MICHAEL STARR and MILITARY REHABILITATION AND COMPENSATION COMMISSION

[2010] AATA 116

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 116

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2009/1123

VETERANS’ APPEALS DIVISION		)
Re		MICHAEL STARR

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal  Senior Member Bernard McCabe
 Dr J B Morley, Member

Date15 February 2010

Place Brisbane

Decision  The Tribunal affirms the decision under review.

.....................[Sgd].........................

Senior Member

CATCHWORDS

COMPENSATION – Injury – claim for PTSD and major depressive disorder – whether liable to pay compensation in respect of injury – diagnostic criteria for PTSD – applicant does not suffer claimed conditions – decision affirmed

Safety, Rehabilitation and Compensation Act 1998 (Cth) s 14

REASONS FOR DECISION

15 February 2010 Senior Member Bernard McCabe
Dr J B Morley, Member

1. Mr Michael Starr had a distinguished career in the RAAF for 26 years. He was involved in or witnessed a number of incidents in the workplace during that period. He claims he now suffers from post traumatic stress disorder (“PTSD”) and/or major depression as a result of those experiences. He has sought compensation from the respondent, the Military Rehabilitation and Compensation Commission (“the MRCC”). The MRCC denies it is liable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) in respect of Mr Starr’s conditions.

2.      The reviewable decision dated 4 February 2009 rejected the claim because the decision-maker did not accept Mr Starr’s account of his involvement in the incidents in question. At the hearing before the Tribunal, the MRCC took a different approach. It now accepts Mr Starr witnessed three incidents. While there was some dispute over the details of what he saw, the MRCC’s real focus was on the medical evidence. It says the medical evidence does not establish Mr Starr suffers from PTSD.

3.      We agree with the respondent, for reasons we will explain. It follows that the decision under review must be affirmed.

The facts

4.      Mr Starr joined the RAAF in 1951. He completed apprentice training and worked as an airframe fitter until 1960 when he lost the use of his right eye and had to be redeployed. He became involved in administration and was subsequently commissioned as an officer. He retired in 1977 with the rank of Squadron Leader.

5.      Mr Starr’s “chronology of traumatic events” filed with the Tribunal refers to a number of events and accidents that occurred during his years of service. Apart from the loss of his right eye, he was bitten by a funnel web spider in 1962 and he has witnessed, or been on the periphery of, a number of aircraft and motor vehicle accidents that resulted in death. There were other incidents as well, but we need not detail them here because he says three aircraft accidents in particular are relevant to his current claim. We will deal with each in turn. We say at the outset that we are satisfied Mr Starr was a truthful witness who obviously did his best to assist us. While aspects of his memory were challenged in cross-examination, we accept his evidence in relation to the three incidents is substantially true. Any discrepancies are readily explained through the passage of years and the applicant’s poor health.

Collision between the Sea Fury and Tiger Moth aircraft

6.      The first incident occurred in 1953 when Mr Starr was based in Wagga Wagga. He was on sentry duty at the time. A number of aircraft were conducting a flypast when disaster struck. A Navy Sea Fury aircraft collided in mid-air with a Tiger Moth aircraft. Mr Starr travelled to the crash site shortly after the accident and was instructed to stand guard over the wreckage of the Sea Fury until naval personnel arrived. Mr Starr says he clearly recalled seeing the body of the dead pilot. He says he saw blood and brain matter. He stayed with the body for several hours. He says he was not required to prepare a report on his involvement with the incident because it was a Navy matter.

Crash of the DC3Dakota

7.      Mr Starr gave evidence of attending a Christmas barbeque at an airbase in 1958. Mr Harry Pocock, who appears to have been the unit’s larrikin, told the gathering that he bet he could fly a Dakota aircraft even though he was not a pilot. Mr Starr said no-one took Mr Pocock’s challenge seriously at the time. But as the festivities wound down, Mr Starr recalled hearing an engine start in a nearby hanger. He and his friends watched in horror as a Dakota aircraft left the hanger and slithered onto the runway. A drunken Mr Pocock was at the controls. The base was in darkness and no one was in the tower. The aircraft sped up, took off, flew a short distance and then crashed. Mr Pocock’s body was thrown from the wreckage on impact.

8.      Mr Starr rushed to the crash site. He described a hellish scene. The wreckage was on fire. He came across a shapeless, unrecognisable mass that he realised was the body of Mr Pocock. The body was subsequently burned when the fire from the wreckage got out of control. Mr Starr spoke movingly of his distress at this bizarre turn of events. Mr Pocock was a friend. Mr Starr said he felt badly that no-one took Mr Pocock seriously when he announced his intentions to steal an aircraft he plainly could not fly.

The crash of the Vampire aircraft

9.      The third serious incident occurred in 1959 at East Sale. A Vampire aircraft experienced an engine flameout and plunged into the ground. Mr Starr saw it happen. He raced to the crash site and saw the rescue crews removing the lifeless bodies of the pilots. Mr Starr knew one of the pilots, who was a popular and likeable man.

Aftermath of the accidents

10.     Mr Starr gave evidence that he began to drink more in the wake of the three accidents. He threw himself into his work. He described himself as a workaholic. But he says his family saw a different side to his character. He had a stressful relationship with his wife and children. He says his home life bore the brunt of the dysfunctional behaviour that he attributes to the three accidents he witnessed.

11.     Whatever might have been occurring at home, the applicant enjoyed a distinguished career in the RAAF before retiring as a Squadron Leader. The records do not suggest he experienced any disciplinary problems. Mr Clark, for the respondent, pointed out that documents prepared in connection with the promotion process suggested Mr Starr was an effective, highly regarded officer.

The medical evidence

12.     We have decided to set out a detailed analysis of the medical evidence given it is crucial to the outcome in this case. We heard evidence from two consultant psychiatrists: Dr Bob Anderson, Mr Starr's treating psychiatrist; and Dr Bradley Ng for the respondent.  Both specialists provided written reports that were tendered into evidence. 

Dr Anderson's evidence

13.     Dr Anderson's report was in the Tribunal documents (Exhibit 1 at 180).  It consisted of:

·his detailed clinical notes;

·Mr Starr's handwritten accounts of the three aircraft accidents that he witnessed;

·Mr Starr's answers to questions on Criteria A to F for the DSM-IV diagnosis of Posttraumatic Stress Disorder, and

·Dr Anderson's answers to a Schedule of Questions from an MRCC delegate. 

14.     Dr Anderson diagnosed Mr Starr with PTSD, Major Depression and Alcohol Dependence although the alcohol condition is now in remission. Dr Anderson has not disclosed how he came to formulate these diagnoses. 

15.     Dr Anderson told us he had seen Mr Starr "about eight times". The last four visits took place in the two months before the hearing.  For about a year before that, Mr Starr had been "touring around Australia."  Dr Anderson had not seen Mr Starr more "intensively" because Mr Starr had been unwilling to engage "more closely" or to keep taking medication. Dr Anderson said Mr Starr is "much the same person as when he started treatment." He attributed Dr Ng's disagreement with his diagnosis of PTSD to scepticism over his account of the three aircraft accidents.

Dr Ng's evidence

16.     Dr Ng had a single consultation with Mr Starr five months before the hearing. That meeting was the basis for his first report (Exhibit 8).  After recording a detailed history, Dr Ng discussed his findings and conclusions under the heading "Summary and Assessment." He first stated, "For the purposes of assessment, I have assumed that Mr Starr was present at these accidents and that he was a witness as he has stated" (page 8).

17.     Dr Ng noted Mr Starr's most prominent psychiatric symptoms were dreams and nightmares, with reports of "distressing images or thoughts", "avoiding events or people associated with the RAAF", and "some symptoms of persistent arousal."  However, until consulting Dr Anderson two years ago, Mr Starr had not previously sought treatment for these. Dr Ng also remarked on the absence of "collateral history of his psychiatric symptoms and mental health, as opposed to verifying events that occurred over fifty years ago" (page 9). 

18.     Point by point, Dr Ng then discussed Mr Starr's symptoms according to the DSM-IV criteria for the diagnosis of PTSD.  From this he concluded (at page 11) there was not enough evidence to support a diagnosis of PTSD.  Dr Ng reached this view because, although the symptoms described by Mr Starr satisfied some of the DSM-IV criteria, he did not meet five of the points of criterion C, or three for criterion D; and, in particular, he did not meet criterion F, viz "The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning."  On page 10, Dr Ng wrote:

"Based on today's assessment and the clinical notes, I can find no evidence that any of the above symptoms have caused significant distress or impairment in social, occupational or other important areas of functioning... It would appear that he had developed reasonable relationships with two wives and he has outlived them both.  He has done extensive travelling which he enjoyed.  He anticipates he will live for a very long time and is thinking about travelling again.

"He has run a reasonably successful business.  Even when his motel businesses were not as successful it would appear that he was very industrious."

19.     Dr Ng noted that it is inherently difficult to diagnose PTSD because its symptoms are subjective and "difficult to disprove" (Exhibit 8 at page 11), especially in cases where the patient alleges delayed onset. Dr Ng was troubled by Mr Starr’s failure to provide any collateral history to support his claim. Dr Ng told us at the hearing that the lack of this collateral history in evaluating Criterion F of DSM-IV was "most persuasive" against this diagnosis.

20.     Dr Ng compiled his second report (Exhibit 9) two weeks before the hearing after the MRCC provided him with additional material. The fresh material included Mr Starr's Service Records (Exhibit 4) and Service Medical Records, and statements made by three of his former senior RAAF officers.  On page 3 of Exhibit 9, Dr Ng has said Mr Starr's three former officers' statements do not "point to a diagnosis" of PTSD or Major Depression, but describe "non-specific symptoms... common in many psychiatric diagnoses", including Alcohol Abuse or Alcohol Dependency Disorder.  In addition, in this second report, he again alluded to the importance of criterion F in diagnosing PTSD (page 5).

21.     In his evidence-in-chief, Dr Ng also referred to the differences in Mr Starr 's description of LAC Pocock's body being dismembered after the Dakota crash (Exhibit 1 at 187), compared to that provided to the RAAF Court of Inquiry by Flight Lieutenant Mintz, Medical Officer of Base Squadron RAAF East Sale (Exhibit 1 at 144).  On cross-examination, Dr Ng acknowledged that the weight to be given to this was uncertain, because any subsequent development of PTSD may have caused Mr Starr to recall details inaccurately.

22.     At the conclusion of his second report, Dr Ng remarked that, even with Mr Starr’s "exemplary service" in the RAAF, he still could have had PTSD (Exhibit 9 at page 5) but agreed this would be "unexpected." Dr Ng agreed that Mr Starr’s home life difficulties could have been consistent with the diagnosis.

23.     Dr Ng says flatly that Mr Starr "does not fulfil the criteria" for Major Depressive Episode or Major Depressive Disorder although he did not elaborate (Exhibit 8 at page 11).  However, he has said in his second report, "Given the comprehensive military and medical records I have been provided, in my opinion, there is no evidence to suggest that Mr Starr suffered from a major psychiatric disorder during his time in the military" (Exhibit 9 at page 5).

Assessment of the medical evidence

24.     Both parties have concentrated on Mr Starr's contended diagnosis of PTSD.  The medical evidence presented to us has been directed to this condition. 

25.     We begin by making two comments on the question of Mr Starr's lack of recognition of any psychiatric symptoms, and the delays in seeking medical advice for them or reporting them.

26.     We are mindful that PTSD has only been recognised as a formal condition in recent times. The diagnosis and its clinical characteristics were not known and formalised until about thirty years ago. This would have been some twenty years after the third of Mr Starr's three witnessed aircraft accidents, and several years after his discharge from the RAAF. Obviously, seeking psychiatric treatment and instigating compensation proceedings would not have been possible for a condition which, at that time, for both clinical and litigation purposes, simply was not known.  Accordingly, we put to one side the lack of any notation in Mr Starr's Service Medical Records of any "emotional," "mental," or "psychiatric" complaints. 

27.     We also accept Mr Starr’s observation that, during his RAAF service, it would not have been "a good career move" for him to report any psychiatric symptoms. His reluctance to disclose any symptoms must be seen in context: he made strenuous efforts to reverse the decision to discharge him from the RAAF as medically unfit after losing his right eye only three months after the third aircraft accident. These efforts included correspondence exchanges with Mr Starr's father's Federal member of parliament, the Commonwealth Minister for Air, and the Chief of the Air Staff (Exhibit 4 at 168 et seq).

28.     Both Dr Anderson and Dr Ng have examined Mr Starr's reported symptoms in terms of the DSM-IV criteria for the diagnosis of Posttraumatic Stress Disorder.  In both of his reports (Exhibits 8 and 9), Dr Ng has conducted comprehensive assessments of Mr Starr's reported symptoms, with particular regard to the requisite DSM-IV criteria.  On the other hand, Dr Anderson, although also including Mr Starr's answers to questions about these criteria, has not provided any discussion of them.  We take particular note of the major importance that Dr Ng has placed on criterion F, which is reliant on non-subjective collateral history, which has not been available in Mr Starr's material, nor provided to Dr Anderson.  As cited by Dr Ng, this criterion states, "The disturbance [PTSD] causes clinically significant distress or impairment in social, occupational, or other important areas of functioning" (Exhibit 8 page 10).

29.     In his first report, Dr Ng has said that, from interviewing Mr Starr and examining his clinical notes, he found no material to persuade him that Mr Starr’s symptoms had caused him "significant distress or impairment in social, occupational or other important areas of functioning" (page 10).  In addition, during his cross-examination of Mr Starr, counsel for the MRCC tendered three documents (Exhibits 5, 6 and 7). 

30.     Exhibit 5 is a Minute Sheet dated 22 April 1960.  It deals with Mr Starr's request to be re-mustered rather than be discharged following his eye accident.  His Wing Commander remarks:

"Starr impressed me as an airman who is extremely keen on the Service...  He was employed as a Clerk prior to enlistment and has been employed in Technical Records; this background, together with his general service experience and apprentice training suggest that he will be an asset to the Clk E mustering."

31.     Exhibit 6 is Mr Starr’s Application for Commission dated 8 March 1968.  His Commanding Officer comments on his suitability for commission to service:

"Starr presents a mature and confident bearing.  He is an excellent senior NCO, very well motivated towards the RAAF and his social conduct is above reproach.... Starr has excellent potential as a leader.  His experience and confidence are obvious in his dealings with others and I believe he could make a good leader..."

32.     Exhibit 7 is his Officer Evaluation Report of 15 September 1977, pending his retirement.  His Group Captain records in part:

"....  He is a good manager and an able innovator.  He has the confidence of his staff and has championed their cause on numerous occasions.  I have no knowledge of his ability in other equipment officers applications; but based on his current performance I rate his potential as high....  I am sorry to see him go, and would welcome him on my staff should he change his election to retire soon..."

33.     These are a few of the many documents to be found in his Service Records (Exhibit 4) that show he was commissioned a few years after losing his eye and made unusual peace time progress, eventually attaining the senior rank of Squadron Leader. On his retirement he was appointed to a commission with the substantive rank of Squadron Leader to the RAAF Reserve. 

34.     We acknowledge Dr Ng’s concession that a good military career need not be inconsistent with Mr Starr having PTSD. However, we must agree with Dr Ng's opinion that a career of this impressive calibre, extending over more than 26 years, does not indicate any impairment in occupational functioning. We already have referred to Dr Ng's conclusions about Mr Starr's social and occupational functioning after leaving the RAAF. Mr Starr’s advocate has challenged none of these observations.

35.     In all the circumstances, we prefer the opinion of Dr Ng. His analysis of the diagnostic criteria was more exacting and he had more access to the records of Mr Starr’s career. He made careful references to that evidence in the course of his reports and oral evidence. He appeared to be an independent witness. We acknowledge Dr Ng only saw Mr Starr on one occasion, but his treating doctor does not see him on a regular basis either. It follows we are satisfied Mr Starr does not have PTSD.

36.     We heard minimal evidence about Mr Starr's diagnosis of Major Depression. Even so, we note the DSM-IV requisite criteria for this condition, as for PTSD, also include the symptoms of the disorder causing "clinically significant distress or impairment in social, occupational, or other important areas of functioning." Accordingly, if required to consider the matter, we would reject a diagnosis of Major Depression on the same grounds discussed above for PTSD. We add that we have heard no dispute that Mr Starr's other diagnosis of Alcohol Dependence is in remission. 

Conclusion

37.     The decision under review must be affirmed.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe and Dr J B Morley.

Signed: ..........[Sgd].................................................................
  Associate

Dates of Hearing  18 September 2009;
  25 September 2009;
  23 October 2009;

Date of Decision  15 February 2009
Advocate for the Applicant       Ms Helena Smith

Counsel for the Respondent     Mr Charles Clark
Solicitor for the Respondent     Australian Government Solicitors