Pengelly and Repatriation Commission
[2005] AATA 1296
•23 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1296
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1671
VETERANS' APPEALS DIVISION ) Re RONALD PENGELLY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen;
Dr J D Campbell, MemberDate23 December 2005
PlaceSydney
Decision The decision under review is affirmed.
(Sgd) M D Allen
..............................................Presiding Member
CATCHWORDS
Veterans’ Entitlements – whether conditions of Post Traumatic Stress Disorder, Alcohol Abuse and Depressive Disorder are war-caused – operational service – Tribunal finds the Applicant has a pre-existing personality disorder which led to alcohol abuse and depressive disorder – decision under review affirmed.
Veterans’ Entitlements Act 1986, s 120, 120A
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Hancock (2003) 37 AAR 383
Benjamin v Repatriation Commission (2001) 70 ALD 622
REASONS FOR DECISION
Senior Member M D Allen
Dr J D Campbell, Member
1. By Application made 22 December 2004, Mr Ronald Pengelly (“the Applicant”) sought review of a decision of the Repatriation Commission (“the Respondent”) that the conditions described as “post traumatic stress disorder with alcohol abuse and depressive disorder” were not attributable to the Applicant’s operational service.
2. The Applicant had short periods of operational service as a crew member of HMAS Tobruk in the year 1959 when that vessel was serving with the Far-East Strategic Reserve. These periods of service were interspersed with periods of non-operational service and there is no liability pursuant to the Veterans’ Entitlements Act 1986 (“the VE Act”) for any injury or disease caused or contributed to by incidents occurring in these periods of non-operational service.
3. So far as any injury or disease caused or aggravated by any event or events within the periods of operational service, ss 120(1) and (3) of the VE Act provide that any injury or disease suffered by a veteran and claimed to be war-caused, shall be accepted as being so caused unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal will be deemed to be so satisfied if, after a consideration of the whole of the material before it, the Tribunal is of the opinion that the said material does not raise a reasonable hypothesis connecting the disease suffered by the Applicant with the circumstances of the service rendered by him. Pursuant to s 120A of the VE Act, a hypothesis will not be a “reasonable hypothesis” unless it conforms to a so-called Statement of Principles (“SoP”) issued by the Repatriation Medical Authority.
4. Subsection 120(6) of the VE Act provides that neither party to this review bears any onus of proof.
5. The manner in which the Tribunal must approach its task where an SoP exists was set forth by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193. The so-called Deledio principles are now so well known as not to require recapitulation here.
6. Notwithstanding the manner in which the Tribunal is required to approach its task as outlined above, the first step is to ascertain the specific injuries or diseases suffered by the Applicant: see Repatriation Commission v Hancock (2003) 37 AAR 383. In making this finding the standard of proof is that of to Tribunal’s “reasonable satisfaction” and in which the SoP regime established by s 196B of the VE Act has no part to play: see Benjamin v Repatriation Commission (2001) 70 ALD 622.
7. Dr Graham Altman, Consultant Psychiatrist, is the Applicant’s treating psychiatrist. In a report dated 28 March 2003, he opined that the Applicant suffered from a post traumatic stress disorder (“PTSD”) with associated major depression and alcohol dependence (Tribunal’s emphasis).
8. The event relied upon by Dr Altman for this diagnosis is an incident where a torpedo being launched from HMAS Tobruk was fired with the torpedo tubes in an incorrect position with the result that the torpedo pierced several decks of HMAS Tobruk. The Applicant at that time was in the Sailor’s Mess and the torpedo came to rest protruding into the Mess. This frightened the Applicant as he thought it would “go off” and he rushed to an escape hatch only to find that the vessel was still underway and if he had gone out through the escape hatch he would have been “chewed up” by the ship’s propellers. It was some time before he could be released from the Mess deck.
9. In his report, Dr Altman refers to another incident when a Pakistani and an Indian destroyer collided. We are satisfied that the Applicant did not witness this incident.
10. Dr Robert Delaforce, Psychiatrist, whom the Applicant consulted at the request of the Respondent, opined that the Applicant suffered from the following mental disorders, namely:
(a)Alcohol dependence, with physiological dependence;
(b)Post traumatic stress disorder;
(c)Major depressive disorder;
(d)Panic disorder with agoraphobia; and
(e)Social phobia
11. In contrast, Dr Anthony Dinnen, Consultant Psychiatrist, who examined the Applicant on 26 April 2005, opined that the Applicant did not suffer from a PTSD, but had a long-standing personality disorder associated with alcohol abuse/dependence.
12. In evaluating the above opinions, regard must be had to the evidence of the Applicant.
13. We have referred above when discussing Dr Altman’s report, to the torpedo incident. The Applicant confirmed that account in evidence and stated that he was “a bit terrified” at the time. He was released from the Mess deck after one and a half hours. A factor that was obvious during the Applicant’s evidence was that he is still very upset by the apparent fact that upon being released and brought up on deck, other sailors laughed at him and later he became the butt of jokes.
14. Following the torpedo incident, the Applicant felt relieved that he could see the sea and was not closed in. After that time, whenever the weather permitted, he slept up on deck. He was “terrified” below deck and this fact began to affect his work.
15. So far as drinking alcohol is concerned, the Applicant said that although he began to drink when he joined the Navy, his drinking increased after the torpedo incident. He did not make friends aboard HMAS Tobruk and used to go ashore alone and drink. He continued to drink heavily during the rest of his naval service and after leaving the Navy.
16. Dr Delaforce took a history of the Applicant seeking to change his naval trade from that of a cook to a seaman after the torpedo incident. The Applicant told us that this was because seamen were up on deck all the time. He also referred to having nightmares of being closed in after the torpedo incident.
17. Dr Dinnen took a comprehensive history from the Applicant especially regarding his family and upbringing. While he stated that he was “sympathetic” to a diagnosis of PTSD, he considered that the only diagnosis satisfying the SoP’s was that of alcohol abuse/dependence.
18. Unfortunately, Dr Dinnen was not called by either party. Where Dr Dinnen refers to a diagnosis satisfying the SoP’s, he is unfortunately reversing the principles discussed in Benjamin (supra) namely, that diagnosis in the first instance must be made without reference to the SoP’s.
19. In his report of 9 June 2005, Dr Dinnen notes that Dr Delaforce obtained an account of events consistent with that which he obtained. In particular, he noted that the Applicant had reported difficulty sleeping after the torpedo incident, which he overcame by excessive use of alcohol.
20. A factor which has not been addressed is that the Applicant after discharge from the Navy, worked underground at Mt Isa Mines for some 15 years. To our mind, this is totally inconsistent with his evidence of feeling claustrophobic ever since the torpedo incident. Apparently, the Applicant only ceased his employment with Mt Isa Mines after an industrial accident and management’s decision to transfer him to aboveground duties.
21. It would have been very helpful to the Tribunal if the Respondent in this matter, having been aware of the Applicant’s history of work as an underground miner once it had Dr Delaforce’s report, to have sought from Mt Isa Mines the Applicant’s employment records and in particular, any medical reports following any worker’s compensation claims.
22. To us the employment of the Applicant as an underground miner mitigates against the diagnosis of PTSD as every day he would have been forced into circumstances that replicated the traumatic event, namely of being in enclosed places. In addition, we have noted that a major complaint by the Applicant both to this Tribunal and to Drs Dinnen and Delaforce was that following the torpedo incident other seaman had laughed at him.
23. When examining the Applicant’s post-service life, what is clear is that he has been a very heavy abuser of alcohol and has failed in his personal relationships. He concedes that at present, he has problems trying to remember places, names and dates and indeed before the Tribunal, he could not remember the name of the mother of two of his children.
24. We have referred above to the comprehensive pre-service history taken by Dr Dinnen. That doctor also noted the diagnosis of “alcoholism” made at Balmoral Naval Hospital prior to service aboard HMAS Tobruk by the Applicant. We are therefore more convinced by Dr Dinnen’s opinion that the Applicant does not suffer a PTSD, but instead is suffering from a long-standing personality disorder associated with alcohol abuse/dependence.
25. The Applicant also suffers from a depressive disorder. Dr Dinnen dates the onset of this condition from about 1962, as a consequence of his alcohol abuse. Dr Delaforce also places the onset of the depressive disorder in 1962.
26. The Applicant’s evidence was that he began to drink heavily after the torpedo incident. He also suffered further trauma when, as a member of a gun crew, he was locked in a gun turret for extended periods while firing on shore positions during periods of operational service. His evidence was that he found this experience terrifying.
27. He added that being in the gun turret was a terrible experience for him. He was terrified before he went in and stressed most of the time he was in the turret.
28. Reference was made in the reports of Drs Altman and Delaforce to a collision between two naval vessels; one Indian and one Pakistani. The Applicant’s evidence to the Tribunal was that that incident occurred at night, he did not see and he was not concerned for his own safety.
29. The Applicant’s evidence to the Tribunal regarding the above incident is in contrast to the history obtained by Dr Altman. In his report of 28 March 2003, Dr Altman records the Applicant as stating:
I saw a Pakistani destroyer go head on into an Indian cruiser and it just missed our ship. I felt frightened … it was really traumatic.
30. In Dr Altman’s report of 28 March 2003, no mention is made of the Applicant being traumatised by being in a gun turret during firing. That history only appears in a later report dated 19 February 2004 after the Applicant had received the initial decision from the Respondent, which decision had pointed out that the torpedo incident had occurred during a period of non-operational service.
31. That the Applicant was well aware of the rejection of his claim due to the occurrence happening during non-operational service is made clear by the report of Dr Delaforce. In that report Dr Delaforce states at page 9:
However, he reportedly will rely upon a claim that the Post Traumatic Stress Disorder was aggravated by his subsequent operational service. Nevertheless he does not provide details of any other stressful incident in service other than the incident with the 2 ships in August 1959 although he generally had continued difficulty with his naval work since the torpedo incident that resulted in his attempts to change from cook and baker work to a seaman. There are no details presented of what would represent his subsequent “experiencing a sever stressor” during an operational period of service that would aggravate his Post Traumatic Stress Disorder or Alcohol Abuse.
32. Dr Delaforce continued:
He also plans to contend that at the time of the torpedo incident he was travelling to work in the operational period that began 5 days after the incident and accepts that will be decided by legal argument alone …
33. The Applicant’s naval service came to a premature end in 1961 when he was discharged “services no longer required”. Documents extracted from the Applicant’s service file reveal that at that time he had become a disciplinary problem. The Applicant states that after the torpedo incident he became argumentative with the officers.
34. During his evidence in chief, the Applicant said that when he was released from the Mess deck after the torpedo incident “the blokes just laughed at me” adding later, “some of the seamen laughing at me as I came up from below, that was the worst thing”. When cross examined he stated that what continues with him is the humiliation, adding that his shipmates kept making remarks to him about the incident and “not only that, they kept it up but it was not a joke to me” adding later in cross examination that part of his problem was the way the crew treated him.
35. The distinct impression from the above evidence is that the Applicant was not so much traumatised by the torpedo incident as deeply disturbed by a situation whereby he became the butt of jokes and subject to ridicule.
36. This scenario fits well with the opinion of Dr Dinnen that the Applicant had a pre-existing personality disorder, which because of events on service, led to alcohol abuse/dependence. As Dr Dinnen stated in his report of 9 June 2005:
… I believe the patient had a personality disorder when he entered the Navy, although it was not evident at the time, that he had a vulnerability to respond to stressful events in the way he did …
37. Dr Dinnen, in an earlier report dated 3 May 2005, had said:
I believe his personality disorder was consequent to early life experiences, and that the problems which it caused were aggravated during his period of service in the Navy where he was required to accept discipline and instructions, foreign to his nature. I believe the incidents he describes and his period of active service did in fact worsen his psychological vulnerability and maladjustment leading to insubordination and alcohol abuse, which was the reason it would seem for his discharge from the Navy. That pathological adjustment to life has continued through the years, in keeping with the account of the patient’s life history provided above. The personality disorder was a pre-existing condition and was not caused by his service. The only relevant diagnosis to service is that of alcohol abuse/dependence, which probably was a consequence of internalised anxiety and stress consequent to various operational experiences as described and also perhaps other experiences which may not have been revealed.
38. The material before the Tribunal has raised a hypothesis that events during the Applicant’s operational service operated upon a pre-existing personality disorder which in turn led to alcohol abuse/dependence.
39. Instrument Number 76 of 1998 is the SoP regarding alcohol dependence or alcohol abuse. This SoP was in force at the time of the original determination of the Applicant’s claim.
40. The factors which at a minimum must exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse with service are set out in paragraph 5 of the Instrument Number 76 of 1998 and read inter alia:
(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b)experiencing a severe stressor within the 2 years immediately before the clinical onset of alcohol dependence or alcohol abuse
41. Other factors relate to aggravation of the disease and there is no suggestion that the Applicant’s alcohol abuse/dependence existed prior to service notwithstanding the diagnosis of alcoholism prior to service aboard HMAS Tobruk.
42. Paragraph 8 of Instrument Number 76 of 1998 defines “experiencing a severe stressor” as:
… means the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i)threat of serious injury or death; or
(ii)engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence.
43. We are satisfied beyond reasonable doubt that the Applicant did not experience a severe stressor as a result of the torpedo incident.
44. What we are satisfied of is that the Applicant did experience a stressor due to the torpedo incident, but we are satisfied beyond reasonable doubt that his major reaction to that was not one of intense fear, helplessness or horror, but rather of humiliation and later, resentment of the continual reminders of it handed out by his shipmates. As he said to Dr Altman:
Everyone thought I was a ‘woos’ (sic). They just laughed at it … I feel ashamed and embarrassed … .
45. The torpedo incident occurred during a period of non-operational service.
46. We are satisfied beyond reasonable doubt that the Applicant did not experience a severe stressor as a result of the collision between the Indian and Pakistani naval vessels and in any event, that incident was also outside any period of operational service.
47. So far as the Applicant’s feeling whilst being in a gun turret as a gun number during firing, we are satisfied beyond reasonable doubt that the Applicant has exaggerated the effects of this after becoming aware that the torpedo and collision incidents did not occur during periods of operational service.
48. It is regrettable that the Repatriation Commission did not see fit to challenge the Applicant’s evidence as to his periods in the gun turret. We note that the Applicant stated to the Veterans’ Review Board that he had been locked in the gun turret for up to three days and sometimes up to a week. If this is to be accepted literally, we just do not believe the Applicant.
49. In any event, the presence of the Applicant in the gun turret does not amount to a severe stressor. The Applicant may state that he was terrified, however it did not involve the threat of death or serious injury to the Applicant.
50. The ship was firing on land-based targets and although in action, there was no retaliation against HMAS Tobruk. It was a ship-to-shore bombardment with no retaliatory action.
51. We do not accept that the Applicant would have been permitted to act as a gun number during a period of engagement with the enemy or even while training without proper instruction as to his duties in the gun turret.
52. It is entirely consistent with Dr Dinnen’s reports and his opinion that the torpedo incident and its result of the Applicant becoming the butt of jokes played upon the Applicant’s pre-existing personality disorder and alcoholism developed. As a result of alcohol abuse/dependence, a depressive disorder developed in or about 1962. As the initiating events of these conditions did not occur on operational service, except to the extent that part of his naval service encompassed operational service which we are satisfied beyond reasonable doubt occurred without incident, we are satisfied to the appropriate standard that the Applicant’s alcohol abuse, dependence and depressive disorder are not war-caused diseases and the decision under review is affirmed.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen; Dr J D Campbell, Member
Signed: (E.Pope)
AssociateDate of Decision 23 December 2005
Counsel for the Applicant Mr N Dawson
Solicitor for the Applicant KCI Lawyers
Advocate for the Respondent Mr A Crowe, Department of Veterans’ Affairs
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