McGuire and Repatriation Commission
[2004] AATA 403
•22 April 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 403
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2001/952
VETERANS' APPEALS DIVISION ) Re ROSS McGUIRE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms N BELL , Member Date22 April 2004
PlaceSydney
Decision The decision under review is set aside and the Applicant’s claim is remitted to the Respondent for assessment with directions that the Applicant suffers from post traumatic stress disorder and from depressive disorder and that the Applicant’s post traumatic stress disorder is defence caused but his depressive disorder is not defence caused.
[Sgd] Ms N BELL, Member
CATCHWORDS
VETERANS AFFAIRS – eligible defence service – whether Applicant suffers from post traumatic stress disorder and/or depressive disorder – whether claimed conditions “connected” with circumstances of his defence service – whether described incident amounts to “experiencing a severe stressor” – decision set aside
Veterans’ Entitlement Act 1986 ss 68(1), 120, 120B
Stoddart v Repatriation Commission [2003] FCA 334
REASONS FOR DECISION
22 April 2004 MS N BELL 1. The decision under review by the Tribunal is the decision of the Repatriation Commission notified on 18 January 2001 and affirmed by the Veterans’ Review Board on 18 May 2001 that refused the claim by Mr Ross McGuire for post traumatic stress disorder with depression.
2. The Applicant enlisted in the Royal Australian Air Force (“RAAF”) on 6 October 1981 and was discharged on 26 April 1994. There is no dispute that this service constitutes eligible defence service pursuant to section 68(1) of the Veterans’ Entitlements Act 1986 (“the Act”).
3. The Applicant was initially attached to the Air Defence Guard as a Scout Dog Handler, trained in specialised anti-terrorism tactics and his duties included reconnaissance, surveillance and patrol duties.
4. The Applicant’s unit was deployed to New Zealand in mid 1983 for a joint exercise with the Royal New Zealand Air Force (“Operation Blackbird”).
5. The Applicant contends that he has post traumatic stress disorder and that the condition is defence caused, arising from an incident that took place during Operation Blackbird.
6. The Applicant continued in the Air Defence Guard until 1988 when he became a Police Dog Handler in another section of the RAAF. In 1994 he resigned from the RAAF. He then worked for Telstra as a linesman until he was retrenched in 2000.
7. The Respondent contends that the Applicant does not suffer from post traumatic stress disorder or any psychiatric condition and that the incident to which the Applicant attributes the claimed condition was not as he describes it.
Law and Issues
8. The relevant law is section 120 of the Act which provides:
‘120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
(2) Where a claim under Part IV:
(a)in respect of the incapacity from injury or disease of a member of a Peacekeeping Force or of the death of such a member relates to the peacekeeping service rendered by the member; or
(b)in respect of the incapacity from injury or disease of a member of the Forces, or of the death of such a member, relates to the hazardous service rendered by the member;
the Commission shall determine that the injury was a defence-caused injury, that the disease was a defence-caused disease or that the death of the member was defence-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note 1: For member of a Peacekeeping Force, peacekeeping service, member of the Forces and hazardous service see subsection 5Q (1A).
Note 2: This subsection is affected by section 120A.
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
(5)Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a)an injury suffered by a person is a war-caused injury or a defence-caused injury;
(b)a disease contracted by a person is a war-caused disease or a defence-caused disease;
(c) the death of a person is war-caused or defence-caused; or
(d)a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
(7) In this section:
(b)a reference to hazardous service shall be read as a reference to service in the Defence Force of a kind determined by the Minister for Defence, by instrument in writing, to be hazardous service for the purposes of this section.”
9. It is not disputed, and I accept, that the service rendered by the Applicant was defence service pursuant to section 68(1) of the Act. It follows that the relevant standard of proof to be applied in this application is that of reasonable satisfaction, in accordance with section 120(4) of the Act. Section 120B of the Act provides for the question of reasonable satisfaction to be assessed by reference to the Statements of Principles (“SoP”):
“120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
(b)a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
Note 1: Subsection 120 (4) is relevant to these claims.
Note 2: For hazardous service and member of the Forces see subsection 5Q (1A).
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B (3) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)In applying subsection 120 (4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i)a Statement of Principles determined under subsection 196B (3) or (12); or
(ii) a determination of the Commission under subsection 180A (3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B (3), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”
10. The parties agree and I concur, that the relevant SoP’s in this application are SoP No. 4 of 1999 concerning post traumatic stress disorder and SoP No. 59 of 1998 concerning depressive disorder. SoP No 4 of 1999 provides relevantly:
“Kind of injury, disease or death
2. (a) This Statement of Principles is about post traumatic stress disorder and death from post traumatic stress disorder.
(b) For the purposes of this Statement of Principles, “post traumatic stress disorder” means means (sic) 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 symbolize 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, attracting ICD-9-CM code 309.81.
…
Factors that must be related to service
4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5.The factors that must exist before it can be said that, on the balance of probabilities, post traumatic stress disorder or death from post traumatic stress disorder is connected with the circumstances of a person’s relevant service are:
(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
(b)experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder; or
(c)inability to obtain appropriate clinical management for post traumatic stress disorder.
…
Other definitions
8. For the purposes of this Statement of Principles:
…
“experiencing a severe stressor” means 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 another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlement Act applies, events that qualify as 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;”
11. SoP No.59 of 1998, concerning depressive disorder provides relevantly:
“Kind of injury, disease or death
2. (a) This Statement of Principles is about depressive disorder and death from depressive disorder.
(b)For the purposes of this Statement of Principles, “depressive disorder” is defined as:
(A)the presence of major depressive disorder, dysthymic disorder or depression not otherwise specified where:
(i)major depressive disorder is either a single episode or recurrent episode as defined in DSM-IV; and
(ii)dysthymic disorder, as defined in DSM-IV, is a chronic mood disturbance, of at least two years duration, involving depressed mood, or loss of interest or pleasure, with manifestation of the symptoms used to diagnose major depression such as neurovegative signs, social withdrawal, cognitive impairment and suicidal ideation; and
(iii)depression not otherwise specified, such as minor depressive disorder and recurrent brief depressive disorder, as defined in DSM-IV, includes disorders with depressive features that do not meet the DSMIV diagnostic criteria for other specific mood disorders, attracting ICD-9-CM code 296.2, 296.3, 300.4 or 311.
…
Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, depressive disorder or death from depressive disorder is connected with the circumstances of a person’s relevant service are:
(a)experiencing a severe psychosocial stressor or stressors within the one year immediately before the clinical onset of depressive disorder; or
(b)having a clinically significant psychiatric condition within the one year immediately before the clinical onset of depressive disorder; or
(c)having a major illness or injury within the one year immediately before the clinical onset of depressive disorder; or
(d)suffering from chronic pain of at least six months duration at the time of the clinical onset of depressive disorder; or
(e)experiencing a severe psychosocial stressor or stressors within the one year immediately before the clinical worsening of depressive disorder; or
(f)having a major illness or injury within the one year immediately before the clinical worsening of depressive disorder; or
(g)having a clinically significant psychiatric condition within the one year immediately before the clinical worsening of depressive disorder; or
(h) suffering from chronic pain of at least six months duration at the time of the clinical worsening of depressive disorder; or
(j)inability to obtain appropriate clinical management for depressive disorder.
….
Other definitions
8.For the purposes of this Statement of Principles:
…
“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
12. The diagnostic criteria in DSM-IV for Major Depressive Episode (the basis of diagnosis for Major Depressive Disorder) are:
“Criteria for Major Depressive Episode
A.Five (or more) of the following symptoms have been present during the same 2-week period and represent a change from previous functioning; at least one of the symptoms is either (1) depressed mood or (2) loss of interest or pleasure.
Note: Do not include symptoms that are clearly due to a general medical condition, or mood-incongruent delusions or hallucinations
(1) depressed mood most of the day, nearly every day, as indicated by either subjective report (e.g , feels sad or empty) or observation adolescents, can be irritable mood.
(2) markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day ( as indicated by either subjective account or observation made by others)
(3) significant weight loss when not dieting or weight gain (e.g , a or change of more than 5% of body weight in a month), or decrease or increase in appetite nearly every day. Note: In children, consider failure to make expected weight gains.
(4) insomnia or hypersomnia nearly every day
(5) psychomotor agitation or retardation nearly every day (observable by others, not merely subjective feelings of restlessness or being slowed down)
(6) fatigue or loss of energy nearly every day
(7) feelings of worthlessness or excessive or inappropriate guilt (which may be delusional) nearly every day (not merely self-reproach or guilt about being sick)
(8) diminished ability to think or concentrate, or indecisiveness, nearly every day (either by subjective account or as observed by others)
(9) recurrent thoughts of death (not just fear of dying), recurrent suicidal ideation without a specific plan, or a suicide attempt or a specific plan for committing suicide
B.The symptoms do not meet criteria for a Mixed Episode (see p. 335).
C.The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
D.The symptoms are not due to the direct physiological effects of a substance (e.g., a drug of abuse, a medication) or a general medical condition (e.g., hypothyroidism).
E.The symptoms are not better accounted for by Bereavement, i.e after the loss of a loved one, the symptoms persist for longer than 2 months or are characterized by marked functional impairment, morbid preoccupation with worthlessness, suicidal ideation, psychotic symptoms, or psychomotor retardation.”
13. The first issue to be considered is whether the Applicant suffers from post traumatic stress disorder or depressive disorder or both, in accordance with the diagnostic criteria of those conditions set out in paragraphs 2 of SoP No. 4 of 1999 and SoP No. 59 of 1998 (which defines depressive disorder as major depressive disorder, dysthymic disorder or depression as defined in DSM-IV).
14. If I conclude that the Applicant suffers from post traumatic stress disorder or depressive disorder or both, then I must consider whether any of the factors set out in paragraphs 5 of the SoPs exist to establish that his condition is “connected with” the circumstances of his defence service. The factor most relevant to the Applicant’s circumstances in respect of post traumatic stress disorder is factor 5(a) – “experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder”. To determine this question, I must consider whether the incident described and relied upon by the Applicant amounts to “experiencing a severe stressor” in accordance with the definition of that term in paragraph 8 of the relevant SoP.
15. In respect of depressive disorder, the factor most relevant to the circumstances of the Applicant is factor 5(b) – “having a clinically significant psychiatric condition within the one year immediately before the clinical onset of depressive disorder”.
Does the Applicant suffer from post traumatic stress disorder and/or depressive disorder?
16. The Applicant described his condition as follows.
17. For weeks after his experience in Operation Blackbird the Applicant felt the effects of the extreme cold. He became progressively intolerant of and aggressive with fellow servicemen. On one occasion he put a serviceman in a headlock because he felt he was not being co-operative. On another occasion he threw a serviceman against a wall and threatened to kill him because he had tapped him on the shoulder. He also punched a serviceman who had shown up late to relieve him on duty.
18. He had a lot of dreams about the cold. He cried for no apparent reason. He was admitted to the psychiatric ward of the RAAF hospital at the instigation of his wife because she considered him a danger to herself and their seven children. He put a choke hold on his wife when she was pregnant and after she hid in the toilet he broke down the toilet door. He described himself as having no control.
19. He would go off on his own to the bush in order to get away from people and continues to do so. He finds it difficult to be around people and avoids them whenever he can.
20. Whilst working for Telstra he would often snap at people and become impatient and frustrated and towards the end of his time there was getting quite aggressive with people, shouting at them and threatening them.
21. He described an incident, which occurred during his employment with Telstra, when he was working in Kangaroo Valley. It was a cold day and he had his hands in a pit which contained some cold water. His hands started to “freeze up” and he panicked and began sweating. He went to his car and warmed his hands under hot water and remained in the car for some time.
22. The Applicant also described having taken dexamphetamine after observing its beneficial effect on his son who had been diagnosed with attention deficit disorder. The drug was prescribed for him and he reported having experienced increased aggression. At the time of the hearing he had ceased taking dexamphetamine six months previously and found he was better able to control his responses.
23. The Applicant described himself as distant from his family and playing no role in relation to his children’s upbringing or the organisation of family matters.
24. He described an incident, approximately 12 months previously in which he dressed in camouflage uniform, “smashed up” the kitchen, punched the wall, pulled his wife’s hair and mistook his children for servicemen. This culminated in the Police being called and an Apprehended Violence Order being issued against the Applicant. He said he still has violent outbursts but controls them by removing himself from the people around him. He described, however, a recent incident in which he put his son in a headlock and held him to the ground.
25. He sleeps for some hours during the day and has trouble sleeping at night. His memory is poor and he forgets to take his medication, relying on his wife to remind him. He fails to recognise people he knows and often forgets their names.
26. The Applicant described events on Operation Blackbird as follows. The purpose of the exercise was to work with New Zealand forces and to allow them to see the Australians’ capabilities. He and his squadron of approximately 150 men were despatched to the high country out from Blenheim which was the closest town. When they arrived at Woodbourne air station they were briefed about hypothermia. They were told that without the right equipment and in sleetish or snowing conditions, hypothermia can creep up on you and you may pass out or have dizzy spells. They were told that you may eventually go into a coma and if this happens you could die.
27. Before being sent on manoeuvres they took part in an exercise which involved crossing a river which was “freezing”. They were told that if they put their hands in the water for over two minutes it could cause nerve damage. The Applicant had a scout dog which kept dragging him downstream and his hands were in the water for a considerable period because he had to hold on to the dog. He said that now whenever it gets very cold his hands freeze up and he can’t move them properly.
28. When they had crossed the river they stood before a fire, stripped down and put dry clothing on. That consisted of greens (standard issue military clothing for bush manoeuvres), thin long johns, socks and boots, a floppy green hat, and a pair of gloves together with a jumper and a jacket. One of his fellow servicemen developed frostbite on his testicles after this exercise. The Applicant said he had been told by a New Zealand serviceman that they wore wet suits under their clothing and thermal clothing.
29. They were then taken to higher ground, where there were snow caps, sleet, rain and wind. The Applicant said it was like being placed in an ice box. He said the exercises they were doing were similar to those undertaken at home except for the extreme cold. The only protection they had when they were at rest was a hootch – a piece of vinyl, about five feet by five feet, stuck to a tree. The men would get underneath it but it was frozen solid.
30. They undertook patrols and at one stage captured the New Zealand “enemy”. The Applicant had sniper duty and defended his squadron’s position.
31. After that the weather worsened and everything became iced, including puddles and trees. The Applicant said they simply couldn’t get warm and there was no escape from the cold. He said he couldn’t feel his feet or hands and he remembers blacking out and seeing others black out. He said there were a couple of men who couldn’t move because of the cold and he got his scout dog and placed her between them to keep them warm. Another man was becoming unconscious and he and others tried to keep him awake, shaking him. On the basis of the briefing they had received, the Applicant thought the man had “gone past the point of no return” and gone into a coma. He said they had been told that once a person is in a coma it’s too late and they have to be taken to a medical facility to be treated. There was no way the man could be properly cared for and there was nothing they could do for him. It was at that stage that the Applicant lost consciousness for a short time.
32. The Applicant said they all thought they were going to die because they were all blacking out from time to time and trying to stay conscious.
33. The Applicant said they remained in the exercise area for a long time, possibly overnight, segregated from the rest of the unit because they had a dog. He heard vehicles and concluded that people were being evacuated but waited for a long time to be ferried back to the base by vehicle. He thinks they may have initially been left behind in the panic. At the base there were makeshift huts, near where they had done the river crossing. They stripped down and got into sleeping bags together to keep warm.
34. The Applicant remembers a photographer being there in the hut and hitting the camera into his face because he didn’t want to be photographed. He said he had thought, a couple of times in the hootch, that he had died because he would lose consciousness and then wake up and not know where he was. He said he still feels the effects of that time, especially when he is cold – his hands “freeze” and won’t move. He said he “goes back to what happened”.
35. The Applicant said that in the hut there was no doctor, only a medical orderly from the New Zealand Air Force. He said they received no counselling.
36. Mrs McGuire described the Applicant’s behaviour as follows.
37. She said that before 1993 he had been an involved and good husband and father. At that stage they had four children. He was the head of the household and managed the family finances. His behaviour changed after his knee operation in 1993.
38. Mrs McGuire said in evidence that following an operation on his knee it became badly infected and he was crying constantly and couldn’t control his emotions. He was taking copious amounts of Panadeine Forte and increasing his consumption. He threatened to kill himself. She took him back to the hospital and after discussion with a doctor he was admitted to the psychiatric ward for observation. He was very angry with her for having him admitted.
39. Mrs McGuire said the Applicant had mentioned Operation Blackbird to her when they were first going out but she only learnt the detail of it when they were living in Richmond.Mrs McGuire recalled an incident which occurred whilst living at Richmond when it was particularly cold and he became preoccupied about getting his hands cold. She said it seemed “not normal”.
40. Mrs McGuire described a number of occasions when the Applicant has behaved violently towards her and their children. In particular, she described an incident which occurred when they were living in Katherine and her husband broke down the door of the bathroom where she was hiding from him, put her in a headlock and threatened to snap her neck. He told her he knew how to do it, would do it cleanly, she would feel no pain and the children wouldn’t have a mother any more. He eventually let her go and left.
41. On another occasion the Applicant drank alcohol and his behaviour resulted in an Apprehended Violence Order against him. According to Mrs McGuire the Applicant put on his camouflage uniform and “smashed up the house” including cupboards, a vase and the stereo. He chased Mrs McGuire into their daughters’ bedroom and grabbed her by the hair. One of their sons ran to a neighbour to call the police and the Applicant was taken to the police station. He was returned at about 3.00 am. She said she wished he hadn’t been returned so soon because she is now very frightened of him.
42. The three oldest children are now frightened of the Applicant and avoid him as much as they can. He has put a choke hold on the second oldest son, to the point where the child could not breathe.
43. Mrs McGuire also described the Applicant’s threats to kill himself. He once took a rope and went to the shed, saying he was going to hang himself. He made the noose and then Mrs McGuire followed him to the shed and stayed there to prevent him from doing it. She made sure he was not left alone. The Applicant continues to say he would rather be dead and has threatened suicide in front of the children.
44. The Applicant continues to leave the house without telling anyone and will not return until the next day. He does not spend much time with his family. He continues also to have nightmares and yells out and jumps out of bed.
45. Before the Applicant left Telstra he was not on speaking terms with anyone there. Mrs McGuire said he was “getting a bit violent” there and his bosses would not speak to him
46. Mrs McGuire said that she stays with the Applicant because she is a Catholic and because she doesn’t want him to kill himself. She wants him to live to see the children grow up and give the girls away when they get married and because, having had a brief bout of depression herself, she has some insight into what he goes through.
47. Mrs McGuire expressed anger that the Applicant had been prescribed dexamphetamine by a Dr Jenkins in 1996. She said that at first it seemed to calm him but after a while he needed a higher dose to have an effect. He went from two tablets to four and then six because towards the end he would become quite violent when the medication wore off. She said it appeared to stop having an effect approximately one year after he began taking it. However, he did not cease taking dexamphetamine until 2001.
48. Mr Bruce Brown, former Squadron Leader with the RAAF gave evidence to the Tribunal. His evidence was that he took part in Operation Blackbird. He described the weather as “really bad”; it had been raining all day and everyone was saturated. He said the weather was made worse by a strong wind which created a colder effect. He said there were a number of people who were experiencing the onset of hypothermia and one fellow had to be taken back to the base camp by “medical people from the Royal New Zealand Air Force”. He said that when he returned to the base from the exercise there were about a dozen or more people in that condition at the base. He said he did not recall anyone suffering a coma and thought that all people had returned to the field the next day. He said that if someone had entered a coma then that would have been reported.
49. Exhibit A4 contains Mr Brown’s comments, as Commanding Officer, for the month of August 1983. Those comments contain the following paragraph:
“3. Conditions on the airstrip were bad with a very cold southerly wind lowering body temperature markedly. Defensive positions were taken up around the airstrip and unfortunately a reporter and photographer from the Marlborough Express, who had been granted a PR interview, were present and recorded the conditions and casualties. When this information reached Australia it caused some concern. The main problem was the unit was not equipped with adequate wet weather clothing, thus once wet the body lost heat quickly. CO of the unit decided to call a halt to the exercise and to non-tactically move all personnel back to DIP FLAT. Morale at this time was extremely low and some members did not recover their morale for the remainder of the exercise. The lack of NCO’s had a lot to do with the lack of recovery of morale. A total of 23 out of 62 personnel had to be treated for exposure on 3 Aug 83.”
50. Mr Brown confirmed that there had been a river crossing and that the water temperature was about 2.5 degrees centigrade. He did not recall seeing snow on the ground but said the ground was frozen from about 11.00 am to 1.00 am and there was snow on the peaks around them. He said there may have been sleet.
51. He said the exercise had been reported in the newspaper and somewhat sensationalised and the Chief of Air Staff read about it and signalled him to advise why people were in that condition and not equipped for the cold conditions. He said they had been trained and equipped for conditions in the north of Australia.
52. He said the decision was made to remove personnel to another area away from the landing zone in the afternoon and that 23 out of 62 personnel had to be treated for exposure. He confirmed that the New Zealand Air Force had advised personnel about hypothermia and suggested that their underwear was not appropriate for the sort of cold they would experience.
53. Mr Brown said that Operation Blackbird was the only occasion, in his experience in the RAAF on which he had called off an exercise on the grounds of the safety of the people involved. He said that it was called off after approximately three hours and there were sufficient trucks to take all personnel back at once.
54. Dr Altman, the Applicant’s treating Psychiatrist, in his report dated 7 February 2002 (Exhibit A5) diagnosed the Applicant as having chronic severe post traumatic stress disorder with an associated major depression. He described his symptoms as follows:
“1.He suffers from nightmares – according to his wife “nearly every night”. He stated that these nightmares began “when I was in the RAAF”. His wife stated that during his sleep “he has punched me a few times – not meaning to”. He stated that on waking from these nightmares he feels “sweaty and feel shithouse”. He stated that these nightmares wake him “occasionally” and that he feels “like crap”.
2.He has recurrent intrusive distressing thoughts about his experience “all the time”.
3.He suffers from flashbacks – “yes – when I get really cold”.
4. He avoids the thoughts associated with his experiences – “I try and get rid of them – I try and concentrate on something else”. In addition he avoids some situations and activities associated with the above mentioned stressful events. He stated that for example he avoids talking about these events and he avoids “anything to do with the military”.
5.He becomes distressed on exposure to some reminders of the traumatic events. He stated that for example when talking about these events he becomes “sad”.
6.He is much more of a loner.
7.He has difficulty showing affection towards his loved ones.
8.He generally feels detached from others – as if there is a barrier between him and others on occasions.
9.He suffers from sleep disturbance. It generally takes him hours to fall asleep and his sleep is very restless and wakeful.
10.His concentration is poor.
11.He is generally far more irritable.
12.He has an exaggerated startle reaction.
13.He is generally hypervigilant.”
55. He also diagnosed the Applicant as having major depression and presenting with a number of significant symptoms indicative of that condition, including low mood, sleep disturbance, diminished appetite, low energy, low libido, impaired concentration, low confidence and motivation, irritability, lack of enjoyment of activities, pessimism and suicidal thoughts.
56. In oral evidence to the Tribunal, Dr Altman said that the Applicant functions very poorly as a father and husband and in his social relationships generally. He considered that the main stressor experienced by the Applicant in his defence service was his hypothermia. He considered that, as a young man in the RAAF he saw himself as invincible and then found himself faced with the possibility of death in Operation Blackbird and therefore went from one extreme to another.
57. Dr Altman also regarded it as of little significance to a diagnosis of post traumatic stress disorder that the Applicant first exhibited symptoms of the disease some ten years after the traumatic event considered to have given rise to the condition. He maintained that it is not required of the diagnosis that the traumatic event have an immediate effect. He also stated that post traumatic stress disorder may manifest at first in a minor way, causing minor dysfunction which can easily be regarded as normal. He was unable to date the onset of the Applicant’s post traumatic stress disorder but was of the view, from the history given to him by the Applicant and information from Mrs McGuire, that the symptoms were not present prior to Operation Blackbird.
58. When questioned as to whether the Applicant’s symptoms may be due to either Attention Deficit Disorder or to his consumption of dexamphetamine, Dr Altman emphatically expressed the view that the Applicant’s behaviour and symptoms were the result of his post traumatic stress disorder. Although he did not quibble with Dr Jenkins’ diagnosis of Attention Deficit Disorder., he did not regard that condition as responsible for the Applicant’s reported extreme behaviour.
59. Dr Altman also stated that it is quite common for a person to not disclose a full history to a medical practitioner including a psychiatrist, and in the Applicant’s case, Drs Jenkins and Haik. He said that, in his initial consultations with the Applicant, he often answered a question by saying “classified” and it was somewhat difficult to obtain a history from him. He opined that the Applicant was concerned, having been in an elite unit in the RAAF, that there were limits on the information he could disclose.
60. Dr Haik, Psychiatrist, summarised, in his report of 11 April, 2002, his interview with and conclusions about the Applicant.
“In July 2000 Mr McGuire was diagnosed as suffering from Posttraumatic Stress Disorder by a psychiatrist, Dr Altman. The doctor listed several service related activities that were presumably regarded as causative of this condition. On the basis of his suffering PTSD, Mr McGuire was retired from Telstra in 2000 and now receives a disability support pension with his wife and 7 school age children.
Mr McGuire served with the RAAF from 1981 until 1994 and was discharged, according to his papers, ‘On request – Permanent Engagement.’ In 1995 he joined Telstra as a linesman. He has had ongoing treatment for orthopaedic disorders at least since the 1990’2. He had fractured his right leg prior to his 1981 enlistment.
At interview, one sought to obtain information as to understand the nature of Mr McGuire’s RAAF experiences and to estimate the quality and quantity of traumatic stress to which he had been exposed. Unfortunately, Mr McGuire chose to behave in a puerile, offensive and untoward manner, even in the company of his wife who seemed unmoved and indifferent to her husband’s uncivil behaviour.
When asked for detail to explain his many inferences that he had suffered emotionally in the RAAF, Mr McGuire claimed that almost all such information was ‘classified’ and could not be disclosed. He did say he was able to divulge such information to doctors he could trust. However, close examination of Dr Altman’s reports offered no information that would support the existence of the causal factors set out in the SOP for PTSD.
The only conclusion available, on reviewing the documentation and interviewing the Veteran, is that Mr McGuire does not suffer Posttraumatic Stress Disorder or any other psychiatric disorder. It would appear he has played a role that might persuade the interviewer he has been severely damaged by his service experiences and therefore he need not provide details of any trauma – stressful experiences which appear not to exist.”
61. Dr Haik’s report emphasised the behaviour of the Applicant at the interview, describing it as uncivil, rude, insulting and exceptionally unpleasant. He concluded that he “took every opportunity to obfuscate” and referred to his “purpose of concealment”.
62. In answer to the question “What is the cause of the Veteran’s psychiatric condition if not service related?” Dr Haik said:
“One has no evidence that Mr McGuire has a ‘psychiatric condition’. His behaviour at interview was regarded as a role he played out, a role required to convey the damage done during his RAAF service but one could not discover any such damage. Unfortunately, he gave me nothing sensible about his life upon which to form a ‘balanced opinion’. Given his complaints on the claim form(para. 3.7), it seemed his major problem is orthopaedic. Most of the entries in his LMO notes are orthopaedic and the only reference of a psychiatric kind is to the psychiatrist diagnosing ‘PTSD’.”
63. After reading the transcript of the Applicant’s evidence before the Tribunal, Dr Haik reported on 5 February 2003:
“In summary, Mr MaGuire (sic) has had an irascible personality since his RAAF service and had regularly been threatening, placed a fellow in a headlock (“I threatened a few people”) and threatened a Warrant Officer because he couldn’t get a house (pages 25, 26, 33). This irascible attitude continued through the 1990’s and his impolite and unprovoked demeanour during his interview with me in 2002 can now be better understood. However, it cannot be said his condition is a result of depression caused by his knee complaint. The Aropax he described taking when interviewed by me is not proof he is depressed. This agent functions not only as an antidepressant but also as a tranquiliser in anxiety and other states of agitation.”
64. In his oral evidence to the Tribunal Dr Haik insisted that the Applicant’s experience in Operation Blackbird did not constitute the kind of stressor envisaged in the SoP. He also said that he would expect a case of post traumatic stress disorder to manifest immediately after the relevant stressor was experienced because the person would be overwhelmed by fear and the threat to his existence.
65. Dr Haik noted that when the Applicant was examined by Dr Wilton when he was with the RAAF in June 1993, no psychiatric diagnosis was made. He described Dr Wilton as an “insightful and clever man” and further noted that Dr Wilton had recorded that there were marital problems rather than psychiatric problems at the time.
66. He also noted that the Applicant made no mention to him at his interview that he had shingles.
67. Dr Haik also discussed the possible effect of dexamphetamine on the Applicant and said that it is highly addictive and could give rise to paranoid delusions. He also said that the combination of Panadeine Forte and dexamphetamine would have a very intoxicating effect and could make a person violent.
68. In relation to his interview with the Applicant he said (transcript, p.72):
“I couldn’t understand what was going on with Mr and Mrs McGuire. I couldn’t understand why Mrs McGuire said nothing while her husband insulted me. She just sat there quietly and took it all in, therefore, I didn’t feel as if there was anything that I could do to interrupt the flow of the way Mr McGuire chose to run that interview. I have had experience at admission wards of public mental hospitals and once someone has decided to do something, there is not a lot you can stop them from doing. You admit them. Those who are amenable are amenable.”
69. Later in his evidence, Dr Haik said:
“Mr Wallis, Mr McGuire was not very accessible to me. I was there to determine whether he suffered from a psychiatric disorder as a result of his RAAF service. I was having trouble getting that information, let alone personal information. I got some personal information but not a lot.”
70. In relation to the question of whether the Applicant had experienced a severe stressor, as defined in the SoP, Dr Haik said in oral evidence:
“The DSM which – which is the manual which determines these sorts of conditions outlines a variety of examples of these sorts of stressors and they are very serious stressors. From what I heard from Mr Brown those people in New Zealand, all of them, were very, cold. No one was in a coma, as I was initially led to understand had happened to one of his friends and they were warmed up when they went back to the base station. There was not a threat to his existence, as I understand it, from an objective point of view.”
71. Exhibit A6 is a report from the Marlborough Express Newspaper dated 4 August 1983 which reports that 17 Australian personnel suffered hypothermia in an exercise designed to accustom Australian personnel to serving in freezing conditions. The report also described the Australians as having only cotton long johns under their trousers, unlike the New Zealanders. One man was described as suffering advanced hypothermia.
72. Exhibits R5 and R6 are reports from MJ Brennan of Writeway Research Service of inquiries made concerning the Operation Blackbird exercise. The reports state, in summary, that the exercise was conducted in New Zealand from 28 July to 12 August 1983 and the Applicant took part. Air temperatures were recorded as low as –10 degrees centigrade but there is no mention of personnel suffering hypothermia or going into a coma. The report says:
“The Commanding Officer of the Squadron at the time recalls it was bitterly cold and, while he does not recall any personnel suffering hypothermia as such or being in a coma, he does recall that personnel returning from outdoor activities were sent to heated quarters where they warmed up under medical supervision.”
73. Document T3 is the Applicant’s Service Medical Documents. Those documents show the Applicant as having taken an overdose of various pain relief medication due to “marital difficulties”. He is recorded as having had disturbing discussions with his wife and having confessed some matter to her. However, there is no detail of this. He is considered by Dr Wilton, Psychiatrist, as having no psychiatric symptoms.
74. After the hearing of the application, but before written submissions were received, Mr Wallis, for the Applicant, tendered into evidence, with the consent of Mr Modder for the Respondent, an Outpatient Clinical record dated 3 August 1983 which describes “Moderate hypothermia” and prescribes “Bedrest and TLC” as treatment.
75. I will take the elements of the diagnostic criteria contained in SoP No. 4 of 1999, concerning post traumatic stress disorder, in turn. The first element in paragraph 2(b)(A) of the SoP is exposure to a traumatic event of the type described in that paragraph with a response by the person of intense fear, hopelessness or horror.
76. The Applicant’s evidence was of exposure to extreme cold to the point of lapses of consciousness. He and his fellows had been advised on the effects of hypothermia and warned about the dangers of falling into a coma. I accept that he was mindful of this advice as he lapsed into unconsciousness himself and observed at least one of his fellows doing so. The Outpatient Clinical Record described above is evidence of him having suffered from moderate hypothermia. Mr Brown’s evidence was of observing over a dozen servicemen having been treated for hypothermia and of the decision to call off the exercise because of the threat to the \safety of the men. I consider, on the basis of this evidence, that the event was a traumatic one in that the Applicant experienced a threat to his and others’ physical integrity, and, in the context of the briefing he and the rest of the squadron had received from the New Zealand Air Force, he considered himself and his fellows to be in grave danger. In this regard, and in relation to the definition of the term “experiencing a severe stressor” relevant to factor 5 (a) of the SoP, I note the conclusion of Mansfield J in Stoddart v Repatriation Commission [2003] FCA 334:
“In my judgment the language of the definition of “experiencing a severe stressor” caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to the physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (ie, are subjectively experienced) the risk of death or serious injury or to physical integrity.”
77. In Woodward v Repatriation Commission (2003) 200 ALR 332, the Full Federal Court in considering the definition of "experiencing a severe stressor", noted and accepted Mansfield J's reasoning in Stoddart v Repatriation Commission (supra). The Full Federal Court at 357 held that:
“It would be open to the AAT to conclude the situation involving Mr Woodward was similar, in relevant respects, to that considered by Mansfield J in Stoddart. It would be open to the AAT to find that the material pointed to Mr Woodward believing that he was in danger while he was on patrol and that such a belief was reasonable. It would also be open to conclude that the material pointed to Mr Woodward perceiving a threat of serious injury or death from actual events, experienced in circumstances in which it was reasonable to perceive a threat. It would be open to conclude that there were one or more “events” which precipitated the perception and that the events were real in the sense that they had an objective existence.”
78. The Applicant did not say in his evidence that his response involved ”intense fear, helplessness or horror” but his evidence was that he thought they were all going to die and that when he woke from a lapse of consciousness he thought he had died. I consider that this response, by implication, must involve at least intense fear.
79. The Applicant’s evidence was that he has had persistent dreams about the cold. Mrs McGuire gave evidence that he has been preoccupied about getting his hands cold. Dr Altman reported a history from the Applicant that included flashbacks when he is cold. I am therefore satisfied that the Applicant satisfies the diagnostic criteria in paragraph 2(b)(B) of the SoP concerning persistent re-experiencing of the event.
80. Dr Altman also reported a history from the Applicant of avoidance of thoughts, situations and activities associated with the event and that he avoids anything to do with the military. He also reported the Applicant being a loner, feeling generally detached from others and having difficulty showing affection to his loved ones. I accept this evidence, which is supported generally by the Applicant’s and Mrs McGuire’s evidence, and conclude on this basis that the Applicant satisfies the diagnostic criteria in paragraph 2(b)(C) of the SoP concerning persistent avoidance of stimuli associated with the event and numbing of general responsiveness.
81. The Applicant’s, Mrs McGuire’s and Dr Altman’s evidence is that the Applicant suffers from irritability and outbursts of anger, an exaggerated startle response and from sleep disturbance. I accept this evidence and in this way the Applicant satisfies the diagnostic criteria in paragraph 2(b)(D) of the SoP concerning persistent symptoms of increased arousal.
82. There is no suggestion that the duration of the disturbance suffered by the Applicant is less than one month (paragraph 2(b)(E) of the SoP).
83. There is extensive evidence by the Applicant, Mrs McGuire and Dr Altman of the Applicant’s disturbance causing clinically significant distress or impairment in social, occupational or other important areas of functioning (paragraph 2(b)(F) of the SoP). This is supported by the Applicant’s service medical records and by his medical retirement from Telstra, on the grounds stated by Telstra (document T10).
84. I note that Dr Haik’s firm evidence was that the Applicant suffers from no psychiatric condition. However, I also note that, according to Dr Haik’s evidence, his interview with the Applicant was very difficult and provided him with very little information.
85. Dr Wilton, Psychiatrist, at the RAAF Base hospital on 17 June 1993, reported that the Applicant has no major emotional or psychiatric problems and noted the Applicant’s feelings of guilt and the effect on him of the medications he had taken for pain (T3). On 12 August 1993 Dr Wilton noted that the Applicant was having ongoing difficulties in his marital relationship “due largely to his insecurity as his wife … becoming more assertive and discussing her past with him”. Dr Wilton also reported the Applicant’s sons having been diagnosed with Attention Deficit Disorder and treated with dexamphetamine. He noted that the Applicant described himself as having had difficulties with attention all his life and thought his children had inherited the problem. He said:
“Overall then he has numerous problems for which counselling either, individual or with his wife, would probably help. The possibility of Adult ADD remains but should be revisited when the present crises have settled. I have arranged to see him over time for counselling and support.”
86. Dr Wilton’s assessment of the Applicant’s emotional and psychiatric state appears to have altered to some extent between his first interview with him on 17 June 1993 and his next meeting with him on 12 August 1993. He allows, on 12 August 1993, that the Applicant has “numerous problems”. It is unclear whether he maintains his conclusion, in June 1993, that the Applicant has “no major emotional or psychiatric problems”.
87. There is also the matter of the Applicant, according to Mrs McGuire, exhibiting no disturbing behaviour until 1993. Dr Haik was of the view that the symptoms of post traumatic stress disorder manifest immediately after a trauma is experienced. Dr Altman considered that the delayed onset of the Applicant’s symptoms is of no significance to diagnosis and that symptoms may manifest at first in a minor way causing little dysfunction and little impact on apparent normality. I note that the diagnostic criteria in the SoP make no mention of date of clinical onset of symptoms or features relative to the date of the traumatic event. On this basis, I do not consider that the apparent absence of significant features of post traumatic stress disorder for some ten years following the traumatic event precludes a diagnosis of post traumatic stress disorder.
88. I am satisfied that the Applicant suffers from post traumatic stress disorder in that he satisfies the diagnostic criteria in SoP No. 4 of 1999.
89. I turn now to the diagnostic criteria of major depressive disorder, contained in DSM-IV. Both the evidence of the Applicant, Mrs McGuire and Dr Altman support the conclusion that the Applicant suffers from depressed mood most of the day, nearly every day, that he has a markedly diminished interest or pleasure in all, or almost all activities most of the day, nearly every day, that he suffers fatigue or loss of energy nearly every day, that he suffers feelings of worthlessness nearly every day, has a diminished ability to think or concentrate and has suicidal thoughts. The evidence is that these symptoms cause clinically significant distress and impairment in social and occupational functioning. There is no evidence that the symptoms are better accounted for by bereavement and they have persisted for more than two months.
90. As to the diagnostic criteria that the symptoms are not to be due to the direct physiological effects of a substance, I am mindful that the Applicant took dexamphetamine for a period of some five years. The evidence of the likely effect of the drug on the Applicant’s behaviour is rather vague. Dr Altman was of the view that, although the Applicant may suffer from Attention Deficit Disorder, his behaviour was due to his psychiatric condition and not Attention Deficit Disorder or the drug he was taking. Dr Haik said that taking dexamphetamine could give rise to paranoid delusions and that in combination with Panadeine Forte could make a person violent. However, he said in his report of 11 April 2002 that “This does not seem to be the case here as he has not come to anyone’s attention for behaviour that is out of touch with reality. Therefore, it is unlikely that dexamphetamine is the basis for his unreasonable behaviour with me”. However, later, in oral evidence to the Tribunal, Dr Haik said that the medication would have had a mood elevating effect on the Applicant.
91. There was no evidence available to the Tribunal from Dr Jenkins who had initially prescribed the dexamphetamine. The evidence of the effect on the Applicant of the dexamphetamine, he took for some five years, is unsatisfactory and insufficient for me to be reasonably satisfied that his symptoms of depression were due to the direct physiological effects of dexamphetamine.
92. It follows that I am satisfied that the Applicant suffers from major depression in that he satisfies the diagnostic criteria of that condition as set out in SoP No. 59 of 1998 and referring to DSM-IV.
Is the Applicant’s Post Traumatic Stress Disorder and/or Depressive Disorder Connected with his Defence service?
93. In accordance with section 120B(3) of the Act, I must consider whether the material before me raises a connection between the Applicant’s post traumatic stress disorder and his depressive disorder and his defence service and is upheld by the relevant SoP.
94. In relation to post traumatic stress disorder, the relevant factor in the SoP, factor 5(a), requires the Applicant to have experienced a severe stressor prior to the clinical onset of his post traumatic stress disorder.
95. I have already concluded that the Applicant was exposed to a traumatic event in which he was confronted with events that involved a threat to his physical integrity and that of others and that his response to that event involved at least intense fear. The definition of “experiencing a severe stressor” is identical to the description of a “traumatic event” in paragraph 2(b)(A) of the SoP except that it includes the following words:
“In the setting of service in the Defence Forces, or other service where the Veteran’s Entitlement Act applies, events that qualify as 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.”
96. I consider that the Applicant’s experience of Operation Blackbird amounted to a threat of serious injury or death. In so concluding I am mindful of the evidence of Mr Brown to the effect that no person in his command on that exercise went into a coma and that the exercise lasted only about three hours. I am also mindful of Dr Haik’s firm opinion that the event does not amount to a severe stressor within the meaning of the SoP and from an objective point of view.
97. I refer again to the conclusion reached by Mansfield J in Stoddart (supra). I consider that “judged objectively from the point of view of a reasonable person in the position of and with the knowledge of” the Applicant, the exposure to the extreme cold in the context of the briefing received on the effects of hypothermia “are capable of and did convey (i.e. are subjectively experienced) the risk of death or serious injury…”. I therefore conclude that the Applicant did experience a severe stressor within the meaning of the SoP.
98. As to whether the experience took place prior to the clinical onset of post traumatic stress disorder, Dr Altman’s firm evidence was that clinical onset was at some time after the experience although he was unable to put a precise date to that onset. Dr Haik offered no evidence on that point, being of the view that the Applicant does not suffer from the condition at all. Mrs McGuire’s evidence was that the Applicant displayed none of the symptoms currently complained of until 1993. I am satisfied that the Applicant experienced the severe stressor prior to the clinical onset of his post traumatic stress disorder and thus satisfies factor 5(a) of the SoP.
99. Section 120B(3) of the Act has the effect, by virtue of the Applicant’s satisfaction of factor 5(a) of the SoP, of allowing the Tribunal to be reasonably satisfied that his post traumatic stress disorder is defence caused.
100. In relation to the Applicant’s depressive disorder, all of the factors in the SoP refer to the date of clinical onset of the depressive disorder relative to either having a clinically significant psychiatric condition, experiencing a severe psychosocial stressor or suffering from chronic pain of at least six months duration or having a major illness or injury. The relative periods are short, being either six months or one year. Dr Altman offered no opinion on when the clinical onset of the Applicant’s depressive disorder might have been but referred to the Applicant’s major depression as being associated with his post traumatic stress disorder. The Applicant’s and Mrs McGuire’s evidence as to the time of onset of the Applicant’s symptoms of depressive disorder is vague and does not allow the time of clinical onset to be determined.
101. In the absence of evidence that allows the dating, within months, of the clinical onset of either the Applicant’s post traumatic stress disorder or his depressive disorder, I cannot conclude that any of the factors in the SoP are satisfied. It follows, in accordance with section 120B of the Act, that I cannot conclude that the Applicant’s depressive disorder is defence caused.
Decision
102. The decision under review is set aside and the Applicant’s claim is remitted to the Respondent for assessment with directions that the Applicant suffers from post traumatic stress disorder and from depressive disorder and that the Applicant’s post traumatic stress disorder is defence caused but his depressive disorder is not defence caused.
I certify that the 102 preceding paragraphs are a true copy of the reasons for the decision herein of MS N BELL
Signed: A. Krilis
AssociateDate/s of Hearing 15 November 2002, 10 February 2003
Date of Decision 22 April 2004
Representative for the Applicant Richard Wallis
Representative for the Respondent Stephen Modder
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