PETER THOMAS and REPATRIATION COMMISSION
[2009] AATA 276
•24 April 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 276
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/4200
VETERANS' APPEALS DIVISION ) Re PETER THOMAS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr R G Kenny, Member Date24 April 2009
PlaceBrisbane
Decision The Tribunal affirms the decisions under review.
............[Sgd]................................
Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – operational service with Royal Australian Navy – application of Statements of Principles – appropriate diagnosis of psychiatric conditions – no factual basis for diagnosis of posttraumatic stress disorder – posttraumatic stress disorder not war-caused - diagnosis of anxiety disorder and depressive disorder – clinical onset of anxiety disorder, depressive disorder and alcohol dependence – no reasonable hypothesis of relevant relationship to service raised for depressive disorder – depressive disorder not war-caused - reasonable hypothesis of relevant relationship to service raised for anxiety disorder – satisfied beyond reasonable doubt that anxiety disorder not attributable to eligible war-service – anxiety disorder nor war-caused - decisions under review affirmed
Veterans’ Entitlements Act 1986 ss 6C, 7, 9, 14, 120, 120A
Administrative Appeals Tribunal Act 1975 s 42C
Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363
Repatriation Commission v Keeley (2000) 60 ALD 401; [2000] FCA 532
Repatriation Commission v Gorton (2001) 65 ALD 609
Drew v Repatriation Commission [2008] FCA 537
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144
White v Repatriation Commission [2004] FCR 633
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750REASONS FOR DECISION
24 April 2009 Mr R G Kenny, Member Background
1. Peter Thomas served with the Royal Australian Navy (“the RAN”) from 3 January 1967 until 2 January 1987. On 2 November 2005, he lodged with the Repatriation Commission (“the respondent”), in accordance with s 14 of the Veterans’ Entitlements Act 1986 (“the Act”), a claim for a disability pension for “posttraumatic stress disorder, anxiety, depression, alcohol abuse and alcohol dependence” which he contended were related to his RAN service.
2. On 17 October 2006, the respondent determined that the appropriate medical diagnoses for the claimed conditions were anxiety disorder, depressive disorder and alcohol abuse. It also determined that those conditions were not related to Mr Thomas’ service. On 10 June 2008, the Veterans’ Review Board (“the Board”) affirmed the decision in relation to anxiety disorder, depressive disorder and alcohol abuse on the basis that these conditions were not related to Mr Thomas’ service. The Board also affirmed the decision in relation to posttraumatic stress disorder on the basis that one of the relevant diagnostic criteria for that condition was not met.
Issues and Service
3. Initially, the matters for determination were all of the conditions dealt with by the Board. However, the parties reached agreement in relation to alcohol abuse and an order was made in relation to that condition in accordance with ss 42C(1) and 42C(3) of the Administrative Appeals Tribunal Act 1975. Accordingly, the conditions still to be considered are anxiety disorder, depressive disorder and posttraumatic stress disorder.
4. Mr Thomas completed defence service in accordance with s 69 of the Act from 7 December 1972 until his discharge. No contentions have been raised in relation to that period and I am satisfied that none of his claimed conditions are related to defence service. Mr Thomas also completed periods of eligible war service in the form of operational service as provided for in s 7 and s 6C of the Act, respectively, from 16 March 1970 until 9 October 1970. This included periods off the coast of South Vietnam on HMAS Hobart (“the Hobart”). Under s 9(1)(b) of the Act, a condition will be war-caused if it arose out of, or was attributable to, any eligible war service rendered.
5. The standard of proof for determining diagnostic matters under the Act is provided for in s 120(4) thereof. This requires that such matters be determined on the balance of probabilities[1]. For issues of causation for operational service, the standard of proof is set out in s 120(1) of the Act which reads:
“Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.”
[1] Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373
6. The application of that provision is affected by the terms of s 120(3) and s 120A of the Act which require that consideration be given to any relevant Statements of Principles that have been published by the Repatriation Medical Authority (RMA). Where a Statement of Principles has been repealed and replaced by another, the matter is to be considered, initially, under the later Instrument but, in the event that its requirements are not met, it is then to be considered under a repealed Instrument which was in force at the date of the primary decision[2]. In that way, an applicant gains the benefit of the more favourable criteria being applied.
[2] Repatriation Commission v Keeley (2000) 60 ALD 401 at 415, 422; Repatriation Commission v Gorton (2001) 65 ALD 609 at 620, 625.
Submissions
7. Ms Smith, for Mr Thomas, submitted that the three claimed conditions had their genesis in an incident which occurred on 24 April 1970 while Mr Thomas was serving on the Hobart after it collided with a Vietnamese fishing-boat. The crew of the fishing-boat was thrown into the ocean. Mr Thomas was a crew member of the motor-whaler which was lowered from the Hobart to collect survivors and debris from the fishing-boat. Mr Williams accepted that an incident had occurred but submitted that it was not severe enough to have resulted in the claimed conditions.
Evidence
Mr Thomas
8. The version of the incident given at the hearing by Mr Thomas was that, for him, it commenced when the “man overboard” signal was piped on the Hobart. He was not on duty at the time and quickly moved to his special duty position at the motor-whaler on which he was responsible for maintaining communications with the Hobart. The Hobart came to a stop before the motor-whaler was lowered with instructions to its crew to look for survivors. There was a heavy fog in the area and, when the motor-whaler was at its most distant point from the Hobart, around 300 to 400 yards, it appeared only as a silhouette. The motor-whaler crew members were unarmed and were not wearing any protective clothing such as flak jackets. They located an old man in the water about 200 yards from the Hobart and pulled him into the motor-whaler. He had been floating limply in the water and Mr Thomas thought he may have been badly injured. After about 20 minutes, the motor-whaler was instructed by radio to return to the Hobart with the old man. He noted that there were already two or three other survivors on the deck of the Hobart. He was not aware of how they were taken on board and surmised that they may have been able to swim or had been picked up and ferried to the Hobart by other Vietnamese fishing-boats.
9. After the old man was taken on board the Hobart, the motor-whaler returned to the search area with instructions to look for debris from the sunken fishing-boat. This search lasted for about 20 to 30 minutes. On return to the Hobart, Mr Thomas noted that two or three fishing-boats came alongside the Hobart. None of the Vietnamese fishermen that he saw were carrying any weapons. He could not recall whether any of the Hobart crew was armed. Subsequently, all of the Vietnamese crew were transferred to a fishing-boat which then pulled away from the Hobart.
10. During the searches, Mr Thomas heard foreign voices calling from boats in the fog and was uncertain of who were in those other boats. However, he believed that the motor-whaler was in enemy waters. In describing how he felt at the time, he said that he “felt a degree of anxiousness of what may or may not happen”.
John Perryman
11. Mr Perryman is Senior Naval Historical Officer at the RAN Sea Power Centre in Canberra. In evidence was a report from that Centre concerning the incident detailed by Mr Thomas. Annexed to it were copies of relevant pages from the Hobart’s log book, a copy of the Report of the Collision, a copy of an extract from the note book of the Officer of the Watch (OOW) and eye witness reports form various Hobart crew members including the medical officer, Surgeon Lieutenant R G Bain.
12. The OOW’s note book sets out a continuous record of events that occurred during the incident and allocates a time of day for each of them. Mr Perryman said that these were required to be accurate and would be so with a tolerance of plus or minus 1 minute. He agreed that, in the prevailing fog conditions, visibility of the Hobart at 300 to 400 yards would be limited to a silhouette especially from a motor-whaler because it was low in the water.
Dr Sharon Harding, psychiatrist
13. Dr Harding has treated Mr Thomas for psychiatric problems since 2002. She completed reports dated 30 April 2002, 15 September 2004, and 20 September 2006. In her first report, Dr Harding took a history from Mr Thomas about his RAN service. He described a feeling of discomfort because he had joined the Hobart not long before sailing to South Vietnam and some fear in the back of his mind that the vessel may come under fire as was the case on a previous voyage. He referred to an occasion when the ship was on the gun line off the South Vietnam coast when the Action Alarm was activated causing the ship to be closed down. Later, he learned that this was merely an exercise and he described feeling “shocked” because no warning had been given. He also described a fear of underwater saboteurs and feeling stressed by the continuous 4 to 6 hour watches. As for the fishing-boat incident, Dr Harding wrote that Mr Thomas described dreams with intrusive thoughts in relation to fog as he was involved in an incident where a ship ran down a sampan and was in the boat dropped into the water to look for survivors. Dr Harding noted that he felt fear at that time as he wondered whether it may have been a trap. Dr Harding diagnosed mild but long standing posttraumatic stress disorder with the likely aetiology being his experiences in the RAN.
14. In her second report, Dr Harding again referred to the fishing-boat incident in the manner referred to above but added that Mr Thomas recalled people shouting and calling for help, that he was not able to find any survivors and that the search was abandoned. He also described feeling guilty for discontinuing the search and wondered whether he should have been more assertive in insisting that they continue the search. In this report, Dr Harding also recorded feelings of distress in Mr Thomas at a time on the Hobart when there was a misfired gun back onto the bridge. Dr Harding diagnosed posttraumatic stress disorder and major depressive episodes and opined that his naval experiences were responsible for them.
15. In her third report, Dr Harding wrote that, in the search for survivors, Mr Thomas heard angry and threatening foreign voices from boats that he could not see in the fog and was fearful for his life because he thought that the boat crews may have been armed. Dr Harding diagnosed recurrent major depression. She wrote that it was long standing but not previously diagnosed until she did so in 2002. She also diagnosed posttraumatic stress disorder but opined that, if the incident involving the search for survivors did not meet the criteria for that condition, she would enter a diagnosis of anxiety disorder not otherwise specified. The stressors identified by Dr Harding for anxiety disorder were the fishing-boat incident, the exercise involving the Action Alarm and the fear of saboteurs.
16. In each of her reports, Dr Harding diagnosed Mr Thomas as having alcohol abuse. Her opinion was that the condition had been present since the fishing-boat incident.
17. In her evidence, Dr Harding confirmed that she had not been advised by Mr Thomas that a survivor had been found by the motor-whaler. When asked what the trauma was which triggered posttraumatic stress disorder, Dr Harding said that it was the crew of the fishing-boat being thrown into the water. When asked whether there was an actual threat to Mr Thomas, she said that he was in a war zone and that meant he was always under threat. Dr Harding said that, following stressful events, people often have difficulty with their memory and recalling specific details. She also said that part of her treatment regimen for Mr Thomas was a REM program which assisted him with his memory.
Other evidence
18. Mr Thomas’ claim form was in evidence. There, he nominated 1980 as the year when he first became aware of the signs and symptoms of his psychiatric disabilities. In that form, his local medical officer, Dr Moni Kami, noted that he had first been consulted by Mr Thomas for anxiety disorder and depressive disorder in 1988 but, while he entered a diagnosis of alcohol abuse, he made no reference to treatment for that condition.
19. The “Report on Collision between HMAS Hobart and South Vietnamese Fishing-boat”, noted above, was completed by Commander R C Swan. He was Captain of the Hobart at the time of the fishing-boat incident. He described the weather on the day of the collision as calm and the seas “like a mirror with a long low swell”. After referring to the collision, he continued:
“I returned to the bridge to stop the ship in the vicinity of the men in the water. The motor whaler was lowered and the fishing boat’s crew recovered and brought on board. A man, later identified as the skipper DINH CHAC, seemed unable to board unaided and he was passed up in a Stokes Litter. The Medical Officer, Lieut SSSG R G BAIN RAN, examined all five persons; DINH CHAC was found to be suffering the effects of shock and immersion, but the others, apart from obvious fright and a soaking, were considered satisfactory. All five had been undressed, given warm blankets, and provided with hot soup and cigarettes.
The motor-whaler meanwhile searched the area and recovered pieces of flotsam. .............
During this period, three other fishing boats closed Hobart. One craft was hailed and secured alongside; the others assisted in the search for flotsam.
At about 1000H, I was assured that the survivors of the incident were fit to travel, and I was concerned that the ship should return to station as soon as possible. The survivors were escorted into the fishing-boat alongside, into which the flotsam had already been placed. The Skipper was able to enter the boat unaided......
The fishing-boat was cast off, the motor-whaler hoisted and at 1010H HOBART shaped course to return to the gun-line.”
20. The following entries were in the extract from the Hobart’s log book:
0907:Collided with South Vietnamese fishing-boat, 30 degrees port wheel on. Sounded off Man Overboard Course and Speed as necessary to recover 5 fishermen in the water…
0908: Commenced recovery
0917: Boat lowered
1010: Boat recovered
21. The following entries were in the extract from the OOW’s notebook:
0917: whaler lowered
0919: whaler returned to ship
0928: whaler off loaded crew and returned to pick up gear
0955: boat alongside
22. The report of the medical officer, Surgeon Lieutenant Bain, described three of the fishermen as feeling cold but fit and well with no physical injuries. A fourth was described in those same terms except for superficial bruising. Those four were estimated by him to be aged between 10 and 14 years. The fifth, estimated to be about 50 years of age, was medically examined and found to have mild bronchitis and to be suffering the effects of immersion. Surgeon Lieutenant Bain’s summary was that all five suffered no long term ill-effects and were allowed to leave the sick‑bay after a short period.
23. The letter from the RAN Sea Power Centre referred to the Hobart’s log book and an entry therein relating to a misfire at 1257 on 27 July 1970. The entry reads “Cleared misfire”.
24. In evidence were various statements made by Mr Thomas. The first, undated, contains the following:
The Motor Whaler was lowered into the water at approximately 0910 and was not hauled back on board until 1010 at which time the ship proceeded back to it’s gun line duties. This meant that the boats crew had been out in the fog for 1 hour, certainly sufficient time away from Hobart to cause concern among the boats crew especially as they could hear some very angry Vietnamese voices from the fishing boats. We in turn were worried that we may have been run over by these same fishing-boats. [sic]
He also wrote that he feared for his life and felt helplessness and horror during and after the incident.
25. In a second statement, dated 19 January 2006, Mr Thomas wrote that the fog was very thick and only a short distance was travelled before he lost sight of the Hobart. He wrote that he maintained radio contact with the Hobart. He wrote that he could hear what would be described as voices of people in distress in a language that he considered to be Vietnamese. No reference is made to his being involved in rescuing any survivors. He referred to two or three survivors already being on board the Hobart when the motor-whaler returned. He concluded with an expression of hope that all remaining survivors would have been picked up by the other fishing-boats.
26. A further statement[3], undated but made in response to a letter dated 11 July 2006, Mr Thomas wrote that he had a mental block as to the actual retrieval of survivors but that, after reading the report of the collision, he recollected an old man “who appeared to be severely injured by the amount of noise he was making”. He also wrote that the one thing he had never forgotten was the sheer terror he felt when distant from the Hobart in the fog and hearing very unhappy fisherman.
[3] See T4/81
27. A copy of the Board’s reasons for decision was in evidence. Therein, Mr Thomas is recorded as stating in his evidence that the motor-whaler’s radio was not working.
Diagnosed Conditions
28. For posttraumatic stress disorder, the relevant RMA Statement of Principles is Instrument No 5 of 2008 which repealed and replaced Instrument No 3 of 1999 (as amended by Instrument No 54 of 1999). These list six criteria, all of which must be met before posttraumatic stress disorder can be found. The Statement of Principles is not, in itself, a diagnostic instrument but it was not in dispute that the six criteria reflect those that are found in the relevant diagnostic instrument DSM IV for posttraumatic stress disorder. The first of those, criterion A, reads:
“(A) the person has been exposed to a traumatic event in which:
(i)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person’s response involved intense fear, helplessness, or horror;”
29. Dr Harding referred to several matters in her reports as being causally associated with Mr Thomas’s psychiatric conditions. These included a feeling of discomfort due to late posting to the Hobart; fear in the back of his mind that the vessel may come under fire; an exercise when the Action Alarm was activated without warning; a fear of underwater saboteurs; continuous 4 to 6 hour watches; and a misfired gun back onto the bridge of the Hobart. No reliance was placed on these at the hearing and I am satisfied that, on the balance of probabilities, none of those meet the requirements in criterion A.
30. The remaining incident is that relating to the fishing-boat. Mr Thomas has not been consistent in his descriptions of what occurred. That is the case with whether or not he was able to maintain radio contact with the Hobart. In his evidence to the Board, Mr Thomas stated that the radio was not working. In one of his statements, he wrote that he maintained radio contact with the Hobart. Inconsistency is also present in his descriptions of the extent to which his visibility was affected by fog. In his statement, dated 19 January 2006, he wrote that the fog was very thick and that, after only a short distance, he lost sight of the Hobart. On other occasions he described it as a silhouette at a distance of some 300 to 400 yards.
31. Mr Thomas gave differing accounts as to the length of time the motor-whaler was away from the Hobart. In one of his statements, he said that it was away from the Hobart for a continuous period of an hour. In his evidence, he said there were two periods of some 20 to 30 minutes away from the Hobart.
32. I accept as correct Surgeon Lieutenant Bain’s report of the condition of the fishermen after they were rescued. The oldest survivor required assistance to board the Hobart but, despite that, he was not physically injured. Mr Thomas’ evidence to the Board was that the old man “appeared to be severely injured”. In a statement he wrote that the old man “appeared to be severely injured by the amount of noise he was making”. In his evidence at the hearing, he said that the old man was floating limply in the water.
33. In one of his statements, Mr Thomas said the motor-whaler crew could hear some very angry Vietnamese voices from the fishing-boats. Dr Harding’s first report also refers to angry and threatening foreign voices from boats that he could not see in the fog. In his first statement, he refers to “very angry” voices. However, in another of his statements, Mr Thomas described hearing voices of people in distress.
34. Captain Swan’s report of the fishing-boat incident describes the motor-whaler being lowered and the fishing-boat’s crew being recovered and brought on board. That is a reference to the entire crew which comprised five men. At no time did Mr Thomas advise Dr Harding that he had rescued any survivors. Her evidence at the hearing was that she was not aware that Mr Thomas had picked up any survivors. Perhaps that is not surprising because, in her second report, Mr Thomas is recorded as saying that no survivors were found, that the search was abandoned and that this had left him feeling guilty and wondering whether he should have been more assertive in insisting that they continue to search. He concluded another of his statements by expressing the hope that all remaining survivors would have been picked up by the other fishing-boats.
35. In his statements, Mr Thomas has described feelings of fear, helplessness and horror as well as sheer terror. This was because of the prospect of being harmed by crews of the other unseen fishing-boats in circumstances when he was unarmed and because the motor-whaler had spent such a long time away from the Hobart. However, at the hearing he was asked, specifically, how he felt at the time. He said that he “felt a degree of anxiousness of what may or may not happen”.
36. Because of the many inconsistencies on material matters in Mr Thomas’ evidence, I accept as correct the version of events which can be gleaned from the RAN documents. I note the evidence of Mr Perryman about the accuracy of those records and I accept as correct the entries in the OOW’s notebook. The motor-whaler was lowered at 0917 and returned to the ship at 0919 having picked up all five survivors. The older man had to be assisted. Even allowing for the tolerance described by Mr Perryman, that is a period of less than 5 minutes. They were medically examined and found to be fit to leave the Hobart. The OOW’s notes show the motor-whaler’s second absence was from 0928 hrs after the fishermen had been off-loaded onto the Hobart. The duration of that second search is not specific in RAN records. However, Captain Swan reported that the retrieved flotsam was placed into the fishing-boat alongside the Hobart before the five rescued men were transferred to another fishing vessel shortly after 1000hrs. Accordingly, the motor-whaler’s search must have been approximately 25 to 30 minutes in duration ie from 0928hrs until 1000hrs. The motor-whaler was recovered at 1010 hrs. That the motor-whaler was able to collect the survivors and return to the Hobart in a relatively short time is consistent with the calmness of the weather and the seas and with Captain Swan’s report that the Hobart came to a stop in the vicinity of the fisherman. I am satisfied that the rescue took place in close proximity to the Hobart and not 200 yards away.
37. It was not the task of rescuing the survivors that Mr Thomas referred to as exciting his reactions of fear, helplessness and horror or sheer terror. He made no reference to survivors in his first two statements. He mentioned one survivor in the third statement but describes his terror as being referable to being in the fog and hearing voices. As I understand it, it was the hearing of voices in unseen boats in circumstances when none of the motor-whaler’s crew was armed which is the alleged stressor. Mr Thomas gave varying descriptions of these voices. He referred to them as being angry and threatening. On other occasions, he has referred to hearing voices of people in distress or being very unhappy. I am reasonably satisfied that neither the hearing of voices in those circumstances or, indeed, assisting the five survivors into the motor-whaler equate to actual or threatened death or serious injury, or a threat to the physical integrity of Mr Thomas or anyone else.
38. I am reasonably satisfied that the requirements of a traumatic event in criterion A(i) in either of the Statements of Principles for posttraumatic stress disorder is not met. Even if it were, Mr Thomas’ references in various statements relating to fear, helplessness, horror or terror were not confirmed by him in his evidence, on oath, at the hearing. The highest that he put his feelings at the time was that he “felt a degree of anxiousness of what may or may not happen”. I am reasonably satisfied that this does not equate with a response which involved intense fear, helplessness or horror. Accordingly, I am also reasonably satisfied that this does not meet the requirements in criterion A(ii) in either of the Statements of Principles for posttraumatic stress disorder.
39. As criterion A is an essential threshold element of the diagnostic criteria, I am also reasonably satisfied that the factual basis for making a diagnosis of posttraumatic stress disorder, in relation to that incident, is not present. It follows that consideration need not be given to issues of causation relating to posttraumatic stress disorder[4].
[4] See Drew v Repatriation Commission [2008] FCA 537 at paras 8, 9.
40. The diagnoses of generalised anxiety disorder and depressive disorder, unlike posttraumatic stress disorder, do not depend upon the existence of a factor such as criterion A noted above. There is medical support for a diagnosis of each of those conditions and, accordingly, the issue for determination in relation to them is whether they arose out of or are attributable to Mr Thomas’ service under s 9(1)(b) of the Act.
Principles of Causation
41. The Federal Court, in Repatriation Commission v Deledio (1998) 83 FCR 82 at 92, set out a four-step procedure for determining issues of causation in relation to operational service. The first of these requires that there be material which points to an hypothesis connecting a claimed condition with service. I am satisfied that the fishing-boat incident meets that requirement for Mr Thomas’ generalised anxiety disorder and depressive disorder. No hypotheses were advanced in relation to any other stressors.
42. The second of the four Deledio steps requires identification of the relevant Statement of Principles as published by the RMA. For anxiety disorder, this is Instrument No 101 of 2007 which repealed and replaced Instrument No 1 of 2000. For depressive disorder, it is Instrument No 27 of 2008 which repealed and replaced Instrument No 17 of 2007 which, in turn, repealed and replaced Instrument No 58 of 1998.
43. The third Deledio step does not involve fact-finding but requires a consideration of the advanced hypothesis to determine whether it is reasonable. This requirement will be met if the hypothesis fits or is consistent with the template provided by a relevant factor in the Statement of Principles. These factors read:
Anxiety disorder
Instrument No 101 of 2007
“6(a)(ii) experiencing a category 1A stressor within the five years before the clinical onset of anxiety disorder; or
(iii) experiencing a category 1B stressor within the five years before the clinical onset of anxiety disorder; or …
(vi) having a clinically significant psychiatric condition within the ten years before the clinical onset of anxiety disorder; …”
Instrument No 1 of 2000
“5(a)(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
(iii) having a clinically significant psychiatric condition within the two years before the clinical onset of anxiety disorder; …”
Depressive disorder
Instrument No 27 of 2008
“6(a) for major depressive episode, recurrent major depressive disorder, dysthymic disorder and depressive disorder not otherwise specified only …
(ii) experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder; or
(iii) experiencing a category 1B stressor within the five years before the clinical onset of depressive disorder; or …
(vii) having a clinically significant psychiatric condition within the two years before the clinical onset of depressive disorder; …”
Instrument No 17 of 2007
“6(b) experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder; or
(c) experiencing a category 1B stressor within the five years before the clinical onset of depressive disorder; or …
(g) having a clinically significant psychiatric condition within the two years before the clinical onset of depressive disorder; …”
Instrument No 58 of 1998
“5(b) experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder; or
(c) having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder; …”
44. The definitions relevant to terms used in the factors from Instruments No’d 101 of 2007, 17 of 2007 and 27 of 2008 read:
“"a category 1A stressor" means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured;
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e) being an eyewitness to or participating in, the clearance of critically injured casualties; …
"a clinically significant psychiatric condition" means any Axis 1 disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner; …”
45. The definitions relevant to terms used in the factors from Instrument No 1 of 2000 and No 58 of 1998) read:
"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), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.
"psychiatric condition" means any Axis 1 disorder of mental health that attracts a diagnosis under DSM-IV;
A further definition in those Instruments is that of “clinically significant”. In Instrument No 58 of 1998, it reads:
"clinically significant" means sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or General Practitioner.
In Instrument No 1 of 2000, it reads:
"clinically significant" means sufficient to warrant ongoing management by a psychiatrist, clinical psychologist or General Practitioner
46. If an hypothesis is reasonable, it will then be necessary to consider the fourth of the Deledio steps.
Reasonableness of Hypotheses
The stressor
47. A category 1A stressor and a category 1B stressor in the later Statements of Principles for anxiety disorder and depressive disorder are each defined to mean “a severe traumatic event”. In each case, a series of events which will qualify is particularised. As I read those definitions, one of those particularised events must be pointed to by the material in order for a reasonable hypothesis for a category 1A or category 1B stressor to be raised. There is no material which points to events (b) or (c) for a category 1A stressor or any of the events for a category 1B stressor. No submissions were made in relation to those components of the definitions. That leaves for consideration event (a) for a category 1A stressor which is “experiencing a life-threatening event”.
48. Mr Thomas did not witness the collision between the Hobart and the fishing-boat. His first awareness of it was hearing the man overboard signal. He, with other crew members of the motor-whaler, were charged with the responsibility of recovering five men from the water. This was accomplished in a few minutes. There is no material which points to the lives of the fishermen being under threat in that recovery process. Some statements of Mr Thomas suggest that the older man was injured. However, taken as a whole, the evidence does not point to that but, rather, to one man having superficial bruising and the older man having bronchitis. Dr Harding’s opinion was that the voices Mr Thomas heard in the process of searching for debris was the stressor. There was a heavy fog, on Mr Thomas’ evidence, such that he was unable to see any of the Vietnamese fishing-boats. The material concerning the hearing of voices does not point to any life-threatening event. No reasonable hypothesis is raised in relation to a category 1A or category 1B stressor for anxiety disorder or depressive disorder.
49. The definition of severe psychosocial stressor in the earlier Statements of Principles for anxiety disorder and depressive disorder require an identifiable occurrence that evokes substantial distress. Unlike the definitions of a category 1A stressor or a category 1B stressor noted above, it provides examples of occurrences that would qualify rather than particularised incidents which must have occurred. The examples of identifiable occurrences contemplated by the Statement of Principles as psychosocial stressors cover a wide range of events suggesting resultant feelings which extend over a time-frame and which, thereby, have a social dimension to them. The identifiable occurrence must be one which, subjectively, evoked feelings of substantial distress in Mr Thomas as well as one which, objectively, would evoke such feelings in a person exposed to that occurrence[5].
[5] White v Repatriation Commission [2004] FCR 633
50. Mr Thomas did not experience the collision. The recovery of the fishermen can be considered as an identifiable occurrence but this has not been described by Mr Thomas as being stressful to him. The recovery operation was clearly successful and completed quickly and there is no material which points to Mr Thomas being distressed by it. It is difficult to consider the hearing of voices during the search for debris as an identifiable occurrence. Perhaps, each hearing of a voice might be so considered. There is material in Mr Thomas’ unsworn statements and in Dr Harding’s reports that points to feelings of fear, helplessness, horror and terror. Looking at that material in its most favourable light from Mr Thomas’ perspective, it points to a reaction of substantial distress. In that sense, the material is consistent with the definitions of severe psychosocial stressor in the earlier Statements of Principles for anxiety disorder and depressive disorder, respectively.
51. The factors in those earlier Statements of Principles also require material which points to the clinical onset of the anxiety disorder and/or depressive disorder within the two years immediately before the clinical onset of the condition. The term clinical onset has not been defined by the RMA but the requirement will be pointed to if symptoms have been described to a medical practitioner who is then able to state that the presence of those symptoms at a particular time indicates that the condition was present at that time[6].
[6] See Re Robertson and Repatriation Commission (1998) 50 ALD 668 at 670 and Repatriation Commission and Cornelius [2002] FCA 750.
52. In her 2002 report, Dr Harding did not diagnose anxiety disorder and she described Mr Thomas’ posttraumatic stress disorder as mild but long standing. In her 2006 report, she again diagnosed posttraumatic stress disorder and, as an alternative, anxiety disorder. Dr Harding referred to the six diagnostic criteria for anxiety disorder listed in the Statement of Principles. Her opinion was that those criteria were met in Mr Thomas’ case and that they commenced shortly after the fishing-boat incident. This is consistent with the time-frame of clinical onset required by factor 5(a)(ii) of Instrument No 1 of 2000 for anxiety disorder. This means that a reasonable hypothesis of a relationship between Mr Thomas’ service and anxiety disorder is raised under that Instrument and it is necessary to consider the fourth of the Deledio steps for that condition.
53. In her 2002 report, Dr Harding did not diagnose depressive disorder and she noted that Mr Thomas denied that he suffered from depression at that time. She diagnosed recurrent major depressive episodes in her 2004 report. In her 2006 report, she diagnosed recurrent major depression. In her oral evidence, she also said that depressive disorder was present since Mr Thomas’ RAN service but that symptoms had been masked by heavy alcohol consumption. Mr Thomas’ RAN service ended in 1987 which was some 17 years after the fishing-boat incident. In his claim form, Mr Thomas nominated 1980 as the year when he first became aware of the signs and symptoms of his psychiatric disabilities. This was some 10 years after the fishing-boat incident. In that claim form Dr Kami noted that a doctor was first consulted by Mr Thomas for depressive disorder in 1988. That was some 18 years after the fishing-boat incident. The material does not point to a clinical onset of depressive disorder in accordance with the two year time frame in factor 5(b) in Instrument No 58 of 1998. No reasonable hypothesis is raised of a relationship to service in relation to that condition.
Presence of a clinically significant psychiatric condition
54. As noted above, the respondent has conceded that Mr Thomas suffers from alcohol abuse and that the condition is war-caused under the Act. It is not disputed that this is an Axis 1 disorder of mental health that attracts a diagnosis under the respective DSM-IV publications referred to in the Statements of Principles for anxiety disorder and depressive disorder. A reasonable hypothesis of a relevant relationship to service will be raised if the material before me points to clinical onset of anxiety disorder and/or depressive disorder in the given time-frames of alcohol abuse becoming a clinically significant psychiatric condition in Mr Thomas. As the definition reads, this will be from when it was of sufficient degree to warrant ongoing management by a psychiatrist, clinical psychologist or general practitioner.
55. Dr Harding’s evidence was that alcohol abuse can be traced back to the fishing-boat incident. Dr Kami noted that he had first been consulted by Mr Thomas for anxiety disorder and depressive disorder in 1988 but, while he entered a diagnosis of alcohol abuse, he made no reference to treatment for that condition at that time. Indeed, there is no material before me which points to any ongoing management by a psychiatrist, clinical psychologist or general practitioner for alcohol abuse or to the need for such before he was seen by Dr Harding in 2002. Her evidence was that, at that time, it was in remission.
56. Under Instruments No’d 101 of 2007 and 1 of 2000, the clinical onset of anxiety disorder must have been within ten years and two years, respectively, of Mr Thomas’ alcohol abuse becoming clinically significant. The material before me points to the clinical onset of the anxiety disorder occurring before the alcohol abuse reached that level. This means that the material does not meet the template of either Statement of Principles and that no reasonable hypothesis of a relationship to service is raised under Instruments No’d 101 of 2007 or 1 of 2000.
57. Under Instruments No’d 27 of 2008, 17 of 2007 and 58 of 1998, the clinical onset of depressive disorder must have been within two years of Mr Thomas’ alcohol abuse becoming clinically significant. The material before me points to the clinical onset of the depressive disorder occurring after Mr Thomas’ RAN service with the condition being noted in 1988 by Dr Kami and 1980 being nominated by Mr Thomas as the year he first noted symptoms. This was before the alcohol abuse reached that level. Again, there is no material before me which points to any ongoing management by a psychiatrist, clinical psychologist or general practitioner for alcohol abuse or to the need for such before he was seen by Dr Harding in 2002. This is outside of the two year time-frame in the Statements of Principles for depressive disorder. Therefore, the material does not meet the template of the Statement of Principles for depressive disorder and no reasonable hypothesis of a relationship to service is raised under Instruments No’d 27 of 2008, 17 of 2007 or 58 of 1998.
58. In summary, the material points to and is consistent with the requirements of factor 5)(a)(iii) in Instrument No 1 of 2000 for anxiety disorder. Therefore, a reasonable hypothesis with service is raised pursuant to that condition through that factor. The material does not point to other factors in the Statements of Principles for that condition and a reasonable hypothesis with service is not raised pursuant to those factors. Neither does the material point to any factor in any of the Statements of Principles for depressive disorder and no reasonable hypothesis with service is raised pursuant to that condition.
Deledio Step 4: Are The Conditions War-Caused?
Posttraumatic stress disorder and depressive disorder
59. As no diagnosis of posttraumatic stress disorder can be made on the basis of the fishing-boat incident, this means that posttraumatic stress disorder cannot be a war-caused condition in accordance with s9(1)(b) of the Act. As no reasonable hypothesis with service is raised in relation to depressive disorder, this means that depressive disorder is not a war-caused condition in accordance with s9(1)(b) of the Act.
Anxiety disorder:
60. As no reasonable hypothesis with service is raised in relation to anxiety disorder by any factor in the relevant Statements of Principles apart from factor 5(a)(ii) in Instrument No 1 of 2000, the condition is not war caused, in accordance with s9(1)(b) of the Act, pursuant to any of those other factors .
61. I have determined that there is material, taken at its highest, which meets the template of factor 5(a)(ii) in Instrument No 1 of 2000 viz experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder. However, I am satisfied beyond reasonable doubt that Mr Thomas did not experience a severe psychosocial stressor viz an identifiable occurrence that evokes feelings of substantial distress in an individual. The hearing of voices in the fog does not equate with the examples provided in the factor ie being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems. Importantly, the evidence given on oath by Mr Thomas was that, at the time, he felt “a degree of anxiousness of what may or may not happen”. He did not describe feelings of substantial distress as the Statement of Principles requires. Accordingly, I am satisfied beyond reasonable doubt that Mr Thomas’ anxiety disorder is not war-caused in accordance with s 9(1)(b) of the Act.
Decision
62. The Tribunal affirms the decisions under review in relation to posttraumatic stress disorder, anxiety disorder and depressive disorder.
The 62 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed:.................[Sgd]...........................................................
Melissa Hamblin, AssociateDate/s of Hearing 26 February 2009
Date of Decision 24 April 2009
Applicant’s representative: Ms H Smith, Advocate
Respondent representative: Mr B Williams, Departmental Advocate
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