Palmer and Repatriation Commission
[2004] AATA 1076
•15 October 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1076
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/638
VETERANS' APPEALS DIVISION )
Re GREGORY PALMER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms MJ Carstairs, Member Date15 October 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...................[Sgd]...........................
MJ Carstairs
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – depressive disorder – whether disease connected to operational service – whether veteran suffered a severe psychosocial stressor – definition of “severe psychosocial stressor” – requirement that there be an “identifiable occurrence” – applicant cannot point to an identifiable occurrence – no reasonable hypothesis - does not fit within the template of the SoP – decision affirmed
Veterans' Entitlements Act 1986 ss 9, 120, 120A
Stoddart v Repatriation Commission [2003] FCA 334
Repatriation Commission v Stoddart [2003] FCAFC 300
White v Repatriation Commission [2004] FCA 633
Repatriation Commission v Hill [2002] FCAFC 192
Re Stonehouse and Repatriation Commission [2004] AATA 707
Repatriation Commission v Deledio (1998) 83 FCR 82REASONS FOR DECISION
15 October 2004 Ms MJ Carstairs, Member 1. This is an application by Gregory Palmer (the applicant) for review of a decision made by the Veterans’ Review Board (the VRB) on 15 May 2003 affirming a decision of the Repatriation Commission (the respondent), to reject the applicant’s claim that his depressive disorder was related to his service in the Royal Australian Navy (the RAN) .
2. At the hearing the applicant was represented by Ms B Carter-Nicoll instructed by Sciaccas Lawyers. Mr G Kelly, a departmental advocate, represented the respondent.
3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (number T1-T6) as well as exhibits marked A1-A5 for the applicant and R1-R4 for the respondent.
BACKGROUND
4. The applicant is aged fifty-nine. His service with the RAN, from 1 July 1963 until 1 July 1984, included the following periods of operational service under the Veterans’ Entitlements Act 1986 (the Act):
§with the Far East Strategic Reserve (FESR) from 27 October 1964 to 16 May 1965 and from 4 January 1966 to 22 August 1966 (HMAS Derwent)
§in South Vietnam from 12 September 1969 to 3 May 1971 (HMAS Vendetta) (T4).
5. The applicant operated the searchlight to illuminate suspect boats prior to boarding by naval servicemen when HMAS Derwent, was engaged in patrolling the waters in the Malacca and Singapore Straits.
6. The applicant also has eligible defence service from 7 December 1972 until his discharge from the RAN, which attracts a different standard of proof from that which applies to his operational service. He does not rely on his period of eligible defence service in this application.
7. The applicant has had the medical conditions of internal derangement of the right knee, left acromio clavicular joint subluxation and bilateral tinnitus accepted as attributable to his service. The respondent also has accepted depressive disorder for treatment purposes only under certain other provisions of the Act, not here relevant. The applicant lodged the present claim, dated 9 August 2002 to have depressive disorder attributed to service, so that he may be paid disability pension under the Act.
8. The applicant sought review with this Tribunal on 29 July 2003, his claim having been rejected by the respondent’s delegate and by the VRB.
EVIDENCE
9. The applicant prepared an undated written statement (exhibit A1) in which he described his duties as signalman, which included sending visual signals and operating searchlights as described above. In oral and written evidence he said that he recalled at least three occasions during his service with the FESR that he had been engaged operating the searchlight while fishing boats were boarded (the searchlight incidents). He said that he had learned at the time that a signalman on HMAS Teal had attracted automatic weapon fire when a suspect boat was approached and that this knowledge increased his level of fear.
10. The applicant described his service in Vietnam aboard HMAS Vendetta and said that he was fearful that HMAS Vendetta was a target in Da Nang Harbour (the Da Nang harbour incident). He said that the ship constantly took precautions against mines and suspicious underwater activity including swimmers who might place mines. He said his Vietnam service was a stressful time and he heard gunfire on one occasion when he assumed the ship was under attack. He described in detail (exhibit A2) that he could see the war going on around him at not a great distance, tracer bullets at night and helicopters engaging targets.
11. After his service with the FESR the applicant was posted to Canberra. He said he enjoyed an active social life in Canberra though it was his heaviest period of drinking. He said that he met his wife while in Canberra and he described her as a calming influence, and said that before meeting her he was an angry young man who did not care much about life. He said his period of service in Singapore where his two children were born was enjoyable.
12. Mrs S Palmer, the applicant’s wife prepared a written statement (exhibit A3) and gave oral evidence. She said that she was serving with the RAN and met the applicant in 1967 shortly after his return from his FESR service. They married in 1969, and Mrs Palmer said that before their marriage they socialised actively within their work group. She recalled that, at that time, her husband was disciplined for offences related to alcohol, that he was prone to mood swings and drunkenness, and that there were periods when he seemed to be depressed.
13. Mrs Palmer said that the applicant’s father died shortly before the period of his Vietnam service. Mrs Palmer said that her husband had been badly affected by his father’s death and the refusal by the RAN to allow him to attend the funeral. She said that when he returned from Vietnam he was moody, and a loner who was drinking too much.
14. In oral evidence Mrs Palmer also said that her husband had not been happy for about ten years.
15. In a report dated 20 February 2001 (T4 p45), Dr Janis Carter, consultant psychiatrist, diagnosed the applicant as suffering a depressive disorder (dysthymia) type which she said seems to have its origin in his operational service, both in Borneo and Vietnam. Dr Carter referred to the applicant’s duties as a signalman and his constant state of apprehension while carrying out his duties. Dr Carter referred also to the applicant’s substance abuse of cigarettes and alcohol, which she said commenced during his service and continued throughout his life.
16. In her second report dated 18 June 2001 (T4 p50-52), Dr Carter responded to a request from the respondent that she detail the incidents which she considered to be stressors. She referred to the following:
§the searchlight incidents;
§an incident in Singapore where he was spat upon by a group of Chinese men, whom he thought might be infiltrators;
§witnessing a friend being stabbed by another sailor (this not occurring during operational service);
§coastal patrols in Vietnam, including intercepting small boats;
§a sentry opening fire on a suspected swimmer approaching the ship; and
§the Da Nang Harbour incident.
17. In a report dated 27 September 2002 (T4 p68), Dr I Holm, psychiatrist, diagnosed the applicant as suffering from a chronic depressive disorder, as well as alcohol abuse and dependence. He considered that the applicant experienced a severe psychosocial stressor within two years of the clinical onset of the depressive disorder, citing operating search lights in the Malacca and Singapore Straits and the operations in Vietnam including possible threats to the ship in Da Nang Harbour as the stressors.
18. In a report dated 10 August 2004 (exhibit A4), Dr Holm stated that the applicant told him that he recalled being depressed and drinking heavily when he was stationed in Sydney after serving with FESR. Dr Holm said that the applicant described fluctuating symptoms of depression until he eventually sought treatment from Dr Carter in 2000.
19. In oral evidence Dr Holm confirmed that he considered that the depressive condition was manifest while the applicant was stationed in Canberra after serving in the FESR. He acknowledged under cross examination that such a diagnosis was at odds with the applicants statements regarding his social life during their period in Canberra and successfully achieving promotions, but Dr Holm pointed out that depressive symptoms are not totally disabling. Dr Holm agreed that the applicant’s current health problems have contributed to his depression.
20. In a report dated 9 January 2004 (exhibit R1), Dr W Kingswell, consultant psychiatrist, diagnosed the applicant as suffering dysthymic disorder. Dr Kingswell said that the applicant abused alcohol in the past but this was in remission. He stated that the applicant dated the clinical onset of his depressive symptoms to soon after his return from the FESR when he was living in Sydney and experienced depression, sleep disturbance, little social involvement and alcohol abuse. However in a report dated 16 March 2004, Dr Kingswell clarified this:
Mr Palmer gave a history of stable health during the years spent in Canberra late 1966 to late 1968. He said it was during this period that he met his wife and was quite socially active. It is unlikely from Mr Palmer’s account that he was suffering from a clinically significant depressive illness at this time.
Mr Palmer recalled a depressive illness experienced in Sydney when he had two young children. This dated the onset of the disorder to be around 1974 or later…
21. In oral evidence Dr Kingswell said that his notes were clear that the applicant had told him that he experienced depressive symptoms when he was in Sydney in 1974.
CONSIDERATION OF THE ISSUES
22. The parties agreed that the applicant suffers from a depressive disorder, namely dysthymia. Dysthymia which is included in the definition of depressive disorder in paragraph 2(b) of the Statement of Principles (SoP) for depressive disorder, Instrument No 58 of 1998. Dr Carter, Dr Holms and Dr Kingswell were in agreement on this and the Tribunal was satisfied taking into account the weight of the medical evidence that the diagnosis is established.
23. The issue in dispute is whether the applicant’s dysthymic disorder is related to his service, limited to his operational service, as referred to in s9 of the Act. Section 9 prescribes the circumstances in which a veteran’s disease or injury shall be taken to be war‑caused. In particular the applicant’s matter raises the operation of s9(1)(a) and (b) of the Act:
9(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran…
24. The Tribunal must determine that the disease or condition was war‑caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination (s120(1)). Section 120(3) is affected by s120A, applying to claims for pension made after 1 June 1994 where a veteran has rendered operational service. The operation of s120A depends upon whether there is in force a SoP determined under s196B of the Act in respect of the kind of disease contracted by the applicant. Section 120A(3) provides that, for the purposes of s120(3), an hypothesis connecting a disease contracted by a person with the circumstances of any particular service rendered by the person is to be regarded as reasonable only if there is in force a SoP that upholds the hypothesis.
25. In Repatriation Commission v Deledio (1998) 83 FCR 82 at 97, the Full Federal Court summarised the steps to be taken by the Tribunal in applying the legislative provisions and deciding whether a disease or injury is war-caused:
1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war‑caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
26. The hypotheses raised by the applicant were:
§that during his FESR service in HMAS Derwent, when he operated the searchlight he was conscious that a search light operator on another ship had attracted weapon fire and that he was potentially a target. When operating the searchlight he was extremely stressed and feared for his life and that within a short time he had developed a depressive disorder.
§that during his service in Vietnam when HMAS Vendetta was in Da Nang Harbour, the ship was an easy target, and the applicant experienced stressors including when he assumed they were under attack. In her written submission, Ms Carter-Nicoll said that part of the hypothesis was that the applicant’s depressive condition, which arose as a result of his FESR service, was worsened by his Vietnam service.
27. These hypotheses reflected factor 5(b) in the SoP for depressive disorder which provides as a factor raising a reasonable hypothesis of connection between depressive disorder and relevant service (s120(3) of the Act), experiencing a severe psychosocial stressor within the two years before the clinical onset of depressive disorder. Ms Carter-Nicoll’s submission in regard to the applicant’s Vietnam service appears to refer to factor 5(f) which refers to experiencing a severe psychosocial stressor within the two years immediately before the clinical worsening of depressive disorder. Severe psychosocial stressor is defined in the SoP in the following terms:
“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems…
28. The parties referred the Tribunal to Federal Court and Tribunal authorities that provide the interpretation of the test for severe psychosocial stressor:Stoddart v Repatriation Commission [2003] FCA 334, Repatriation Commission v Stoddart [2003] FCAFC 300, White v Repatriation Commission [2004] FCA 633 and Re Stonehouse and Repatriation Commission [2004] AATA 707.
29. Mr Kelly submitted that the applicant’s claim could not succeed because the incidents relied upon did not satisfy the requirement of being severe psychosocial stressors and because the evidence did not point to the onset of the condition being within two years of the applicant’s operational service. Mr Kelly submitted that nothing happened during the incidents so that there were no identifiable occurrences to come within the terms of the definition. He said that when all the evidence is taken into account, nothing pointed to the applicant having emotional or psychiatric problems within the necessary time frame. He submitted that the applicant had lengthy service with the RAN, was promoted and enjoyed a successful career in the navy.
30. Mr Kelly submitted that personal factors including his father’s death about the time the applicant was posted to Vietnam, and his more recent significant health problems were a more likely cause of the applicant’s dysthymia.
31. The Tribunal takes into account Ms Carter-Nicoll’s written and oral submissions. She said the case law supports the proposition that the definition of severe psychosocial stressor concerns an occurrence that objectively is an occurrence that by its nature may evoke feelings of substantial distress in a person exposed to that occurrence and which subjectively evokes those feelings in the particular person: White. She submitted that the incidents relied upon met the requirements of factor 5(b) of the SoP.
32. After consideration of all evidence the Tribunal accepts that the raised facts point to hypotheses connecting the applicant depressive disorder with the circumstances of his service. The Tribunal must then consider whether the hypotheses are consistent with any of the factors set out in the SoP. If so then the hypotheses are deemed to be reasonable.
33. The meaning of experiencing a severe psychosocial stressor was considered in White v Repatriation Commission [2004] FCA 633. The Court said:
On the conclusion by the Tribunal as to the absence of a "severe psychosocial stressor",…the concept of "experiencing" a "severe psychosocial stressor" in the SoP embodies both objective and subjective elements.
The reference to "an identifiable occurrence" is objective. The examples given in the definition are of the kinds of "identifiable occurrence" that are contemplated.
The reference to "experiencing" a severe psychosocial stressor has a subjective element: see, for example, Stoddart v Repatriation Commission (2003) 197 ALR 283 at 292 per Mansfield J, in relation to the phrase "experiencing a severe stressor" in the SoP concerning post traumatic stress disorder (affirmed on appeal in Repatriation Commission v Stoddart (2003) 38 AAR 176). An identifiable occurrence "that evokes feelings of substantial distress in an individual" also has a subjective element: see Woodward v Repatriation Commission (2003) 200 ALR 332 at 352 per Black CJ, Weinberg and Selway JJ, in relation to the phrase "experiencing a severe stressor".
In my judgment, the definition of severe psychosocial stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned. Both aspects are relevant and necessary.
34. In respect of the incidents during the applicant’s FESR service, the Tribunal accepts the submission that the Tribunal should take into account what actually happened in the course of the applicant operating the light when considering whether there was an identifiable occurrence. The Tribunal takes into account that the applicant was concerned and anxious while undertaking his duties, however his knowledge that someone else in similar situation on another ship had been shot at, does not of itself raise his general feeling of anxiety in the course of manning the searchlight, when nothing untoward occurred on any of those three occasions, to an identifiable occurrence as contemplated by the SoP.
35. In the circumstances of operational service there is increased potential for servicemen to be in danger. The definition in the SoP, however, requires something more than a general foreboding without an occurrence that is experienced by the person. As pointed out by the Federal Court in White the requirement for an occurrence is an objective one. The examples provided in the definition of severe psychosocial stressor in the SoP provide for the kinds of occurrences against which other occurrences can be measured to see if they are similar, and might also come within the definition. The searchlight incidents do not do so.
36. The same applies to the concerns that the applicant had about being a potential target while in Da Nang Harbour. The Tribunal accepts that the applicant found that being exposed in Da Nang Harbour in war-time was a stressful and frightening time for him. However as pointed out in White, there are two limbs to experiencing a severe psychosocial stressor, the objective element being the identifiable occurrence and the subjective experience of distress.
37. Neither the incidents during service in the FESR nor the incident relied upon in the applicant’s Vietnam service meets the definition of severe psychosocial stressor. In respect of the third step set out by the Federal Court in Deledio, for a hypothesis to be reasonable where a SoP applies, it is necessary that the material raising the hypothesis contain all the elements prescribed by the SoP: Repatriation Commission v Hill [2002] FCAFC 192. In relation to factor 5(b) and 5(f) of SoP Nº 58 of 1998 as raised in this case it is necessary that the evidence points to incidents that meet the definition of severe psychosocial stressor. For the reasons given, the evidence in this case does not point to the factors being met and the claim therefore must fail.
DECISION
38. The Tribunal affirms the decision under review.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Ms MJ Carstairs, Member
Signed: Sarah Oliver
AssociateDate of Hearing 25 August 2004
Date of Decision 15 October 2004
Counsel for the Applicant Ms Carter-Nicoll
Solicitor for the Applicant Sciaccas Lawyers
For the Respondent Mr Kelly, Departmental Advocate
0
8
0