Mayield and Repatriation Commission
[2006] AATA 514
•14 June 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 514
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/796, Q2004/801
VETERANS’ APPEALS DIVISION )
Re KEVIN MAYFIELD Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms M J Carstairs, Member
Brigadier Dr G Maynard, MemberDate14 June 2006
PlaceBrisbane
Decision The Tribunal sets aside the decisions under review and substitutes the decisions that Mr Mayfield’s alcohol dependence is war caused and he is entitled to be paid intermediate rate of pension with effect from 16 November 2003.
........[Sgd].........
M J Carstairs
Member
CATCHWORDS
VETERANS’ AFFAIRS – operational service – intermediate rate of pension – alcohol dependence – severe stressor – Deledio applied – decision set aside.
Veterans’ Entitlements Act 1986 ss 19, 22, 23, 24, 120, 120A
Deledio v Repatriation Commission (1997) 47 ALD 261
Stoddart and Repatriation Commission [2003] FCA 334
Repatriation Commission v Stoddart [2003] FCAFC 300White v Repatriation Commission [2004] FCA 633
Woodward v Repatriation Commission [2003] FCAFC 160
Kattenberg v Repatriation Commission [2002] FCA 412
Flentjar v Repatriation Commission (1997) 48 ALD 1
Peacock v Repatriation Commission [2004] FCA 1449REASONS FOR DECISION
14 June 2006 Ms M J Carstairs, Member Brigadier Dr G Maynard, Member 1. In this application Kevin Mayfield asks this Tribunal to review two decisions, one rejecting his claim that alcohol dependence is related to his war service; the other rejecting his claim to be paid a higher rate of pension.
2. Mr Mayfield already receives the maximum general rate of pension, so his second claim raises the question of his entitlement to either a special rate of pension under s24 of the Veterans’ Entitlements Act 1986 or the intermediate rate under s23 of the Act. These are two rates of payment available in circumstances where war-caused disability affects a person’s ability to engage in remunerative work, which is what Mr Mayfield claims. The respondent disagrees, saying amongst other things, that Mr Mayfield’s alcohol dependence (a non war-caused disability) affects his ability to undertake work.
BACKGROUND
3. Mr Mayfield served with the Royal Australian Air Force for twenty years: May 1965 to May 1985. Mr Mayfield, signed up at the age of eighteen, and served with RAAF police investigations unit. At the time, Mr Mayfield was the youngest recruit to the police unit, having joined straight from school. At discharge in 1985, Mr Mayfield held the rank of flight sergeant.
4. During his twenty-year RAAF career Mr Mayfield had two periods of operational service. The first was when posted at the age of twenty to the airbase at Ubon in Thailand in the airfield defence guard: 1 March 1966 to 1 October 1966. The RAAF were deployed to Ubon airbase, located close to the Laotian and Cambodian borders as part of the Australian SEATO defence commitment to Thailand. The task of the RAAF contingent was to co-operate with the SEATO partners, including the United States Air Force (USAF), and Thai forces in maintaining the territorial integrity of Thailand.
5. Mr Mayfield’s second period of operational service was in the Middle East from 13 January 1977 to 12 July 1977, when he was posted to Ismalia, as part of a United Nations peace-keeping contingent. However Mr Mayfield’s case did not rely on any part of his service other than his service in Ubon, that is he did not rely on his second period of his operational service, nor did he rely on his other eligible service under the Act, that is his defence service after 7 December 1972.
6. Mr Mayfield has a number of medical conditions accepted by the respondent as due to his war service, including post traumatic stress disorder, irritable bowel syndrome, impotence, lumbar disc degeneration, hearing loss, and two skin conditions. Notably, on 15 October 2002 (T4: Q2003/796) a Veterans' Review Board granted Mr Mayfield’s claim for post traumatic stress disorder, accepting the occurrence of a severe stressor in Ubon. This stressor involved the crash of a United States Air Force (USAF) Phantom jet on take-off, an incident in which the pilot and co-pilot were killed. It was part of Mr Mayfield’s claim then, as it is now, that after the crash he came upon body parts, an experience that he found extremely distressing. The Phantom crash was confirmed in various research reports (including exhibit R6) as having taken place on 13 September 1966, about two weeks before Mr Mayfield returned to Australia.
7. However the Veterans' Review Board, having accepted post traumatic stress disorder, denied the claimed alcohol dependence, largely it seems because Mr Mayfield gave a history of consuming large amounts of alcohol from the time that he arrived in Ubon, rather than attributing his drinking to witnessing the Phantom crash. In a decision dated 7 September 2004 (T5: Q2004/801), another Veterans' Review Board looked solely at Mr Mayfield’s subsequent claim for alcohol dependence, however that Board also rejected his claim.
8. We have concluded that Mr Mayfield’s claim for alcohol dependence should be granted, applying the relevant Statement of Principles that applies to the condition, that is Instrument No 76 of 1998: Statement of Principles concerning Alcohol Dependence or Alcohol Abuse. Under Entitlement to special rate or intermediate rates of pension we consider whether Mr Mayfield is eligible to be paid more than his current payment of 100% general rate of pension, and conclude that he is entitled to be paid at the intermediate rate under s23 of the Act.
ISSUES
9. Whether a condition is war-caused is governed by the provisions of s120 of the Act, which prescribes the beyond reasonable doubt standard of proof for questions of war causation, and also by s120A of the Act which deems that standard of proof met when an hypothesis conforms to factors in a relevant Statement of Principles determined by the Repatriation Medical Authority. This legislative framework was interpreted by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261 as requiring 4 steps:
· the diagnosis of Mr Mayfield’s condition;
· whether the evidence raises an hypothesis or hypotheses connecting the condition with the circumstances of Mr Mayfield’s service and whether there is in force a Statement of Principles relevant to Mr Mayfield’s condition;
· whether the hypothesis or hypotheses contain one or more of the factors set out in the Statement of Principles; and
· whether any hypothesis is disproved beyond reasonable doubt: s120(1) of the Act.
THE DIAGNOSIS OF ALCOHOL DEPENDENCE
10. Mr Mayfield produced a statement (T4: Q2004/801, pp 113-116) for one of his Veterans’ Review Board hearings in which he set out, with regard to his drinking history, that he was a keen sportsman when he joined the RAAF, playing rugby league and union, water polo, and had been teaching swimming and diving whilst in Malaysia. He said that he drank alcohol as a recruit, but in moderation, because he was committed to maintaining levels of fitness for his then active sporting life. He also said that he had only recently left school when he joined the RAAF, and unlike the others who were older and had prior police experience, he could not afford the time to go out drinking, because he needed to study to keep up.
11. Mr Mayfield’s drinking pattern changed markedly when he was posted to Ubon in 1966. He stopped playing sport as there were few recreational facilities apart from the wet canteen, which had extended opening hours. The popularity of the wet canteen, if ever in doubt, was confirmed by the Writeway researcher, Mr J Tilbrook (exhibit R6, pp 17-18). Mr Mayfield said he started drinking heavily in Ubon because alcohol was cheap and readily available, and because he was suffering sleep deprivation due to the constant noise of planes taking off every ten minutes, around the clock. Mr Tilbrook’s report confirmed the complaints of those living at Ubon airbase about noise and sleep disruption (exhibit R6, p18).
12. According to Mr Mayfield’s evidence, his subsequent service, some of which was not eligible service under the Act, entrenched his drinking. He told us that RAAF police investigators were required to undertake plain clothes intelligence gathering in hotels, for which they were given an ‘abnormal expenses allowance’ to cover the costs of alcohol consumed. He said that at all times during his service he had access to cheap alcohol, including as bar manager in the mess when he was posted to Brisbane.
13. The four psychiatrists who have reported on Mr Mayfield’s case – Dr Finnemore, Dr Ziukelis, Dr Hargreaves, and Dr Mulholland – have concluded that Mr Mayfield suffers from alcohol dependence. Dr Mulholland had held some concerns that a pathology test returned a normal result on one indicator, which did not support excessive alcohol intake (exhibit R1). However, Dr Mulholland told us in his oral evidence that his later enquiries confirmed that the particular negative result did not exclude the diagnosis of alcohol dependence.
14. Dr Mulholland stated that clinical onset of the condition was in Thailand and the condition continued thereafter. The question of clinical onset was not addressed directly in either Dr Hargreaves’ report or Dr Finnemore’s report, but we considered that their history taking was consistent with that taken by Dr Mulholland, upon which he formed his conclusions on clinical onset. Mr Mayfield currently consumes about a bottle of wine each night, unless he falls asleep first. He said he enjoys alcohol too much to consider abstaining, although he said he has taken some steps to moderate his habit, by changing from spirits to port and more recently to wine.
15. Based on the evidence before us, we accept that the condition of alcohol dependence is established to the standard of reasonable satisfaction as required under the Act: s120(4). The evidence indicates that Mr Mayfield developed an alcohol related disorder during his service in Ubon and that he remains alcohol dependent now, even if moderated. As Mr Mayfield explained in his evidence, his defence service exposed him to cheap alcohol and he availed himself of the opportunity.
WHETHER THE EVIDENCE POINTS TO THE FACTORS IN THE STATEMENT OF PRINCIPLES.
16. It seemed to us that there were a number of factors potentially raised within Mr Mayfield’s claim, bearing in mind that at this stage in the Deledio process, facts do not have to be found with certainty. We focussed more particularly on two of the stressors alleged by Mr Mayfield during his service in Ubon. We also addressed the question of clinical onset and clinical worsening of alcohol dependence because these are all elements that appear within different factors set out as providing links with service in the Statement of Principles for alcohol dependence (see below, para 20).
17. Mr Mayfield referred to a third possible stressor, namely when red alerts were called while he was at the Ubon airbase. For a number of reasons we did not consider those circumstances as severe stressors. Firstly, Mr Mayfield made scant mention of the red alerts in his evidence. In the limited mention that he made Mr Mayfield did not suggest that he perceived real threat of death or serious injury. Mr Mayfield’s evidence was that he did not have any idea what was going on, and did not point to anything more than feelings of inconvenience and uncertainty. Taking into account the case law to be applied, the calling of red alerts was not an occurrence of the kind that would fit within the definition of experiencing a severe stressor (see the definition below).
18. In the Applicant’s Outline of Submissions (filed after the hearing and marked as exhibit A8), Mr Clutterbuck, counsel for Mr Mayfield, relied upon three factors (factor 5(a), (b), and (d) in the Statement of Principles for alcohol dependence as best matching Mr Mayfield’s hypotheses. Mr Williams for the respondent referred to one factor only, namely factor 5(b).
19. The Statement of Principles provides for the following factors:
The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence … with the circumstances of a person’s relevant service are:
(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence ..; or
(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence ..; or
(c) suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence …; or
(d) experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence.
20. It seemed to us that all four factors might potentially arise for consideration, based upon the evidence presented in Mr Mayfield’s claim.
21. Within the Statement of Principles for alcohol dependence there is a definition of the term experiencing a severe stressor which provides that:
… the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
events that qualify as severe stressors include:
(i)threat of serious injury or death; or
(ii)engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
22. On the matter of stressors Mr Mayfield told us, and had reported in several interviews with psychiatrists, that he had been terrified by the location of an above-ground fuel dump, about 15 metres in height, located directly beside the Australian base. He said that he was aware that it worried others as well, but he said that he suffered extreme fear. He could see the dump from his window, and was so troubled by this that he would take himself down to the open air cinema to sleep, armed with a bottle of spirits. Mr Mayfield said that the constant noise of the aircraft taking off day and night was a bother, but the real reason he slept at the cinema was his fear of an explosion at the fuel dump.
23. In his first claim in 2001 (T4: Q2004/801, p 22) Mr Mayfield attributed his drinking at Ubon to stress and cost; and in his second claim (T4: Q2004, p 75) to peer pressure/ stress/anxiety. There was no evidence that he was more prone to stress than others although his entry medical report (Q2004/801, T4 p8) dated 18 February 1965 noted that he had commenced nail-biting the year previously and was a little depressed. However there was no other evidence that he was suffering any psychiatric disturbance at or about that time.
24. The first time Mr Mayfield clearly articulated as an additional basis of claim that after the Phantom crash his pattern of alcohol consumption markedly changed, was in a written statement in 2004 (T4: Q2004/801, p 115). Mr Mayfield said in his oral evidence that about this time he was having shocking thoughts about the Phantom crash. He said that his drinking pattern changed from drinking a mix of spirits and beer to spirits only. He acknowledged that when he returned to Australia the cost of alcohol prevented him consuming the quantities he had in Ubon. However he said that back in Australia he was still drinking 5 or 6 scotches per day at the wet canteen, as well as accessing a private supply of alcohol in his room.
25. Mr Mayfield described what happened after the Phantom crash. He described how he and a colleague, John Magee, were attending the outdoor cinema that night when they heard an irregular engine sound after the Phantom took off. They both went out to the fence line adjacent to the airfield and could see flames from the crashed plane. While they stood at the fence, two USAF police, whom they knew, drove up in their vehicle and asked them if they wanted to come and have a look. Mr Mayfield and Mr Magee went along out of curiosity.
26. When they arrived on the scene (Mr Mayfield was unable to recall whether they parked on the tarmac or on the grass verge adjacent) they poked around through the debris, some of which was still alight. The two USAF police and Mr Magee had torches. Then someone - Mr Mayfield said it might have been Mr Magee - said There’s something here … looks like a body. Mr Mayfield said he could not tell what it was, but he thought that he saw a harness from an ejection seat and he thought he saw a helmet. Someone else said it was a head. The two USAF police then said to the Australians that it was best if they left the scene, as they would have to report their findings back at the US base. The USAF police then departed, leaving Mr Mayfield and Mr McGee to walk back.
27. Mr Mayfield said that Mr Magee reacted badly in the incident and was vomiting. They had only gone out of curiosity, but he said they were both affected by it and continued to talk about it over the years when they met on Anzac Day.
28. Looking at histories given by Mr Mayfield as presented in the medical reports, it seems that Mr Mayfield did not always mention his stress in Ubon to doctors. For instance when he consulted Dr Finnemore, psychiatrist, in 2001, he referred only to the lack of other recreational activities, and his sleep problems due to the noisy environment at the base. However the same year when Mr Mayfield saw Dr Ziukelis, psychiatrist, he spoke about his fear of the fuel dump and about the Phantom crash. On the subject of the fuel dump, Dr Ziukelis recorded:
Mr Mayfield recalled that while living there he lived in constant fear of ignition of the fuel depot with anticipated destruction by the inferno that would result at close proximity. He stated he had not had a good night’s sleep since that time, that he used to have nightmares about being caught in fire and explosion but that this had abated over the years (T4 Q2004/801 pp 46-47)
29. In the report of Dr Hargreaves, consultant psychiatrist, dated 17 May 2001 there is the following reference:
He had to sleep in a hut close by a fuel farm and he was living with the fact that a direct hit by a mortar shell on that fuel farm would blow them all up. This had a disturbing effect on his sleep. In addition there were Phantom bombers taking off every three minutes and this created constant anxiety for him (T4, Q2004/801, p 59)
30. The report of Dr Mulholland, consultant psychiatrist, recorded:
…what troubled him more was that he had to sleep alongside a fuel farm and there was a constant fear of fire or explosion. From his description that constituted a constant source of anxiety. … He described that he usually drank enough to put him to sleep and this was mainly out of anxiety about the fuel farm and in any event it was difficult to sleep because once every few minutes, 24 hours a day, pairs of F4’s would be taking off and landing (Exhibit R1, pp 7-8).
31. It seems to us that the necessary steps from Deledio set out in paragraph 9 above are answered in Mr Mayfield’s case as follows:
§ The material raises at least two hypotheses connecting the condition with the circumstances of Mr Mayfield’s service. There is a Statement of Principles relevant to his condition of alcohol dependence.
§ Mr Mayfield’s hypotheses can be summarised as follows:
(a)The Ubon camp was located beside a fuel depot and Mr Mayfield lived in fear of an explosion. This fear, coupled with the constant aircraft noise, made sleeping difficult and he resorted to sleeping at a distance from the fuel dump, and consuming alcohol to ensure sleep.
(b)When he was a casual observer at the scene of the Phantom crash he and others came across what they believed to be body parts. He found this experience horrifying and the experience led him to increase his alcohol intake and/or change his pattern of alcohol consumption.
32. Mr Williams submitted that Mr Mayfield’s fear of the fuel dump exploding was not a fear objectively held and did not constitute a severe stressor. We considered that his circumstances of living beside a fuel dump at an airbase in a situation where there was potential risk of explosion, satisfies and points to the objective element of the definition of experiencing a severe stressor. It would be incorrect in light of the wording of the Statement of Principles and also in light of the Federal Court authorities that have interpreted the term stressor to put an unduly restricted meaning on the concepts of event or events used within the definition of experiencing a severe stressor. For one thing events are defined as including threats: Stoddart and Repatriation Commission [2003] FCA 334; Repatriation Commission v Stoddart [2003] FCAFC 300.
33. Any analysis of experiencing a severe stressor, a term that appears in Statements of Principles for both post traumatic stress disorder and alcohol dependence, involves a consideration of both objective and subjective elements: White v Repatriation Commission [2004] FCA 633, Woodward v Repatriation Commission [2003] FCAFC 160 and Stoddart. There is no requirement that there be an actual threat; perception may be enough. In Stoddart the Full Federal Court adopted the following statement from Woodward’s case (at paragraph 139):
…the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury (etc.), if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it was capable of conveying, and did convey, the risk of death or serious injury. In other words “experiencing” should be construed as having at least this partially subjective connotation.
34. Thus one component of experiencing a severe stressor relates to an event that involved threat of death or serious injury; or threat to the veteran’s or another person’s physical integrity. The material before us in regard to Mr Mayfield’s fears about the potential for explosion at the fuel dump points to his experiencing an event which was, judged objectively from the point of view of a twenty year old and with his knowledge, was capable of conveying a risk of serious injury to himself or to others. As he described it, others were unsettled by the proximity of the fuel dump, but his reaction was excessive. He was terrified. We considered that his evidence was consistent with the template of experiencing a severe stressor in the Statement of Principles, in that there was the appearance of a real threat to personal safety, which might evoke feelings of substantial distress in a person so exposed, and did so in Mr Mayfield’s case.
35. The Phantom crash incident has been accepted in earlier determinations made in Mr Mayfield’s case as meeting the definition of being a severe stressor. The respondent did not now suggest otherwise. We agree.
36. The evidence pointed to Mr Mayfield developing a maladaptive pattern of alcohol consumption during his Ubon service, but his period of service there totalled only seven months. The evidence, as set out above, pointed to clinical onset in this period. It would be difficult to postulate on any sensible basis, and certainly we had no evidence to this effect, that within such a brief period, Mr Mayfield could have experienced both the clinical onset and the clinical worsening of alcohol dependence. However, the Statement of Principles does not require that clinical worsening take place during the relevant service; it could occur later, so long as any worsening of the condition was related to the relevant service: Kattenberg v Repatriation Commission [2002] FCA 412.
37. For this reason the hypotheses that include clinical worsening of alcohol dependence as an element are therefore, reasonable hypotheses. There was however, scant evidence about clinical worsening. There was no medical evidence directly on the point and we were mindful also that Mr Mayfield’s evidence was that he reduced his consumption of alcohol when he returned to Australia.
38. We concluded that the hypothesis that relied on the stressor being his fear of the fuel dump exploding, in reaction to which Mr Mayfield commenced consuming large amounts of alcohol was one that matched the template in factor 5(b) of the Statement of Principles. The hypotheses which relied on the Phantom crash as a severe stressor and as a precursor to the clinical onset of alcohol dependence, or to its clinical worsening was not ruled out at step 3 of the Deledio process. They could not be, when facts are not found at this step in the process. Having noted that there was less evidence on the point, Mr Mayfield’s post traumatic stress disorder occurring as a result of the Phantom crash may have been the precursor to clinical worsening of alcohol dependence some time later – factor 5(c) of the Statement of Principles sets no timeframe for the connection to arise.
WERE THE HYPOTHESES DISPROVED BEYOND REASONABLE DOUBT?
39. We concluded that they were not. In reaching our conclusions we took into account the respondent’s submissions that Mr Mayfield did not witness the Phantom crash.
40. We concluded after hearing all of Mr Mayfield’s evidence that there was no reason to doubt his honesty. His recall of events was not complete, as is understandable after 40 years, even without any memory impairment occasioned by excessive alcohol consumption. If there were inconsistencies, perhaps exaggeration, in Mr Mayfield’s evidence this needs to be seen in the context recalling events that occurred a long time ago. We thought he was doing his best to recall accurately. Mr Mayfield has given consistent evidence that he was consuming large amounts of alcohol in Ubon and he has referred to a number of reasons why his consumption was connected with the circumstances of his service in Ubon. In important respects his evidence was supported by that of others, including Mr DJ Helman, squadron leader (Rtd) and Mr JC Magee. Both these statements, dating from 2001, were referred to by a Veterans’ Review Board but were not in the papers provided to the Tribunal. They were supplied to us after the hearing and marked exhibits A8 and A9.
41. We took into account that there were inconsistencies about how much he was drinking. Dr Mulholland was clearly sceptical about whether he could have consumed a 40oz bottle of sprits daily. He thought that Mr Mayfield could not sustain that consumption on a daily basis and carry out any sort of work in Ubon. We agree, but note also that Mr Mayfield corrected his evidence at one point to state that he was not drinking alone, but with a mate. We accept that his drinking pattern changed markedly before and after his Ubon service. As noted, there was general agreement in the medical evidence that Mr Mayfield had a maladaptive pattern of alcohol consumption during his Ubon service.
42. The respondent’s case rested largely on a submission that we should prefer the evidence of Dr B Selge about the Phantom crash. Dr Selge was the RAAF medical officer on the base and was at the officers’ mess when the Phantom ran into problems and within minutes he was instructed to attend the scene in the ambulance with Sergeant Vince Ryan to assist identifying injuries or certifying death. Dr Selge said that he and Sgt Ryan were at the scene very promptly; he was certain they were the first through the gate onto the airfield. He said the USAF teams arrived after them, having further to travel from their USAF base to the crash site. Dr Selge said in his oral evidence that he did not see the USAF team arrive; only later noticing their ambulance and another vehicle parked on the grass verge, well away from them further down the airstrip. The actual crash site was on the middle of the runway. Dr Selge said that the accident scene was very dark, and the only illumination was coming from headlights. Dr Selge said he did not see Mr Mayfield or anyone else apart from the USAF team.
43. Dr Selge discovered the body of one of the deceased crew members by accident, because the body was neither where they had expected it nor where they had been looking. This was the pilot, still in his ejection seat; clearly dead. His body was revealed in their headlights as they drove along the runway towards where the USAF team were attending to the dead co-pilot. Dr Selge confirmed in his evidence that the body on the runway was decapitated.
44. Dr Selge said that after confirming the death of the co-pilot, and realising that there was nothing further that could be done for anyone; he and Sgt Ryan were keen to get out of the area as quickly as possible. He said they was concerned about the unexploded ordinance on the airfield, and said also that the smell of burning flesh was overpowering.
45. Dr Selge’s evidence confirmed aspects of what Mr Mayfield had told us, including about the proximity of the cinema to the airfield. Dr Selge said the cinema was located between the officers’ mess and the runway; all were within easy walking distance of each other.
46. Whilst Dr Selge was clearly sceptical of any possibility that Mr Mayfield could have been there at the scene, from Dr Selge’s evidence there would be every reason for him not to observe those in Mr Mayfield’s group, particularly if they had come and gone before their ambulance arrived. In any event, Dr Selge confirmed that the scene was dark; it would have been chaotic with spot fires and scattered debris, and, importantly, Dr Selge would have been engaged in serious tasks, carried out in very difficult and dangerous circumstances. As he admitted, he did not see the USAF team arrive. That is, things were occurring that he did not directly observe.
47. Taking all factors into account Mr Mayfield may well have arrived ahead of the Dr Selge’s ambulance. The cinema was closer to the airfield, and Mr Mayfield was not taking telephone calls and organising the ambulance. There was no real conflict between his evidence and that of Dr Selge. We accepted Mr Mayfield’s evidence as true, and accept that they had different experiences after the Phantom crash. It was likely that Mr Mayfield was at the scene ahead of Dr Selge, and without any authorisation.
48. We were also unable to be satisfied beyond reasonable doubt that Mr Mayfield did not experience a severe stressor at Ubon because of the proximity of the fuel dump, engendering a level of anxiety that led to the development of his alcohol dependence, as is set down in the Statement of Principles as one of the required connections with service. His evidence was that, in part, his consumption of alcohol was related to attempting to quell his fears, and this was consistent in time with his commencing heavy alcohol consumption, as described to Dr Hargreaves and to Dr Mulholland. That being the case, we cannot be satisfied beyond reasonable doubt that the condition of alcohol dependence is not war-caused. Mr Mayfield’s claim for alcohol dependence therefore succeeds.
ENTITLEMENT TO SPECIAL RATE OR INTERMEDIATE RATE OF PENSION
49. Questions of entitlement under s23 of the Act must be considered during the assessment period, commencing at the date the claim, which in this case was 16 February 2004, and ending at the time that the matter is determined by the Tribunal: s19(9) of the Act. At the start of the assessment period, Mr Mayfield was aged 59; he is now 60.
50. There are some common legislative requirements for these two rates of pension. Where they differ is that the intermediate rate (s23 of the Act) provides for the situation where a veteran is unable to work other than part-time or intermittently. There is a more stringent test for the number of hours that a person can work in the legislative requirements for special rate. This is expressed in s24(1)(b) as follows:
….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;
51. In the main, the medical evidence does not support Mr Mayfield meeting that test. Dr Watson, orthopaedic surgeon, considered that, in regard to the purely physical issues, Mr Mayfield was able to work more than 20 hours per week in semi-sedentary occupations (exhibit R4). He thought that Mr Mayfield was in good shape for his age, and apart from some minor changes at L4/L5 and some complaint of pain there was nothing remarkable about his range of movement, it being within normal range on nearly all tests, and Dr Watson found no neurological deficit or other pathology.
52. Dr Mulholland’s evidence to us was that, based upon psychiatric factors, Mr Mayfield was able to work eight hours per week, though he said any work would need to be confined to the afternoon to allow Mr Mayfield to recover from his previous night’s drinking. He thought that doing some work would be good for Mr Mayfield, but that working more than twenty hours per week was beyond him. He pointed out, confirming his report at exhibit R3, that the work would have to be low stress and clerical in nature. He added the comment that process-serving, which had been Mr Mayfield’s last work, was quite unsuitable. Dr Hargreaves clearly agreed (T4 Q2004/801 pp104).
53. Dr Hargreaves was alone in suggesting that Mr Mayfield was incapable of even eight hours work per week. However we preferred the evidence of Dr Mulholland on the number of hours that Mr Mayfield could work. As Dr Mulholland pointed out, the test is essentially: Can a person work less than two hours per day? Dr Mulholland’s evidence was that Mr Mayfield’s alcohol habit could be accommodated within a pattern of working afternoons. We agree. We took into account in accepting that view of Mr Mayfield’s capacities that Mr Mayfield is well motivated to work. Dr Hargreaves’ opinion is of more limited value, because it pre-dates the assessment period and Dr Hargreaves did not have the benefit of seeing Mr Mayfield recently, which is significant in view of Mr Mayfield’s evidence that he has moderated his drinking.
54. At the hearing the parties were given the opportunity to seek a further report from Dr Mulholland when concerns were raised about whether Dr Mulholland had taken the effects of Mr Mayfield’s post traumatic stress disorder into account as well as the effects of alcohol dependence on Mr Mayfield’s work capacities. The parties have not availed themselves of that opportunity within the time allowed for that to take place. We have proceeded to decide the matter based upon Dr Mullholland’s existing written and his oral evidence
55. Mr Mayfield receives DFRDB pension for his twenty year service in the RAAF. He told us that it amounts to about $900 per fortnight. We asked him whether the receipt of that pension affected his motivation, or his need to work at all. Mr Mayfield said that he would feel much better about himself if he were contributing to the household more effectively. He said this was a matter of personal self esteem, and that is why he has continued to look for work, only stopping his efforts when he found that he was not getting anywhere. He told us that no medical practitioner has said to him that he should not be working.
56. After Mr Mayfield took his discharge from the RAAF in 1985, he commenced his own security business called Territorian Security in partnership with another man in the Northern Territory. However that business failed in 1987, for reasons that Mr Mayfield described as including his drinking and failure to attend to the business. He then worked part-time as a tour guide at the Darwin Air Museum between 1987 and 1989. He returned to security work as a security manager with IPEC Transport from 1989-1990. Mr Mayfield was next employed part time during 1997 as a process server.
57. In an Employment Report dated 29 April 2005 (exhibit A3) a representative of the firm Rumpole’s Legal Service stated that Mr Mayfield was employed part-time (6 -8 hours per week) as a process server in 1999-2000 and in 2001. While the employer noted that the termination of employment was voluntary, under “Illnesses” it was remarked that Mr Mayfield became erratic and difficult to work with. Mr Mayfield told us that he was sacked after having an altercation with someone on whom he was serving papers. He acknowledged that he had been drinking heavily the previous night, and his employer told him that his attitude was unsuitable.
58. The requirements for intermediate rate of pension are set out in a series of provisions in s23 of Act. Mr Mayfield passes some of the tests in s23 of the Act. His general rate entitlement is more than 70%, as required by s23(1)(a) of the Act – he satisfies that requirement. Mr Mayfield’s recent work history shows that since the early nineties has only been employed part time, often for quite limited hours per week (his last employment as a process server was about eight hours per week). The medical evidence referred to above supports a conclusion that Mr Mayfield can only work on a part-time basis or intermittently, as defined in s23(2) of the Act. Based upon the views of Dr Watson and Dr Mulholland looking at the physical and psychiatric limitations arising from war caused disease the only conclusion that is open is that Mr Mayfield satisfies s23(1)(b) of the Act.
59. Thus the only real issues are those arising under s23(1)(c) of the Act, which deals with whether Mr Mayfield’s loss of remunerative work is attributable to service-related incapacities only and not to something else as well.
60. The Federal Court in Flentjarv Repatriation Commission (1997) 48 ALD 1 set out a series of tests in terms of questions applicable to ss24(1)(c) of the Act but equally applicable to s23(1)(c). The Court said the Tribunal must address the following :
1. What was the relevant "remunerative work that the veteran was undertaking?
2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3.If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
61. The remunerative work that Mr Mayfield was undertaking is best described as security work, light clerical work, as well as some light skilled work as a museum tour guide. Taking into account the medical evidence it is clear that Mr Mayfield is prevented from continuing in remunerative work, particularly as a result of his psychiatric disabilities, together with other war-caused physical disabilities. His working history since leaving the forces is largely confined to part time work and must be seen in the context of excessive drinking, preventing him continuing to undertake remunerative work. The second Flentjar question can be answered “yes”.
62. In regard to the third question, the medical evidence confirms that war caused disease accounts for Mr Mayfield’s limitations. His case has been extensively investigated by the respondent and we were not presented with any medical evidence of other conditions, themselves not accepted as war-caused, which were affecting his ability to work. Nor were any other factors identified as playing a part in preventing him from continuing in remunerative work. The evidence reveals that excessive alcohol consumption is the real hindering factor in Mr Mayfield’s continuing in remunerative work. The third Flentjar question must be answered yes.
63. The operation of s23(1)(c) is ameliorated for those aged under 65, as is Mr Mayfield, by s23(3)(b) of the Act which permits those under 65, who might not have met the intermediate rate tests at the time they ceased working, to retain their eligibility if they are genuinely seeking work and service related incapacity is the substantial cause of their inability to undertake remunerative work. We concluded that Mr Mayfield would have met that requirement. However, he does not need to rely upon the ameliorating provision, because he satisfies s23(1)(c).
64. The remaining question addresses loss of salary or wages and requires the Tribunal to examine whether there are other reasons than war-caused incapacity for Mr Mayfield not being in remunerative work – a slightly different test, as the Federal Court pointed out in Peacock v Repatriation Commission [2004]FCA 1449. We took into account that Mr Mayfield has access to a range of pension entitlements, but we accept his evidence that this is not a reason for him not being engaged in remunerative work. In particular we were satisfied, accepting his evidence on this point, that the receipt of DFRDB pension was not a reason accounting for why Mr Mayfield, when he has worked, was engaged for part-time or intermittent hours only:s23(3)(a)(iii).
65. We accept that Mr Mayfield has made genuine attempts to secure work, to no avail. We were satisfied that Mr Mayfield is suffering a loss of salary or wages and that there are no other reasons apart from war-caused incapacity that serve to explain this. Thus the fourth Flentjar question must be answered “yes” with the result that Mr Mayfield is entitled to be paid intermediate rate of pension with effect from 16 November 2003.
DECISION
66. The Tribunal sets aside the decisions under review and substitutes the decisions that Mr Mayfield’s alcohol dependence is war-caused and he is entitled to be paid intermediate rate of pension with effect from 16 November 2003.
I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member
Signed: Jeff Mills
Legal Research Officer
Date/s of Hearing 22 March 2006
Date of Receipt of Final Submissions 29 May 2006
Counsel for the Applicant Mr R Clutterbuck
Solicitor for the Applicant McCallum Mylne Lawyers
For the Respondent Mr B Williams, Departmental Advocate
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