Lenz and Repatriation Commission (Veterans' entitlements) - [2017] AATA 783

Lenz and Repatriation Commission (Veterans' entitlements) [2017] AATA 783 (31 May 2017)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2014/4940
Re:Andre Lenz
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:31 May 2017
Place:Brisbane

I vary the decision under review to provide that the posttraumatic stress disorder condition of the applicant is a service-related condition; the decision under review is otherwise affirmed. The application is remitted to the respondent for the assessment of pension.
........................................................................
Deputy President Dr P McDermott RFD
CATCHWORDS
VETERANS’ AFFAIRS – claim for disability pension for condition not accepted as service‑related – member of peacekeeping force claimed defence-caused conditions of posttraumatic stress disorder and major depressive disorder – diagnosis of posttraumatic stress disorder - the relevant Statement of Principles does support the connection between the applicant’s service and the condition – decision under review varied and remitted
LEGISLATION
Veterans’ Entitlements Act 1986
CASES
Repatriation Commission v Deledio (1998) 49 ALD 193
Forrester v Repatriation Commission [2013] FCA 898
Repatriation Commission v Gorton (2001) 65 ALD 609
SECONDARY MATERIALS
Statement of Principles concerning posttraumatic stress disorder No. 5 of 2008 as amended by No. 19 of 2014
Statement of Principles concerning depressive disorder No. 27 of 2008
Statement of Principles concerning posttraumatic stress disorder No. 82 of 2014
Statement of Principles concerning depressive disorder No. 83 of 2015.
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
31 May 2017
INTRODUCTION

On 23 October 2013 the applicant made a claim under the Veterans’ Entitlements Act1986 (“the Act”) for ‘Disability Pension for disabilities that have not yet been accepted as service related’.[1] The claim form refers to a claimed war-caused condition of posttraumatic stress disorder (“PTSD”).[2] On 17 December 2013 a delegate of the respondent made a decision that PTSD and depressive disorder were not war-caused conditions.[3] On 26 June 2014 this decision was affirmed by the Veterans’ Review Board (“VRB”).[4] On 23 September 2014, the applicant made an application to the Administrative Appeals Tribunal for review of the VRB decision.[5]
[1] Exhibit A, T-documents, T4
[2] Ibid at p. 37
[3] Exhibit A, T-documents, T7
[4] Exhibit A, T-documents, T2 at p. 8
[5] Exhibit A, T-documents, T1
SERVICE OF APPLICANT
From 6 May 2003 to 8 November 2003 the applicant was deployed to East Timor as a member of the Australian Federal Police (“AFP”) Force[6] in support of the United Nations Mission in support of East Timor (UNMISET).[7] A Determination of Warlike Service was made in relation to service in East Timor from 20 May 2002 to 17 August 2003.[8]
[6] Exhibit A, T-documents, T3 at p. 31
[7] Exhibit D, UNCIVPOL Performance Assessment Report dated 26 October 2003
[8] Exhibit A, T-documents, T3 at p. 32-34
The service of the applicant was as a member of a “Peacekeeping force” as defined in section 68(1) of the Act.[9] As a member of a Peacekeeping Force the applicant is eligible for a pension under section 70 of the Act for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] AATA 783
Decision Date: 31 May 2017

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, a former member of the Royal Australian Air Force and the Australian Federal Police, against a decision of the Repatriation Commission regarding his claim for a disability pension. The applicant sought a pension for post-traumatic stress disorder (PTSD) and major depressive disorder, asserting these conditions were defence-caused due to his service as a member of a peacekeeping force. The core dispute revolved around whether the applicant's diagnosed conditions were attributable to his service, as required for eligibility under the relevant legislation.

The court was required to determine whether the applicant suffered from PTSD and a depressive disorder, and crucially, whether these conditions were war-caused or otherwise attributable to his service. This involved assessing the medical evidence presented, including various psychiatric and psychological reports, and applying the principles established in cases such as *Repatriation Commission v Deledio* concerning the establishment of a reasonable hypothesis linking an injury or disease to service. The court also had to consider the relevant Statements of Principles (SoPs) for PTSD and depressive disorder.

The court reasoned that while there was conflicting medical opinion regarding the diagnosis of PTSD, the evidence, particularly the reports from Dr Danesi and Dr Hagan, and the concession from Associate Professor Macleod, supported a diagnosis of PTSD. The court found it more probable than not that the applicant had PTSD, and that its onset could reasonably be dated to his service in East Timor, where he experienced a traumatic event. However, the court concluded that the material did not establish a reasonable hypothesis linking the applicant's depressive disorder to his service in East Timor, as medical evidence suggested this condition arose from workplace issues related to the closure of an AFP office and relocation. Consequently, the court varied the decision under review to recognise PTSD as a service-related condition, while affirming the decision in relation to the depressive disorder. The matter was remitted to the Repatriation Commission for the assessment of pension for the PTSD.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The service of the applicant was as a member of a “Peacekeeping force” as defined in section 68(1) of the Act.[9] As a member of a Peacekeeping Force the applicant is eligible for a pension under section 70 of the Act for injury or a disease which is attributable to his service. [9] Exhibit A, T-documents, T3 at p. 32-34BACKGROUND The applicant served with the Royal Australian Air Force (“RAAF”) as a helicopter loadmaster for six years from 1981 to 1987 before he was recruited by the AFP. The applicant was a member of the AFP for 26 years and ceased working for the AFP in July 2014.[10] As a part of his employment with the AFP, the applicant was deployed to East Timor from May 2003 to November 2003. During this time, the applicant worked in the East Timorese President’s personal protection team.[11] [10] Exhibit D, Report of Dr Danesi dated 10 September 2014 at p. 5[11] Exhibit D, UNCIVPOL Performance Assessment Report dated 26 October 2003 In 2005, the applicant was diagnosed with a pulmonary embolus. In 2011, the applicant learnt of the likely closure of the AFP Robina office where he worked and that he was expected to relocate to another office in Brisbane. In November 2012, the applicant consulted his general practitioner Dr Blanks who noted this was when the applicant first mentioned his mental health difficulties. Dr Blanks believed the mental health issues were exacerbated by work place issues the applicant had been experiencing at the time.[12] [12] Exhibit A, T-documents, T6 at p. 70 In January 2013, the applicant suffered a breakdown[13] and sought medical advice from Dr Blanks who referred the applicant to the psychologist Craig Pearman. Dr Blanks’ referral stated that the applicant “suffers from what I would describe as PTSD. Service in Air force and Federal Police. Stresses remain… now associated with work – can’t cope. Things at work changing – can’t cope”.[14] [13] Exhibit D, Report of Dr Danesi dated 10 September 2014 at p. 1[14] Exhibit A, T-documents, T6 at p. 50 The applicant did not return to work and made a worker’s compensation claim to Comcare on 19 March 2013 due to PTSD caused by two traumatic incidents that he claims occurred during his deployment in East Timor.[15][15] Exhibit D, Lenz and Comcare (Compensation) [2015] AATA 659 at [3] Mr Pearman diagnosed the applicant with PTSD and completed a psychological report on 18 April 2013 for the purposes of the Comcare claim.[16][16] Exhibit A, T-documents, T6 at pp. 98-101 A number of health practitioners have made various diagnoses and linkages between the conditions and the applicant’s service:(a)Associate Professor Dr Allister D Macleod, Consultant Psychiatrist, report dated 23 April 2013. This report contains a diagnosis of a major depressive episode and refers to a history of work-related traumatic exposures;[17](b)Dr Michael Hagan, Consultant Psychiatrist, report dated 8 May 2013. This report contains a diagnosis of PTSD and major depressive disorder;[18](c)Dr Christopher Danesi, Consultant Psychiatrist, report dated 8 May 2013. This report states the applicant has a major depressive disorder and “query PTSD”;[19](d)Dr G. K. Blanks, General Practitioner, report dated 10 May 2013. This report diagnoses PTSD, 70% due to service in AFP and 30% due to workplace transfer from Robina to Brisbane;[20](e)Dr Danesi, report dated 2 December 2013, which diagnoses the applicant with 80% PTSD and 20% Major Depressive Disorder;[21](f)Dr Danesi, review report dated 10 September 2014, which reports that the applicant has chronic PTSD which has improved since May 2013;[22](g)Dr Danesi, review report dated 20 February 2015, which states that the applicant has ongoing significant symptoms of PTSD;[23](h)Professor Philip Morris, Consultant Psychiatrist, report dated 14 April 2016 which diagnoses PTSD and mentioning that the major depressive disorder is “largely resolved”;[24](i)Associate Professor Dr Macleod, supplementary report dated 27 July 2016 confirming the prior diagnosis of a major depressive episode with posttraumatic symptoms, as outlined in his 2013 report;[25](j)Dr Danesi, review report dated 13 September 2016 confirming that the applicant still has the clinical presentation of chronic symptoms of PTSD.[26][17] Exhibit A, T-documents, T6 at p. 93[18] Exhibit A, T-documents T6 at pp. 62-66[19] Exhibit A, T-documents, T6 at p. 69[20] Exhibit A, T-documents, T6 at pp. 70-71 [21] Exhibit A, T-documents, T8 at pp. 116-121[22] Exhibit B, Report of Dr Danesi dated 10 September 2014[23] Exhibit B, Report of Dr Danesi dated 20 February 2015[24] Exhibit E, Report of Professor Philip Morris dated 14 April 2016[25] Exhibit G, Supplementary report of Associate Professor Dr Macleod[26] Exhibit B, Report of Dr Danesi dated 13 September 2016LEGAL FRAMEWORK

Evidence

Evidence Before The Court

There are four comprehensive reports that are most useful in assessing whether the applicant suffers from PTSD and a depressive disorder, and whether these conditions are war-caused. Medical evidenceAssociate Professor Dr Macleod Associate Professor Dr Macleod’s report was prepared in 2013 for the AFP following an interview with the applicant.[28] Associate Professor Macleod outlines the applicant’s background including his developmental history, work life and health in reaching his conclusion. [28] Exhibit A, T-documents, T6 at pp. 89-96 Associate Professor Macleod concludes in the report that the applicant was suffering from a major depressive episode, not PTSD:“… though he has a traumatic history, and he is certainly experiencing traumatic nightmares and probably traumatic night terrors, he does not present with sufficient symptoms to make a diagnosis of post-traumatic stress disorder. He is not unusually troubled by intrusive memories and until recently has had cognitive strategies to contain these.”[29][29] Ibid at p. 92 Associate Professor Macleod gave evidence at the hearing about how he reached this diagnosis and stated:“[the applicant] had traumatic memories… of 2003… I was of the view that the primary diagnosis was of major depression and if that were properly treated then one would have a better view of post traumatic symptoms. Very often when depression is adequately treated the post traumatic symptoms fade… probably his depression amplified these post traumatic memories and if that could be treated then his post traumatic memories of Timor and difficulties at work would pale into relative insignificance” Associate Professor Macleod explained why he did not diagnose the applicant with PTSD:“Ordinarily symptoms of PTSD are symptoms of re-experiencing the trauma, trying to avoid thinking about trauma and being hyperaroused or hyperalert… All of those symptoms can be amplified in the context of depressed mood however in my view those symptoms were not the predominant symptoms that Mr Lenz was presenting with … more his mood symptoms that I was impressed with at that time.” In discussing the other reports of Dr Danesi and Dr Hagan, Associate Professor Macleod conceded the following:“I raised the possibility… in 2013 that until depression was adequately treated it was difficult to determine the extent of the post-traumatic symptoms. I read those reports of Dr Danesi and Dr Hagan and quickly had the opportunity to talk to Dr Hagan… he still came to the conclusion that Mr Lenz was suffering from PTSD and I am obliged to accept that… These doctors have seen Mr Lenz more recently than I have and I’d say I’d feel comfortable that his depression was adequately treated by Dr Hagan… if I had to concede to that diagnosis.” Associate Professor Macleod further stated in relation to a question about clinical onset following his acceptance of the opinions of Dr Hagan and Dr Danesi: “Experiencing traumatic nightmares in relation to Timor in 2003 and more recently having more stress at work that he was finding more difficult… and a potentially life threatening illness… I would suggest that having been initially traumatised, generally speaking, one’s threshold for… traumatic experiences falls so one is more likely to be traumatised by subsequent events which may be of lesser severity than the initial stressor.”Dr Danesi

Decision

Reasons for decision

After reviewing the material before me I have concluded that the material does not point to a reasonable hypothesis relating the applicant’s depressive disorder with the applicant’s service in East Timor in terms of factor 10 of the 2015 depressive disorder SoP or factor 7 of the 2008 depressive disorder SoP. This is because Dr Hagan considers that the development of the applicant’s depressive state to be as a result of the closure of the AFP Robina office and his relocation to Brisbane. Dr Danesi also stated that the applicant was distressed by the way he had been treated by the AFP at the time of the office closure.CONCLUSION I vary the decision under review to provide that the posttraumatic stress disorder condition of the applicant is a service-related condition; the decision under review is otherwise affirmed. The application is remitted to the respondent for the assessment of pension.

Ratio Decidendi

Legal Principle Established

In cross-examination Mr Elm was asked whether he had any dealings with the applicant in his police work in New South Wales, whether he maintained contact with him after deployment and how he was approached to give evidence in the applicant’s Comcare claim. He responded that he did not have contact with him in his police work, that they only maintained intermittent contact and he was asked whether he would be willing to make a statement and give evidence.CONSIDERATION The applicant is eligible for a pension if there is a diagnosis of a condition that is related to his service, by way of a reasonable hypothesis which is supported by the relevant SoP.[40] This requires consideration of the diagnosis and the four steps outlined in the case of Repatriation Commission v Deledio (1998) 49 ALD 193 at 206 (“Deledio”).[40] See Veteran’s Entitlement Act 1986, section 120A1.POSTTRAUMATIC STRESS DISORDERDiagnosis In evaluating the weight to be given to the conflicting diagnoses of the applicant, I regard the evidence of Associate Professor Macleod as the most comprehensive; he is a senior practitioner and applies the criteria of the DSM in his diagnosis. While in his report Associate Professor Macleod did not diagnose PTSD, he stated that was because of the depressive symptoms of the applicant. However, in his oral evidence Professor Macleod accepted that the depression may have been treated and he deferred to the diagnoses of Dr Danesi and Dr Hagan who both diagnosed the applicant as having PTSD. Dr Danesi has treated the applicant over a number of years and as a result has a very thorough understanding of the applicant’s history and his evolving symptomology. The majority of the other qualified psychiatrists and psychologists who have consulted with the applicant have consistently identified PTSD and depression-like symptoms and diagnosed him with both conditions. In considering all medical evidence available, I find that it is more probable than not that the applicant has a diagnosis of PTSD. I rely on the reports of Dr Danesi and Dr Hagan and now Professor Macleod in making this finding. Having regard to the uncontradicted evidence of Dr Hagan who considers that the development of PTSD relates primarily to the incident in East Timor, it is reasonable to date the onset of the PTSD condition as being when the applicant was in East Timor. Associate Professor Macleod in his evidence referred to the traumatic nightmares in relation to East Timor in 2003, this is when was the applicant can be regarded as initially traumatised.Deledio steps I must consider firstly all the material which is before me and determine whether this material points to a hypothesis connecting the injury of the applicant with the circumstances of the particular service rendered by him. The applicant submits that the hypothesis is that the applicant’s service in East Timor caused his PTSD because he experienced a life threatening event in the course of his service - whereby he spent a number of hours overnight fearing for his life and hearing gunshots throughout a night in June 2003.