Paul Gerard Paprotny and Repatriation Commission - [2014] AATA 573

[2014] AATA 573

Division VETERANS' APPEALS DIVISION

File Number

2013/5585

Re

Paul Gerard Paprotny

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Deputy President K Bean
Lt Col R Ormston (Ret'd) (Member)

Date 18 August 2014

Place Adelaide
The Tribunal affirms the decision under review.

..............[Sgd]...................................................
Deputy President K Bean
CATCHWORDS
VETERANS' AFFAIRS – Veterans' entitlements – Operational service in Vietnam – Whether veteran suffers from PTSD – Whether veteran suffers from depressive disorder – Whether veteran suffers from alcohol use disorder – Whether alcohol use disorder war-caused – Deledio steps – Decision under review affirmed.
LEGISLATION
Veterans' Entitlements Act 1986 ss 6, 9, 13(1), 120, 120A
CASES
Bull v Repatriation Commission (2001) 66 ALD 271

Bushell v Repatriation Commission (1992) 175 CLR 408
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Bawden (2012) 206 FCR 296

McKerlie v Repatriation Commission (2010) 52 AAR 535
SECONDARY MATERIALS
Statement of Principles Instrument No. 1 of 2009 (as amended by No. 29 of 2014)

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed, Text Revision, Washington DC, 2000)

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, Washington DC, 2013)
REASONS FOR DECISION
Deputy President K Bean
Lt Col R Ormston (Ret'd) (Member)
18 August 2014

The applicant, Mr Paprotny, served in the Royal Australian Navy for 6½ years from January 1969 to May 1975. He deployed on operational service to Vietnam, between 16 March 1971 and 11 October 1971, aboard HMAS Brisbane.
In October 2010, Mr Paprotny lodged a claim for a disability pension, which the Repatriation Commission (the Commission) accepted in relation to sensorineural hearing loss, tinnitus and non-melanotic malignant neoplasm of the skin.
In April 2011, Mr Paprotny lodged a further claim for a disability pension for alcohol dependence and posttraumatic stress disorder (PTSD). The Commission addressed both of those conditions as well as a third condition of “depressive disorder”, and decided there was no incapacity to answer the claim for PTSD and that alcohol dependence and depressive disorder were not related to service. Mr Paprotny requested a review of the Commission’s decision. On 26 August 2013, the Veterans’ Review Board (the VRB) affirmed that decision.
On 1 November 2013, Mr Paprotny applied to this Tribunal for review of the decision of the Commission, as affirmed by the VRB, giving rise to these proceedings.
Before defining and addressing the issues arising from Mr Paprotny’s application, we will first outline the applicable legal framework.
LEGAL FRAMEWORK
Section 13(1) of the Veterans’ Entitlements Act 1986 (the VE Act) provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
Section 9 of the VE Act provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:
9 War-caused injuries or diseases
(1) Subject to this section and section 9A, for the purposes of this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] AATA 573
Decision Date

CaseChat Overview and Summary

In the case between Paul Gerard Paprotny and the Repatriation Commission, the dispute primarily concerns Mr Paprotny's claim for compensation for a diagnosed post-traumatic stress disorder (PTSD) and depressive disorder, which he attributes to his service in the Navy, particularly during operations off the coast of Vietnam. The case was heard and determined by the Veterans' Review Tribunal. The central legal issue before the Tribunal was whether Mr Paprotny's mental health conditions, specifically PTSD and depressive disorder, were caused by his war service. This required the Tribunal to carefully assess the medical evidence provided, the context of the traumatic events, and Mr Paprotny's personal accounts and recollections of those events.

The Tribunal considered two psychiatric assessments provided by Dr Black and Dr Atchison, who diagnosed Mr Paprotny with PTSD and alcohol dependence, and anxiety disorder (best characterised as PTSD) respectively. The Tribunal noted discrepancies in Mr Paprotny's recollections and statements to the psychiatrists, as well as the reliance on factually incorrect information by Dr Atchison in her diagnosis. The Tribunal found that Mr Paprotny's response to the critical incident did not meet the diagnostic criteria for PTSD under DSM-IV, and that the diagnostic criteria under DSM-5, which was not directly applied, might potentially favour Mr Paprotny more. Despite Dr Atchison's professional opinion, the Tribunal was not convinced of the accuracy of her diagnosis given the inconsistencies in Mr Paprotny's accounts and the lack of corroborative evidence.

Ultimately, the Tribunal decided that Mr Paprotny does not have PTSD or a depressive disorder, and that his condition of alcohol use disorder was not caused by his war service. The Tribunal affirmed the decision under review, rejecting Mr Paprotny's claims for compensation. This conclusion was based on the evidence presented, the discrepancies in Mr Paprotny's accounts, and the lack of a clear causal link between his claimed conditions and his war service. The Tribunal's decision is grounded in the assessment of the evidence and the application of the relevant diagnostic criteria.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Regardless of the man’s intention and the fact he was subsequently rescued without injury, Mr Paprotny contends that he genuinely thought the individual was attempting suicide or serious injury, either by drowning or being struck by the ship’s propellers. However, Mr Paprotny also acknowledged that in the days and weeks following this incident, he made no effort to discuss the incident further with his friend, who in the meantime had been moved to a separate work shift and mess area, because that “wasn’t the sort of thing you’d talk about”.The medical evidence Mr Paprotny was assessed initially by Dr Black, psychiatrist, in June 2011. Although Dr Black assessed Mr Paprotny as suffering PTSD and alcohol dependence (as well as major depression)[9], Mr Paprotny said in his evidence to the Tribunal that he “didn’t open up [to Dr Black]” and that he didn’t feel comfortable talking [to Dr Black].[9] Exhibit 1, T10/106. Mr Paprotny was subsequently assessed by Dr Atchison, psychiatrist, in May 2012, who assessed that Mr Paprotny “developed an Anxiety Disorder, best characterised as a Post Traumatic Stress Disorder, during his active service off Vietnam waters”, further concluding that “I would apportion 25% of his impairment to Post Traumatic Stress Disorder and 75% to his Alcohol Dependence”.[10][10] Exhibit 1, T11/122 and 125. Mr Crowe, who appeared as advocate for the Commission, accepted Mr Miller’s contention that Dr Atchison’s assessment seemed more comprehensive and relevant than Dr Black’s. However, Mr Crowe contended that Dr Atchison’s assessment was flawed because she had relied on several statements from Mr Paprotny that were factually incorrect. In particular, Mr Paprotny had told Dr Atchison that his ship (HMAS Brisbane) had been sent to relieve HMAS Hobart, which had been hit by “friendly fire” during its deployment, and that “he knew of a fellow Tasmanian friend who had been killed aboard the Hobart”.[11] The inference was that the attack on HMAS Hobart had occurred only a short time before his ship had deployed to Vietnam, and that he personally knew the Tasmanian killed. Mr Crowe pointed out that Dr Atchison appeared to have placed reliance on this inaccurate information in arriving at her diagnosis, stating:I also note that Mr Paprotny himself felt in danger during his service off Vietnamese waters, especially knowing that the ship that they had relieved, HMAS Hobart, had been hit by friendly fire.[12][11] Exhibit 1, T11/117.[12] Exhibit 1, T11/122. However, during his evidence, Mr Paprotny agreed that his recollection of certain events had blurred with the passage of time, and conceded that Brisbane had relieved Perth (not Hobart) and that his “Tasmanian friend” was Ordinary Seaman Butterworth, who had been killed aboard Hobart in June 1968, a year before Mr Paprotny joined the Navy. Neither Dr Black nor Dr Atchison was called as a witness. However, we should add that it is clear from her report that Dr Atchison’s diagnosis was based on the criteria in DSM-IV.[13] We also note that with respect to the attempted suicide event, Dr Atchison appears to have been under the impression that Mr Paprotny actually saw his friend jump over the side of the ship.[14][13] Exhibit 1, T11/115.[14] Exhibit 1, T11/118.Consideration

Decision

Reasons for decision

We have decided that Mr Paprotny does not have PTSD or a depressive disorder, and that his condition of alcohol use disorder is not war-caused. We are therefore obliged to affirm the decision under review.DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

Neither Dr Black nor Dr Atchison was called as a witness. However, we should add that it is clear from her report that Dr Atchison’s diagnosis was based on the criteria in DSM-IV.[13] We also note that with respect to the attempted suicide event, Dr Atchison appears to have been under the impression that Mr Paprotny actually saw his friend jump over the side of the ship.[14][13] Exhibit 1, T11/115.[14] Exhibit 1, T11/118.Consideration As to the applicable diagnostic criteria, given that Dr Atchison clearly made reference to DSM-IV in reaching her opinion, and we have not had the benefit of any medical evidence relating to the potential application of DSM-5, we consider the criteria in DSM-IV to be the most appropriate for us to apply in this case. However, as we have indicated above, given that DSM-5 is now in force, and is potentially more beneficial to Mr Paprotny, we also propose to have regard to the revised diagnostic criteria in DSM-5 before reaching a conclusion on this question.DSM-IV In applying the criteria in DSM-IV, we note that a critical element is the affected person’s response to the traumatic event. In her report, Dr Atchison says that Mr Paprotny “was completely stunned [and] didn’t know what to do” when his friend went overboard and that “he still wonders whether he could have done something to have helped”, implying both a sense of helplessness and remorse.[15] [15] Exhibit 1, T11/118. In his oral evidence to the Tribunal, however, Mr Paprotny stated that he only found out from others, many hours later, that his friend had survived. Although he said he was “numb” and “dumb founded” when he saw his friend in the water, he admitted that he had made no specific effort to ascertain the whereabouts or well-being of his friend afterwards, such as checking whether he was back in his bunk, which was located in the same mess area as Mr Paprotny’s, albeit on the opposite side of the ship. He further acknowledged that he had made no effort to discuss the incident with his friend afterwards as it “wasn’t the sort of thing you’d talk about.” While we are appreciative of that sentiment, particularly in a military environment, on the basis of the evidence before us, we do not consider that Mr Paprotny’s response to his friend’s apparent attempted suicide could be construed as invoking “intense fear, helplessness or horror”. Accordingly, we are not satisfied that Mr Paprotny meets the criteria contained in DSM-IV for a diagnosis of PTSD. We should add that we have given due consideration to the fact that Dr Atchison, being a qualified psychiatrist, made a diagnosis of PTSD. However, that diagnosis was made by reference to three events, two of which the applicant now accepts are not capable of supporting a diagnosis of PTSD. Further, by reference to the evidence before us, we are not satisfied that Dr Atchison had an accurate understanding of any of the three events, including the attempted suicide. Of course, it would have been helpful to have received oral evidence from Dr Atchison, which would have allowed us to clarify her opinion by reference to the evidence before us. On the state of the material before us, however, for the reasons we have given, we are not satisfied that Dr Atchison’s diagnosis of PTSD was accurate.DSM-5

Division	VETERANS' APPEALS DIVISION
File Number	2013/5585
Re	Paul Gerard Paprotny
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Deputy President K Bean Lt Col R Ormston (Ret'd) (Member)
Date	18 August 2014
Place	Adelaide