Lenz and Repatriation Commission (Veterans' entitlements)
[2017] AATA 783
•31 May 2017
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 injury or a disease which is attributable to his service.
[9] Exhibit A, T-documents, T3 at p. 32-34
BACKGROUND
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 2016
LEGAL FRAMEWORK
Section 70 of the Act sets out the eligibility for pension for a member of a peacekeeping force:
70 Eligibility for pension under this Part
(1) Where:
…
(b) a member of the Forces or member of a Peacekeeping Force is incapacitated from a defence‑caused injury or a defence‑caused disease;
the Commonwealth is, subject to this Act, liable to pay:
…
(d) in the case of the incapacity of the member—pension by way of compensation to the member;
in accordance with this Act.
As the applicant has undertaken service in East Timor as a member of Peacekeeping force, the standard of proof outlined in section 120(2) and (3) apply. These subsections provide:
120 Standard of Proof
…
(2)Where a claim under Part IV:
(b) in respect of the incapacity from injury or disease of a member of a Peacekeeping Force or of the death of such a member relates to the peacekeeping service rendered by the member; or
…
the Commission shall determine that the injury was a defence‑caused injury, that the disease was a defence‑caused disease or that the death of the member was defence‑caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war‑caused injury or a defence‑caused injury;
(b)that the disease was a war‑caused disease or a defence‑caused disease;
…
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Applying this standard of proof, the Tribunal must make a finding that the applicant’s injury was defence-caused unless it is satisfied beyond reasonable doubt that there is no reasonable hypothesis that can be raised between the applicant’s injury and the circumstances of particular service.
Section 120A of the Act requires the Tribunal to refer to a Statement of Principles (“SoP”) in determining whether a hypothesis is reasonable:
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
…
(b)a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force;
…
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Section 196A of the Act provides for the establishment of the RMA which is an independent medical body that issues a SoP based on sound medical-scientific evidence. The SoP sets out factors relating to service which must exist in order to establish a causal connection between service and particular diseases, injuries or death.
Section 196B(2) of the Act provides that if the RMA:
… is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
…
(b) peacekeeping service rendered by members of Peacekeeping Forces;
…
the [RMA] must determine a [SoP] in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e) which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
A SoP is binding on the respondent and various review bodies, including this Tribunal.
The applicant has not nominated a preferred SoP. In the decision of the Federal Court of Australia in Repatriation Commission v Gorton (2001) 65 ALD 609 at 624 [62], Allsop J (as he then was) referred to whether a claimant also has an accrued right to have his or her position judged by reference to an earlier SoP. I accept the closing submissions of the respondent that the following SoPs are applicable to this matter:
(a)Statement of Principles concerning posttraumatic stress disorder No. 5 of 2008 as amended by No. 19 of 2014;
(b)Statement of Principles concerning depressive disorder No. 27 of 2008;
(c)Statement of Principles concerning posttraumatic stress disorder No. 82 of 2014; and
(d)Statement of Principles concerning depressive disorder No. 83 of 2015.
This is consistent with the eligibility of the applicant being determined at any time during the assessment period referred to in section 19(9) of the Act which applies to this application by operation of section 71(1) of the Act. The operation of section 19(9) of the Act is intended to “enable a veteran to qualify where he or she meets all the eligibility criteria at a date between the date of lodgement of the claim or application and the date of the decision of the Commission or any review body”[27].
[27] Second Reading Speech, Veterans’ Affairs Legislation Amendment Act 1988, H R Debates, Vol 163, p. 2036 (20 October 1988)
EVIDENCE
There are numerous reports in evidence, a number of which were produced for the applicant’s worker’s compensation claim.
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 evidence
Associate 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
Dr Danesi was the applicant’s treating psychiatrist between 2013 and 2016. Dr Danesi’s report dated 2 December 2013 outlines incidents and current issues that the applicant was facing in his AFP workplace. He then briefly outlines the applicant’s medical, social and developmental history. The assessment of this history is based on information provided by the applicant and the applicant’s wife who Dr Danesi also consulted. The report notes a ‘mental state examination’ of the applicant on a number of occasions between May 2013 and December 2013.
Dr Danesi records the applicant’s recollections and statements made to him by the applicant very comprehensively. Dr Danesi states:
“He was quite anxious and was distressed by how he has been treated by the AFP especially the failure of the expected redundancy. He was also agitated when described the incident of being overnight in a hut thinking he was about to die…
…he continued with ongoing anxiety, ruminations about work, ongoing nightmares, lack of energy, easily irritated and frustrated and hyper vigilance…
…he described ongoing difficulty with poor concentration and managing day to day lie [sic] because of this”.[30]
[30] Exhibit A, T-documents, T8 at p. 119
Dr Danesi measures the applicant’s depression throughout 2013 using the ‘PHQ, 9’, the nine item Patient Health Questionnaire used as an instrument to identify depression.[31] In May 2013 the applicant scores 18 which is moderately severe, in August 2013 the applicant scores 12 which is moderate and in September 2013 the applicant scores 9 which is mild.
[31] Australian Bureau of Statistics, “Other Short Form Measures”, available at: (accessed 25 May 2017)
Dr Danesi had assessed the applicant throughout 2013 according to the ‘PTSD PCL checklist’, a 20 question standardised assessment tool to assess PTSD symptom severity and treatment progress which scores out of 80 in total.[32] The applicant scores 70 in May 2013, 65 in August 2013 and 66 in November 2013.
[32] US Department of Veteran’s Affairs “PTSD Checklist for DSM-5 (PCL-5)”, available at: (accessed 25 May 2017)
Dr Danesi concludes that the applicant suffers from PTSD and major depressive disorder.[33]
Dr Hagan
[33] Exhibit A, T-documents, T8 at p. 120
Dr Hagan completed a report dated 8 May 2013 for the purposes of the applicant’s Comcare claim and diagnosed the applicant with PTSD and major depressive disorder.[34]
[34] Exhibit A, T-documents, T6 at pp. 62-66
Dr Hagan states[35]:
“The history of having a life threatening event in East Timor is consistent with a diagnosis of Post Traumatic Stress Disorder related to the events of that time… The content of his re-experiencing phenomena… pertains to events in East Timor and his history is that he has nightmares and flashbacks about the incident from East Timor.”
[35] Ibid at p. 64
Dr Hagan further states[36]:
“I consider that the development of PTSD relates primarily to the incident in East Timor in 2003. I consider the development of his depressive state to have been multi factorial with factors to do with his employment and the closure of the Robina office and his relocation to Brisbane as being significant.”
Dr Morris
[36] Ibid at p. 65
Dr Morris completed his report dated 14 April 2016. In his evidence Dr Morris outlined the history of the trauma that led to the onset of the applicant’s PTSD[37]:
“[The applicant] had three major trauma incidents where his life was placed at risk. The first occurred in a riot in the Police Headquarters at Dili. The second occurred when he was driving with an U.N. police officer when his car was surrounded and threated by an angry crowd brandishing weapons. The third was when he was protecting the President of East Timor in July 2003 on a border exercise near Indonesian Timor. He was in a hut by himself and he experienced incoming rounds of pistol and rapid fire weapons. Fortunately, he was not hit but he believed his life was at immediate risk. During these three episodes of traumatic exposures he became fearful, anxious and believed that he may not survive.”
[37] Exhibit E, Report of Professor Philip Morris dated 14 April 2016, p. 2
Dr Morris summarises the diagnosis as follows[38]:
“Andre Lenz suffers from chronic posttraumatic stress disorder, which started as a clinical condition after his traumatic experiences in East Timor, particularly after the time when he was shot at while protecting the President of East Timor in July 2003…
In my opinion the PTSD condition arose from his traumatic experiences in Timor…
… towards the end of his AFP career… he also developed a complication of his PTSD condition, which was the development of a major depressive disorder. This became evident in early 2013.”
[38] Ibid at p. 3
In oral evidence Dr Morris responded to a question about the applicant’s history of exposures, stating that he can only listen to what the patient says on its face value and that he is not in a position to decipher the true history. Dr Morris stated he was under the impression the applicant had a long history of PTSD.
When it was put to Dr Morris in cross-examination that Professor Macleod had dated the onset of the applicant’s PTSD as being in 2005 following the applicant’s pulmonary embolus, Dr Morris stated that the Professor may not be taking into account the applicant’s full story. Dr Morris stated that the pulmonary embolus condition was likely to have “concentrated the [applicant’s] mind as to whether he was going to live or die” and was “likely to raise anxieties” of a patient that suffers from PTSD initially. He further stated the pulmonary embolus condition may have aggravated or exaggerated the applicant’s PTSD, but it does not explain the onset of the applicant’s PTSD.
Evidence of deployed AFP officers
Andre Lenz
The applicant gave oral evidence about his service in 2003 in East Timor, as well as his work history with the AFP. He outlined in detail a number of incidences that he claims occurred in East Timor that have contributed to his mental health conditions.
The applicant outlined in detail the particulars of his deployment as a part of the Presidential protection team. The applicant stated that Timor was quite hostile and volatile in that period. The President would frequently travel over the border into West Timor. The applicant stated he would go alone as he was directly responsible for the President’s protection and other UN police officers were not authorised to travel. The applicant stated that he would not usually be given details before trips away for the President and the applicant was not able to discuss these trips with anyone until their return. These trips were often made for three to four days at a time.
The applicant stated that at the time he wrote his statement in October 2013 outlining his experiences he remembered two possible dates for the particular village incident and that he could not remember which date it occurred as there were two scenarios that were very similar in his memory. The applicant stated that he subsequently found his diary which confirmed the dates that the village incident occurred were in early July 2003.
The applicant stated that he submitted incident reports both to the AFP and UN upon his return from the remote villages, immediately following the incidents.
Mark Elm
Mr Elm gave a comprehensive account of his time in East Timor in his deployment in both his statements and his oral evidence.
Mark Elm submitted two statements which are in evidence, one of which was undated and the latter was a statutory declaration dated 24 September 2015.[39] Mr Elm also gave evidence at the hearing.
[39] Exhibit D
Mr Elm was asked why his undated statement did not mention the particular incident of relevance to the applicant in this proceeding. Mr Elm stated that when he wrote the earlier undated statement he was going through his own issues with memory and that he was not aware of what was required when writing the statement. Mr Elm pointed out where the statements differed to the Tribunal; he states in the undated statement that the applicant and himself did not share any life threatening experiences with each other, which differs from his statutory declaration in which he states the applicant told him about the village incident in July 2003.
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 120A
1.POSTTRAUMATIC STRESS DISORDER
Diagnosis
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.
I consider that the material points to a reasonable hypothesis connecting the applicant’s PTSD to his relevant service. I make no finding of fact as to the events in connection with the claim at this stage of the four step process: see Deledio at 206.
I must then consider whether this hypothesis is reasonable by way of being supported by the relevant SoP.
I must identify whether the hypothesis is supported by either the Statement of Principles concerning posttraumatic stress disorder No. 5 of 2008 as amended by No. 19 of 2014 (the “2008 PTSD SoP”) which was in force after the date of claim or under the Statement of Principles concerning posttraumatic stress disorder No. 82 of 2014 (the “2014 PTSD SoP”).
2008 PTSD SoP
In order for there to be a reasonable hypothesis under the 2008 PTSD SoP, the circumstances must satisfy one of the factors set out including the following:
(a)experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder;[41] or
(b)experiencing a category 1B stressor before the clinical onset of posttraumatic stress disorder;[42] or
(c)having a perception of threat and/or harm to the integrity of the self as a consequence of being in what:
(i)the individual concerned; and
(ii)a reasonable person in the circumstances of that individual would have;
considered to be any or all of a threatening, hostile, hazardous and/or menacing situation and/or environment before the clinical onset of posttraumatic stress disorder.[43]
[41] Statement of Principles concerning posttraumatic stress disorder No. 5 of 2008, Factor 6(a)
[42] Ibid, Factor 6(b)
[43] Ibid, Factor 6(ba)
The definitions of the terms ‘category 1A stressor’ and ‘category 2A stressor’ are contained in section nine of the 2008 PTSD SoP:
"a category 1A stressor" means one of the following severe traumatic events:
(a)experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;
"a category 1B stressor" means one of the following severe traumatic events:
(a)being an eyewitness to a person being killed or critically injured;
(b)viewing corpses or critically injured casualties as an eyewitness;
(c)being an eyewitness to atrocities inflicted on another person or persons;
(d)killing or maiming a person; or
(e)being an eyewitness to or participating in, the clearance of critically injured casualties;
In order to determine whether there has been an event which aligns with a factor in 6(a), (b) or (ba) I have considered the evidence with regard to the actual events that occurred when the applicant was undertaking peacekeeping service in East Timor. I have considered the oral evidence of the applicant and two fellow AFP officers about the particular event in July 2003, and the applicant’s 2003 diary submitted in evidence.[44]
[44] Exhibit C
The applicant described in some detail the village incident from which the applicant’s PTSD can be traced. The applicant was staying in a border village with the President and his protective team where he had visited for the day. The applicant states that he had retired to sleep in a village hut and during the night he was woken by a single gunshot in the distance and a few minutes later there was a rifle shot. The applicant attributed these gunshots to Timorese locals who were hunting. He said that gunshots were quite common especially in villages. However, he then said then he heard a single burst of automatic gunfire closer to the village which then prompted concern from the applicant. This automatic gunfire also prompted a response from a member of the East Timorese police contingent who visited the applicant at his hut to discuss their options.
The applicant conferred with an East Timorese police officer and told him to stay with the President because he believed he may be “as much of a target and prize”; they could not flee and had nowhere to go. The team had the use of a UN vehicle which the applicant stated could be a target for militia. The applicant subsequently set up protective measures in and around his hut, including trip wires made of fishing line. The applicant then states there were bursts of automatic gunfire much closer to the hut although it was not clear whether these were within the village. He stated he heard footsteps which became louder and persons speaking Indonesian were walking past his hut, before a person stopped at the door and one of the trip wire bells was triggered. The applicant states he waited with his gun ready; however, no one entered and the person/s moved on. He said that he waited till dawn before emerging from his hut, with his pistol cocked, and nothing further happened in the time between the person walking past his hut and dawn when he emerged from the hut.
I do not consider the incidents outlined by the applicant meet the threshold of a category 1A or category 1B stressor.
I consider that the events related by the applicant of being surrounded by an angry crowd brandishing weapons and the border village incident come within the terminology of a “perception of threat and/or harm to the integrity of the self” within the meaning of factor 6(ba) of the 2008 PTSD SoP.
A reasonable person would certainly have a perception of threat and/or harm to his or her integrity if he or she was surrounded by an angry mob brandishing weapons. I consider that a reasonable person in the circumstances of the applicant would have a perception of threat or harm to the integrity of self, having regard to the bursts of automatic fire in the vicinity of the hut. My conclusion in relation to the border village incident is reinforced by the protective measures employed by the applicant in installing a system of trip wire made from fishing line and by waiting in the hut with his gun at the ready.
I consider that that the angry crowd surrounding the applicant’s vehicle and gunfire in the vicinity of the hut, as well as the applicant’s measures to protect himself, also clearly indicate that the applicant was in a “threatening, hostile, hazardous and/or menacing situation and/or environment”.
2014 PTSD SoP
In order for there to be a reasonable hypothesis under the 2014 PTSD SoP, the circumstances must satisfy one of the factors set out including the following:
(a)experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder; [45] or
(b)experiencing a category 1B stressor before the clinical onset of posttraumatic stress disorder;[46] or
(c)living or working in a hostile or life-threatening environment for a period of at least four weeks before the clinical onset of posttraumatic stress disorder.[47]
[45] Statement of Principles concerning posttraumatic stress disorder No. 82 of 2014, Factor 6(a)
[46] Ibid, Factor 6(b)
[47] Ibid, Factor 6(c)
The definitions of the terms ‘category 1A stressor’, ‘category 2A stressor’ and ‘a hostile or life-threatening environment’ are contained in section nine of the 2014 PTSD SoP.
"a category 1A stressor" means one of the following severe traumatic events:
(d)experiencing a life-threatening event;
(e)being subject to a serious physical attack or assault including rape and sexual molestation; or
(f)being threatened with a weapon, being held captive, being kidnapped, or being tortured;
"a category 1B stressor" means one of the following severe traumatic events:
(g)being an eyewitness to a person being killed or critically injured;
(h)viewing corpses or critically injured casualties as an eyewitness;
(i)being an eyewitness to atrocities inflicted on another person or persons;
(j)killing or maiming a person; or
(k)being an eyewitness to or participating in, the clearance of critically injured casualties;
"a hostile or life-threatening environment" means a situation or setting which is characterised by a pervasive threat to life or bodily integrity, such as would be experienced in the following circumstances:
(a)experiencing or being under threat of artillery, missile, rocket, mine or bomb attack;
(b)experiencing or being under threat of nuclear, biological or chemical agent attack; or
(c)being involved in combat or going on combat patrols;
The material does not point to the applicant experiencing a category 1A stressor or category 1B stressor. The material also does not point to the applicant “living or working in a hostile or life-threatening environment for a period of at least four weeks” in terms of factor 6(c) of the 2014 PTSD SoP. The applicant’s evidence is that he undertook patrols for the President as a part of his protective team for a few days at a time. This would not meet the minimum four week threshold. I have also considered whether the applicant’s overall service in East Timor between May and November 2003 would meet the requirement in the SoP; there is no evidence of the applicant living or working in a hostile or life-threatening environment for a period of at least four weeks during his service.
I am now required under section 120(1) of the Act to consider whether I can be satisfied beyond reasonable doubt that the PTSD condition was not defence-caused. In Forrester v Repatriation Commission [2013] FCA 898, Mortimer J at [80], in discussing the fourth step in Deledio, has referred to “the very high level of satisfaction required to reject a veteran’s claim at [this] stage”. After my review of the evidence I have come to the conclusion that there is no evidence which would enable me to be satisfied beyond a reasonable doubt that the PTSD condition of the applicant was not defence-caused.
The applicant’s diary entry for 3 July 2003 outlines in dot points the applicant’s experience overnight between 10pm and 5am, and this account aligns with the applicant’s oral evidence. Health professionals who consulted with the applicant and produced reports, as outlined above, repeat similar narratives of the village incident, with small variations; e.g. in Professor Morris’ report, he states the applicant “experienced incoming rounds of pistol and rapid fire”[48]. I consider these variations minor and the story is largely consistent; I find the variations to stem from the retelling of the story and believe the truth of the story is not diminished by any slight variation. I find that slight variations can be expected in written accounts by health professionals who have summarised a factual scenario for the purposes of a mental health evaluation rather than for the purpose of determining whether the scenario is truthful, especially where it is the cornerstone of a later proceeding, such as this before the Tribunal.
[48] Exhibit E, Report of Professor Philip Morris dated 14 April 2016, p. 2
The respondent submits that the evidence regarding this particular event is not persuasive. The respondent highlights the fact that there are contradictory statements of Mr Elm and that Mr Elm’s evidence cannot be weighed highly because he admitted in cross-examination that the applicant and himself had a conversation about the events prior to completion of the latter statutory declaration. However, even if this concession was made the Tribunal is not satisfied that what Mr Elm said was not true.
The respondent submits that the statement of Paul McLean is not of assistance in clarifying the events as claimed by the applicant. The respondent points to the fact that the applicant has claimed he lodged incident reports, with the UN and AFP. In searches undertaken by Comcare, in relation to a separate claim, no records of lodgement of the incident reports or any other accounts of the incident were found.
It is quite probable that the applicant and Mr Elm did have discussions about particular incidents of note that occurred in his peacekeeping service, even if in the undated statement Mr Elm notes that they did not discuss “life threatening problems”.[49] This reference to “life threatening problems” would not be sufficient to include an instance where there was a “perception of threat”.
[49] Exhibit D, Witness statement of Mark Elm, undated, p. 4
I do not consider the omission of other events from the applicant’s diary as indicative of the diary being unreliable. I find the applicant’s diary to be a contemporaneous and accurate account of events that occurred in 2003.
2.DEPRESSIVE DISORDER
There is no issue that the applicant has been previously diagnosed with major depressive disorder. Dr Danesi, Consultant Psychiatrist, in his report of 2 December 2013 has diagnosed this condition. Associate Professor Macleod in his supplementary report of 27 July 2016 has confirmed a prior diagnosis of a major depressive disorder. Professor Philip Morris in his report of 14 April 2016 reported that the major depressive disorder of the applicant is largely resolved.
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.
I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD
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Associate
Dated: 31 May 2017
Date(s) of hearing: 10 October 2016, 17 October 2016 Date final submissions received: 17 November 2016 Advocate for the Applicant: Mr Joe Russell Respondent: Mr Bruce Williams
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