Lloyd and Repatriation Commission

[2006] AATA 335

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 335

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/925

VETERANS’ APPEALS DIVISION		)
Re		CLIVE LLOYD

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date10 April 2006

PlaceBrisbane

Decision The applicant’s alcohol abuse/dependence condition is not related to his defence service. The decision under review is affirmed to that extent.

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

SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – veterans’ entitlements – application for a disability pension – applicant was subject to a number of assaults during service – applicants accepted alcohol abuse/dependence condition is not causally related to his service

Veterans Entitlements Act 1986 s 120

Lees and Repatriation Commission [2006] AATA 2

Lees v Repatriation Commission (2002) 125 FCR 331

Repatriation Commission v Cornelius [2002] FCA 750

Robertson v Repatriation Commission (1998) 50 ALD 668

Youngnickel v Repatriation Commission [2004] FCA 1691

REASONS FOR DECISION

10 April 2006 Senior Member B J McCabe

introduction

1.      Clive William Lloyd is the applicant in these proceedings. Mr Lloyd claims he was the victim of a series of assaults while he served in the navy. The respondent accepts the applicant now suffers from generalised anxiety disorder (GAD) as a result of those experiences. It also acknowledges he has an alcohol abuse/dependence condition, although that condition may be in remission.

2.      Mr Lloyd has applied for a disability pension under the Veterans Entitlements Act 1986 (the VEA). The respondent rejected the claim. It says the applicant’s alcohol abuse and dependence condition is not causally linked to his defence service because he is unable to satisfy the relevant statement of principles (No 77 of 1998) (the SoP). The applicant has asked the Tribunal to review the decision.

the material before the tribunal

3. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. The following documents were also tendered in evidence and taken into consideration for the purposes of this decision:

·Statement of the applicant dated May 2005 (exhibit 2);

·Report of Dr Mulholland dated 28 July 2005 (exhibit 3);

·Report of Writeway Research Service dated 18 September 2005 (exhibit 4);

·Report of Dr Likely dated 16 November 2005 (exhibit 5);

·Report of Dr Mulholland dated 20 January 2006 (exhibit 6).

4.      The hearing commenced in Townsville on 13 October 2005. The applicant gave evidence. The hearing was adjourned at the request of the parties so they could obtain further medical evidence in light of the applicant’s testimony. When the hearing resumed on 14 March 2005, the Tribunal was provided with supplementary reports from Dr Mulholland and Dr Likely.

5.      The applicant was represented by Mr Honchin. The respondent was represented by Mr Stoner at the first hearing, and by Mr Smith at the resumed hearing.

the facts

6.      The applicant joined the navy on 8 January 1964. He was 16 at the time. He was trained as a cook. He was subsequently married.

7.      Mr Lloyd says he was assaulted by another sailor in December 1973. I will not dwell on the details of the assault; suffice to say the applicant was intensely distressed by the experience. The applicant says it was the first of a series of assaults at the hands of the same individual.

8.      The applicant claimed he was not a heavy drinker before the assault in December 1973. He said the experience caused him to start drinking heavily shortly after the Christmas break. He said he resisted seeing his wife and would only go home when he was already intoxicated.

9.      The applicant was posted to HMAS Oxley, a submarine, in 1974. He said in his statement that he had a number of encounters with the sailor who assaulted him, who was posted to the same vessel.

10.     The applicant said in his statement that he would sneak bottles of rum onboard the submarine.  He was consuming up to a bottle each day by mid 1974. Around the same time, he said he started to make his own alcoholic brew using brasso, a loaf of bread and some fruit juice.

the law

11.     There is no doubt the applicant suffers from GAD and alcohol abuse/dependence. That is clear from the medical evidence, and I understand it is accepted by the respondent. It has also been accepted that the applicant’s GAD condition is related to the conditions of his defence service. The question in these proceedings is whether the alcohol abuse/dependence condition is also related to his defence service.

12.     The application must be assessed in accordance with the procedure laid down in s 120 of the VEA.

13.     The applicant says his drinking problem started because of the distress associated with the assaults. In order to accept a claim, the decision-maker must be satisfied the applicant conforms to the template set out in the SoP related to alcohol abuse/dependence. The SoP provides (relevantly) that applicant must either:

·be suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence (factor 5(a)); or

·experience a severe stressor within the two years immediately before the clinical onset of alcohol abuse (factor 5(b)).

14.     I will deal with factor 5(a) first. Does the evidence suggest the applicant was already suffering from GAD before the onset of the alcohol abuse/dependence condition?

15.     Mr Honchin took me to the SoP for the alcohol abuse/dependence condition, and to the terms of the SoP relating to anxiety disorders. He pointed out the definition of GAD in the latter SoP meant the condition could not be diagnosed until the specified symptoms had been present for at least six months. He also pointed out the definition of alcohol abuse/dependence in the SoP required that a number of identified symptoms be present within a 12 month period before a diagnosis of dependence or abuse could be made. He went on to argue that if both conditions had their genesis in the assault in December 1973, the time frames envisaged in the SoPs necessarily meant GAD could be diagnosed 6 months before the alcohol abuse/dependence condition.

16.     I do not think that necessarily follows. The time limit in the SoP relating to GAD requires that the conditions persist for six months before they can be given a particular diagnostic label that distinguishes the condition from a condition with the same symptoms that persisted for less than six months. The alcohol abuse/dependence SoP time limit performs a different function. It requires that the applicant experience a cluster of symptoms. The 12 month time limit merely delineates the maximum time over which the cluster may be spread. If enough of the symptoms are clustered tightly together over a shorter period, the diagnosis may be made without waiting for the full twelve months. Dr Mulholland appears to have proceeded on that basis: he says the diagnosis of an alcohol abuse/dependence condition could be made about seven months after the incident which triggered the heavy drinking. I think he was right to do so. Dr Likely’s report also proceeds on that basis, although he concludes the date of onset was closer in time to the assault.

17.     There is no short-cut available to the applicant: one must examine all of the evidence and ask whether in fact the date of onset of GAD preceded the onset of the alcohol dependence/abuse condition. The medical evidence is particularly important.

18.     Dr Likely’s supplementary report took into account his earlier notes as well as the transcript of Mr Lloyd’s evidence before the Tribunal and his statement. Dr Likely concluded the applicant was exhibiting clinically significant symptoms of anxiety from December 1973 onwards. Dr Likely noted the applicant referred to the presence of an anxious and apprehensive mood, a sense of constantly being worried, keyed up and on edge, and having poor sleep. He expressed the opinion that the applicant would be able to satisfy the SoP relating to GAD from that point – ie, that a diagnosis could be made at the time of the original assault in December 1973. He said the applicant started to drink heavily at about the same time, and a diagnosis of alcohol abuse/dependence could also be made then.

19.     Dr Mulholland’s report of 20 January 2006 was prepared having regard to the transcript, the applicant’s statement and Dr Likely’s supplementary opinion. Dr Mulholland opined that the alcohol abuse/dependence condition probably had its onset in mid 1974. He said the anxiety condition became fully developed during 1975.

20.     Branson J in Repatriation Commission v Cornelius [2002] FCA 750 cited with approval an explanation of the concept of clinical onset offered in Robertson v Repatriation Commission (1998) 50 ALD 668. Her Honour agreed (at paragraph 26) a condition had its onset:

..when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present...

21.     The Full Court pointed out in Lees v Repatriation Commission (2002) 125 FCR 331 at 337 per Heerey, Moore and Kiefel JJ that all of the symptoms or indicia required to make a diagnosis must be present within the time frame contemplated by the SoP – in this case, within a two year period: see also Youngnickel v Repatriation Commission [2004] FCA 1691 at paragraphs 30-31 per Bennett J.

22.     I accept the evidence establishes a diagnosis of alcohol abuse/dependence could properly be made by mid-1974. But when can the diagnosis of GAD be made? I have already pointed out Dr Likely opined that the condition had its onset early in 1974. His report goes through the evidence in some detail to establish that a diagnosis could be made comparatively early.

23.     Mr Smith pointed out in his submissions that a careful reading of Dr Likely’s report shows references to only two symptoms of GAD evident during this period (a sense of constantly being worried, keyed up and on edge: and having poor sleep) when the SoP requires at least three from a list of six. Mr Honchin suggested there was other evidence establishing the applicant was, for example, fatigued at the relevant time. Mr Honchin referred me to the applicant’s testimony (transcript at p 10, line 35) in which the applicant appeared to agree he was experiencing declining energy levels but I do not accept the whole of his evidence discloses declining energy levels during that period. A few lines later in the transcript, he goes on to detail the punishing workloads of a cook aboard a submarine. He apparently handled this burden without difficulty.  That is not consistent with someone who was experiencing fatigue or difficulty concentrating. The applicant also agreed his lack of motivation was not affecting his work.

24.     After reviewing all of the evidence, I am unable to conclude the applicant’s GAD manifested itself as a diagnosable condition before the alcohol abuse/dependence condition. I accept both conditions had their genesis in the same event, but that conclusion on its own does not satisfy the requirements of the SoP.

25.     The other route for establishing a causal connection between the applicant’s defence service and his condition requires that I identify a severe stressor arising out of his service. This stressor must occur within a year before the onset of the alcohol abuse/dependence condition.

26.     The definition of severe stressor is set out in the SoP relating to alcohol abuse/dependence. I will not reproduce it in detail here. It is plain the assault in December 1973 does not fit within the definition. While the applicant’s bodily integrity was compromised in the course of the assault, there was no threat of serious injury or death and there was no suggestion the event could “evoke intense fear, helplessness or horror”. The events are better described as psycho-social stressors.

27.     Mr Honchin noted there were two other incidents that might satisfy the definition of severe stressor for the purposes of the SoP. The first incident occurred in 1975. The applicant says he was trapped in a freezer aboard the submarine while he was loading stores. The door became stuck. It was very cold but he indicated in his account of the incident (transcript, pp13-14) he expected someone to come along and find him shortly. He agreed he became panicky and was shaken up by the incident. While I accept the experience was unpleasant and stressful, I do not accept the experience would be sufficiently severe to constitute a severe stressor for the purposes of the SoP. I am satisfied a person in the applicant’s shoes with his experience and training would have been upset by the experience, but not unduly so. His experience can be contrasted with that of the seaman in Lees and Repatriation Commission [2006] AATA 2. In that case, the sailor had reason to believe no one would return for him before he froze to death.

28.     The other incident occurred while the applicant was aboard a submarine in about 1975. The submarine was snorkeling – a process which permits the submarine to run its diesel engines without surfacing. The applicant was asleep in a berth in the after-end when the order was given to stop snorkeling. The sailors overseeing the process did not follow the required procedures and the area where the applicant was sleeping filled with diesel fumes. The applicant said he woke up with an oxygen mask over his face after he had been pulled clear of the area. He did not realise what had been going on.

29.     I think there is some difficulty fitting this experience within the definition of severe stressor in the SoP given the applicant was not conscious of it as it occurred. But even if I were satisfied the event itself could properly be characterised as a severe stressor, it came after the date of onset of the alcohol abuse/dependence condition. It follows the incident does not assist the applicant’s case.

conclusion

30.     The applicant’s alcohol abuse/dependence condition is not related to his defence service. The decision under review is affirmed to that extent.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe

Signed:         Adam Ryan
  Associate      Adam Ryan

Date of Hearing  13 October 2005 & 14 March 2006
Date of Decision  10 April 2006
The applicant was represented by Mr Honchin of Counsel.
The respondent was represented by Mr Stoner at the first hearing and by Mr Smith at the resumed hearing, both departmental advocates.