Piggott and Repatriation Commission
[2004] AATA 1220
•19 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1220
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1025
VETERANS' APPEALS DIVISION ) Re GRAEME PIGGOTT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr J D Campbell, Member Date19 November 2004
PlaceSydney
Decision The Tribunal sets aside the decision under review and in substitution thereof determines that:
(a) the diagnosis for the applicant's psychiatric condition are:
(i) post-traumatic stress disorder with depressive symptomatology;
(ii) alcohol abuse; and
(b) that both psychiatric diseases are war-caused; and
(c) the matter is remitted to the Respondent for assessment of impairment arising from the psychiatric conditions and combined impairment rating with other accepted disabilities; and
(d) assessment of rate of payment of pension.
Dr J D Campbell
Member
Administrative
Appeals
TribunalADMINISTRATIVE APPEALS TRIBUNAL ) N2003/1025
)
GENERAL ADMINISTRATIVE DIVISION )Re:GRAEME PIGGOTT
Applicant
And:REPATRIATION COMMISSION
Respondent
ORDER TO AMEND WRITTEN DECISION [2004] AATA 1220
TribunalDr J D Campbell, Member
Date10 December 2004
PlaceSydney
WHEREAS:
1. The Tribunal released a written decision in this matter, which was dated 19 November 2004.
2. It has come to the Tribunal’s attention that the Tribunal omitted to set a date of effect from which this decision is to operate.
3. The Tribunal wishes to amend the written decision so as to rectify this error and wishing to do so with the least cost and inconvenience to the parties, applies the provision of section 43AA of the Administrative Appeals Tribunal Act1975.
THE TRIBUNAL THEREFORE ORDERS that the following be inserted:
(e)The date of effect is set at 24 March 2002 for assessment of post-traumatic stress disorder with depressive symptomatology and alcohol abuse; and combined impairment rating.
(f)The date of effect is set at 24 June 2002 for assessment of hearing disorder and tinnitus and combined impairment rating, if indeed any variation in assessment of hearing disorder and tinnitus.
...................................
Dr J D Campbell
Member
CATCHWORDS
Veterans' Affairs - entitlement - psychiatric condition - diagnosis - causation – assessment – consideration of diagnostic criteria listed in DSM IV – on the balance of probabilities the Applicant’s psychiatric condition is diagnosed as post-traumatic stress disorder – Tribunal satisfied that on the balance of probabilities a further psychiatric diagnosis of alcohol abuse is found – the Tribunal finds that the Applicant’s disease of post-traumatic stress disorder is war caused – decision under review set aside.
Veterans' Entitlement Act 1986, sections 120(1), (3), (4)
Stoddart v Repatriation Commission (2003) 197 ALR 283
Woodward v Repatriation Commission (2003) 200 ALR 332
Repatriation Commission v Cooke (1998) 90 FCR 307
Benjamin v Repatriation Commission (2001) 70 ALD 622
Mines v Repatriation Commission [2004] FCA 1331
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
19 November 2004 Dr J D Campbell, Member 1. In this application Mr Piggott (“the Applicant”) seeks a review of the decision of the Veterans’ Review Board (“VRB”) dated 6 May 2003. In that decision the VRB affirmed the decision of a delegate of the Repatriation Commission (“the Respondent”) that the Applicant’s conditions of post-traumatic stress disorder (“PTSD”) and alcohol dependence or alcohol abuse were not related to service. Further, the VRB set aside the assessment decision under review and substituted its decision that pension be assessed at 20 per cent of the General rate to operate from and including 6 May 2003.
2. Mr Piggott lodged a claim for disability pension on 24 June 2002 in which he detailed the new disability of PTSD, with symptoms of disturbed sleep pattern, bad memories and excessive drinking (T5, p21), and a deterioration of his accepted disability of hearing loss. Mr Piggott attached a report from Dr Reinhardt, consultant psychiatrist, dated 5 August 2002 (T6, pp27-31) in support of his claim.
3. The Respondent, in the decision of 3 October 2002 (T2, p7) concluded that the appropriate medical diagnoses for the Applicant’s claim were:
- post-traumatic stress disorder
- alcohol dependence or alcohol abuse.
4. Subsequent to the VRB hearing of 6 May 2003 further clinical reports have been obtained from Dr Dinnen (consultant psychiatrist), Professor Mattick (consultant psychologist) and Dr Haik (consultant psychiatrist) together with clinical notes from Dr Figol (treating general practitioner) and a research report from Commodore Mulcare.
5. The relevant issues in this matter are:
· whether the Applicant suffers from a psychiatric condition; and
· what are the diagnosis(es) of the psychiatric condition; and
· whether such psychiatric diseases are war-caused; and if so
· what is the assessment for such war-caused disabilities;
· and finally what is the Applicant’s combined impairment rating for his accepted disabilities.
DECISION
6. For the reasons detailed later in this decision the Tribunal finds that the Applicant does suffer from a number of psychiatric conditions. The Tribunal concludes that on the balance of probabilities, the diagnoses for the psychiatric conditions are post-traumatic stress disorder with depressive symptomatology and alcohol abuse. Further, the Tribunal determines that both the two psychiatric diseases are war-caused.
7. The Tribunal having so determined, remits these disabilities for assessment, and together with other accepted disabilities for assessment of a combined impairment rating.
APPLICANT’S EVIDENCE
8. Mr Piggott detailed to the Tribunal that:
·he was born in 1947, left school at 15 having obtained his intermediate certificate, worked as a salesman prior to joining the Navy as a musician in 1966;
·trained at HMAS Cerberus, followed by musical training at the same institution prior to joining HMAS Sydney in May 1968;
·sailed on HMAS Sydney on five occasions to Vietnam over a period of 18 to 24 months, the first being in May 1968;
·was posted as a musician to HMAS Penguin for five years, followed by two years as a musician on HMAS Melbourne with a further posting to HMAS Penguin until his retirement in 1979;
·worked with his father-in-law in the latter’s loss control management consultancy until 1983, when because of difficulty working with family he rejoined the Navy as a naval policeman in Sydney, which in turn ensured that he would remain in Sydney and would not have to go to sea;
·left the Navy in 1990, having completed 20 years service; commenced working on ammunition maintenance for the navy, a job which he disliked, but in which he remained for nearly three years;
·next he worked within a training organisation for three years, followed by a clerical role in Pitt Street with the operation later moving to Kingswood – an activity in which he did not settle; moved to the Joint Ammunition Logistics Organisation, of which he remains an employee, albeit on leave for the past two years (sick, annual and long-service); and
·in latter years was graded an ASO5 and managed a finance and procurement group to buy explosive ordinance.
9. In relation to incidents which occurred on his first voyage to Vietnam in May/June 1968 on HMAS Sydney, Mr Piggott detailed the following:
·While sleeping on a stretcher on the focsle on HMAS Sydney at 2-3 am in the morning some, two to three days prior to arrival in Vung Tau Harbour on his first voyage, he was awakened by an aircraft flying over. He heard it coming back, felt terrified and tried to get under the stretcher. He took a while to settle down, did not sleep further that night and felt foolish the next morning when told that it was a spotter plane that came out from Vung Tau on every trip.
·While sitting talking in the mess with HMAS Sydney anchored in Vung Tau Harbour, without warning a scare charge was detonated – “it frightened the living daylights out of me. I did jump up. I was making a bolt for the flight deck, as I thought we had been mined. I was grabbed by one of the senior guys and was told it was a scare charge”. It took 15-20 minutes before he settled down somewhat and a lot longer to really settle down fully.
10. Mr Piggott also detailed his concerns at having to wear a red jacket on the flight deck when employed as a checker while unloading cargo in Vung Tau, in order that the crane drivers could easily identify such personnel. Mr Piggott stated that he felt vulnerable to possible enemy snipers when undertaking such activities, which occurred on two occasions on later trips.
11. In relation to alcohol consumption, Mr Piggott detailed the following:
· an occasional social drinker prior to joining the Navy;
· minimal drinking during training;
· on board drinking on first trip to Vietnam (up to two to three cans an issue);
· on return and when ashore started to drink more;
· increased to the point that on HMAS Penguin in the early 70’s was drinking eight schooners at lunch time, two to three cans on way home and six to ten cans at home per day;
· continued at this rate until told by his general practitioner in the early nineties that his triglycerides were high and that he should lower his alcohol intake;
· reduced quantity of intake and changed to low alcohol beer after intervention by Dr Figol to eight cans of light beer a day and at weekends some red wine with a meal (one bottle); and
· that since being on leave from work, he may have a couple of drinks on a specific occasion during the week (light beer) and a glass or two of red wine at weekends with meals.
12. In relation to his health status Mr Piggott detailed the following:
· diagnosed with PTSD by Dr Reinhardt in October 2000 but elected to work on without medication;
· admitted to St John of God Hospital for three weeks following a gradual deterioration in his condition since diagnosis in October 2000 as evidenced by his irritability, which was upsetting the family and treated with Efexor (anti-depressant) and Epilim (mood stabiliser);
· that he currently feels worthless and absolutely useless with the majority of the day spent playing computer games. He spends some time in his garden (which he loves), but is not motivated to do other things, and when forced to go shopping with his wife, remains in the car. Further, he finds that he is sleeping a lot during the day.
· that because of his inability to control his anger, there have been difficulties with his family (daughter threatening not to visit with grand children); road rage (every driver is an idiot) and with his general practitioner (came close to hitting him last week);
· that because of his nerves he does not go out with his wife (feels nervous in crowds, difficulty breathing, shallow breathing, tightness in chest, all of which ease when he goes back inside);
· frightened by loud noises;
· difficulty in concentrating at work prior to leaving and making decisions, as well as loss of short term memory;
· has no mates, essentially a loner, with social functions limited to a weekend drive with wife and occasional family functions;
· that following the plane incident and loss of sleep on that night he has been able to sleep reasonably well until three to four years ago when he started experiencing nightmares (Melbourne sinking, destroyer sinking, Navy sea service, clear view of Vung Tau Harbour);
· that he had increasing difficulty coping with work prior to being placed on sick leave, and that he was seeking advice as to whether he should submit a compensation claim for stress arising from issues in the work place (restructuring);
· that he was being treated by his general practitioner for gout, hypertension, duodenal ulcer and high cholesterol, as well as by Dr Reinhardt on a monthly basis.
MEDICAL EVIDENCE
DR REINHARDT – CONSULTANT PSYCHIATRIST
13. In a report dated 20 October 2000, Dr Reinhardt, the Applicant’s treating psychiatrist, detailed the Applicant’s symptomatology in the following terms (Exhibit R5 – part thereof):
“He describes distressing intrusive memories which he attempts to “push away”. He has also had flashbacks which are most commonly triggered by smells. He has become increasingly socially withdrawn – “a loner”, and describes emotional numbing and a loss of interest in things he used to enjoy. He has become irritable and intolerant, particularly if in a crowded or noisy environment. He has experienced anxiety attacks characterised by fearfulness, sweating and palpitations, and has an exaggerated startle response. Short-term memory and concentration have become increasingly impaired.”
14. As a consequence of the Applicant’s clinical symptomatology, his history of alcohol usage and his description of specific events which he found particularly distressing and which have continued to haunt him, Dr Reinhardt concluded that Mr Piggott was suffering from chronic PTSD and alcohol dependence.
15. Following an admission to St John of God Hospital between 13 May 2002 and 31 May 2002 because of increasing irritability and difficulties with concentration that have been impacting on his family life, Dr Reinhardt completed a report dated 8 August 2002. In this report (T6, pp27, 28) Dr Reinhardt details two events which have continued to distress Mr Piggott as well as detailing the clinical symptoms he was experiencing:
“1. He was inside the ship when, without warning, he heard a loud explosion and the ship reverberated. He felt terrified and helpless believing that they had been mined and that he would die trapped in the ship. It was only later that he learned that it had been “scare changes” of which he had received no warning.
2. The second event involved a plane which flew quite low directly overhead. It circled and flew overhead again. Mr Piggott again feared that the ship would be mortared or bombed and he would die. The aircraft turned out to be an American spotter plane, but again, Mr Piggott did not know this and naturally feared the worst scenario.
Symptoms of Post Traumatic Stress Disorder:
1. Re-experiencing:
-Intrusive recollections of traumatic events
- Nightmares of feeling trapped and helpless
- Psychological distress and physiological reactivity if exposed to triggers e.g. recently saw a painting of Vung Tau Harbour.
2. Avoidance:
- Avoids thoughts and activities which serve as reminders of Vietnam experience
- Avoids crowds, situations in which he feels “trapped”
- Has lost interest in things he used to enjoy e.g. sport
- Feels emotionally detached
- Has restricted range of affect
3. Hyperarousal:
- Insomnia unless taking sedation
- Irritability
- Hypervigilant
- Increased startle response
- Decreased concentration.”
16. Dr Reinhardt also noted Mr Piggott’s alcohol history intake in which he began to drink more whilst on HMAS Sydney as it helped to allay his anxiety. After this period Mr Piggott’s increased alcohol consumption is reported as having occasionally led to blackouts, cravings and symptoms of withdrawal if he tried to reduce the amount. Dr Reinhardt confirmed that Mr Piggott’s conditions were alcohol dependence (partial remission) and chronic PTSD.
DR DINNEN – CONSULTANT PSYCHIATRIST
17. In a report dated 24 September 2003 (Exhibit A2), Dr Dinnen detailed the clinical and personal history of the Applicant, which included a period of one month after his discharge from St John of God, during which he experienced all sorts of difficulties in coping with his work. Dr Dinnen records the Applicant as stating that he was depressed and down in the dumps at this stage and he did not want to do anything.
18. Dr Dinnen, having reviewed particular provided clinical documentation concluded:
“I found the patient to be a pleasant and genuine man, whose symptoms were for the most part those of a chronic anxiety disorder. This would appear to be capable of satisfying the criteria of post traumatic stress disorder, and I see no reason to argue with Dr Reinhardt’s opinion about that. Moreover, it seems evident that his adjustment has worsened over the past year or so, leading to long term unfitness for work, albeit that at present it appears that some attempts at rehabilitation are being carried out. Nonetheless, it seems to me he is likely to remain unfit to work because of his nervous condition.
I can but say that I believe his experiences during those five trips to Vietnam do constitute having experienced a severe stressor. These events are certainly outside the normal every day life experience of an average citizen and notwithstanding training and the absence of any direct combat experienced, would be sufficient to form a level of emotional distress which would leave ongoing effects throughout the years. This is certainly the evidence of Dr Reinhardt and is obvious at interview.
Accordingly it is my view that the patient’s post traumatic stress disorder (a form of anxiety disorder) is related to service, and that at present it causes a level of incapacity which is sufficient to prevent him from working. The prognosis is guarded.”
19. In concurrent evidence Dr Dinnen, in noting that the Applicant’s psychological symptomatology had been in evidence since 1989 when he had difficulty in concentration at an examination, confirmed his opinion that the two events detailed by the Applicant could be considered as being severely stressful, and as being of a quality of severe stressors in terms of his perception with regards the development of his anxiety disorder. Dr Dinnen further affirmed his opinion as to the relevant diagnosis as nominated in his report of 24 September 2003.
20. Further, Dr Dinnen considered that the Applicant was suffering from excessive alcohol usage, which he considered to be part of his post-traumatic stress disorder.
DR HAIK – CONSULTANT PSYCHIATRIST
21. In a report dated 14 October 2003 (Exhibit R2), Dr Haik detailed a comprehensive clinical and personal history as described to him by the Applicant. Dr Haik summarised his opinion in the following terms:
“4.6 In summary, Mr Piggott has used alcohol as a means of quelling the onerous demands of his high moral standards and to be able to enjoy the camaraderie of fellow sailors. When the latter was disallowed, he maintained its use at home, probably as a form of tranquilisation. It has had a detrimental effect upon his health but when his attention was brought to this matter, he reduced his alcohol intake. He doesn’t suffer Alcohol Dependence or Abuse – see para 4.5.
He doesn’t suffer from Posttraumatic Stress Disorder – see para 4.4.
He has suffered from a disabling Depressive Disorder (SoP #59 of 1998) since about 2000 that has not yet resolved. This condition was precipitated by his inability to master significant changes in his work place. His adverse reaction to the increased workload was facilitated by his compulsive personality traits that have demanded a great deal from him. Unfortunately, he remains fearful that his condition won’t resolve because he has been incorrectly told he suffers from Posttraumatic Stress Disorder and that ‘You’re never cured of this’ (para 2.3).
He would like to return to work because ‘I do love my job’ and he should be encouraged to do so. His financial situation will certainly be more secure if he can work until he is 64 or 65 (see para 2.1).”
22. Dr Haik reiterated his views during concurrent evidence, when stating that the Applicant was exposed to influences in his job where he was stressed, which resulted in symptoms. Dr Haik further concluded that he may have developed a depressive disorder, which led to his disability in being unable to cope with the work or alternatively whether the work was of a degree and complexity that he was unable to accommodate it, or thirdly it may have been a combination of both. Dr Haik believes that Mr Piggott developed a distinct depressive disorder in late 2000.
23. Dr Haik was of the opinion that, while Mr Piggott consumed alcohol in excessive amounts, he did not meet the diagnostic criteria for either alcohol abuse or alcohol dependence. Further, Dr Haik was of a view that the two events described by the Applicant, did not meet the criteria necessary for classification as severe stressors.
PROFESSOR MATTICK – CONSULTANT CLINICAL PSYCHOLOGIST
24. In his report dated 24 September 2003 (Exhibit R3) Professor Mattick noted evidence relating to conflict between the Applicant and his wife in 1970 after leaving HMAS Sydney, with the cause of the conflict being a failure by the Applicant to do things, because he had been off drinking. Such conflicts had been ongoing since 1970.
25. Professor Mattick concluded, following an analysis of a comprehensive clinical and personal history, that the Applicant suffers from a major depressive disorder, with the depressive disorder arising from simple life events, namely his work and work environment and some family conflict. Further, Professor Mattick concluded that Mr Piggott has satisfied the criteria for diagnosis of alcohol abuse with the date of clinical onset being in 1970.
26. In oral evidence, Professor Mattick confirmed that in his opinion the depressive disorder suffered by the Applicant had a clinical onset some five to seven years ago, or more importantly when he was having increasing pressures at work.
27. Professor Mattick further stated that none of the events described by the Applicant while serving on HMAS Sydney in 1968 met the criteria of a severe stressor, as any distress was time limited. In his view the alcohol abuse clinical onset in 1970 has a temporal but no causation link with the Applicant’s service. Further, Professor Mattick was of the opinion that the depressive disorder is a possible sequel of alcohol abuse.
CLINICAL NOTES – DR FIGOL
28. The Tribunal notes that the clinical notes of Dr Figol (Exhibit R5) detail:
· a history of right renal colic in 1993;
· a biochemical profile consistent with a finding of mixed hyperlipidemia in August 1991;
· lumbar spondylosis in August 2000, with a history of back pain since 1994;
· hypertension since 1993;
· gout since 1981.
OTHER EVIDENCE
COMMODORE MULCARE – RESEARCH REPORT
29. In a research report dated 25 February 2004 (Exhibit R4), Commodore Mulcare reflects that it was unlikely that the Applicant would have known about the use of scare charges before he joined HMAS Sydney, and that there is no record of what briefings may have occurred to the ship’s company about what to expect in Vung Tau in 1968/69. Commodore Mulcare was of an opinion that if scare charges were used, the sound of such scare charge explosions while the ship was anchored would not have been very loud.
30. In oral evidence Commodore Mulcare stated that there was no air threat in Vung Tau Harbour, and that an overflying aircraft some two to three days out from Vung Tau could have been anything. In relation to scare charges Commodore Mulcare stated that they were rarely dropped from HMAS Sydney, but more often from boats that were deployed from HMAS Sydney. However, if dropped from HMAS Sydney Commodore Mulcare concluded that it would be a loud noise heard by those accommodated within the lower decks of HMAS Sydney.
CONSIDERATION AND FINDINGS
31. In preliminary comment the Tribunal observed that the Applicant became very agitated, angry and anxious during the time in which he was giving evidence. As time progressed it became evident to the Tribunal that Mr Piggott was finding it increasingly difficult to cope with the environment. Such an appreciation of the Applicant’s demeanour was detailed to the consultant psychologist and the two psychiatrists for their consideration and comment at the commencement of the concurrent evidence of the following morning.
32. In addressing the events and circumstances in this matter, the Tribunal notes that there is considerable consistency in the events, incidents and circumstances detailed by the Applicant over time to the Tribunal and to the many parties that have been involved in assessing his claim. More importantly the Tribunal observes that the incidents upon which the Applicant relies have remained constant as to particulars over time.
33. Further, the Tribunal notes that the Applicant’s history of daily alcohol consumption details an increasing daily consumption following the first Vietnam voyage in May/June 1968 to a daily intake in excess of ten schooners of beer from 1970 to the early nineties. Following medical advice in the early nineties, the Tribunal observes that the Applicant altered his drinking pattern to a more variable daily intake of some five to six stubbies of light beer plus some wine on the weekend. The Tribunal, in reviewing the clinical notes of Dr Figol notes that in a report by Dr Hanney, consultant surgeon, in 1999 the Applicant’s then daily alcohol intake was recorded as 20-30 mgms. The Tribunal, while noting Dr Haik’s report (Exhibit R2) in which such a quantity is converted to less than two stubbies per day, observes that such an alcohol intake of 20-30mgs per day is not far removed from the Applicant’s stated daily consumption of five to six stubbies of light beer. As such, the Tribunal in the light of such minimal inconsistency draws no adverse inference from such evidence, although it notes that such evidence appears to be somewhat more significant in Dr Haik’s analysis.
34. The Tribunal having considered all the evidence concludes that Mr Piggott has presented his evidence in an honest and forthright manner, and within the limitations imposed by his interaction with and emotional response to the environment to which he was exposed as part of the evidentiary process.
35. The next task for the Tribunal to undertake in this matter is a consideration of whether the Applicant is suffering from a psychiatric condition, and further if such a psychiatric condition is found to exist, what is the diagnosis and/or diagnoses of such a psychiatric condition. In making such findings the Tribunal is mindful that the standard of proof is that of reasonable satisfaction pursuant to section 120(4) of the Veterans’ Entitlement Act 1986 (“the Act”). In approaching the analysis of this matter in this manner the Tribunal has considered and followed the reasoning in Repatriation v Cooke (1998) 90 FCR 307 and Benjamin v Repatriation Commission (2001) 70 ALD 632, with such reasoning being further analysed by Gray J in Mines v Repatriation Commission [2004] FCA 1331.
36. In addressing the evidence, the Tribunal notes the Applicant’s detailed history of events, circumstances, alcohol usage, work environment and family circumstances, as well as the symptomatology that he has described as occurring over time. The Tribunal also notes the opinions of Drs Haik, Reinhardt, Dinnen and Mattick, consequent upon their analysis of the Applicant’s clinical and social history. As a consequence of consideration of such evidence the Tribunal concludes that on the balance of probabilities the Applicant suffers from a psychiatric condition.
37. In turning to the issue of diagnosis, the Tribunal is confronted with a variety of psychiatric diagnoses made by responsible consultant psychiatrists and psychologists, namely:
Dr Reinhardt - treating psychiatrist
post-traumatic stress disorder (chronic)
alcohol dependence (in partial remission)
Dr Dinnen - consultant psychiatrist
post-traumatic stress disorder with excessive alcohol use
Dr Haik - consultant psychiatrist
depressive disorder with clinical onset circa 2000
no alcohol abuse or dependence. No PTSD, excessive alcohol use
Prof. Mattick - consultant psychologist
depressive disorder with clinical onset five to six years ago; alcohol abuse with clinical onset 1970.
38. The Tribunal, in turn, notes the analysis and reasoning as to how each clinician has arrived at their respective diagnosis. In so doing the Tribunal notes that each clinician has detailed the circumstances, events, incidents and symptoms as described to each by the Applicant, and each with the exception of Dr Reinhardt have had access to each others reasoning and ultimate opinion. The Tribunal further notes that by virtue of being the treating psychiatrist of the Applicant in both in and out-patient settings, Dr Reinhardt has clearly spent more time in a clinical relationship with the Applicant. On the other hand the other three clinicians may perceive themselves as having the advantage of assessing Dr Reinhardt’s opinion in the light of an independent clinical judgement made, albeit after considerably less clinical exposure to the Applicant.
39. In the light of such opinions, the Tribunal is tasked with satisfying itself on the balance of probabilities as to which diagnosis can be sustained, or indeed whether there is any other psychiatric diagnosis which should be entertained. In completing its task the Tribunal has again turned to all the material in evidence and considered such material against the diagnostic criteria listed in DSM IV. In so doing the Tribunal, while appreciating that a clinical diagnosis is something more than a mechanical summation of criteria listed in a manual believes an analysis that points to the existence of necessary clinical features, provides fundamental foundation for the establishment of a clinical diagnosis.
40. In addressing a diagnosis of post-traumatic stress disorder, the Tribunal notes that DSM IV requires that a person has been exposed to a traumatic event in which both of the following were present:
“(1) 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
(2) the person’s response involved intense fear, helplessness, or horror.”
41. The Tribunal notes that the Applicant details two events, namely the aircraft incident and the scare charge incident in which he believed that he was confronted with events that involved at least a threat to his own physical integrity and/or at best a threat of death and/or serious injury. The Tribunal further notes that on each occasion the Applicant was terrified, and that this was inherent in his physical response when he tried to hide under the stretcher or in the scare charge incident, when he jumped up and tried to flee to an upper deck. The Tribunal also notes that the Applicant was made aware of the nature of the events some hours later (aircraft incident) and within short order (scare charge incident) but on both occasions the Applicant states that it took time to come to terms within himself as to what had happened.
42. The Tribunal is satisfied on the balance of probabilities that the Applicant was exposed to two traumatic events and that both threatened death or serious injury or a threat to his physical integrity and that on both occasions his response was one of intense fear. In so finding the Tribunal has been mindful that two psychiatrists (Drs Reinhardt and Dinnen) concur with such an analysis, while two clinicians do not (Dr Haik and Professor Mattick). Further, the Tribunal has been mindful that the legal meaning of the word “threat of death or serious injury” in such a context refers to a range of circumstances when “a threat of severe injury or death is perceived by a claimant from actual events experienced in circumstances where, judged objectively with the knowledge and in the circumstances of the claimant, it was reasonable to perceive the threat”. (Full Court in Woodward v Repatriation Commission (2003) 200 ALR 332 where at pp356-357 they affirm Mansfield J reasoning in Stoddart v Repatriation Commission (2003) 197 ALR 283 pp294-5).
43. In the circumstances of this matter, namely a musician, recently recruited and trained, and on his first sea voyage, albeit to Vietnam, experienced two incidents, with the Tribunal having no evidence before it which would allow it to sustain that such incidents did not occur on balance of probabilities. In the light of such a finding that on balance of probabilities the two incidents did occur the Tribunal finds again on balance of probabilities that it was reasonable for the Applicant to perceive the threat that he did on both occasions, the perception of such a threat being judged objectively with the knowledge and in the circumstance of the Applicant. In making a finding that the incidents did occur, the Tribunal analysed Commodore Mulcare’s report and oral evidence and was unable to find particular evidence which in itself was factual and would negate the evidence given by the Applicant.
44. In addressing other criteria nominated in DSM IV the Tribunal observes that criteria B details that the traumatic event is persistently re-experienced in one (or more) of the following ways:
“(1) recurrent and intrusive distressing recollection of the event, including images, thoughts or perception;
(2) re-occurring distressing dreams of the event;
(3) acting or feeling as if the traumatic event was re-occurring;
(4) intense psychological distress at exposure to cues that symbolise or resemble an aspect of the traumatic event; and
(5) intense psychological reactivity to exposure to cues that symbolise or resemble an aspect of the traumatic event.”
45. The Tribunal is satisfied on balance of probabilities that the Applicant meets criteria B of DSM IV, as evidenced by both the recurrent distressing dreams which he has reported; the intrusive recollection of traumatic events, and both the psychological distress and physiological reactivity when exposed to a cue eg painting of Vung Tau Harbour.
46. Criteria C of DSM IV involves persistent avoidance of stimuli associated with events of the trauma and numbing of general responsiveness as indicated by three or more of the following:
“(1) efforts to avoid thoughts, feelings or conversations associated with the trauma;
(2) efforts to avoid activities, places or people that arose recollections of the trauma;
(3) inability to recall an important aspect of the trauma;
(4) marked diminished interest or participation in significant activities;
(5) feeling of detachment or estrangement from others;
(6) restricted range of affect (eg unable to have loving feelings);
(7) …”
47. From the evidence before the Tribunal, the Tribunal notes that the Applicant has particular difficulty with crowds, was clear in his work endeavours that he did not wish to return to a ship posting albeit for a number of reasons; that he had lost interest in many significant activities he used to enjoy eg sport; that he avoids situations in which he is likely to experience panic; that he demonstrates a much reduced level of affect and that he tends to prefer his own company and that he is essentially living an isolated life. Further, the Tribunal notes that Dr Reinhardt concludes that he avoids thoughts and activities which serve as a reminder of his Vietnam experience and that he feels emotionally detached, as well as avoiding places in which he feels trapped.
48. The Tribunal is satisfied on the balance of probabilities that the Applicant meets the requirements of criteria C.
49. Criteria D requires the existence of persistent symptoms of increased arousal as indicated by two or more of the following:
“(1) difficulty falling or staying asleep;
(2) irritability or out bursts of anger;
(3) difficulty concentrating;
(4) hypervigilance; and
(5) exaggerated startle response.”
50. In addressing again the evidence, the Tribunal notes the clinical features of difficulty concentrating, irritability and hypervigilance being present in the Applicant’s clinical symptomatology. The Tribunal also notes Dr Reinhardt’s comments that the Applicant had difficulty sleeping unless sedated as well as the Applicant’s evidence that he has difficulty sleeping over the last four years. As a consequence of the clinical symptomatology the Tribunal concludes that the Applicant satisfies criteria D.
51. Criteria E involve the symptoms listed in criteria B, C and D lasting longer than a month. The Tribunal concludes that the Applicant satisfies this criterion.
52. Criteria F involve the disturbance causing clinically significant distress or impairment in social, occupational or other important areas of functioning. In addressing this criterion, the Tribunal observes the nature of the Applicant’s occupational history. While it is evident that the Applicant continued to serve in the Navy until 1979, at which time he left to join his father-in-law in the latter’s business – a venture which he later left because of conflict. On rejoining the Navy he served in a fixed geographic posting as a naval policeman, far removed from his earlier role as a Navy musician. After completing his 20 years cumulative service in 1990, he has been employed in a variety of roles within Defence Ordnance and Munitions all of which within a three year period he has found unsatisfactory or has had difficulty in coping, as evident by his current circumstances where he has been on leave of various kinds for the last two years. It is evident to the Tribunal that his psychiatric disturbance has caused impairment in his occupational activities, with increasing evidence of this impairment as noted by Dr Dinnen as occurring from 1989 onwards.
53. The Tribunal also notes a similar experience of his social area of functioning, albeit highlighted in a domestic arrangement in which his wife has worked on evening shift for many years at her place of work. It is evident to the Tribunal that the Applicant’s social functioning during his navy years consisted of drinking with his navy mates at work and continuing to drink when he returned home. While his drinking habits may have ameliorated since the early nineties there is much evidence to support an evolving social isolation in replacement, as well as growing irritability and conflict with his family.
54. The Tribunal concludes that the Applicant satisfies criteria F, in the light of both evolving significant impairment of the Applicant’s social and occupational function resulting from his disturbance.
55. As a consequence of the Tribunal’s findings in relation to the criteria nominated in DSM IV, the Tribunal concludes that on the balance of probabilities, the Applicant’s psychiatric condition is diagnosed as post-traumatic stress disorder. The Tribunal acknowledges that such a diagnosis is supported by Drs Reinhardt and Dinnen.
56. In addressing a diagnosis of alcohol abuse the Tribunal again notes the criteria for such a diagnosis listed in DSM IV. They include:
“A. A maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period:
(1) recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school, or home
(2) recurrent alcohol use in situations in which it is physically hazardous
(3) recurrent alcohol-related legal problems
(4) continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol
B. The symptoms have never met the criteria for alcohol dependence.”
57. In turning to the evidence before the Tribunal, it is evident that from 1970 when the Applicant was at HMAS Penguin he was drinking excessive daily amounts of alcohol and that he was driving home in such circumstances. Further, there is the evidence as recorded by Professor Mattick that the Applicant was failing to fulfil domestic responsibilities in relation to child and other family requirements from the early seventies because of his drinking and this led to conflict with his wife – a conflict which has continued over time and for the same reasons.
58. The Tribunal is satisfied on the balance of probabilities that the Applicant has a further psychiatric diagnosis, namely alcohol abuse. The Tribunal, in so finding, acknowledges and concurs with the opinion of Professor Mattick and acknowledges the opinion of Dr Dinnen who concludes that the Applicant’s alcohol abuse is part of his PTSD. The Tribunal notes the opinion of Dr Haik, who considers that the Applicant is an excessive user of alcohol. Finally, the Tribunal notes the opinion of Dr Reinhardt that the Applicant was suffering from alcohol dependence, but in turn the Tribunal was unable to establish from the evidence before the Tribunal that the necessary criteria for diagnosis of alcohol dependence could be established.
59. In further consideration, the Tribunal observes that Dr Haik and Professor Mattick consider that the primary diagnosis in this matter is that of a depressive disorder. The Tribunal again notes in DSM IV the clinical features necessary for a diagnosis of depressive disorder. In returning to the evidence the Tribunal is satisfied that the clinical symptomatology as described by the Applicant following the hospitalisation period in 2002 when he was experiencing increasing difficulty in coping with work, as evidenced by a lack of concentration, irritability, episodes of anger, frustration, a feeling of being stressed, together with evolving symptoms of lack of motivation, fatigue and feelings of being worthless are certainly symptoms of depression. The Tribunal concludes that on the balance of probabilities such depressive symptomatology is a clinical feature of the PTSD, with the depressive symptomatology being the Applicant’s response to his dissatisfaction with the work place. In so finding the Tribunal relies upon the opinions of Dr Reinhardt and Dr Dinnen, who was unable to define depressive symptomatology at his examination in 2003, although recognising that the Applicant’s symptomatology may have been masked by anti-depressant medication.
60. The Tribunal also considered a diagnosis of generalised anxiety disorder, but after noting the clinical factors for such a diagnosis contained within DSM IV, was unable to affirm the presence of excessive worry and difficulty in controlling the worry. Further, the Tribunal was unable to differentiate whether the anxiety/worry was due or not due to the direct physiological effects of alcohol. Also the Tribunal noted that there was no clinicians support for such a diagnosis.
61. In summary the Tribunal concludes that the Applicant’s psychiatric condition encompasses the following diagnoses:
(1) post-traumatic stress disorder with depressive symptomatology and
(2) alcohol abuse.
62. Next arises the issue of causation. In this regard and as alluded to in the hearing, the Tribunal observes that the initial process requires a decision that the Applicant has a psychiatric condition and what, if able, is the diagnosis of that condition, with both findings to be made on the balance of probability. Further, when a diagnosis of PTSD is made, a preliminary finding, again on the balance of probabilities must have been made that an individual has satisfied DSM IV criteria A – exposure to a traumatic event. In this matter the Tribunal observes that both the primary decision maker and the VRB concluded that the Applicant suffered from PTSD and in so doing must have made a preliminary finding that DSM IV criteria A – exposure to a traumatic event must have occurred on the balance of probabilities. Having so found as they did, it is difficult to then reverse such a finding during the causative considerations that such exposure to a traumatic event, or in Statement of Principle terms – experiencing a severe stressor did not occur – for such an activity is internally inconsistent with their earlier finding that such an exposure to a traumatic event did occur.
63. The Tribunal accepts that there may be a circumstance where an individual has experienced multiple exposures to traumatic events both during operational service and earlier and/or later in civilian life, with the task of finding beyond reasonable doubt that the exposure to traumatic events in military life has not caused or contributed to the causation of the PTSD. In this matter such an issue does not arise, as there is no suggestion of any traumatic event being experienced by the Applicant in his non military endeavours.
64. The Tribunal notes the elucidation of such issues by Gray J in Mines v Repatriation Commission [2004] FCA 1331 together with his consideration of the consequences that logically follow.
65. In dealing with the particular psychiatric diseases, the Tribunal, as regards issues of causation, must apply the four steps outlined in Repatriation Commission v Deledio (1998) 83 FCR 82. In addressing post-traumatic stress disorder the Tribunal is satisfied that there is material pointing to a hypothesis that links the Applicant’s service with PTSD. Further, the Tribunal notes that the appropriate Statement of Principles is Instrument No 3 of 1999. Factor 5(a) of that Instrument details:
“experiencing a severe stressor prior to the clinical onset of post-traumatic stress disorder.”
66. The Tribunal is satisfied that there is material before the Tribunal that points to each element of the factor and that accordingly the hypothesis linking the Applicant’s PTSD with his operational service is a reasonable hypothesis. In so finding the Tribunal is particular in stating that there is material pointing to the Applicant experiencing a severe stressor.
67. In the final step, the Tribunal, having again reviewed all the material, including any evidence suggesting the Applicant may have experienced a non operational service or indeed a civilian traumatic event and the historical report of Commodore Mulcare, concludes that there are no facts to be found, which would prove beyond reasonable doubt that there is no sufficient ground for making the determination that the Applicant’s PTSD is war-caused.
68. The Tribunal finds that the Applicant’s disease of PTSD is war-caused.
69. In addressing the Applicant’s disease of alcohol abuse, the Tribunal notes that there is material pointing to a hypothesis linking the alcohol abuse with the Applicant’s operational service. The Tribunal further notes that the relevant Statement of Principle is Instrument No 76 of 1998 with the relevant factor being factor 5(b) which states:
“- experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse”.
70. The Tribunal is satisfied that the material points to each element of the factor, namely experiencing a severe stressor in May/June 1968 and material which points to a clinical onset of alcohol abuse at a time shortly after the Applicant commenced at HMAS Penguin in January 1970. Being so satisfied, the Tribunal concludes that the hypothesis postulated is a reasonable hypothesis.
71. In the final step, the Tribunal, having again reviewed all the material, notes that all the clinicians in this matter acknowledge an excessive intake of alcohol commencing in early 1970 by the Applicant. The major areas of disagreement between the clinicians being diagnostic criteria (Haik) and Professor Mattick (temporal but no causative link because of absence of experiencing a severe stressor), while Dr Reinhardt and Dr Dinnen are of the opinion that the Applicant experienced a severe stressor.
72. In the light of such evidence, the Tribunal concludes that the Applicant’s disease of alcohol abuse is war-caused, as the Tribunal concludes that it is unable to find any facts which would prove beyond reasonable doubt that there is no sufficient ground for making the determination that the Applicant’s disease of alcohol abuse is war-caused.
DETERMINATION
73. The Tribunal sets aside the decision under review and in substitution thereof determines that:
(a) the diagnoses for the Applicant’s psychiatric condition are:
(i) post-traumatic stress disorder with depressive symptomatology;
(ii) alcohol abuse; and
(b) that both psychiatric diseases are war-caused; and
(c) the matter is remitted to the Respondent for assessment of impairment arising from the psychiatric conditions and combined impairment rating with other accepted disabilities; and
(d) the assessment of rate of payment of pension.
I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed: Neil Glaser
AssociateDate/s of Hearing 7 and 8 September 2004
Date of Decision 19 November 2004
Counsel for the Applicant Mr N Dawson
Solicitor for the Applicant Ms A Aitken
Solicitor for the Respondent Ms T McConnell
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