PHILLIP ROBERTSON and REPATRIATION COMMISSION
[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 80Smith 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
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
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.
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) …
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
…
(6) Paragraph (1)(e) does not apply to an injury suffered, or disease contracted, by a veteran (being an injury or disease that has been contributed to in a material degree by, or aggravated by, eligible war service rendered by the veteran):
(a) … or
(b) unless the veteran had rendered operational service or the period of eligible war service rendered by the veteran that so contributed to the injury or disease, or by which the injury or disease was aggravated, was 6 months or longer.
Where the condition is said to be related to operational service, the standard of proof applicable to the determination is set out in s 120(1) of the Act, which reads:
120 Standard of proof
(1) 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.
The application of that provision is affected by the terms of s 120(3) and by s 120A(3) of the Act. Those provisions read:
120 Standard of proof
…
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person
...
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
…
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
The veteran also rendered a period of defence service from 7 December 1972 until his discharge. The criteria of causation for a relationship between a claimed condition and defence service are set out in s 70 of the Act. Relevantly, it reads:
…
(5) For the purposes of this Act, … an injury suffered by such a member shall be taken to be a defence‑caused injury or a disease contracted by such a member shall be taken to be a defence‑caused disease if:
…
(d) the injury or disease from which the member … is incapacitated:
(i) …
(ii) was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or
…
The standard of proof for determining those issues, and for diagnostic matters generally, is set out in s 120(4) of the Act.[1] This provision requires that such matters be determined to the Tribunal’s reasonable satisfaction. This imports the civil standard of proof so that matters must be determined on the balance of probabilities.[2] The application of that provision is affected by the terms of s 120B of the Act. This provides that, where a relevant Statement of Principles has been published by the Repatriation Medical Authority (“RMA”), a decision-maker may be reasonably satisfied that a condition is defence-caused only if the Statement of Principles upholds the contention that the condition is, on the balance of probabilities, connected with that service.
[1] See Repatriation Commission v Bawden [2012] FCAFC 176.
[2] Repatriation Commission v Smith (1987) 15 FCR 327 at 335.
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.
EVIDENCE
The 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.
The veteran said that things electrical have frightened him since the incident. He will not work with electrical things such as power boards though he is able to operate the on/off switches on lights and power points.
After leaving the RAN, the veteran worked[3] with Ansett Airlines for 12 months, with the Queensland Department of Housing and Construction for two years, with Queensland Nickel for seven years, with a power station in Western Australia for a period and then with Queensland Health at Charleville and the Caboolture Hospital where he was the Manager of Building and Engineering Services. He ceased work in 2007. While at the Caboolture Hospital, he recalled being given an official warning at work by the District Manager after he had reprimanded the assistant manager for doing electrical work for which he was not qualified.
[3] History taken from the reports of Dr Carter and Dr Cook.
The veteran first saw Dr Carter in 2002. He had been referred to her by his treating doctor, Dr Michael Bromet, by letter dated 15 June 2002. The referral was for evaluation of posttraumatic stress disorder and an assessment of the contribution made to his mental health by his military service.
The veteran said that prior to 2009 he had been advised by his various advocates to concentrate on having his posttraumatic stress disorder accepted on the basis of the Evans incident because the relevant statutory scheme would provide him with a lump sum payment in compensation.
The veteran knew Dr Burza as a work colleague at the Caboolture Hospital and then as his patient while still working there. He told him about the electricity incident. Dr Burza sent a letter of referral to Dr Carter in which he identified Vietnam as a period of concern to him. The veteran noted that this included a reference to his service in Vietnam and, though his practice was to answer questions asked of him and not to volunteer information, he believed that he had told Dr Carter about the fan incident in 2003. He said that Dr Carter’s focus at that time was on the Evans incident but that he told Dr Carter about the fan incident after Dr Burza’s letter because it identified his concerns about service in Vietnam.
Dr Janis Carter
Dr Carter, psychiatrist, completed reports on 13 October 2003, 20 November 2009 and 2 March 2010. Her first report was directed to the Military Compensation and Rehabilitation Service. Therein, Dr Carter diagnosed posttraumatic stress disorder on the basis of the veteran’s experience in the collision between the Melbourne and the Evans. She recorded the veteran’s references to a range of other incidents involving naval vessels which he found distressing. No specific reference is made to the incident on the Duchess. She recorded that the veteran decided to leave the RAN in 1973 because “he just couldn’t take it any longer”.
In a letter, dated 22 October 2009, Dr Carter wrote to the veteran’s advocate in relation to his claim through the Department of Veterans’ Affairs. Therein, Dr Carter referred to the fan incident on the Duchess, describing it as affecting the veteran throughout his life and as making his posttraumatic stress disorder materially worse.
Dr Carter’s report, dated 2 March 2010, was directed to the Department of Veterans’ Affairs. Dr Carter indicated that she was writing in relation to the veteran’s claim that he had suffered an aggravation of his posttraumatic stress disorder in the fan incident on the Duchess. Dr Carter detailed the incident and referred to its impact on the veteran. She described re-experiencing phenomena about it, as well as nightmares and panic attacks. She wrote that the veteran was unable to touch electrical equipment and he felt unable to continue in his work at the Caboolture Hospital after 2007. Dr Carter’s opinion was that the fan incident made his posttraumatic stress disorder, which had its origins in the collision between the Melbourne and the Evans, materially worse.
In her evidence, Dr Carter confirmed that she had no references in her records to the fan incident until 2009. She did not dispute that the veteran may have referred her to that incident in 2002 or 2003 but said that, at that time, her focus had been on a compensation claim in relation to the incident with the Evans. She confirmed her opinion that the fan incident constituted an incident of trauma in which the veteran experienced an event that involved threatened death or serious injury, that his response involved intense fear and helplessness and that the other diagnostic criteria[4] for posttraumatic stress disorder were also satisfied by the fan incident. She considered that the fan incident was a category 1A stressor[5] for posttraumatic stress disorder. She also expressed the opinion that the veteran’s posttraumatic stress disorder had been made permanently worse by the fan incident than it would have been after the primary stressor of the Evans incident. She said that this had been reflected in his post-service difficulties in employment.
[4] As set out in cl 3(b) of the Statement of Principles published by the RMA: Instrument No 5 of 2008 for posttraumatic stress disorder.
[5] As set out in cls 6(e) and 9 of Instrument No 5 of 2008.
Dr Carter was referred to her clinical notes for the period during which she was treating the veteran. These comprised some 27 entries, mostly of two or three lines. She also supplied her appointment register for the veteran which revealed some 70 or so appointments from 30 July 2002 until 24 March 2011. She agreed that her notes were not as detailed as they might be but said that she kept such notes as a memory aid to herself rather than as a complete record of her treatment regimen for a patient. Dr Carter advised that she has now changed her record-keeping methodology.
Dr A Cook
Dr Cook, psychiatrist, completed a report on 25 October 2003. He diagnosed posttraumatic stress disorder in the veteran as a result of his experience on the Melbourne in 1969. Dr Cook described the veteran’s references to flashbacks in relation to that incident. He gave a detailed account of the veteran’s experiences and symptoms but made no reference to the fan incident on the Duchess.
Dr Paul Burza
Dr Burza completed a letter to Dr Carter on 6 May 2003 and a report on 4 February 2013. He also gave evidence. Dr Burza met the veteran in 1996 when he took up the position of Director of the Emergency Department at Caboolture Hospital. At that time, the veteran was the hospital engineer with responsibility for the safe working of the hospital including provision of maintenance of essential services. This included the back-up emergency power supply and resupply of expendables such as gases. Dr Burza described him as a very competent and trustworthy man with an affable personality who was popular with staff members, obliging and assisting where he could to make the hospital function well.
Dr Burza developed a special relationship with the veteran. In part, this was because both he and the veteran were involved in internal and external emergency responses by the hospital and after-hours rostering. Dr Burza also shared a military background with the veteran as both served in Vietnam. Dr Burza described these matters as strengthening his relationship with the veteran. Dr Burza said that he became aware that the veteran was “not travelling as well on the surface as his brave face would show” and came to treat him professionally until 2008. Initially, this was at the hospital but then at Dr Burza’s private practices after he left the hospital.
In his report, Dr Burza recalled the veteran describing the Evans incident to him as well as the fan incident when on the Duchess. Dr Burza said of the latter incident that, these days, such an event would result in critical hospital care to ensure there was no muscle or cardiac damage. Dr Burza concluded that the veteran was suffering from posttraumatic stress disorder. Dr Burza referred him to Dr Carter per his letter of 6 May 2003 and agreed that he had not detailed the fan incident to her. However, he did refer Dr Carter to the veteran’s Vietnam service. He recalled that, at the time, he understood that the Vietnam reference could be expanded subsequently if required. He believed that his clinical notes would have made reference to the fan incident. However, he said that these were no longer his property but that of his earlier practices. Dr Burza’s opinion was that the fan incident had compounded the effects of the Evans event.
Dr Ivan Holm
Dr Holm, psychiatrist, completed a report on 14 September 2011. He noted the fan incident on the Duchess and described it as a life-threatening event. He noted the absence of reference to it in the report of Dr Cook and the first report of Dr Carter. He wrote that the veteran informed him that he had been advised not to volunteer any information unless specifically asked which meant that the focus was on the Melbourne incident when detailing events to the doctors. Dr Holm concluded that the Duchess incident resulted in an exacerbation of the veteran’s posttraumatic stress disorder. He was advised that, after the fan incident, the veteran was prescribed valium and failed an RAN exam as a deliberate action by him because he did not feel he could cope with additional responsibilities associated with promotion.
Christopher Hayes
Mr Hayes was with the veteran when the incident with the fan occurred. He completed a statement on 3 September 2009. Mr Hayes wrote:
Unknown to LME Robertson the flexible power lead had become displaced and when the unit was run up the casing was live with 440 volts.
In an attempt to position the unit for best effect, Phil grasped the unit with both hands and was shocked so severely that he was thrown to the deck.
We realised he was badly shaken as he was almost incoherent. He was carried to the sick bay where he was examined by the medical staff onboard.
I did not see him for the rest of the day, but he was sent back to work on the following forenoon.
CONTENTIONS
Mr Bruce Williams
For the respondent, Mr Williams conceded that the fan incident occurred in the manner described by the veteran; that it satisfied the diagnostic criteria listed in cl 3(b) of the Statement of Principles[6] published by the RMA for posttraumatic stress disorder; and that it had the effect of making worse the veteran’s posttraumatic stress disorder. However, he submitted that any worsening of that condition was not permanent and that, accordingly, it did not meet the requirements of aggravation under s 9 of the Act. Mr Williams noted the effects which the veteran alleged demonstrated the worsening of his condition. These were the incident with the boiler, the taking of valium, the failure in an examination and the early discharge from the RAN. He submitted that these all related to matters from 1971 to 1973. He conceded that those effects reflected a temporary worsening of the posttraumatic stress disorder but that subsequent aspects of the veteran’s life did not support an ongoing detriment from the fan incident.
[6] Instrument No 5 of 2008.
In that regard, Mr Williams noted the post-service employment history of the veteran in responsible positions in which he served for long periods. These included work in a power station in Western Australia, with Queensland Nickel for seven years and with Queensland Health at Charleville and the Caboolture Hospital where he was the Manager of Building and Engineering Services.
Mr Williams also submitted that continuing effects from the fan incident were not consistent with the absence of references to it by the various psychiatrists from 2002 until 2009. In relation to Dr Carter, he submitted that there was no logical reason why the veteran would not have mentioned all causal associations of his posttraumatic stress disorder with his service to her during her treatment of him over several years. He submitted that the veteran had, at all times, been motivated by the prospect of financial benefit and by the information provided to him by his advocate. Mr Williams submitted that, having achieved a compensation payment for his condition under Commonwealth compensation legislation in relation to the Evans incident, the veteran then modified the history of his condition to suit the terms of the Act by raising the fan incident.
Mr Anthony Harding
Mr Harding, for the applicant, noted the concessions made by Mr Williams. He submitted that there was evidence of a permanent worsening of the veteran’s posttraumatic stress disorder as a result of the fan incident. He referred to the matters identified by Mr Williams: i.e. the incident with the boiler, the taking of valium, the failure in an examination and the early discharge from the RAN. Mr Harding accepted that these all related to matters from 1971 to 1973. However, he submitted that the observations of Dr Burza and of Dr Holm, who is his current treating psychiatrist, revealed longer term effects of the posttraumatic stress disorder.[7] In that regard, he submitted, the evidence of Dr Burza was of particular relevance because of his close association with the veteran both prior to and during his treatment of him as a patient while at the Caboolture Hospital. Mr Harding referred to the diagnostic factors in cl 3 of the Statement of Principles for posttraumatic stress disorder and submitted that these were confirmed in the evidence of Dr Holm and Dr Carter.
[7] Citing Repatriation Commission v Yates (1995) 86 ALD 80.
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 CONSIDERATION
A 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).
The Full Court of the Federal Court, in Repatriation Commission v Bawden[11] (“Bawden”), confirmed the view that posttraumatic stress disorder can only be diagnosed as an illness or disease in terms of a traumatic event and that, if the decision-maker is not satisfied on the balance of probabilities in accordance with s 120(4) of the Act that a traumatic event produced those symptoms, the decision-maker cannot proceed to a diagnosis of posttraumatic stress disorder. The Court said:[12]
In our respectful opinion, the effect of the settled course of judicial authority is that a veteran is entitled to have that aspect of a claim for PTSD concerned with whether it was war-caused dealt with in accordance with the four-step process explained by the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82 (Deledio) only if it is established on the balance of probabilities that the veteran does in fact suffer from incapacity from that injury or disease: Budworth (2001) 116 FCR 200 at [19].
[11] [2012] FCAFC 176.
[12] Above at [40].
In the veteran’s case, the diagnosis of posttraumatic stress disorder and its association with the veteran’s experience in the Evans incident is clear and undisputed. The matter of diagnosis raised in Bawden relates to the diagnostic criteria in para 3 of the Statement of Principles for posttraumatic stress disorder. The issue of aggravation of that condition is not one embraced by the concept of diagnosis and, accordingly, does not fall to be considered under s 120(4) of the Act.
Causation
The relevant causal factor raised in this matter is factor 6(e) of the Statement of Principles, which reads:
experiencing a category 1A stressor before the clinical worsening of posttraumatic stress disorder;…
While the focus of factor 6(e) of the Statement of Principles is on clinical worsening, that of the Act is on aggravation. However, cl 7 of the Statement of Principles provides that factor 6(e) applies to:
… aggravation of, posttraumatic stress disorder where the person’s posttraumatic stress disorder was suffered or contracted before or during (but not arising out of) the person’s relevant service.
The procedure for determining causation issues, which include whether or not the veteran’s service aggravated his posttraumatic stress disorder, was set out by the Federal Court in the following terms:[13]
(i) The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
(ii) If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). ...
(iii) If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the `template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be `reasonable' and the claim will fail.
(iv) The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, ... If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
[13] See Repatriation Commission v Deledio (1998) 83 FCR 82 at 82 – 83 (“Deledio”).
Step 1:- Hypothesis
The first step requires that there be material which points to an hypothesis connecting the aggravation of posttraumatic stress disorder with service. Mr Harding submitted, and Mr Williams conceded, that the veteran experienced a stressful event in relation to the fan incident on the Duchess and I accept that this contention raises an hypothesis of connection to the veteran’s service.
Step 2:- Statement of Principles
Factor 6(e) of the relevant Statement of Principles requires the experiencing of a category 1A stressor before the “clinical worsening” of posttraumatic stress disorder. Clause 9 of the Statement of Principles reads:
"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;
The term “clinical worsening” is not defined in the Statement of Principles. In Repatriation Commission v Milenz[14] (“Milenz”), Finn J was concerned with a decision of the Tribunal in relation to the clinical worsening of alcohol abuse. His Honour said:
35 What is clear, in my view, is that the Tribunal misconstrued what was comprehended by the clinical worsening requirement of par 5(d) of the SoP. That requirement imposed a medical-scientific standard, not a lay standard. Though the Tribunal found a clinical worsening of Mr Milenz’s alcohol abuse, it did not address whether there was a worsening in the disease as defined and manifest. It simply inferred a worsening because, "after operational service, the quantity, type and frequency of alcohol consumed was far greater". These are not features or manifest symptoms of the disease defined in par 2(b) of the SoP.
[14] [2006] FCA 1436 at [34]- [36].
The reference there to “par 2(b)” relates to the diagnostic criteria in the Statement of Principles for alcohol abuse as at that time.[15] The equivalent for posttraumatic stress disorder is found in cls 3(b)(A) to (F) of the Statement of Principles.
[15] This was Instrument No. 76 of 1998.
Step 3:- Reasonableness of the Hypothesis
The third step requires consideration of whether the hypothesis raised is a reasonable one for the purposes of s 120(3) of the Act. This step is not concerned with proof of the claim but relates to the question of whether there is some material which calls for a determination under s 120(1) of the Act.[16] This requirement will be met if the hypothesis fits or is consistent with the template provided by factor 6(e) and the associated definition in the Statement of Principles.
[16] See Bushell v Repatriation Commission (1992) 175 CLR 408 at 415.
A medical-scientific standard as described in Milenz, rather than a lay standard, may be gleaned in this matter from the evidence of Dr Carter, Dr Holm and Dr Burza. This was that the fan incident and the veteran’s reaction to it, in itself, satisfy the diagnostic criteria in clauses 3(b)(A) to (F) of the Statement of Principles for posttraumatic stress disorder. Their evidence also supports the submission that the veteran experienced a life-threatening event and an increase in symptoms from posttraumatic stress disorder as a result of the fan incident. In their evidence, they identified, respectively, an aggravation, a worsening and a compounding of the underlying condition as a result of that incident as manifested in the veteran’s references to its effect upon him in subsequent work-related matters, both during and after his RAN service. This was not disputed by Mr Williams although, as has been noted, he submitted that these effects were of a temporary nature only. This is considered below. Nonetheless, the medical evidence points to the requirements of the template of the Statement of Principles for the clinical worsening of the veteran’s posttraumatic stress disorder. It follows that the hypothesis advanced on behalf of the veteran applicant is reasonable and that the third of the Deledio steps is satisfied.
Step 4:- Did the veteran experience a clinical worsening of posttraumatic stress disorder?
While there is a reasonable hypothesis of a clinical worsening of the veteran’s posttraumatic stress disorder, consideration must be given to whether that constitutes aggravation of the condition. Mr Williams submitted that there was only a temporary aggravation and that this was not sufficient to meet the requirements of s 9 of the Act. However, there is authority for the view that aggravation need not be permanent to meet those requirements. In Heaps and Repatriation Commission[17] (“Heaps”), the Tribunal referred to aggravation in terms that the Act precluded “recognition of occasional aggravation”; that it required “worsening of a marked and indefinite duration” rather than a “temporary phenomenon”; that it was concerned with “permanent impairment” with the condition being “a more or less permanent feature” of the person’s life.[18] Then, in Repatriation Commission v Yates,[19] Lindgren J was dealing with the Defence Service provision of the Act equivalent to s 9(1)(e)[20] thereof. His Honour referred to Heaps and said:
45. I do not think that the AAT in Heaps' case intended to suggest, in absolute terms, that an aggravation must be "permanent" if the injury or disease aggravated is to be a potential source of pension entitlement. Rather, I think that it was seeking to emphasise the Act's insistence that an aggravation be of an injury or disease and that this is not necessarily indicated by a temporary worsening of symptoms with consequential temporary incapacity. Like the AAT in Heaps' case, I would expect, in the absence of medical evidence to the contrary, that an aggravation of an underlying disease would have a duration at least longer than the period of worsening of symptoms caused by service, although it may not necessarily be as long as the duration of the disease itself. Like the AAT in the present case, I think that if the AAT in Heaps' case meant to say that an aggravation of an injury or disease, although war-caused or defence-caused, is not within the Act because it is not literally "permanent", it was in error to that extent.
[17] (1987) AATA 718.
[18] Ibid at [38].
[19] (1995) 86 ALD 80
[20] See s 70(5)(d) of the Act.
The veteran gave evidence of effects of the fan incident from its occurrence until his discharge. These were the incident with the boiler, the taking of valium, the failure in an examination and the early discharge from the RAN. Both Dr Carter and Dr Holm identified those as consequences of the fan incident. Dr Carter also described re-experiencing phenomena about it, nightmares and panic attacks as well as issues with using electrical equipment such that he felt unable to continue hospital work in 2007. Those conclusions, especially from the veteran’s treating psychiatrists, amount to more than a temporary duration of the consequences attributed by them to the fan incident. I have noted Mr Williams’ reference to the post-service working history of the veteran. In regard to that, the evidence of Dr Burza is relevant because he implicated the effects of the fan incident as continuing even during his last employment which was at the Caboolture Hospital while he was treating the veteran.
I have noted the absence of a record of references by the veteran to Dr Carter about the fan incident. However, the veteran believed that he had advised her of it in 2003 and Dr Carter conceded that he may have done so. Certainly, Dr Carter’s clinical notes are characterised more by an absence, rather than an inclusion, of references to any aspect of the veteran’s service history or treatment from 2002 until 2009. I have also noted the referral letter of Dr Burza to Dr Carter in 2003 which specifically called her attention to the veteran’s service in Vietnam.
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.
I certify that the preceding 52 (fifty two) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
...........................[SGD..........................................
Associate
Dated 19 March 2013
Dates of hearing 29 November 2012; 7 February 2013; 4 March 2013
Counsel for the Applicant Mr Anthony Harding Solicitors for the Applicant Cockburn Legal Advocate for the Respondent Mr Bruce Williams
0
12
0