Portakiewicz and Repatriation Commission
[2005] AATA 1292
•22 December 2005
DECISION AND REASONS FOR DECISION [2005] AATA 1292
Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2004/236
VETERANS' APPEALS DIVISION ) Re RYSART JOESEF PORTAKIEWICZ Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date22 December 2005
PlaceAdelaide
Decision 1. The tribunal varies the decision under review insofar as it relates to the applicant’s conditions of PTSD and hypertension, and decides that those conditions are war-caused.
2. The tribunal affirms the decision under review insofar as it relates to the applicant’s condition of alcohol dependence.
3. The tribunal remits the matter to the respondent with a direction that the respondent assess the applicant’s entitlements in accordance with the attached reasons for decision.
4. The tribunal reserves liberty to the parties to apply, on or before 18 January 2006, in relation to the date of effect from which pension payable as a result of this decision should take effect, and in the absence of any such application, the date of effect will be 1 June 2000.
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Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – veteran’s entitlements – post-traumatic stress disorder – alcohol dependence – hypertension – tribunal decided that conditions not war-caused – appeal to Federal Court allowed – matter remitted to tribunal for determination in accordance with law – consideration of whether veteran is suffering from post-traumatic stress disorder – hypothesis that claimed conditions are war-caused – applicant experienced a “severe stressor” prior to clinical onset of claimed conditions – Statements of Principles – decision under review varied.
Veterans’ Entitlements Act 1986, s 120
Benjamin v Repatriation Commission (2001) 70 ALD 622
Bull v Repatriation Commission (2001) 66 ALD 27
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
East v Repatriation Commission (1987) 16 FCR 517
Elliott v Repatriation Commission (2002) 73 ALD 377
Guy v Repatriation Commission [2005] FCA 562
Hardman v Repatriation Commission (2004) 82 ALD 433
Lees v Repatriation Commission (2002) 125 FCR 331
Re Portakiewicz and Repatriation Commission [2003] AATA 343
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 65 ALD 609
Repatriation Commission v Stoddart (2003) 134 FCR 392
Stoddart v Repatriation Commission (2003) 74 ALD 366
Woodward v Repatriation Commission (2003) 200 ALR 332
REASONS FOR DECISION
22 December 2005 Deputy President D G Jarvis 1. The applicant, Rysart Joesef Portakiewicz, is a veteran of the Vietnam War. He served with the Royal Australia Navy between 6 April 1964 and 5 April 1973. He had thirty days’ operational service on HMAS Sydney between 27 May and 26 June 1965, and thirty-six days’ operational service between 14 September and 20 October 1965. He also served on HMAS Parramatta, and had nine days’ operational service between 15 and 24 May 1971. In each case the vessel on which he served sailed to Vietnam.
2. On 1 September 2000, Mr Portakiewicz lodged a claim for pension for incapacity arising from emotional and behavioural disorder, tinnitus, tinea, and hypertension. On 4 May 2001 the Repatriation Commission refused his claim. On 30 August 2001 the Veterans’ Review Board (“VRB”) consented to the withdrawal of tinea as a claimed condition, and affirmed the decision to refuse a disability pension in respect of the remaining claimed conditions.
3. Mr Portakiewicz applied to this tribunal for review of the Commission’s refusal of his claims. During the hearing the Commission conceded liability for the claimed condition of tinnitus. On 19 March 2003 the tribunal (differently constituted) confirmed the Commission’s decision to reject the claims in respect of the remaining three conditions (Re Portakiewicz and Repatriation Commission [2003] AATA 343).
4. Mr Portakiewicz appealed to the Federal Court against the tribunal’s decision. On 16 July 2004 Lander J ordered by consent that the tribunal’s decision of 19 March 2003 be set aside and remitted the matter to the tribunal for determination in accordance with law. I have heard Mr Portakiewicz’s application for review de novo, in accordance with this remitter. The transcript of certain evidence adduced at the first hearing, together with a number of exhibits tendered in that hearing, have been tendered in the hearing before me. That evidence has also been updated and supplemented by further evidence, expert reports and other material. I have carefully considered all of the evidence before me.
Issues before the Tribunal
5. On the re-hearing of the application before me, the issues before the tribunal were as follows.
(a)Is Mr Portakiewicz suffering from PTSD?
(b) If he is suffering from PTSD, is it war-caused?
(c) Are his conditions of alcohol dependence and hypertension war-caused?
6. It was admitted at the hearing before me that Mr Portakiewicz is suffering from alcohol dependence and hypertension. At the earlier hearing, the Commission conceded that Mr Portakiewicz was suffering from PTSD, but this concession was withdrawn, and the diagnosis of PTSD was in issue before me.
7. The claim for pension was received by the Department of Veterans’ Affairs on 1 September 2000, and so if Mr Portakiewicz is successful in his claim, the earliest date of effect pursuant to s 20 of the VE Act would be 1 June 2000, being three months before its receipt by the Department. To the extent that I have decided that Mr Portakiewicz’s claim is successful, it seems appropriate that the date of effect of any pension entitlement should be 1 June 2000.
Background
8. Mr Portakiewicz was born on 13 March 1947. He joined the Royal Australian Navy when he was seventeen, and served in the Navy from 6 April 1965 until 5 April 1973.
9. He did a recruit training course of three months, went to sea for about six months on HMAS Sydney, and then went back to the Flinders Naval Depot for engineering training. He then rejoined the Sydney, and his first period of operational service, from 27 May to 26 June 1965, was when the Sydney sailed to Vietnam.
10. He was on board the Sydney between 14 September and 20 October 1965 when it again went to Vung Tau Harbour. He then served aboard the HMAS Supply in Malayan waters from 24 May to 22 May 1966 and from 26 May to 26 June 1966. From 15 to 24 May 1971 he was on board HMAS Parramatta when it undertook escort duties, and was in Vung Tau Harbour on 22 May 1971.
11. He was discharged from the Navy in 1973 with the rank of Petty Officer. He then volunteered to join the Naval Auxiliary Fleet for five years, and this entailed approximately 13 days’ service each year.
12. After his discharge from the Navy on 5 April 1973 Mr Portakiewicz worked at TipTop Bakeries for about seven months, and late in 1973 he joined the South Australian Fire Brigade (which I will refer to by the acronym “MFS”, which is an abbreviation of its current name). He continued working with the MFS until the year 2000, when he went on extended sick leave because he found that he was unable to cope with work. He has not worked since then. He started work in 1973 as a fireman, and had become a station officer prior to ceasing his work with the MFS. He said that he reached a point where he could not cope with his work, first because of his use of alcohol and then because of his PTSD. He said he enjoyed the MFS and “cherished” his job. He explained that this was because helping people made him feel good.
13. He described some horrific experiences in the MFS when he visited accident scenes. In 1990, when he was off duty, he stopped at an accident scene and discovered that his son had been killed in the accident, and he helped remove his son’s body. He was clearly profoundly saddened and upset by this experience.
Asserted Stressors
14. Mr Ower, counsel for the applicant, asserts in the present proceedings, in essence, that certain stressful events occurred during Mr Portakiewicz’s operational service with the Navy, and caused the conditions on which his claim is based. He relies upon four events, which he asserted were as follows.
(a)The forklift event: Mr Portakiewicz was driving a forklift on board HMAS Sydney and unloading materials on the flight deck. As a result of the brakes failing and/or not operating fully, the forklift he was driving almost went over the edge of the flight deck of the Sydney. There was a drop of about 15 metres to a barge at the side of the ship.
(b)The flashback event: While he was working in the boiler room of the Sydney the protective pressurised doors on the boiler room opened at the same time. This caused a change in pressure which momentarily drew flame into the boiler causing a “flashback”. This flashback singed the hair of a sailor who was standing next to him, but he himself was not physically harmed.
(c)The scare charge event: During the second voyage that Mr Portakiewicz undertook onboard the Sydney, he was required to move along and inspect shaft tunnels that were located under the waterline at the bottom of the ship. While he was undertaking this work he heard a loud explosion, which he later found out was a scare charge to protect the Sydney from enemy divers.
(d)The Parramatta event: While on his final voyage on the Parramatta in May 1971, he was on duty as a petty officer in the boiler room when there was a call for the ship to go to full astern to avoid a collision with a Russian freighter. Such an order is only given in an extreme emergency, and he had never experienced this before. Mr Portakiewicz was in charge of the boiler room at the time, and four other sailors were also there. The evasive action left the boilers’ water levels low and the pipes dangerously hot, with the risk that they could have burst, filling the room with hot steam. A rapid change in air pressure in the boiler room led to the boiler pulsating for some 10 to 20 seconds. He feared for his life. After 2 to 4 minutes the boilers returned to normal. I shall refer to this event as the “Parramatta event”, and I note that it has also variously been referred to as the “Russian freighter event” and the “pulsating boiler event” in other material before me.
Is Mr Portakiewicz Suffering from Post-Traumatic Stress Disorder
15. The question of whether Mr Portakiewicz is suffering from PTSD must be determined on the balance of probabilities to the reasonable satisfaction of the decision-maker pursuant to s 120(4) of the Veterans’ Entitlements Act 1986 (the “Act”): Benjamin v Repatriation Commission (2001) 70 ALD 622 at [54] to [55]. The issue of the diagnosis is a separate issue from whether the conditions were war-caused, and should be addressed before determining the issue of causation.
16. Mr Portakiwicz called his treating psychiatrist, Dr D S Kelly, at the first hearing and also at the hearing before me. He relies primarily on the evidence of Dr Kelly in support of his claim that he suffers from PTSD. At the first hearing he also called another psychiatrist, Dr M Ewer. He also relies on a report provided by a third psychiatrist, Dr P Furze. I will refer to the psychiatric evidence relied upon by Mr Portakiewicz in the sequence in which he was examined by these three psychiatrists.
Psychiatric evidence re PTSD relied upon by applicant
17. The applicant was first referred to Dr Ewer by the Department of Veterans’ Affairs, which sought Dr Ewer’s opinion on Mr Portakiewicz’s psychiatric condition. Dr Ewer provided a report to the Department dated 23 November 2000, a copy of which appears as T7 in exhibit AI. Dr Ewer reported that he gave “considerable thought” as to whether Mr Portakiewicz should be diagnosed as suffering from a generalised anxiety disorder or from PTSD, but concluded that the appropriate diagnosis was PTSD. Dr Ewer referred to a number of stressful events to which Mr Portakiewicz had been exposed during his service, but identified as especially significant the flashback event, the Parramatta event and a third event, which appears to be a somewhat incomplete and inaccurate description of the forklift event. In support of this diagnosis, Dr Ewer reported:
“He was exposed to a number of traumatic and life-threatening experiences in Vietnam. These traumas evoked intense feelings of fear, helplessness and of horror. He has continued to re-experience the traumatic events in the form of nightmares. He has demonstrated persistent avoidant behaviour over many years. He experiences emotional numbing and he feels detached from others. He has persistent symptoms of increased arousal indicated by insomnia, poor concentration, hypervigilance and an exaggerated startle reaction.”
18. He went on to say that there was a temporal relationship between the traumas described and the development of his PTSD in the sense that the latter came on directly after the former, and a causal link because his condition of PTSD focussed exclusively on the traumas he had described. Dr Ewer also interviewed Mrs Portakiewicz and made brief references to information she provided.
19. In cross-examination Dr Ewer said that if Mr Portakiewicz had experienced several traumatic events whilst serving as a fire fighter, those events would be aggravating factors rather than causal factors, given that in his opinion there were three significant stressors that contributed to his developing PTSD, and given that he had had symptoms relating to those stressors when he saw him.
20. Whilst Dr Ewer in his report reiterates the diagnostic criteria for PTSD and reports that Mr Portakiewicz met those criteria, his report contains limited information as to any history of specific symptoms or complaints, and for that reason is not particularly helpful. Further, his report relates to the position as at the date of his examination, which was 22 November 2000, and is of very limited assistance for that reason also. Nevertheless, Dr Ewer’s report and evidence supports a diagnosis of PTSD at least as at the date of his examination.
21. In September 2001, Mr Portakiewicz was referred to Dr Furze by the Vietnam Veterans’ Counselling Service. In a report dated 26 September 2001, Dr Furze refers to having interviewed Mr and Mrs Portakiewicz and to having obtained “a history of thirty years of stress, with explosiveness, poor sleep, alcohol over-indulgence and family disharmony”. He further reports:
“Richard suffers from chronic poor sleep, sleeping for two to three hours, wakes up sweating, fighting in his sleep and has nightmares. This sleep pattern is chronically impaired. Richard has three surviving sons, aged 33, 24 and 22. He had one son, Andrew, who died in a motor vehicle accident 11 years ago. He has a poor relationship with his sons, is stressed, angry and puts high expectations on them. The relationship is distant and characterised by them avoiding their father. He and his wife, Angela, have been married for 33 years and she describes domestic violence, periods of separation where she has left for 2 to 3 days because she is scared. At this stage, she said she stays mainly because of her Catholic faith which she says means ‘that it is her job to make it work’”.
22. Dr Furze proceeds to narrate other aspects of the history he obtained, and refers to the forklift event, the flashback event and the scare charge event. He then describes in some detail the Parramatta event, which he calls the “most significant incident”. He refers to this event entailing a very great risk of a high pressure steam explosion where Mr Portakiewicz and his four stokers would have been in the line of danger. He said it was significant that Mr Portakiewicz’s drinking then appeared to increase and deteriorate. He then reports:
“This man has problems in confined spaces, he has nightmares where he is swimming in oil, encased in machinery, that the ship is running out of coolant or he is being crushed by machinery.”
He concludes:
“My opinion is that this man has alcohol dependency syndrome and he probably has chronic Post Traumatic Stress Disorder resulting from the Parramatta incident. I have not questioned him about the incidents in the Fire Service but I would be surprised if there were not secondary re-traumatisation.”
He then recommended that Mr Portakiewicz should take some leave and should go into the Kahlyn Hospital for detoxification, counselling and alcohol rehabilitation.
23. As a result of the referral to the Kahlyn Private Hospital, Dr Kelly began treating Mr Portakiewicz. Dr Kelly provided a number of reports, the first of which is dated incorrectly 11 January 2001, instead of 11 January 2002. In this report, Dr Kelly records that he had read the report of Dr Ewer dated 23 November 2000 and the report of Dr Furze dated 26 September 2001. He then recites the history he had obtained, and reports that during the admission to Kahlyn for alcohol detoxification and rehabilitation it became clear that in addition to alcohol there were also significant problems dating back to his service in the form of PTSD. He further reports that from his discussions it became apparent that one incident in particular was of note, namely the Parramatta event. He reports that he regarded this incident as having the potential to place Mr Portakiewicz “in mortal danger”. His report then continues:
“Since that occasion Mr. Portakiewicz has had repeated nightmares of a frequency of once per week of being in engine rooms in which there is a melting down of boilers or of boilers not having water for cooling which would result in such a melt down occurring. He described also other situations in which he would be aboard ship and where the back half of the ship would disappear. He described other occasions when he would wake fighting but not knowing what he had been dreaming.
In addition to the nightmares, Mr. Portakiewicz on first assessment also described experiencing at times flashbacks of similar incidents.”
Dr Kelly then proceeds to describe a number of further symptoms and difficulties which Mr Portakiewicz had experienced. He then says that he concurred with Dr Furze that the precipitant for the PTSD was the Parramatta incident, and said that in his opinion that incident would fulfil the first criteria for PTSD as described in DSM-IV (the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, published by the American Psychiatric Association), in that it was a significant stressful event in which the safety and integrity of Mr Portakiewicz was placed in significant danger. He further considered that all of the other criteria for the diagnosis were fulfilled.
24. Dr Kelly reiterated his opinion in subsequent reports dated 10 September 2002, 4 October 2002, 18 October 2002 and 15 December 2004. In these further reports, Dr Kelly refers to Mr Portakiewicz having used alcohol as a way of coping with his PTSD, and that his PTSD had gradually increased in intensity. He further reported that with PTSD, “there is often a delay in the onset of acute symptoms”, and that “associated conditions and situations may mask the disorder’s onset for a considerable period of time. This is especially true where the patient has used alcohol as a form of self-medication”. He added that as time went on with his service in the MFS, Mr Portakiewicz’s ability to cope with stressors in that employment further deteriorated, that his PTSD also made it more difficult for him to cope with the death of his son, and that this had had a further impact upon his general functioning.
25. In his evidence at the first hearing, Dr Kelly confirmed that the Parramatta event was the most traumatic event for Mr Portakiewicz, and continued to be so. He further said that in his opinion, Mr Portakiewicz had used alcohol “as a way through much of his working life, to cope with the underlying psychological reaction to that original trauma … Further, during his working life with the South Australian Metropolitan Fire Service, he is likely to have experience (sic) a variety of incidents which would have further perpetuated that original disorder.” (transcript 14.3.03, page 18, line 32). Dr Kelly was unwilling to diagnose a date for the clinical onset of PTSD, other than to say that it was during or soon after the time when he was in Royal Australian Navy, and that it was kept in abeyance with the use of alcohol. He said that he did not regard other stressful events during Mr Portakiewicz’s experience as a fire fighter as irrelevant, but he regarded them as perpetuating an already existing condition.
26. In his evidence before me, Dr Kelly said that the flashback event and the forklift event did not in themselves give rise to PTSD but were likely to have predisposed him to such a condition. He further said that the scare charge event was likely to have commenced the development of the disorder, but the major precipitant was the Parramatta event, and that event “caused its full blown manifestation” (transcript 21.6.05, page 13, line 37). However, he again reiterated in re-examination that he was unable to say when the clinical onset of PTSD occurred, because it had been significantly hidden by his alcohol use throughout a significant length of his adult life.
27. It was put to Dr Kelly in cross-examination that Mr Portakiewicz’s record of promotion within the Navy and subsequently with the MFS was inconsistent with his having suffered PTSD as a result of experiences during his Naval service. Dr Kelly pointed out in response that some of the promotions during Mr Portakiewicz’s service preceded the Parramatta event. He also said that in any event he had seen many people with PTSD who had been able to progress within their careers notwithstanding their disorder, and it appeared that there had been a delayed onset of Mr Portakiewicz’s PTSD.
Psychiatric evidence relied upon by the respondent
28. The Commission referred Mr Portakiewicz to Professor R D Goldney for a medico-legal assessment. He provided reports dated 29 November 2004 and 1 March 2005 to the Commission’s solicitor, and gave evidence before me. Professor Goldney disagreed with the opinions expressed by Doctors Ewer, Furze and Kelly that Mr Portakiewicz was suffering from PTSD. After obtaining a detailed history from Mr Portakiewicz which extended to his childhood experiences and early development, Professor Goldney concluded that that probably Mr Portakiewicz’s condition is that of a chronic adjustment disorder with anxious and/or depressed mood. He further considered that the cause of these emotional symptoms was “multi-factorial”, and could be explained by certain experiences in his childhood and as he developed, and experiences subsequent to his Naval service, including the death of his son and the effect on him of the circumstances in which he discovered that his son had been killed.
29. The Commission also called evidence from two other psychiatrists who had provided a medico-legal assessment. They had been consulted by AMP Life Limited to assess Mr Portakiewicz in connection with a claim for disability benefits under a policy issued by the MFS’s superannuation fund. The first psychiatrist was Dr I H Synnott. He saw Mr Portakiewicz on one occasion, on 25 November 2003, for between 45 and 60 minutes. In a report dated 29 November 2003 to the AMP, Dr Synnott made a “differential diagnosis” of PTSD. Later in his report, he said:
“From a psychiatric perspective, despite the fact that he describes sufficient symptoms to make the diagnosis of a PTSD, he is not psychiatrically incapacitated to return to his normal job as a Station Officer – on either a full-time or part-time basis.
However, because of his ‘mindset’ and maladaptive pattern of behaviour, any attempt to return to any form of employment would be unsuccessful.”
To the extent that Dr Synnott acknowledges that sufficient symptoms had been described to make the diagnosis of PTSD, and in that he arrived at a differential diagnosis of PTSD, his opinion tends to support the applicant. Further, Dr Synnott obtained a history of traumatic experiences during the service in the MFS and of those traumatic experiences beginning to “trigger off” memories from service in the Navy. That history is consistent with the late onset of symptoms of PTSD.
30. In his oral evidence, Dr Synnott explained that his reference to a “differential diagnosis” was another term for a working diagnosis; it was a possibility but not necessarily an absolute or a definite diagnosis, but merely one worthwhile considering. He was asked in his evidence-in-chief what he would say if he were to form an opinion at the time of his consultation (which was almost two years earlier). He concluded a lengthy answer with a statement that the “history was not consistent with what one would expect to see in PTSD” (transcript, 5.10.05, page 17, line 15).
31. It appears that the issue with which Dr Synnott was principally concerned at the time of his consultation was whether Mr Portakiewicz had the capacity to work, and that it was not essential to express a concluded view in his report to the AMP about his differential diagnosis in order to express a view about that issue. Dr Synnott’s explanation of anti-social or so-called maladaptive behaviour was that Mr Portakiewicz had abrogated personal responsibility due to increasing irritability which he thought was common amongst certain men in their fifties and sixties. However, this was inconsistent with Mr Portakiewicz’s estimation to him that it was in 1987/88 (that is, when Mr Portakiewicz would have been forty or forty one) that he began to notice significant psychological symptoms impacting on him. Dr Synnott’s further explanation that the behavioural and emotional problems had been “medicalised” would not explain the diagnosis of PTSD arrived at by Doctors Ewer and Furze before Mr Portakiewicz had undergone any treatment. Further, when he referred to the promotions in the Navy and the MFS as inconsistent with a diagnosis of PTSD, Dr Synnott appeared not to have given appropriate consideration to the possible relevance of alcohol having been used as a form of self-medication, or of there having been a late onset of PTSD or its symptoms. For all of the above reasons, I do not accept Dr Synnott’s rejection of his differential diagnosis of PTSD.
32. The second psychiatrist from whom the AMP sought advice was Dr D Lovell. Once again, the primary purpose of his report appears to have been to assess whether Mr Portakiewicz was totally and permanently disabled from working. It became apparent from his evidence that Dr Lovell interprets criterion A of the diagnostic criteria for PTSD in DSM-IV in a very restrictive way. He said that in his view, none of the stressors, including in particular the Parramatta event, would fulfil criteria A. For reasons explained below, I reject this view, which appears to have been a fundamental premise of Dr Lovell’s opinion.
33. Dr Lovell also thought that the history which he obtained of dreams was not consistent with the stressors. However, it seems to me that that history, which included dreams relating to being in a flooded compartment, trying to open the hatches or being in the mess when the ship was cut in half, could be sufficiently connected with the Parramatta event. I accept the alternative view to the effect that the diagnostic criterion does not require the dream to correlate exactly with the stressor. Further, Dr Lovell placed emphasis on Mr Portakiewicz having joined the Auxiliary Fleet after his discharge, but apparently did not explore or take into account Mr Portakiewicz’s expectation as to what this would entail, or his reasons for making this election. In addition, Dr Lovell did not concede that it might be relevant to obtain any history from Mrs Portakiewicz, notwithstanding that he thought that Mr Portakiewicz was exaggerating his memory difficulties.
34. This latter view was based in part on the results of a “Test of Memory Malingering” (TOMM) which Dr Lovell administered. However, I was given very little explanation as to the value of TOMM as an aide to psychiatric diagnosis, or as to the relevance of the test result obtained, which on the face of it appeared to be anomalous when compared with the grading points which Dr Lovell did explain. I note that none of the other psychiatrists who gave evidence made any reference to the TOMM, and apparently did not think it necessary to administer that test.
35. Like Dr Synnott, Dr Lovell saw Mr Portakiewicz on only one occasion, which was well over two years ago. He was necessarily unable to provide a current diagnosis, which is of course my task in these proceedings. I also find his opinions not helpful on the issue of diagnosis.
36. I have carefully considered the psychiatric evidence on which the Commission similarly relies, namely the evidence of Professor Goldney. An important aspect of his opinion is his view that none of the events during Naval service would constitute the kind of traumatic event referred to in the first diagnostic criteria for PTSD in DSM-IV. However, in my view, the Parramatta event was one that involved the threat of death or serious injury, or a threat to the physical integrity of Mr Portakiewicz and the sailors who were with him at the time. In this regard, I prefer Dr Kelly’s analysis, and I consider that Professor Goldney’s rejection of the relevance of the person’s perception of the relevant event (being an aspect referred to by Dr Kelly) is inconsistent with the reference to “threatened” and “threat” in the diagnostic criteria. I refer in this regard to Repatriation Commission v Stoddart (2003) 134 FCR 392, and to the analysis of Mansfield J at first instance in Stoddart v Repatriation Commission (2003) 74 ALD 366. I am aware that the diagnostic criteria in DSM-IV are to be used as “guidelines to be informed by clinical judgment and are not meant to be used in a cookbook fashion” (DSM-IV Text Revision at xxxii). Nevertheless, the Courts in the above cases were interpreting the definition “experiencing a severe stressor” in the Statement of Principles in respect of PTSD, and the relevant words in that definition correspond with the words appearing in criteria A in DSM-IV for the diagnosis of PTSD. It seems to me appropriate that the words in the diagnostic criteria should be understood to convey the meaning which the Courts explained.
37. In any event, if contrary to this interpretation there must nevertheless be an objective assessment of the relevant threat, then I find that the Parramatta event satisfied the objective requirements of an event involving threatened death or serious injury. In my view, the event can properly be described as a traumatic event. Professor Goldney further acknowledged in cross-examination that the most important difference between the diagnostic criteria for PTSD and for his diagnosis of adjustment disorder was the “strength of the stressor” (transcript 21.6.05, page 57, line 35). I prefer Dr Kelly’s assessment of the relevance of the Parramatta event to criteria A of the diagnostic criteria for PTSD.
38. Professor Goldney acknowledged that he did not specifically ask Mr Portakiewicz whether his consumption of alcohol increased after the Parramatta event, although he acknowledged that one could hypothesise that if Mr Portakiewicz had used alcohol as a form of self-medication following the Parramatta event, that might be an indication that the event had some significant effect on him (transcript 21.6.05, page 60, line 9). The references to information provided by Mrs Portakiewicz suggests that excessive use of alcohol are longstanding, and are consistent with Mr Portakiewicz’s evidence that they date back to his Naval services days.
39. Further, Professor Goldney places importance on Mr Portakiewciz’s decision to join the Naval Auxiliary Fleet and his decision to become a fireman after his discharge. However, he does not appear to have investigated Mr Portakiewicz’s reasons for joining the Auxiliary Fleet (namely his desire to receive higher DFRDB benefits) and does not inquire into Mr Portakiewicz’s expectations as to the nature of his duties in the Auxiliary Fleet. I also note that the reference in criteria C in DSM-IV to avoidance refers to avoidance of “the trauma”. In addition, there appears to have been no inquiry into Mr Portakiewicz’s expectations as to his likely duties at the time when he joined the MFS, or any understanding that an expansion in the role of the MFS (whereby its officers were required to attend road accidents) did not occur, according to Mr Portakiewicz’s evidence, until some years after he had joined the MFS, when the MFS was asked to take over that role.
40. Professor Goldney also referred in his evidence to the absence of records of problems following the asserted stressors, and it is apparent that he would have expected to see some documented record of a clinically significant reaction to the relevant events. However, Mr Portakiewicz explained that it was contrary to Naval culture to have complained or to reveal fear or concern. I accept this evidence, and do not find the absence of service records to be of significance. It is also likely that the use of alcohol as self-medication enabled him to suppress his problems, and this would explain the absence of records.
41. I also note that Professor Goldney seems to place considerable emphasis on Mr Portakiewicz’s obvious distress and emotion when describing the events surrounding the death of his son, and contrasts this with the much more matter of fact way in which he recounted the stressors in the Navy. However, I find it only natural that Mr Portakiewicz would have been distressed when narrating this part of his history, and that this does not indicate that Mr Portakiewicz did not have the requisite subjective reaction at the time of the Parramatta event.
42. Professor Goldney only saw Mr Portakiewicz on one occasion, and his interview lasted about an hour and twenty five minutes. Whilst he could not remember whether he spoke to Mrs Portakiewicz, he agreed that if he did, his discussion with her would not have been longer then five or ten minutes at the most. I note that Professor Goldney could not remember whether he asked Mr Portakiewicz any questions about whether he had flashbacks relating to any experience with the Navy (transcript, 21.06.05, page 72, line 29). I find that Dr Kelly, as the treating psychiatrist who has seen Mr Portakiewicz on a regular basis for many years, was in a better position than Professor Goldney to obtain a more comprehensive and better understanding of Mr Portakiewicz’s symptoms and of their relevance to his Naval experiences.
43. Counsel for the respondent, Ms S Maharaj, submitted that Dr Kelly, as the treating psychiatrist had not provided an independent or objective assessment, but rather had become a “barracker”. I am mindful that Dr Kelly’s original report of 11 January 2002 is expressed to have been prepared at the request of Mr Portakiewicz for the purposes of his appeal against the decision of the VRB. Further, his two reports of October 2002 appear to be supportive of a claim against the insurers of the MFS, where the question of his capacity to return to work was in issue. In assessing Dr Kelly’s opinion, it is also of some concern that when he gave his evidence in the first hearing he was unable to answer certain questions because he did not have access to the notes from the Kahlyn Private Hospital. Notwithstanding this difficulty, he again did not have the Kahlyn notes available on the two occasions when he gave evidence before me. As a result, he was unable to recall when giving evidence whether he knew of the son’s death when he first assessed Mr Portakiewicz. However, he did take this matter into account when later he was expressly asked to do so, and he confirmed his diagnosis of PTSD.
44. Notwithstanding the matters referred to in the previous paragraph, I found Dr Kelly’s evidence to be carefully considered and well-reasoned, and consistent with the history which he and Dr Furze obtained from Mr and Mrs Portakiewicz, and with Mr Portakiewicz’s evidence before me, which I accept.
45. I prefer the evidence of Dr Kelly to that of Professor Goldney. I find that Mr Portakiewicz is suffering from PTSD, and I turn to the issue of whether that condition, and his conditions of alcohol dependence and hypertension, are war-caused.
Legislation
46. Section 9 of the VE Act provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:
“9 War-caused injuries or diseases
(1)Subject to this section, 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:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …”
47. The expression “operational service” is defined in ss 6 to 6F of the VE Act. Under s 6C, a person renders operational service if he or she is, inter alia, allotted for duty in an operational area. The expression “operational area” is defined in s 5B(1) by reference to Schedule 2 of the VE Act. This Schedule includes in Item 8 of Column 1, the Vietnam (Southern Zone) during the period from and including 31 July 1962 to and including 11 January 1973.
48. Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
49. As the applicant has performed operational service, as defined in s 6 of the VE Act, the determination of whether his asserted conditions are war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those sections provide relevantly as follows:
“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.
Note: This subsection is affected by section 120A.
…
(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.
Note: This subsection is affected by section 120A.”
50. Under s 120A of the VE Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (“RMA”) has made a Statement of Principles (“SoP”) in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
“(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.
Note: See subsection (4) about the application of this subsection.”
Subsection (4) of s 120A excludes the operation of subsection (3) in certain circumstances which are not relevant to the present proceedings.
51. Section 196A of the VE Act provides for the establishment of the RMA. Section 196B of the VE Act provides, in effect, that if the RMA is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to operational service rendered by veterans, the RMA must determine a SoP in respect of that kind of injury, disease or death setting out the factors that must as a minimum exist, and which of those factors must be related to service rendered by a person, before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of the veteran’s service. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
Consideration
52. The claimed conditions of PTSD, alcohol dependence and hypertension are the subject of SoPs. I will set out the relevant provisions of the SoPs below. I note that where a SoP exists I must apply the test prescribed by s120A(3) of the VE Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97, in the following way:
“1 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.
2 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). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3 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.
4 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, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. 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.”
53. In considering whether there is an hypothesis connecting Mr Portakiewicz’s conditions with his war service, and in applying the relevant Deledio steps to that end, I must consider all of the material before me, whether or not that material supports the hypothesis, as required by such cases as Bull v Repatriation Commission (2001) 66 ALD 27 at [21], the decision of Hill J in Hardman v Repatriation Commission (2004) 82 ALD 433 at [39] to [41], and Elliott v Repatriation Commission (2002) 73 ALD 377. In the last of these cases Stone J, at [25], likened the decision-maker’s task to striking out a statement of claim as failing to disclose a cause of action, where no consideration is given to whether the facts pleaded can be substantiated.
54. An hypothesis that (once again, after taking into account all of the material before me) could be said to be “obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous” would not be reasonable and would not point to the relevant connection with the veteran’s service (see Bull (supra) at [18], where Emmett and Allsop JJ explained the significance in this regard of East v Repatriation Commission (1987) 16 FCR 517). I refer also to Repatriation Commission v Bey (1997) 79 FCR 364 where in their joint judgment, Northrop, Sundberg, Marshall and Merkell JJ said in effect (at pages 372.9 to 373.1) that a “reasonable hypothesis” involves more than a mere possibility, and is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities.
55. As regards the first step in Deledio, I am satisfied that the material before me points to an hypothesis connecting the claimed conditions with Mr Portakiewicz’s operational service. That hypothesis is that one or more of the asserted events to which I have referred above resulted in Mr Portakiewicz suffering PTSD and alcohol dependence which in turn caused hypertension, and that accordingly those conditions are war-caused.
56. SoPs have been determined by the RMA pursuant to s 196(2) of the VE Act in respect of the conditions in question. The SoP in respect of PTSD (the “PTSD SoP”) is Instrument No. 3 of 1999, as amended by Instrument No. 54 of 1999 (being exhibit A1, T11, pages 106 – 110 and 112 – 112 respectively), and is the SoP currently in force. The SoP in respect of alcohol dependence (the “Alcohol SoP”) is Instrument No. 76 of 1998 (being exhibit A1, T11, pages 120 - 125). The SoP in respect of hypertension (the “Hypertension SoP) is Instrument No. 35 of 2003 as amended by Instrument No. 3 of 2004 (being exhibit RXIV).
57. I now turn to the third step as enunciated in Deledio. This entails determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoPs. This step involves considering all of the material before me, but without making any findings of fact at this stage of the process. The history given by a veteran to a medical practitioner can constitute material before the Tribunal for this purpose: Lees v Repatriation Commission (2002) 125 FCR 331. I shall consider the three claimed conditions in turn.
Is the condition of PTSD war-caused?
58. Under clause 4 of the PTSD SoP, at least one of the factors set out in clause 5 must be related to the relevant service (being in this case operational service) by the veteran. Clause 5 then provides relevantly as follows:
“Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person’s relevant service are:
(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; …”
59. The applicable definition of “experiencing a severe stressor” in the PTSD SoP is as follows:
“‘experiencing a severe stressor’ means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities, or abusive violence;”
60. I have already found that the Parramatta event meets the criteria in paragraph A of the diagnostic criteria in DSM-IV. In making that finding, I referred to the evidence before me in relation to those criteria. That evidence includes Mr Portakiewicz’s evidence and the history he gave to Doctors Ewer, Kelly and Furze in relation to the Parramatta event. In considering the Parramatta event, it is necessary to take into account Mr Portakiewicz’s evidence that he had not previously encountered the situation he described, his perception of the danger that had arisen, and his concern (in the absence of full knowledge of the relevant facts) that a collision with the freighter might have occurred,
61. I find that the material referred to in the previous paragraph constitutes evidence supporting the hypothesis that the condition of PTSD was war-caused, and is consistent with factor 5(a) in the PTSD SoP. As a result, by virtue of s 120A(3) of the VE Act, the hypothesis connecting Mr Portakiewicz’s PTSD with the circumstances of his operational service is reasonable. The disentitling provision of s 120(3) of the VE Act (which would mean that Mr Portakiewicz’s claim would fail if I had concluded that the relevant hypothesis was not reasonable) does not therefore apply.
62. In considering the issue of diagnosis, I have already found that I am satisfied on the balance of probabilities that Mr Portakiewicz’s PTSD was caused by the Parramatta event. As a result, Mr Portakiewicz’s claim that his PTSD was war-caused succeeds.
63. My above finding makes it unnecessary for me to decide a further issue of whether the Parramatta event happened in operational service, but I will address that issue for the sake of completeness. There is material before me that the event did happen in operational service. This evidence consists of Mr Portakiewciz’s evidence that the event after the Parramatta left Bangkok, and from the reports of proceedings of the Parramatta, it appears that this was on 15 May 1971. This constitutes evidence before me for the purposes of the third step in Deledio that the event occurred during operational service. I find that this hypothesis was not disproved beyond reasonable doubt by the evidence led by the Commission, having regard to the evidence of Mr Archer at the first hearing that while he recalled an incident that occurred in March 1971, a second incident involving an order of full ahead or full astern may have occurred in May 1971. I also consider that having regard to s 119(1)(h) of the VE Act, the absence of a record of the event period should not be regarded as proof beyond reasonable doubt that this event did not happen during that period.
Is Mr Portakiewicz’s alcohol dependence war-caused?
64. Under clause 4 of the Alcohol SoP, at least one of the factors set out in clause 5 must be related to the relevant service by the veteran. Clause 5 of the Alcohol SoP relevantly provides:
“5 The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence … with the circumstances of a person’s relevant service are:
(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; … .”
65. Factor 5(a) involves examining the material before me as to when it could be said that Mr Portakiewicz was suffering from PTSD. In his report dated 23 November 2000, Dr Ewer concluded that Mr Portakiewicz’s PTSD was “clearly and directly related to the traumatic experiences he was exposed to during his trip to Vietnam.” (exhibit A1, T7, page 81.9). He does not identify which of the trips to Vietnam he was referring to. He goes on to refer to a “temporal relationship” between the traumas and the development of PTSD “in the sense that the latter came on directly after the former.” However, the history obtained by Dr Ewer (such as it was) in most cases does not refer to the date when various symptoms which support his diagnosis of PTSD became manifest, and neither his report nor his evidence provide evidence as to the date of the onset of PTSD.
66. Dr Kelly was most reluctant to provide any opinion as to the date of onset of PTSD, and said that he thought it had been “significantly hidden by his alcohol use throughout a significant length of his adult life” (transcript 21.6.05, page 29, line 17). In his report of 26 September 2001 Dr Furze expressed the opinion that Mr Portakiewicz had PTSD resulting from the Parramatta event, but does not indicate the date of the onset of the disorder. Professor Goldney thought that (on his diagnosis) adjustment disorder, as well as alcohol dependence, was likely to have developed in the mid 1990s.
67. Having reviewed all of the material before me, but without attempting to make any findings of fact, I consider that the material does not point to Mr Portakiewicz having suffered PTSD at the time of the clinical onset of alcohol dependence or alcohol abuse. I know turn to factor 5(b).
68. The expression “experiencing a severe stressor” in factor 5(b) is defined in the Alcohol SoP in terms which are almost identical to the definition of that expression in the PTSD SoP. The only difference is that in the Alcohol SoP, the words “which event or events might evoke intense fear, helplessness or horror” are included at the end of the first paragraph of the definition, but they do not appear in the definition in the PTSD SoP.
69. I note that in Guy v Repatriation Commission [2005] FCA 562 Tamberlin J considered the relevance of the additional words referred to in the preceding paragraph, and said that the correct approach was to ask whether the event “might, or could possibly, evoke the relevant emotions” (i.e. intense fear, helplessness or horror), and the focus was “on the type and nature of the danger, namely, whether it can be characterised as being capable of evoking the relevant emotions” (at [20]). His Honour also said, at [19], that the tribunal should have asked whether the incident was of a type which might evoke the relevant emotions (as indeed the tribunal had concluded), and should not have asked whether the incident did evoke the relevant emotions.
70. In the present matter, there is evidence before me that the Parramatta event constituted an event which could be characterised as an event evoking the relevant emotions, and so met the requirements of the definition of “experiencing a severe stressor” in the Alcohol SoP. Further, there is evidence before me that the other events relied on by Mr Portakiewicz as stressors could also be characterised as events which met the requirements of the definition (and I refer in this regard to Mr Portakiewicz’s evidence, including his written statements which were tendered as exhibits AIX and AX, and the report of Dr Ewer dated 23 November 2000, Dr Furze’s report and Dr Kelly’s report of 15 December 2004). In my view this evidence also meets the requirements of the definition.
71. Under factor 5(b), it is also necessary to determine the meaning of “clinical onset”. These words were considered by the Full Court of the Federal Court in Lees (supra). The Court referred to the analysis of the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668, in which Senior Member Dwyer concluded (at 670) that:
“... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.”
That analysis was specifically endorsed by Branson J in RepatriationCommission v Cornelius[2002] FCA 750.
72. No diagnosis of alcohol dependence or alcohol abuse was made within the relevant two-year period after the date of any of the four asserted stressors.
73. The diagnostic criteria for substance dependence are set out in DSM-IV, and require a maladaptive pattern of substance use, leading to clinically significant impairment or distress, as manifested by three (or more) of seven specified symptoms, occurring at any time in the same twelve-month period. It is also relevant to refer to the diagnostic criteria for substance abuse that are set out in DSM-IV, because certain evidence before me referred to Mr Portakiewicz abusing alcohol, and Dr Ewer’s first report referred to a diagnosis of alcohol dependence or abuse. The Alcohol SoP applies to both conditions, and if I reject the claim for alcohol dependence, it is necessary for me to consider the possible alternative diagnosis of alcohol abuse (see Benjamin, supra). In the case of substance abuse, the diagnostic criteria in DSM-IV refer to a maladaptive pattern of substance use leading to clinically significant impairment or distress, as manifested by one (or more) of four specified symptoms or indicia, and there is the additional requirement that the relevant symptoms have never met the criteria for substance dependence.
74. Mr Portakiewicz gave evidence both at the first hearing and before me to the effect that he consumed substantial quantities of alcohol. There is also evidence that his excessive use of alcohol dated back to the days of his Naval service. He referred in particular to a substantial increase in his consumption when he was promoted to be a petty officer, which he thought was in 1971. His record of service indicates that this promotion occurred either in June or August 1971. This would mean that this increase occurred more than two years after the first three asserted stressors, but only a short time after the Parramatta event. He also gave evidence of having smuggled alcohol on board ship, and of an occasion when he was picked up by American MPs and incarcerated for being drunk and disorderly. However, the time frame when these events occurred is unclear.
75. Mr Portakiewicz also said that in 1970 he received a poor evaluation in a report to the Navy Office. This evaluation included his work ethics and attitude, and he was put on a demotion list for a period of six weeks. This evidence suggested that his drinking was interfering with his work performance during that period. However, this period was more than two years after the first three stressors, and pre-dated the Parramatta event. While there was also a non-specific reference to the alcohol use interfering with his work with the MFS, that evidence is not related to the necessary two-year period from the stressors, and nor was it suggested that this occurred within a twelve-month period, as required by the diagnostic criteria in DSM-IV.
76. Dr Kelly referred in his first report to having obtained a history from Mr Portakiewicz of alcohol abuse going back to his Navy days. In his evidence before me he referred to alcohol problems having begun during the time of his delayed promotion. However, none of this evidence related to the occurrence of the necessary constellation of symptoms to indicate the clinical onset of alcohol dependence or alcohol abuse. My review of all of the evidence before me does not point to the clinical onset of alcohol dependence or alcohol abuse within two years of the asserted stressors.
77. I therefore consider that on the material before me, the hypothesis is not consistent with either of the relevant factors referred to in the Alcohol SoP. As a result, the hypothesis is not reasonable, and the claim in respect of alcohol dependence must fail.
Is Mr Portakiewicz’s hypertension war-caused?
78. The SoP in respect of hypertension, to which I referred in paragraph 56 above, was not in force at the time when the claim for pension was lodged. However, I must apply the Hypertension SoP notwithstanding this: Repatriation Commission v Gorton (2001) 65 ALD 609.
79. Clause 4 of the Hypertension SoP provides that at least one of the factors set out in clause 5 must be related to the relevant service rendered by the veteran. The relevant factor is referred to in clause 5(b). This provides as follows:
“(b) consuming an average of at least 200 grams per week of alcohol which cannot be decreased to less than an average of 200 grams per week, at the time of the clinical onset of hypertension … .”
The definition of “alcohol” in clause 8 of the SoP provides as follows:
“‘alcohol’ is measured by the alcohol consumption calculations using the Australian Standard of 10 grams of alcohol per standard alcoholic drink.”
80. It is common ground that the diagnosis of hypertension was made in 1998, as appears from exhibit A1, T5, page 63. There is evidence before me that at the time when hypertension was diagnosed, Mr Portakiewicz was consuming more than the quantity of alcohol referred to in clause 5(b) of the Hypertension SoP. There is also material before me that his excessive consumption of alcohol was related to his operational service. I refer in this regard to the evidence narrated in paragraphs 74 to 76 above. The hypothesis connecting the hypertension to operational service is therefore consistent with the Hypertension SoP, and so the hypothesis is not unreasonable.
81. For the sake of completeness, I mention that in the SoP in respect of hypertension which was in force at the time of the decision by the Commission to reject the claim for hypertension, the relevant factor required the veteran to be suffering from alcohol dependence or alcohol abuse, involving a minimum level of consumption of alcohol, at the time of the clinical onset of hypertension. Because I have found that the condition of alcohol dependence was not war-caused, Mr Portakiewicz’s claim would not have succeeded under that superseded SoP, because it was not supported by that SoP. However, the SoP in respect of hypertension currently in force does not require the veteran to be suffering from alcohol dependence at the time of the clinical onset of hypertension, or that that condition should be war-caused. In view of the wording of the current Hypertension SoP, the failure of Mr Portakiewicz’s claim that his alcohol dependence was war-caused will not result in his claim for hypertension failing.
82. The fourth step in determining whether the claim for hypertension is war-caused involves making findings of fact from the material before me, bearing in mind the provisions of s 120(1) of the VE Act to the effect that the claim will succeed unless I am satisfied beyond reasonable doubt that there is no sufficient ground for determining that the incapacity in question was war-caused. In examining this question, I note that there is no onus of proof (see s 120(6) of the VE Act, and the explanation of the role of this Tribunal as an administrative decision-maker in Bushell v Repatriation Commission (1992) 175 CLR 408 at pages 424.8 to 425.5). I also refer to Byrnes v Repatriation Commission (1993) 177 CLR 564 at page 571.3, where Mason CJ, Gaudron and McHugh JJ said:
“If a reasonable hypothesis is established, subs.(1) of s.120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.”
83. For the reasons referred to above, I prefer the evidence of Dr Kelly to that of Professor Goldney, including Dr Kelly’s evidence as to the connection between Mr Portakiewicz’s alcohol dependence and his operational service. I find that the evidence before me supporting the hypothesis connecting the hypertension with the operational service has not been disproved beyond reasonable doubt, and no other facts which are inconsistent with the hypothesis have been proved beyond reasonable doubt.
Conclusion
84. For the above reasons, I am not satisfied beyond reasonable doubt there is no sufficient ground for determining that the conditions of PTSD and hypertension were war-caused. I must accordingly determine, by virtue of s 120(1) of the VE Act, that those conditions were war-caused. I further find that Mr Portakiewicz’s claim in respect of alcohol dependence fails.
Decision
85.(1) I vary the decision under review insofar as it relates to the applicant’s conditions of PTSD and hypertension, and decide that those conditions are war-caused.
(2)I affirm the decision under review insofar as it relates to the applicant’s condition of alcohol dependence.
(3)I remit the matter to the respondent with a direction that the respondent assess the applicant’s entitlements in accordance with the attached reasons for decision.
(4)I reserve liberty to the parties to apply, on or before 18 January 2006, in relation to the date of effect from which pension payable as a result of this decision should take effect, and in the absence of any such applicant, the date of effect will be 1 June 2000.
I certify that the 85 preceding paragraphs are a true
copy of the reasons for the decision herein of
Deputy President D G JarvisSigned: .....................................................................................
J MacIntyre AssociateDate/s of Hearing 20 – 22 June 2005 and 4 – 7 October 2005
Date of Decision 22 December 2005
Counsel for the Applicant Mr S Ower
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Ms S Maharaj
Solicitor for the Respondent Australian Government Solicitor
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