of 1998 adopts the definition of depressive disorders found in DSM-IV. Paragraph three of the SoP says that depressive disorders can be related to relevant service. Paragraph 5 of the SoP sets out a range of circumstances that must exist before a reasonable hypothesis can be raised connecting the disorder with the person's service. The only circumstance in paragraph 5 that could apply in this case is:
"(b)experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder…"

Has the Applicant Satisfied the Relevant Statements of Principles?

The medical experts were unable to agree on a diagnosis of Mr Kirkman's condition. Was he suffering from PTSD, a depressive disorder, both conditions, or neither? I prefer the evidence of Dr Mulholland, whose report is very comprehensive. I tend to the view that the applicant suffers from a depressive order that was brought on by other factors, such as the breakdown of his marriage. But it is unnecessary for me to reach a conclusion on this point as I am satisfied the applicant's condition – however it is characterised - does not satisfy the requirements of any of the relevant Statements of Principle.
Mr Kirkman referred in his evidence to a number of incidents that might be regarded as stressors under the various Statements of Principles. They were:

(a)the motor vehicle accident;
(b)the death of the police officer;
(c)the bleeding man at the gate;
(d)hostile local people;
(e)the death of the young boy, and
(f)the threat from the solider in his unit.

The first incident is effectively excluded because the applicant was not rendering eligible service at the time. He was on leave and he was not travelling to and from a place of duty. He is therefore unable to bring himself within the wording of s 9(1)(c), which defines the circumstances in which an injury or disease is taken to be war-caused. As Davies J explained in Holthouse v Repatriation Commission (1982) 1 RPD 287 at 289, the law gives effect to a distinction between one's personal life and one's employment.
In any event, I am not satisfied that witnessing the accident and its aftermath amounts to a stressor within the meaning of any of the Statements of Principles.
The death of the police officer and the young boy are not stressors in the relevant sense either. The applicant did not witness either incident. Nor did the applicant witness the assault on the local man with a machete, although seeing him bleeding and distressed was obviously upsetting. The abuse and hostility radiating from people in the street also falls short of what one would expect of a stressor as defined in the various Statements of Principles.
The confrontation with the member of the applicant's unit comes somewhat closer to satisfying the definition of a stressor. It must be profoundly unsettling for a soldier to be threatened by a comrade in arms. But while the event may have been unsettling or even disturbing, it was not sufficiently intense.
It follows that the decision of the respondent should be affirmed.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Member
Signed:         Sarah Oliver
  Associate
Date of Hearing  13 May 2002 (in Bundaberg)
Date of Decision  23 August 2002
For the Applicant  Mr Muller, Charlton Muller & Madders
For the Respondent                 Mr Stoner, Departmental Advocate