OLDACRES-DEAR And REPATRIATION COMMISSION
[2011] AATA 481
•8 July 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 481
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2677
VETERANS' APPEALS DIVISION ) Re PHILIP OLDACRES-DEAR Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President S D Hotop Date8 July 2011
PlacePerth
Decision The Tribunal affirms the decision under review.
..........[sgd S D Hotop]........
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – applicant rendered defence service in Royal Australian Air Force (RAAF) from 1975 to 1984 and in Royal Australian Navy from 1985 to 1989 – applicant claimed Post Traumatic Stress Disorder (PTSD) related to RAAF service – applicant claimed PTSD defence-caused – applicant has not suffered PTSD – applicant has suffered Alcohol Abuse – Statement of Principles (SoP) – SoP does not uphold contention that Alcohol Abuse connected with defence service – Alcohol Abuse not defence-caused – decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth), s 5D(1) s70(5), s 120(4), s 120B(3), s 196B(3) and s 196B(14)
Statement of Principles concerning alcohol dependence and alcohol abuse No 2 of 2009
Gerzina v Repatriation Commission [2003] FMCA 490
Hill v Repatriation Commission [2001] FCA 1775
REASONS FOR DECISION
8 July 2011 Deputy President S D Hotop Introduction
1.Philip Oldacres-Dear (“the applicant”) served in the Royal Australian Air Force (“RAAF”) from 7 January 1975 to 6 January 1984 and in the Royal Australian Navy (“RAN”) from 14 May 1985 to 13 March 1989. His RAAF service and RAN service constitute “defence service” for the purposes of Part IV of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”). He joined the Western Australia Police Service on 4 September 1989 and he has continued to be employed as a police officer from that date.
2.On 6 November 2008 the applicant made a claim for a disability pension under Part IV of the VE Act in respect of incapacity from various disabilities which he claimed were defence-caused, including “PTSD”, the signs and symptoms of which were described by him as “mood swings” and “sleep problems”.
3.On 5 March 2009 a delegate of the Repatriation Commission (“the respondent”) decided that the following physical conditions suffered by the applicant are related to his defence service:
· “lumbar spondylosis”, “osteoarthrosis affecting both knees”, “sensorineural hearing loss”, and “tinnitus”;
but that the following physical disabilities are not related to his defence service:
· “right hand deformity of PIP joints of ring and little fingers” and “osteoarthrosis of the left little finger”.
As regards the applicant’s claimed mental disability of “PTSD”, the delegate determined that the appropriate medical diagnoses were “alcohol abuse” and “personality disorder” and decided that neither of those disabilities was related to his defence service.
4.On 22 April 2010 the Veterans’ Review Board (“VRB”) decided that the applicant’s “right hand deformity of PIP joints of ring and little finger” is defence-caused, but affirmed the delegate’s decision of 5 March 2009 in respect of the other disabilities, including “alcohol abuse” and “personality disorder”.
5.On 28 June 2010 the applicant lodged with the Tribunal an application for review of the VRB’s decision of 22 April 2010 in respect of his claimed mental disability, namely, “PTSD”.
The Evidence
6.The evidence before the Tribunal comprised:
· the “T Documents” (T1–T21, pp I–XVII, 1–288) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
· Exhibits A1–A3 tendered by the applicant;
· Exhibits R1–R6 tendered by the respondent; and
· the oral evidence of the applicant and of Dr J Fellows-Smith and Dr A Mander.
The Applicant’s Evidence
7.The applicant’s case, in short, is that he suffers from Post Traumatic Stress Disorder (“PTSD”) and that that condition is related to his RAAF service in that it has resulted from an event that happened in the period 1979–1981 when he was posted in Butterworth, Malaysia, namely, his witnessing a motor vehicle accident in which a friend, “Ringo” Thomas, was injured. His oral evidence-in-chief in relation to that event and its effect on him was as follows:
“ … I went to Malaysia from 1979 to 1981. Whilst I was in Malaysia, we were on our way to the RAAF yacht club, which is the home team, if you like, of the Boatie Tigers football club, as part of a six-team competition, comprising of RAAF teams that participate at various RAAF venues throughout Butterworth and Malaysia, representing the RAAF, and we were on our way to a team naming, if you like, before a grand final and, to be perfectly honest, I couldn’t tell you if it was 1980. It was around 1980. I was there from ’79 to ’81 but, as I said, that was some 31 years ago, or 32, whatever. Before the – we were heading down to the boat club, the yacht club, and Ringo was in front of me on his motorbike. I was behind him, about 100 metres behind him. I’m not – Butterworth is a strange set-up, if you like, because the main road to Epo, or whatever goes through the base, if you like, or divides the property on one side is the hospital and the yacht club and the senior sailors – not senior sailors, but the senior airmen – sergeants’ mess, and there’s other facilities on that side and, on the other side, is the actual base and stuff like that. But the main road and civilian thoroughfare to Thailand, if you like, just goes straight through. As we approached the yacht club a truck came out to go around a pushbike. Ringo was in front of me. He laid the bike down, and the last was the bike getting run over and stuff like that. I remember Ringo laying the (sic) ground, and I thought he was dead. He was prostrate. He was – I just froze. I was unable to do anything. I felt helpless because I couldn’t help him, and in – yes, it’s just the – not so much a surreal sort of – it’s hard to explain. It’s just bizarre that that – I just couldn’t do anything, just the freezing up sort of aspect of it. It’s all a bit of a sort of blur after that, and there’s probably good reason for that. He was taken away in the ambulance and my genuine belief was that, apart from the fact that he was dead, was the fact that he was repatriated back to Australia, and I suppose – I don’t have any evidence to support that whatsoever, it’s just a belief, because he was away for so long, and I believe – well, I don’t want to say what other people said, but there is evidence from other people there who were of the same belief because of his absence for some time. He did return, and that was in a leg brace or whatever and stuff like that. But, as I said, it’s – after that incident, and I suppose I am really obliged to the respondent insofar as – well, not bringing it up against because I don’t like talking about it, but enabling me to speak to some of my colleagues who were there at the time because now some of the things that they’ve said – I mean, if you look at the one from George Barren (sic), it’s not really nice when he mentions that he noticed the change in my work ethic and stuff like that about – especially being an armourer fitter and stuff like that, and, you know, and now I can relate to things that happened to me there and what they did, as a result of the effect that it had on me. I gave up football, hit the grog a bit too much and stuff like that, and still to this day I think, if you read Dr Mander’s report, I’m struggling to understand why. I don’t know, and that’s the answer that I’m looking for. I don’t – all I want is help to be able to get over it. I’ve seen far worse things since then. I’ve seen people incinerated. I’ve seen people killed, you know, it hasn’t affected me like it did with Ringo. As I said, Ringo was a mate of mine. We were a team. He played in the centres, I was on the wing. We were a close-knit team and all the rest, but I don’t know if it was because I was young or – I just don’t know. All I want is these experts to make a bloody decision, if you like, and tell me so I can get the help that I do need. Now, in so far – I don’t know how far you want me to go with – I didn’t think I had a problem. And today I still don’t know what it is. Anyway, I believe that’s in contention here today – what is it that’s wrong with me. As I said, I would like the experts to be able to make an opinion – that’s their job. It’s not my job to say what’s wrong with me. I’m not in a position to – I'm not qualified. I can’t do that. …” (Transcript, pp 21–22)
8.The applicant also gave evidence about the quantity of alcohol he consumed in the period following the abovementioned incident involving “Ringo” Thomas. He said that, in the period immediately after that incident, he drank heavily but that thereafter, although he has continued to consume alcohol on a daily basis, the quantity of alcohol he has consumed has “fluctuated”.
9.It was put to the applicant in cross-examination that, in a superannuation Medical Examination Report form completed by him on 30 May 1989 for the purpose of his application to join the Western Australia Police Service, he had answered the question:
“ Do you take alcohol? If so, in what form and daily quantity.”
as follows:
“ Yes. Socially – weekends”. (T18, p 240)
His evidence continued:
“ Was that a true answer?‑‑‑Yes. At that time.
At that time?‑‑‑Yes.
So can we assume from your answer that by May 1989, ready to go into the forces, you were only drinking on weekends?‑‑‑Hey?
Socially and weekends?‑‑‑Socially/weekends, yes.
Yes?‑‑‑That’s my interpretation. I didn’t know that I had an alcohol problem until the doctor told me. I thought it was quite normal. Most of my compatriots and colleagues drank the same.
See, the question was‑ ‑ ‑ ?‑‑‑I thought that was social, what you’re drinking and on weekends.
In what form and daily quantity?‑‑‑What’s that.
That was the question one? Do you take alcohol? Yes. If so in what form and daily quantity?‑‑‑I obviously didn’t read it correctly then, did I, because I didn’t say what form. I didn’t reply properly. But my interpretation of what my alcohol consumption was, was that it was normal. Everyone did it. It was social drinking.
You say social drinking to the extent that you told Dr Mander, 10 to 12 beers a day, plus a half a bottle of scotch, plus a couple of bottles – glasses of red wine. That’s social drinking is it?‑‑‑No. I would have thought that was a bit excessive.” (Transcript, pp 36–37)
10.It was also put to the applicant that, in a Psychological Survey form completed by him on 10 June 2008 for the purpose of his employment with the Western Australia Police Service, he indicated that he drank alcohol at a frequency of “1/2 day – 6 on Saturday” (T18, p 225). His evidence was as follows:
“ In 2008 ‑ ‑ ‑?‑‑‑Mm.
‑ ‑ ‑ you were – you gave a history to a psychologist who interviewed you from the Western Australian Police ‑ ‑ ‑?‑‑‑Mm.
‑ ‑ ‑ that you drank alcohol, one or two a day and six or so on a Saturday; was that the case back in 2008?‑‑‑No, that is probably a bit underrated. Yes. Obviously if you write the right answers in then you know you are not going to get a – it is not going to be looked upon favourably.” (Transcript, p 33)
He confirmed that had signed a declaration at the end of that form, and his evidence continued:
“ Yes. It is a declaration saying that ‑ ‑ ‑?‑‑‑No.
‑ ‑ ‑ the information you provided was true to the best of your knowledge and belief?‑‑‑Yes. It is a psychological interview, if you like. Blind Freddy can fill out one of those, because you know exactly what questions they want you to answer. If you put in the right answers you are not going to get a job. It is – hello, it is not brain – rocket surgery.
Sir, why would you make a declaration that what was on ‑ ‑ ‑?‑‑‑Because I was attempting to get the job.
Would you let me finish the question, please. Thank you. Why would you make a declaration that was not true to the best of your knowledge?‑‑‑As I said, before I was interrupted and you wanted to finish the question, it was because I wanted to get the job. If I had have put in the truth then it would not have been looked upon favourably. It’s not rocket surgery. You are applying for a job. What are you going to do? Tell them what they want to hear or – it’s – hello.
So you were prepared to mislead your employer to obtain a promotion, was it?‑‑‑No.
Or a transfer?‑‑‑No.
What was it? A transfer?‑‑‑I would say it was a different job.
A different job?‑‑‑Yes.
A transfer?‑‑‑Mm.
You were prepared to mislead your employer to gain that benefit?‑‑‑Yes.” (Transcript, p 35)
The Medical Evidence
Dr James Fellows-Smith
11.Dr Fellows-Smith, Psychiatrist, has been treating the applicant since January 2009. He has prepared five reports regarding the applicant which are in evidence. Each of those reports is addressed to the Department of Veterans’ Affairs (“DVA”).
12.Dr Fellows-Smith’s report, dated 2 February 2009, states as follows:
“ I saw the abovenamed on the 19.01.2009, 27.01.2009 accompanied by his wife Trisha and again today for the purpose of this report. He is a forty nine year old prosecuting sergeant at Rockingham whose first marriage ended in 1998 and produced two grown up children. He is married for the second time and has three daughters under the age of eleven. Mr Oldacres-Dear has made a claim for Post Traumatic Stress Disorder however having examined his history of traumas that are several it is debatable whether any would meet the criteria of Category AI of DSMIV 309.81. The most severe of which was witnessing a motorbike accident of his close friend Ringo Thomas a rugby player who broke a leg prior to the RAAF final in 1980 at Butterworth in Malaysia.
Post Traumatic Stress Symptomatology
Mr Oldacres-Dear stated that he felt helplessness and horror when he witnessed the local people trying to rob his friend who was lying helpless beside the road. In support of him having post traumatic stress symptomatology are recurring dreams of this event and avoidance of talking about this event. Against Post Traumatic Stress Disorder however was Mr Oldacres-Dear’s work in the traffic branch of the police where he was exposed to casualties. He stated that the most frightful casualties involved children which is a different trigger than witnessing his friend being injured.
‘Bastardisation’ at Wagga
One consideration of his stressful events however is his junior status when he was aged fifteen in training at Wagga Wagga. It is likely that bastardisation-like events that included physical bashings from the previous year’s intake and demands for Mr Oldacres-Dear to do chores such as washing for the other recruits led to him developing attitudes that may have contributed to difficulties in particular in civilian life. It is also possible that these events led to resilience when faced with difficult situations during his service life.
Disciplinary Proceedings
Mr Oldacres-Dear stated that when aged sixteen the following year he was put on charges when he punched a junior and tried to get the junior to do his washing in the same way as he had been treated.
Hazardous bomb disposal incidents
The traumatic events that Mr Oldacres-Dear described were mainly to do with the hazardous nature of being an armament fitter. He attended three separate plane crashes in Singapore, Malaysia and Williamstown and was required to disarm and dump fuel from the aircraft. He was also involved in defusing unexploded ordinance (sic) in Townsville. During such work he was winched into position from a helicopter leading to the onset of a fear of heights. Previously he stated he was able to fly in helicopters without experiencing anxiety attacks. Against the diagnosis of a specific phobia for flying are flying dreams which are not unpleasant. It is intriguing to speculate as to why these flying dreams end with distortion to his perception of his hands. It is possible that his phobia relates directly to working with explosives and having to concentrate close up using his hands to do so.
Hazardous submarine deployment
Mr Oldacres-Dear switched from RAAF to submarines in 1984 and working as an electronics technician describes several fearful events that included fires, leaks, creeks (sic) and groans while submerged, bottoming out and emergency surfacing.
Enduring personality change
The overriding fear however that he experienced was a fear of failure. Also due to the hazardous nature of his work and the development of high standards Mr Oldacres-Dear stated that he was reluctant to delegate work and tended to focus on details at times losing sight of the big picture. From this I concluded that he had some obsessional traits. In support of this he described a recurring dream where he was required to hit a golf ball through a small hole in a wall which I took to represent the confines of a submarine space. He describes feeling anxious that he is holding up the work of others who are waiting for him to perform his tasks.
His wife over the past twelve years of their relationship confirmed what she described as being abnormal social withdrawal and moodiness. She reported avoidance of talking about issues and arousal changes including irritability and sleep disturbance.
Lifestyle impairments
Mr Oldacres-Dear describes a generalisation of his service related anxieties to encompass aspects of his civilian life that include separation from his first wife in 1998 in the context of heavy drinking in excess of 63 units of alcohol per week and heavy smoking. He also describes intolerance for others who have less high standards than he for example whilst preparing briefs for court he describes losing control of his temper with his subordinates over the presentation of evidence. He also describes frustration at not being able to meet the deadlines set by the court.
He stated that his experiences in Malaysia and as a traffic policeman have led to marked road rage. He gave several examples such as being cut off, people talking on their mobile phones and not indicating leading to outbursts of anger on the road.
He described at home being intolerant of little things that his wife and children may do that lead to angry outbursts such as them being noisy and distracting when he is trying to concentrate. Mr Oldacres-Dear describes a decline in his cognitive abilities with increasing effort needed to recall information and maintain his focus and concentration on events. He stated that this has led to an erosion to his self esteem and is made worse by painful orthopaedic conditions from his cervical spine and lumbar spine. I note that he has bilateral loss of power and paresthesia involving the hypersthenia-eminence and little fingers in both hands.
Background information
Mr Oldacres-Dear was born in South Perth with normal birth and development. He describes his childhood as basically happy. He mixed well at school and participated in sports. There is no family history or past history of psychiatric disorder.
He continued to play rugby during his service years. His past medical history includes acne, tinnitus and sensory neural hearing loss.
Mental state examination
On mental state examination Mr Oldacres-Dear appropriate (sic) at interview, casually dressed and answered questions to the point. He tends to give circumstantial answers that lack detail however when pressed was able to give more complete answers to questions. From this I concluded he was avoidant of talking about his traumatic experiences however due to a restriction of his affect based on his prosodic speech I was unable to detect any marked distress. His affect was euthymic. There was no evidence of any psychotic phenomena. Although he describes some cognitive difficulties on formal testing he was grossly intact. His insight into his condition was good. On haematological investigation his LFTs were raised, GGT 70 (˂50) ALT 48 (˂48).
In answer to your specific questions:
1. Mr Oldacres-Dear’s diagnosis according to DSMIV TR
Axis I Alcohol Abuse 305.00
Axis II Personality Disorder (NOS)
Obsessive Compulsive Traits, enduring personality change related to traumatic events
Axis III Lumbar and possibly cervical spondylosis
Axis IV Stressful police work
Axis VGAF = 60. There are moderate symptoms with flat affect and circumstantial speech. He describes episodes of road rage and social withdrawal.
With regard to the diagnosis of enduring personality change following exposure to catastrophic stress as described in ICD 10 F62.0 Mr Oldacres-Dear has been exposed to extreme stress that has had a profound effect on his personality. He has developed a distrustful attitude towards collaborating with others that is at times hostile and has led to social withdrawal, feelings of emptiness and chronic feelings of being on edge as if constantly threatened. He is also estranged from his first wife. There is the presence of post traumatic stress symptomatology with the absence of a severe psychosocial stressor.
Category A:The (sic) is evidence from the history and from collateral history from his wife of a persistent change in his pattern of perceiving, relating to and thinking about the environment and himself following exposure to hazardous employment particularly performing bomb disposal work. He described prolonged exposure to life threatening situations.
Category B: He presents with enduring feelings of being on edge and of being threatened without an external cause as evidenced by increased vigilance and irritability whereas previously he described himself as having no such traits. This chronic state of inattention (sic) and feeling threatened is associated with his tendency to excessive drinking.
There are permanent feelings of being changed or being different from others (estrangement) associated with an experience of emotional numbness and a breakthrough of emotional outpouring on exposure to traumatic events.
Category C:The change in Mr Oldacres-Dear’s personality caused significant interference with personal functioning, distress and an adverse impact on his social environment.
Category D:There is no past history of pre-existing adult personality disorder or trait accentuation.
Category E: The personality change has been present for at least two years and cannot be explained by another psychiatric condition.
Category F:The symptoms of his personality change also include post traumatic stress symptomatology related to traumatic events occurring during his formative years.
2.(a) The most likely cause of the condition is prolonged life threatening stressful events.
(b)The factors in his life which have contributed to the cause are described above.
(c)The time of onset of his condition is 1982 onwards coinciding with his hazardous work in bomb disposals.
(d)His condition is moderately severe.
(e)His condition is chronic and enduring and likely to be resistant to treatment as it is based on traumatic memories.
(f)Mr Oldacres-Dear would benefit from outpatient specialist support and psychiatric medication for his condition.
3.(a) The effect of Mr Oldacres-Dear’s condition on occupation, domestic, social and leisure functioning is described above.
(b)Mr Oldacres-Dear is currently working forty hours pre (sic) week in his usual employment as a police sergeant.
…”(T10)
13.Dr Fellows-Smith’s report, dated 28 July 2009, states as follows:
“ Further to my report dated 02.02.2009 in which I diagnosed Alcohol Abuse, Personality Disorder NOS, Obsessional Traits, enduring personality change related to traumatic events in Mr Oldacres-Dear’s military service at Butterworth in 1980. In your decision dated 05.03.2009 you stated that Alcohol Abuse and Personality Disorder were not related to service. In your reasons for your decision (page 4 last paragraph) you stated that the examining medical officer on the 13.03.1989 did not report that Mr Oldacres-Dear was suffering from any psychiatric condition. You stated that it would be expected that if Mr Oldacres-Dear was suffering from any psychiatric condition at this time it would have been noted.
With regard to the diagnosis of Personality Disorder as described in DSMIV TR page 686 third paragraph line 7 it states:
‘Although a single interview with the person is sometimes sufficient for making the diagnosis it is often necessary to conduct more than one interview and to space these over time. Assessment can also be complicated by the fact that the characteristics that define a Personality Disorder may not be considered problematic by an individual (ie: the traits are often egosyntonic). To help overcome this difficulty supplementary information from other informants may be helpful.’
In his decision the Delegate (05.03.2009 page 5 paragraph 1 line 3) draws the conclusion that as Personality Disorder was not diagnosed by the examining medical officer on the 13.03.1989 the clinical onset of the Personality Disorder was after his discharge from the navy.
In DSMIV TR general diagnostic criteria for a Personality Disorder in the absence of a change precipitated by a traumatic event (page 689) for Category A it states that the enduring pattern of inner experience and behaviour that deviates markedly from the expectations of the individual’s culture must have an onset (Category D) that can be traced back at least to adolescents (sic) or early childhood.
OPINION
I would advocate a review of the decision by the Delegate (05.03.2009) as it is not usual practice of a general medical officer to reach an Axis II diagnosis when conducting a routine physical examination in the absence of collateral history or follow up examination. On the evidence of a single negative finding therefore the conclusion cannot be drawn that the clinical onset of the Personality Disorder was after his discharge from the navy in 1989.” (T19, pp 256–257)
14.Dr Fellows-Smith’s report, dated 30 November 2009, states as follows:
“ Enduring personality change onset 26.09.1987
Further to my report dated 02.02.2009 in which I diagnosed enduring personality change related to personality (sic) events (page 2 paragraph 4 line 4) attributable to hazardous work on submarines. In your decision dated 05.03.2009 the Delegate concluded that personality disorder was not service related. Furthermore as alcohol abuse was not part of service related psychiatric condition his claim for alcohol abuse was also rejected.
Decision to reject as onset not within twelve months
In your reasons for your decision (page 5 paragraph 1 line 1) it states that ‘it would be expected that if Mr Oldacres-Dear was suffering from any psychiatric condition at this time it would have been noted. On this basis the conclusion I draw is the clinical onset of the personality disorder was after his discharge from the navy. In this instance the clinical onset of the personality disorder was more than twelve months after he was last billeted on a submarine and after his discharge from the navy resulting in Mr Oldacres-Dear not meeting the factor for a 1A or 1B stressor’. In this case (page 4 final paragraph line 2) ‘service records from Mr Oldacres-Dear indicate that the date he was billeted on a submarine was the 26.09.1987.’
Service medical record onset depression 10.08.1988
According to Mr Oldacres-Dear’s service medical records there is an entry dated the 10.08.1988 within twelve months of his service on submarines in which the medical officer Dr Maron diagnosed depression on the basis of there being tearful episodes related to personal problems and stressors impairing his capacity for employment due to cognitive difficulties. In his own words ‘he has bad days.’
ICD 300
According to the International Classification of Diseases diagnosis ICD300 is reserved for neurotic reaction to external psychosocial stressors. The reaction includes dysthymia or depressive neurosis, 300.40; panic disorder with or without agoraphobia 300.21 and 300.01; agoraphobia 300.22; social phobia 300.23; simple phobia 300.29; obsessive compulsive neurosis 300.30 and anxiety disorder NOS 300.00.
Personality Disorder NOS
In my letter dated 02.02.2009 I diagnosed personality disorder NOS on the basis of there being enduring personality change related to traumatic events and obsessive compulsive traits. In ICD 9 personality disorder NOS is coded 301.90
Aetiology of neurotic reaction
According to the comprehensive Textbook of Psychiatry 5th Edition (1989) it states that in so far as neurotic depression also known as Dysthymia has any meaning it should be that the disturbance is a reaction of the personality to external stresses that goes beyond the bounds of normal reaction. This implies that the symptoms are excessive and that there is an impaired capacity to carry on a normal life. The patient may show disturbed or distorted judgement (page 895 paragraph 3). From this I concluded that my diagnosis of enduring personality change related to traumatic events was consistent with the diagnosis of Dr Maron in 1988 based on the then understanding of the aetiology of anxiety and phobic neurosis (page 993 paragraph 4) in which it states a major life event or environmental stressor has been associated with the onset of obsessive compulsive neurosis.
OPINION
I would advocate a review of the decision to include the possibility of secondary alcohol abuse based on the discovery of further supportive evidence of neurotic disorder in his service medical records occurring within twelve months of hazardous service.” (T18, pp 183–184)
15.Dr Fellows-Smith’s report, dated 14 May 2010, states as follows:
“ Further to my report dated 02.02.2009 in which I diagnosed Personality Disorder NOS, I stated (paragraph 1 line 6) that Mr Oldacres-Dear gave a history of traumas that were several and it was debatable whether any would meet the criteria of Category A1 for DSMIV TR 309.81. I stated that the most severe of which was witnessing a motor bike accident of his close friend Ringo Thomas a rugby player who broke a leg prior to the RAAF final in 1980 at Buttworth (sic) in Malaysia. In the VRB decision to uphold the Department’s rejection of Mr Oldacres-Dear’s claim for Post Traumatic Stress Disorder in the reasons for decision page 7 item 28 the Board is reasonably satisfied that the only event described by the applicant as having caused him stress that is consistent with these definitions of a Category 1B stressor is being an eyewitness to a person being critically injured.
With regard to the diagnosis of Post Traumatic Stress Disorder as described in DSMIV 309.81:
Category A: Mr Oldacres-Dear was exposed to a traumatic event that involved
1.Witnessing an event that involved actual serious injury to his friend Ringo Thomas in 1980 during his operational service at Butterworth in Malaysia.
2.Mr Oldacres-Dear involved (sic) intense feelings of helplessness and horror as described in my earlier report.
Category B:He describes persistently re-experiencing the event in the form of recurrent and intrusive distressing recollections of the event, recurrent distressing dreams of the event and intense psychological and physiological distress on exposure to cues that symbolise or resemble aspects of the trauma.
In addition to recurring dreams of the event and recurring flashbacks Mr Oldacres-Dear stated that during his work for the police he was particularly distressed when asked to attend motorcycle accidents. He stated that this brought on an immediate anxiety response.
Category C:There is evidence of persistent avoidance of situations that arouse recollections of trauma and the trauma (sic) and numbing of general responsiveness as indicated by efforts to avoid thoughts, feelings and conversations associated with the trauma, efforts to avoid activities, places or people that arouse recollections of the trauma, markedly diminished interest and participation in significant activities, feelings of detachment or estrangement from others and a restricted range of affect.
Mr Oldacres-Dear has not volunteered details regarding this trauma and has avoided conversations with others regarding his reaction to the trauma. During the course of the medicolegal process however he has been asked to give evidence on this issue and I understand that he broke down when at the VRB he was reminded of this event. He stated that he noticed a change in his personality following this accident in 1980 and that he ceased playing competitive sport and in his own words ‘went into his shell’. He stated that he stopped playing football in Malaysia and avoided socialising with his mates becoming detached and withdrawn. He moved out of shared accommodation back to the base and started drinking heavily on his own. He stated that rather than talk about his problems he hid them in a bottle and commenced heavy drinking.
Category D:Persistent symptoms of increased arousal are present as indicated by difficulty falling or staying asleep, irritability and outbursts of anger, difficulty concentrating, hyper-vigilance and an exaggerated startle response.
Mr Oldacres-Dear describes an exacerbation of arousal symptoms coinciding with re-experiencing of his trauma during the medicolegal process. He stated that he is becoming more irritable at work and ‘is going back into his shell’. He averages 5-6 hours sleep per night and I note his level of alcohol consumption varies depending on his level of stress. He stated that most days he is able to abstain however when he does drink he consumes up to twenty units of alcohol in one session. He gave examples where he was off his game cognitively and over reacting. He stated that on the golf course someone had approached him from behind and he spun around in a startled response.
OPINION
Further to the decision of the Board to accept the incident in 1980 in Butterworth as a Category 1B stressor I am now able to revise my diagnosis of Mr Oldacres-Dear’s service related condition.
With regard to the diagnosis according to DSMIV TR:
Axis l Post Traumatic Stress Disorder 309.81
Alcohol abuse 305.00
Axis II Obsessional compulsive traits
Axis III Lumbar and cervical spondylosis, interphalangeal arthritis
Axis IV Stressful police work
Axis VGAF = 60. There are moderate symptoms with restricted affect and mild cognitive change. He describes interpersonal difficulties and social withdrawal.
…”(T20; Exhibit A1)
16.Dr Fellows-Smith’s report, dated 26 February 2011, states as follows:
“ Trauma Butterworth 1980
Further to my report dated 02.02.2009 in which I identified post traumatic stress symptomatology following witnessing the serious injuring of Ringo Thomas at Butterworth 1980. In the report I noted that after he was injured the local people tried to rob him. I diagnosed enduring personality change and it is significant to note that Mr Oldacres-Dear took up a career as a policeman after he left the military in 1989.
Survivor guilt
Mr Oldacres-Dear stated that he had some survivor guilt issues as at the time he was frozen in fear. It is likely that he had an acute stress reaction based on his description of a change in his perception of the passage of time and experience of his reality which appeared to be unfamiliar as if in a movie. He was unable to go to the aid of his friend.
Personality change
In my initial report I diagnosed enduring personality change based on Mr Oldacres-Dear’s account of becoming intolerant with persons who were breaking the law and by a need to help others to assuage his guilt.
Depressive reaction 1988
In my letter dated 28.07.2009 I discussed issues with this diagnosis based on an absence in Mr Oldacres-Dear of confirmation of the diagnosis. In my report dated 30.11.2009 however I referred to the onset of depression on the 10.08.1988 which is documented in Mr Oldacres-Dear’s service medical records.
Opinion of consultant psychiatrist Anthony Mander 04.11.2010
Dr Mander (page 4 supplementary information) stated that I had provided three reports. He therefore was not privy to my most recent letter dated 14.05.2010 in which I revised my diagnosis to Post Traumatic Stress Disorder following the Department’s decision to accept the incident at Butterworth in 1980 as a Category IB stressor. This is consistent with the observation by his brother-in-law Ian (sic) Leach (12.03.2009) that there had been a marked change in Mr Oldacres-Dear’s personality following his return from Malaysia to Perth in 1981. Mr Leach stated that the whole family was really struggling to cope with the changes in Phillip (sic). I note that Mr Oldacres-Dear’s wife left him for the first time in 1988 leading to the depressive reaction diagnosed by the medical officer at that time. Dr Mander (page 2 final paragraph line 4) stated that he could not find this entry in Mr Oldacres-Dear’s service medical records and therefore it is likely that in his opinion (page 5 line 1) the difficulty he had in assessing the claimant due to what appeared to be a contradiction between the history that he was given by Mr Oldacres-Dear and that recorded by myself and other contemporaneous documents was due to omissions of important documents that he was not privy to at the time of the assessment. Specifically my report dated 14.05.2010 in which I upgraded a diagnosis of post traumatic stress symptomatology made in the initial report 02.02.2009 to Post Traumatic Stress Disorder and the medical report in his service medical records dated the 10.08.1988 by Dr Maron who diagnosed depressive reaction that was directly related to interpersonal difficulties that Mr Oldacres-Dear developed after his traumatisation.
Alcohol abuse
Dr Mander attributes these difficulties to alcohol abuse (page 7 penultimate line) however no reference is made to alcohol abuse at the time of his diagnosis of depression by Dr Maron on the 10.08.1988.
Maturity onset diabetes 2010
I note that Mr Oldacres-Dear continues to drink heavily consuming four stubbies and two scotches per night equivalent to forty eight units week (sic). He stated that he had reduced his alcohol consumption since the diagnosis of maturity onset diabetes in December 2010 by his general practitioner Dr Rahman of Port Kennedy. He has switched to low carbohydrate beer. Earlier in 2010 he reduced his alcohol consumption when he was diagnosed with hypertension. In addition to his regular amount of alcohol equivalent to forty eight six (sic) units per week Mr Oldacres-Dear was drinking heavily on the weekend up to twenty two drinks per sessions (sic) making his then alcohol consumption seventy units per week.
OPINION
There appears to be a difference of opinion regarding the diagnosis with Dr Mander stating that Mr Oldacres-Dear has no psychiatric disorder other than alcohol related problems and therefore there is no causal link between his alcohol problems and his service related traumatisation. There is however evidence of personality change and a significant psychosocial stressor in 1980 that lead to major difficulties in particular separation from his first wife in 1998 and a depressive reaction diagnosed by the medical officer in 1988 that is independent of his alcohol abuse. On this basis I diagnosed Post Traumatic Stress Disorder and stated that his alcohol related problems were secondary to his Post Traumatic Stress Disorder.
There are inconsistencies in Mr Oldacres-Dear’s self report of alcohol use in particular related to enlistment to the navy in 1985 in which he stated he was drinking three to four middies of beer per week rather than three to four middies of beer per day. He stated this was so that he did not jeopardise his chances of enlistment and at that stage did not recognise that he had an alcohol problem. Dr Mander however elicited the time of onset of Mr Oldacres-Dear’s increased alcohol consumption as being since his traumatisation in Malaysia as reported in the transcript of interview 04/11/2010 page 25 line 14. The time of onset of his alcohol abuse therefore was within twelve months of his traumatisation in Malaysia which is consistent with the opinion that his alcohol dependence (sic) syndrome is directly related to the development of Post Traumatic Stress Disorder.” (Exhibit A2)
[The Tribunal notes that Dr Fellows-Smith’s report of 14 May 2010 is, in fact, referred to in Dr Mander’s report of 4 November 2010 – see paragraph 20 below.]
17.In his oral evidence-in-chief Dr Fellows-Smith elaborated on his reasons for revising his initial diagnosis of “enduring personality change related to traumatic events” and subsequently arriving at a diagnosis of PTSD, as set out in his abovementioned reports of 14 May 2010 and 26 February 2011. He also gave evidence regarding the applicant’s history of alcohol consumption on the basis of which he made a diagnosis of Alcohol Abuse. It is unnecessary to set out that evidence in these reasons.
18.Dr Fellows-Smith confirmed that it is his opinion that the psychiatric disorders suffered by the applicant are PTSD and Alcohol Abuse, but not Personality Disorder. He opined that the time of clinical onset of the applicant’s PTSD and Alcohol Abuse was around or soon after the trauma which the applicant said that he experienced in Malaysia in “about 1981”.
Dr Anthony Mander
19.Dr Mander, Psychiatrist, confirmed that, at the request of the DVA, he examined the applicant and prepared a report dated 4 November 2010.
20.Dr Mander’s report, dated 4 November 2010, states as follows:
“ Thank you for your letter of 12 October 2010 asking for a report on this veteran. I confirm that I have received and read the documents you forwarded. I appreciated the phone call warning me of some of the issues relating to this interview. As a result of that I spent an extensive period talking to the veteran about the assessment process and my independence from the Department. I only proceeded once I was satisfied that the veteran accepted that I was impartial.
CIRCUMSTANCES LEADING TO CLAIM
He notes the onset of symptoms following the injury of his friend Ringo in Malaysia in 1980. They had joined up together and played rugby in the same team. On the day in question he offered to drive Ringo to the yacht club but the latter insisted on taking his bike. He believes he was about 100 metres behind Ringo when he saw a truck pull out and run his friend over. He said ‘I thought he was dead’, ‘it is the first time I have seen anyone hurt or injured’, ‘he was mangled, not moving’. He remembers thinking ‘what can I fucking do’ and ‘why didn’t I make him come with me?’ He believes that this event was profound because he was a close friend and did not know what to do to help him.
Ringo was later Medivaced to Australia but did return to Malaysia with what sounds like a hinged brace on his leg.
The veteran provided me with a letter written by his brother-in-law, E M Leach, to Dr Fellows-Smith, dated 12 March 2009. He says ‘I first met Philip in 1972 when I was dating his older sister. We got on really well and in no time we realised we had similar interests. We spent most weekends fishing and/or crabbing and walked many a mile in the Swan River dragging a prawn net’. He goes on to say that after the veteran’s return from Malaysia to Perth in 1981 ‘the family as a whole really struggled coping with the changes in Philip. The young man who went to Malaysia certainly was not the man who returned. Philip was so very quiet, sort of withdrawn or distant if you like. I was shellshocked. I thought it would be great with Phil home again to get back to our fishing trips etc but this wasn’t to be’. Later he states ‘all he would do is sit there most of the time drinking lots of beer and smoking a lot too. I tried to talk to him to see what was wrong and if I could help, all I got was my head bitten off and told to butt out’. He finally states ‘another one of the weird changes in him, he came back from there really sort of suspicious of people in general, and yet he never used to be’.
PSYCHOLOGICAL RESPONSE
Dysfunction showed itself in his personal life more quickly than at work. This might in part be because his work has always been for strictly regulated, hierarchical organisations, originally the RAAF, then the RAN and finally WA Police.
He said that his first wife walked out on him in 1998 after fifteen years marriage (sic). He said that he was travelling to Esperance and she dropped him at the bus station. A neighbour rang him in Esperance to tell him that there was a removal truck on his front lawn. He has had little contact with her since.
He has been irritability (sic), angry and had significant alcohol problems over the years. This has been obvious in his dealings with the department and partly the reason that I was concerned about carrying out this assessment. It has led in more recent times to his second wife insisting that he obtains help, which is now taking place. It has more obviously affected him occupationally since he was moved from his job in Karratha approximately six years ago.
In accurately dating his difficulties, one of the problems for the veteran is that he has only recently accepted that he has a problem. Improvement, following treatment from Dr Fellows-Smith, now allows him to look back with a greater acceptance of the difficulties that he has caused for others. He best summed this up by talking about himself as being good at his job but a ‘hard bastard’, ‘belligerent and hard’, ‘I didn’t roll with the punches’. This has led professionally to arguments with lawyers and magistrates. At the time he saw this as a positive aspect of his character and only more recently has listened to at least one of the individuals that he worked with who has told him that he was the last person that anyone would seek advice from because of his attitude.
His alcohol intake has been extensive. He said that this increased upon his return from Malaysia. Of course it must have been under reasonable control while he was on submarines in the RAN. Nevertheless he describes years where he would drink at the level of a dozen stubbies, half a bottle of scotch and several glasses of wine per night. He said that he did this to help himself become numb ‘I needed to be blotto to go to sleep’.
Dr Fellows-Smith, in his report of 30 November 2009, refers to a medical record entry in 1988 where depression was diagnosed ‘on the basis of there being tearful episodes related to personal problems and stresses impairing his capacity for employment due to cognitive difficulties’. I couldn’t find this entry. He admits to being ‘over emotional’, for instance being tearful when watching ‘Home and Away’. His sleep has been poor, he has been irritable and found concentration difficult although this has not affected him at work until recently. He describes ‘road rage’ behaviour. He was most distressed in the interview when he recounted a recent incident when he had his children in the car and he raced after another individual.
He told me that at times his thoughts race ‘a million miles an hour’ and ‘95 to 99 per cent is thinking about Ringo’. Motorbikes remind him of Ringo’s accident ‘you shit yourself’ and he described tightness in the chest, feeling physically tense with an increase in his heart rate and feeling breathless. He has been less sociable and although he has a good relationship with his children, his daughter says he is ‘a prick’ and ‘a bastard’.
His mental state has changed since he began psychological and pharmacological treatment approximately twelve months ago. He saw Gerard Erasmus, a psychologist at Police Health and Welfare but this was ‘more to do with excessive alcohol’. Since beginning treatment he said ‘I used to be prone to outbursts, these are now more controlled. I don’t want to expose the Missus and kids to this’, ‘generally I can stop and think before I react’, ‘I can handle it’. He said that before medication he was not aware of his problems other than he was distancing his family from him but now ‘life’s worth living’, and he describes life as ‘enjoyable’. His drinking has moderated to socially acceptable levels. He is on the antidepressant Lexapro.
PAST PERSONAL HISTORY
He was born in South Perth and has four brothers and two sisters. He was brought up variously in Melbourne and Hong Kong before returning to Western Australia. He joined the Air Force at fifteen. He did not progress past LAC whilst in the Air Force and he remained an Able Seaman in the Navy. While on submarines he was an electronic technician working three on, three off and he admitted that his psychiatric problems had to have been under control during that time. When ashore and seeing bikes in Thailand, he had a return of his memories of Ringo.
He has been in the WA Police Force for 22 years. He spent four and a half years in Esperance and described it as not too bad. ‘It is different in the country’. He admits that he has attended crashes involving children, seriously injured individuals, burns victims and the like which are far worse than what he saw with regards to Ringo. He believes that this does not affect him so much because ‘I didn’t know them’, he talked about fault (Ringo was not at fault) and that as a police officer he was ‘able to do things’ and ‘so this makes it easier to deal with’. He requested he be moved from traffic after approximately six years.
He has spent the last thirteen years until recently as a court prosecutor. His history regarding this was at times contradictory. He variously indicated that he was impaired as a result of his psychological problems, but equally that he was so good he was congratulated by magistrates, including the chief magistrate, on the quality of work that he did. He said that he was moved from Karratha five to six years ago after a lawyer called him a buffoon in court and the claimant suggested that they go outside ‘and settle it like gentlemen’. Similarly he was removed from Kalgoorlie three or four years ago after an argument with a lawyer and he has now been moved to general duties where he has no public contact and does office work associated with the courts. Although he believes that he was ‘the expert, the king pin, the guru’ he also thinks in recent times he has ‘let people down’.
He has two children from his first marriage now in their mid twenties. In their early teens they lived with him for a while and he has an ongoing good relationship with his daughter although his son is not accepting of his new wife. In his current relationship, which began within a few months of him separating from his first wife, he has three children, all girls. One is nine and the other two are eleven year old twins. He said that there was ‘not much of a gap between relationships’. He has been concerned about the quality of his relationship within the family.
The level of his drinking became more apparent to him when his GP identified high blood pressure. His GP provided certificates for the occasional day off when he was ‘feeling like shit’.
MENTAL STATE EXAMINATION
Having been concerned that he might have been suspicious, paranoid and threatening, I found that he was willing to talk about his problems and keen to describe them in detail. His irritable outbursts and threats (which were not evident in the interview) are a feature that he admitted to but in the interview he came across as a rather likeable individual struggling to make sense of various events in his life and finding it difficult to understand why Ringo’s accident should have led to such significant sequelae. He was talkative, maintained eye contact and established rapport. He did not appear depressed or anxious and was orientated in time, place and person.
SUPPLEMENTARY INFORMATION
Dr James Fellows-Smith has provided 3 reports. I find the concepts being used to be confusing, most particularly his use of a DSM IV term (personality disorder NOS) and an ICD term (enduring personality change) which are quite separate, the latter not being recognised by the former and therefore not present in the DVA statement of principles. He also provides a diagnosis of alcohol abuse with secondary personality features (2 February 2009), requests a review of the alcohol abuse issues (30 November 2009) and then changes the diagnosis to post traumatic stress disorder on the basis that the review board is satisfied that the motor bike crash is a relevant stressor (14 May 2010).
There are a number of psychological reports on the veteran. The first, in June 1977, is associated with his application to be discharged from the RAAF. It is noted that he was dissatisfied with his career and it states ‘his reaction to the dissatisfaction may well provide a sufficient basis for his discharge as being now incompatible with service life’. They considered that continued employment was risky and ‘he is no longer concerned to apply himself responsibly to his work despite the possibility of fatality due to his poor responsibility of attitude in his work’.
More recently he was assessed by the WA Police for the role of undercover controller and he was found to be psychologically acceptable (e-mail of Mike Kosieradski, 11 January 2010).
In June 2008 Karen Kilda (sic) noted him to be ‘secure, hardy and generally relaxed even under stressful conditions. He is extroverted, outgoing, active and high spirited, prefers to be around people most of the time. He is practical but willing to consider new ways of doing things, seeking a balance between the old and the new. He may be hard headed, sceptical, proud and competitive. He tends to express his anger directly. He is conscientious and well organised, has high standards and always strives to achieve his goals’. She concludes ‘no concerns were identified in his abnormal psychological functioning, past trauma assessments or general mental health’.
In the repatriation commission’s reasons for decision of 5 March 2009 they note that his personality disorder, said to have been caused by ‘Malaysian service’, was not noted when a final medical examination was undertaken in March 1989; ‘on this basis the conclusion I draw is the clinical onset of the personality disorder was after his discharge from the Navy’. Alcohol abuse was denied on the basis that he did not meet the criteria in the statement of principles.
In the Veteran’s Review Board decision and reasons of 22 April 2010 no connection with service was found for his personality disorder or alcohol abuse.
OPINION
The difficulty in assessing the claimant is the contradiction between the history given to me, that recorded by Dr Fellows-Smith and many other contemporaneous documents that are available. Dr Fellows-Smith was of the opinion that the onset of the veteran’s problems was 1988 when depression was diagnosed by a Dr Marron (sic). However the veteran told me that his difficulties were present by his return from Malaysia in 1981 and provided the letter from his brother-in-law to support the change in him from that time. He also focused exclusively on the injury to his friend whereas he described broader problems to Dr Fellows-Smith including bomb disposal incidents, what is termed ‘hazardous submarine deployment’ and ‘bastardisation’.
Psychological summaries, both at the time of his transfer to the Navy and whilst a serving Police Officer, do not support the presence of a significant psychiatric condition. I found the report of Karen Kilda (sic) especially informative and thorough. The claimant provided similar descriptions to her of his work as a court prosecutor but with a distinctly more constructive bias to it than when discussing it with me. With her he said that he avoided ambiguity and ‘I speak my mind’ whereas he conveyed this to me as the cause of significant occupational difficulty in Karratha and Kalgoorlie.
I find the three assessments from Dr Fellows-Smith to be confusing. He mixes a DSM IV category (personality disorder ONS) with an ICD concept of ‘enduring personality change’. Different diagnostic systems cannot be mixed in this way. The latter concept (which I have used on occasions) is not the same as a personality disorder. It can occasionally provide a useful understanding of an individual’s personality change where someone has been under intense pressure over a long period of time. That has not been the case with the veteran despite Dr Fellows-Smith’s statement suggesting otherwise. I do not agree with the diagnosis of an enduring personality change but even if I was to do so, then the application of the department’s statement of principles to this diagnosis would be an error since it is not a DSM IV concept and does not equate to a classic personality disorder.
Dr Fellows-Smith’s original diagnosis was one of alcohol abuse and I agree with this. This could explain the veteran’s subsequent presentation. It might combine with the veteran’s personality style of telling things straight to lead to him being an irritable and irascible individual. These are personality traits that he has been previously positive about.
The switch of diagnosis by Dr Fellows-Smith to post traumatic stress disorder is a further complication. The veteran contends that his emotional problems were consequent to this event and that his alcohol problems developed later as a coping mechanism. Taken at face value this is a possibility. The veteran identifies a significant improvement in his mental state since he started treatment with Lexapro although this also coincides with him moderating his alcohol intake such that he now drinks only socially. The real difficulty diagnostically is that the objective psychological assessments do not support the veteran’s account.
SUMMARY
If the veteran’s description is taken at face value, then he had a significant reaction to his friend’s injury, has suffered lifelong anxiety as a result with bad dreams and avoidance sufficient for him to secondarily develop an alcohol abuse problem as part of his coping strategy. In support of this is the letter from his brother-in-law noting the change after he returned from Malaysia. Some support in his social life is provided by him parting from his first wife in unusual circumstances. He has come to the conclusion that he has had long standing psychiatric problems only recently as an explanation for these events as for much of his life he did not consider there was anything wrong with him.
The above scenario is contradicted by his operational performance over the years. He moved from the Navy to the RAAF (sic) and presumably no concerns were expressed either formally or informally about his mental state. He subsequently moved to the WA Police and I would make the same observations. He has had a highly effective career and that of a police prosecutor is not easy. Although he presents problems occurring in the last five or six years, the formal psychological assessment by the WA Police found no psychological problems and indeed are positive about his performance; this despite his admitted heavy alcohol intake. It follows that he either did not have PTSD or that his symptoms were so minor that there were no occupational consequences.
Ceasing of alcohol and institution of an antidepressant has resulted in significantly more functionality for the claimant as assessed by himself. It is possible that the antidepressant treated a pre-existing post traumatic stress disorder but more likely that moderation of his alcohol intake was the significant factor.
In the face of the significant contradictions I will leave it to the VRB (sic) to decide which version of the veteran’s history is most plausible. If it is agreed that his symptoms began after the incident in Malaysia and that his drinking was used to sublimate the symptoms so that he could function, at least at work, then one could support the contention of a post traumatic stress disorder which, at its worst, was mild and has now been treated. If greater weight is placed by the VRB (sic) on the objective evidence of functionality, both from his career in the RAAF and subsequently WA Police, with a series of psychological reports suggesting no problems, then the more likely diagnosis is that he has had an ongoing alcohol abuse problem (already decided not to be service related) and that has also been successfully treated.” (Exhibit R3)
21.Dr Mander confirmed that it is his opinion that the applicant has not suffered PTSD or Personality Disorder. He also opined that the applicant has suffered Alcohol Abuse and that the appropriate diagnosis of his present condition is Alcohol Abuse (in remission). As regards the time of clinical onset of Alcohol Abuse, Dr Mander gave evidence as follows:
“ We could say by 2008, which is when he presented to Dr Fellows‑Smith, so certainly by then. If his statement is taken as being accurate, that he was drinking at the level he says after he came back from Malaysia, then you would have to date it to then. But the objective evidence comes from his presenting to Dr Fellows‑Smith. And then I would have to say that there is nothing objective within any of his documents – police or service – to substantiate an alcohol abuse problem before 2008.
All right, but the applicant’s evidence being that he commenced drinking to excess ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ shortly after the Ringo ‑ ‑ ‑?‑‑‑Yes. And if you accept that, then that would be the date.” (Transcript, p 127)
Additional medical material in the T Documents
22.The T Documents include the applicant’s medical records in respect of his service in the RAAF, the RAN, and the Western Australia Police Service.
RAAF medical records
23.The Tribunal notes that the applicant’s RAAF medical records in respect of the period from September 1979 (when he was posted in Butterworth) to January 1984 (when he was discharged) refer to various apparently minor physical ailments but do not refer to any mental (psychological or psychiatric) ailments or emotional complaints (see T3, pp 17–21).
RAN medical records
24.In a Medical History Questionnaire form completed by the applicant on 29 January 1985 for the purpose of entry into the RAN, he indicated that he drank alcohol, namely, “3–4 middies once/week” (T3, pp 12–13).
25.In the applicant’s RAN Entry/Medical Examination Record, dated 29 January 1985, it is indicated that his “psychiatric assessment” was “normal”, he is described as “Fit healthy young man Intelligent”, and his recommended medical class/category is “Class I” (T3, p 52).
26.In a Department of Defence “SCR 1A REPORT CARD”, dated 15 May 1986, which was completed by a RAN Psychologist, A M Tych, for the purpose of assessing the applicant’s suitability for submarine duty, the applicant’s “personal adjustment” is described as follows:
“ Eventually settled into RAAF & had no problems. Seems easygoing, sociable, has matured & interested in furthering his career. Does not have ‘phobic’ background. …”
The report concludes with the following comment:
“ Presents & (sic) well motivated, good social adjustment, responsible & no domestic probs Rec Accept.” (T18, p 191)
27.In Medical Examination Records dated 7 January 1987, 4 May 1987, and 15 August 1988, it is indicated that the applicant’s “psychiatric assessment” was “normal” (T3, pp 58, 61, 71). However, in a Department of Defence “Outpatient Health Record”, dated 10 August 1988, signed by a RAN Medical Officer, C Maron, the applicant’s presentation is described as follows:
“ tearful & personal problems and stresses. Unable to work or concentrate. … ‘Has bad days’. This is one. No suicidal or disruptive tendencies … ”
and the diagnosis is described as “? Depression” (T3, p 86).
28.A report of a RAN Senior Psychologist, V M Stevens, dated 25 January 1989, states as follows:
“ 1. ABETC OLDACRES-DEAR was assessed as to his suitability for retention following an application for discharge at own request. He had previous RAAF service before joining the Royal Australian Navy.
2. Following the recent compassionate posting to the WA Area, AB OLDACRES-DEAR now realises that he cannot cope with the demands of raising two young children whilst having a clear obligation to sea time and his Naval role. In role conflict, his children are his paramount concern.
3. AB OLDACRES-DEAR has recently been exposed to extreme stress levels with the death of his father, his marital split, the custody proceedings and very recently, the tragic death of his brother-in-law. To date, he has coped admirably with these seemingly insurmountable problems; however he has reached his effective stress coping level and further traumas may have negative effects.
4. The only viable option at present appears to be discharge so that he can re-establish his life and start a new career in the WA Police Force.
5. Discharge is strongly supported.” (T18, p 190)
Western Australia Police Service medical records
29.In June 2008 the applicant underwent psychological assessment as part of the selection process for the position of Undercover Controller. On 10 June 2008 he completed a questionnaire form which contained “a list of problems and complaints that people sometimes have in response to stressful experiences” and required him “to indicate how much [he had] been bothered by that problem in the past 6 months” (original emphasis). In that questionnaire form, the response “Not at all” is indicated in respect of each of the “problems” listed as follows:
“1. Repeated, disturbing memories, thoughts, or images of a stressful experience?
2.Repeated, disturbing dreams of a stressful experience?
3.Suddenly acting or feeling as if a stressful experience were happening again (as if you were reliving it)?
4.Feeling very upset when something reminded you of a stressful experience?
5.Having physical reactions (eg Heart pounding, trouble breathing, sweating) when something reminded you of a stressful experience?
6.Avoiding thinking about or talking about a stressful experience or avoiding having feelings related to it?
7.Avoiding activities or situations because they reminded you of a stressful experience?
8.Trouble remembering important parts of a stressful experience?
9.Loss of interest in activities that you used to enjoy?
10.Feeling distant or cut off from other people?
11.Feeling emotionally numb or being unable to have loving feelings for those close to you?
12.Feeling as if your future will somehow be cut short?
13.Trouble falling or staying asleep?
14.Feeling irritable or having angry outbursts?
15.Having difficulty concentrating?
16.Being “super-alert” or watchful or on guard?
17.Feeling jumpy or easily startled?” (original emphasis) (T18, pp 230–231)
30.A report of Karen Kilday, Psychologist, who conducted the abovementioned psychological assessment, dated June 2008, states as follows:
“ PRESENTATION / PERSONAL IMPACT
Phil presented as friendly and cooperative during the testing and subsequent feedback sessions. He participated and completed all assessments in a timely manner as directed, requiring minimal clarification or prompting.
INTELLECTUAL PERFORMANCE / TRAINING POTENTIAL
Overall Phil demonstrated excellent intellectual functioning and training potential. This was derived from the applicant’s excellent performance on a test of general reasoning/intelligence.
MOTIVATION
Phil nominated the opportunity for a ‘challenge’ and to expand upon his long history as a Prosecutor as the motives associated with this application.
His motivation for this role seems genuine and appears to have a reasonable understanding of the tasks and expectations of the position based upon the limited information available.
PERSONALITY
Phil’s personality profile suggests he is secure, hardy, and generally relaxed even under stressful conditions. He is extraverted, outgoing, active and high-spirited, prefers to be around people most of the time. He is practical but willing to consider new ways of doing things, seeking a balance between the old and the new. He may be hard-headed, sceptical, proud, and competitive. He tends to express his anger directly. He is conscientious and well-organised, has high standards and always strives to achieve his goals. (NEO Summary Report, 1991).
Whilst Phil endorsed the above personality summary, he clarified that ‘hard-headed etc’ would be attributed to ‘being sarcastic and competitive but I do give people the benefit of the doubt. I avoid ambiguity. I speak my mind.’ Based upon these comments and his results these remarks are noted for future reference, however not considered significant enough to warrant an adverse rating.
CLINICAL FACTORS
·No factors relating to the presence of abnormal psychological functioning were identified that would limit performance in this position.
·No factors associated with past trauma were identified that would limit performance in this position.
·No identified factors associated with Phil’s general mental health in terms of his usage of substances, mood change and any significant lifestyle changes would limit performance in this position.
·Phil’s comments indicated that he has considered the impact this position may have upon his current lifestyle (ie unexplained absence, changes in physical appearance and social activities) and there are no areas of concern identified. He explained that this application was not discussed with his significant other as he deemed it not appropriate to do so, as per instructions.
POINTS OF INTEREST
·Phil reported that in his role as a Prosecutor, he ‘put up with being trodden on by lawyers’ and he also received a complaint from an offender relating to Phil having assisted to remove him from public transport. The complaint was dismissed. In light of the incident being dismissed there are no areas of concern identified.
·Phil identified his strengths to be his ‘experience in covert work as a sub-mariner, his ability to work in adverse conditions, my knowledge of prosecuting / evidence (knowing what to cover to ensure charges) and I can think on my feet.’
SUMMARY
Phil presented as friendly and cooperative during the testing and feedback session. He participated and completed all assessments as directed. Phil was assessed as having excellent intellectual ability, and there are no concerns regarding his training potential. Whilst remarks relating to his personality profile reflected a ‘straight forth’ manner with a tendency to speak ‘my mind’, this was not considered significant enough to warrant overall concern. No concerns were identified in his abnormal psychological functioning, past trauma assessments or general mental health. He appeared to have a reasonable understanding of the duties and expectations of the position based upon the limited information available and the likely impact upon his lifestyle. His comments reflected genuine motivation for a Covert based career. Overall there are no psychological factors that would limit performance in this position.
RECOMMENDATION
Based on the assessment results the applicant is acceptable from a psychological perspective.” (original emphasis) (T18, pp 232–233)
Additional Evidence
31.The applicant tendered in evidence a bundle of emails (Exhibit A3), including the following:
·“ This is to confirm that as a member of the RAAF from 1966-1986 I was posted to RAAF Butterworth Malaysia over three tours of duty. The last tour was over the period 1980 to 1983 and it was during this time that I became acquainted with LAC ‘RIngo’ Thomas as a RAAF member and a member of the RAAF Yacht Club Butterworth (RYCB).
At the time I was a Committee member of the RYCB and also the RYCB ‘Boatie’ Tigers Football Club. ‘Ringo’ Thomas was an active member of both and in particular the RYCB.
Similarly, I was well acquainted with LAC Phil Oldacres-Dear, a fellow Armament Fitter who had served under me at RAAF Kingswood and who was an armourer with an operational squadron at Butterworth. Phil was also an active member of the RYCB and the ‘Boatie’ Tigers football club during my tour of Butterworth from 1980-1983.
I trust this information is of assistance in confirming Mr ‘Ringo’ Thomas as both a member of the RAAF and of the RYCB and of the bona fides of Phil Oldacres-Dear.
Sincerely,
Robert N Alford”;
·“ I am writing this letter to confirm that I have personally known Mr Phil Oldacers-Dear (sic) for more than thirty years.
We both served the Royal Australian Airforce together as Armament Fitters. I was posted to RAAF Base Butterworth at the same time as Phil and we were in the same squadron at the same time.
During my time in Butterworth I was the secretary of RAAF Base Butterworth Yacht Club (RYCB). Part of my duties as the secretary was to liaise with the RYCB Tigers Football Club.
Phil was a player for the Tigers Football Club as was Mr Thomas (known as Ringo).
I can verify that just prior to the Grand Final of 1980 that Ringo had a motor bike accident that occurred just outside of the Boat Club.
This accident had a detriment (sic) effect on a lot of the players as they were a very close knit team.
Being in the same section as Phil I noticed that he was drinking to excess, and that his attitude changed as did his work ethics. In the trade that we were in we couldn’t afford to make any mistakes.
Kind Regards
Mr George Barron”;
·“ … I can remember Ringo Thomas who was an instrument fitter at 75 sqn having a motor bike accident before a footie grand final around 1980. He was on crutches for a long time. I think he was sent back to Aust for a while. It had a huge effect on the whole team as we were pretty close. I do remember you giving up playing, but took up team manager for the tigers for a few seasons. I seem to remember you witnessed the accident and was pretty upset for a long time. It was about that time that you hit the drink a bit more than usual. Ringo visited me in Ipswich around 1989, he was working as an instrument fitter in Gove or Weipa at the time. We talked about his accident. If I can be of any more help just contact me. Les [Que]”;
·“ I was stationed at Butterworth from 1979 to 1982, I was coach of the RAAF yacht club football team (boatie tigers) 1980 rugby season. A team-mate of ours, nickname (Ringo) Thomas (forgotten first name) was involved in a serious motorcycle accident just outside the main entrance of the yacht club, the team was going to be announced that afternoon to play in the rugby grand final on the Saturday which was approved as official sport, being played at various RAAF facilities.
(Ringo) Thomas was an instrument fitter in Malaysia and was one of the stars on our team. Phil (Shirley) Oldacres-Dear was also a member of the team.
Phil was following Ringo on that afternoon and witnessed the event. It affected all of us pretty badly as we were an extremely close and proud team.
(Ringo) was repatriated back to Australia for surgery.
Phil appeared affected more than others and he appeared emotionly (sic) changed. He gave up playing football and became team manager and started consuming a bit too much alcohol and he resigned from the team.
The boatie tigers represented the RAAF as a great example of a dedicated close knit team and were commended by such famous AUSTRALIAN PLAYERS, Keith (Yappy) Holman and others during visits to Butterworth Malaysia.
If you require any further information or clarification please do not hesitate to contact me.
Yours sincerely
Terry Martin”;
·“ …
Yourself, Ringo and I were members of the Tigers football team whilst we were in Malaysia, and I recall that Stan Thomas (Ringo) an Instrument Fitter with 75 Sqn I believe, had an accident just before we played a grand final. I do not remember the specifics of the accident, but I do recall him being incapacitated and I remember having to use crutches.
Kev
Kevin Crowley”.
[The Tribunal notes that none of the authors of the abovementioned emails was called by the applicant as a witness; nor was any of them required by the respondent to appear for cross-examination.]
32.A letter from Mr E M Leach to Dr Fellows-Smith, dated 12 March 2009, regarding the applicant, states as follows:
“ Allow me to introduce myself, my name is Eric Michael Leach and I am Philip’s brother-in-law. I first met Philip in 1972 when I was dating his older sister. We got on really well and in no time we realized we had similar interests. We spent most weekends fishing and/or crabbing and walked many a mile in the swan river dragging a prawn net. Phil was easygoing young man (sic), not much for drinking, didn’t smoke but still socialised a lot with the family and other friends. We were like brothers, thought the same things etc, if either of us had a problem, we could talk to each other about it and more often than not Phil was the problem solver out of us both.
Phil was transferred to RAAF Base ‘Butterworth’ in Malaysia in 1979. When he returned to Perth in 1981 the family as a whole really struggled coping with the changes in Philip. The young man who went to Malaysia certainly was not the man who returned. Philip was so very quiet, sort of withdrawn or distant if you like. I was shellshocked, I thought it would be great with Phil home again and get back to our fishing trips etc but this wasn’t to be.
It is hard to put into words but it was like Philip was a very different person, like a stranger almost. No amount of persuasion from me or others could raise the slightest interest in Phil when asked if he wanted to go fishing or whatever, visit some mates, nope! All he would do is sit there most of the time drinking lots of beer and smoking a lot too. I tried to talk to him, to see what was wrong and if I could help, all I got was my head bitten off and told to butt out. Eventually this was the only option I could take as trying to talk with him was fast becoming an undesirable and seemingly impossible challenge.
I hope you get to read this letter, I want to help Phil put whatever it is bugging him behind him. Just getting your name from him was hard enough (not my business) but I had to agree to hand this letter to Phil and not mail it to you direct, another one of the weird changes in him, came back from there really sort of suspicious of people in general, and yet he never used to be.
I thank you in anticipation for any assistance you can give Phil and I thank you for your time.” (part of Exhibit R5)
The Relevant Legislation
The VE Act
33. Section 70 of the VE Act, which deals with eligibility for a pension under Part IV of that Act, relevantly provides:
“ …
(5)For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
…”
The terms “disease” and “injury” are defined in s 5D(1) as follows:
“ disease means
(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b)the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c)the aggravation of such an ailment, disorder, defect or morbid condition; or
(d)a temporary departure from:
(i)the normal physiological state; or
(ii)the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).”
“ injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a) a disease; or
(b) the aggravation of a physical or mental injury.”
34. Section 120 of the VE Act, which prescribes the standard of proof to be applied in making determinations in respect of pensions under that Act, relevantly provides:
“ …
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
…”
Section 120B relevantly provides:
“ …
(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.
…”
35. Section 196A of the VE Act establishes the Repatriation Medical Authority (“the Authority”) and s 196B(1) provides that the “main function of the Authority is to determine Statements of Principles for the purposes of the Act …”. Section 196B(3) provides:
“(3) If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to:
(a)eligible war service (other than operational service) rendered by veterans; or
(b)defence service (other than hazardous service) rendered by members of the Forces; or
(ba)peacetime service rendered by members;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(c)the factors that must exist; and
(d)which of those factors must be related to service rendered by a person;
before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.
…
Note 3:For factor related to service see subsection (14).”
Section 196B(14) relevantly provides:
“(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
…
(b)it arose out of, or was attributable to, that service; or
…
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
…
(f)in the case of a factor causing, or contributing to, a disease – it would not have occurred:
(i)but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or
…”
The Statements of Principles
36.Pursuant to s 196B(3) of the VE Act, the Authority has determined the following Statements of Principles (“SoPs”) which are presently in force:
· Statement of Principles concerning posttraumatic stress disorder No 6 of 2008 (“the PTSD SoP”);
· Statement of Principles concerning personality disorder No 71 of 2008 (“the Personality Disorder SoP”);
· Statement of Principles concerning alcohol dependence and alcohol abuse No 2 of 2009 (“the Alcohol SoP”).
The Issues
37.The issues for the Tribunal’s determination are:
· whether the applicant has suffered any mental ailment(s); and, if so
· whether any such mental ailment is a defence-caused disease or a defence-caused injury, for the purposes of Part IV of the VE Act.
Analysis
Has the applicant suffered any mental ailment(s)?
38.There are three relevant mental ailments about which there is medical evidence before the Tribunal, namely, PTSD, Alcohol Abuse, and Personality Disorder.
39.Although the Tribunal was given to understand, at the hearing of this matter, that the applicant had conceded that he has not suffered Personality Disorder, and that the parties had agreed that the Tribunal should confine its consideration to PTSD and Alcohol Abuse, the Tribunal notes that the applicant, in his written submissions filed on 16 June 2011, requests the Tribunal to make findings in respect of PTSD, Personality Disorder, and Alcohol Abuse.
40.Accordingly, for the sake of completeness, the Tribunal will consider, and make a finding in respect of, each of PTSD, Alcohol Abuse, and Personality Disorder.
Personality Disorder
41.Having regard to the psychiatric evidence before it, the Tribunal is reasonably satisfied that the applicant has not suffered Personality Disorder. Although Dr Fellows-Smith initially made a diagnosis of Personality Disorder NOS (Not Otherwise Specified), he confirmed in his oral evidence that he no longer adhered to that diagnosis and he opined that the applicant has not suffered Personality Disorder. Dr Mander, on the other hand, opined unequivocally that the applicant has not suffered Personality Disorder.
42.Accordingly, the Tribunal finds that the applicant has not suffered Personality Disorder.
43.In the light of that finding, the question whether Personality Disorder is a defence-caused disease or a defence-caused injury does not arise and it is therefore unnecessary for the Tribunal to consider the Personality Disorder SoP.
Alcohol Abuse
44.Both Dr Fellows-Smith and Dr Mander opined that the applicant has suffered Alcohol Abuse. Dr Mander also opined that that psychiatric disorder is presently in remission.
45.On the basis of the abovementioned medical evidence, the Tribunal finds that the applicant has suffered Alcohol Abuse. The Tribunal also finds that he applicant’s Alcohol Abuse is a “disease”, not an “injury”, as defined in s 5D(1) of the VE Act.
PTSD
46.There is a clear conflict in the expert psychiatric evidence before the Tribunal as regards whether the applicant has suffered PTSD. In short, Dr Fellows-Smith opined that the applicant has suffered PTSD, whereas Dr Mander opined that the applicant has not suffered PTSD.
47.The Tribunal attaches little weight to the opinion of Dr Fellows-Smith for the following reasons.
48.The Tribunal notes that, since Dr Fellows-Smith commenced treating the applicant in January 2009, his opinions regarding the applicant’s psychiatric condition have changed in various respects. Those changes (as reflected in his five reports which are in evidence) may be summarised as follows:
· in his report of 2 February 2009, Dr Fellows-Smith:
-diagnosed the applicant’s psychiatric condition as: “Alcohol Abuse 305.00”, “Personality Disorder (NOS)”, Obsessive Compulsive Traits, enduring personality change related to traumatic events”;
-opined that the “most likely cause of the condition is prolonged life threatening stressful events”;
-opined that the “time of onset of his condition is 1982 onwards coinciding with his hazardous work in bomb disposals”;
-noted that there is “the presence of post traumatic stress symptomatology with the absence of a severe psychosocial stressor”;
· in his report of 28 July 2009 to the DVA, Dr Fellows-Smith adhered to the abovementioned diagnosis, disputed the respondent’s determination of 5 March 2009 that the applicant’s Alcohol Abuse and Personality Disorder were not related to service (see paragraph 3 above), and “advocate(d) a review” of that determination;
· in his report of 30 November 2009 to the DVA, Dr Fellows-Smith adhered to the abovementioned diagnosis and again “advocate(d) a review” of the respondent’s determination of 5 March 2009 “to include the possibility of secondary alcohol abuse based on the discovery of further supportive evidence of neurotic disorder in his service medical records occurring within twelve months of hazardous service”;
· in his report of 14 May 2010 to the DVA, Dr Fellows-Smith:
-referred to the VRB’s decision [of 22 April 2010] “to uphold the Department’s (sic) rejection of Mr Oldacres-Dear’s claim for Post Traumatic Stress Disorder”;
-stated that “(f)urther to the decision of the Board to accept the incident in 1980 in Butterworth as a Category 1B stressor” he was “now able to review [his] diagnosis of Mr Oldacres-Dear’s service related condition”;
- diagnosed that condition as: “Post Traumatic Stress Disorder 309.81” and “Alcohol Abuse 305.00”;
· in his report of 26 February 2011 to the DVA, Dr Fellows-Smith adhered to his revised diagnosis of PTSD and Alcohol Abuse and confirmed that, in his opinion, the applicant’s “alcohol related problems” are “secondary to his Post Traumatic Stress Disorder”.
49.Dr Fellows-Smith’s clinical notes, in respect of his consultations with the applicant in the period from 19 January 2009 to 5 April 2011, are in evidence (part of Exhibit R5). Those notes indicate that, on 19 January 2009, Dr Fellows-Smith took a detailed history from the applicant which included reference to some 10 incidents or experiences in the course of the applicant’s defence service, including the following:
“ q Mate cleaned up in front of us on bike
he was alive
knee shattered
driving behind him in car
truck pulled out
MVA week before rugby final
locals stole shoes & wallet
they’re coming from all directions
rugby player
Ringo Thomas
between service teams”.
Those notes further indicate that there were at least 11 subsequent consultations, at approximately monthly or 2-monthly intervals, up until 26 March 2010 in respect of which the only reference to “Ringo” appears in the note of 29 April 2009 which states:
“ Incident with Ringo 1980 → stopped playing footy with team … →
drinking piss ++
after ‘piss head’”.
The next (and final) reference to an incident with “Ringo” appears in Dr Fellows-Smith’s note of 14 May 2010 which states:
“ Ringo fell off motor bike
still picture him laying on the road
…”
50.Having regard to Dr Fellows-Smith’s abovementioned reports, clinical notes and oral evidence, the Tribunal regards the basis on which he ultimately made a diagnosis of PTSD in respect of the applicant as unsatisfactory. The Tribunal notes that, in his report of 2 February 2009 (following the initial consultation of 19 January 2009, and subsequent consultations of 27 January 2009 and 2 February 2009 (in respect of which no clinical notes are in evidence)), Dr Fellows-Smith, although he was asked by the DVA to see the applicant in relation to his claim for a disability pension under the VE Act in respect of PTSD, did not make a diagnosis of PTSD but, instead, made the following diagnosis:
“ Alcohol Abuse 305.00
Personality Disorder (NOS)
Obsessive Compulsive Traits, enduring personality change related to traumatic events”.
It appears from Dr Fellows-Smith’s report that, although he accepted that the applicant experienced some “post traumatic stress symptomatology” in respect of his “witnessing a motorbike accident of his close friend Ringo Thomas a rugby player who broke a leg prior to the RAAF final in 1980 at Butterworth in Malaysia”, he doubted whether that event met “the criteria of Category A1 of DSMIV 309.81”. He also referred to “the presence of post traumatic stress symptomatology with the absence of a severe psychosocial stressor”. In his report of 14 May 2010 (following the decision of the VRB in this matter on 22 April 2010), however, Dr Fellows-Smith made a diagnosis of PTSD (instead of “Personality Disorder (NOS)” and “enduring personality change related to traumatic events”) following his understanding that the VRB, in its decision of 22 April 2010, had accepted the incident in 1980 involving “Ringo” Thomas as a “Category 1B stressor” (an expression which appears, and is defined, in each of the SoPs referred to in paragraph 36 above). In his oral evidence Dr Fellows-Smith confirmed that, on the basis that the VRB was satisfied that that incident had occurred and that it was a “Category 1B stressor”, and after “further probing” of the applicant about that incident, he made a diagnosis of PTSD. In the Tribunal’s opinion, Dr Fellows-Smith’s diagnosis of PTSD, which was first made on 14 May 2010 on the abovementioned basis, in substitution for a diagnosis of “Personality Disorder (NOS)” and “enduring personality change related to traumatic events” which he had maintained throughout the period from January 2009 to March 2010 during which he had at least 12 consultations with the applicant, is unconvincing.
51.The Tribunal, furthermore, has serious doubts about the objectivity of Dr Fellows-Smith’s evidence. It seems to the Tribunal, having regard in particular to Dr Fellows-Smith’s abovementioned reports of 28 July 2009 and 30 November 2009, that Dr Fellows-Smith provided those reports to the DVA for the purpose of disputing the respondent’s determination of 5 March 2009 in this matter and “advocat(ing) a review” thereof. In the Tribunal’s opinion, Dr Fellows-Smith, who has been the applicant’s treating psychiatrist since January 2009, has adopted the role of an advocate for the applicant in this matter and, accordingly, it attaches substantially less weight to his evidence than it would if it regarded his evidence as truly objective.
52.It nevertheless remains for the Tribunal to consider whether, on the whole of the evidence before it, a diagnosis of PTSD is appropriate in the applicant’s case.
53.The diagnostic criteria in respect of PTSD are set out in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (Fourth Edition, Text Revision, 2000) (“DSM-IV-TR”). Criterion A of those diagnostic criteria is as follows:
“A. 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”. (Exhibit R6)
54.The first matter for the Tribunal to consider is whether the abovementioned incident involving “Ringo” Thomas in or about 1980 fulfils criterion A(1) of the abovementioned diagnostic criteria in respect of PTSD. The respondent does not dispute, and the Tribunal accepts, that an incident, involving “Ringo” Thomas being injured in a motorbike accident, did in fact occur.
55.In the Tribunal’s opinion, the evidence before it regarding the specific circumstances of the abovementioned incident itself, and the seriousness of the injury suffered by “Ringo” Thomas in that incident, is vague and inconclusive. That evidence may be summarised as follows:
· Dr Fellows-Smith’s clinical notes refer to “mate cleaned up in front of us on bike”, “knee shattered”, “truck pulled out” (19 January 2009), “Ringo fell off motor bike” (14 May 2010);
· Dr Fellows-Smith’s reports of 2 February 2009 and 14 May 2010 refer to “a motorbike accident” in which “Ringo” Thomas “broke a leg”;
· Mr George Barron’s email refers to “Ringo” Thomas having “a motor bike accident that occurred just outside of the Boat Club”;
· Mr Les Que’s email refers to “Ringo” Thomas having “a motor bike accident” and being “on crutches for a long time”;
· Mr Terry Martin’s email refers to “Ringo” Thomas being “involved in a serious motorcycle accident just outside the main entrance of the yacht club” and being “repatriated back to Australia for surgery”;
· Mr Kevin Crowley’s email refers to “Ringo” Thomas having “an accident” and “being incapacitated and … having to use crutches”;
· Dr Mander’s report of 4 November 2010 refers to the applicant’s stating that “he was about 100 metres behind Ringo when he saw a truck pull out and run [him] over” and that he “thought he was dead … he was mangled, not moving”;
· the applicant’s relevant oral evidence was as follows:
“… we were heading down to the boat club, the yacht club, and Ringo was in front of me on his motorbike. I was behind him, about 100 metres behind him. I’m not – Butterworth is a strange set-up, if you like, because the main road to Epo, or whatever goes through the base, if you like, or divides the property on one side is the hospital and the yacht club and the senior sailors – not senior sailors, but the senior airmen – sergeants’ mess, and there’s other facilities on that side and, on the other side, is the actual base and stuff like that. But the main road and civilian thoroughfare to Thailand, if you like, just goes straight through. As we approached the yacht club a truck came out to go around a pushbike. Ringo was in front of me. He laid the bike down, and the last was the bike getting run over and stuff like that. I remember Ringo laying the (sic) ground, and I thought he was dead. He was prostrate. He was – I just froze. I was unable to do anything. I felt helpless because I couldn’t help him, …” (Transcript p 21)
56.The Tribunal notes that neither party sought to call Mr Thomas as a witness (even though, the Tribunal understands, he was contactable by telephone) and, accordingly, the Tribunal did not have the benefit of hearing evidence from him.
57.Having regard to the whole of the evidence before it, the Tribunal is satisfied that in or about 1980 “Ringo” Thomas suffered a leg injury in a motor vehicle accident which occurred outside the entrance of the RAAF Yacht Club near the RAAF Base at Butterworth, Malaysia and that the applicant witnessed that accident. The Tribunal, however, is not satisfied, having regard to that evidence, that the leg injury suffered by Mr Thomas in that accident was a “serious injury” within the meaning of criterion A(1) of the diagnostic criteria in respect of PTSD set out in DSM-IV-TR; nor is the Tribunal satisfied that that accident fulfils criterion A(1) in any other respect.
58.As regards the applicant’s response to witnessing the abovementioned accident (for the purposes of criterion A(2) of the diagnostic criteria in respect of PTSD set out in DSM-IV-TR), the evidence before the Tribunal is not entirely consistent. That evidence may be summarised as follows:
· Dr Fellows-Smith’s report of 2 February 2009 relevantly states:
“Mr Oldacres-Dear stated that he felt helplessness and horror when he witnessed the local people trying to rob his friend who was lying helpless beside the road”;
· Dr Fellows-Smith’s report of 26 February 2011 relevantly states:
“Mr Oldacres-Dear stated that he had some survivor guilt issues as at the time he was frozen in fear. It is likely that he had an acute stress reaction based on his description of a change in his perception of the passage of time and experience of his reality which appeared to be unfamiliar as if in a movie. He was unable to go to the aid of his friend.”;
· Dr Mander’s report of 4 November 2010 relevantly states:
“He said ‘I thought he was dead’, ‘it is the first time I have seen anyone hurt or injured’, ‘he was mangled, not moving’. He remembers thinking ‘what can I fucking do’ and ‘why didn’t I make him come with me?’. He believes that this event was profound because he was a close friend and did not know what to do to help him.”;
· the applicant’s relevant oral evidence was as follows:
“ … I remember Ringo laying the (sic) ground, and I thought he was dead. He was prostrate. He was – I just froze. I was unable to do anything. I felt helpless because I couldn’t help him, …” (Transcript, p 21)
59.The Tribunal does not accept the applicant’s evidence that, having witnessed the motor vehicle accident involving “Ringo” Thomas, he then thought that Mr Thomas was dead. The Tribunal notes that there is no reference to that effect in any of Dr Fellows-Smith’s clinical notes or in any of his reports. Indeed, the abovementioned reference in Dr Fellows-Smith’s report of 2 February 2009 to the applicant’s feeling “helplessness and horror when he witnessed the local people trying to rob his friend who was lying helpless beside the road”, and the reference in his report of 26 February 2011 to the applicant’s being “unable to go to the aid of his friend”, are, in the Tribunal’s opinion, inconsistent with the proposition that the applicant was then of the belief that Mr Thomas was dead. The Tribunal also does not accept that the applicant was then “frozen in fear”, as stated by Dr Fellows-Smith in his report of 26 February 2011.
60.Nor does the Tribunal accept that, as Mr Thomas was lying on the ground after being injured in the motor vehicle accident, local people then robbed, or tried to rob, him, as the applicant told Dr Fellows-Smith (clinical note of 19 January 2009 and report of 2 February 2009) and as he stated in his evidence to the VRB (T2, p XI). Given that the accident occurred outside the entrance of the RAAF Yacht Club (as the Tribunal has found) and the applicant was, according to his own evidence, following Mr Thomas in a car about 100 metres behind and would presumably have arrived at the accident scene within seconds, it seems to the Tribunal highly implausible that local people would attempt, or even have the opportunity, to rob Mr Thomas in such circumstances. The Tribunal notes, furthermore, that the applicant did not mention that version of events when he saw Dr Mander; nor did he mention it in his evidence before the Tribunal.
61.Having regard to the whole of the evidence before it, the Tribunal is not satisfied that the applicant’s response to having witnessed the motor vehicle accident involving “Ringo” Thomas “involved intense fear, helplessness, or horror”, within the meaning of criterion A(2) of the diagnostic criteria in respect of PTSD set out in DSM-IV-TR. The Tribunal is prepared to accept that the applicant’s emotional response to having witnessed that accident involved feelings of shock and distress but, having regard to the circumstances of that accident, the Tribunal does not accept that his emotional response involved “intense” feelings of “fear”, “helplessness”, or “horror” as required by criterion A(2) of the abovementioned diagnostic criteria : see Hill v Repatriation Commission [2001] FCA 1775 at [30]; Gerzina v Repatriation Commission [2003] FMCA 490 at [19]–[41].
62.The Tribunal is satisfied that the abovementioned motor vehicle accident involving “Ringo” Thomas did not constitute a “traumatic event” which fulfils criterion A of the diagnostic criteria in respect of PTSD set out in DSM-IV-TR. No other incident was relied on by the applicant as causing or contributing to his suffering PTSD. The Tribunal concludes, therefore, that a diagnosis of PTSD in the applicant’s case is inappropriate. The Tribunal agrees with the opinion of Dr Mander that the applicant has not suffered PTSD, and it so finds.
63.In the light of that finding, the question whether PTSD is a defence-caused disease or a defence-caused injury does not arise and it is therefore unnecessary for the Tribunal to consider the PTSD SoP.
Is the applicant’s Alcohol Abuse a defence-caused disease?
64.Pursuant to s 120B(3) of the VE Act, the Tribunal is to be reasonably satisfied that the applicant’s Alcohol Abuse is a defence-caused disease only if:
· the material before it raises a connection between that disease and the applicant’s defence service; and
· the Alcohol SoP upholds the contention that that disease is, on the balance of probabilities, connected with that service.
65.The Tribunal is prepared to accept that the material before it raises a connection between the applicant’s Alcohol Abuse and his RAAF service at Butterworth, Malaysia in 1979–1981, for the purposes of para (a) of s 120B(3) of the VE Act.
66.The question, for the purposes of para (b) of s 120B(3) of the VE Act, is whether the Alcohol SoP upholds the contention that the applicant’s Alcohol Abuse is, on the balance of probabilities, connected with his RAAF service at Butterworth, Malaysia in 1979–1981.
67.The Alcohol SoP relevantly states:
“ …
Basis for determining the factors
4. On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that alcohol dependence or alcohol abuse and death from alcohol dependence or alcohol abuse can be related to relevant service rendered by veterans or members of the Forces under the VEA, or members under the Military Rehabilitation and Compensation Act 2004 (the MRCA).
Factors that must be related to service
5. Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6. The factor that must exist before it can be said that, on the balance of probabilities, alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse is connected with the circumstances of a person’s relevant service is:
(a)having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b)experiencing a category 1A stressor within the two years before the clinical onset of alcohol dependence or alcohol abuse; or
(c)experiencing a category 1B stressor within the two years before the clinical onset of alcohol dependence or alcohol abuse; or
…
Other definitions
9.For the purposes of this Statement of Principles:
‘a clinically significant psychiatric condition’ means any Axis 1 or Axis II disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management, excluding alcohol-related disorders. The ongoing management may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner;
‘a category 1A stressor’ means one or more 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) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c)being an eyewitness to atrocities inflicted on another person or persons;
(d)killing or maiming a person; or
(e)being an eyewitness to or participating in, the clearance of critically injured casualties;
…
‘an eyewitness’ means a person who observes an incident first hand and can give direct evidence of it. This excludes a person exposed only to media coverage of the incident;
…
‘DSM-IV-TR’ means the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000;
…”
68.As regards the factor in para (a) of clause 6 of the Alcohol SoP, the Tribunal is not satisfied that the applicant suffered “a clinically significant psychiatric condition” (as defined in clause 9), such as PTSD or Personality Disorder, at any material time. The Tribunal is, accordingly, satisfied that that factor does not exist in this case.
69.As regards the factor in para (b) of clause 6 of the Alcohol SoP, the Tribunal is not satisfied – nor did the applicant contend – that the applicant experienced a “category 1A stressor” (as defined in clause 9) at any material time. The Tribunal is, accordingly, satisfied that that factor does not exist in this case.
70.As regards the factor in para (c) of clause 6 of the Alcohol SoP, the applicant contended that he experienced a “category 1B stressor”, namely, his witnessing the abovementioned motor vehicle accident in or about 1980 in which “Ringo” Thomas was injured, and that he suffered Alcohol Abuse within two years after that event. The Tribunal does not accept that contention because it is not satisfied that the applicant’s witnessing of that motor vehicle accident constitutes the “experiencing” of “a category 1B stressor” within the meaning of that factor. The only relevant “severe traumatic event” listed in the definition of “a category 1B stressor” in clause 9 of the Alcohol SoP is:
“(a) being an eyewitness to a person being killed or critically injured”.
The Tribunal has previously stated that it is not satisfied that the leg injury suffered by Mr Thomas in the abovementioned motor vehicle accident was a “serious injury” within the meaning of criterion A(1) of the diagnostic criteria in respect of PTSD set out in DSM-IV-TR (see paragraph 57 above). Likewise, the Tribunal is not satisfied that that injury was a critical injury, or that Mr Thomas was “critically injured” (within the meaning of para (a) of the definition of “a category 1B stressor” in clause 9 of the Alcohol SoP) in that motor vehicle accident. The Tribunal is satisfied, therefore, that the factor in para (c) of clause 6 of the Alcohol SoP does not exist in this case.
71.The Tribunal is also satisfied that none of the other factors in clause 6 of the Alcohol SoP exists in this case. The applicant did not contend otherwise. Nor did the applicant contend that his Alcohol Abuse was connected with his defence service other than by reason of his witnessing the abovementioned motor vehicle accident in which Mr Thomas was injured.
72.The Tribunal concludes, therefore, that clause 5 of the Alcohol SoP – which requires that “at least one of the factors set out in clause 6” be “related to the relevant service” – is not satisfied in the applicant’s case.
73.It follows that the Alcohol SoP does not uphold the contention that the applicant’s Alcohol Abuse is, on the balance of probabilities, connected with his defence service. Pursuant to s 120B(3) of the VE Act, therefore, the Tribunal cannot be reasonably satisfied, for the purposes of s 120(4) of that Act, that the applicant’s Alcohol Abuse is a defence-caused disease.
74.Accordingly the Tribunal finds that the applicant’s Alcohol Abuse is not a defence-caused disease or a defence-caused injury, for the purposes of s 70 of the VE Act.
Conclusion
75.The Tribunal concludes as follows:
· the applicant has not suffered Personality Disorder;
· the applicant has not suffered PTSD;
· the applicant has suffered Alcohol Abuse but that psychiatric disorder is not a defence-caused disease or a defence-caused injury, for the purposes of s 70 of the VE Act.
Decision
76.For the above reasons, the Tribunal affirms the decision under review.
I certify that the 76 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: ...............[sgd D Brodie]........................
Associate
Date of Hearing 18 May 2011
Date of Decision 8 July 2011
Representative of the Applicant Mr A West
Counsel for the Respondent Mr J Wallace
Solicitor for the Respondent Australian Government Solicitor
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