McKinley and Repatriation Commission
[2007] AATA 1298
•3 May 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1298
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200500970
VETERANS’ APPEALS DIVISION ) Re JENNIFER ANNE McKINLEY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Brigadier C. Ermert, Member Date3 May 2007
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (sgd) C. Ermert
Member
VETERANS’ AFFAIRS - operational service in East Timor – preliminary determination of condition – Generalised Anxiety Disorder – whether applicant suffered a severe psychosocial stressor – sight of armed soldiers at Dili airport – vehicle trips to Dili and Balibo – blood, excrement and slogans on walls of accommodation – conversations of local population – accusation of being anti-social – gunfire near compound – perimeter patrols – pipe bombs – sight of casualties in Dili hospital – Statement of Principles (SoP) - whether hypothesis fits SoP – reviewable decision affirmed
Veterans’ Entitlements Act 1986
Benjamin v Repatriation Commission (2001) 70 ALD 622
Constable v Repatriation Commission [2005] FCA 928
Fogarty v Repatriation Commission [2003] FCAFC 136
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
White v Repatriation Commission (2004) 39 AAR 67
REASONS FOR DECISION
3 May 2007 Brigadier C. Ermert, Member INTRODUCTION
1. Ms Jennifer Anne McKinley, the applicant, served in the Australian Army (the Army) from 12 February 1986 to 13 October 2005. Ms McKinley suffered injuries in a motorcycle accident in 1997 as a result she was diagnosed as suffering Post Traumatic Stress Disorder (PTSD). Ms McKinley subsequently returned to work and undertook a training course in the Indonesian language prior to a posting to East Timor. She served with the Army in East Timor from 11 October 1999 to 1 February 2000. This service constitutes eligible and operational war service within the meaning of the Veterans’ Entitlements Act 1986 (the Act).
2. In East Timor Ms McKinley encountered a number of situations that caused her to be concerned for her safety. These included the circumstances of her arrival at Dili airport, travel to the compound in which her unit was located, the sight of blood and excrement on the walls of the building in which she was housed, various vehicle trips to Dili, having to undertake patrols around her compound, gunfire near her compound and seeing casualties during a visit to the hospital. Ms McKinley was also accused by her commanding officer of being unsociable. At the end of her tour of duty in East Timor Ms McKinley was unable to cope with crowds and suffered regular nightmares. She was later diagnosed as suffering from psychiatric conditions.
3. Ms McKinley receives a disability pension at 30 per cent of the General Rate for accepted disabilities to her knees and ankles. On 25 February 2005 Ms McKinley lodged a claim to have PTSD, Anxiety and Depression accepted as war-caused conditions. Her claim was refused by the Repatriation Commission (the respondent). On 22 September 2005 the Veterans’ Review Board (VRB) affirmed the decision of the respondent. This hearing is a review of that decision of the VRB.
The Hearing
4. At the hearing Ms McKinley was represented by Mr Andrew Larkin of Counsel, instructed by Williams Winter Solicitors. The respondent was represented by Mr Kevin Herman, an advocate with the Department of Veterans’ Affairs. I had before me the documents provided by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents). Mr Larkin tendered additional documents marked as Exhibits A1 and A2. I heard evidence from Ms McKinley. Mr Herman tendered additional documents marked as Exhibits R1 to R7. I heard evidence from Dr Nigel Henry Mark Strauss, consultant and occupational psychiatrist.
The Issues
5. The claim by the applicant is that her psychiatric condition is war-caused. Although there is unanimity among the psychiatrists who have examined Ms McKinley that she suffers from a psychiatric condition, there is disagreement between the parties regarding the diagnosis of the psychiatric condition. In Fogarty v Repatriation Commission [2003] FCAFC 136 the Full Court of the Federal Court of Australia found that the diagnosis should be determined as a preliminary matter. It is only after the determination of the diagnosis that the Tribunal can consider whether the condition is war-caused. Thus, the first issue to be determined in this case is the diagnosis of the psychiatric condition suffered by Ms McKinley.
6. After the determination of the diagnosis of Ms McKinley’s condition, the substantive issue is whether that condition is war-caused.
7. The respondent concedes that Ms McKinley’s condition of Alcohol Dependence is secondary to her depressive disorder. This concession will be taken into account subsequent to a finding on the psychiatric condition.
8. In her Statement of Facts and Contentions the applicant submits that a finding in favour of the applicant would increase the pension to at least 70 per cent of the General Rate; and that this would make the applicant eligible for consideration for the Special Rate of pension. In preliminary discussions at the hearing the parties agreed that if such a finding were made the matter should be remitted to the respondent for a re-assessment of Ms McKinley’s pension based on the finding. I accepted this proposition as a great deal of evidence and argument in support of the Special Rate determination may be of no value in the event of a negative finding on the causation of the condition. The issue of assessment of pension rate was not pursued in this hearing.
What is the diagnosis of Ms McKinley’s psychiatric condition?
9. Mr Larkin submitted that the preferred diagnosis is that of an anxiety disorder. In that contention he is supported by the opinions of Dr Carol Newlands and Dr Rob Peterson, consultant psychiatrists. In her report dated 28 April 2005 (T9) Dr Newlands, the applicant’s treating psychiatrist, finds that Ms McKinley’s condition satisfies all the categories of Generalised Anxiety Disorder. Dr Petersen, in his report dated 24 November 2006 (Exhibit A2), concurs with Dr Newlands’ diagnosis of generalised anxiety disorder and her reasoning in reaching the diagnosis.
10. The respondent contends that the appropriate diagnosis in this case is Depressive Disorder. This contention is based on the opinion of Dr Nigel Strauss, contained in his report dated 25 May 2006 (Exhibit R1). In that report Dr Strauss says She now suffers from a major depression …. In my opinion the major diagnosis is that of a depressive disorder…. In his oral evidence Dr Strauss described his hierarchical view of psychiatric disorders in which depressive conditions are more significant than anxiety conditions. However, he agreed that Ms McKinley has an anxiety disorder as well as a depressive disorder.
11. The standard of proof to be applied to the issue of the diagnosis is to my reasonable satisfaction. In its judgement in Benjamin v Repatriation Commission (2001) 70 ALD 622 the full Federal Court stated at 634:
When the commission, or the tribunal on review, is required to determine whether a veteran is suffering from a particular injury or disease, that issue must be decided to the reasonable satisfaction of the decision-maker, in accordance with s 120(4) of the Act…
12. This conclusion is consistent with the full Federal Court’s decision in Repatriation Commission v Budworth (2001) 116 FCR 200 at 207 and Repatriation Commission v Cooke (1998) 90 FCR 307 at 310 and the Federal Court’s decision in Repatriation Commission v Gosewinckel (1999) 59 ALD 690 at 702.
13. After considering the evidence, and in particular the agreement of Dr Strauss that Ms McKinley also suffers from an anxiety disorder, I find the psychiatric condition suffered by Ms McKinley is Generalised Anxiety Disorder.
Is Ms McKinley’s Generalised Anxiety Disorder war-caused?
14. The question of whether an injury or disease is taken to be war‑caused is covered in section 9 of the Act. This section relevantly provides as follows:
War-caused injuries or diseases
(1)Subject to this section, … for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
…
15. The parties agree that Ms McKinley’s service in East Timor constitutes operational service. Thus the determination of whether her condition of generalised anxiety disorder is war‑caused is to be determined by applying sections 120(1) and 120(3) of the Act. Those sections provide that:
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.
(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.
16. Section 120A of the Act provides that, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (RMA) has made a Statement of Principles (SoP) in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from section 120A(3), which relevantly provides:
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
17. Section 196A of the Act provides for the establishment of the RMA. Section 196B of the Act provides, in effect, that if the RMA is of the view that:
there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a)operational service rendered by veterans;
…
the [RMA] must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(a)the factors that must as a minimum exist; and
(b)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
18. The reference in section 196B(2) to a particular kind of injury, disease or death being related to service is expounded in section 196B(14) of the Act. This provides that a factor causing an injury is related to service rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
CONSIDERATION OF THE ISSUES
18. The condition of generalised anxiety disorder is the subject of an SoP. Therefore, I must apply the test prescribed by section 120A(3) of the Act, as explained Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97, in the following way:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
Step 1 – Does the Material Point to a Hypothesis Connecting Generalised Anxiety Disorder with Ms McKinley’s Operational Service?
19. Ms McKinley gave evidence of the incidents that occurred during her operational service in East Timor and caused her to be concerned for her safety. The “first incident” was when Ms McKinley arrived at Dili Airport. She saw armed soldiers whom she thought may have been Indonesian and who may have been hostile although she could not recall any hostile acts. She did not remember seeing them smiling.
20. The “second incident” of concern to Ms McKinley was travelling the five or ten kilometres from Dili Airport to the base in a Land Rover vehicle driven by her Commanding Officer. Ms McKinley had her weapon loaded, with a round in the chamber and the safety catch on ‘Safe’. Ms McKinley said that nothing untoward happened during the trip but she saw a lot of people standing on the sides of the road, just staring, not smiling. She did not know whether they were local East Timorese or Indonesians.
21. The “third incident” occurred when Ms McKinley arrived at her accommodation. She found that the inside walls of the building she was to occupy had been smeared with blood and excrement. She also found that slogans were written in Indonesian on the walls. Ms McKinley understood the slogans to say things like get out of our country and stop INTERFET. In the slogans there was no specific reference to Australians and Ms McKinley could not tell who had put the slogans on the walls. Ms McKinley had to help clean the walls and the building before moving in.
22. The “fourth incident” that caused concern to Ms McKinley was the six or more vehicle trips she made to Dili. Although she did not remember any attacks during these trips, Ms McKinley says that she was terrified for her safety. Ms McKinley had the general feeling that the Australian forces were not wanted. She was concerned that people may have been concealed by the long grass along the sides of the road.
23. Ms McKinley was also concerned about the risk of injury from pipe bombs (“fifth incident”). She had seen metal pipes that had been turned into weapons and was concerned for her safety.
24. Another issue of concern for Ms McKinley was the overheard conversations of local people, who were saying that they did want the Australians in the country. Ms McKinley thought the people were East Timorese who could have been Indonesian sympathisers (“sixth incident”).
25. The “seventh incident” that caused concern to Ms McKinley was when her Commanding Officer accused her of being anti-social. Ms McKinley said that he waved his finger at her and that his tone and words were not friendly.
26. On another occasion, from her compound Ms McKinley saw flashes of gun fire. From the noise she could tell it was close. Although the compound was not under attack, Ms McKinley understood that there was action happening and that it was not too far away. Ms McKinley said that she was under the impression that the machine guns in her compound were firing at something outside the compound but she could not recall if there was any gunfire coming into the compound. Her evidence was that she remained at stand to, watching out of the windows for the next 24 hours (“eighth incident”).
27. Ms McKinley also had to undertake perimeter patrols around the compound. Her evidence was that she was frightened at what she might encounter on these patrols. However, the patrols were routine and all passed without incident (“ninth incident”).
28. The “tenth incident” of concern to Ms McKinley was the occasion when she attended the hospital in Dili and saw casualties. Ms McKinley said that it was scary as she did not want to see herself, or someone she knew, in such a situation.
29. In her signed statement dated 17 October 2005 (Exhibit A1) Ms McKinley said:
By the end of my tour of East Timor I was unable to cope with crowds so that I could not venture into a supermarket. After the tour of East Timor I suffered regular nightmares and had difficulty sleeping. I found that I did not want to leave the house and nor did I want to socialise. I insisted that the doors of my residence were locked even when I was at home. I was suffering mood swings and in particular I was suffering anxiety, depression and tearfulness.
30. Dr Newlands examined Ms McKinley and took a history consistent with paragraphs 19 to 28 above. In her report dated 28 April 2005 (T9) Dr Newlands stated that Ms McKinley is suffering from a severe Generalised Anxiety Disorder resulting from the experiences she witnessed in East Timor. Dr Rob Petersen has been treating Ms McKinley on a fortnightly basis since June 2006. In his report dated 24 November 2006 (Exhibit A2) Dr Petersen concurred with the diagnosis and reasoning of Dr Newlands.
31. On the basis of the Ms McKinley’s evidence and the reports of the two psychiatrists, I find that there is material pointing to a hypothesis that Ms McKinley’s condition of Generalised Anxiety Disorder resulted from her operational service in East Timor.
Step 2 – Is There an SoP in Force?
32. Instrument Number 1 of 2000 concerns Anxiety Disorder which includes Generalised Anxiety Disorder. Thus there is in force a relevant SoP determined by the RMA.
Step 3 – Does the Hypothesis Fit the Template of Instrument No.1 of 2000?
33. Under the relevant SoP the RMA accepts the following factor as raising a reasonable hypothesis to connect Generalised Anxiety Disorder with operational service:
5(a) for generalised anxiety disorder …, only
…
(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder;
…
34. Severe psychosocial stressor is defined as:
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), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.
35. The factor contains two elements for determination: experiencing a severe psychosocial stressor and that the stressor must be experienced within the two years immediately before the clinical onset of anxiety disorder.
36. Mr Larkin submitted that the applicant meets the element of experiencing a severe psychosocial stressor and supports his submission with the opinions of Drs Newlands and Petersen.
37. In her report (T9, p80), Dr Newlands states that she believes Ms McKinley meets the requirements of the relevant SoP. She goes on:
In her case, the severe psycho-social stressor consisted of the events of her period of time in East Timor. These events included her anxiety whilst travelling in Land Rovers, her fear that even her protective clothing would not protect her from a pipe bomb, her reaction to having to stand-to, and believing herself in the midst of an imminent battle, and her feelings of fear and distress in observing the walls of the future headquarters, being covered in what she thought were bloodied handprints, and messages to the Australians to get out, indicating that they were not wanted.
...
From her account however, her anxiety condition started soon after her return from Timor, when she was aware of disliking crowds. Things have escalated since then.
From the description given then, I believe that her anxiety is entirely related to an event which occurred during service.
38. In his report (Exhibit A2, p3) Dr Petersen says:
2. Dr Newlands provides a carefully reasoned diagnostic formulation that clearly places the Generalised Anxiety Disorder within the requirements of the relevant Statement of Principle which would appear to over-ride the formulation of Dr Strauss.
3. I do therefore accept that there is reasonable hypothesis to connect the diagnosis with war service.
39. Mr Larkin referred me to the decision of the Federal Court in the matter of Constable v Repatriation Commission [2005] FCA 928 in which Dowsett J said (at paragraph 27):
I feel compelled to add that it would be a bold step for a tribunal of fact to speculate about the effect upon a soldier of an incident involving casualties in a theatre of war whatever his or her experience or rank. As far as I can see, there was not much material concerning the applicant's background, training and experience, including his active service, nor of how a reasonable person might react to battle casualties. In recent times, only a very small proportion of the Australian population has been exposed to the horrors of warfare, or even to the rigours and incidents of military service. It may be unwise to assume that civilian life experiences give a reliable guide to conduct in war.
40. Mr Herman submitted that a vague or general feeling of apprehension about the environment in which one finds oneself, albeit in an area which has known serious civil disturbance and riots in the recent past, or a general feeling of concern about one’s own safety does not constitute the identifiable occurrence required by the SOP. He submitted that Ms McKinley’s service in Timor, while it was perhaps often uncomfortable and it caused Ms McKinley some anxiety, had nothing about it which would satisfy the requirements for experiencing a severe psychosocial stressor as described in the relevant SOP.
41. In support of his submission, Mr Herman relied on the opinion of Dr Strauss, as contained in his report dated 25 May 2006 (Exhibit R1), confirmed in his supplementary report dated 17 November 2006 (Exhibit R2) and re-iterated in his oral evidence. Dr Strauss says (Exhibit R1, p9):
This woman claims that she was emotionally distressed by her time in Timor and I have no argument with this but I do not believe that she developed a psychiatric illness as a consequence of her time in Timor. I accept that she was upset and frightened but she certainly did not experience any severe psycho-social stressor and I do not believe that there is any evidence to suggest that she developed a significant psychiatric condition as a consequence of her time in Timor.
Consideration of the evidence
42. In considering each of the ten incidents, described in paragraphs 19 to 28, I note that none of them is comparable to the examples in the definition of severe psychosocial stressor given in the relevant SoP, namely being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems. The closest any one incident comes to the given examples is the reported incident of gunfire from Ms McKinley’s compound. Mr Herman referred me to a report by a historical researcher, Mr Barry Morgan, (Exhibit R3), which found no record in the war diaries of the unit that related to such an incident. Leaving aside Mr Herman’s contention that the incident may not have occurred, it is clear from Ms McKinley’s own evidence that she was not being shot at and the gunfire seemed to be aimed outwards from the compound.
43. Further, I can find no evidence that Ms McKinley suffered feelings of substantial distress from any of the occurrences. Her evidence included feelings of concern, apprehension, not being wanted and being a little scared at the sight of casualties in the hospital. She agreed with Mr Herman that her concerns were mainly a fear of the unknown, but that nothing untoward happened to her.
44. In considering the application of the judgement in Constable to this case I note that the issue concerned the veteran seeing Australian battle casualties with bloodied bandages being transported in a Land Rover. In this case there was no evidence that the casualties seen by Ms McKinley were battle casualties. They were seen in a hospital environment and the only apparent affect on Ms McKinley was that she found it a scary situation, and one she did not want to be in herself. Ms McKinley gave no evidence of substantial distress as a result of seeing the casualties in the hospital.
45. I also had regard to the judgement of the Federal Court in White v Repatriation Commission (2004) 39 AAR 67 in which Spender J said (at paragraph 32):
In my opinion, the submission on behalf of Mr White that an event which in fact evokes feelings of substantial distress in a person satisfies the definition of "severe psychosocial stressor" has to be rejected. Such a submission, that any occurrence no matter how trivial or innocuous it objectively is, can be a "serious psychosocial stressor", means that the examples given in the definition of "severe psychosocial stressor" would be not only irrelevant and devoid of utility, but positively misleading.
46. I consider the findings in White to be relevant to this case. The evidence of Ms McKinley was of a number of occurrences that were, with the possible exception of the gunfire from the compound incident, objectively innocuous and in no way comparable to the examples given in the definition of severe psychosocial stressor. Even the gunfire incident did not involve being shot at as described in the definition. The evidence was only of gunfire aimed outwards from the compound.
47. After considering all the material before me I find no evidence that Ms McKinley experienced a severe psychosocial stressor as required by the relevant SoP. This means that the hypothesis does not contain one of the factors which the RMA has determined to be the minimum for the hypothesis to be considered reasonable. Consequently, Ms McKinley’s claim fails at this point. There is no need to consider any of the evidence presented relating to the onset of the Generalised Anxiety Disorder.
Conclusion
48. The applicant’s hypothesis is that her condition of Generalised Anxiety Disorder was caused by her experiences while on operational service in East Timor. Instrument Number 1 of 2000 contains the SoP for Anxiety Disorder including Generalised Anxiety Disorder. One of the factors which must exist before the condition can be related to Ms McKinley’s operational service is that she must have suffered a severe psychosocial stressor within two years of the onset of the condition. After considering all the material available to me, I find no evidence that Ms McKinley suffered a severe psychosocial stressor as defined in the relevant SoP. As a consequence, there is no reasonable hypothesis and the application must fail.
Decision
49.The Tribunal affirms the decision under review.
I certify that the forty-nine [49] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr C. Ermert, Member
(sgd) Ursula Noyé
Clerk
Date of Hearing: 21 February 2007
Date of Decision: 3 May 2007
Advocate for the applicant: Mr A. Larkin, Counsel
Solicitor for the applicant Williams Winter Solicitors
Advocate for the respondent: Mr K. Herman, Department of Veterans’ Affairs
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