Menhennett and Repatriation Commission
[2001] AATA 358
•11 April 2001
DECISION AND REASONS FOR DECISION [2001] AATA 358
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/842
VETERANS' APPEALS DIVISION )
Re WILLIAM JOHN MENHENNETT
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen Dr P D Lynch, Member
Date11 April 2001
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2000/842
)
VETERANS' APPEALS DIVISION )
Re: WILLIAM JOHN MENHENNETT
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Dr P Lynch, Member
Date 11 April 2001
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision, namely THAT:
1. The Applicant, WILLIAM JOHN MENHENNETT, is entitled to payment of pension for the defence-caused disease of Post Traumatic Stress Disorder as and from 26 November 1998; and
2. The Applicant is entitled to pension for incapacity occasioned by all war-caused and defence-caused diseases at the intermediate rate as prescribed by section 23 of the Veterans' Entitlements Act 1986 as and from 26 November 1998.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Whether Applicant's condition of Post Traumatic Stress Disorder was attributable to service. Rate of pension to be paid.
Veterans' Entitlements Act 1986 - s23, s120B, subss120(1) and (3)
Repatriation Commission v Smith 15 FCR 327
Cavell v Repatriation Commission 9 AAR 534
Forbes v Repatriation Commission 58 ALD 394
REASONS FOR DECISION
Senior Member M D Allen
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Signed: Kwai-Ling Wong
..................................................................................……………………………….Associate
Date of Hearing 11 April 2001
Date of Decision 11 April 2001
Counsel for Applicant Mr D G PriceSolicitor for Applicant R L Whyburn & Associates
Advocate for Respondent Mr S Modder,
Department of Veterans' Affairs
DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2000/842
By Mr M.D. Allen, Senior Member; and
Dr P D Lynch, Member
WILLIAM JOHN MENHENNETT and
THE REPATRIATION COMMISSION
SYDNEY, WEDNESDAY, 11 APRIL 2001MR ALLEN: In this matter, pursuant to an application lodged with the Tribunal on the 2nd day of June 2000, the applicant sought review of a decision by the respondent made the 14th day of July 1999 and affirmed by a Veterans Review Board on 11 April 2000 that the condition of post-traumatic stress disorder was not related to service by the veteran during the periods of either operation or eligible service in the Royal Australian Navy.
The applicant had operational service, for various periods in the Far East Strategic Reserve, but that is not relevant to these proceedings. He had operational service for the short periods "HMAS Sydney" visited the port of Vung Tau in the Republic of South Vietnam. For reasons which will become clear later, we do not propose to deal in any great detail with that service. However, he did, as a member of the Royal Australian Navy, have eligible defence service from 7 December 1972 until his discharge from the Navy on 11 September 1978.
So far as relates to his eligible service, the standard of proof in this matter is that provided by subsection(4) of section 120 of the Veterans Entitlements Act; namely, proof to the Tribunal's reasonable satisfaction. As pointed out by the Full Court of the Federal Court in Repatriation Commission v Smith 15 FCR 327, the term "reasonable satisfaction" equates to the civil standard of proof. Insofar as relates to the applicant's operational service, then of course the well known provisions of subsections (1) and (3) of 120 apply and we do not pause to recapitulate those particular provisions here.
Subsection (4) of section 120 is affected by section 120b of the veterans entitlements Act which provides, inter alia, that in determining a claim the Commission, and hence this Tribunal, can only be reasonably satisfied that a disease contracted by a person was defence caused if it conforms with a so called statement of principles. The statement of principle in this matter relating to post-traumatic stress disorder is instrument No 4 of 1999 – which incidentally is document T20 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 – and the documents relating to psycho-active substance abuse is instrument No 76 of 1998.
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©Auscript Pty Ltd 2001In dealing first of all with the instrument relating to post-traumatic stress disorder, the instrument defines the condition in terms derived from the diagnostic and statistical Manual of Mental Disorders, 4th Edition. The factors which must exist before it can be said that, on the balance of probabilities, a 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.
Experiencing a severe stressor is then defined to mean that:
… the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person's, or another person's, physical integrity.
It then goes further to say that events that qualify as stressors include – now the Tribunal would only pause to say the word there is "include" and in the normal cannons of statutory interpretation, the work "include" is not limiting. It does include:
(i)threat of serious injury or death; of
(ii)engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
Again, the words "observation of casualty clearance" should take their ordinary common meaning. That is to say, he witnessed events such as corpses as a result of traumatic events. In particular, in appreciating these issues, we would refer to page 424 of DSM-4 which says:
Witnessed events include, but are not limited to, observing serious injury or unnatural death of another person due to violent assault, accident or disaster or unexpectedly witnessing a dead body or body parts.
As an aside, again we would say to see what the applicant believed to be body parts of a person who was known to him removed from a helicopter would seem to come within that. The DSM goes on to state that "witnessed events" include learning about the sudden, unexpected death of a family
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member or close friend. In this matter, the applicant gave evidence of various events, both in South Vietnam and later.When cross-examined relating to the events in South Vietnam, he stated that he felt threatened but conceded, as we understand it, that the vessel "HMAS Sydney" was not directly threatened and he was satisfied that the ship was not threatened. It seems to us that the events in South Vietnam certainly did not come within the definition of a stressor as in the statement of principle. We put that to one side.
The next event which occurred to the applicant admittedly happened in a period of non-eligible service. He was a crew member of "HMAS Melbourne" when, on 3 June 1969, that vessel collided with the destroyer "USS Frank E. Evans". As a result of that collision, 74 American sailors died. His statement to the Tribunal, which was not controverted in cross-examination together with his evidence, is that he was a leading airman on the Melbourne's flight deck. They preparing to launch and recover fixed wing aircraft when the announcement came over the ship's broadcast system, "hands to collision stations".
He saw the Evans turn across in front of the Melbourne. Then, at the moment of impact, the Evans rolled upside down and propellers could be seen turning out of the waters. Then Melbourne's searchlights were turned on. He saw the forward section of the Evans drifting down the Melbourne's port side. It was sinking. He could see men attempting to climb through escape hatches as it was going down. Others who had got out were jumping into the water and some were holding on and moving upwards as the water arose around them. He states he felt, "helpless, inadequate, bewildered, confused".
The shattered stern section of the Evans scraped its way along Melbourne's starboard side. Sailors from Evans were gathering on the Destroyer's stern calling to the Melbourne for assistance. Melbourne's sailors were securing the stern section to the carrier to prevent it drifting away. Then he continued working until after 6.30pm. He then states that the Melbourne afterwards went to Singapore for dry docking for repairs and, as he points out, no counselling was given to the sailors at that time.
Their only relief was that they were on shore leave and for two weeks he and his companions, as he put it, were drunk every night; probably an understandable reaction to what happened at that time. In cross-examination today, he said, "I was horrified when I saw what happened." It seems undoubtedly that witnessing the collision between "HMAS Melbourne" and the "USS Frank E. Evans" comes within the definition of stressor and the applicant as a result of his reactions met the criteria for a post-traumatic stress disorder.
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©Auscript Pty Ltd 2001The next event which he refers to was when a Skyhawk aircraft, exercising with "HMAS Melbourne" crashed. This was on 16 May 1974. At that time the applicant was a petty officer and part of a flight deck duty team. Shortly afterwards he received the message over his headset that the pilot was Ralph McMillan, who was known to him. He says that he was a person he admired and looked up to. Later, after the rescue helicopters had been launched, they were notified a helicopter was returning and to stand by as it landed. At that time he still felt that the pilot of the Skyhawk would have ejected safely.
As he says, "I was not prepared at all for the shock that jarred my mind and emotions". The diver, being a sea/air rescue diver, leaned inside the helicopter and lifted out two canvas bags each the size of a pillow slip. One was about half full; the other about a quarter full. According to the applicant at the time, he understood them to contain the remains of the pilot of the Skyhawk. There is nothing in the report by the investigator engaged by the respondent which contradicts the applicant on that particular point. He states that his reaction was one of horror.
The applicant has consulted three psychiatrists, and one psychologist. Dr Koller, is his treating psychiatrist, and his reports are at document T11, and document T15, of the section 37 documents. In the opinion of Dr Koller, the applicant suffers from a post-traumatic stress disorder. Dr Shand interviewed the applicant on behalf of the respondent. In his second report, which is exhibit R3, Dr Shand says, inter alia:
The history of the Melbourne/Evans collision would certainly qualify the experience as a "severe stressor," even if the patient's response was not said to have involved "intense fear, helplessness, or horror," which would disqualify the criterion.
He then goes on to say:
If the diagnosis of Post-Traumatic Stress Disorder is qualified I would regard the experience of the Melbourne/Evans collision as the more potent stressor and the incident involving McMillan's as a less major contributing stressor, or as an aggravating stressor.
Dr Dinnen considers that the applicant does have a post-traumatic stress disorder, and implicates events throughout the applicant's service, including Vietnam, the collision with the USS Frank E. Evans, and the Sky Hawk incident.
The applicant was also seen, as I said, by Mr Taylor, a vocational psychologist. In his history, Mr Taylor records:
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In 1969 Mr Menhennett was on the Melbourne when it struck the Evans. After responding to hands to collision drill, Mr Menhennett was on the flight deck and witnessed the actual collision. …
Mr Menhennett said he did not cope well. He worked from 3.15 am to 6.30 pm that day. He cannot recall what he did that night. After the Melbourne got to Singapore for temporary repairs, he got intoxicated every day for the 10 days they were in port.
Having regard to the material before us, we are reasonably satisfied that the applicant was exposed to two traumatic events, namely the collision, the USS evans, and the crash of the Sky Hawk aircraft. Both of those involved responses of horror. Drs Dinnen and Koller regard the applicant as having a post-traumatic stress disorder. Dr Shand for the respondent, also considers that a post-traumatic stress disorder is an available diagnosis.
We are satisfied on the balance of probabilities that the applicant does have a post-traumatic stress disorder. The occasion giving rise to it, conforms with the statement of principles. In particular, we'd again refer to the second report, of Dr Shand, that his post-traumatic stress disorder, was initiated, as we see it, by the collision with the USS Frank E. Evans, and then aggravated by the Sky Hawk crash. What that means is, that the initiation may have taken place in a period of non eligible service, but the aggravation of that condition, took place, during a period of eligible service, and hence the respondent is liable to pay pension for disability occasioned by that condition.
We would mention alcohol dependence, or alcohol abuse, and it is clear that the applicant is drinking at dangerous levels. However, when we have regard to the statement of principles, it would seem that the initiation of his psychoactive substance abuse, or alcohol dependence, occurred following the collision, between the Melbourne and the Evans, and as such it doesn't come within the relevant statement of principles.
It may well be however, of course, that the applicant may have a common law claim against the Commonwealth in that regard. Certainly the precedents of the Voyager disaster give rise to that inference, and also for applications for extension of time.
As the applicant does suffer from a post-traumatic stress disorder, we must consider the rate of pension to be paid. Currently he is in receipt of pension, at 60 per cent of the general rate. Section 23 of the Veterans' Entitlements Act, gives the criteria for the grant of pension at the Intermediate Rate of pension. The criteria inter alia, are that the veteran is under the age of 65, which he is, that he is currently receiving the pension at 60 per cent, and it is quite clear that the recognition of post-traumatic stress disorder, with it can be said, and alcohol habituation as a result of self medicating for the post-traumatic stress disorder, he would certainly get pension in excess of 70 per cent.
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The tests are that the veteran's incapacity from war caused disease is of itself alone of such a nature to render the veteran incapable of undertaking remunerative work, otherwise than on a part time basis, or intermittently, and that the veteran is by reason of incapacity from war caused disease alone, prevented from continuing to undertake remunerative work, that the veteran was undertaking and is, by reason therefore, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering, if the veteran were free of that incapacity. For the intermediate rate, the criteria is that the veteran is capable of undertaking work of more than 8 hours but less than 20 hours per week.
The veteran's evidence is that after discharge from the Navy, after undertaking a couple of intermediate jobs, he entered into a partnership in a firm, delivering furniture. The firm apparently has two pantechnicons, and has contracts for delivering bulk furniture in the area in the south coast of New South Wales. In 1997, he found it was all becoming too much for him, and he consulted his partners about selling his share of the partnership. They however, suggested that he should cut back his work, rather than dissolving the partnership, so that he now works a period of three weeks on and three weeks off.
The time which he does not work, he does not get paid, so that although he is paid from the business, the sum of $400 per week, when he does work, he receives nil, when he does not, and as he said, he and his wife are feeling the effects of that, and it is, "biting into savings". That his inability to work is as a result of his PTSD, is supported by the psychiatric evidence. In particular, I'd refer to the report of Dr Shand of 20 November 2000, exhibit R2, where Dr Shand says:
From the history obtained from the Applicant, his post-traumatic stress disorder renders him incapable of working more than 20 hours per week.
The vocational assessment by Mr Taylor says:
During the assessment (which lasted nearly 4 hours) Mr Menhennett appeared able to concentrate and focus on the questions and tests.
But continued:
To work 20 hours or more per week, it would require Mr Menhennett to function at a similar level on five occasions per week. Given his level of psychological distress and drinking habits this would probably be difficult for him to achieve. However it seems feasible that he could currently perform in a similar manner in less demanding situations, two or three times per week, that is to say over eight hours per week, if he considered it important.
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Dr Dinner, in his report stated:
I do not believe the patient is capable of working more than 20 hours per week because of his chronic psychiatric condition at this stage.
As was pointed out in respect of the Special Rate pension, Cavell v Repatriation Commission, 9 AAR 534 at 539 the task of the Tribunal in assessing whether a veteran is entitled to one of the earnings rate related pension is:
… - to make a practical decision whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide.
We note that Cavell, was specifically followed in the later case of Forbes v Repatriation Commission, 58 ALD 394, by his Honour, R.D. Nicholson J. In this matter the only evidence before us is that the only reason which is leading to this veteran not being able to engage in remunerative work for more than 20 hours a week is incapacity occasioned by his post-traumatic stress disorder which, as previously, we have found, is caused by incidents in his Defence service.
The decision of the respondent will, therefore, be set aside and the Tribunal substitutes in lieu thereof, its decision, namely that the applicant is entitled to payment of pension for the Defence caused disease of post-traumatic stress disorder as and from 26 November 1998 and that pension is to be paid for incapacity occasioned by all Defence caused injuries and diseases at the Intermediate Rate as prescribed by section 23 of the Veterans' Entitlements Act 1986 as and from the said 26 November 1998.
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