Lees and Repatriation Commission

[2006] AATA 2

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 2

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2004/650

VETERANS’ APPEALS DIVISION		)
Re		ANTHONY LEES

Applicant

And  REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date4 January 2006

PlaceBrisbane

Decision The decision under review with respect to alcohol abuse or dependence is set aside. I am satisfied the applicant’s alcohol abuse or dependence condition is war-caused.

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

SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – application for increase in rate of disability pension – applicant locked in a freezer compartment while on the HMAS Sydney – event claimed as a severe stressor – diagnosis of psychiatric condition in issue – applicant does not suffer PTSD – war-caused alcohol abuse or dependence accepted – onset within two years after the severe stressor – decision under review set aside and decision substituted.

Veterans’ Entitlements Act 1986 s 120

Lees and Repatriation Commission [2005] AATA 549

Youngnickel v Repatriation Commission [2004] FCA 1691

Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144

Byrnes v Repatriation Commission (1993) 177 CLR 564; (1993) 116 ALR 210; (1993) 67 ALJR 805; (1993) 30 ALD 1; (1993) 18 AAR 1; [1993] HCA 51

REASONS FOR DECISION

4 January 2006 Senior Member B J McCabe

1.      Anthony Lees originally made a claim for compensation under the Veterans Entitlements Act 1986 (the VEA) in respect of post traumatic stress disorder (PTSD). His application was rejected and the matter came before the Tribunal for consideration. On 9 June 2005, I determined the applicant does not suffer from PTSD because I accepted the evidence of Dr Chalk that the applicant’s acknowledged drinking problem provided a better explanation for the symptoms he was exhibiting. My reasoning on that point is set out in Lees and Repatriation Commission [2005] AATA 549. I affirmed the reviewable decision with respect to PTSD but remitted the matter to the Commission under s 42D of the Administrative Appeals Tribunal Act 1975 so it might consider whether the applicant’s alcohol abuse or dependence condition could be connected to his service.

2.      The respondent concluded the applicant’s condition was not attributable to his service. The matter has now come back to the Tribunal.

the material before the tribunal

3.      The material tendered in respect of the earlier hearing remains relevant to these proceedings. At the resumed hearing, Dr Chalk was called to give further evidence.

the factual background

4.      A detailed discussion of the facts was included in my earlier reasons. A brief summary is all that is required here: the applicant was a sailor working aboard HMAS Sydney as it made one of its trips to Vietnam in 1972. On 23 or 24 November of that year, the Sydney was anchored in Vung Tau harbour. The applicant was part of a work party detailed to retrieve stores from the freezer compartment of the ship. There was a sudden commotion as a result of some scare charges going off nearby. Some of the sailors thought the ship was under attack. In the confusion, the freezer was sealed with the applicant still inside. The applicant panicked because he was aware that the freezer was ordinarily opened only once a day to preserve its temperature. He said he thought he would soon die amongst the frozen items in the freezer space. As it happens, his colleagues realised he was missing a short while later and rescued him from the freezer. They found him on the floor of the compartment. He had soiled himself and was clearly distressed.

5.      The applicant said he began drinking heavily after the incident. Other sailors confirmed he would binge drink when he went ashore.

diagnosis

6.      I have already concluded the applicant suffers from alcohol abuse or dependence. Dr Chalk was questioned closely about the date of onset. He said it was difficult to be sure. He noted that evidence the applicant was drinking heavily at a particular point was not enough: there were other features that had to be present before a diagnosis could be made. He suggested the substance abuse had to have an impact or effect before it could be said to be a problem. As the Federal Court pointed out in Youngnickel v Repatriation Commission [2004] FCA 1691, the onset of the condition for the purposes of the VEA will be the date on which a doctor could have (with the benefit of hindsight) made a diagnosis: at paragraph 31 per Bennett J. Dr Chalk also pointed out that alcohol abuse often evolved into alcohol dependence over time. It might be difficult to identify the precise point at which the transition was made. He acknowledged alcohol abuse was easier to diagnose than alcohol dependence.

7.      Dr Chalk acknowledged he had referred to a drink-driving incident in 1972 in his report. He also acknowledged the applicant had told him of difficult interpersonal relationships – most obviously with his wife – upon his return from Vietnam.  Dr Chalk agreed with the suggestion that the applicant was probably abusing alcohol  “hard up against” the incident in the freezer.

8.      Dr Chalk added that he was not sure that the incident in the freezer was the genesis of the applicant’s drinking problem. Although he stressed it was not necessary for him to reach a view as to causation in order to make a diagnosis, he said he suspected the applicant’s maladaptive pattern of drinking actually began before the incident, not long after he entered the Navy. Dr Chalk plainly did not believe the applicant’s history of limited alcohol use before late 1972.

9.      The date of the drink-driving incident in question was the subject of conflicting evidence. Dr Chalk recalls being told it was in 1972 – perhaps late 1972. I asked the applicant to recall the date: he said he thought it was in March 1973. The respondent said the service records disclosed an offence in 1974.

10.     I will return to the date of onset in due course.

the law

11. Applicants who claim their conditions are connected with their period of operational service must comply with the requirements of ss 120(1) and (3) of the VEA. The Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 suggested s 120 requires the decision-maker to take four steps.

12.     The first step contemplated in Deledio requires the decision-maker to identify an hypothesis which connects his condition with the circumstances of his service. That hypothesis must be formulated having regard to all the material before the decision-maker, albeit that the decision-maker is not permitted to make findings of fact at this point.

13.     I am satisfied there is an hypothesis in this case: the applicant says he developed a drinking problem as a result of experiencing a severe stressor – the stressor being trapped in a freezer compartment in circumstances where he reasonably believed he had been abandoned to die.

14.     The next step in Deledio requires that I identify the relevant Statement of Principles (SoP). In this case, the relevant SoP is No 76 of 1998 relating to alcohol dependence or abuse.

15.     The third step in the Deledio process requires that I determine whether the applicant’s story “fits” the template created in the SoP. I am not permitted to make findings of fact at this stage.

16.     The respondent says the applicant’s account of the incident in the freezer is incapable of satisfying the definition of a severe stressor. That expression is defined in clause 8 of the SoP. I disagree. I think any person in the position of the applicant would be terrified at the thought of being trapped in a darkened freezer compartment in the circumstances described by the applicant. Mr Lees was aware the compartment was ordinarily opened only once a day; he had no way of knowing whether his absence would be noted before he froze to death. He was at least dimly aware of some sort of disturbance aboard the ship that might delay his rescue. The evidence clearly established the applicant experienced a sense of intense fear or helplessness or even horror. I accept the events he described amount to a severe stressor for the purposes of the SoP.

17.      Factor 5(b) in the SoP requires that the applicant experience the severe stressor in question within two years before the date of onset of the condition. It is therefore essential to fix as nearly as possible the date of onset.

18.     I accept there is evidence that the applicant could have been diagnosed with an alcohol abuse condition in the two years between the incident aboard HMAS Sydney in November 1972 and November 1974. There is ample evidence the applicant was exhibiting a maladaptive pattern of alcohol abuse that was giving rise to problems in his personal relationships (he spoke of being an unsatisfactory and even abusive husband) and he was charged with at least one drink-driving offence. He was also getting into fights. These features emerged within a 12 month period of each other as required by the diagnostic criteria for alcohol abuse set out in clause 3 of the SoP. The evidence does not all point to alcohol abuse: the applicant apparently continued to perform his work satisfactorily, it seemed. Even so, I accept the applicant’s story fits the template provided by the SoP.

19.     The fourth step in the Deledio process requires that I make a determination about the facts of this case. In essence, I am required to accept the applicant’s account unless I am satisfied beyond reasonable doubt that a matter of fact that is essential to the hypothesis is wrong, or another fact which is inconsistent with the hypothesis is proved beyond reasonable doubt: see Byrnes v Repatriation Commission (1993) 30 ALD 1 at 5.

20.     Counsel for the respondent pointed out the applicant’s story has changed over time. In the past, his story tended to focus on the scare-charge attack as a stressor. He gave evidence at one point that he could hear the scare charges going off outside the freezer while he was trapped inside. That was plainly impossible. I also note there was some inconsistency in the applicant’s story as to when he started drinking, and how much he drank. But I note the applicant’s account of the incident in the freezer was corroborated by his ship-mates, especially Mr Eberhardt. Mr Eberhardt also confirmed the applicant was not a heavy drinker prior to the incident but became a much heavier drinker thereafter. I am therefore inclined to accept that evidence.

21.     I also note there was some uncertainty about when the applicant’s drink-driving problems occurred. In the circumstances there is little doubt they occurred in either 1973 or 1974. I have no reason to doubt the applicant’s domestic relationships were also being affected by his drinking during the same period.

conclusion

22.     The decision under review with respect to alcohol abuse or dependence is set aside. I am satisfied the applicant’s alcohol abuse or dependence condition is war-caused.

23.     The parties did not make any submissions with respect to the date of effect. I will invite them to make written submissions to that effect before making a determination.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         .....................................................................................
  Associate:     Sam J Appleton

Dates of Hearing  11 & 12 May 2005, 7 November 2005
Date of Decision  4 January 2006

The applicant was represented by Ms McGhee of Counsel.

The respondent was represented by Ms Henderson of Counsel.