Owens and Repatriation Commission
[2007] AATA 1169
•26 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1169
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200500376
VETERANS’ APPEALS DIVISION ) Re FREDERICK JOHN OWENS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms M J Carstairs, Senior Member Date26 March 2007
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ................[Sgd]..............................
SENIOR MEMBER
CATCHWORDS
VETERANS’ AFFAIRS – service in the Australian Army – veteran incurred back injury during operational service – alcohol dependence and gastro-oesophageal reflux disease – whether veteran had condition during service – evidence did not support that veteran was unable to obtain appropriate clinical management for alcohol abuse or dependence – decision under review affirmed.
Veterans’ Entitlements Act 1986 ss 70(5), 120(4), 196B(14)
Re O’Brien and Repatriation Commission [2003] AATA 525
Repatriation Commission v Wedekind [2000] FCA 649
Brew v Repatriation Commission [1999] FCA 1246
REASONS FOR DECISION
22 March 2007 Ms M J Carstairs, Senior Member 1. Frederick Owens suffers from alcohol dependence and gastro-oesophageal reflux disease. In this review Mr Owens seeks to have those conditions recognised for payment of a disability pension on the grounds that the condition of alcohol dependence is related to his service in the Australian Army.
2. Mr Owens served twice in the Army, enlisting firstly between 1966 and 1969, during which he had six weeks operational service in Vietnam. While there, it is accepted that he had a fall in which he sustained a back injury. After his discharge in mid 1969 and having had a four-year stint undertaking various kinds of civilian employment, Mr Owens re-enlisted for his second period of service, from 1973 to 1979.
3. According to Mr Owens, until he injured his back in Vietnam, he was a moderate, mainly social, drinker - but the back injury led him to use alcohol increasingly to self medicate his back pain. On this account of events, when he joined up for his second period, he had an established alcohol condition – the doctors agree that it was alcohol dependence. His case now is that during his second period of service he was unable to obtain appropriate clinical management for alcohol dependence.
4. Mr Owens’ second period in the Army was entirely within Australia and this kind of service (being non-operational) attracts a particular standard of proof. Section 120(4) of the Veterans’ Entitlements Act 1986 governs the case at such a time when Mr Owens was not rendering operational service, and requires me to decide whether Mr Owens’ alcohol dependence was defence-caused to my reasonable satisfaction, applying the civil standard of proof. In examining Mr Owens’ claim I am also required to apply a Statement of Principles for alcohol abuse or dependence.[1] This is a Statement which places a mandatory requirement on decision makers; it has legislative force; it is formulated upon sound medical-scientific evidence; and it provides the only recognised connections linking conditions experienced on service with, in this instance, an alcohol related disorder. At paragraph 5(e), this Statement provides as one possible connection:
inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse.
[1] Instrument No 77 of 1998.
ISSUES
5. The issue for me to decide therefore is whether Mr Owens had an inability to obtain appropriate clinical management for his alcohol dependence. For reasons that will become clear, this particular provision as set out from the Statement of Principles applies only where the serving member either has the condition prior to service or gets it during his service, but the condition itself is not directly caused by the service.
6. In previous cases decided by this Tribunal,[2] a framework has been established for considering this particular issue, namely;
§ Did the veteran have the condition prior to or during service?
§ Was the veteran unable to obtain appropriate clinical management for it? and
§ Did the lack of appropriate clinical management make the condition worse or materially contribute to the condition.
[2] Re O’Brien and Repatriation Commission [2003] AATA 525.
I propose to apply that framework of analysis to the questions before me.
BACKGROUND
7. Much of Mr Owens’ evidence was presented in two written statements and from these I took the following facts as being uncontroversial.[3] Mr Owens was 19 years of age when he joined up for his first period of service and during that time he served with 32 Small Ships Squadron as a cook, having done his catering training prior to that posting. Mostly he was stationed at a base at Woolwich in Sydney, where the Squadron operated landing ships. However he had many periods at sea in this first period of his Army service, including the period of operational service in Vietnam.
[3] Exhibit A1 dated 2 September 2005 and Exhibit A2 dated 10 November 2005.
8. When he re-enlisted Mr Owens was 26. He re-entered at the level of private cook, despite his having achieved the rank of corporal during his first period of service. His second period of service was made up of three two-year postings. The first of these was with 3 Battalion at Woodside in South Australia. His next two-year posting was at Keswick Barracks, also in South Australia, where he was working in the sergeants’ mess. He was by this time again a corporal. His third two year posting was at Canungra in Queensland, in charge of the sergeants’ mess. In all these postings he lived off the base with his wife, whom he married in 1972, and to whom he remains married, on all accounts happily. They have two teenaged children.
DID MR OWENS SUFFER FROM ALCOHOL DEPENDENCE?
9. Before looking at questions of connection with service I must firstly be satisfied about the question of diagnosis. I have alluded earlier to the agreement amongst the reporting doctors about the appropriateness of a diagnosis of alcohol dependence. That agreed opinion was evident in the reports of Dr L Ding consultant psychiatrist, Dr M Likely, consultant psychiatrist, and Dr J Rogers, consultant psychiatrist, as refined, in the case of the last two doctors, in the course of their oral evidence. Dr Ding reported in 2003 that Mr Owens consumed 2 bottles of whiskey per week and 3-4 cartons of beer.[4] He did not particularly address issues of clinical onset in his report and I did not have the advantage of any oral evidence from Dr Ding, but he stated in his report that Mr Owens told him that he was drinking heavily within some 12 to 18 months of recruitment. This was somewhat at odds with other evidence presented, which dated Mr Owens’ heavy drinking as commencing after his back injury (some 2½ years after recruitment) and I cannot resolve that discrepancy.
[4] T Documents, p 24, Report dated 6 October 2003 at p 26.
10. However in other respects Dr Ding’s report provided some useful insights, a number of which reflected Mr Owens’ evidence at the hearing. I would include, in this regard, Dr Ding’s observation that Mr Owens does not see himself as having an alcohol problem, and does not think there is any need to reduce his intake of alcohol. Dr Ding recorded Mr Owens as having said that he had no particular social or marital problems and had no driving offences related to alcohol for over fifteen years. Significantly, Dr Ding considered that Mr Owens exhibited no signs of psychiatric disturbance.
11. Nevertheless, Dr Ding concluded that Mr Owens may well have minimised any issues in his family life and alcohol dependence was the likely cause of Mr Owens’ restless working life and the frequency in which he changed jobs. Dr Ding concluded on the history given to him, (which I note included no mention of taking alcohol to ease his back condition), that there were aspects of Army life which facilitated and accelerated Mr Owens’ alcoholism, including comradeship and socialisation around alcohol.[5]
[5] T documents, p 29.
12. Dr Rogers diagnosed alcohol dependence syndrome (physiological) which he said started when Mr Owens joined the army and was worsened by his back injury.[6] In a report dated 24 April 2006, Dr M Likely reported a similar history to that given to Dr Rogers, namely of increasing alcohol consumption after his fall.[7] Dr Likely recorded Mr Owens as saying that he was arrested by civilian police in 1969 for drink driving and was disqualified for 6 months; was late returning to ship and spent a period of time in military hospitals…for alcohol detoxification.[8] In the context of Dr Likely’s report, these references seemed to be to Mr Owens’ first period of Army service. I note, by way of clarification, that there was no reference to any period of detoxification in a military hospital in Mr Owens’ service medical documents and Mr Owens does not claim that this detoxification in a military hospital occurred at any time. Mr Owens however did describe to me one incident during his first period of Army service (whilst on leave) when he needed his stomach pumped. Dr Likely agreed in oral evidence that this could not be characterised as detoxification.
[6] T Documents p 72, Report dated 12 July 2004.
[7] Exhibit A3, report dated 24 April 2006.
[8] Ibid, p 2.
13. Dr Likely, who was the only doctor who dealt directly with the issue of clinical onset, considered that Mr Owens’ increased drinking dated immediately after the back injury – on board the Clive Steel in Vietnam in 1969. He said that from then Mr Owens used alcohol to excess in a maladaptive pattern and he had a subjective loss of control over his use of alcohol. Dr Likely said in his written report that Mr Owens’ alcohol abuse should have been observable by a reasonably competent medical person and his appropriate treatment at that time would have been admission to an inpatient facility for detoxification, followed up by psychotherapy and adequate management of the underlying cause (i.e., his back condition).[9]
[9] Exhibit A3, p 4.
14. I note that Dr Likely never made clear why Mr Owens’ alcohol abuse should have been observable to a reasonably competent medical person. While Mr Owens gave evidence that he was on occasion late for his shifts or had to be woken in the morning, he could not recall being charged with any offences attributable to his alcohol consumption during his service. He said he just did his job and he was not a problem in the sense of creating any trouble. I formed the impression that he did his job well and took some pride in doing so.
15. Dr Likely stated that in the late 1960s to early 1970s the drug Antabuse was commonly used as an aversive treatment and while not a treatment commonly given today, at that time he should have had a course of this drug. Dr Rogers said that in the 1960’s and 1970’s treatment was rarely instituted, but sometimes people were given detoxification procedures and this would have been possible in service facilities.
16. As I see this first question of diagnosis, it is as follows. All doctors agree that Mr Owens suffers from alcohol dependence. This is not a case in which there were competing diagnoses. It would be a rare case where, in the face of agreed medical conclusion, a Tribunal would do other than accept the agreed evidence. In the absence of contravening evidence, I was therefore satisfied that Mr Owens suffers from that condition.
17. Mr Owens’ case, however, required some identification of matters of clinical onset of the condition, and, at the very least, some specification of the progress of the condition. In these regards, the medical evidence was far from satisfactory. Each specialist saw Mr Owens once only for purposes of a report; none had the role of treating doctor; and none were provided with access to his service medical records. Dr Rogers said in oral evidence that he draws conclusions from whatever information he has, but it seemed to me that it was unfortunate that the doctors were not provided with the medical records relevant to the time of Mr Owens’ service, which would have put them in a better position to comment on matters that occurred in the past. Dr Likely’s belief that Mr Owens had been admitted to an Army medical facility for detoxification, with no follow-up treatments after this hospitalisation, seems not to be grounded in any factual material at all.
WAS MR OWENS UNABLE TO OBTAIN APPROPRIATE CLINICAL MANAGEMENT FOR ALCOHOL DEPENDENCE?
18. Before looking at this question, I should put it into its proper context within the legislation. I have already adverted to the Statement of Principles in paragraph 5 as requiring that the evidence raises a connection between the inability to obtain clinical management and the condition of alcohol dependence. The Statement of Principles then provides, at paragraph 6, that factor 5(e) only applies where there is material contribution to or aggravation of the condition – as provided for in s70(5)(d) of the Act, and mirrored in s196B(14)(d) of the Act, this latter being the source provision for the relationships with service that are then identified in the factors in the Statements of Principles (as being “connections with service”). The interaction of these provisions with the Statements of Principle has been comprehensively addressed by the Federal Court in Repatriation Commission v Wedekind [2000] FCA 649 (at paras 7-11) and does not require restating here.
19. Much was made in submissions about the possible meaning of the two terms material contribution to and aggravation of a condition. On the view I have taken of this case, it is unnecessary for me to decide the point. Hence there is no need to elaborate further on the content of the competing submissions on this point. It would only have become necessary to do so had I concluded that the evidence before me pointed to Mr Owens being unable to obtain appropriate clinical management of his condition. On the evidence before me I do not.
20. The period that was relevant for obtaining clinical management was the second period of service, given that the condition was one that was in existence prior to that period of service commencing. The evidence which addressed Mr Owens’ alcohol consumption as self-medication for his back condition was irrelevant to the question of whether he was unable to obtain appropriate clinical management, since the cause of his alcohol dependence was itself immaterial - taking into account the terms of the Act, specifically s70(5)(d)(ii), referring to an injury or disease suffered before the commencement of the service but not during the period of service - which was the provision relied upon in Mr Owens’ case.
21. I turn now to my reasons for concluding that Mr Owens cannot establish that he was unable to obtain appropriate clinical management for his condition. I have already referred to what the doctors said was the appropriate management of alcohol dependence or abuse in the 1960’s and 1970’s. It seemed to me that Dr Likely provided the more comprehensive view about treatment at that time. There was no suggestion that relevant treatment was not available either the private citizens or within the services at that time.
22. The Federal Court has looked at the meaning of inability to obtain appropriate clinical management in Brew v Repatriation Commission [1999] FCA 1246. Merkel J pointed out that “inability” is to be approached as a matter of practical reality rather than by a theoretical approach. Whether a subjective or objective barrier to obtaining treatments is made out in a particular case depends on the facts of the case.
23. At paragraph [3] his Honour Heerey J stated:
…. “inability” can, according to context, be used in the sense that a person is physically capable of performing some act but chooses not to do so, either because of apprehension of likely adverse consequences, or because of some powerful persuasive force…Clearly the factor operating on the person’s choice would have to be a substantial one before it could be said there was “inability”. How substantial is a question of fact, and not capable of definition a priori.
24. His Honour, Mr Justice Merkel, further noted at [30]
In my view it would be erroneous to limit “inability” to “some overwhelming psychological or emotional incapacity”. If a veteran is subjected to any psychological or emotional circumstances which are such that, as a matter of practical reality, the veteran could not reasonably be expected to take steps to obtain appropriate clinical management for a medical condition I see no reason why those circumstances are not capable of constituting a “condition of being unable” to obtain treatment.
25. With those tests in mind it is necessary to turn to the evidence that can be derived from the service medical records, in particular those relating to Mr Owens’ second period of service.[10] From those records I was referred to the occasions when Mr Owens’ reported alcohol consumption at medical attendances, as follows:
-25 January 1968: P& S… alcohol mod (clinical notes, p 6).
-Undated (Mr Owens recorded as 27 years old): Pers.…Alcohol Socially – bottle beer/wk (clinical notes, 29).
-Undated: Personal…Alcohol – social (clinical notes, p 50).
-12 November 1974: Personal…Alcohol – social (admission history, p 68).
-Undated (Mr Owens recorded as 28 years old): alcohol. moderate social (p 68).
-14 December 1976: alcohol. not excessive (p 133).
-26 September 1979: Denies heavy consistent alcohol abuse (in-patient records in reference to 6 year history of recurrent diarrhoea, p 166).
-28 September 1979: alcohol: 2-3/ x1/wk (specialist report, p 170).
[10] Exhibit R2.
26. From these accounts it could only be concluded that Mr Owens was regularly reporting a level of alcohol consumption which would not alert any doctor to the presence of a problem level of consumption that might require intervention. It is not the case, as Dr Likely erroneously suggested and as I have already pointed out, that Army medical personnel were aware of problem drinking, and failed to provide follow up treatment. I was invited to conclude that the record in the service medical records for an admission to examine Mr Owens’ history of recurrent diarrhoea should have been treated as possibly relating to alcohol abuse or dependence. However, it seemed to me (and I point out that there was no medical evidence directed to the content of these service medical records) extensive examinations were done at the time while Mr Owens was an inpatient, including of his liver function. Mr Owens was discharged having been prescribed Flagyl, with no particular abnormalities identified. Dr Rogers confirmed that Flagyl is a treatment prescribed for a protozoal infection and is not prescribed for treating alcohol conditions. I did not conclude that this was an instance of Mr Owens being unable to obtain appropriate clinical management of alcohol dependence.
27. It seems to me that to establish the requisite inability to obtain appropriate clinical management the serving member must feel unable to and/or be unable to seek it. That is not the evidence here. Mr Owens’ evidence was that he did not choose to seek any treatment, and indeed this remains his attitude. As he stated:
I did not think my drinking was a problem and I did not think about stopping[11]
[11] Exhibit A1, para 14.
28. During the second period of his service Mr Owens was living for much of the time off base and close to a capital city. He was living with his wife at home in a family setting and working shifts, two days on and two days off. Even had he felt any reluctance to seek treatment from the Army for any reason – and I note there was no evidence of any such reluctance on his part – he could have sought out a private doctor.
29. It is also important to bear in mind that Mr Owens had a break of some four years between his two periods of service. There was no evidence that he sought any treatment in that period or indeed in the 25 years since his last period of service ended. Mr Owens maintains that he has no problem that requires treatment and he told me that his current general practitioner has not recommended any treatment.
30. On the other hand the service medical records show that Mr Owens attended for medical treatment for a number of other conditions. Mr Owens did not suggest that that medical treatment was unavailable to him during his second period of service. He did not suggest that there was any reason, even unrelated to service, that might have prevented him accessing medical treatment.
31. For Mr Owens’ case to succeed it was necessary for the evidence to point to all elements of the factor of inability to obtain appropriate clinical management for alcohol dependence being present and being related to service. The evidence before me did not point to him having an inability to obtain appropriate clinical management so he does not satisfy a requirement of the Statement of Principle that provides the basis of a possible connection, on the balance of probabilities, with his defence service. Mr Owens claim to have his condition of alcohol dependence accepted as due to his defence service therefore fails.
32. It remains to note that his other claim before me, for gastro-oesophageal reflux disease, depended on the acceptance of his condition of alcohol dependence as being related to service. This not being established, that claim also fails.
DECISION
33. The Tribunal affirms the decision under review.
I certify that the preceding 33 paragraphs are the true copy of the reasons for the decision herein of Senior Member Ms M J Carstairs.
Signed: …………………………………
AssociateDates of Hearing 16 March 2007
Date of Decision 26 March 2007
Counsel for the Applicant Mr D Honchin
Solicitor for the Applicant Purcell Taylor Lawyers
Counsel for the Respondent Mr G Purcell
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