Phillips and Repatriation Commission

[2001] AATA 164

DECISION AND REASONS FOR DECISION [2001] AATA 164

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q98/1152

VETERANS' APPEALS  DIVISION       )      
           Re      JOHN WILLIAM PHILLIPS          
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Deputy President DP Breen, Presidential Member Captain ET Keane, Member Dr KP Kennedy, Member  

Date6 March 2001

PlaceBrisbane

Decision      The Tribunal varies the diagnosis of panic disorder to generalised anxiety disorder, psychoactive substance abuse and depressive disorder, but otherwise affirms the decision under review.          

(Sgd)          DP BREEN
  PRESIDENTIAL MEMBER
ADMINISTRATIVE APPEALS TRIBUNAL         )
  )          No. Q98/1152
VETERANS' APPEALS DIVISION  )

Re:                 JOHN WILLIAM PHILLIPS

APPLICANT

And:               REPATRIATION COMMISSION

RESPONDENT

CORRIGENDA

Before:  Deputy President DP Breen, Presidential Member

Date:              19 March 2001

Place:            Brisbane

The Tribunal amends the Reasons for Decision handed down on 6 March 2001 in the following manner:

1. In paragraph 6 first line substitute the word "Runner" with the word "River" so that it becomes "HMAS Parramatta was a River Class destroyer…".

2. In paragraph 6 last line substitute the word "infiltration" with the word "infiltrators".

3. In paragraph 26 fourth line substitute "in full view of the stern.." with "in full view on the stern…"

(Sgd)  DP BREEN

PRESIDENTIAL MEMBER           

CATCHWORDS
VETERANS' APPEALS - accepted disabilities – re-diagnosis - severe stressor.
Veterans' Entitlements Act 1986 s 120

REASONS FOR DECISION

6 March 2001          Deputy President DP Breen, Presidential Member Captain ET Keane, Member Dr KP Kennedy, Member              

1. This was an appeal against a decision of the Repatriation Commission dated 5 September 1997 which determined that the conditions of post traumatic disorder, cirrhosis of the liver and hypertension were not war caused.  The Veteran's Review Board varied the diagnosis of post traumatic stress disorder to panic disorder and then affirmed the decision on 3 November 2000.

2. The matter was heard before a Tribunal constituted as above in Brisbane on 1, 10 and 24 November 2000.  On 10 November 2000 evidence was taken on commission for Dr Kennedy, as he was not available for the resumed hearing on that date.  Mr B Fletcher, a Member of Legacy represented the applicant, John William Phillips, and the respondent Commission was represented by Mr R Morison, Departmental Advocate. 

3. Oral evidence was received from the applicant;  Dr P Mulholland, Psychiatrist; Mr WF Murphy and Mr BJ Grantham, friends of the applicant.  The following documents were taken into evidence:

• Exhibit 1            "T" Documents excluding folios 56-60, report of John Tilbrook d  dated 15.9.98

• Exhibit 2            Statement of Barry Grantham dated 5.10.99

• Exhibit 3            Statutory Declaration of Walter F Murphy dated 5.10.99

• Exhibit 4            Statement of Gary Wayne Cannon undated

• Exhibit 5            Report of Mr Greg Currie, Psychologist

• Exhibit 6            Research from Department of Defence, Naval History

  Directorate dated 16.10.98

• Exhibit 7            Report of Dr Peter Mulholland dated 26.4.00

• Exhibit 8            Veteran's medical documents from Service File

• Exhibit 9            Extract of Veteran's service records

• Exhibit 10          Extract from Royal Commission Report on HMAS Voyager

• Exhibit 11          Military service of Greg Currie, Psychologist

1. The applicant, John William Phillips was seeking to have the conditions of cirrhosis of the liver, hypertension and his psychiatric condition, however labelled, accepted as war caused.   For the applicant to succeed on the conditions of cirrhosis of the liver and hypertension he would need to show that they were caused by alcohol consumption and that this alcohol consumption was related to his war service.  The applicable Statement of Principles (SOP) is Instrument No 5 of 1994 – Psychoactive Substance Abuse or Dependence.  The key to satisfying both this SOP and any SOP relating to a psychiatric condition is that the applicant suffered a severe stressor whilst engaged in service.  The standard of proof in this case under Section 120 of the Veteran's Entitlements Act 1986 is that of a reasonable hypothesis.
   The History

2. The applicant stated that he first experienced manifestations of his current medical disabilities about two-thirds of the way through 1966.  This was immediately after his period of operational service when he served aboard the HMAS Parramatta conducting anti-infiltration patrols off the southern coast of Sabah in Eastern Malaysia during Indonesian President Sukano's confrontation with Malaysia/Singapore.

3. HMAS Parramatta was a Runner Class destroyer escort with a crew of 250, a length of about 370 feet and displaced approximately 2,760 tons.  Its principal tasks during the relevant period were to provide operational support for the smaller minehunters and patrol craft which were deployed along the Sabah coastline and to patrol the deeper area seaward.  The common task for all vessels was to prevent Indonesian craft landing armed infiltration on Sabah territory and this involved the interception and searching of any craft which were detected in the area.  Once detected, such craft were ordered alongside to be searched by an armed boarding party.  The crew were mustered in the vessel's stern or brought on board for questioning by the Malaysian Police interpreter.

4. The applicant testified that during these operations he was stationed on the deck of HMAS Parramatta covering the people in the boat by pointing a loaded, cocked sub-machine gun in their direction. 

5. During the brief three week period from August to September 1996 when the ship was in the Borneo area, it is understood that only three or four vessels were thus intercepted and searched.  The applicant stated that he experienced great fear as a result of the nervous tension which arose out of the responsibility to point a loaded weapon in the cocked state at personnel on the boat which included his own shipmates in the boarding party.

6. As a consequence, and at a later date which was not clearly specified, the applicant described experiencing symptoms such as tightness of the chest, shortness of breath, palpitations, sweating and a dry mouth.  Accordingly, he stated that he drank more to overcome these problems.  He never drank at sea but made up for it when he was ashore.  He drank mainly bacardi or bourbon with coca cola and found that with time he could consume 'more and more'.  Currently, the applicant consumes in the order of 25 – 30 schooners of light beer, 12 - 16 litres of cask claret and 6 – 8  "Captain Morgan" rums per fortnight.
   The Medical Evidence

1. The "T" Documents included written reports from two Psychiatrists who were not called to give oral evidence and also the report of the applicant's local general practitioner.  Another specialist Psychiatrist, Dr Peter Mulholland, called on behalf of the respondent, gave oral evidence and was cross-examined.

2. The first written report had been prepared in 1992 by Dr WA McIlwraith, a Consultant Psychiatrist.  In that report Dr McIlwraith concluded that the applicant then suffered from chronic anxiety and depression.  Dr McIlwraith concluded that it was probable that the applicant's wartime stresses and prolonged danger of death had played a significant part in the development of his condition.  Dr McIlwraith did not, however, record any specific event or events which he linked with the anxiety, nor did he identify any specific time within the periods of the applicant's service.

3. The report of Dr Currie, Psychologist, dated 16 March 2000 is of a similar nature to that of Mr McIlwraith's report, in that, while the doctor draws the conclusion that the conditions suffered by the applicant are related to his war service, he does not describe any specific events during the applicant's service which he linked to the applicant's anxiety.

4. In a report dated 2 October 1997, the applicant's treating General Practitioner, Dr Clifford Wright, commented that he felt that the 21 days spent on active service on HMAS Parramatta searching sea going junks for arms, during the confrontation with Indonesia, was certainly a very stressful three weeks.  Dr Wright referred the applicant to a Psychiatrist, Dr Julian Boulnois for an opinion.

5. Dr Boulnois concluded that the applicant did not have post traumatic stress disorder.  He agreed that a generalised anxiety disorder would fit the applicant's symptomatology precisely.  Dr Boulnois stated that he was unable to judge whether the applicant's then current status could be related to 21 days in 1996 when he had been in Indonesian waters.

6. Dr Mulholland in his oral evidence, having been made aware of the actual duties of the applicant during the relevant three weeks in 1966, expressed the opinion that he would not have thought that the situation in which the applicant was placed would have been stressful enough to form a permanent psychiatric incapacity.  He did qualify this opinion, however, by adding that he thought that it was one of those things where expert naval advice would be relevant.  In later evidence, Dr Mulholland agreed that in relation to the duties of the applicant at the relevant time, the episodes would have temporarily caused him to feel anxious but would not have caused a permanent anxiety condition.

7. Dr Mulholland, in response to questions from Mr Morison, stated that his current and recent psychiatric diagnoses were generalised anxiety disorder, panic disorder and substance abuse.  In later evidence he opined that the substance abuse had followed attempts to self-medicate to alleviate the anxiety disorder.  It was his view that the depression had been a new development in the applicant's life and he had felt that there could be some relationship between the loss of his job, when the Maritime Services Board was disbanded, and the depression he now suffered.

8. The overall medical evidence clearly identifies the significant psychiatric condition as being a generalised anxiety disorder.  Consideration of substance abuse would arise if the applicant were successful in his application to have the generalised anxiety disorder accepted as being related to his operational service.  No sufficient evidence was given in support of the depression being related to war service.

9. In relation to the report of Dr McIlwraith, no documentation was provided to link his diagnosis with any particular event or events during his service.  His report was therefore of no assistance to the Tribunal.   The same can be said of Dr Currie's report.  The SOPs require that the applicant suffer a severe stressor, and a general assertion that the war service produced the anxiety now suffered simply does not address that crucial issue.

10. Dr Wright did not correctly identify the responsibilities of the applicant in the formation of his opinion.  He stated that the applicant had been searching sea-going junks for arms.  The evidence given by the applicant indicates that he was not required to actually search the junks.

11. Further, although Dr Wright had referred the applicant to a specialist Psychiatrist, clearly to obtain further support for his opinion, Dr Boulnois was not prepared to say that the applicant's psychiatric condition could be related to the relevant 21 days of service in 1966.

12. Dr Mulholland expressed the opinion early in his evidence that he would not have thought that the situation as described would have been stressful enough to cause permanent psychiatric incapacity.  This was even if the applicant had a vulnerability in this regard to begin with. 

13. Given the Tribunal's view of the medical evidence, the Tribunal varies the diagnosis of the condition of panic disorder to that of generalised anxiety disorder, psychoactive substance abuse, and depressive disorder.

14. The relevant Statement of Principles to be applied by the Tribunal are as follows:

• Generalised Anxiety Disorder (SOP No 48 of 1994 as amended by No 275 of 1995)

• Psychoactive Substance Abuse (SOP No 5 of 1994)

• Depressive Disorder (SOP No 65 of 1996 as amended by No 181 of 1996)

Service Evidence

1. The Tribunal considered the above Statements of Principles with regard to the qualifying condition applying to stressors or stressful events.  In this regard the Tribunal had the benefit of one of its sitting Members, Captain Keane, he having had extensive experience of the same background and operational conditions relating to this application.  This is particularly relevant in view of the opinion of Dr Mulholland in which he stated:

   "Essentially I think the final issue of deciding a severe stressor is up to the appropriate Tribunal with special input from its service member.  If the opinion of the Tribunal with the appropriate input … is that his experiences would constitute a severe stressor then I would be only too happy to accept the same…. If on the other hand the Tribunal decides that his activities did not constitute a severe stressor, then his psychiatric condition could not be regarded as being caused by his operational service."

1. Accordingly, the Presiding Member requested Captain Keane to assist the Tribunal and the Advocates by describing the nature and extent of the operational activities which the personnel of the HMAS Parramatta would have experienced while patrolling the waters of Sabah and East Malaysia, during the confrontation.  The Member's extensive experience related to the deployment in the same area during 1965 and 1966 for periods of about six weeks on each occasion and in a ship of the same type as the HMAS Parramatta.  His duties during the second deployment, apart from his normal ship-board responsibilities, included the responsibility to direct, on behalf of the Commanding Officer, the operations of all patrol vessels in the Sabah area.  He informed those present at the hearing, that the boat interception operations in the Sabah area, unlike the Singapore/West Malaysia area, had not experienced any armed resistance.  Operations were usually at night and slow-moving trading vessels of 40 to 50 feet, called Kumpit craft, formed the great majority of boats so affected.

2. Unlike the faster moving Sampans encountered in the Singapore and Malacca Straits, they were in no position to put up any kind of resistance against a ship of the size, speed, armament and complement of the HMAS Parramatta.  Once alongside, they were subjected to being mustered in full view of the stern, usually blinking under the glare of the ship's signalling searchlight while an armed boarding party searched the boat.  Selected crew members were usually brought on board the ship for questioning.  Throughout the process, the people in the boat were kept covered by personnel, such as the applicant, from the deck of the ship which was some distance vertically above them.  Given this scenario, the personnel on board the HMAS Parramatta could not be considered to be under any but the remotest possibility of being threatened. 

3. The Tribunal recognises that the responsibility of pointing a loaded sub-machine gun, with the safety catch off, at people in the boat is potentially hazardous and could give rise to a degree of apprehension, lest the gun be discharged accidentally or as a result of the applicant's nervousness.  However, the Tribunal accepts the opinion of Dr Mulholland, in that, the experience would unlikely be beyond anxiety-provoking and during the HMAS Parramatta's deployment there were only three or four boats intercepted, so it was also unlikely that the applicant was exposed to any accumulative, deleterious effect.

4. The applicant called two witnesses with experience in vessel interception and searching operations, Walter Francis Murphy and Barry Grantham.  However, their evidence, which was based on their own experience, was largely irrelevant.  Mr Murphy has no background of operations in the Sabah/East Borneo area.  Further, his experience related to stress experienced by personnel who were members of boarding parties and as such did not apply to the applicant who remained on board the HMAS Parramatta during boat searching operations.

5. Mr Grantham had served in the Sabah area on board the HMAS Hawk, a RAN minehunter, which has a length of 152 feet and displaced 360 tons.  The HMAS Hawk was, in addition to Royal Malaysian Navy patrol boats, deployed in the inshore waters.  Although the HMAS Hawk experienced some action in the Sabah area, this was restricted to a riverine (up river) mission, involving military shore battery and mortar installations.

6. Mr Grantham related that on two occasions the HMAS Hawk had intercepted Sampans which contained armed personnel, but this was in the Singapore/Malacca Straits area.  His evidence also related to the fear that arose from being a member of a boarding party, an experience not shared by the applicant.
   Application of the SOPs

1. On the basis of the applicant's role and experience during his period of operations during the relevant time, and in view of the opinion of Dr Mulholland, the Tribunal finds that the applicant did not experience a severe stressor during his service. 

2. As such the Statements of Principles with respect to generalised anxiety disorder, and psychoactive substance abuse are not satisfied and those conditions are not service related.  With respect to the condition of depressive disorder, the medical evidence is that this was a post-service illness which is not related to his war service in any way.  Finally, with respect to the conditions of cirrhosis of the liver and hypertension, these relied on the acceptance of the applicant's substance abuse being war-caused, in order for them to be accepted.  Therefore, none of the conditions claimed are war-caused within the meaning of section 9 of the Veteran's Entitlements Act 1986.

3. For the above reasons, the Tribunal varies the diagnosis of panic disorder to generalised anxiety disorder, psychoactive substance abuse and depressive disorder but otherwise affirms the decision under review.

   I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member, Captain ET Keane, Member and Dr KP Kennedy, Member

   Signed:         Emma Oettinger
     Associate

   Date/s of Hearing  1, 10 and 24.11.00
   Date of Decision  6.3.01
   Rep. for the Applicant              Mr B Fletcher, Member of Legacy
   Solicitor for the Respondent    Mr R Morison, Departmental Advocate