PHILLIP ROBERTSON and REPATRIATION COMMISSION

Case [2013] AATA 149

[2013] AATA  149

Division VETERANS' APPEALS DIVISION

File Number

2012/0471

Re

PHILLIP ROBERTSON

APPLICANT

And

REPATRIATION COMMISSION

RESPONDENT

DECISION

Tribunal

Mr R G Kenny, Senior Member
Date 19 March 2013
Place Brisbane

The Tribunal sets aside the decision under review and substitutes its decision that the veteran’s posttraumatic stress disorder is war-caused in accordance with s 9(1)(e) of the Act; that the respondent is liable to pay, in accordance with s 13 of the Act, compensation to the veteran for incapacity associated with that condition with effect from 20 August 2009; and that the matter of the assessment of that incapacity is remitted to the respondent.

.............................[SGD...........................................

Mr R G Kenny, Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Operational service with Royal Australian Navy – Posttraumatic stress disorder unrelated to eligible service – Clinical worsening of posttraumatic stress disorder in accordance with Statement of Principles – Whether aggravation must be permanent – Reasonable hypothesis of aggravation of posttraumatic stress disorder raised – Not satisfied beyond reasonable doubt that aggravation of posttraumatic stress disorder not war-caused – Decision set aside – Matter remitted for assessment.

LEGISLATION

Veterans' Entitlement Act 1986 (Cth) ss 5D, 9(1), 9(6), 13, 70(5), 177

CASES

Bushell v Repatriation Commission (1992) 175 CLR 408

Conway v Repatriation Commission (1988) 9 AAR 397
Heaps and Repatriation Commission (1987) AATA 718
Meehan v Repatriation Commission (2001) 64 ALD 366
Ramsey and Repatriation Commission [2002] AATA 581
Repatriation Commission v Bawden [2012] FCAFC 176
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Milenz [2006] FCA 1436
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Yates (1995) 86 ALD 80

Smith and Repatriation Commission [2005] AATA 1057

SECONDARY MATERIALS

Statement of Principles: Instrument No. 5 of 2005 (as amended by Instrument No. 77 of 2012)

REASONS FOR DECISION

Mr R G Kenny, Senior Member

BACKGROUND

  1. Phillip Robertson (“the veteran”) served in the Royal Australian Navy (“the RAN”) from 8 April 1966 until 31 December 1973. On 20 November 2009, he lodged a claim, under s 9 of Veterans’ Entitlements Act 1986 (Cth) (“the Act”), for a pension for “aggravation of PTSD”. That claim was rejected by the Repatriation Commission on 8 March 2010 and by the Veterans’ Review Board (“the Board”) on 15 November 2011.

    SERVICE, ISSUES AND LEGISLATION

  2. During his RAN service, the veteran rendered eligible service in the form of operational service from 3 April 1971 until 8 April 1971 and from 17 May 1971 until 1 June 1971.

  3. In order for a condition to be accepted as being war-caused, one of the requirements in s 9 of the Act must be met. Relevantly, in this matter, ss 9(1)(e) and 9(6) of the Act read:

    (1) … 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:

    …

    (e) the injury suffered, or disease contracted, by the veteran:

    (i)…

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AGLC
PHILLIP ROBERTSON and REPATRIATION COMMISSION [2013] AATA 149
Case
[2013] AATA 149
Decision Date

CaseChat Overview and Summary

In the matter of Phillip Robertson and the Repatriation Commission, the Tribunal examined the claim of Phillip Robertson, a veteran, regarding the aggravation of his posttraumatic stress disorder (PTSD) due to his war service. The Tribunal had to determine whether the PTSD was aggravated by his eligible war service. The veteran had served in the Royal Australian Navy (RAN) from 1968 to 1973 and was involved in an incident in June 1969 when his ship, HMAS Melbourne, collided with the USS Frank E. Evans. The veteran claimed that his PTSD, diagnosed in 2002, was aggravated by an incident on another ship, the HMAS Duchess, where he suffered an electric shock from a 440-volt fan.

The legal issues before the Tribunal included whether the PTSD was contracted during a non-eligible service period and subsequently aggravated by eligible war service, and whether the aggravation of PTSD qualifies as a disease under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The Tribunal also had to consider the credibility of the veteran's evidence and whether the respondent's submissions regarding the veteran's non-disclosure of the incident and the sparseness of the medical reports were valid.

The Tribunal found the veteran to be a reliable witness and accepted his account of the events leading to the aggravation of his PTSD. The Tribunal concluded that the PTSD did become clinically worse due to the incident on the HMAS Duchess, and this constituted an aggravation of his condition under the Act. The Tribunal further determined that the PTSD was war-caused and that the respondent was liable to pay compensation for incapacity associated with the condition. The matter of assessing the incapacity was remitted to the Repatriation Commission.

The Tribunal's decision was based on the evidence provided by the veteran and the medical reports. It rejected the respondent's arguments regarding the veteran's credibility and the sparseness of the medical records. The Tribunal held that the veteran's PTSD was aggravated by his war service, and the respondent was liable to compensate the veteran for the incapacity resulting from the condition.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It was common ground that the veteran’s claim was based on his operational service rather than his defence service. Accordingly, the issue for the Tribunal is whether the veteran’s posttraumatic stress disorder was aggravated by any eligible war service rendered by him.EVIDENCEThe veteran The veteran gave the following evidence. After undertaking recruit training at HMAS Cerberus for three months, ordinary seaman training for 12 months on HMAS Sydney and a further three month period at Cerberus completing a marine engineer’s course, he was posted to HMAS Melbourne (“the Melbourne”) from 1968 until January 1970. He then served for 12 months as the Rear Admiral’s barge driver before being posted to the HMAS Duchess (“the Duchess”) from January 1971 until January 1973 and HMAS Vendetta until August 1973. He was promoted to the rank of Petty Officer in June 1971 and was voluntarily discharged from the RAN in December 1973. The veteran was serving on the Melbourne in June 1969 when it was involved in a collision with the USS Frank E. Evans (“the Evans”). As a result of that incident, he was diagnosed in 2002, by psychiatrist Dr Janis Carter, with posttraumatic stress disorder and has had that condition accepted for compensation purposes under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The incident in which the veteran claims to have aggravated his posttraumatic stress disorder occurred while he was serving on the Duchess. His primary duties on that vessel were to look after the fuel, water and outside engineering machinery and compartments, including the laundry. He and two other men, M.E. Hayes and M.E. Hinton, rigged up a large 440 volt fan on the upper deck outside the laundry so that, when operating, it would force hot air out of the laundry for ventilation. The veteran asked Mr Hinton to activate the fan. This required Mr Hinton to cross to the opposite side of the ship, a distance of some 25 metres. Mr Hinton returned and the veteran put his hands on the fan. He felt an electric shock and could not release his grip. Mr Hinton realised what had happened and ran back to turn the fan off. The veteran was then thrown across the deck and Mr Hayes was able to stop him from going through the guard rails. The veteran was taken to the sick bay where he stayed for about six hours, after which he returned to his mess. He remained under constant observation until the following morning when he returned, reluctantly but under the orders of the Chief Stoker, to his duties. The veteran said that he felt shocked and scared as he hadn’t experienced anything like that in his life before. The veteran said that, after the incident, he felt very unsure of himself and was constantly on edge. He became bad tempered and found himself worrying about workplace accidents. He continued in his role for some months on the Duchess until he was made up to Petty Officer in July or August 1971 on the basis of exams taken before the fan incident. He felt relief at this promotion because he believed that he would no longer be involved in touching anything electrical. He realised his attitudes had changed when he became aware that he had become known among his crew as a “nasty old c…”. He recalled an incident which occurred in relation to a boiler which had overheated and threatened to explode. His quick action enabled the settings to be adjusted and the danger averted. He recalled a crew member thanking him for saving the lives of the crew and the veteran said that he went away and cried for three hours. He had great difficulty in carrying out his duties after that. He was required to sit an examination for promotion to Chief Petty Officer but he did not wish to assume more responsibility and so deliberately failed the exam. He felt that he had lost his nerve and saw a doctor in Sydney, Dr Kazamoto, who prescribed valium for him. He took early discharge from the RAN.

Decision

Reasons for decision

I have noted Mr Williams’ contention about the veteran’s financial motivation in making his claim. To some extent, that is to be expected and I accept that much of the veteran’s claim relates to his own accounts of matters given as evidence, in statements or in accounts to doctors. However, I found him to be a reliable witness and I accept as correct his versions of those various matters. Having considered all of the material before me, I cannot be satisfied beyond reasonable doubt that the veteran’s posttraumatic stress disorder did not became clinically worse as a result of the fan incident. Neither can I be satisfied beyond reasonable doubt that this does not constitute aggravation of his posttraumatic stress disorder under s 9(1)(e) of the Act or that his posttraumatic stress disorder is not war-caused. It follows that the respondent is liable to pay, under s 13 of the Act, compensation to the veteran for incapacity associated with that condition with effect from 20 August 2009, a date set in accordance with s 177(2)(a) of the Act and agreed to by Mr Harding and Mr Williams. They also agreed that the assessment of incapacity be remitted to the Repatriation Commission.DECISION The Tribunal sets aside the decision under review and substitutes its decision that the veteran’s posttraumatic stress disorder is war-caused in accordance with s 9(1)(e) of the Act; that the respondent is liable to pay, in accordance with s 13 of the Act, compensation to the veteran for incapacity associated with that condition with effect from 20 August 2009; and that the matter of the assessment of that incapacity is remitted to the respondent.

Ratio Decidendi

Legal Principle Established

Mr Harding noted the descriptions of the veteran in the medical reports as not being “forthcoming”, as being a “proud man”, and the reference to his “not travelling as well on the surface as his brave face would show”. He submitted that this went some way to explaining the non-disclosure of the information over the years about the fan incident. However, in relation to Dr Carter, Mr Harding submitted that the veteran may well have advised her in 2003 of the fan incident. The veteran believed he did so advise her; Dr Carter conceded that he may have done so. He also submitted that regard should be had to the very sparseness of Dr Carter’s clinical notes which clearly could not have encompassed all that passed between her and the veteran over a treatment period spanning some nine years. PROCEDURE FOR CONSIDERATIONA Precondition The relevant causation provision in this matter is s 9(1)(e)(ii) of the Act. It applies where a disease, in this case posttraumatic stress disorder, was contracted during a period of non-eligible service before the commencement of a period of eligible war service rendered by the veteran, in this case from 17 May 1971 until 1 June 1971, and the posttraumatic stress disorder was aggravated by that period of eligible war service. A precondition to the operation of that provision is set out in s 9(6) of the Act. It applies where the veteran has either rendered operational service or where the period of the veteran’s eligible war service by which the disease was aggravated was six months or longer. Those options are expressed in the alternative and, although the period of service which is said to have aggravated the veteran’s disease was of two weeks duration, he had rendered operational service.[8] Accordingly, s 9(1)(e) of the Act has application to the veteran’s circumstances.[8] See Ramsey and Repatriation Commission [2002] AATA 581 at [13] and Smith and Repatriation Commission [2005] AATA 1057 at [31].The Disease A definition of disease is given in s 5D of the Act which, relevantly, reads:(a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or(b) the recurrence of such an ailment, disorder, defect or morbid condition;but does not include:(c) the aggravation of such an ailment, disorder, defect or morbid condition; or(d) a temporary departure from:(i) the normal physiological state; or(ii) the accepted ranges of physiological or biochemical measures;that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels). The terms of s 5D(1)(c) of the Act exclude aggravation from that definition.[9] That exclusion is consistent with the terms of s 9(1)(e) of the Act,[10] in which the relevant “disease” is the disease contracted earlier and subsequently aggravated by some aspect of service. [9] See Conway v Repatriation Commission (1988) 9 AAR 397 at 401 (Full Court). I have noted the contrary opinion expressed by Wilcox J in Meehan v Repatriation Commission (2001) 64 ALD 366 at 371 that the exclusion of aggravation from s 5D was limited to aggravations which result from the factors listed in s 5D(d) of the Act, namely physiological stress or the temporary effect of extraneous agents.[10] Set out above at para 3 (above).