O'Malley and Repatriation Commission
[2005] AATA 985
•6 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 985
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/646
VETERANS’ APPEALS DIVISION
Re: WILLIAM NEIL O’MALLEY
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date: 6 October 2005
Place: Melbourne
Decision:The Tribunal sets aside the decision under review and substitutes in place thereof its decision that the applicant’s general anxiety disorder and alcohol abuse are causally related to his period of eligible defence service. The Tribunal remits the matter to the respondent for assessment of the rate of pension payable.
(sgd) E.A. Shanahan
Member
VETERANS’ AFFAIRS – operational service in Vietnam – eligible service post Vietnam – anxiety disorder or PTSD – alcohol abuse – severe stressors – psychosocial stressors – hypertension – special rate – jurisdiction with respect to special rate – decision set aside
Veterans’ Entitlements Act 1986 ss 120(1), 120(3), 120(4), 120A
Statements of Principles
Instrument № 3 of 1999 as amended by Instrument № 54 of 1999 concerning
post traumatic stress disorder
Instrument № 76 of 1998 concerning alcohol dependence or alcohol abuse
[during operational service]
Instrument № 77 of 1998 concerning alcohol dependence or alcohol abuse
during eligible service]
Instrument № 35 of 2003 as amended by Instrument № 3 of 2004
concerning hypertension
Instruments № 1 and № 2 of 2000 concerning generalised anxiety disorder
Constable v Repatriation Commission [2005] FCA 928
Delahunty v Repatriation Commission (2004) 38 AAR 511
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio (1998) 83 FCR 82
Re Stonehouse and Repatriation Commission [2004] AATA 707
Stoddard v Repatriation Commission (2003) 74 ALD 366
White v Repatriation Commission (2004) 39 AAR 67
Woodward v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION
6 October 2005 Miss E.A. Shanahan, Member
1. This is an application by William Neil O'Malley (the applicant) for review of a decision of a delegate of the Repatriation Commission (the respondent) dated 3 July 2003 which rejected a claim for anxiety disorder, alcohol abuse and hypertension. The respondent accepted a claim for bilateral sensorineural deafness. The Veterans’ Review Board (the VRB) affirmed the decision of the respondent’s delegate on 29 March 2004. Mr O’Malley sought review of the VRB decision by the Administrative Appeals Tribunal (the AAT) on 28 May 2004.
2. Mr O’Malley was represented by Mr D. De Marchi, solicitor. The Repatriation Commission was represented by Mr G. Purcell of counsel, instructed by the Department of Veterans’ Affairs.
3. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents). The parties tendered the following documents:
Report of Dr G. Foenander dated 30 October 2004 Exhibit A1
Applicant’s statement dated 4 December 2004 Exhibit A2
The T‑documents Exhibit R1
Transcript of the VRB Hearing dated 29 March 2004 Exhibit R2
Report of Dr N. Strauss dated 23 March 2005 Exhibit R3
Clinical notes of Dr G. D’Ortenzio Exhibit R4
Clinical notes of Dr R. Power Exhibit R5
Applicant's psychological record from the Department of
Defence, received on 27 July 2004 Exhibit R6
Supplementary Research Report from
Writeway Research Service Pty Ltd dated 20 April 2005 Exhibit R7
Clinical notes of Mr V. Bolger, Exhibit R8
4. The applicant, Dr Foenander, Dr Strauss and Captain Josephs gave oral evidence before the Tribunal.
BACKGROUND TO THE APPLICATION
5. Mr O’Malley was born on 27 October 1948. He served in the Royal Australian Navy (the Navy) from 6 January 1965 to 5 January 1985. He had operational service in Vietnam from 24 April 1966 to 18 May 1966; from 25 May 1966 to 11 June 1966; and from 22 February 1971 to 1 March 1971. Mr O'Malley also had eligible service from 7 December 1972 to 5 January 1985. He claims that three incidents, two during operational service in Vietnam and one during eligible service in 1976, have resulted in the development of a generalised anxiety disorder. In the alternative, he claims that those incidents have caused him to suffer post-traumatic stress disorder (PTSD), alcohol abuse either secondary or primary, and hypertension as a result of his alcohol abuse.
6. The three incidents will be referred to as:
Incident 1 – the barge incident: when a barge hit the side of HMAS Sydney while the latter was unloading supplies in Vung Tau Harbour in May of 1966.
Incident 2 – the action stations incident: when action stations was called when HMAS Sydney encountered an unidentified ship after leaving Vung Tau Harbour in February 1971.
Incident 3 – the electrocution incident: when a sailor onboard the HMAS Vampire was electrocuted and died in 1976. This incident occurred during eligible service.
7. At the time of this hearing Mr O’Malley applied for an increase in pension to the special rate as he had not been able to work for more than eight hours per week since 24 June 2004. No application for special rate had been made prior to the hearing and therefore had not been considered by the primary decision-maker or the VRB. As a consequence this late application was outside this Tribunal’s jurisdiction and cannot be considered.
8. At the commencement of the hearing the respondent conceded that Mr O’Malley suffered from a generalised anxiety disorder and alcohol abuse but denied the existence of hypertension. Mr De Marchi argued that the psychiatric diagnosis should be PTSD and that Mr O'Malley satisfied the requirements of the Statements of Principles (SoPs) for a diagnosis of hypertension and a causal relationship between hypertension and alcohol abuse.
EVIDENCE BEFORE THE TRIBUNAL
Mr O'Malley (the applicant)
9. Mr O’Malley said that he had worked full-time until May 1999, when he ceased work because of his anxiety, stress and alcohol consumption. He subsequently obtained work at the Kyneton Sub‑Branch of the Returned & Services League of Australia (Victorian Branch) Inc. (the Club). Mr O'Malley said he was employed on a part-time basis, performing administrative work up to 20 hours per week. He said he was not able to cope with the degree of responsibility and resigned on 24 June 2004, but he then continued to work for six to seven hours per week as a cleaner at the Club.
10. Mr O’Malley described a longstanding difficulty with sleeping and his present anxiety and worries regarding his future. He said he was taking Andronax daily. His sleep was regularly disturbed due to dreams relating to past experiences, and had been so for some 30 years. Mr O’Malley confirmed that he had joined the Navy at the age of 16.
11. The barge incident had occurred during his first period of operational service between 24 April 1966 and 18 May 1966. Mr O’Malley said he was a member of a cargo handling party unloading HMAS Sydney in Vung Tau Harbour. He was working below decks. Suddenly there was a loud bang which most of the cargo crew took to be an explosion. Mr O’Malley was so terrified he was incontinent of urine. Shortly after the incident it was explained that the bang was due to a barge alongside HMAS Sydney, hitting the hull of the ship. Following this incident, Mr O’Malley was fearful of going below the waterline of the ship. At the time of the incident it had been routine naval practice for small boats to patrol the sea around HMAS Sydney and drop explosive charges to scare off any potential attacks by enemy divers. This was also a cause of anxiety for Mr O’Malley, as it accentuated the danger and he thought that the loud bang was due to such an explosion, indicating the presence of the enemy.
12. The action stations incident occurred in 1971 when Mr O’Malley was serving on HMAS Yarra which was escorting HMAS Sydney. By this time Mr O’Malley was a leading seaman. While escorting HMAS Sydney from Vung Tau Harbour action stations was unexpectedly called aboard HMAS Yarra by Captain Baird. At the time when all below-decks doors were closed, the air conditioning turned off and all crew members placed on alert, Mr O’Malley was in the ward room. Mr O’Malley described his reaction as great anxiety and fear (trans, p17) as no one knew what actually was going on (trans p17). As the oncoming ship had failed to identify itself or respond to Captain Baird’s signals, preparations were made to open fire. The unidentified vessel turned out to be an American mine sweeper according to Mr O’Malley.
13. The electrocution incident occurred on 19 June 1976. Mr O'Malley told the Tribunal that a young sailor on HMAS Vampire was electrocuted and died. Mr O’Malley had previously told his treating psychiatrist, Dr D’Ortenzio that he had been involved in the attempted resuscitation and had performed, some two days later, a post-mortem examination (T7 and Exhibit R4). He informed Dr D’Ortenzio that the deceased’s body had been in a state of some decomposition because it was stored at room temperature. In his evidence before the Tribunal, Mr O’Malley said his role in the incident was very small (trans p17), but he was required to be present in the room where the post‑mortem was conducted. He was terrified that at some later date, when the ship was without a doctor, he would have to resuscitate someone or perform a post‑mortem as a substitute medical officer (trans p17).
14. Mr O’Malley informed the Tribunal that he had been a non-drinker until one month after the barge incident. Initially he drank beer but then progressed to spirits, mainly rum. He married in 1969 but his marriage ended in 1978. Mr O’Malley blamed the failure of his marriage on his escalating alcohol consumption and his loss of libido. Two subsequent de facto relationships failed for the same reasons. Mr O’Malley said that drinking made him forget past events, the stress of his job and allowed him to relax. Initially he drank three to four pots of beer three or four nights per week and this increased with the passage of time.
15. Mr O’Malley admitted to suffering flashbacks relating to the incidents From time to time (trans p19) and from panic attacks that started when he was 17 years old.
16. Mr O’Malley attends his treating psychiatrist every three months and his treating psychologist every three to four weeks. He has benefited from this treatment, although he still has some minor depression.
17. Mr O’Malley served in the Navy for 20 years, eventually holding the rank of Chief Petty Officer. Having undertaken several courses, he became a Senior Medic.
18. Under cross-examination, Mr O’Malley agreed that in the first incident the large bang, as the barge collided with the side of HMAS Sydney, would have come from above his work area in the cargo hold: that is, from above the waterline.
19. Mr Purcell queried, at some length, why Mr O’Malley had not commenced drinking alcohol until one month after the first incident, given the anxiety this event was claimed to have caused. Mr O’Malley said his access to alcohol was limited as he was under age (17 years) but agreed that his peers did drink and that he probably could have obtained alcohol earlier than when he did in Hong Kong, if he had tried. Mr O’Malley agreed that he had told Dr D’Ortenzio that he had started to increase his alcohol intake when onboard HMAS Yarra in 1971. This was his first time back at sea since 1966. Mr O’Malley agreed that in late 1979 he had sought medical treatment (trans pp31‑32) for his alcohol abuse after colleagues had suggested that he had a drinking problem. At that time he was drinking 20 middies per night and drinking all day at weekends. The doctor who saw him, based on the history given by Mr O’Malley, attributed Mr O’Malley’s drinking to his marital break-up. Following his inpatient treatment for detoxification, Mr O’Malley said he improved and reduced his alcohol intake but this was short-lived.
20. Mr Purcell questioned Mr O’Malley in detail regarding the barge incident and the action stations incident; and in particular about the numerous action stations drills he would have performed. With respect to the electrocution incident, Mr O’Malley agreed his recollections differed to the official report (T13, p70), but he disagreed that the electrocuted sailor’s body had been stored in the cool room prior to the post-mortem. His major concern and source of anxiety was whether he could cope with the resuscitation of an injured sailor in the absence of an onboard doctor. In 1979 he underwent nine months training with the Mobile Intensive Care Ambulance service (MICA) at various Melbourne public hospitals, but until that time, he was anxious regarding his ability to cope with these sorts of situations.
21. Mr O’Malley’s re-examination did not add to the evidence already before the Tribunal.
Dr G. Foenander, clinical psychologist
22. Dr Foenander had prepared a report dated 30 October 2004 (Exhibit A1), having seen Mr O’Malley on two occasions during 2004. Dr Foenander obtained a psychological history from Mr O’Malley and performed a Davidson Interview in the form of a questionnaire designed for the diagnosis of PTSD. On this basis Dr Foenander diagnosed PTSD and alcohol abuse with co-morbid depression. In order to conduct psychological testing, Dr Foenander had selected what he deemed to be the major stressful incident, namely the barge incident. While noting the two other incidents Mr O’Malley had reported, Dr Foenander did not pursue them in detail. Dr Foenander was of the opinion that Mr O’Malley met the criteria for the diagnosis of PTSD as delineated in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM IV) and in the relevant SoPs, as well as the diagnostic criteria for alcohol abuse. Dr Foenander had also performed a personality test called the Minnesota Multiphasic Personality Inventory (MMPI), the result of which indicated Mr O’Malley suffered from PTSD and depression. This test was claimed to be objective. Dr Foenander had evaluated Mr O’Malley’s degree of impairment at 28 points in accordance with the Guide to the Assessment of Rates of Veterans’ Pensions (GARP) criteria.
23. Under cross-examination it was put to Dr Foenander that the history he obtained, particularly that relating to the electrocution incident, was inaccurate and thus the results of the MMPI test must be in doubt. Dr Foenander did not accept that this was the case and maintained that the barge incident, based on the history he had obtained, was the most traumatic event. While noting the conflicting diagnoses of the other psychologist and two psychiatrists, Dr Foenander disagreed with their diagnosis on the basis that they had not considered any differential diagnoses.
Captain Josephs, Writeway Research
24. Captain Josephs provided two reports, dated 1 December 2003 and 20 April 2005 (T13 and Exhibit R7), following his investigation of Mr O’Malley’s service record and the traumatic incidents described by him. Captain Josephs had served on HMAS Sydney in the 1960s and early 1970s. He was aware that during loading and unloading of cargo there were frequent loud noises, which he personally did not find frightening. Captain Josephs explained that because of the large numbers of barges and landing craft on both sides of HMAS Sydney, scare charges were deployed from a small boat upstream from the ship. This might be heard as a dull thud onboard HMAS Sydney.
25. The action stations incident referred to by Mr O’Malley was recorded in HMAS Yarra’s Report of Proceedings for February 1971 as follows: Hands were sent to action stations as the Yarra closed and identified USS Energy at 1700 hours (trans p85). Captain Josephs said he had spoken with Commodore Baird who was then the captain of HMAS Yarra. Commodore Baird had requested the unknown ship on the horizon to identify itself on several occasions and after receiving no reply called the ship to action stations. Commodore Baird could not recall whether he had informed the crew how and why he was taking this action; but it was his style of leadership to keep the crew so fully informed that they were probably tired of his voice.
26. The USS Energy was a logistics support vessel manned by a civilian crew and probably unarmed or armed with only light weaponry.
27. Under cross-examination Captain Josephs agreed that the confusion (trans, p88) described by Mr O’Malley after the loud bang could have occurred but it had not been officially reported to the Commodore. Captain Josephs explained the events of a call to action stations and that such a call meant that Action with the enemy forces [was] imminent (trans p90). He said in the situation under consideration the action stations lasted 30 minutes. As Mr O’Malley was in the ward room at the relevant time, he was not locked in (trans p92).
28. Captain Josephs’ report had included the official Board of Inquiry into the death of a sailor by electrocution in 1976. Captain Josephs said the inquiry had revealed that Mr O’Malley was not involved in the attempted resuscitation of the sailor but was present at the autopsy, his role being to prevent any inadvertent entry while they were doing their work (trans p93).
Dr N. Strauss
29. Dr Strauss, consulting psychiatrist, assessed Mr O’Malley on 23 March 2005 at the request of the respondent and provided a lengthy report (Exhibit R3). Dr Strauss diagnosed substance abuse in the form of alcohol, with an uncertain date of clinical onset, and which was certainly escalated by the break‑up of Mr O’Malley’s marriage in 1978–1979.
30. Dr Strauss did not detect any other psychiatric disorder, and in particular, he said there was no diagnostic evidence of PTSD.
31. Dr Strauss was asked to comment on Dr Foenander’s diagnosis of PTSD and the psychological testing he had performed leading to that diagnosis. Dr Strauss did not believe such a diagnosis could exist in Mr O’Malley’s case (trans, p97). In addition, Dr Strauss stated that DSM‑IV confirmed that diagnosis of any psychiatric condition was a clinical assessment and not based on psychological testing and that both he and the treating psychiatrist, Dr D’Ortenzio had considered all possible differential diagnoses. Dr Strauss was of the opinion that Mr O’Malley’s psychological problems were secondary to his alcohol abuse. However, given the treating psychiatrist’s lengthy relationship with Mr O’Malley, Dr Strauss said he would not disagree with Dr D’Ortenzio’s diagnosis of an anxiety state.
32. Under cross-examination Dr Strauss agreed with Mr De Marchi that the electrocution incident and the post-mortem that followed it could be considered stressful. But Dr Strauss maintained his opinion that excessive alcohol intake was Mr O’Malley’s health problem and that this excess intake of alcohol was related to his service in the Navy. Despite the alcohol abuse, Dr Strauss believed that Mr O’Malley could work for 8 to 20 hours per week.
33. Dr Strauss said he did not use nor refer his patients to a psychologist for psychological testing, such as the Davidson test, as clinical assessment was a superior technique. Dr Strauss agreed with Dr D’Ortenzio’s opinion that Mr O’Malley had some PTSD symptoms but insufficient to make such a diagnosis. Dr Strauss had assessed Mr O’Malley’s impairment at 17 points, all of which was attributable to alcohol abuse.
DOCUMENTARY EVIDENCE
Transcript of VRB Hearing (Exhibit R2)
34. At this hearing Mr Richards, Mr O’Malley’s advocate, stated that Mr O’Malley increased his alcohol consumption dramatically after the electrocution incident onboard HMAS Vampire, to such a degree that he required hospitalisation for alcohol detoxification in 1979. Dr D’Ortenzio’s report also supported such a timeframe in the opinion of the VRB. Mr O’Malley was questioned by the VRB with respect to discrepancies between his description of the autopsy given to Dr D’Ortenzio and the description provided by the doctor who performed the autopsy. Mr O’Malley confirmed Dr Verant’s evidence that Mr O’Malley was in the room where the examination was conducted and generally assisting in the form of delivering instruments. Mr O’Malley did not agree that the deceased sailor’s corpse had been stored in a cool room after it had been injected with formalin. Mr O’Malley had injected the formalin.
35. The VRB had considered the claim for hypertension which was based on two slightly elevated readings: one elevation of the systolic pressure in February 2003 and the other elevation of the diastolic pressure in April 2003. The VRB reasoned that while meeting the SoPs definition of hypertension, these abnormal readings had not been sustained and Mr O’Malley no longer suffered from hypertension and thus no impairment points were attracted.
Clinical Notes of Dr D. G D’Ortenzio (Exhibit R4)
36. Dr D’Ortenzio’s clinical notes are difficult to read. The Tribunal has relied primarily upon the typed letters to the treating doctor and the Department of Veterans’ Affairs which were included in the clinical notes. The Tribunal does note that, at the initial consultation, Dr D’Ortenzio recorded Mr O’Malley’s initial anxiety symptoms after the barge incident; but that it was not until four years later when he returned to sea that this incident bothered him again and he didn’t like going below decks (Exhibit R4 p9). Mr O’Malley had reported that he had first experienced sleep disturbance after the electrocution incident.
37. Dr D’Ortenzio diagnosed generalised anxiety disorder with alcohol abuse and dependence while also noting some PTSD symptoms. He referred Mr O’Malley to Mr V. Bolger, clinical psychologist, for cognitive behavioural therapy (CBT) to deal with the chronic anxiety.
38. Dr D'Ortenzio provided the most detailed report, dated 19 May 2003, to the Department of Veterans’ Affairs (Exhibit R4, p17). While noting the presence of some PTSD symptoms and fairly frequent anxiety symptoms (Exhibit R4, p21), his primary diagnosis was alcohol abuse and dependence. Dr D’Ortenzio found that Mr O’Malley met the SoP criteria for generalised anxiety disorder although he had difficulty in relating this to Mr O’Malley’s naval service.
39. Dr D’Ortenzio obtained detailed accounts of the three incidents claimed to be severe stressors. These accounts tallied with Mr O’Malley’s evidence before the VRB and this Tribunal except for the events of the electrocution incident. Mr O’Malley gave Dr D’Ortenzio the impression that he alone had performed the autopsy.
40. Dr D’Ortenzio recorded that Mr O’Malley’s alcohol intake increased substantially while serving on HMAS Yarra. At sea he would drink two cans of alcohol per day but when ashore drank heavily.
41. Dr D’Ortenzio conducted a mental state examination, the results of which were essentially normal except for Mr O’Malley’s affect which was predominantly of anxiety but also with some evidence of depression.
42. Dr D’Ortenzio recommended alcohol detoxification, medication and counselling for Mr O’Malley’s anxiety based symptoms. He assigned an impairment rating of 31 points.
43. Dr D’Ortenzio has continued to see Mr O’Malley regularly and reports a significant improvement in his mood and anxiety symptoms, control of the panic attacks and a reduction in alcohol intake (Exhibit R4, p13).
Mr Bolger, Clinical Psychologist (Exhibit R4 and Exhibit R8)
44. Mr Bolger sees Mr O’Malley monthly for CBT on the referral of Dr D’Ortenzio. He noted that initially there was significant improvement but Mr O’Malley’s anxiety symptoms recurred in the course of his appeal to the VRB and then to the AAT. At Mr Bolger’s suggestion Mr O’Malley attended the Vietnam Veterans’ Association meetings but left after two attendances due to an argument with the Association President.
Psychological Service Record (Exhibit R6)
45. Mr O’Malley was deferred at his first attempt to enlist essentially because of his immaturity. He was accepted into naval service in January 1965, although his immaturity and general lack of knowledge and an interest in the Navy were again noted.
46. On 9 May 1979 Mr O’Malley referred himself to a Defence Department psychologist, Mr A. Camac, complaining of feeling tense, suffering poor concentration and drinking excessively. At that time Mr O’Malley attributed all his symptoms to the breakdown of his marriage, some 12 months previously.
Clinical Notes of Dr R. Power (Exhibit R5)
47. Dr Power is Mr O’Malley’s general practitioner. He first saw him on 26 February 2003. At that appointment Dr Power diagnosed hypertension, alcohol excess and PTSD related to two nominated incidents, namely the barge incident and the electrocution/autopsy incident. Appropriate psychiatric referral was made. On 12 August 2003 Mr O’Malley had been teetotal for three weeks, his blood pressure was 120/80 and he had lost weight by dieting. This improvement was maintained to the last dated entry on 17 June 2004. Mr O’Malley reported impotence on 30 October 2003: this was attributed to the anti-depressant drug Effexor that he was taking.
RELEVANT LEGISLATION
48. Mr O’Malley has both operational and eligible service and the claimed stressors took place during both periods of service. Section 121(1) and s 121(3) of the Veterans' Entitlements Act 1986 (the Act) are attracted by the operational service and s 120(4) by the eligible service. Section 120A is also relevant as Mr O’Malley lodged his application after 1 June 1994. The standard of proof with respect to operational service is that of a reasonable hypothesis; and on the balance of probabilities with respect to eligible service.
49. The parties agree that the relevant SoPs are as listed earlier in this decision.
50. With respect to the reasonable hypothesis standard of proof, the Tribunal is required to follow the process set out by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 where the Court stated:
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). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
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.
SUBMISSIONS
51. Mr De Marchi submitted that the preferred diagnosis was PTSD with alcohol abuse, as evidenced by Dr Foenander; and that all three incidents described by Mr O’Malley were severe stressors. He said that Mr O’Malley relied upon factor 5(a) of Instrument № 3 of 1999 concerning PTSD and factor 5(b) of Instrument № 76 of 1998 concerning psychoactive substance abuse or alcohol abuse. Dr Foenander had made his diagnosis based on the barge incident that occurred during operational service. Mr De Marchi submitted that Mr O’Malley’s claim for hypertension as being war-caused was based on his alcohol consumption, by consuming an average 200gms per week of alcohol which cannot be decreased to less than an average of 200gms per week, at the time of the clinical onset of hypertension i.e. factor 5(b) of Instrument № 35 of 2003.
52. Mr De Marchi contended that Mr O'Malley's impairment rating, including his accepted disabilities, was either 40 or 45 points, which attracted a pension of 80 per cent of the general rate. As Mr O’Malley was only working 6 to 8 hours per week as a cleaner because of his health problems, Mr De Marchi submitted that Mr O'Malley qualified for the special rate of pension; or on Dr Strauss’ evidence that he could work up to 20 hours per week, for intermediate rate.
53. Mr Purcell again pointed out the question of special or intermediate rate was not before the Tribunal as these rates had not been considered by the primary decision-maker or the VRB. Consequently, the rates did not form part of the decision under review.
54. Mr Purcell outlined the SoPs' definitions of a severe stressor with respect to PTSD, a severe psychosocial stressor in respect to generalised anxiety disorder and the similarity of the definition of a severe stressor in Instrument № 76 of 1998 concerning alcohol dependence or alcohol abuse. He noted that the latter imposed a lesser burden of proof in that it stated event or events might invoke intense fear, helplessness or horror.
55. Mr Purcell submitted that Mr O’Malley does not suffer from PTSD as only Dr Foenander had made that diagnosis; and that Dr Strauss, Dr D’Ortenzio and Mr Bolger, while noting some PTSD‑like symptoms, had found these insufficient to reach such a diagnosis. The respondent conceded that Mr O’Malley suffered from generalised anxiety disorder and alcohol abuse but rejected the argument that he suffered from hypertension. While two readings had fallen within the SoP's definition of hypertension, the elevation of the blood pressure had not been sustained, as required by the SoP, and his blood pressure has been normal since 15 April 2003.
56. Mr Purcell submitted that Mr O’Malley’s claim, based on the barge incident and the action stations incident, failed at either the third or fourth stage of Deledio and that the electrocution incident did not satisfy the SoPs. The evidence before the Tribunal indicated that Mr O’Malley’s clinical onset of an anxiety disorder occurred in 1978 or 1979, following the break-up of his marriage. This conclusion was supported by the hospital inpatient record (T4, pp16‑18) when Mr O’Malley was admitted for alcohol detoxification. While Mr O’Malley had claimed in his lifestyle questionnaire (T5, pp37‑38) that he commenced drinking in 1966, this was in conflict with the history given to Dr D’Ortenzio, that his alcohol consumption increased dramatically when he was serving on HMAS Yarra in 1971. In his evidence before the Tribunal, Mr O’Malley had stated that he did not start drinking until one month after the first incident as he was under age. Mr Purcell contended that, had his anxiety been as severe as claimed, he would have been able to access alcohol before that date.
57. Mr Purcell submitted that none of the three incidents described by Mr O’Malley constituted experiencing a severe stressor or a severe psychosocial stressor as required by the relevant SoPs. With respect to the phrase experiencing a severe stressor, the respondent relied upon the Federal Court decisions in Woodward v Repatriation Commission (2003) 131 FCR 473 and Stoddart v Repatriation Commission (2003) 74 ALD 366. In particular the respondent relied upon the statement of Mansfield J in Stoddart that this phrase does not provide for idiosyncratic and personal perceptions of events, which judged objectively, do not fall within the adjectival clause. Mr Purcell submitted that neither the barge incident nor the action stations incident could be regarded as a threat and did not point unequivocally to Mr O’Malley being brought face-to-face with the reality of death on service. He also submitted that on the balance of probabilities the electrocution incident did not constitute experiencing a severe stressor as defined in the SOPs.
58. Mr Purcell relied upon the Federal Court decision in White v Repatriation Commission (2004) 39 AAR 67 and the Tribunal’s comments in Re Stonehouse and Repatriation Commission [2004] AATA 707, regarding the meaning of the word psychosocial as applied to the stressor required in SoP Instrument № 2 of 2000 concerning generalised anxiety disorder. He submitted that the three incidents did not produce the level of danger or stress comprehended by the definitions.
THE TRIBUNAL'S DELIBERATIONS
59. The Tribunal is satisfied, on the balance of probabilities, that the correct diagnosis of Mr Malley's medical condition is that of a generalised anxiety disorder and alcohol abuse (Repatriation Commission v Cooke (1998) 90 FCR 307). Mr De Marchi submitted that the preferred diagnosis was that of PTSD and alcohol abuse. The psychiatric evidence of Dr Strauss, Dr D’Ortenzio, Mr Bolger and Dr Foenander were unanimous in the diagnosis of alcohol abuse. Dr Foenander alone made a diagnosis of PTSD, which he had assessed on the basis of the barge incident. The two psychiatrists and the other psychologist preferred the diagnosis of generalised anxiety disorder. Although Dr Strauss found no DSM‑IV psychiatric disorder in his report; in his oral evidence he deferred to the opinion of the treating psychiatrist, Dr D’Ortenzio. Mr O'Malley had claimed he suffered from hypertension, but on his own evidence, as verified by the reports of his general practitioner, he has been normotensive for over the past two years, and thus, his hypertension does not meet the required (sustained) levels of SoP (№ 35 of 2003).
60. Mr De Marchi raised the hypothesis that the applicant's PTSD, or in the alternative generalised anxiety disorder, resulted from his exposure to two severe stressors during operational service in Vietnam and a third severe stressor during eligible service; all of which led to the development of a generalised anxiety disorder and secondarily alcohol abuse.
61. Having examined all the evidence before it, the Tribunal is satisfied that a reasonable hypothesis has been raised connecting the applicant's disease with the circumstances of the particular service rendered by the person. There is nothing to suggest that the hypotheses raised are not reasonable; that they are not contrary to proven or known scientific facts; and that they are in any way fanciful or untenable.
62. The Repatriation Medical Authority, under s 196B(2) or (11) of the Act, laid down SoPs concerning generalised anxiety disorder and anxiety disorder (Instrument № 1, Instrument № 2 of 2000) and SoPs concerning alcohol dependence or alcohol abuse Instrument № 76 of 1998 and Instrument № 77 of 1998). For the sake of completeness, given the applicant's original submission that the psychiatric condition from which suffered was PTSD, the Tribunal has also considered SoP Instrument № 3 of 1999 as amended by Instrument № 54 of 1999, concerning PTSD.
63. SoP № 3 of 1999 concerning PTSD defines experiencing a severe stressor as:
[T]he person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
64. In Stoddart, Mansfield J held that:
…
To "experience a severe stressor" requires that the person experience or be confronted with an event or events that involved threat of death or serous injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person I the position of and with the knowledge of the person experiencing those events, are capable of and did convey (that is, are subjectively experienced) the risk of death or serous injury or to physical integrity….
The Full Court of the Federal Court in Woodwardv Repatriation Commission (2003) 131 FCR 473 followed the arguments in Stoddart.
65. The Tribunal does not accept that the barge incident, the hearing of a loud bang when the HMAS Sydney was unloading cargo onto numerous barges and other vessels pulled aside, could be categorised as experiencing a severe stressor. Likewise the action stations incident, that took place when a distant vessel failed to identify itself, in the context of regular action stations practice and the normal practice of 25 per cent of the crew being at action stations while in Vung Tau Harbour, is not of sufficient magnitude to equate with experiencing a severe stressor.
66. The electrocution incident will be considered under generalised anxiety disorder.
67. The SoPs relating to generalised anxiety disorder or anxiety disorder, Instrument № 1 of 2000 and Instrument № 2 of 2000, are almost identical. Therefore the Tribunal accepts that, in the context of this matter, SoP № 1 of 2000 refers to operational service and SoP № 2 of 2000 refers to eligible war service or defence service other than hazardous service. In both Instruments the relevant factors that must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder with the circumstances of a person's relevant service are experiencing a severe psychosocial stressor within two years immediately before the clinical onset of the anxiety disorder (factor 5(a)(ii) and 5(a)(iii) of SoP № 1 of 2000); or having a clinically significant psychiatric condition within the one year immediately before the clinical onset of the anxiety disorder (factor 5(a)(i) and 5(a)(ii) of SoP № 2 of 2000).
68. In both Instruments severe psychosocial stressor is defined in the following terms:
"severe psychosocial stressor" 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;
The definition is obviously not exhaustive.
69. The concept of a severe psychosocial stressor has been considered in White and Stonehouse. In White, Spender J said that the test had both a subjective and objective element and in paragraph 30 he said.
…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.
70. In Stonehouse, the Tribunal also considered the meaning of a psychosocial stressor and referred to the definition of psycho‑social in the Oxford English Dictionary:
Pertaining to the influence of social factors on an individual's mind or behaviour, and to the interrelation of behavioural and social factors;…
The Tribunal stated, at paragraph 18, that:
An event that was merely dangerous or frightening – particularly an event that happened quickly, and which passed – does not amount to a psychosocial stressor without that additional dimension. The term was not intended to include all kinds of stressful and terrifying events – the social element makes it quite distinct from the concept of a severe stressor for the purposes of the SoP regulating post-traumatic stress disorder.
And at paragraph 19:
A severe psychosocial stressor must be a stressor that is both severe and psychosocial in nature, and cause the requisite level of distress to the individual. To satisfy the SoP the individual must have experienced an identifiable [occurrence] which has social factors that affected his or her mind or behaviour, causing the requisite level of distress.
71. The Tribunal does not accept that either the barge incident or the action stations incident resulted in such a level of distress.
72. The electrocution incident occurred during Mr O'Malley's eligible service in 1976. This incident, which involved the electrocution and death of a young sailor and the subsequent post‑mortem, is historically verified. Mr O'Malley's participation, or at least his presence, at the post‑mortem is verified; and his evidence indicates that he, prior to the post‑mortem, had injected the corpse with formaldehyde. The latter has not been refuted by any evidence. The Tribunal is satisfied that this was an event that meets the definition of a psychosocial stressor as delineated in Instrument № 2 of 2000 and that the "distress" occasioned related to Mr O'Malley's fear of having to perform such an examination himself in the future, on a ship where there was no medical officer. He was also fearful of having to try and resuscitate someone injured in such an event, although the evidence did not support his contention that he was actually involved in the attempted resuscitation in this instance. The Tribunal notes that Mr O'Malley subsequently undertook advanced medic training with the Victorian Mica Service.
73. The Tribunal finds that the electrocution incident meets all the criteria for generalised anxiety disorder or anxiety disorder. This incident occurred during eligible service.
ALCOHOL ABUSE
74. The respondent has conceded that Mr O'Malley suffers from alcohol abuse based on the opinions of all the psychiatrists and psychologists. The relevant SoPs are:
· Instrument № 76 of 1998 concerning alcohol abuse during operational service;
· Instrument № 77 of 1998 concerning alcohol abuse during eligible war service.
The applicant has relied on factor 5(a) and 5(b) of Instrument № 76 of 1998 and factor 5(a) and (b) of Instrument № 77 of 1998.
75. The Tribunal has already determined that the psychiatric condition of generalised anxiety disorder relates to the electrocution incident in 1976. This does not, given the definition of experiencing a severe stressor in accordance with the two Instruments concerning alcohol abuse, exclude the barge incident and the action stations incident. Instruments № 76 and № 77 of 1998 define a severe stressor as:
…the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror;
76. In the Tribunal’s opinion the term might imposes a lesser standard of proof, allowing for a more subjective approach once the objective criteria have been substantiated. The Tribunal finds that all three incidents satisfy the definition of experiencing a severe stressor in the relevant SoPs, with regard to alcohol abuse.
77. The Tribunal finds that the applicant's anxiety disorder is war‑caused within the meaning of s 9 of the Act and that it relates to the incident in 1976. The Tribunal also finds that the applicant's alcohol abuse is war‑caused within the meaning of s 9 of the Act and relates causally to his operational service and eligible service.
I certify that the seventy‑seven [77] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
(sgd) Catherine Thomas
ClerkDates of Hearing: 20 July 2005
15 August 2005
Date of Decision: 6 October 2005
Solicitor for the applicant: Mr D. De Marchi, De Marchi & AssociatesCounsel for the respondent: Mr G. Purcell
Solicitor for the respondent: Advocacy Section, Department of Veterans’ Affairs
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