Munday and Repatriation Commission
[2004] AATA 1350
•17 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1350
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/102
VETERANS' APPEALS DIVISION ) Re ROBERT MUNDAY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms N Bell, Senior Member Date17 December 2004
PlaceSydney
Decision The decision under review is set aside and in substitution therefor the Tribunal decides that Mr Munday suffers from post traumatic stress disorder and irritable bowel syndrome which are both war caused. The claim is remitted to the Respondent for assessment. ……………..............
Ms N Bell
Senior Member
VETERANS’ AFFAIRS – whether applicant has post traumatic stress disorder – whether war caused – whether irritable bowel syndrome war caused
Veterans’ Entitlements Act 1986
Benjamin v Repatriation Commission [2001] FCA 522
Lees v Repatriation Commission [2002] FCAFC 398
REASONS FOR DECISION
17 December 2004 Ms N Bell, Senior Member 1. Mr Robert Munday served in the Australian Army from 7 February 1968 to 6 February 1971. His eligible war service was from 23 December 1969 to 17 December 1970, including a period in Vietnam.
2. He was working, as a National Serviceman, at the Communications Centre in Canberra when he was posted to Saigon as a communicator, billeted into a heavily secured converted five story hotel, and transported for each of his shifts by an open- backed army truck to the headquarters and adjacent canvass huts some five kilometres away. He gave evidence of a number of incidents, characterised as stressors, that occurred in this context and of their effect on him.
3. On his return from Vietnam Mr Munday went back to his job on the Railways for a short period and then did “odd jobs” for some time. He then commenced work with the Fire Brigades and remained there for 31 years. After he retired, as station officer, from the Fire Brigade he took on some contract work doing Occupational Health and Safety inspections of Telstra facilities in western New South Wales. He last did this work about one year ago and now has a small business cutting firewood in the local area.
4. Mr Munday claimed, in April 2002, for an increase in his rate of disability pension (currently paid at 30% of the general rate) in respect of irritable bowel syndrome and “war caused stress”. He now asserts that the latter condition is post traumatic stress disorder (ptsd).
5. The Repatriation Commission made a number of concessions. It concedes that:
· Mr Munday suffers from irritable bowel syndrome;
· He suffered, during his eligible service, stressors of the kind required to meet the definition of ptsd in the Statement of Principles (SoP) concerning that disorder;
· If it is found that Mr Munday suffers from ptsd and it, in turn, is war caused, then it follows that his irritable bowel syndrome is war caused.
6. Consequently the only matters to be considered in this application are first, whether Mr Munday suffers from ptsd and, if so, the date of clinical onset of that condition. These will determine whether the condition, if it exists, was war caused. If that is established then it will follow that Mr Munday’s irritable bowl syndrome is also war caused on the basis of the SoP concerning that condition.
does mr munday suffer from post traumatic stress disorder?
7. The issue of diagnosis of a condition must be decided on the balance of probabilities (Benjamin v Repatriation Commission [2001] FCA 522).
8. The diagnostic criteria for ptsd are set out in the Diagnostic and Statistical Manual of Mental Disorders (fourth edition) (DSM IV) and appear in the SoP relevant to that condition; No. 3 of 1999 (as amended by No. 54 of 1999) concerning post traumatic stress disorder:
Diagnostic Criteria for 309.81 Posttraumatic Stress
DisorderA
. The person has been exposed to a traumatic event in which both of the
following were present:
1. the person experienced, witnessed, or was confronted with an event or
events that involved actual or threatened death or serious injury, or a threat
to the physical integrity of self or others
2. the person's response involved intense fear, helplessness, or horror.
Note: In children, this may be expressed instead by disorganized or
agitated behaviour
B. The traumatic event is persistently reexperienced in one (or more) of the
following ways:
1. recurrent and intrusive distressing recollections of the event, including
images, thoughts, or perceptions. Note: In young children, repetitive play
may occur in which themes or aspects of the trauma are expressed.
2. recurrent distressing dreams of the event. Note: In children, there may be
frightening dreams without recognizable content.
3. acting or feeling as if the traumatic event were recurring (includes a
sense of reliving the experience, illusions, hallucinations, and dissociative
flashback episodes, including those that occur on awakening or when
intoxicated). Note: In young children, trauma-specific reenactment may
occur.
4. intense psychological distress at exposure to internal or external cues
that symbolize or resemble an aspect of the traumatic event
5. physiological reactivity on exposure to internal or external cues that
symbolize or resemble an aspect of the traumatic event
C. Persistent avoidance of stimuli associated with the trauma and numbing of
general responsiveness (not present before the trauma), as indicated by three
(or more) of the following:
1. efforts to avoid thoughts, feelings, or conversations associated with the
trauma
2. efforts to avoid activities, places, or people that arouse recollections of
the trauma
3. inability to recall an important aspect of the trauma
4. markedly diminished interest or participation in significant activities
5. feeling of detachment or estrangement from others
6. restricted range of affect (e.g., unable to have loving feelings)
7. sense of a foreshortened future (e.g., does not expect to have a career,
marriage, children, or a normal life span)
D.Persistent symptoms of increased arousal (not present before the trauma), as
indicated by two (or more) of the following:
1. difficulty falling or staying asleep
2. irritability or outbursts of anger
3. difficulty concentrating
4. hypervigilance
5. exaggerated startle response
E.Duration of the disturbance (symptoms in Criteria B, C, and D) is more than 1
month.
F. The disturbance causes clinically significant distress or impairment in social,
occupational, or other important areas of functioning.
9. It is therefore necessary to consider the evidence by reference to these criteria. I note, at the outset, the Repatriation Commission’s concession that the incidents experienced by Mr Munday were stressors within the meaning of the SoP, which, in turn, accord with the description given in paragraph A (1) of the diagnostic criteria.
10. As to paragraph A(2), Mr Munday’s evidence was of a range of emotions following the incidents including feeling stunned, numbed, deeply chilled, threatened, helpless and very scared.
11. As to paragraph B and its sub paragraphs, Mr Munday gave evidence of recurring dreams about Vietnam and of being reminded of, and upset about, Vietnam whenever he hears a loud noise like a car backfiring or whenever he sees rubbish in the streets. The report of Dr B White Psychiatrist, dated 24 July 1996, confirmed this. The evidence of Dr Dinnen, Psychiatrist, was that he told him that whenever he encountered death in his work as a fireman he would remember Vietnam and this would make him edgy, stressed and give him stomach trouble. He also related Mr Munday’s irritable bowel syndrome, as a physiological reaction, to his experiences in Vietnam. Dr Altman, in his report dated 8 November 2002, reported symptoms of nightmares, recurrent intrusive distressing thoughts about his war experiences, nightmares and flashbacks.
12. As to paragraph C of the diagnostic criteria, Mr Munday referred to “a bad experience” in his interview with Dr Saboisky, Psychiatrist when asked to recount his experiences in Vietnam. It was Dr Dinnen’s view that this reaction to probing amounted to avoidance of the kind described in the diagnostic criteria. In his report dated 24 November 1995 Dr Saboisky described Mr Munday as emotional, tearful and quite upset. Dr Dinnen also noted that each of the psychiatric reports available in relation to Mr Munday refers to a different incident of stress and this is indicative of his reluctance to talk about or volunteer his Vietnam experience. He was also of the view that he tended to suppress memories of his experiences. Dr Altman reported avoidance of reminders of war experiences and sadness when they intrude. Dr A White, Consulting Psychiatrist, said in his report of 9 June 2004, that Mr Munday reported having a lot of thoughts about Vietnam which were unpleasant as well as flashbacks of Vietnam. He also reported him having broken down during his interview with Dr Saboisky.
13. I note, however, that Mr Munday has been a member of the ANZAC Day organising committee since his return from Vietnam. He said this involves just one meeting per year. He described it as a very emotional experience.
14. Also relevant to Paragraph C of the diagnostic criteria is Mr Munday’s evidence of his tendency to avoid other people, socialising only rarely and avoiding his colleagues at work – for example spending downtime at work in his office watching his own television rather than spending the time with other firemen in the communal area. He described this as being in stark contrast to his behaviour before he went to Vietnam when he was keen and active, a member of the local tennis club, interested in motor sports, was school captain and socialised well. Dr Altman reported Mr Munday’s detachment from others, being much more of a loner, and his difficulty showing affection. Dr A White reported Mr Munday as having become much less sociable than before he entered the Army, when he “loved socialising”.
15. In cross examination Mr Munday said he had always tended to keep to himself but this became more marked after his return from Vietnam. He also referred to going rabbit shooting with friends on adjacent properties.
16. Dr Dinnen also said that Mr Munday’s use of alcohol is a means of avoidance. Mr Munday said that he had been a light drinker prior to Vietnam, never frequenting hotels, but after his return he drank very regularly and heavily, beginning an enduring pattern of drinking two or three large scotches most days and generally drinking one to two 750 ml bottles of scotch each week.
17. In relation to paragraph D of the diagnostic criteria, Mr Munday said he has a bad temper and would “explode over nothing”. He said he wasn’t always like that and when he came back from Vietnam he lost a good friend because of his temper. He said he had great difficulty settling into anything and had no interest in his old job on the Railways. He also said he sometimes sleeps poorly.
18. Mr Munday said he is very sensitive to noise and it makes him very nervous. He particularly mentioned barking dogs and said they “send him mad”. Dr Saboisky’s report confirmed this. Dr Dinnen reported that Mr Munday startles easily. Dr A White reported that he has trouble sleeping, getting up through the night and having difficulty getting back to sleep. Dr White also reported that Mr Munday said his memory and concentration are “terrible”.
19. Dr Altman also reported sleep disturbance, poor concentration, irritability, exaggerated startle reaction and hypervigilance.
20. As to paragraph E of the diagnostic criteria, Mr Munday’s evidence was that he experienced the symptoms referred to above from the time of his return from Vietnam and they have persisted since then.
21. Finally, Mr Munday, relevantly to paragraph F of the diagnostic criteria, described difficulties he has had in his employment and in his marriage. He said he enjoyed his work in the Fire Brigade on and off but was disturbed by all of the fatalities and did not get along with management. He said he was very vocal and argumentative. He did not associate with his colleagues. He said he resigned because he couldn’t get along with management who had developed a clique and one had to be in the “club” in order to be promoted. He said he was a member of the Critical Incident Stress Debriefing Team, giving peer support to other Firemen. He said he only attended a few incidents a year in this capacity.
22. Dr Dinnen considered that Mr Munday’s performance in his work, while adequate, had been less than it would have been if he had not suffered from the condition. He said that often the last thing to go in cases of psychiatric illness is a person’s work and that, in any event, Mr Munday’s evidence of his alienation at work and his conflict with management indicates significant impairment in employment. He noted that the diagnostic criteria required impairment and not disability and that even moderate impairment will still allow for adequate functioning.
23. Dr Altman’s report confirmed the difficulty Mr Munday had in dealing with management and staff.
24. In relation to Mr Munday’s social functioning, his evidence was of very limited social interaction, a marked preference for seclusion and of a very difficult relationship with his wife. Dr Saboisky’s report confirms the marital difficulties experienced by Mr Munday and Dr Dinnen’s evidence confirmed this general history as did Dr Altman’s report. I note, however, that the evidence indicates a satisfactory relationship with his children.
25. Dr A White, Consultant Psychiatrist, said, in his report of 9 June 2004, that Mr Munday “does not and never has fulfilled the Criteria (A) through to(F) for ptsd from the DSM-IV-M (2000). Furthermore, Criterion A(2) has not been fulfilled in this matter.” I note that he reached this conclusion notwithstanding the history of symptoms taken by him from Mr Munday that are mentioned in summary above in relation to the specific criteria in DSM-IV.
26. Dr White also stated, in his report of 9 June 2004, that it is impossible for a clinician to be certain about diagnosis and treatment in the presence of drug abuse and so a person must become abstinent from alcohol and other drugs and have their psychiatric symptoms reviewed in the abstinent state.
27. Dr A White confirmed these views in his oral evidence to the Tribunal and stressed that Mr Munday has no functional impairment. He described ptsd as severe and extremely disabling and mentioned the Port Arthur massacre as an example of the severity of the disorder intended to be described by ptsd. He also maintained that symptoms of ptsd must develop at the time of the stressor in order to show proximate cause. In his view, the incidents experienced by Mr Munday in Vietnam did not amount to stressors that meet the criteria in paragraph A of DSM-IV and in that respect he confirmed his summary assessment of Mr Munday in his report of 9 June 2004 as follows:
“In summary, it would appear that Mr Munday was not involved in any life event which would fulfil the stressor criterion for Post Traumatic Stress Disorder, there is no evidence that he was immediately and severely disabled by psychiatric symptoms following that event, and he does not and never has fulfilled the criteria for any mental illness since that time.”
28. In cross examination Dr White, in relation to functioning and the criterion at paragraph F of DSM-IV, said that he read that paragraph as meaning “significant impairment in social, occupational, or other important areas of functioning” rather than, as stated in the paragraph, “significant distress or impairment in social, occupational, or other important areas of functioning”. He said that if distress is included then it would have to be pervasive distress. Dr White was of the view that the ability to do 8 hours work is not consistent with mental illness.
29. I note that Drs Dinnen and Altman considered the appropriate diagnosis in relation to Mr Munday was ptsd and Dr B White diagnosed chronic dysthymia and anxiety. However, I note that Dr B White’s diagnosis was made on the basis of a history of no recurrent dreams, no avoidance of reminders of the war and no sleep disturbance and this is in conflict with the history given to most of the other psychiatrists.
30. I am less comfortable with the opinion of Dr A White, whose opinion was initially influenced by his view that Mr Munday experienced no, or no adequate, stressors. His evidence was that a level of severity beyond that required in the SoP, and the version of DSM-IV referred to by the SoP, is required for a diagnosis of ptsd. I prefer the evidence of Drs Dinnen, Altman and B White.
31. There is evidence from Mr Munday and from amongst all of the 5 psychiatrists whose reports were in evidence to establish satisfaction by Mr Munday of the necessary diagnostic criteria for ptsd in DSM-IV. I consider the weight of the evidence, against those criteria, supports the conclusion that Mr Munday suffers from ptsd.
clinical onset
32. Mr Munday’s evidence was that the symptoms described by him and summarised above began either during his time in Vietnam or soon after his return. Dr Dinnen’s evidence was that the changes wrought by his experiences in Vietnam, and the signs and symptoms of ptsd, occurred by the time of his return to Australia. This is sufficient evidence to place the clinical onset of the condition as occurring after Mr Munday’s experience of the stressors concerned (Lees v Repatriation Commission [2002] FCAFC 398). It follows that factor 5(a) of SoP No 3 of 1999 as amended is satisfied and Mr Munday’s ptsd is therefore war caused.
irritable bowel syndrome
33. The SoP relevant to irritable bowel syndrome is Instrument No. 103 of 1996. There is no dispute that Mr Munday suffers from this condition and no dispute that its clinical onset, (according to Dr Gillies, Gastroenterologist, in the early 1970’s after his period of war service) was within 6 months of Mr Munday suffering what I have now found to be war caused ptsd. This accords with factor 5(b) of the SoP. It follows that Mr Munday’s irritable bowel syndrome is war caused.
Decision
34. The decision under review is set aside and in substitution therefor the Tribunal decides that Mr Munday suffers from post traumatic stress disorder and irritable bowel syndrome which are both war caused. The claim is remitted to the Respondent for assessment.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of MS N BELL
Signed: .......[Linda Blue]............................................
AssociateDates of Hearing 17 and 18 November 2004
Date of Decision 17 December 2004
Counsel for the Applicant Mr N Dawson
Solicitor for the Applicant Ms A Aitken
Advocate for the Respondent Ms T McConnell
0