Miles and Repatriation Commission
[2000] AATA 798
•8 September 2000
DECISION AND REASONS FOR DECISION [2000] AATA 798
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1998/808
VETERANS' APPEALS DIVISION )
Re PETER MAX MILES
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date8 September 2000
PlaceSydney
Decision The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision, namely: 1. That the Applicant is entitled to pension pursuant to s13 of the Veterans' Entitlements Act 1986 for the war-caused diseases of post traumatic stress disorder, malignant neoplasm of the colon and peptic ulcer disease as and from 23 December 1997; 2. AND THAT this matter is remitted to the Respondent, Repatriation Commission, in order that it might assess the rate of pension to be paid for incapacity occasioned by all war-caused injuries and diseases suffered by the Applicant.
(Sgd) M D ALLEN
..............................................
Senior Member
CATCHWORDS
VETERANS ENTITLEMENTS - PTSD, CA of colon and peptic ulcer disease. Whether witnessing and assisting at motor vehicle accident a stressor in terms of SoP. Reliance upon DSM-IV in forensic situations criticised. Increase in alcohol and tobacco consumption due to incidents of service.
Veterans' Entitlements Act 1986 - s9, subss120(1), (3) and (6), s120A
Repatriation Commission v Deledio 83 FCR 82
Repatriation Commission v Keeley [2000] FCA 532
Re Keenan and Repatriation Commission [2000] AATA 707
McGlynn v Repatriation Commission 1 RPD 210
REASONS FOR DECISION
8 September 2000 Senior Member M D Allen
By application lodged 29 June 1998 the Applicant sought review of a determination by a Veterans' Review Board of 6 March 1998 affirming a prior determination by the Respondent that the conditions of post traumatic stress disorder, malignant neoplasm of the colon, diabetes mellitus, peptic ulcer disease and haemochromatosis were not related to his war service.
The matter first came on for hearing before me at Orange in the State of New South Wales on 20 December 1999. The matter then resumed in Sydney on 22 August 2000. At those hearings the following documents were taken in as exhibits and marked as follows, namely:
T1 – T41 : The documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
Exhibit A1: Applicant's Amended Statement of Facts and Contentions
Exhibit A2: Copy report of Dr A P McClure dated 28 June 1999
Exhibit A3: Copy letter of Applicant to Legal Aid Commission dated 1 December 1998
Exhibit A4: Copy letter of Applicant to Legal Aid Commission dated 10 November 1998
Exhibit A5: Copy letter of Applicant to Legal Aid Commission dated 17 November 1997
Exhibit A6: Letter of Applicant to Legal Aid Commission dated 25 August 1998
Exhibit A7: Transcript of day 1 of hearing
Exhibit R1: Copy report of Dr R D Lewin dated 21 April 1999
Exhibit R2: Documents from Commonwealth Retirements Benefit Office
Exhibit R3: Report of Professor J Levi dated 15 June 1999
At the outset of his case the advocate for the Applicant stated that the claim in respect of haemochromatosis would not be pursued.
The Applicant served in the Australian Army, being allocated to the Royal Regiment of Australian Artillery from 19 September 1960 to 11 October 1968. His period of operational service was from 13 July 1962 to 27 May 1963 in Malaya as part of the Far East Strategic Reserve.
As the Applicant had operational service, the standard of proof in this matter is that provided by subs120(1) and subs(3) of the Veterans' Entitlements Act 1986 (the VEA). Those subsections state:
"120 (1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease 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 …, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, … 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
…
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."
Subs120(6) provides that no party to this review bears any onus of proof.
Because the Applicant's claim for pension from war-caused incapacity was lodged post 1 June 1994, the reasonableness of any hypothesis connecting the incapacity suffered by the Applicant with his war service must be assessed by reference to a so-called Statement of Principles (SoP) – see s120A of the VEA.
The relationship between the provisions of subss120(1) and (3) and s120A was stated by the Full Court of the Federal Court in Repatriation Commission v Deledio 83 FCR 82 at p97 as follows:
"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). …
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."
The relevant SoPs in this matter are as to:
Post Traumatic Stress Disorder - Instrument No 15 of 1994;
Malignant Neoplasm of the Colon - Instrument No 23 of 1996;
Peptic Ulcer Disease - Instrument No 9 of 1994; and
Diabetes Mellitus - Instrument No 187 of 1996.
being the SoPs in force at the time the Respondent made its initial decision upon the Applicant's claims. See Repatriation Commission v Keeley [2000] FCA 532.The Applicant was aged 19 when sent to Malaya as a member of 103 Field Battery Royal Australian Artillery. That Battery had been formed in Brisbane and, as a reinforcement to the Battery, the Applicant felt that he was never fully accepted by its original members. He also had difficulties with his peers as he was recently married and did not wish to partake in all of the activities in which they indulged.
The Applicant also had problems with his Battery Commander who refused to approve the passage of the Applicant's wife to Malaya at public expense. The Applicant was therefore required to pay her fare himself but, after a complaint to the Minister for Army, the fare was refunded to him and married quarters made available, resulting in the Battery Commander referring to him as a "shit stirrer".
All of these events placed pressure upon the Applicant, he then being a young man in a foreign country, recently married and not obtaining any peer support.
The major incident in the Applicant's Malaysian service occurred approximately three months after his arrival in the country. He was a driver in a convoy of Army trucks travelling from Malacca to Singapore when a civilian vehicle containing approximately 12 Malays in an open tray overturned in front of the convoy. The convoy stopped and the soldiers who were driving the trucks offered assistance. This involved lifting the civilian truck and attending to those passengers who had been killed or injured.
In evidence the Applicant described the effect upon him of these events in the following terms (Transcript of 20 December 1999, pages 7-10):
Question:"What I would like you to do is to look back on that event now and explain to the Tribunal how you felt at the moment when you saw the vehicle overturning?"
Answer:"Well, I think I felt frightened, afraid, because one minute the vehicle was there and the next minute it was gone, I just – gives that feeling as though things can happen, you know, sort of thing, you're there one minute and the next minute you're gone and, you know, I was only 19, a young fellow then, first thing I, first time I'd ever seen anything like that in my life."
Question:"Then when you realised how serious the accident was and there were people dead as well as people injured, various degrees of severity, how did you feel at that moment?"
Answer:"Very, well, how do you – uptight, afraid, quite ill, quite sick."
Question:"At that moment, what did you actually want to do?"
Answer:"Hide".
Question:"You wanted to hide?"
Answer:"Keep away, I couldn't, you know, bit hard to look at things like that. But you weren't game enough, being in the Army, otherwise they'd call you a big wuss or something, you know."
Question:"So what did you actually do?"
Answer:"I pulled – helped, you know, lift the truck, pulled people out. Clean up – got Sam and I come down and got straight over the road and cleaned up a bit."
Question:"Was that because you were ordered to do that …?"
Answer:"The chap that was, like, in charge of the convoy said, you know: we're there to – they were trying to make good relations with people and then they …"
Question:"Well, put it this way, at that time you were under military discipline?"
Answer:"Yes".
Question:"Who was in charge of your convoy?"
Answer:"Well, there was a sergeant."
Question:"And the sergeant directed the work which took place?"
Answer:"Yes, he was there and he said, this is what we're going to do and we did it."
Question:"How did you feel about – when you were told – when you were ordered, instructed, we're going to help now, and you knew that included you, how did you feel at that moment?"
Answer:"I felt hesitant, you know, and afraid, but you had to do it, you were told to do it. If you didn't have to do it I wouldn't have done it."
Question:"When you were actually engaged in removing bodies, or lifting the truck, how did you feel during that period?"
Answer:"Yes, I felt, like, sick, unsure, frightened. I also started thinking how, you know, how life was, if you can understand what I mean, you can be there one minute and the next minute you can be gone and I'd only just been married 3 weeks then too."
He was then asked later in his evidence in chief:
Question:"Did you give much thought to this experience over the next few days afterwards, after you had got back to Singapore?"
Answer:"No, I got drunk instead."
At Transcript page 10 he was asked:
Question:"Did you actually attempt to seek any help for your ….?"
Answer:"Well I went to the RAP once but now all they say to you, you know, if you seek help you're a big wuss, the doctors give you a hard time, you're a malingerer. So the way out, I took the way out, as the easiest way out by drinking."
The Applicant also gave evidence that his smoking and alcohol intake increased during his service in Malaya. In a letter to the Respondent dated 17 November 1997 (Exhibit A5) the Applicant gave reasons why this was so and his evidence to the Tribunal confirmed this version of events. He was also cross-examined about these events and nothing in his cross-examination causes me to doubt that he began to increase his smoking and drinking habits as a result of the events he referred to.
Currently the Applicant is receiving treatment from Dr McClure, Psychiatrist, for what Dr McClure diagnosed as a post traumatic stress disorder. Dr McClure has experience in veterans' matters, having been a resident at Repatriation General Hospital, Concord and a medical officer with the Royal Australian Navy.
In his report of 28 June 1999 (Exhibit A2), Dr McClure deals with the aftermath of the motor vehicle accident as follows:
"At the time Mr Miles was 'only 19', and this was the first serious accident he had witnessed. He felt 'uptight', particularly after rendering assistance. He was anxious and distressed, he says, having to handle corpses and casualties. 'You had to try to get them out.' Details of the incident are sketchy in Mr Miles' memory."
At page 3 of his report, Dr McClure diagnosed a delayed onset of post traumatic stress disorder as the Applicant witnessed an event involving actual death or serious injury to others and he reacted with feelings of helplessness and horror. Dr McClure also reports:
"There is re-experiencing in the form of psychological distress and (reported) physiological reactivity on exposure to 'reminders'. Avoidant features include inability to recall parts of the trauma; markedly diminished interest or participation in significant activities; feeling of detachment or estrangement from others; and a restricted range of affect. Reported symptoms of increased arousal include irritability, difficulty concentrating and an exaggerated startle response."
And at page 4 of his report Dr McClure opines:
"I continue to feel that, on the balance of probabilities, your client Mr Peter Miles has a Post Traumatic Stress Disorder (PTSD). Symptoms and functional disability continue, as indicated on the attached 'worksheet' from Chapter 4 of the GARP, despite regular supportive psychotherapy and medication."
Dr Lewin, Psychiatrist, examined the Applicant on behalf of the Respondent. Dr Lewin's opinion was that the Applicant suffered from a lifelong anxiety disorder. He did state in his report (Exhibit R1) at page 12, that:
"It is quite likely that the truck incident contributed to a transient exacerbation of an already established Anxiety Disorder."
Dr Lewin was cross-examined and during the cross-examination revealed himself as vague and unable to descend into any particularity as to his reasons for his opinions. As to some of the matters in his report he resiled from them in cross-examination. In particular I was not impressed by Dr Lewin's evidence that where at page two of his report he writes:
"The examination strongly suggests there is an underlying Personality Disorder …"
That statement did not represent his opinion as to a condition actually present, but was only a "suggestion".
Dr McClure is not only the Applicant's treating psychiatrist but had knowledge of the earlier reports of Professor Kulucy, Psychiatrist, who treated the Applicant in Adelaide and at the time he was discharged from the Northern Territory Fire Service. The reports of Professor Kulucy are not inconsistent with the opinions of Dr McClure and it is entirely consistent with the Applicant's post traumatic stress disorder that he continued to drink to excess once discharged from the Army.
Dr Lewin acknowledged that his examination of the Applicant was difficult in that the Applicant was hostile. No doubt some of the incidents Dr Lewin remarked upon as failures by the Applicant to elaborate or give details are attributable to hostility between the Applicant and Dr Lewin. An hostility arising from the Applicant and one to which Dr Lewin was fully alert and for which he made allowance. However, as Dr McClure comments in Exhibit A2 at page 4:
"Unfortunately it is not surprising that Mr Miles declined to reveal much of his life experiences in the interview on 1 April 1999 with Dr Lewin. Mr Miles felt this to be an adversarial situation (Dr Lewin represented 'the other side', he was 'a Boss's man') and that the aim was somehow to 'trip him up'. Further, many patients with PTSD are untrusting and irritable, even somewhat 'paranoid', particularly when details are sought by unfamiliar others, especially those who in some way represent authority."
At Transcript page 24 the Applicant expresses his reaction to Dr Lewin in somewhat more earthy terms.
None of the above is any criticism of Dr Lewin's professionalism or approach. In evidence he clearly acknowledged that the Applicant resented having to see him and made allowances for that in his reporting. However, where, as here, opinions differ I much prefer the opinions of Dr McClure, who has seen the Applicant over a period of time and who has gained his confidence and is his treating psychiatrist, rather than the opinions of Dr Lewin who saw the Applicant purely for medico-legal purposes on one occasion only.
I am therefore satisfied that the Applicant does suffer from a post traumatic stress disorder. In dealing with a post traumatic stress disorder and the hypothesis that it was caused by events whilst on operational service, I refer to the remarks of the New South Wales Court of Appeal in State of New South Wales v Seedsman [2000] NSWCA 119 where Spigelman CJ with whom Mason P and Meagher JA agreed, said at paragraphs 109 and 110:
"109 The Appellant submits that witnessing the results of an event, including direct observations of dead or mutilated bodies, does not satisfy the requirements of Post Traumatic Stress Disorder.
110 The relevant expressions in DSM-IV are:
'The person experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injury, or threat to the physical integrity of self or others.'
and
'… witnessing an event that involved death or injury or a threat to the physical integrity of another person.'"
And continued at paragraph 114 et seq:
"114 DSM-IV is not a statutory formulation which a court must construe and decide whether the requirements are satisfied. It is, as its title suggests, a 'diagnostic manual' for clinical use. It contains within itself a number of explicit warnings against the kind of use to which the Appellant sought to put it and which emphasise that the criteria are only guidelines for professional judgment.
115 Under the heading 'Cautionary Statement', the authors say:
'The specific diagnostic criteria for each mental disorder are offered as guidelines for making diagnoses, because it has been demonstrated that the use of such criteria enhances agreement among clinicians and investigators. The proper use of these criteria requires specialised clinical training that provides both a body of knowledge and clinical skills'.116 Under the heading 'Use of Clinical Judgment' the authors say:
'It is important that DSM-IV not be applied mechanically by untrained individuals. The specific diagnostic criteria included in DSM-IV are meant to serve as guidelines to be informed by clinical judgment and are not meant to be used in a cookbook fashion. For example, the exercise of clinical judgment may justify giving certain diagnoses to an individual even though the clinical presentation falls just short of meeting the full criteria for the diagnosis as long as the symptoms that are present are persistent and severe.'
117 Finally, under the heading 'Limitations of the Categorical Approach', the authors say:
'DSM-IV is a categorical classification that divides mental disorders into types based on criteria sets with defining features. … A categorical approach to classification works best when all members of a diagnostic class are homogenous, when there are clear boundaries between classes; and when the different classes are mutually exclusive. Nonetheless, the limitations of the categorical classification system must be recognised.
In DSM-IV, there is no assumption that each category of mental disorder is a complete discrete entity with absolute boundaries dividing it from other mental disorders or from no mental disorder. There is also no assumption that all individuals described as having the same mental disorder are alike in all important ways. The clinician using DSM-IV should therefore consider that individuals sharing a diagnosis are likely to be heterogenesis even in regard to the defining features of the diagnosis and that boundary cases will be difficult to diagnose in any but a probabilistic fashion.'"
In that case the New South Wales Court of Appeal had no hesitation in upholding the Trial Judge's finding that the Plaintiff (Respondent to the appeal) suffered a post traumatic stress disorder as a result of exposure to crimes committed against children whilst a member of the New South Wales Police Service.
It is high time that the Repatriation Medical Authority had regard to the reservations contained in the DSM and the qualifications placed upon its use in forensic situations such as those expressed above by the New South Wales Court of Appeal. The Repatriation Medical Authority should therefore reframe its Psychiatric Statement of Principles so as to avoid imposing artificial restrictions upon acceptance by the responsibility of liability for psychiatric illness caused by a veteran's relevant service. As was pointed out by the New South Wales Court of Appeal in Seedsman supra, even in an adversarial situation unlike veterans' entitlements:
"121 The issue is not one of labelling, but of establishing a psychiatric injury of some character. As Brennan J put it in Jaensch v Coffey (1983-1984) 155 CLR 549 at 560:
'Compensation is awarded for the disability from which the plaintiff suffers, not for its conformity with a label of dubious medical acceptability.'"
As was pointed out by the Administrative Appeals Tribunal in Re Keenan and Repatriation Commission [2000] AATA 707:
"13. Section 120(1) provides that the decision maker must determine that the death of a veteran who rendered operational service was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Only if the decision maker is satisfied beyond reasonable doubt that the material before it does not suggest that section 8 of the Act applies, may the decision maker determine that the death of such a veteran was not 'war-caused'.
14. Section 120(3) provides that the decision maker must be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death of a veteran was war-caused if, in the opinion of the decision maker, the material before it does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the veteran. The majority judgment in the Full Court of the Federal Court in Repatriation Commission v Keeley [2000] FCA 532 at paragraph 11 referred to Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571, and stated:
'A reasonable hypothesis which connects the death of a veteran with the circumstances of the particular service of the veteran may be taken to be a theory, proposition, suggestion or postulation which suggests reasonably, although without proof, that some event in, or aspect of, the service rendered by the veteran may be linked to the death of the veteran.'
Further, their Honours stated (at paragraph 12):
'A hypothesis is based upon assumptions. The reasonableness of the hypothesis depends upon the reasonableness of the assumptions and of reliance upon those assumptions and known facts to make a connection between the death and the circumstances of service. (See: Bushell v Repatriation Commission (1992) 175 CLR 408 at 414.) If a claimant's case relies upon the raising of a reasonable hypothesis to avoid the Commission being satisfied beyond reasonable doubt that death is not 'war-caused' then ss 120A(3) and 196B will apply, if the hypothesis is one addressed by a determination made under s 196B."
Similar comments apply re s9 of the VEA.
In this matter I am affirmatively satisfied that the Applicant, in witnessing the motor vehicle accident and being forced as a matter of military discipline to assist in cleaning up its aftermath, witnessed and was confronted with an event that involved death and serious injury to others and his response involved horror and thus conformed with the requirements of the SoP of "experiencing a stressor" which experience was prior to the clinical onset of his post traumatic stress disorder.
I am also satisfied that the Applicant increased his consumption of alcohol and tobacco as a result of the motor vehicle accident plus conflict with his Battery Commander and others in 103 Field Battery. After the motor vehicle accident he self medicated with alcohol and he has also given evidence of how, at age 19 in a foreign country, incidents in his service caused him to increase his alcohol and tobacco consumption.
Exhibit R3 is a report dated 15 June 1999 by Professor Levi, Director of Clinical Oncology at the Royal North Shore Hospital, and Clinical Professor of Medicine at the University of Sydney. In reference to Instrument No 23 of 1996 headed "Malignant Neoplasm of the Colon" he states:
"With regards to Factor 5C in the Statement of Principles relating to alcohol intake. Mr Miles had a heavy alcohol intake from 1962 to 1985, a period of at least 23 years until his diagnosis of colon cancer. This would appear to fit within the criteria laid out in this principal (sic). There is also available evidence to suggest that heavy alcohol intake is associated with an increased incidence of colonic adenoma which has the potential to subsequently become malignant. This would therefore appear to satisfy the criteria of the principles of colon cancer. Whether or not Mr Miles' alcohol intake could be attributed to his operational service is for determination by the Dept. of Veterans Affairs."
As I have found as a positive fact that the Applicant's increase in alcohol consumption was causally related to his service then, given Professor Levi's opinion, his cancer of the colon is also a war-caused disease.
So far as the Applicant's diabetes mellitus is concerned, there is no evidence before me to suggest that his body mass index was 30 or greater and thus he was "obese" as that term is defined in the relevant SoP. As it cannot be said that any hypothesis connecting the Applicant's diabetes mellitus with his relevant service meets the template of the relevant SoP, the decision of the Respondent re diabetes mellitus is affirmed.
Similarly, as the Applicant withdrew his claim re haemochromatosis, the decision regarding that disease is affirmed.
The Applicant was diagnosed with peptic ulcer disease in 1966. Instrument No 9 of 1994 – Peptic Ulcer Disease reads in clause 1(b) that a factor connecting peptic ulcer disease with service is:
"smoking at least ten cigarettes per day at the time of the clinical onset of peptic ulcer disease;"
At that time the Applicant's tobacco consumption was greater than that level, having increased due to the incidence of his operational service. As the increase was due to operational service the said increase is war-caused – see the decision of Sheppard J in McGlynn v Repatriation Commission 1 RPD 210. The Applicant's peptic ulcer disease is therefore also war-caused, as the hypothesis conforms with the template of the SoP and I am not satisfied beyond reasonable doubt that the facts upon which the hypothesis has been based have been negatived by the material before me.
The decision under review will therefore be set aside and the Tribunal substitutes in lieu thereof its decision, namely that the Applicant is entitled to pension pursuant to s13 of the Veterans' Entitlements Act 1986 for the war-caused diseases of post traumatic stress disorder, malignant neoplasm of the colon and peptic ulcer disease as from 23 December 1997 and that this matter is remitted to the Repatriation Commission in order that it might assess the rate of pension to be paid for all incapacity occasioned by all war-caused injuries and diseases suffered by the Applicant.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Signed: Kwai-Ling Wong .....................................................................................
AssociateDates of Hearing 20 December 1999 - Orange
6 March 2000 - Sydney
22 August 2000 - Sydney
Date of Decision 8 September 2000
Solicitor for the Applicant Mr R Sherlock, Legal Aid Commission
Advocate for the Respondent Mr R Wallis, Department of Veterans' Affairs
0
6
0