Mackay and Repatriation Commission
[2002] AATA 633
•30 July 2002
DECISION AND REASONS FOR DECISION [2002] AATA 633
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/1780
VETERANS' APPEALS DIVISION )
Re Maurice Mackay
Applicant
And Repatriation Commission
Respondent
DECISION
Tribunal Mr RP Handley, Deputy President
Date30 July 2002
PlaceSydney
Decision The Tribunal sets aside the decision under review and substitutes a new decision as follows: 1. The Applicant's claims in respect of Psychoactive Substance Abuse or Dependence and Alcoholic Liver Damage are accepted. 2. The Applicant's claims in respect of Post Traumatic Stress Disorder, Depressive Disorder and Generalised Anxiety Disorder are refused. 3. The Applicant is eligible for payment of pension at the Special Rate from 4 June 1995.
..............................................
R P Handley
Deputy President
CATCHWORDS
REPATRIATION COMMISSION – Disability pension - Special Rate of Pension – whether post traumatic stress disorder a war-caused disease - whether psychoactive substance abuse and dependence a war-caused disease – whether alcoholic liver damage a war-caused disease – whether general anxiety disorder a war-caused disease - whether veteran experienced a severe stressor – diagnosis to be established to reasonable satisfaction of decision-maker – requirement that the decision-maker have regard to the relevant Statement of Principles – held that the decision under review be set aside – new decision substituted.
Veterans' Entitlement Act 1986 ss 6, 9(1), 13(1), 22
Guide to the Assessment of Rates of Veterans' Pensions
Statement of Principle 15/1994 as amended by 225/1995 - Post Traumatic Stress Disorder
Statement of Principle 5/1994 - Psychoactive Substance Abuse
Statement of Principle 3/1994 - Depressive Disorder
Statement of Principle 48/1994 as amended by 275/1995 – General Anxiety Disorder
Banovich v Repatriation Commission (1986) 69 ALR 396
Benjamin v Repatriation Commission [2001] FCA 1879
Birtles v Repatriation Commission (1991) 105 ALR 359
Budworth v Repatriation Commission and Benjamin v Repatriation Commission (S13/2002 (21 June 2002))
Byrnes v Repatriation Commission (1993) 177 CLR 564
O'Neill v Repatriation Commission [2001] FCA 1492
Re Boardman and Repatriation Commission [2001] AATA 764
Re Budworth and Repatriation Commission [2000] AATA 127
Re Chaplin and Repatriation Commission [2000]] AATA 688
Re Howe and Repatriation Commission [1999] AATA 1006
Re Kelly and Repatriation Commission [2001] AATA 254
Repatriation Commission v Binding [1999] FCA 974
Repatriation Commission v Budworth [2001] FCA 1421
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio [1998] FCA 391
Repatriation Commission v Gorton [2001] FCA 1194
Repatriation Commission v Keeley (2000) 98 FCR 108
REASONS FOR DECISION
30 July 2002 Mr RP Handley
This is an application by Maurice Mackay ("the Applicant") for a review of a decision of the Veterans' Review Board ("the VRB") made on 30 September 1998 which (1) affirmed a decision of a delegate of the Repatriation Commission ("the Respondent") dated 4 March 1996 to refuse the Applicant's claim in respect of post traumatic stress disorder ("PTSD") and psychoactive substance abuse and dependence, and (2) affirmed a decision of a delegate of the Respondent dated 12 June 1996 to refuse the Applicant's claim in respect of alcoholic liver damage.
At the hearing, the Applicant was represented by Neale Dawson, of Counsel, and the Respondent was represented by Rhonda Henderson, of Counsel. The Tribunal had before it the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents"), together with the documents tendered by the parties. The Applicant and Commodore Philip Mulcare gave oral evidence and Dr WD Wade and Dr Robert D Lewin gave evidence by conference telephone.
BackgroundThe Applicant was born on 25 July 1936 and is aged 66. He served in the Australian Navy from 18 December 1958 to 10 December 1968 and from 12 July 1972 to 21 December 1984. The Applicant's service in Vietnam from 27 May 1965 to 26 June 1965 and from 20 September 1965 to 30 October 1965, counts as "operational service" as does his service in Malaysia from 31 August 1965 to 7 September 1965, from 6 November 1965 to 29 November 1965, from 16 December to 20 December 1965, and from 4 January 1966 to 5 February 1966. The Applicant's service from 7 December 1972 to 28 December 1984 counts as "defence service".
On 4 September 1995, the Applicant lodged a claim for disability pension in respect of a number of conditions including "nerves and substance abuse". That part of the claim was treated as being in respect of PTSD and pyschoactive substance abuse or dependence. On 4 March 1996, a delegate of the Respondent decided to refuse the Applicant's claim for PTSD and psychoactive substance abuse or dependence but accepted his claim in respect of chronic solar skin damage and bilateral sensori neural hearing loss with tinnitus. The delegate decided that a disability pension would be granted to the Applicant at 40% of the General Rate with effect from 4 June 1995. On 26 April 1996, the Applicant lodged a further claim in respect of liver damage. That claim was refused by a delegate on 12 June 1996. On 13 May 1997, a review officer decided not to intervene to conduct an internal review. On a further review of the decision by the VRB on 30 September 1998, the VRB decided to affirm the decisions. However, the VRB also decided to set aside that part of the decision dated 4 March 1996 in respect of the Applicant's claim for chronic airflow limitation and substituted a decision that the condition was "war-caused". The VRB remitted the matter to the Respondent for assessment of the rate at which pension was to be paid.
On 17 December 1998, the Applicant lodged an application with the Tribunal for a review of the VRB decision. On 16 June 2000, the Tribunal set aside the VRB decision and substituted a decision in the following terms:
(a)that part of the decision of the Respondent dated 4 March 1996 which rejected the Applicant's claim in respect of PTSD and psychoactive substance abuse is affirmed; and
(b)the Respondent's decision dated 12 June 1996 rejecting the Applicant's claims in respect of alcoholic liver damage and other conditions is affirmed;
(c)the Applicant is entitled to pension for incapacity occasioned by chronic airflow limitation as and from 4 June 1995; and
(d)the Applicant is entitled to pension for incapacity occasioned by the diseases of chronic airflow limitation, chronic solar skin damage and bilateral sensori neural hearing loss with tinnitus at the rate of 100% of the General Rate as and from 4 June 1995.
On 14 July 2000, the Applicant lodged a Notice of Appeal against this decision in the Federal Court. On 27 October 2000, the matter was remitted to the Tribunal by consent with a direction that the matter be reheard and decided again with the hearing of further evidence.
Applicable LegislationA war-caused injury or disease is defined in s 9(1) of the Veterans' Entitlement Act 1986 ("the Act"). The definition includes an injury suffered or a disease contracted by the veteran resulting from an occurrence that happened while the veteran was rendering operational service as defined in s 6. Section 13(1) provides that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
Section 21A provides for the Respondent to "determine the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions", which is currently in its fifth edition ("GARP"). Section 22 provides that pensions by way of compensation are paid to veterans who have attained the age of 65 at a percentage of the maximum General Rate of pension payable which constitutes the same percentage as the degree of incapacity determined by the Respondent in accordance with s 21A. However, a veteran may be entitled to payment of pension at a high Intermediate or Special Rate if certain criteria, as set out in ss 23 and 24 respectively, are fulfilled.
The standard of proof to be applied in relation to operational service in determining whether an injury or disease was war-caused is that provided for in subsections 120(1) and (3). Pursuant to these provisions, if the injury or disease relates to operational service, the Respondent shall determine that the injury or disease was war-caused unless it is satisfied beyond reasonable doubt that the material before it does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the person's service.
Subsection 120(4) provides that except in making a determination to which subsections (1) or (2) apply (subsection (2) is not relevant in this matter), the Respondent shall decide any other matter arising under the Act or the regulations "to its reasonable satisfaction". Because the Applicant's claim was lodged after 1 June 1994, s 120A of the Act applies. This requires that where the Repatriation Medical Authority has determined a Statement of Principles ("SoP") in respect of a particular injury or disease, the Respondent (and therefore the Tribunal) must have reference to that SoP.
Applicants EvidenceThe Applicant said he left school in Melbourne at the age of 14 and had short term employment working with a photographic firm and then in a garage doing mechanical work before commencing an apprenticeship as a fitter and turner at the Naval Dockyard. In January 1956, he was called up for national service and underwent four months full-time training. He then returned to finish his apprenticeship, continuing to serve in the Naval Reserve in the meanwhile. In December 1958, he joined the Navy as a qualified tradesman and underwent three months basic training.
The Applicant served on HMAS Melbourne from 30 June to 19 July 1959 while the ship was in refit in Sydney, then on HMAS Voyager from 20 July 1959 to 6 November 1959, the first two months being spent "alongside" in Sydney, and on HMAS Melbourne from 7 November 1959 to 13 December 1959. When he served on HMAS Voyager for a few months, he already knew between six and 12 of the crew whom he had met previously, some in recruit school.
After completing his training, the Applicant served on HMAS Melbourne from 1 August 1960 to 24 November 1962 when he returned to HMAS Cerberus for further shore training. HMAS Voyager was lost on 10 February 1964. On 28 June 1964, the Applicant joined HMAS Duchess and over the next two years saw operational service in Malaysia, Singapore, Brunei and Vietnam. In December 1966, the Applicant commenced a shore posting at HMAS Kuttabul at Garden Island in Sydney and completed his nine year engagement on 17 December 1967. He commenced a year's full-time reserve service on the following day and left the Navy on 17 December 1968.
The Applicant re-entered the Navy on 12 July 1972, serving until 21 December 1984. During this period, he served on the following ships: from 8 January 1973 to 29 September 1975, on HMAS Melbourne; from 19 July 1976 to 11 October 1976, on HMAS Yarra; and from 16 December 1977 to 7 June 1981 on HMAS Yarra.
The Applicant said when he joined the Navy in December 1958, he only drank alcohol occasionally. He has no recollection of drinking regularly until 1965 after his second trip to Vietnam. After this second trip, he became obsessed by alcohol and drank to ease his tension when he had difficulty coping.
On his first trip to Vietnam, the Applicant was serving on HMAS Duchess which, together with HMAS Parramatta, escorted HMAS Sydney on her first trooping voyage to Vietnam. The Applicant said his post was in the transmitting station, midship, down below through three hatches. Because the ship was at defence stations, this was a sealed section and the hatches could only be opened from the inside with some difficulty using a spanner. He was afraid that if the ship was hit and he was injured, he might not have the strength to open the hatch. He said the transmitting station was a small area, about 12 or 14 feet by 18 feet in size, with a low deck head of about 8 feet. The area was full of computers and, at any one time, between three and five personnel, including himself, would be present. His role was to maintain the equipment. The Applicant said he was afraid of a collision occurring, having previously served on HMAS Voyager and lost quite a few friends when HMAS Voyager was sunk in February 1964. He was concerned that the same thing might happen to him.
The Applicant said a few things stand out in his memory from his first trip to Vietnam. For example, when HMAS Duchess was anchored in Vung Tau Harbour, he remembers this as a frightening experience because of scare charges exploding near the ship. The closer to the ship that a charge explodes, the more conscious a person is of it. The explosions made him think of the ship being mined and, therefore, he reacted with fear. The Applicant said he also remembers action taking place ashore, in particular, seeing tracer fire on a hill in the distance, perhaps three or four kilometres from HMAS Duchess. The destroyer USS Preston was lying astern of HMAS Duchess, between two and four ship lengths away, and was bombarding areas on land reasonably close by. He watched the USS Preston bombarding a hill over a period of an hour or so. There were loud explosions every couple of seconds.
The Applicant remembered a number of other frightening incidents. On the first trip to Vietnam, he recalled that he had been told by one of the watch keepers that HMAS Duchess had sailed without navigation lights and he was aware that the ship had, at times, altered course to port and then to starboard on a regular basis, although he acknowledged that this might not be described as a zigzag course. This was when HMAS Duchess was in the company of two other large ships and, at night, when they could not see these ships, this made him fearful of a collision.
On another occasion when he was resting in his bunk, the ship altered course sharply to port and then to starboard and the Applicant heard a loud thud on the starboard side around the part of the ship where he slept. He said "this frightened the hell out of me" because he was fearful of being involved in a collision at sea. This happened in the middle of the night and, after the thud, the lights went on and he went up to the main deck to see what had happened. HMAS Duchess had been hit on the starboard side by an Indonesian kumpit. A seaman was trying to attach a line to the kumpit which was sinking. The crew unloaded the kumpit to lessen its weight and installed drums to keep it afloat and canvas over the damaged area to stop the vessel taking on water. The Applicant said his nerves were pretty bad. He felt frightened and shaken up. He was panicky and sweating hot and cold as in an anxiety attack. He said this incident re-enforced his fear of a collision and for sometime afterwards he felt a dread of the ship being rammed. He said he still has dreams and thoughts about this and of being trapped in the ship and being unable to escape. He imagines being trapped below deck for several days and being unable to get out. He said he has these dreams sometimes once a week, sometimes once a fortnight, and then occasionally a couple of nights in a row.
The Applicant also remembered HMAS Duchess being confronted by an Indonesian cruiser and being near the point of engagement. He said a buzz went around the ship about this and his impression was that a confrontation was imminent. He acknowledged that he may have got the wrong impression but he was closed up in the transmitting station at the time. He said the guns were loaded and at half cock, ready to fire, and the ship was at defence stations. The Applicant also recalled that while serving on HMAS Duchess in Borneo, in about January 1966, the guns had been fired on several occasions. They bombed Indonesian positions on three occasions and put ashore a contingent of Royal Marine Commandos. This took place in the same month as the collision with the kumpit. The Applicant said he was under the impression that they were at war with the Indonesians. Because it was unlawful for the crew to keep a log or diary, it is difficult to remember exact dates.
The Applicant said he started drinking heavily in about October 1965, after the second trip to Vietnam, when on leave in Hong Kong. He drank for three days without stopping and, thereafter, would drink excessively whenever he was onshore in order to "wipe himself out". He found that if he drank, he did not get the anxiety attacks. He said his drinking was largely done on shore when he was on leave. Alcohol would only occasionally be distributed to the crew while on the ship at the order of the Captain. During his shore posting at HMAS Kuttabul at Garden Island, he drank 15 to 20 schooners a day, mostly at night, but he occasionally also drank at lunchtime.
After leaving the Navy in December 1968, the Applicant continued drinking heavily. He got a job as a tradesman in a workshop at the University of New South Wales. His job was to use his skills as a fitter and turner and to build things that he was asked to build. He drank at night and sometimes also at lunchtime. After working at the University for a while, he got a job at the CSRIO because the pay was better, and then he decided to rejoin the Navy because his marriage was precarious as a result of his drinking. The Applicant said he had no particular feedback from either the University or CSIRO about his work performance. He said he occasionally missed a day or two at work as a result of his drinking. He hoped that by rejoining the Navy, things would improve. In any event, the pay was better and he felt he knew what he was doing. Also, because the Vietnam War had ended, he felt a lot more confident.
The Applicant re-entered the Navy on 12 July 1972 as a Chief Petty Officer, undertaking technical work involving weaponry. The Applicant said that, on re-entry, he did not know to which ship he would be assigned but, at that stage, overseas trips had been reduced to a maximum of three months. Previously, overseas trips might be of as long as nine months duration with very little leave. Rejoining did not, however, change his drinking. He continued to drink heavily when he could, although this was mostly onshore because this was usually impossible at sea. By 1984, when he asked to be discharged, his drinking pattern was chronic. He said he had lost confidence in his ability to do his job.
The Applicant stayed in the Navy until 1984 to give him 20 years service which would ensure that he received a pension. He tried to line up a maintenance job for himself at Cuckatoo Island, but this did not eventuate because of his lack of confidence. By then, he was divorced and had a property settlement with the proceeds of which, in 1984, he bought a yacht with the idea of chartering it and taking people out on cruises. Ultimately, he was unable to do this because of his drinking. Before buying the yacht, the Applicant had had no experience of skippering, so he attended Sydney TAFE for some months in order to learn seamanship and navigation. He acknowledged that this course could have been over as long as a 12 month period. Although he eventually grasped seamanship, he failed his navigation exam and pulled out of the course. Thereafter, he sought out people to help him sail the yacht. He wanted to work at this time and missed the comraderie of working. He was keen to get a job but he felt a failure which robbed him of his confidence and self-esteem. He agreed that thinking he would be able to skipper a boat was over ambitious but he said he did it to try and maintain his sanity and keep himself occupied. After about six months, he realised that chartering was not going to succeed and once again felt he had failed.
At this time, he was living on his yacht on a modest pension. He managed but it was a struggle. The Applicant said he married for the first time in about 1965/1966 and had two children by that marriage. His son committed suicide last year, and his daughter, who is aged 35, lives in France with her French husband and their two children. He sees very little of her, although they occasionally speak on the phone. The Applicant said after his marriage broke up in about 1981/1982, he left his ex-wife living in their matrimonial home, and he lived in a naval flat until about 1984/1985. After his divorce, he joined "Parents without Partners" through which, about two years later, he met Joyce, who is now his second wife. His wife also has children by a previous relationship.
The Applicant said he moved to Coffs Harbour in about 1987 and his wife came with him, at first living with him on his yacht at the marina. They were married in 1992 but have no children by their relationship. The Applicant moved to Coffs Harbour because his elderly parents had relocated there from Melbourne. His mother became ill and he felt it was his duty to be near them and, anyway, he liked the climate in Coffs Harbour. He said it was just a matter of being there for his parents and occasionally he assisted his father with caring for his mother. After leaving the Navy, the Applicant saw doctors from time to time in Sydney, but Dr Steven Williams has been his GP in Coffs Harbour for the last 15 years. On one occasion, however, on the recommendation of the Vietnam Veterans Association, he saw Dr Harry Pope in Fairfield because he was in Sydney at the time, and it was Dr Pope who referred the Applicant to Dr Guirgis.
The Applicant said Dr Williams has not referred him to a psychiatrist, although he may have recommended that the Applicant should see one. He did persuade the Applicant to see Mr Adrian Bradley, a psychologist, about 12 to 14 years ago. The Applicant saw Mr Bradley on several occasions and Mr Bradley persuaded him to attend Alcoholics Anonymous in Coffs Harbour which he did for a while. This did not, however, help. He was "off the grog" for a week but said he sat around crying and found that the drinking soothed him.
While in the Navy, in about 1981/1982, the Applicant was admitted to HMAS Penguin, a naval hospital, for treatment in respect of his alcohol addiction. It was a friend, Commander Miller, who persuaded him to go to Penguin and who took him there. He saw various doctors there and was put on valium for a while. The Applicant was referred to a report prepared by his Commanding Officer ("CO"), dated 6 October 1982, prepared at the time of his admission to HMAS Penguin (T p269). The Applicant agreed with his CO's comment that he was a friendly person and had good friends of both sexes. With regard to the comment that he was a "bit of an old woman at times", the Applicant agreed with this to the extent that he tried to help others because he found this also helped him.
The Applicant also said he saw another psychologist, Mr Ian McCombie, three or four times around January 2002. Although Mr McCombie's report, dated 31 January 2002 (A1), states that the Applicant witnessed the death of others during service, the Applicant said this was incorrect. The Applicant said that the only regular treatment he has is from his general practitioner whom he sees weekly or fortnightly. He takes valium and sleeping tablets (Mogodon) as required. He avoids the latter because they make him feel dull. He also takes other medications for his gout and heart problems.
The Applicant said that when he left the Navy, he disassociated himself from his naval friends. In Coffs Harbour, he is a member of the RSL and attends the club once or twice a year, occasionally meeting someone he knew in the Navy. He marches on ANZAC Day with his father, who is now aged 91. He also sometimes sees ex-naval "shipmates" at the Anzac March and has a drink with them afterwards. When he refers to shipmates, he means those with whom he served, whom he regards as friends. The Applicant said he does not keep up with most of his shipmates, except those who live nearby.
The Applicant said that during the day he tries to involve himself with music and is learning the keyboard. He has no other real interests. He listens to the radio or to music, sometimes he mows the lawn using a "sit on mower", but he cannot even wash the car. He usually starts drinking at about 5:00 pm. He drinks about 12 stubbies of homemade beer and one or two glasses of scotch, although sometimes as many as five glasses. He would not be able to push a lawn mower because of shortness of breath as a result of his chronic airways disease. He has also had gout since about 1975 and has a heart problem for which he has had successful by-pass surgery. The Applicant said he used to go to church regularly for several years after his second marriage, but he does not go often now. He loves fountain pens and writing with them, and on one occasion wrote certificates for a fishing club and has occasionally endorsed Bibles for people.
Commodore Philip MulcareCommodore Mulcare is a Consultant for the Department of Veterans' Affairs for whom he prepares historical reports. He has no formal qualifications in history or research techniques but has developed expertise in these areas since he retired. He prepared a report with regard to the Applicant dated 27 January 2002 (R1). He joined the Navy in 1954 and retired in 1991 after 37 years of service. His service included voyages to Vietnam in 1966 and in 1970/1971. Commodore Mulcare said he did not serve on HMAS Duchess but has been on board. HMAS Duchess is a gunnery ship of approximately 3,000 tonnes and about 300 feet long. It is similar in size to the HMAS Yarra, an anti-submarine frigate on which he served which is about 270 feet long. HMAS Yarra was involved in similar escort duties. Commodore Mulcare followed similar routes to Vietnam to that followed by HMAS Duchess via the Philippines. They travelled this route without incident except that the ship hit a large log, damaging a propeller.
Commodore Mulcare said that a kumpit is a motorised wooden sanpan type boat which might be between 30 and 50 feet in length. He has no personal knowledge of the voyage of HMAS Sydney to Vietnam when HMAS Sydney was accompanied by HMAS Duchess and HMAS Parramatta. With regard to the use of scare charges in Vung Tau Harbour, Commodore Mulcare said that ships generally used scare charges when the tide was slack, with greater use being made at night. He agreed that the charges would have been dropped from the ship's boats or from HMAS Duchess itself. Some of the explosions would have been very loud, particularly below the water line and if the charge was dropped close along side the ship.
Commodore Mulcare said that service in Malaysian waters was very challenging, especially in the Malacca Straits which involved intercepting small Indonesian boats. This was always a bit risky in case those on the boats threw grenades. Thus, the Navy always took precautions because of the potential danger.
Dr M D Wade, Consultant PsychiatristDr Wade, prepared a report for the Applicant dated 9 July 1999 (T448), having interviewed the Applicant on 18 June 1999. Dr Wade confirmed that his diagnoses of PTSD, alcohol dependence, and depressive disorder were made in accordance with the criteria in DSM IV, although Dr Wade commented that the DSM IV criteria are of a conservative nature. He said the Applicant's depressive disorder is a product of his chronic untreated PTSD and, in Dr Wade's view, the Applicant's alcohol dependence grew out of his psychological distress. Dr Wade was referred to SoP No 15 of 1994 concerning PTSD. In his view, all three stressors referred to in paragraph one existed in the Applicant's case. With regard to the definition of "experiencing a stressor" in paragraph four, Dr Wade said a potential confrontation satisfies paragraph (a) of that definition and, with regard to (b), the Applicant had re-experienced intrusive recollections, for example, of being trapped. Even though he was not ever actually trapped, the Applicant saw the potential for this, especially in light of his knowledge of the sinking of HMAS Voyager.
Dr Wade also found the necessary criteria required by the definition of PTSD in paragraph 4 to be satisfied and the criteria in respect of SoP No 5 of 1994 concerning Psychoactive Substance Abuse or Dependence and SoP No 3 of 1994 concerning Depressive Disorder. Dr Wade acknowledged that there is some crossover of PTSD and Depressive Disorder symptoms. He said that PTSD can evolve into other psychological disorders but may also exist, largely unchanged, for decades. The dissociation characterisic of PTSD tends to differentiate PTSD from depression. However, PTSD can also lead to hyperactive hormonal levels which is the opposite of what is usually experienced with depression. Dr Wade said that knowledge of a particular situation can increase a person's level of anxiety. In the Applicant's case, it is his knowledge of the HMAS Voyager and her loss and his shipbuilding background that could increase his vulnerability.
In cross-examination, Dr Wade said that the onset of PTSD occurred during the Applicant's active service. The Applicant experienced an evolution of distressing symptoms during that time. With regard to PTSD and SoP No 15 of 1994, Dr Wade was asked about the stressors he had identified. He said the collision between HMAS Duchess and a kumpit appeared to be such a stressor but there were other incidents such as the confrontation with an Indonesian cruiser and the detonation of scare charges while HMAS Duchess was in Vung Tau Harbour. Dr Wade said that with the accumulation of different incidents – Vietnam, the collision, the confrontation with the Indonesian vessel – the Applicant experienced increasing symptomology. Dr Wade gave as examples the Applicant's long-term hypervigilance, an exaggerated startle response, and problems with anger and controlling anger. Dr Wade said he interpreted the word "event" in paragraph (a) of the definition of "experiencing a stressor" in clause 4 of SoP No 15 as including a perception that an event might happen.
Dr Wade said the Applicant's alcohol problem and his depression arose out of the PTSD. The Applicant's affect was one of distress which could be divined from other indicators such as changes in the level of his skills and emotions which he fought to control. This was particularly apparent in his relationships with family members, for example with his son. While depression by itself tends to lead to a slowing of physical responses, where depression is mixed with another condition, the effect can vary. Dr Wade suggested that the Applicant's history had involved a steady build-up of emotion.
Dr Robert Lewin, Consultant PsychiatristDr Lewin examined the Applicant on 31 May 1999 and prepared a report dated 1 June 1999 (T476). Dr Lewin was asked about the Applicant's admission to the Royal Australian Navy Hospital, HMAS Penguin, for 15 days in October 1982. Dr Lewin doubted that the Applicant had been admitted to Penguin for detoxification since there was nothing to indicate this; in particular, no mention of withdrawal symptoms which would normally occur within about three days. Dr Lewin said alcohol abuse is not characterised by the hallmarks of addiction or dependence: for example, a person does not generally experience psychological or physical symptoms. Heavy drinking is one symptom of alcohol abuse but not the whole complex. It is a question of when there is a transition from heavy drinking to a pattern of abuse.
Dr Lewin was referred to Dr Wade's evidence. Dr Lewin did not accept that a potential event could be regarded as a stressor, for example the potential that a collision might occur. He doubted that the Applicant's having known people who died on the HMAS Voyager was likely to be a significant factor. With regard to the Applicant's admission to HMAS Penguin, the diagnosis of reactive depression (T p271) might now, in the context of a marital breakdown, be diagnosed as an adjustment disorder. However, Dr Lewin said that in the early 1980s, benzodiazepines such as Valium or Serapax were commonly used to assist a person in withdrawing from alcohol. Nevertheless, Dr Lewin said it is perilous to draw conclusions about a person's condition based on their treatment. He noted that anxiety is commonly one of the symptoms of reactive depression.
In cross-examination, Dr Lewin accepted that there may be some factual situations where the potential for something to happen could be regarded as a stressor: it would depend on the context. Dr Lewin agreed that there is a spectrum of opinion amongst psychiatrists as to what constitutes a stressor, including whether the potential for something to happen should be so regarded. He agreed that an individual's vulnerability in different situations varies, and once, a particular event has happened, the person could be more vulnerable on the second occurrence and thus a potential situation could be sufficient to constitute a stressor.
With regard to the HMAS Voyager disaster, Dr Lewin said the fear of a similar collision happening would not in his opinion constitute either a severe stressor in terms of the most recent SoP on PTSD (Instrument No 3 of 1999) or a stressor in terms of SoP No 15 of 1994. Dr Lewin acknowledged that the Applicant might have been frightened by his experience on board HMAS Duchess in escorting HMAS Melbourne into Vung Tau Harbour. However, even though he would have experienced the detonation of scare charges, and observed tracer fire and the shore bombardment from a US warship, Dr Lewin was of the view that it was most unlikely that this would amount to a stressor because he knew what was happening. Similarly, he doubted that the collision between the HMAS Duchess and the kumpit could be said to constitute a stressor.
With regard to the definition of "stressful event" in Instrument No 5 of 1994 concerning Psychoactive Substance Abuse or Dependence, Dr Lewin accepted that the collision between HMAS Duchess and the kumpit was an event in so far as the Applicant was alarmed and suffered psychological stress as a result. However, any ongoing effect would depend on the extent to which the Applicant was reassured after the collision.
SUBMISSIONS
ApplicantMr Dawson, for the Applicant, said there are five hypotheses in issue: relating to PTSD (Instrument No 15 of 1994 as amended by Instrument No 225 of 1995), Psychoactive Substance Abuse or Dependence (Instrument No 5 of 1994), Depressive Disorder (Instrument No 3 of 1994), General Anxiety Disorder (Instrument No 48 of 1994 as amended by Instrument No 275 of 1995) and Alcoholic Liver Damage, in respect of which, there is no SoP. The Applicant relies on the evidence of Dr Francis Harding Burns (T p453) linking the Applicant's operational service, alcohol dependence and alcoholic liver damage.
Referring to the Applicant's evidence about his operational service, Mr Dawson said the change in the Applicant's drinking pattern occurred after his second trip to Vietnam when he "became obsessed with alcohol" and drank to ease his tension. Since then, the Applicant has been a chronic drinker. With regard to the Applicant's being on board HMAS Duchess in Vung Tau Harbour, he experienced fear when, as often happened, he was sealed in the transmitting station while scare charges were detonated, and when he observed tracer fire in the distance and the USS Preston bombarding the shore. In relation to the HMAS Duchess's collision with a kumpit, the Applicant's evidence was that "this frightened the hell out of me". He was panicky and sweating hot and cold, as in an anxiety attack. Mr Dawson said there is sufficient evidence to support a finding that the Applicant experienced a stressor or stressful event.
Mr Dawson referred to the Tribunal decision in Re Boardman and Repatriation Commission [2001] AATA 764 involving similar facts. He said a person's susceptibility is a factor which may be taken into account. In Re Howe and Repatriation Commission [1999] AATA 1006, the Tribunal recognised that the words "experiencing a stressor" in the SoP on PTSD means that the subjective nature of the person's experience must be taken into account. Mr Dawson said that in the present case, the Applicant's background and knowledge of the HMAS Voyager disaster made him susceptible. Dr Lewin agreed that once a particular event has occurred, a person could be more vulnerable to a reoccurrence and thus a potential situation could in certain situations constitute a stressor.
Mr Dawson noted that in Repatriation Commission v Binding [1999] FCA 974, the Applicant's response to scare charges when working below deck in the boiler room of HMAS Sydney, was sufficient to persuade the Tribunal that the hypothesis that the Applicant's PTSD was war-caused was a reasonable one. In Re Kelly and Repatriation Commission [2001] AATA 254, the Tribunal found that war stories told by the gunners on board ship evoked feelings of anxiety and distress – the Applicant became anxious, aroused, nervous and intense. The Tribunal found that hearing those stories were for him "stressful events".
Re Chaplin and Repatriation Commission [2000] AATA 688 involved a serviceman, found to have PTSD, whose station on board ship was below the waterline, in the magazine, which was secured from above while the ship was at action stations. In O'Neil v Repatriation Commission [2001] FCA 1492, at paragraph 8, North J found that whether a person experienced a stressful event is "personally peculiar and dependent upon subjective feelings" – ie must be approached subjectively. Nevertheless, it was open to the Tribunal "to reject the evidence of the Applicant or others that the alleged feelings were in fact experienced" (at paragraph 10).
Mr Dawson submitted that the hypotheses for all four SoP are reasonable in the Applicant's case, especially that for Psychoactive Substance Abuse or Dependence. He acknowledged that the application of the SoP for Depressive Disorder is more difficult in terms of drawing a distinction between this and the other psychiatric conditions at issue, in particular PTSD. He submitted that only one psychiatric condition need be found to be war-caused to enable the Applicant to be eligible for entitlement to a pension. If this is found, then the question of whether the Applicant is entitled to payment at the Intermediate or Special Rate must be considered. (See for example, Banovich v Repatriation Commission (1986) 69 ALR 396; Birtles v Repatriation Commission (1991) 105 ALR 359.)
RespondentMs Henderson, for the Respondent, said the Applicant's evidence should be dealt with cautiously because he has a tendency to exaggerate. She noted that the standard of proof to be applied in determining whether the hypothesis raised is a reasonable one is the civil standard of proof pursuant to s 120(4): the High Court has dismissed the applications for special leave in Budworth v Repatriation Commission and Benjamin v Repatriation Commission (S13/2002 (21 June 2002)), agreeing with the decision of the Full Federal Court. In Benjamin v Repatriation Commission [2001] FCA 1879, the Full Court said, at 18:
When the Commission, or the Tribunal on review, is required to determine whether a veteran is suffering from a particular injury or disease, that issue must be decided to the reasonable satisfaction of the decision-maker, in accordance with s 120(4) of the Act – Repatriation Commission v Budworth [2001] FCA 142 paragraph [15].
Ms Henderson said to be satisfied that the Applicant is suffering from PTSD, a traumatic event must have occurred, rather than just been imagined or anticipated, and that event must be persistently re-experienced. In this case, the Applicant does not claim to have re-experienced anything in relation to the HMAS Voyager incident, the incidents in Vung Tau Harbour or the collision with the kumpit. There must also be persistent avoidance of stimuli associated with the trauma. There is no evidence of such avoidance. The Applicant served his initial nine year term in the Navy plus an additional year, and then later re-enlisted for a further 12 years. After discharge, he bought a yacht which he lived on. He still associates with former shipmates. He did not seek to disassociate himself from others. For example, after his divorce, he joined "Parents without Partners" through which he met his second wife.
The condition must also cause clinically significant distress or impairment in social, occupational or other important areas of functioning. The Applicant functioned effectively while working at the University of NSW and CSIRO before re-enlisting. After re-enlisting, his CO, in a report dated 6 October 1982 (T p269), noted that the Applicant was part of a clique of divorced people.
Ms Henderson contended that whether the Applicant meets the SoP template for Psychoactive Substance Abuse or Dependence stands or falls upon whether the Applicant has PTSD. Dr Wade considered the alcohol dependence/abuse to be a consequence of PTSD in the sense that he self-medicated his symptoms with alcohol. The relevant SoP, Instrument No 5 of 1994, requires that the person experienced a stressful event prior to clinical onset. The Respondent contends this did not happen. According to the Applicant's evidence, he became obsessed with alcohol after his Hong Kong leave in 1966. However, when he was at sea, which was most of the time, he rarely had the opportunity to drink. The history of the Applicant's drinking history set out by Dr Harding Burns (report dated 15 June 1999, T p453) describes a gradual increase in the Applicant's drinking from the age of 35 to 45 and a serious increase after his divorce at the age of 45. This suggests that it was the stress of his marital break up which was the catalyst. Ms Henderson noted the reference to this in his CO's report of 6 October 1982 (T p269). It was at this time that the Applicant was hospitalised at HMAS Penguin for reactive depression and alcohol problems (T p270).
Ms Henderson submitted that the Applicant does not satisfy the SoP for alcohol abuse or dependence, nor does he satisfy the SoP for Depressive Disorder or Generalised Anxiety Disorder. For the latter two conditions, experience of a stressor or stressful event must occur not more than two years before clinical onset (see Repatriation Commission v Cornelius [2002] FCA 750). This has not been established.
With regard to whether the Applicant is entitled to payment of pension at the Intermediate or Special Rate, this is dependent upon whether a psychiatric condition is diagnosed. Ms Henderson commented on the Applicant's presentation in giving evidence as that of a "friendly, articulate good-humoured man who was not noticeably impaired in his concentration" and coped well with the hearing. Ms Henderson contended that the Tribunal should not accept that he is unable to work for eight hours or even 20 hours a week.
Application of the Law and FindingsThe first issue for the Tribunal to determine is whether the Applicant suffers from one of four war-caused psychiatric conditions identified, namely PTSD, Psychoactive Substance Abuse or Dependence, Depressive Disorder, or Generalised Anxiety Disorder, and whether he also suffers from war-caused Alcoholic Liver Damage. Secondly, if the Applicant suffers from one of these conditions, the Tribunal must determine whether he is entitled to payment of the disability pension at the Intermediate or Special Rate pursuant to ss 23 and 24, respectively, of the Act.
The steps to be followed in determining whether a person suffers from war-caused conditions where there are relevant SoPs for those conditions are those set out by the Full Federal Court in Repatriation Commission v Deledio [1998] FCA 391. The Tribunal must approach each of the four psychiatric conditions in accordance with four steps. However, a common approach can, in this case, be taken in relation to the first two steps because all four conditions are psychiatric conditions which share some common characteristics. The first step requires the Tribunal to consider all the material before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. The connection must be established to the "reasonable satisfaction of the Tribunal", pursuant to s 120(4). In the Tribunal's view, the Applicant's evidence of his having experienced stressful events during his operational service in Vietnam and Malaysia and of his symptoms thereafter, points to four possible hypotheses connecting the claimed injury with the Applicant's service.
The second step, where the material raises such a hypothesis, requires the Tribunal to consider whether there is in force any relevant SoP. In this case, there are relevant SoPs for all four conditions: PTSD – Instrument No 15 of 1994 as amended by No 225 of 1995; Psychoactive Substance Abuse or Dependence – Instrument No 5 of 1994; Depressive Disorder – Instrument No 3 1994; Generalised Anxiety Disorder – Instrument No 48 of 1994. The Tribunal acknowledges the Full Federal Court decisions in Repatriation Commission v Keeley (2000) 98 FCR 108 and Repatriation Commission v Gorton [2001] FCA 1194 concerning the revocation of SoPs and accrued rights. In this case, the parties have addressed the SoPs above, in effect at the time of the original decisions, rather than any later version.
The third step requires the Tribunal to decide, whether, in its opinion, the hypothesis raised is a reasonable one: is it consistent with the template found in the SoP? The standard of proof is that provided by s 120(4) of "reasonable satisfaction": in Benjamin v Repatriation Commission and Budworth v Repatriation Commission (S13/2002 (21 June 2002)), the High Court refused special leave and stated their agreement with the decisions of the Full Federal Court in those matters – Benjamin (supra), Repatriation Commission (supra).
PTSDWith regard to whether the Applicant's condition satisfies the template for PTSD, and with reference to the SoP, Instrument No 15 of 1994, the Applicant claims the relevant factor is "(a) experiencing a stressor prior to the clinical onset" of PTSD. Paragraph 4 of the SoP sets out relevant definitions:
4. For the purposes of this Statement of Principles:
"DSM-IV" means the fourth edition of the American Psychiatric
Association's Diagnostic and Statistical Manual of Mental Disorders;"experiencing a stressor" means the following (derived from DSM-IV):
(a) the person experienced, witnessed, or was confronted with an eventthat involved actual or threatened death or serious injury, or a threat
to the person's, or other people's, physical integrity; and(b) the person's response to that event involved intense fear,
helplessness or horror;
"post-traumatic stress disorder" means a psychiatric condition
meeting the following description (derived from DSM-IV):(a) the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with
an event or events that involved actual or threatened death or
serious injury, or a threat to the physical integrity of self or
others; and(ii) the person's response involved intense fear, helplessness, or
horror; and
(b) the traumatic event is persistently re-experienced in one or more
of the following ways:
(i) recurrent and intrusive distressing recollections of the
event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring
(including a sense of reliving the experience, illusions,
hallucinations, and dissociative flashback episodes,
including those that occur on awakening or when
intoxicated);(iv) intense psychological distress at exposure to internal or
external cues that symbolize or resemble an aspect of the
traumatic event;(v) physiological reactivity on exposure to internal or external
cues that symbolise or resemble an aspect of the traumatic
event; and
(c) persistent avoidance of stimuli associated with the trauma and
numbing of general responsiveness (not present before the trauma),
as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations
associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse
recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant
activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (eg, unable to have loving
feelings);
(vii) sense of a foreshortened future (eg, does not expect to have
a career, marriage, children, or a normal life span); and
(d) persistent symptoms of increased arousal (not present before the
trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(e) duration of the disturbance (indicated by the relevant symptoms set
out in paragraphs (b), (c) and (d)) is more than one month; and
(f) the disturbance causes clinically significant distress or impairment
in social, occupational or other important areas of functioning.
The Applicant identified a number of incidents/situations in which he claimed to have experienced fear:
(1) The Applicant was frightened of being sealed in the transmitting section when HMAS Duchess was at action or defence stations. He was afraid of being unable to escape in the event of a collision, such as that involving HMAS Voyager on which he had served for a short while, when some of HMAS Voyager's crew, whom he knew, had died. Alternatively, some other incident might occur while he was in the transmitting station, involving, for example, an explosion , which would prevent him escaping.
(2)While HMAS Duchess was in Vung Tau Harbour, the Applicant experienced fear when he heard scare charges exploding near the ship and when he watched tracer fire on a hill in the distance and USS Preston bombarding a hill.
(3)The Applicant was frightened when HMAS Duchess was hit by an Indonesian kumpit. He said the collision "frightened the hell out of me".
(4)The Applicant was frightened by what he believed to be a confrontation with an Indonesian warship.
The first issue with regard to the SoP concerning PTSD is whether the Applicant experienced a "stressor". A stressor is defined in such a way that the event experienced is a serious one and the person's response involved intense fear, helplessness or horror. As Deputy President McMahon said in Re Budworth and Repatriation Commission [2000] AATA 127 at paragraph 62, "This is an extremely high level of reaction to extremely traumatic stressors". While the Tribunal accepts that the incidents/situations described by the Applicant and set out above were potentially dangerous and that he found them frightening, the Tribunal is not reasonably satisfied that the events described had the immediacy in terms of death or serious injury or the threat thereof to constitute a stressor. The Tribunal is of the same view in relation to paragraph (a) of the definition of PTSD, the requirement that the person has been exposed to a traumatic event.
The Tribunal is supported in its finding by the evidence of Dr Lewin who did not accept that a potential threat could be regarded as a stressor, although acknowledging that a person's vulnerability might need to be taken into account where there are a number of incidents/situations which could be seen to be contributing to the person's overall state of mind. By contrast, Dr Wade considered that a potential confrontation could constitute a stressor or traumatic event. Dr Lewin, in his report dated 1 June 1999 (T p476), said, in his opinion, the Applicant "has intermittent anxiety symptoms". "It is also possible that he has a Primary Anxiety Disorder during the period of his military service".
Even if the Tribunal were to find that the Applicant experienced a stressor or was exposed to a traumatic event, the Tribunal is not reasonably satisfied that he persistently re-experiences the traumatic events (paragraph (b) of the definition of PTSD) or persistently avoids stimuli associated with the trauma (paragraph (c) of the definition). In particular, with regard to the latter, the Applicant re-enlisted in the Navy for a further 12 years from 7 December 1972 to 28 December 1984, purchased a yacht which he lived on, and still appears to maintain reasonable personal relationships with others including a few shipmates. In the Tribunal's view, the hypothesis raised is not consistent with the SoP for PTSD.
Psychoactive Substance Abuse or DependenceTurning to whether the Applicant's condition satisfied the template for Psychoactive Substance Abuse or Dependence, and with reference to the SoP, Instrument No 5 of 1994, the Applicant relies on two of the factors that must as a minimum exist to raise a reasonable hypothesis connecting the condition with the circumstances of the person's service:
(a)experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service; or
(b)having a psychiatric condition prior to the clinical onset of psychoactive substance abuse or dependence;
Paragraph 4 sets out the relevant definitions:
4. For the purposes of this Statement of Principles:
"DSM-IV" means the fourth edition of the American Psychiatric
Association's Diagnostic and Statistical Manual of Mental Disorders;
"ICD code" means a number assigned to a particular kind of injury or
disease in the International Classification of Diseases 9th Revision, US
Department of Health and Human Services, Pub. No 80-1260;
"psychiatric condition" means any psychiatric illness that attracts a
diagnosis under DSM-IV;
"psychoactive substance abuse or dependence" means a maladaptive
pattern of use, attracting ICD code 303 or 304, that is indicated by either:
(a) continued use of the substance despite knowledge of havinga persistent or recurrent social, occupational, psychological
or physical problem that is caused or exacerbated by use of
the substance; or(b) recurrent use of the substance when use is physically
hazardous (for example, driving while intoxicated);
"stressful event" means an incident in which there were external stimuli
(such as combat) that would result in psychological stress, and where
there were subjective symptoms of increased stress.
The Tribunal accepts that the Applicant experienced stressful events in Vung Tau Harbour, in particular, the scare charges being detonated while he was below water level in the transmitting station. He also experienced a stressful event when HMAS Duchess collided with an Indonesian kumpit. He gave evidence of his symptoms on that occasion: he felt frightened and shaken-up; he was panicky and sweating hot and cold as in an anxiety attack. More generally, the Applicant was frightened of being trapped below deck when the hatches were sealed, and of being unable to escape.
In so finding, the Tribunal notes the decision in O'Neil (supra), where, at paragraph 8, North J, when considering whether the Applicant had suffered a differently defined "stressful event" in relation to the SoP on Generalised Anxiety Disorder, said that whether a person has experienced a stressful event is "peculiarly personal and dependent upon subjective feelings". Thus, whether the Applicant experienced a stressful event must be approached subjectively, although as North J recognised, it would be open to the decision-maker to reject the Applicant's evidence that he did in fact experience such feelings. In the present case, the Tribunal is satisfied, on the basis of the Applicant's evidence, that he did experience these feelings. The stressful events were experienced before the clinical onset of the condition, which appears to have first manifested in the Applicant's drinking binge in Hong Kong after his second trip to Vietnam in September/October 1985.
With regard to the definition of Psychoactive Substance Abuse or Dependence in paragraph 4 of the SoP, the Tribunal is satisfied that the Applicant continues to be dependent on alcohol despite being aware of its effects. His evidence is that of drinking very heavily ever since he was discharged from the Navy in 1984, and before that when not at sea, commencing with three days of binge drinking in Hong Kong in September/October 1965. He said he was admitted to HMAS Penguin in 1982 in respect of his alcohol addiction. Currently, he starts drinking at 5:00 pm and drinks about 12 stubbies of homemade beer and one or two glasses of scotch but sometimes as many as five glasses. About 12 to 14 years ago, on the advice of a psychologist, Mr Adrian Bradley, he attended Alcoholics Anonymous for a while but found this did not help.
Further details of the Applicant's history with alcohol are set out in the report of Dr Francis Harding Burns, Psychiatrist, dated 15 June 1999 (T p453). Dr Harding Burns, who found the Applicant fulfills the criteria for Alcohol Dependence in DSM IV, stated:
There is a temporal relationship between the development of alcohol history and Mr Mackay's service in the Navy, which must be regarded as a major contributing factor to subsequent development of alcohol-related disabilities and alcohol dependence.
Dr Lewin, in his report of 1 June 1999 (T p476), stated:
It is possible that he [the Applicant] had a Reactive Anxiety Disorder during the period of his military service and that he used alcohol initially to medicate himself.
Yet he goes on to say:
I did not find any clear causal nexus between Mr Mackay's military history and the onset of his drinking problem.
Dr Lewin diagnosed Alcohol Dependence Syndrome. Dr Wade also found the Applicant to be alcohol dependent, which he considered a symptom of chronic PTSD (T p448).
The Tribunal determines that the hypothesis raised by the Applicant in relation to Psychoactive Substance Abuse or Dependence is a reasonable one. It must therefore proceed to the fourth step identified in Deledio (supra), which requires the Tribunal to consider, in accordance with s 120(1), whether it is satisfied beyond reasonable doubt that the condition did not arise from a war-caused injury. It is at this stage that the Tribunal is required to make relevant findings of fact on the evidence before it.
The Tribunal finds, on the basis of the Applicant's evidence, that he commenced drinking heavily after his second trip to Vietnam in September/October 1965. Thereafter, he drank heavily whenever he had the opportunity and, in particular, whilst on shore. His dependence on alcohol may have been exacerbated by the breakdown of his marriage and his concern over his continuing relationship with his children, but even Dr Lewin recognised that the Applicant may have had a Reactive Anxiety Disorder and used alcohol to self-medicate. Clearly, Dr Harding Burns and Dr Wade considered his alcohol dependence to be related to his operational service. In the Tribunal's view, the evidence supports a determination that it should not be satisfied beyond reasonable doubt that the Applicant's Psychoactive Substance Abuse or Dependence did not arise from a war-caused injury. Thus, the condition should be accepted as war-caused.
Depressive Disorder/Generalised Anxiety DisorderThe third hypothesis put forward by the Applicant is that he suffers from a war-caused Depressive Order and the fourth hypothesis is that he suffers from Generalised Anxiety Disorder. The relevant SoPs are, respectively, Instrument No 3 of 1994 and Instrument No 48 of 1994 as amended by Instrument No 275 of 1995. With both SoPs, in the Applicant's case, the factor which must as a minimum exist before it can be said that a reasonable hypothesis has been raised, is paragraph (b), experiencing a stressor/stressful event not more than two years prior to the clinical onset of the condition. A stressor/stressful event is defined in similar terms as meaning an occurrence that evokes feelings of anxiety or stress, which must be substantial in the case of a Depressive Disorder.
The Tribunal notes that in Cornelius (supra), at 9-10, Branson J discussed the meaning of the expression "clinical onset". The clinical onset of a condition occurs when there is some feature or symptom which enables a medical practitioner to say that the person had the condition.
In his submissions, Mr Dawson acknowledged that Dr Wade did not diagnose Generalised Anxiety Disorder, and thus Mr Dawson did not press his contention with regard to this hypothesis. With regard to Depressive Disorder he acknowledged that it is difficult for the Applicant to meet the template for "depressive disorder" as defined in the SoP. The definition requires that the person "has had two or more depressive episodes, as defined in DSM IV, separated by an interval of at least two months".
The Tribunal is not satisfied on the basis of the Applicant's submission or the evidence before the Tribunal that the Applicant experienced a stressor/stressful event not more than two years before the clinical onset of either condition. Thus, in the Tribunal's opinion, neither the third nor the fourth hypothesis is a reasonable one.
Alcoholic Liver DamageThe Applicant also claimed that his Alcoholic Liver Damage was war-caused. There is no SOP in respect of this condition. The steps to be followed in applying s 120 of the Act in such a case are those set out by the High Court (Mason CJ, Gaudron and McHugh JJ) in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571:
The position may be summarized as follows: (1) First, sub-s (3) of s 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s (1) of s 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.
Addressing the first step, in the Tribunal's view the facts do give rise to such a reasonable hypothesis. The Tribunal has found the Applicant's Psychoactive Substance Abuse or Dependence is war-caused, and Alcohol Liver Damage is a consequence of that condition. (See, for example, Dr Harding Burns, T p453.) Addressing the second step, in the Tribunal's view there are no relevant facts which disprove or are inconsistent with the hypothesis. Thus, the Applicant's claim in respect of this condition succeeds.
The Rate of Pension Payable
Since the Applicant had not turned 65 when he lodged his claim, ss 23(1) and 24(1) of the Act apply in determining, respectively, whether a pension is payable at the Intermediate Rate or Special Rate. Addressing the latter, the Applicant must satisfy the criteria set out in s 24(1) paragraphs (a), (b) and (c):
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity;
In its Statement of Facts and Contentions, the Respondent concedes that ss 23(1)(a) and 24(1)(a) are satisfied (degree of incapacity from war-caused injury or disease of at least 70%). While in its Statement of Facts and Contentions the Respondent also concedes that if the Tribunal accepts the Applicant's alcohol dependence as being war-caused, then s 24(1)(b) is satisfied (rendered incapable by war-caused injury or disease from undertaking remunerative work for periods aggregating more than eight hours a week), in its submission at the hearing, the Respondent said the Applicant's evidence about his daily routine and his overall presentation suggested that he would be able to undertake some work.
The Tribunal notes that Dr Mark Burns, Occupational Physician (report dated 7 October 1999, T p485), considered "it is obvious that he is unable to work even eight hours a week, mainly due to his alcohol problems". Dr Martha Baz, Occupational Physician (report dated 3 August 1999, T p459), said the Applicant "is unfit for work of 8 or more hours duration weekly as a result of his psychiatric impairment including his alcohol dependence".
While the Tribunal agrees that the Applicant's presentation at the hearing involved reasonably good interpersonal communication, the Tribunal is not inclined to accept that this should override the professional opinions of two Occupational Physicians. Based on the Applicant's evidence of his limited capacity to undertake daily tasks, and on the evidence of Dr Burns and Dr Baz, the Tribunal finds the Applicant would not be able to work more than eight hours a week.
With regard to s 24(1)(c), the Tribunal notes the Applicant's evidence that on discharge from the Navy in 1984, he was keen to get a job but felt a lack of confidence and self-esteem. His objective in buying a yacht was to charter it for cruises and he attended Sydney TAFE to learn seamanship and navigation. While passing seamanship, he failed his navigation exam and pulled out of the course. He said, ultimately, he failed in this endeavour because of his drinking.
Dr Burns (T p485) also makes reference in particular, to the incapacity associated with the Applicant's chronic airflow limitation, which Dr Baz notes (T p459) would, of itself, limit him to light work.
The Tribunal concludes that the Applicant's war-caused conditions, while not the only conditions from which the Applicant suffers, nevertheless, are sufficiently significant of themselves to totally and permanently incapacitate him for work for periods aggregating more than eight hours a week. Thus, the Tribunal determines that the Applicant is eligible for payment of pension at the Special Rate from 4 June 1995.
I certify that the 86 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley.
Signed: .....................................................................................
AssociateDate/s of Hearing 19 and 20 June 2002; 11 July 2002
Date of Decision July 2002
Representative for the Applicant Mr N Dawson, Counsel
Representative for the Respondent Ms R Henderson, Counsel
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