Lees and Repatriation Commission

[2005] AATA 549

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 549

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2004/650

VETERANS’ APPEALS DIVISION		)
Re		ANTHONY LEES

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member McCabe

Date9 June 2005

PlaceBrisbane

Decision The applicant does not suffer from PTSD. To that extent, the decision under review is affirmed. The question of whether or not his alcohol condition is service related is remitted to the Repatriation Commission for reconsideration pursuant to s 42D of the Administrative Appeals Tribunal Act 1975.

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

SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – application for increase in rate of disability pension – diagnosis of psychiatric condition in issue – applicant does not suffer PTSD – matter remitted for consideration of war-caused alcohol abuse or dependence.

Veterans’ Entitlements Act 1986, s 120

Benjamin v Repatriation Commission (2001) 70 ALD 622; (2001) 34 AAR 270; [2001] FCA 1879

REASONS FOR DECISION

9 June 2005  Senior Member B J McCabe

introduction

1.      Mr Anthony Lees is a naval veteran. He says he suffers from Post Traumatic Stress Disorder (PTSD) as a result of an event that occurred while he served on HMAS Sydney when the vessel was anchored in Vung Tau harbour during the Vietnam conflict. He has applied for an increase in the rate of his disability pension payable under the Veteran’s Entitlements Act 1986 (the VEA). The respondent disputes the diagnosis, and says the applicant cannot satisfy the relevant statement of principles (SoP).

material before the tribunal

2. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. The following documents were also admitted into evidence and considered by the Tribunal:

·Report of Dr Phillip Bird dated 3 March 2001 (exhibit 2);

·Report of Dr Phillip Bird dated 26 June 2001 (exhibit 3);

·Report of Dr Phillip Bird dated 4 May 2004 (exhibit 4);

·Report of Dr Phillip Bird dated 17 January 2005 (exhibit 5);

·Statement of Lieutenant Commander Burridge dated 20 January 2003 (exhibit 6);

·Statutory Declaration of Ross Edward Eberhardt dated 12 July 2004 (exhibit 7);

·Combined statement of Anthony Lees undated with attachments - filed 31 January 2003 (exhibit 8);

·Curriculum Vitae of Dr Phillip Bird (exhibit 9);

·Pathology report of Drs Appleton and Brown dated 27 October 2004 (exhibit 10);

·Writeway Research Report dated 14 January 2003 (exhibit 11);

·Statement of Commander P J Burn undated – filed 11 March 2003 (exhibit 12);

·Commissioning letter to Dr Chalk from the Australian Government Solicitor dated 20 October 2004 (exhibit 13);

·Admiral Sinclair’s Commendation for Anthony Lees dated November 1987 (exhibit 14);

·Income Support Pension Claim – invalidity details of Anthony Lees dated 8 June 1999 (exhibit 15);

·Report of Dr Chalk dated 1 November 2004 (exhibit 16).

3.      The applicant gave evidence in person. Mr Eberhardt, a veteran who served on the Sydney and was familiar with the events in question, gave evidence on behalf of the applicant. Dr Bird also gave evidence. He is the applicant’s treating psychiatrist.

4.      The respondent’s witnesses included Commodore Mulcare, the author of the Writeway Research report. Commodore Mulcare served on HMAS Melbourne, the Sydney’s sister ship. He was familiar with the operations of the Sydney when it docked at Vung Tau. Commander Burns also gave evidence. He was the engineering officer on the Sydney at the relevant time. He was familiar with the layout of the ship and the design and operation of the cool-rooms. Dr Chalk gave evidence as well.

5.      The applicant was represented by Ms McGhee of counsel. The respondent was represented by Ms Henderson.

the factual background

6.      This case has a tortured history. The applicant was unsuccessful at the original hearing before the Tribunal but the Federal Court remitted the matter to the Tribunal for a fresh hearing. The applicant is already in receipt of a service pension and the respondent has accepted liability for a number of other conditions.

7.      The applicant joined the Royal Australian Navy on 11 October 1969. He was 15 years of age at the time. He was discharged on 20 November 1989. He rendered eligible service aboard HMAS Sydney between 1 November 1972 and 30 November 1972. He was aboard the Sydney when the ship delivered supplies that were offloaded in Vung Tau harbour on 23 and 24 November.

8.      Mr Lees was a cook during the period in question. On one of the mornings when the ship was moored in Vung Tau harbour, he says he and five other men were detailed to go down into the cold room (the freezer compartment) of the ship to retrieve a quantity of meat for the butcher, Mr Eberhardt. Mr Eberhardt said in his evidence the cold room was stacked “high, hard and tight” in the sense that it was full of meat. The applicant was instructed to retrieve some cuts of meat from the back of the compartment. He had considerable difficulty making his way between and under the produce that was stored there.

9.      While the applicant was in the freezer compartment, an indeterminate number of explosions were heard outside. The applicant says he heard them from within the freezer compartment. He says he heard popping sounds and felt the vessel shake. Mr Eberhardt said the explosions were caused by scare charges. He had heard them before. He said some of the men who formed part of the detail were unfamiliar with the sounds and reacted with alarm. Mr Eberhardt said there was a good deal of swearing before he calmed the men who were with him outside the compartment and told them what was going on. The applicant, who was still inside the compartment, said he heard someone near the open door say: “The ship is under attack”.

10.     The applicant says the other men in the party reacted to the commotion outside by rushing from the freezer compartment and closing the door. The door was locked from the outside and the light was switched off. Mr Lees was sealed inside. He said the men departed in a state of panic and left behind the meat they were collecting. Mr Eberhardt denied there was a panic and claimed the meat was taken up to the butchery. Mr Eberhardt agreed the applicant was accidentally left sealed in the freezer compartment.

11.     Mr Lees said he was terrified. He could not open the door. It was freezing cold. He was aware the freezer compartment was ordinarily opened only once a day in an effort to maintain a constant temperature. He says he was aware there was a risk he would freeze to death before he could be found. He says he heard the sound and vibration of the explosions while locked in the compartments. He was worried the ship would sink.

12.     Mr Eberhardt realised the applicant was missing about 15 minutes later. He returned to the freezer compartment with several other men and unlocked the door. They found Mr Lees lying on the floor in a state of distress. He was cold and very upset. He had urinated – something which amused those who found him. Mr Eberhardt says he arranged for the applicant to be examined by medical personnel. Mr Lees is unclear about what happened at that point. The applicant said he was excused from going into the freezer again after the incident.

13.     The applicant said he was not a drinker before the incident. He told me when asked that he never touched alcohol before that time, but he later agreed he may have had the occasional drink. Mr Eberhardt said the applicant had the occasional drink during this period. The applicant said he became a very heavy drinker from that point in an effort to cope with the stress of the incident. He said he went out on a drinking binge at the next port where he had leave, and at each port after that. He said he always consumed his ration of beer at sea. That pattern of consumption continues more or less to this day. The applicant says he started drinking to relieve the stress and symptoms associated with the incident in the freezer.

14.     The applicant had a successful career in the Navy apart from some minor disciplinary infractions. He rose to the rank of chief petty officer. He received several commendations for his work, including a commendation from the fleet commander in 1987. Mr Lees did not dispute he was entitled to the successes and commendations, but he suggested the Navy tended to ignore his bad behaviour as he became more senior and more valuable.

15.     The applicant says he began to experience nightmares about being locked in the freezer and night sweats soon after the incident. He would yell and scream in his sleep. His interpersonal relationships became difficult. His relationship with his first wife broke down. He says he was abusive towards her. He has had difficulty holding down a job since he left the Navy, and he has been involved in a number of fights with members of his golf club. He gets depressed and aggressive. He has some contact with former naval colleagues. Surprisingly, a number of those colleagues still tease him about the incident in the freezer even though they are aware it was a traumatic experience.

diagnosis

16.     The Department of Veterans’ Affairs referred the applicant to a psychiatrist, Dr Bird, in 2001. Dr Bird opined Mr Lees suffered from PTSD (T documents at p53). Dr Bird subsequently became the applicant’s treating doctor.

17.     Dr Bird acknowledged the applicant has a serious drinking problem but says PTSD is the primary diagnosis. Dr Bird said the PTSD symptoms appeared almost immediately after the incident. He confirmed his view that a diagnosis of PTSD could have been made soon after.

18.     Dr Chalk takes a different view. He says the applicant’s principal problem is his drinking. He says most of the symptoms can be explained by a diagnosis of alcohol abuse or dependence.

19.     I was particularly impressed by Dr Chalk’s evidence. He has extensive experience in dealing with veterans. While Ms McGhee urged me to reject his evidence because it was coloured by his observation of other veterans, I am satisfied he carefully considered the facts in this case and reached an independent view that was informed by his experience. Without intending any disrespect for Dr Bird, I think this is one of those cases where the views of an in independent expert should be preferred over those of the treating doctor who may take a less objective view of his patient’s condition.

20.     I do not accept the applicant suffers from PTSD. He suffers from an alcohol abuse and dependence condition.

the law

21. Having settled on a diagnosis, I must have regard to ss 120(1) & (3) of the VEA in my assessment of the claim.

22.     If the applicant does not suffer from PTSD, it follows there is not sufficient material pointing to the hypothesis he has put forward to enable him to succeed in this case. Even so, it is clear he suffers from a condition that may be compensable – most obviously, if he can establish he experienced a severe stressor within the meaning of the SoP relating to alcohol abuse within two years prior to the date of onset of the condition. The Full Court has made it clear in Benjamin v Repatriation Commission (2001) 70 ALD 622 that the Tribunal cannot ignore a psychiatric condition that might be war-caused just because the applicant did not expressly make a claim in respect of that condition.

23.     I would prefer to go on and deal with the case as if it were a claim in respect of an alcohol abuse or dependence condition. I foreshadowed that intention when the parties were making their final submissions. Ms McGhee was reluctant to abandon the claim for PTSD. Ms Henderson submitted that it would be unsafe to proceed. She conceded if I found the applicant suffered from another psychiatric condition that might be compensable and was not minded to reject the claim, I should at least remit the matter to the respondent for reconsideration.

24. In the circumstances, I propose remitting the matter to the respondent under s 42D of the Administrative Appeals Tribunal Act 1975. The respondent should consider whether the applicant’s alcoholism is causally related to his service having regard to the relevant SoP. If the respondent is not satisfied of a causal connection, the issue will return for a review by the Tribunal.

conclusion

25. The applicant does not suffer from PTSD. To that extent, the decision under review is affirmed. The question of whether or not his alcohol condition is service related is remitted to the Tribunal for reconsideration pursuant to s 42D of the Administrative Appeals Tribunal Act 1975.

I certify that the 25 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
Date of Decision  9 June 2005

The applicant was represented by Ms McGhee of Counsel.

The respondent was represented by Ms Henderson of Counsel.