O'Rourke and Repatriation Commission
[2006] AATA 248
•10 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 248
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2004/373
VETERANS' APPEALS DIVISION ) Re MICHAEL GERARD O'ROURKE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J G Short (Member) Date10 March 2006
PlaceAdelaide
Decision The Tribunal affirms the decision under review in relation to depressive disorder and alcohol dependence or alcohol abuse.
..............................................
J G SHORT
(Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – non-operational service – claim that depressive disorder and alcohol dependence or abuse were defence-caused – consideration of statements of principles – helping to move bodies on a beach in Darwin following Cyclone Tracy – clinical onset of conditions not within 12 months – decision affirmed
Veterans’ Entitlements Act 1986 ss 120(4), 120B
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Smith (1987) 15 FCR 327
Lees v Repatriation Commission (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750Statement of Principles Instrument No 59 of 1998
Statement of Principles Instrument No 77 of 1998REASONS FOR DECISION
10 March 2006 Mr J G Short (Member) 1. Mr Michael O’Rourke was born on 13 October 1954. He served in the Royal Australian Air Force (the RAAF) from 12 January 1972 until 11 January 1978. His eligible defence service was from 7 December 1972 until 11 January 1978.
2. Mr O’Rourke lodged a claim for pension in respect of post-traumatic stress disorder (PTSD) on 1 September 2003. The Repatriation Commission (the Commission) diagnosed depressive disorder and alcohol dependence or alcohol abuse and on 12 February 2004 rejected the claim in respect of these conditions. On 24 September 2004 the Veterans’ Review Board (VRB) affirmed the decision. On 10 November 2004 Mr O’Rourke lodged an appeal to this Tribunal.
3. It was common ground that the appropriate diagnoses answering Mr O’Rourke’s claim are depressive disorder and alcohol dependence or alcohol abuse. It was also common ground that the appropriate Statements of Principles (SoPs) relating to these conditions are Instrument No 59 of 1998 and Instrument No 77 of 1998 respectively.
4. Mr O’Rourke’s claim was based on a period of service following Cyclone Tracy which struck Darwin on 24 December 1974, particularly his involvement in helping to move bodies on a Darwin beach on 28 or 29 December 1974.
issues before the tribunal
5. The issue before the Tribunal is whether Mr O’Rourke’s diagnosed conditions of depressive disorder and alcohol dependence or alcohol abuse were defence-caused for the purposes of the Veterans’ Entitlements Act 1986 (the VE Act).
evidence before the tribunal
evidence of the applicant
6. Mr O’Rourke said that in December 1974 he had been stationed at RAAF Base Edinburgh in South Australia. He had been on leave and due to return in January 1975. Mr O’Rourke said that on 26 December 1974 his mother received a telegram requiring Mr O’Rourke to report for duty. Mr O’Rourke said that he attended for duty at about 6:00pm on 26 December 1974. Mr O’Rourke said that his typical duties entailed clerical and physical work associated with the movement of freight by air. He said that on either 28 or 29 December 1974 he had travelled to Darwin, arriving in the late afternoon. He said that he then travelled with other Air Force personnel in a truck delivering generators to various locations in and around Darwin, including a delivery to trucks parked on the foreshore of a beach in Darwin Mr O’Rourke knew as City Beach.
7. Mr O’Rourke said that when he arrived at City Beach he noticed approximately 30 people standing around and observing what he initially thought were hundreds of bodies. He later realised there were 8-12 bodies laying in a row on the beach. Mr O’Rourke said that someone asked for assistance in moving the bodies further up the beach. Mr O’Rourke said that he helped move 2 or 3 bodies to an area further away from the shoreline, but still on the beach. Mr O’Rourke said that he did not vomit but did feel ill at the sight of these bodies. Mr O’Rourke said that he remained at the beach site for approximately one hour. He then delivered other generators and then returned to RAAF Base Darwin where he took a flight back to RAAF Base Edinburgh.
8. Mr O’Rourke said that over about the next 3 weeks he made a maximum of 7 further trips from Adelaide to Darwin. He said that he did not see any more bodies but was distressed at the sight of civilians waiting to be evacuated from Darwin. He said that on about 2 occasions he “overnighted” in Darwin before returning to Adelaide.
9. Mr O’Rourke said that in August 1975 he was posted to Darwin on a Z posting (for an unlimited period). He said that his duties in Darwin involved tracking down equipment which had been sent to Darwin. He said that much had gone missing.
10. Mr O’Rourke said that while stationed in Darwin he drank heavily. He said that this was the common practice of all servicemen in Darwin at the time.
11. Mr O’Rourke said that from February 1976 until January 1978 he served in Melbourne in a NATO office. He said that this was more like a civilian job. He worked with civilians and wore civilian clothing. He was only required to wear a uniform once a month. In January 1978 Mr O’Rourke left the RAAF notwithstanding attempts made by the RAAF to retain him. He had been offered but rejected, a transfer back to Adelaide where he could perform similar duties to those he performed in Darwin, again locating missing equipment.
12. Mr O’Rourke said that while residing in Melbourne he had visited his fiancée in Adelaide every few weeks and talked to her on the telephone. He said that after his discharge in January 1978 he returned to Adelaide and married his fiancée. The marriage broke down after about 4 years. Mr O’Rourke said that he noticed that although he had experienced depression prior to arriving in Melbourne, his feelings of depression were exacerbated in Melbourne. He later suggested that his claimed conditions may never have become apparent if he had not served in Melbourne where the usual regimentation of service life no longer applied. Mr O’Rourke also said that married life seemed to exacerbate feelings of depression in that (living with his wife), he could not hide his feelings. Mr O’Rourke said that it was after his marriage that he cut his wrists with a dismantled plastic razor blade. He was taken to a clinic by his father-in-law and discharged after about 2 hours.
13. Mr O’Rourke said that he did not work for the following 6 months but then secured a job selling snack foods to retail outlets. He retained this position for about 2 years, that is until 1981. After that Mr O’Rourke held a number of jobs for periods each approximating 18 months. He said that he worked as an assistant to an insurance broker until about June 1983 then moved to Perth to work with a brother doing similar work. In June 1984 his wife moved back to Adelaide. Mr O’Rourke said that it was at this time that he “really hit the bottle hard”. He next worked in a part-time capacity in a butcher’s shop. He then again returned to Adelaide and worked performing maintenance duties for a real estate business operated by another brother. Mr O’Rourke said that he returned to work in a butcher’s shop on a full-time basis in about 1986/1987 and retained that position for approximately 5 years. Mr O’Rourke said that he was comfortable working with the public and got on well with his co-workers. In 1990 Mr O’Rourke went to work in the bottle department of a hotel in Adelaide. He said that he again got on well with the public and his co-workers, however he drank heavily after work. In the mid 1990s Mr O’Rourke returned to the meat industry, again delivering meat to butcher’s shops. He retained that position for approximately 5 years.
14. Mr O’Rourke said that he was still working at a butcher’s shop in July 2002 when he attempted suicide for the second time. He said that he drank weed killer. He said that he became aware that the poison was not going to kill him, but was making him feel very ill. He consequently telephoned an emergency line which resulted in police conveying him to the Royal Adelaide Hospital where he remained for about a week. He was then transferred to the Cramond Clinic. In cross-examination Mr O’Rourke was referred to a discharge summary from the Cramond Clinic which indicated admission on 26 July 2002 and discharge on 2 August 2002. This discharge summary records as treating doctor, Alice Kao, and as consultant, William Goh. The summary of admission relevantly includes the following paragraphs (T17/112):
“ …
He was admitted to RAH following a high intent, low lethality, suicidal attempt on 18.07.02. Patient ingested 200 ml weed killer as an attempt to end his life.
He reported suffering from depressive symptoms over the last 1-2 years. Never had suicidal attempt in the past. Never seek [sic] psychiatric or medical attention regarding his symptoms.
…”
The report goes on to provide a diagnosis of obsessive and compulsive personality disorder. Mr O’Rourke said that he told the staff at the Cramond Clinic that as soon as he was discharged he intended to again attempt suicide. He explained the reference to depressive symptoms over the last 1-2 years by saying that he had told staff that it was approximately 1-2 years prior to his suicide attempt that he had noted an exacerbation of his depression. He said that he denied any past suicide attempt as he considered that it was his right to suicide if he wished.
15. Mr O’Rourke said that he has always used work to distract himself from his depression but in about the year 2000, found that he could no longer do so. Following his second suicide attempt Mr O’Rourke was off work for about 18 months. He said that he is currently living with his mother. He started full-time employment in March 2004 driving freight trucks and then in October 2004 was appointed to a managerial position with the same employer. He said that he now manages his depression by working at night. He said that he does not drink much now. He did say that on Sundays, when he does not have to work, he “gets plastered”.
16. Mr O’Rourke concluded his evidence by saying that he felt he was really in trouble with depression in about 1979 after his marriage and when his resignation from the RAAF failed to assist him to feel any better.
evidence of mr robert piper
17. The Commission called military historian, Mr Robert Piper. Mr Piper said that he could not find any record of Mr O’Rourke’s attendances in Darwin and that 47 bodies of the recorded 49 person death count which followed Cyclone Tracy had been found by 26 December 1974. This was prior to Mr O’Rourke’s first trip to Darwin. Mr Piper said that in his experience, bodies would smell badly after 24 hours and worse days later.
evidence of mr william o’rourke
18. Mr William O’Rourke is one of the applicant’s brothers. He was a warrant officer with the RAAF at the time of Cyclone Tracy and his duties included security and supervision of attendance records at RAAF Base Edinburgh. He gave evidence that 5-6 aircraft passed through Edinburgh each day following Cyclone Tracy. He recalled seeing the applicant leave Edinburgh on a Hercules and return on a Hercules. He said that the applicant told him that he had seen dead bodies and that he had been upset by this. He said that he had commented that time was a great healer.
19. Mr William O’Rourke said that at some stage he had told the applicant that he had personally experienced and reported psychiatric problems, but later considered that he would have been better off not seeking any assistance as there was, at that time, a stigma attached to reporting psychiatric problems.
20. Mr Michael O’Rourke said that he noticed a significant change in the applicant when he saw him sometime between mid 1977 and 1978.
medical evidence
21. The medical evidence included reports of psychiatrist, Dr Martyn Ewer, dated 20 October 2003, 12 December 2003 and 5 February 2004. These reports recorded diagnoses of depressive disorder and alcohol dependence. Dr Ewer’s conclusion was that he could not say that it was more likely than not that these conditions were related to Mr O’Rourke’s experience in Darwin in late 1974.
22. Psychiatrist Dr Milton Bowman prepared reports dated 27 July 2004 and 9 August 2005. Dr Bowman initially reported on page 2 of his first report that:
“Whilst this man has not had the single incident that has triggered a post-traumatic stress disorder, he was exposed to a quite prolonged period of high stress, during which he obviously became unsettled and distressed. Unfortunately, these symptoms did not settle with the passage of time, and he continued to feel anxious. … Relationships failed; he lost friendships and, apart from work which he pursued with a fairly obsessional determination, life became quite dysfunctional. … it is now recognised that prolonged periods of not so extreme pressures can result in prolonged periods of anxiety, depression and malfunction, with many similarities to a post-traumatic stress disorder. This is what Mr O’Rourke is experiencing, and there is a clear relationship with his previous service in Darwin.”
This report also included the following paragraph:
“His experiences with Cyclone Tracy are relevant. He arrived on Christmas Day and was involved not only in the supply and distribution of equipment, but in some of the clean up around the area. In particular, he was involved in the discovery of a number of bodies on the beaches, and has quite vivid memories of these bodies and of their injuries. He found himself starting to struggle to cope with the queues awaiting evacuation, and at times noted himself to be crying and feeling somewhat cut off from people. After three weeks of quite solid work, he then went on to doing multiple trips through Darwin over the next five or six months prior to his posting up to Darwin. He did not want to go to Darwin on posting, and actually found the posting very difficult.”
In his second report dated 9 August 2005 (Exhibit R3(b)) Dr Bowman said that Mr O’Rourke could be said to be suffering from post-traumatic stress disorder. However, after discussing the DSM-IV classification for post-traumatic stress disorder, Dr Bowman wrote:
“ … Where Mr O’Rourke differs from this is that he did not have that single overwhelming incident. He has a number of incidents which he found quite hard to cope with at the time and which had a profound effect on him, but he was not overwhelmed at the time. …”
Dr Bowman told the Tribunal that the evidence provided by Mr O’Rourke at hearing, to the effect that he made a maximum of seven trips to Darwin over the 3 or 4 weeks following the cyclone and before his later posting to Darwin and that he only stayed over night on about two occasions, provided a different impression to that which he had gleaned from Mr O’Rourke.
evidence of psychologist, garry newman
23. A report of Psychologist, Mr Garry Newman, dated 22 July 2004 was tendered by consent. The third paragraph of this report reads as follows:
“Michael has exhibited many of the symptoms of Post Traumatic Stress Disorder, associated with his time in Darwin, at age 19, when, as a member of the Royal Australian Air Force, he was required to extract bodies from the wreckage of Cyclone Tracy, laying them on the beach, and subsequently putting them onto trucks for removal. His flashbacks are about these experiences.”
24. I point out at this stage that Mr O’Rourke’s evidence was that he did not “extract” bodies from the wreckage of Cyclone Tracy. He did however say that he was in company of about 30 other people when he saw bodies which were apparently laying in a row on a beach. He said he assisted in moving 2 or 3 of these bodies further up the beach.
legislative background
25. In this case of defence service, the determination of whether Mr O’Rourke’s conditions of depressive disorder and alcohol dependence or abuse are defence-caused is to be made by applying s 120(4) of the VE Act. This provision requires the Commission (and now this Tribunal) to decide this matter to its reasonable satisfaction (see Repatriation Commission v Budworth (2001) 116 FCR 200). This means, according to Repatriation Commission v Smith (1987) 15 FCR 327 at 335, that I must determine this claim on the civil standard of proof, namely proof on the balance of probabilities.
26. Under s 120B of the VE Act, in the case of applications lodged after 30 June 1994, where the Repatriation Medical Authority (RMA) has issued a SoP in respect of a particular kind of injury or disease, the criterion for reasonable satisfaction is assessed in accordance with that SoP. In this case it is common ground, and I find, that Mr O’Rourke suffers from a depressive disorder and also from alcohol dependence or abuse. I further find that the appropriate SoPs in relation to these conditions are Instrument No 59 of 1998 and Instrument No 77 of 1998 respectively.
consideration
depressive disorder
27. The factor recorded in SoP Instrument No 59 of 1998 for depressive disorder and asserted by the applicant to provide a nexus between his service and his depressive disorder is factor 5(a) which reads as follows:
“5(a)experiencing a severe psychosocial stressor or stressors within the one year immediately before the clinical onset of depressive disorder;”
“Severe psychosocial stressor” is defined 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), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
28. Mr O’Rourke’s evidence was that he felt ill at the sight of bodies which lay in a row on a Darwin beach. Clearly these people had been dead for at least 2 days. Mr O’Rourke was not under any known threat at the time and although he was disturbed, I am not satisfied that the circumstances of his time helping on a Darwin beach met the definition of severe psychosocial stressor.
29. Although, in the light of the abovementioned finding, it is not necessary for me to determine whether the clinical onset of depressive disorder occurred within 12 months immediately following the claimed stressor, I have considered this issue. The meaning of “clinical onset” was considered by the Full Court of the Federal Court in Lees v Repatriation Commission (2002) 125 FCR 331. The Court referred to the analysis of the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668, in which Senior Member Dwyer concluded (at 670) that:
“… there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.”
That analysis was specifically endorsed by Branson J in Repatriation Commission v Cornelius [2002] FCA 750.
30. I have noted that Mr O’Rourke’s medical records, and indeed his evidence at hearing, support a finding that he continued to perform his RAAF duties in an exemplary fashion following his first trip to Darwin. I have also noted Mr O’Rourke’s evidence that his feelings of depression were exacerbated at about the time of his discharge from the RAAF in 1978, and further, following his marriage. I further note the indication in the Cramond Clinic discharge record to the effect that Mr O’Rourke had been feeling depressed for one to two years prior to his 2002 suicide attempt. This reference was explained by Mr O’Rourke to be consistent with a further exacerbation of his symptoms noted in about the year 2000. I find that Mr O’Rourke, following discharge from the RAAF, managed to hold down a number of jobs which required him to deal with the public and fellow workers. I have particularly noted a closing submission made by Mr O’Rourke to the effect that he considers that if he had not been stationed in Melbourne in about February 1976, where he was no longer subject to the usual RAAF regimentation and discipline, his conditions may never have become apparent. Mr O’Rourke concluded his evidence by saying that he felt that the clinical onset of depressive disorder was within the 12 month period specified in factor 5(a) of the relevant SoP as he considered that his entire period in Darwin, including the 6 or 7 months service between August 1975 and February 1976 all amounted to a severe psychosocial stressor.
31. I have reached the view, and to some extent this was supported by Dr Bowman’s evidence at hearing, that Mr O’Rourke’s obsessive and compulsive personality disorder was likely to have given rise to significant feelings of depression when he was taken out of a military environment on his posting to Melbourne in February 1976. This was more than 12 months after Mr O’Rourke’s first trip to Darwin. I am satisfied that Mr O’Rourke experienced the clinical onset of depressive disorder at a time later than 12 months after experiencing a severe psychosocial stressor or stressors.
alcohol dependence/abuse
32. The relevant SoP in respect of this condition or these conditions is Instrument No 77 of 1998. The factor relied upon before the VRB in order to establish a nexus between service and the condition was factor 5(a):
“suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse;”
I have considered this factor and in the light of my findings in relation to depressive disorder, I am not reasonably satisfied that this factor is established.
33. I have also considered factor 5(b):
“experiencing a severe stressor within the one year immediately before the clinical onset of alcohol dependence or alcohol abuse;”
Mr O’Rourke’s evidence was that in Darwin heavy drinking was simply a way of life for virtually all service personnel. He said that he noted his alcohol intake significantly increasing during his period of work in Perth and earlier than this, while stationed in Melbourne. “Alcohol dependence” is defined as:
“… the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour.”
34. I note that at least prior to Mr O’Rourke’s discharge from the RAAF in 1978 he was able to perform his daily duties to a high level notwithstanding heavy drinking. I have not been satisfied of the existence (at least prior to Mr O’Rourke’s transfer to Melbourne) of cognitive, behavioural or physiological symptoms indicating alcohol related problems. Any such symptoms appear to have occurred subsequent to Mr O’Rourke’s posting to Melbourne, that is more than 12 month after Mr O’Rourke’s first trip to Darwin following Cyclone Tracy. “Alcohol abuse” is defined as:
“… the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however, these symptoms have never met the criteria for alcohol dependence. Additionally, signs of tolerance or withdrawal are absent.”
.
I am not satisfied that Mr O’Rourke (within 12 months of his first trip to Darwin) exhibited significant alcohol related problems sufficient to have allowed a diagnosis to be made. I find that the clinical onset of all of Mr O’Rourke’s claimed conditions occurred more than 12 months after the occurrence (helping to move bodies) suggested to have caused these conditions. In these circumstances a causal link between eligible service and Mr O’Rourke’s alcohol related conditions does not exist.
35. For the above mentioned reasons the decision of the Repatriation Commission dated 12 February 2004 rejecting claims for acceptance of depressive disorder and alcohol dependence or alcohol abuse as defence-caused is affirmed.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)
Signed: ..........J Coulthard............................................
AssociateDates of Hearing 16/17 January 2006
Date of Decision 10 March 2006
Counsel for the Applicant In person
Solicitor for the Applicant -
Counsel for the Respondent Mr Greg Doube
Solicitor for the Respondent DVA
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