Oliver and Repatriation Commission
[2004] AATA 686
•30 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 686
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/970
VETERANS' APPEALS DIVISION )
Re ALAN OLIVER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr O Rinaudo, Member Date30 June 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ...................(Sgd)..................
O Rinaudo
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – generalised anxiety disorder – diagnosis – applicant suffering from personality disorder and not generalised anxiety disorder – hypothesis raised – applicant did not suffer a “catastrophic experience” – hypothesis not reasonable – no causal connection between condition and war service
Veterans’ Entitlements Act 1986 ss 9, 70, 120(1), 120(3)
Repatriation Commission v Deledio (1998) 49 ALD 193
Re Parr and Repatriation Commission [2003] AATA 93
O’Neill v Repatriation Commission [2001] FCA 1492
Repatriation Commission v Stoddart [2003] FCAFC 300
Roncevich v Repatriation Commission [2003] FCAFC 146
Re Briggs and Repatriation Commission [2003] AATA 603Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564REASONS FOR DECISION
30 June 2004 Mr O Rinaudo, Member Decision under Review
1. Mr Oliver seeks review of a decision made by the Repatriation Commission on 9 March 2002 which determined that his general anxiety disorder was not related to his war service. This decision was affirmed by the Veterans’ Review Board on 9 August 2002.
Issues
2. The issues for determination by the Tribunal in this application are whether:
(a)if the applicant is suffering from generalised anxiety disorder, whether that condition is defence or war-caused within the meaning of section 9 and section 70 of the Veterans’ Entitlements Act 1986 (“the Act”); or
(b)if personality disorder is the correct diagnosis, whether that condition is defence or war-caused within the meaning of section 9 and section 70 of the Act.
History
3. The applicant was born on 2 March 1946 in the United Kingdom. The applicant rendered periods of operational service as follows:
§ Vietnam – 22 December 1967 to 1 January 19678
§ Malaysia – 22 February 1965 to 3 April 1965
§ Malaysia – 22 April 1965 to 7 May 1965
§ Malaysia – 12 May 1965 to 24 May 1965
§ Malaysia – 31 May 1965 to 22 June 1965
4. In addition, the applicant rendered eligible defence service from 7 December 1972 until 2 January 1974.
5. The veteran is in receipt of disability pension at 10% of the general rate for his accepted disability of sensori-neural hearing loss of the right ear and bilateral tinnitus. The applicant served in the Navy for 12 years from the age of 15½ years.
Hearing
6. The applicant gave evidence at the hearing. In addition to the applicant, evidence was also given by Dr J Carter and Mr M McKenzie and for the respondent, Commodore JT Bird, Dr W Kingswell and Captain H Josephs. In addition, the following documentary evidence was admitted into evidence.
Exhibit 1 “T” Documents
Exhibit 2 Statement of Alan Oliver dated 28 January 2003
Exhibit 3 Statement of Alan Oliver dated 12 August 2003
Exhibit 4 Report of Dr Janis Carter dated 6 August 2003
Exhibit 5Bundle of documented research of shark activity in Jervis Bay
Exhibit 6Report of Dr William Kingswell dated 10 July 2003
Exhibit 7Report of Captain H Josephs, Writeway Research Service dated 22 December 2003
Exhibit 8Supplementary report of Captain Josephs, Writeway Research Service dated 8 November 2003
Exhibit 9Report of Captain H Josephs, Writeway Research Service dated 1 March 2003
Exhibit 10Applicant’s service medical documents
Exhibit 11Bundle of documents consisting of Port Jackson Shark Project; and information from Lady Denman Maritime Museum and New South Wales Fisheries
Exhibit 12Record from Department of Defence dated 10 April 2003
Exhibit 13Three photographs of a helicopter
7. The applicant sets out in his statements (Exhibits 2 and 3) a number of incidents which are alleged to constitute stressors as defined by the relevant Statements of Principles (SoP). Dr Janis Carter, who has provided a number of reports and has seen the applicant on number occasions, diagnoses generalised anxiety disorder. Dr Carter considers that the date of onset of the applicant’s anxiety disorder as December 1967.
8. Dr Kingswell diagnosed mixed personality disorder. Dr Kingswell noted that he did not consider that generalised anxiety disorder was the best “fit” for the applicant given the applicant’s history.
9. Commander Bird and Captain Josephs gave evidence which contradicted the applicant’s version of events.
10. Mr Malcolm McKenzie supported the applicant’s version of an event which was alleged to have occurred at Sembewang in Singapore in 1968.
Submissions
11. Ms B Carter-Nicoll, counsel for the applicant, submitted that the applicant had not tried to fit his stressors into his operational and defence-service but had been candid on all stressors he suffered whilst in the Navy, including at times of non-operational service. It was submitted that the applicant was a truthful witness who did not change his story under cross-examination. The submission relied principally upon the following events:
(a)An occasion when the applicant was on sentry duty with no ammunition in Pulau Bukum. It was submitted that the applicant was aware of the threat from Indonesian hit and run attack and there had been an attack, according to the evidence of Captain Josephs, within 48 hours of the HMAS Supply docking. The Tribunal was told that all sailors were aware of the threat from the Indonesians. Whilst on the dock with an unloaded rifle, the applicant had been fully illuminated by a spotlight. However, he was unable to see people who may be attacking. In the circumstances the applicant perceived that he could easily be shot at and killed before he was given permission to load his weapon.
(b)Mr Oliver described a stop-over in Vietnam in 1967 when he was warned that there were floating mines and that there was an American patrol boat firing at the potential mines. The applicant was said to be terrified during this event. An unidentified aircraft had approached the vessel to the extent where the captain ordered gun crews to close defence stations. No attack ensued. The applicant also described being attacked in Singapore and fearing for his life.
(c)The third incident occurred when the applicant was involved in annual helicopter safety training. The applicant was lowered into Jervis Bay which is known to contain numerous sharks. It is said to be a breeding ground for Port Jackson sharks. He stated he saw fins in the ocean. He was winched from the water. However, he had to be lowered back into the water when the winch rope tangled. The applicant stated that upon re-entering the helicopter he was told that the crew had seen sharks. In this instance the applicant perceived he was going to die from a shark attack.
12. Ms Carter-Nicoll submitted that the evidence of Dr Carter should be accepted as she had seen the applicant on numerous occasions (some 47 occasions). Her opinion was that the event in 1967 in Vung Tau could have, by itself, caused generalised anxiety disorder.
13. Ms Carter-Nicoll submitted that the Tribunal should not accept the evidence of Dr Kingswell because he had only seen the applicant on one occasion. Dr Kingswell had noted that the history could also satisfy anxiety disorder. Ms Carter-Nicoll submitted that if Dr Kingswell had seen Mr Oliver over a longer period of time he may have been able to elicit a better history which may have led to a diagnosis of generalised anxiety disorder.
14. Ms Carter-Nicoll noted the principles set out in Repatriation Commission v Deledio (1998) 49 ALD 193 and particularly, the four steps required to be followed. She also referred to the decision of Re Parr and Repatriation Commission [2003] AATA 93 describing “identifiable occurrence” under the SoP for anxiety disorder. In paragraph 73 of that decision it states:
“It was suggested by the Respondent that the Applicant’s experience over two trips to Vung Tau does not amount to an ‘identifiable occurrence’ in that it is not a single or individual occurrence at a particular instant. The Tribunal rejects this suggestion given that the examples given in the SoP of ‘identifiable occurrence(s)’ include such things as major illness and major financial problems, both of which could occur over a period of time rather than instantaneously.”
15. Ms Carter-Nicoll submitted that, therefore, there can be a number of incidents in the operational service which led to the veteran suffering from an anxiety disorder.
16. What amounts to a severe psychosocial stressor, that is “an identifiable occurrence that evokes feelings of substantial distress”, within the meaning of the SoP for anxiety disorder?
17. In Parr it was held that the applicant’s experiences of entering Vung Tau and immediately assuming Operation Awkward State 2, with all that entailed, including scare charges, amounts to an “identifiable occurrence that evokes feelings of substantial distress, within the meaning of the SoP.”
18. Ms Carter-Nicoll also referred the Tribunal to the decision of O’Neill v Repatriation Commission [2001] FCA 1492 with respect to the objective test as to whether the applicant experienced a severe psychosocial stressor. Reference was also made to the decision in Repatriation Commission v Stoddart [2003] FCAFC 300.
19. In response, Mr McAninly representing the respondent, submitted that the correct diagnosis of the applicant’s condition is personality disorder and relies on the report of Dr Kingswell for this diagnosis. However, Mr McAninly stated that if the correct diagnosis is generalised anxiety disorder the applicant has never suffered a severe psychosocial stressor as required by the SoP.
20. In respect of the various incidents, Mr McAninly submitted that the incident related by the applicant about the death of his close mate at 17, did not amount to a severe psychosocial stressor as required by the SoP. In relation to the event described by the applicant as “witnessing a person being bayoneted”, Mr McAninly submitted that the applicant, in evidence, admitted he did not see anyone bayoneted but there was a sailor with blood on his uniform. Mr McAninly did not regard this as a severe psychosocial stressor.
21. The incident where the applicant was on sentry duty with no ammunition, Mr McAninly submitted that performing sentry duty on operational service is not a severe psychosocial stressor as required by the SoP. With respect to the incident referred to by the applicant as “dancing with the dead”, Mr McAninly submitted that this incident occurred outside of any period of operational service and also would not meet the requirements of a severe psychosocial stressor as required by the SoP.
22. With respect to the incident described by the applicant as the “stop-over in Vietnam in 1967”, Mr McAninly submitted that researchers could not find any evidence of any air strike as described by the applicant during this period in Vung Tau. The only air strike occurred some 50 kilometres away. Mr McAninly also rejected the applicant’s statement about an aircraft observed on radar. He submitted that, whilst there was a possibility that the events described by the applicant may have happened, the evidence from Commander Bird and the ship’s logs and ROPs show beyond reasonable doubt that the incident is disproved. In any event, it would not amount to a severe psychosocial stressor.
23. With respect to the “wet winching incident” described by the applicant, Mr McAninly submitted that there was little or no prospect of shark attack and that, given the extremely low number of shark attacks in Australia, being in Jervis Bay for a period of a few minutes would not amount to a severe psychosocial stressor as required by the SoP.
24. Mr McAninly submitted that the incident described by the applicant which was supposed to have occurred in Sembewang was outside a period of operational service and was therefore not covered by the Act. In any event, Mr McAninly submitted that there was no evidence in the applicant’s service medical records which showed that there was any medical treatment provided during this period.
25. Mr McAninly referred the Tribunal to the decisions of Roncevich v Repatriation Commission [2003] FCAFC 146 and Re Briggs and Repatriation Commission [2003] AATA 603.
26. Mr McAninly summarised the applicant’s case as follows:
“In final summation the respondent submits that at no time in giving evidence did the applicant demonstrate any stress or anxiety in the witness box or when giving evidence.
The respondent therefore submits that the applicant does not suffer from Generalised Anxiety Disorder and that he did not experience any severe stressor as required by the Statement of Principles.
Additionally, the respondent notes that the applicant’s service medical documents do not show that he ever received treatment for Generalised Anxiety Disorder on service and the Statement of Principles requires that onset of the condition, Generalised Anxiety Disorder, be within 1 year on the basis of eligible service and within two years of operational service.”
Legislation
27. The legislation relevant to this application is the Veterans’ Entitlements Act 1986 (“the Act”). In particular sections 9 and 70 apply. In addition, the Tribunal is required to determine matters based on the standard of proof as set out in subsection 120(1) and 120(3) of the Act. In relation to the applicant’s operational service, the standard of proof is that of reasonable hypothesis. In relation to the applicant’s non-operational service, the standard of proof is that of reasonable satisfaction.
28. The SoPs and factors applicable to this application are:
§ Generalised Anxiety Disorder – Instrument Nos 1 and 2 of 2000: Factor 5(a)(ii): experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; and
§ Personality Disorder – Instrument Nos 143 and 144 of 1995 (amended by Instrument Nos 13 and 14 of 1997): Factor 1(a): suffering a catastrophic experience that immediately preceded an enduring personality change to the level of disorder.
Discussion and Decision
Diagnosis
29. The Tribunal is required to make a diagnosis of the applicant’s condition based on the standard of proof of balance of probabilities. In this case the conflicting medical evidence is between Drs Carter and Kingswell, both psychiatrists. Dr Carter has given a number of reports and seen the applicant on numerous occasions. Dr Kingswell has seen the applicant once. He took an extensive history and reported on 10 July 2003. Dr Carter had provided reports on 31 January 2002, 30 May 2002 and 6 August 2003.
30. Dr Kingswell took a personal history from Mr Oliver which is set out at pages 5 and 6 of his report. In particular, Dr Kingswell noted that Mr Oliver complained that his father was a heavy drinker and made his life and that of his mother miserable. He described his father as a brutal dictator who shouted and bereted him. He said his father was violent to his mother. Dr Kingswell went on to say that:
“Mr Oliver joined the Navy at 15½ years of age. He said he found separation from his family terrifying. He was anxious to get out of the Navy in the first few years and took a long time to settle down. Once he settled though he stayed for 12 years. He made poor progress he said and only progressed to Leading Seaman. He said the Navy had given up on him in terms of promotion because he caused more trouble than most. He said he was ‘always on punishment for something or other’.”
31. Dr Kingswell also noted that Mr Oliver was concerned about the well-being of his son Craig who had “significant developmental difficulties”. Dr Kingswell noted that:
“Mr Oliver said that family relationships were tense due to financial commitments, Mr Oliver’s drinking and his son’s disability.”
32. Dr Kingswell notes in his conclusion that:
“Mr Oliver was exposed to two events in the Naval service that he believes relevant to the development of his psychological problems. The first was the exposure to wrapped bodies of airmen transferred to the Yarra and the second was the winching incident. Both events were considered by the Veterans Review Board. Mr Oliver’s symptoms are not realistically connected to either of these events and are much more likely to have arisen from Mr Oliver’s abnormal personality and his experience of having a disable child, which has produced an enduring stressor for Mr Oliver and his wife.”
And later:
“Mr Oliver has a personality disorder of mixed type (DSM IV-TR 301.9). Personality disorder not otherwise specified). He has paranoid, antisocial and dependent traits but fails to meet criteria for any one disorder. The problem is evidenced by his propensity for irritability, angry and violent outbursts, unstable mood, unstable occupational history and alcohol dependence.
The disorder had its onset in adolescence and has continued throughout adulthood. Mr Oliver’s disabled son has been a significant stressor for Mr Oliver and has possibly aggravated the course of his personality disorder that might have otherwise resolved over the years.
There is no evidence Mr Oliver had suffered an adverse health outcome arising from his Naval experience. There was no evidence that Mr Oliver suffered from generalised anxiety disorder. His symptoms arise from personality disorder and alcohol dependence.”
33. Dr Janis Carter in her most recent report dated 6 August 2003, confirmed her diagnosis of generalised anxiety disorder. She discounts Dr Kingswell’s diagnosis in the following terms:
“Alan Oliver served 12 years in the Navy. The presence of a severe personality disorder, complicated by alcohol drinking, would not have been tolerated over such a long period. If he had a significant personality disorder, the Navy wouldn’t have kept giving him further terms. He was discharged from the Navy in January 1974. He wasn’t asked to leave. Apart from his imprisonment for alcohol drinking, which I believe is a complication of his anxiety disorder, I do not believe he constituted a management problem for the Navy.”
34. Dr Kingswell in evidence was critical of Dr Carter’s reports and describes them as “terrible” and “appalling”. On balance, the Tribunal accepts the evidence of Dr Kingswell. It does this for a number of reasons. The objective evidence supports the history taken by Dr Kingswell and the diagnosis made by him. The applicant did get involved in trouble during his naval service which restricted his promotion.
35. For reasons which will shortly be stated, the Tribunal is not satisfied that the applicant suffered the stressors as described by him. The applicant’s early history, particularly his relationship with his father and his disabled son, led the Tribunal to the conclusion that Dr Kingswell has properly assessed the applicant’s condition. The Tribunal considers that Dr Carter, who is effectively the applicant’s treating psychiatrist, has in her reports advocated on behalf of the applicant and has not been as objective and as independent as Dr Kingswell.
36. Accordingly, the Tribunal considers that the appropriate diagnosis is mixed personality disorder as diagnosed by Dr Kingswell.
Causation
37. For operational service, the Tribunal must consider the principles as laid down in the decision Repatriation Commission v Deledio (1998) 49 ALD 193 when deciding whether an applicant’s condition is causally related to his war service. Firstly, the Tribunal must determine whether the material before it gives rise to a hypothesis connecting the injury with the service rendered. This test has a very low threshold: see Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564. In this case, the Tribunal is satisfied that a hypothesis has been raised connecting the applicant’s personality disorder with his war service.
38. Secondly, the Tribunal must identify the relevant SoP to apply in the case. As has been mentioned earlier, the SoPs applicable in this case, in relation to personality disorder, are Instrument Nos 143 and 144 of 1995 (as amended by Instrument Nos 13 and 14 of 1997).
39. The next step is to decide whether the raised hypothesis is reasonable. In order for the applicant’s hypothesis to be reasonable, the hypothesis must fit within the template of the SoP for personality disorder. Factor 1(a) of the SoP requires the applicant to have suffered:
“a catastrophic experience that immediately preceded an enduring personality change to the level of disorder;…”
40. The applicant relies on the three incidents set out earlier in these reasons as being catastrophic experiences he suffered which led to his personality disorder. “Catastrophic experience” is not defined in the SoP. The Shorter Oxford English Dictionary defines “catastrophe” as:
“… An event producing a subversion of the order or system of things … A sudden and violent physical change, such as an upheaval, depression, etc. … A sudden disaster…”
41. Whilst the applicant may have suffered fear and apprehension in relation to the events relied upon, the Tribunal has difficulty accepting that any of the events amounts to a “catastrophic experience”. None of the events resulted in a sudden upheaval, violent physical change or sudden disaster. Accordingly, the Tribunal is satisfied that none of the events relied upon by the applicant amount to catastrophic experiences. As such, the applicant’s hypothesis does not fit within the template of the personality disorder SoP and, therefore, the Tribunal finds that the hypothesis is not reasonable.
Decision
42. For the reasons given above, the Tribunal affirms the decision under review.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member
Signed: Sarah Oliver
AssociateDates of Hearing 5 and 6 February 2004
Date of Decision 30 June 2004
Counsel for the Applicant Ms B Carter-Nicoll
Solicitor for the Applicant Armed Services Assistance Centre
For the Respondent Mr D McAninly, Departmental Advocate
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