Mottlee and Repatriation Commission (Veterans' entitlements)

[2019] AATA 812

Mottlee and Repatriation Commission (Veterans' entitlements) [2019] AATA 812 (8 May 2019)

Division:VETERANS' APPEALS DIVISION

File Number:           2018/1109

Re:David Mottlee

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Deputy President R I Hanger QC

Date:08 May 2019

Place:Brisbane

The Tribunal sets aside the decision under review and substitutes a decision that the Applicant’s Post-Traumatic Stress Disorder (PTSD) is defence caused and remits the matter to the Respondent to determine the rate of assessment of disability support pension in relation to the PTSD.

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Deputy President R I Hanger QC

CATCHWORDS

VETERANS’ AFFAIRS – disability pension – defence service with the Royal Australia Navy – Post-Traumatic Stress Disorder (PTSD) – application of Statement Principles No. 83 – condition defence-caused – decision under review set aside

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth)

SECONDARY MATERIALS

Statement of Principles concerning Post-Traumatic Stress Disorder No. 83 of 2014

REASONS FOR DECISION

Deputy President R I Hanger QC

08 May 2019

INTRODUCTION

1. Mr David Mottlee (“the Applicant”) is a 66-year-old former member of the Royal Australian Navy (“the Navy”), having served from 5 October 1968 to 7 January 1990. The Applicant gave evidence that during this period, he was subjected to several events which resulted in him suffering Post-Traumatic Stress Disorder (“PTSD”).

2. The Repatriation Commission (“the Respondent”) refused the Applicant’s claim for PTSD on 22 January 2019 (“the Decision Under Review”).[1] On 24 October 2017 the Veterans’ Review Board affirmed the decision. [2] The Applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) on 2 March 2018 to review the Decision Under Review.

   [1] Exhibit 1, Section 37 T-Documents, T17, pages 187–196.

   [2] Ibid T2, pages 6–17.

3. A Hearing was conducted on 04 March 2019 and the Applicant gave evidence which I accept in its entirety.  No evidence was given to the contrary by the Respondent and the Applicant’s evidence was corroborated by Mr Brian Chadwick.

   BACKGROUND

4. The Applicant lodged a disability pension claim on 12 March 2015.[3] The Respondent accepted the Applicant’s claims for depressive disorder, adjustment disorder and pain disorder but found that PTSD is not related to service. The Applicant’s Disability pension was increased to 100% of the General Rate with effect from 12 December 2014.[4]

   [3] Exhibit 1, Section 37 T-Documents, T10, pages 93–105.

   [4] Ibid T17, pages 187–196.

5. The Respondent has also previously accepted the Applicant’s claims for sensori-neural hearing loss, solar keratosis, bilateral plantar fasciitis, lumbar spondylosis, osteoarthrosis affecting both hips, bilateral partial deafness, degenerative disease of the thorocolumbar spine, lumbarspondylosis and alcohol use disorder.[5]

   [5] Exhibit 1, Section 37 T-Documents, T21, pages 210-223.

6. Reports were provided by two psychiatrists, Dr Janis Carter and Dr Catherine Oelrichs, both of whom gave oral evidence at the Hearing.

7. Dr Carter made a very delayed diagnosis of PTSD.  In November 2003, she diagnosed the Applicant with an adjustment disorder.[6] However in June 2015, having submitted the Applicant to further examination and tests, she made a diagnosis of PTSD.[7]

   [6] Exhibit 1, Section 37 T-Documents, T9, pages 88 – 92.

   [7] Ibid T14, pages 127–172.

8. Dr Oelrichs diagnosed him with a depressive disorder but said that she thought it likely he had developed PTSD as well as and comorbid with major depression.  Dr Oelrichs said that the criteria for PTSD contained in DSM5 were fulfilled.[8]

   [8] Exhibit 5, Medical report of Dr C Oelrichs dated 23 August 2018.

9. I am satisfied that the Applicant suffers from PTSD.

10. The question to be determined by the Tribunal is whether the Applicant’s PTSD is defenced-caused. In particular, whether the condition is related to service through the applicable Repatriation Medical Authority Statement of Principles: Instrument No. 83 of 2014 as amended by No. 87 of 2018[9] (“Statement of Principles”).

    [9] As amended by No. 87 of 2018.

    LEGISLATIVE FRAMEWORK

11. Section 68 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) provides that “defence service” for the purpose of the Act is continuous full-time service rendered as a member of the Defence Force on or after 7 December 1972 and before the terminating date. The terminating date is 7 April 1994, that being the date on which the Military Compensation Act 1994 (Cth) commenced.

12. As the Applicant has performed defence service, the determination of whether an injury or disease is defence-caused is to be made by applying the standard of proof outlined in section 120(4) of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). Section 120(4) requires this Tribunal to decide the matter to its “reasonable satisfaction”.

13. Section 120B(3) of the Act stipulates how “reasonable satisfaction” is to be assessed:

    
    120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles

    …

    (3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:

    (a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and

    (b) there is in force:

    (i) a Statement of Principles determined under subsection 196B(3) or (12); or

    (ii) a determination of the Commission under subsection 180A(3);

    
    

    that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.

    Statement of Principles

14. Section 196A of the Act provides for the establishment of the Repatriation Medical Authority (“RMA”) which is an independent medical body that issues Statements of Principles (“SoPs”) based on sound medical-scientific evidence. The SoPs set out the minimum factors relating to service that must exist in order to establish a causal connection between service and particular diseases, injuries or death.

15. SoPs are binding on the Respondent and various review bodies, including this Tribunal.

16. Whether PTSD is defence-caused is determined by reference to the Statement of Principles. The Statement of Principles in relation to PTSD provides at paragraph [6] as follows:

    (a)experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder; or

    (b)experiencing a category 1B stressor before the clinical onset of posttraumatic stress disorder; or

    ‘a category 1A stressor’ means one of the following severe traumatic events:

    (a)experiencing a life-threatening event;

    (b)being subject to a serious physical attack or assault including rape and sexual molestation; or

    (c)being threatened with a weapon, being held captive, being kidnapped, or being tortured.

    ‘a category 1B stressor’ means one of the following severe traumatic events:

    (a)killing or maiming a person;

    (b)being an eyewitness  to a person being killed or critically injured;

    (c)(sic)          being an eyewitness to atrocities inflicted on another person;

    (d)participating in the clearance of a corpse or a critically injured casualty; or

    (e)viewing a corpse or a critically injured casualty as an eyewitness.

    An eyewitness means a person who experiences an incident first-hand and can give direct evidence of it.  This excludes persons exposed only to public broadcasting or mass media coverage on the incident.

    A corpse means human remains or body parts of one or more persons who have met a violent or horrific death.

    Note:  Example of a violent or horrific death may include death due to suicide, gunshot, improvised explosive device, natural and technological disasters, terrorist attacks or motor vehicle accidents. 

    
    
    

    CONSIDERATIONS

17. The Applicant gave evidence that on 7 December 1972 he was serving at the control tower HMAS Albatross where he was called to attend a crash of a Macchi aircraft. [10]  The Applicant at the time was aged 19 and was a member of the base’s fire and rescue emergency response unit.  The fire truck attending the scene contained five people and on this particular event he was designated “Rescue 2”.  That means that he had to follow a person designated as “Rescue 1” into the fire and pull them out of danger should they get in trouble.  A third person on the vehicle had the task of shooting foam into the fire to clear a way for Rescue 1 and the Applicant to safely pass through the fire.  In this case it was to the cockpit of the crashed plane. 

    [10] Exhibit 4, Statement of David Mottlee, page 2.

18. The Macchi jet trainer has the capacity to carry two passengers.  Observers had seen one parachute emerge from the plane but not a second and it was thought at the time that there had been two people on board.  The Applicant therefore believed that he was involved in the rescue of a second person from a burning aircraft.  The Applicant and Rescue 1 proceeded to the aircraft which was on fire.  A path to the aircraft was cleared by a short burst of foam directed by the person on the vehicle. Fortunately, there was not a second person in the aircraft but this information was not known to the Applicant prior to inspection.  They also had to secure the second ejection seat to make sure that it did not eject in the course of the fire.

19. The Applicant gave evidence that it was, in short, an extremely dangerous situation. The plane could have exploded at any time. Furthermore, and possibly because the incident occurred more than forty years ago, the protective clothing they were wearing was not as good as they might have had access to had the situation occurred today. The Applicant gave evidence that it was so hot that his face visor began to melt. 

20. The Applicant gave evidence of a separate event that in 1973 he was called to attend a motorbike accident that had occurred near his base, HMAS Albatross.[11]  A young sailor had lost control of his motorbike. On arriving at the scene and preparing for a possible fire, the Applicant saw the motorbike on its side and the sailor lying in the gutter.   Medics went up to the body and ascertained that the sailor was dead.  The Applicant was instructed to help get the stretcher out of the ambulance, to put the body onto the stretcher and then to put it back into the ambulance.  He was then instructed to get the motorbike off the road and to wash the oil and blood off the road. 

    [11] Exhibit 4, Statement of David Mottlee, page 3.

21. Once again, the Applicant was very young and he found this a very traumatic event.  In those days there was no debriefing or counselling.  The Applicant said that he and his colleagues would simply drown their sorrows at a pub but this did not cure the trauma that they had suffered. 

22. The applicant described other gruesome events that occurred during his service but it is unnecessary for me to describe these as I am satisfied that the two events that I have described were such as may precipitate PTSD.

23. I have no hesitation in accepting that while attending a crash of a Machi aircraft on 7 December 1972, the Applicant experienced a life threatening event which is referred to as a Category 1A stressor. 

24. I am satisfied that the Applicant’s attendance to a motorbike accident in 1973 can be classed as a Category 1B stressor in that he viewed a corpse and participated in the clearance of the corpse where the sailor had met a violent death. 

25. I am therefore satisfied that the applicant suffers from PTSD and that it was defence caused. 

    DECISION

26. The Tribunal sets aside the Decision Under Review and substitutes a decision that the Applicant’s PTSD is defence caused. The Tribunal remits the matter to the Respondent to determine the rate of assessment of disability support pension in relation to the PTSD.

I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Ian Hanger AM QC

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Associate

Dated: 08 May 2019

Date of hearing:	4 March 2019
Representative for the Applicant:	Mr Gordan Blake
Representative for the Respondent:	Mr Bruce Williams