Morgan v Repatriation Commission

[2005] AATA 458

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 458

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/1852

VETERANS APPEALS  DIVISION		)
Re		JOHN MORGAN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Bell, Senior Member
Dr P D Lynch, Member

Date20 May 2005

PlaceSydney

Decision The decision under review is set aside and the Tribunal decides instead that Mr Morgan suffers from anxiety disorder which is war caused.  This decision takes effect from 24 February 2001.

.................[sgd].........

Ms N Bell

Presiding Member

VETERANS’ AFFAIRS – Correct Diagnosis – Generalised Anxiety Disorder – Clinical Onset Within Two Years of Stressor – Stressors Amount to Severe Psychosocial Stressors as Defined Within Statement of Principles – Psychiatric Illness is War Caused.

Veterans’ Entitlements Act 1986

Statement of Principles No1 of 2000

Lees v Repatriation Commission (2002) 36 AAR 484

White v Repatriation Commission [2004] FCA 633

REASONS FOR DECISION

20 May 2005 Ms N Bell, Senior Member
Dr P D Lynch, Member      

1.      Mr Morgan, now aged 57, served in the Royal Australian Navy from 4 April 1964, aged 17 until 29 September 1971.  He had operational service on the HMAS Vendetta in Vietnam from 20 September 1965 to 3 October 1965 and in Malaysia, Singapore and Brunei during 27 July 1965 to 18 September 1965, 12 October 1965 to 5 January 1966 and 12 January 1966 to 2 March 1966.

2.      Mr Morgan made a claim in respect of post traumatic stress disorder (“ptsd”) with alcohol abuse on 24 May 2001.  The Repatriation Commission rejected that claim, concluding that he suffered from ptsd with anxiety and claustrophobia but that it was not war caused.  The Veterans’ Review Board also found the condition to be not war caused but varied the diagnosis to anxiety disorder with depressed mood features.

3.      Mr Morgan, in his application to this Tribunal, initially contended a number of alternative diagnoses – anxiety disorder or ptsd or alcohol abuse – but, by the conclusion of the hearing contended the preferred diagnosis is anxiety disorder.  The commission contended Mr Morgan suffers from no psychiatric condition.  Diagnosis was therefore in issue.

4.      Mr Morgan also contended a number of stressors which, he hypothesised, gave rise to his psychiatric condition.  By the conclusion of the hearing, he contended the most important of these stressors was his experience in 1965 in the gun turret of HMAS Vendetta.  In keeping with his preferred diagnosis, he relied primarily on factor 5(a)(ii) of the Statement of Principles (No. 1 of 2000), that is, he experienced a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder, to support the reasonableness of his hypothesis.  The Commission contended that Mr Morgan’s experience in the gun turret does not amount to a severe psychosocial stressor within the meaning of the Statement of Principles (“SoP”) and that, in any event, the clinical onset of Mr Morgan’s condition, if found by the Tribunal, was not within two years of the claimed stressor.

5.      We will consider these contentions, as Mr Morgan’s preferred arguments, before proceeding to deal with any other, alternative contentions.  If we conclude in favour of his preferred contentions, it will not be necessary to proceed further.

6.      The issues to be considered by us initially are therefore:

·     The correct diagnosis of Mr Morgan’s condition, if any;

·     The date of clinical onset of that condition, if any; and

·     If there is material pointing to clinical onset being within two years of the claimed stressor, whether the claimed stressor (Mr Morgan’s experience in the gun turret) amounts to a severe psychosocial stressor.

7.      We note that the standard of proof to be applied to the question of diagnosis is that of reasonable satisfaction, while those issues relating to war causation and, specifically, conformity with the relevant SoP, are to be determined to the standard of reasonable hypothesis.

Diagnosis

8.      The preferred diagnosis as submitted by Mr Morgan is anxiety disorder.  The relevant SoP is No. 1 of 2000.  That instrument defines generalised anxiety disorder as having the following features:

“generalised anxiety disorder” means a psychiatric disorder with the

following features:

A. Excessive anxiety and worry (apprehensive expectation), which

occur on more days than not for a continuous period of at least six

months, about a number of events or activities; and

B. The person finds it difficult to control the worry; and

C. The anxiety and worry are associated with three or more of the

following six symptoms, with at least some symptoms present for

more days than not during the previous six month period:

(1). restlessness or feeling keyed up or on edge

(2). being easily fatigued

(3). difficulty concentrating or mind going blank

(4). irritability

(5). muscle tension

(6). difficulty falling or staying asleep, or restless unsatisfying

sleep; and

D. The focus of the anxiety and worry is not confined to features of

any other Axis I disorder; and

E. The anxiety, worry, or physical symptoms (as described in C.

above) cause clinically significant distress or impairment in social,

occupational, or other important areas of functioning; and

F. The anxiety and worry are not due to the direct physiological

effects of a substance or a general medical condition and do not

occur exclusively during a mood disorder, a psychotic disorder, or

a pervasive developmental disorder;

9.      Mr Morgan’s evidence was that he began, in 1990, to have bad dreams every night during which he would strike out in his sleep and sometimes hit his wife.  The dreams related to either being locked in a steel box that was filling with water or, to people of Asian appearance chasing him around a ship and up a ladder and trying to pull him down.  It was these dreams that prompted him to attend the St John of God Hospital where he was treated by Dr Westerink, Consultant Psychiatrist.  He now sees Mr Tsomis, Psychologist, monthly.

10.     Mr Morgan also referred to his drinking which, he said, followed a pattern of binge drinking and caused problems with his wife because he would often stay out all night and have little to do with his children.  He said his drinking has decreased but he “still has to watch it”.

11.     He is currently working as a sales representative and has had that job for 4 weeks.  Prior to that he held a job for 1 year but found that he was becoming annoyed with people and decided to leave before he began to fight with them.  Prior to that he held a job for 3 years but left because he had an argument with the boss.  He said he has a short fuse with certain people.  He said 3 years has been the usual turnover time for jobs.  He had, however, a job as a refrigeration mechanic for 8 years after he left the Navy but said that a feature of this job was the drinking network he formed with fellow workers and he got into trouble because of this.  Mr Morgan noted that he was able to stay with his job as a refrigeration mechanic for an extended period of time because he spent most of his time “on the road” and was left to his own devices most of the time.

12.     Mr Morgan said his wife left him for a period but has now returned to live in the house, with Mr Morgan and her mother, again.  They do not share a bedroom and feels that he is merely “tolerated”.

13.     Patricia Morgan, Mr Morgan’s wife, in a statement dated 1 July 2004, described Mr Morgan’s “constant violence, drinking and depression” over the years of their marriage,  together with his “mood swings” and recurrent violent dreams.  She said she lived as a virtual sole parent because he never shared the responsibilities of parenting or running a house or managing their finances.  She said his way of dealing with their children through adolescence was to walk away and “have another drink”.  She also described his hospitalisation at St John of God Hospital “as a result of his drinking, depression and violent dreams”.

14.     Mrs Joan Nowers, Mr Morgan’s mother in law, in a statement dated 1 July 2004, confirmed Mrs Morgan’s statement in relation to Mr Morgan’s mood swings, depression and drinking.  She said he becomes bad tempered and aggressive, particularly when drinking spirits.

15.     Dr Westerink, Consultant Psychiatrist at St John of God Hospital, reported on 3 May 2001 and 24 October 2002 that Mr Morgan suffers from insomnia with nightmares, intrusive memories, difficulty concentrating, poor memory, irritability and increased startle reflex.  He diagnosed ptsd with comorbid Anxiety and claustrophobia.

16.     Dr Koller, Psychiatrist, reported similar symptoms on 8 May 2003.  In addition, he said Mr Morgan suffers from depression, teariness, excessive worry about work and reluctance to have contact with others.  He diagnosed anxiety disorder with depressed mood features.  He also noted there are some features of ptsd but not the full blown condition.  He also noted that Mr Morgan’s condition has worsened with age but also observed that his drinking has decreased and that his former heavier drinking may have not allowed the full expression of the symptoms he now experiences.

17.     Dr Field, Psychiatrist, reported on 19 May 2003 that Mr Morgan was referred to him following Dr Westerink’s retirement.  Dr Field diagnosed ptsd with significant associated depressive disorder.  He sees Mr Morgan monthly for supportive psychotherapy.

18.     Dr Beswick, General Practitioner, reported on 10 March 2004 and confirmed the symptoms noted above and added that Mr Morgan becomes aggressive readily, especially when criticised.  She reported that Mr Morgan has been prescribed Epilim, Efexor and Cipramil in the past but is not currently on any medication because he found it interfered with his ability to concentrate and drive during the day.

19.     Dr Dinnen, Psychiatrist, reported on 29 April 2004 and 26 August 2004 and gave oral evidence to the Tribunal.  Dr Dinnen reported the following symptoms suffered by Mr Morgan:

·     Easily frustrated;

·     Gets angry and has outbursts of temper;

·     Doesn’t sleep well and is easily fatigued;

·     Has recurring dreams;

·     Feels “almost out of control” and can feel the pressure building up inside

20.     Dr Dinnen diagnosed anxiety disorder and considered that a diagnosis of ptsd was not warranted.  He considered that Mr Morgan exhibited alcohol abuse and that this is a clinical feature of his anxiety disorder rather than a stand alone diagnosis.  He was of the view that Mr Morgan’s condition caused impairment in the form of  subjective distress, marital problems, frequent changes in employment and a reduction in his social and leisure activities.

21.     Dr White, Psychiatrist, reported on 31 May 2004 and 25 February 2005 and gave oral evidence to the Tribunal.  Dr White considered that Mr Morgan does not suffer from any psychiatric illness.  In particular he considered that he does not suffer from anxiety disorder because, in Dr White’s view, he has no disability or impairment, and has no cognitive impairment.  He said that while Mr Morgan has some symptoms, they do not cross the threshold because he does not have a clinically significant impairment.

22.     In particular Dr White noted that Mr Morgan is in full time employment and in his view employment is the “benchmark of impairment”.  He considered that Mr Morgan’s continuous employment means that his subjective symptoms are merely discomforting and pointed out that “mentally ill people cannot hold down a job”.

23.     When referred to the diagnostic criteria for generalised anxiety disorder, he said that the word “distress” in paragragh E is redundant and that it is only “impairment” that should be taken into account when considering whether the diagnostic criteria is satisfied.  He added that “mentally ill people look sick”.

24.     Dr White also expressed the view that Mr Morgan’s alcohol use alone could have produced the symptoms he complains of.  He considered that a person should abstain from alcohol for a period before any diagnosis can be properly made.

25.     The preponderance of medical opinion is in favour of Mr Morgan having a psychiatric illness.  It is only Dr White who considers that he does not.  We are concerned that Dr White has not taken into account the words of paragraph E of the diagnostic criteria which include “distress” as well as “impairment”, albeit clinically significant, in areas of functioning and that he places the threshold for psychiatric illness at an unusually high level of impairment.  We are mindful of the evidence, from Mr Morgan and as reported by him to psychiatrists, of Mr Morgan’s marital difficulties, his regular need to leave employment before his temper gets the better of him and his increasing social isolation.  We accept the evidence of these matters and we consider them to amount to significant distress or, indeed, impairment.  We also note evidence of the presence of many of the symptoms listed in paragraph C of the diagnostic criteria and find, on the basis of that evidence and evidence of Mr Morgan’s excessive worry, that he satisfies the diagnostic criteria for generalised anxiety disorder.

date of clinical onset of mr morgan’s anxiety disorder

26.     Mr Morgan said that from 1966 he was very moody and cried a lot and noticed he was becoming increasingly anxious and aggressive.  He said he would become hot and sweaty for no reason and generally felt upset and angry.  He wanted to go home and get away from his duties in the gun turret and as a sentry.  When the Vendetta sailed from Cape Jacques to Hong Kong he began drinking heavily and did so for the entire time he was in Hong Kong.  He said he had had suicidal thoughts during the travel between Vietnam and Hong Kong, because he thought he would have to work in the gun turret again and could not see any way out.  He said that later, on the HMAS Platypus, he tried to cut his wrists.

27.     Mr Morgan said that after Hong Kong he attended the sick bay and told the officers about his feelings, his drinking behaviour and his anxiety and fear of performing his duties.  He also applied for a discharge but was refused.  He said that throughout the remainder of his career in the Navy he was charged a number of times with misconduct due to his excessive drinking and aggression and on a number of occasions assaulted both other sailors and civilians.

28.     After postings to HMAS Cerberus for training as a Marine Engineer and to HMAS Duchess for a tour of Borneo and Malaysia, Mr Morgan returned to Sydney and again asked for a discharge.  Again a discharge was refused and he was posted to the HMAS Brisbane which was scheduled to tour Vietnam.  In an effort to avoid another tour of Vietnam, Mr Morgan pursued an earlier application he had made for submarine service and after training he was posted to the HMAS Onslow.  He said his symptoms did not ease and he remained angry and sad and he wanted to pursue discharge.  He said in an effort to do this he informed the medical clinic that his parents had a domestic problem and needed him at home.  This did not secure a discharge for him nor did his desertion soon after.  He was referred to a consultant psychiatrist, Dr McGeorge who diagnosed “situational depression” and recommended that he be made Category Y, that is, not to go to sea.  However, he was returned to his duties on Onslow.  Ultimately he was discharged in 1971 as “unsuitable”.

29.     The few service medical records available show that Mr Morgan was reported on 25 February 1971 by Dr McGeorge, Psychiatrist, as having no psychiatric disorder but he recommended that Mr Morgan be made “Category Y” for 6 months.  He had been referred to Dr McGeorge as having an “anti-Navy attitude” and his main object being to leave the Navy.  He had been diagnosed by the referring medical officer as having a “mild depressive state” and was prescribed valium.  The referring medical officer also noted that Mr Morgan complained of having aggressive outbursts, increasing anxiety and depression, failure to communicate or relate to people and of having suicidal thoughts. 

30.     In August 1971 Mr Morgan was reviewed by Dr McGeorge who found that his condition was unchanged and described him as resentful and discontented.  Dr McGeorge noted and complained that his recommendation to have Mr Morgan made “Category Y” had not been followed.  In August 1971 a Medical Board diagnosed “situational depression with aggression” and recommended he be made “Category Y” for 6 months.  In September 1971, a Medical Board recommended Mr Morgan be made “Category Y” for 6 months and he was considered permanently unfit for submarine service.  Mr Morgan was discharged on 29 September as “unsuitable”.

31.     Dr Dinnen’s evidence was that the above service medical records, together with the history given by Mr Morgan, shows a clear pattern of continuing anxiety symptoms during his service.  Dr Dinnen considered that if Mr Morgan had been examined prior to 1971 the examiner would have found anxiety and tension.  He said that he thought Mr Morgan’s condition was rather more serious than the diagnosed “situational depression” or reactive depression and the fact that it continued on after service indicates its seriousness.  He considered that the signs and symptoms of anxiety disorder were present from 1965 and would have been present long before 1971 but were masked to some extent by excessive alcohol consumption.

32.     As to Dr McGeorge’s conclusion that Mr Morgan did not suffer from any psychiatric condition, Dr Dinnen considered it likely that Dr McGeorge simply did not want Mr Morgan to have a psychiatric condition on his record.  He agreed, however, that this was conjecture.  Dr Dinnen also agreed that problems that had been reported by Mr Morgan in relation to his girlfriend and his parents could have given rise to some symptoms of anxiety and depression.

33.     In reaching a conclusion as to the date of clinical onset of Mr Morgan’s anxiety disorder we had regard to the decision of the Full Federal Court in Lees v Repatriation Commission (2002) 36 AAR 484 which is authority for the proposition that date of clinical onset must be identified by reference to each of the symptoms or features of the diseases identified in the relevant SoP.

34.     We consider that there is material before us that points to the emergence of the symptoms identified in the diagnostic criteria in SoP No. 1 of 2000 as early as 1966.  In particular, the evidence of Mr Morgan and Dr Dinnen points to the symptoms described in paragraphs A, B, C(1), (4) and (5) and E from 1996.  This places the onset of Mr Morgan’s anxiety disorder within 2 years of the claimed stressor – his experience in the gun turret.

The stressor

35.     The term “severe psychosocial stressor” is defined in SoP No. 1 of 2000 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”

36.The state of the authorities on the meaning of the definitions of “stressors” that appear in the various SoPs was summarised by Spender J in White v Repatriation Commission [2004] FCA 633 as follows:

“The reference to “an identifiable occurrence” is objective. The examples given in the definition are of the kinds of “identifiable occurrence” that are contemplated. Counsel for the applicant, Mr Darin Honchin referred to Lees v Repatriation Commission [2002] AATA 98 at para 90, where the Tribunal stated that the examples given in the SoP are “examples of what is meant by ‘substantial distress’”. In my opinion, the ordinary language of the definition makes it clear that the examples given are of the “identifiable occurrences” contemplated, not of “substantial distress”. The examples are of “occurrences”, not emotions.

The reference to “experiencing” a severe psychosocial stressor has a subjective element: see, for example, Stoddart v Repatriation Commission (2003) 197 ALR 283 at 292 per Mansfield J, in relation to the phrase “experiencing a severe stressor” in the SoP concerning post traumatic stress disorder (affirmed on appeal in Repatriation Commission v Stoddart (2003) 38 AAR 176). An identifiable occurrence “that evokes feelings of substantial distress in an individual” also has a subjective element: see Woodward v Repatriation Commission (2003) 200 ALR 332 at 352 per Black CJ, Weinberg and Selway JJ, in relation to the phrase “experiencing a severe stressor”.

 In my judgment, the definition of severe psychosocial stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned. Both aspects are relevant and necessary.” (paras 28-30)

37.     Mr Morgan’s evidence was that he was posted to HMAS Vendetta as an Ordinary Seaman (Underwater Control) concerned with the operation of sonar equipment.  However, when he sailed from Sydney in August 1965, at 17 years old, despite his classification, his duties during action stations were as a loader in the magazine gun turret “B”.  He said he received no training for that position and held it for the 9 months duration of the trip.  He described conditions inside the gun turret as “unbearable”.  During action stations he was locked inside the turret with 4 others.  He said it was extremely cramped and very hot, he had no knowledge of what was going on outside, felt sick from the heat, wearing anti-flash gear and heavy gloves and was very affected by the closed environment.

38.     Mr Morgan said that during the journey from Subic Bay to Vietnam they were called to action stations a number of times.  He recalled one occasion when he heard firing and felt the ship making sudden movements and thought the ship was under attack.  He said he thought “this is it – I’m done for” and thought the “small, hot, smoky, noisy metal box” and the “sickening feeling of the metal structure of the turret closing in around me, crushing me before water poured in and drowned me” would be the last thing he would ever remember.

39.     Mr Morgan described recurring nightmares where he is trapped in the turret which is underwater and he is drowning, trying to get out but he is locked in.  The box gets smaller and smaller and he runs out of air and he wakes up screaming and thrashing about.

40.     We consider that, having regard to Mr Morgan’s evidence, there is material pointing to the “identifiable occurrence” of being locked in a very hot, confined space with 4 others, dealing with ammunition with no knowledge of what was going on outside and hearing firing and feeling the ship’s sudden movements.  We consider that this identifiable occurrence is such as to evoke feelings of substantial distress in a person exposed to that occurrence and thereby satisfies the objective element of the definition.  The evidence given by Mr Morgan points to him having subjectively experienced substantial distress.  We consider, therefore, that Mr Morgan’s experience in the gun turret is a severe psychosocial stressor within the meaning of the SoP.

41.     Mr Bunn, for the Commission, referred us to the decision of the Tribunal in Stonehouse v Repatriation Commission [2004] AATA 707. We consider that we are bound to interpret the term “severe psychosocial stressor” in accordance with the definition in the SoP.  That definition makes it clear that what is required is an identifiable occurrence that evokes feelings of substantial distress in an individual.  The definition then gives some examples.  The list of examples is not expressed to be exhaustive.  Some of the examples given involve some manifest social interaction or element and some do not.  It could be argued that any occurrence of a stressful nature involves some social element - for example, the isolation of a 17 year old person locked in a gun turret with no knowledge of goings on outside.  We do not find the statements made in Stonehouse (supra) to be of assistance.

Conclusion

42.     We are reasonably satisfied that Mr Morgan suffers from anxiety disorder. Having found material pointing to the clinical onset of anxiety disorder in 1966 and his experience of a severe psychosocial stressor in 1965, we conclude that Mr Morgan’s anxiety disorder is war caused by virtue of the application of SoP No. 1 of 2000 and, in particular factor 5(a)(ii) of that SoP.

decision

43.     The decision under review is set aside and the Tribunal decides instead that Mr Morgan suffers from anxiety disorder which is war caused.  This decision takes effect from 24 February 2001.

I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member and Dr P D Lynch, Member.

Signed:         ..........[Linda Blue]................................
  Associate

Dates of Hearing  18 and 19 April 2005
Date of Decision  20 May 2005
Counsel for the Applicant         Mr Mark Vincent
Solicitor for the Applicant          Vardanega Roberts Solicitors
Solicitor for the Respondent     Mr Nigel Bunn, Department of Veterans’ Affairs