Pritchard and Repatriation Commission
[2006] AATA 251
•16 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 251
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2002/1784 & N2004/24
VETERANS’ APPEALS DIVISION )
)Re GORDON PRITCHARD Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Prof I. A. Shearer, Senior Member
Dr P. Lynch, MemberDate16 March 2006
PlaceSydney
Decision The Tribunal decides as follows:
1. The decision of the Commission to reject the Applicant’s claim in respect of the right knee, affirmed by the Board on 27 October 2003, is set aside. In substitution thereof, the Tribunal decides that the Applicant’s claim is accepted, with the date of effect of 23 January 2001.
2. In respect of the Applicant’s remaining claims, the decisions of the Commission of 26 June 2001, as affirmed, varied or set aside by the Board on 14 October 2002 and 27 October 2003, are affirmed.
3. The matter is remitted to the Commission for determination of the appropriate impairment rating under the GARP.
[Sgd] Prof I. A. Shearer
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – operational service - disability pension – generalised anxiety disorder – no diagnosis - decision affirmed.
Veterans’ Entitlements Act 1986 – ss. 9, 13, 120, 120A, 175
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill (2002) 69 ALD 581
White v Repatriation Commission (2004) 39 AAR 67
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Cooke (1998) 90 FCR 307
REASONS FOR DECISION
16 March 2006 Prof I. A. Shearer, Senior Member & Dr P. Lynch, Member 1. The Applicant, Mr. Pritchard, lodged a claim in 2001 for a disability pension in respect of several conditions alleged to be war-caused:
· anxiety disorder;
· pleural plaques;
- internal derangement of the right knee; and
- rotator cuff syndrome.
2. On 26 June 2001 the Repatriation Commission (”the Commission”) decided to accept the claim for pleural plaques, to refuse the claims for anxiety disorder, internal derangement of the right knee and rotator cuff syndrome, and to continue the disability pension at 10% of the General Rate, with effect from 12 January 2001.
3. The Applicant applied to the Veterans’ Review Board (”the Board”) for a review of those of the above decisions of the Commission adverse to him. On 14 October 2002 and 27 October 2003, in successive decisions, the Board decided to:
- affirm the rejection by the Commission of the claim in respect of anxiety disorder;
- vary the diagnosis of internal derangement of the right knee to osteoarthritis of the right knee;
- affirm the decision of the Commission, as varied, to reject the claim in respect of osteoarthritis of the right knee;
- affirm the decision of the Commission to reject the claim in respect of rotator cuff syndrome – both shoulders; and
- set aside the decision of the Commission in respect of assessment, and substitute its decision that the pension be assessed at 50% of the General Rate, to operate from and including 12 January 2001.
4. It is of these decisions of the Commission, as affirmed, varied or set aside by the Board, that the Applicant seeks review by the Tribunal pursuant to section 175 of the Veterans’ Entitlements Act 1986 (”the Act”).
5. At the commencement of the hearing before the Tribunal the issues between the parties were narrowed. The Respondent now accepted the claim in respect of the right knee, and the Applicant did not intend to pursue the claim in respect of the shoulders. This left only the issue of the anxiety disorder, and the consequential impairment rating under the Guide to the Assessment of Rates of Veterans’ Pensions (GARP), in dispute between the parties.
FACTUAL BACKGROUND
6. The Applicant, Mr. Pritchard, was born on 31 May 1947. He left school when he was 15 and worked for two years, before joining the Navy on 26 June 1964 at the age of 17. He became a signaller and intended to serve for 20 years. He initially signed on for nine years, but then reenlisted for a further three years. He served for a total of 12 years before deciding to accept discharge on 26 June 1976 at the end of that engagement. His rank on discharge was Leading Seaman. He received a Naval Board Commendation in the last month of his service in HMAS Perth.
7. Mr Pritchard first saw overseas service some six months after enlistment, when he was posted to HMAS Yarra. In 1965 HMAS Yarra was deployed to Malaysian waters for patrol duties in relation to the “confrontation” between Indonesia and Malaysia. An incident occurred during that deployment in which Mr Pritchard was a member of a boarding party sent to search a suspicious vessel, but where the boarding party was turned back by distant gunfire. Although the shots did not come near him, he was shaken by the experience.
8. However, it is his operational service on board HMAS Perth in Vietnam that Mr Pritchard claims is the cause of his present anxiety disorder. He served on HMAS Perth for two years, from October 1969 until 8 April 1971. His operational service for the purpose of the Act was the period he spent with his ship in Vietnam from 14 September 1970 to 8 April 1971.
9. Mr Pritchard was the Main Signal Office Operator, responsible for mainly ship to ship communication. As HMAS Perth was largely operating alone, he had periods of inactivity, so he occasionally helped his colleagues, for variable parts of their shift on the bridge, some two decks away from his station. During these additional duties periods he was receiving target data and relayed these to the Gunnery Officer. Also he would process Gun Damage Assessment (GDA) reports and relay this information. These GDA reports made Mr Pritchard aware of the effects on shore of some of ship’s bombardment. The reports detailed enemy killed, enemy wounded, and other damage. Mr Pritchard claims that the knowledge obtained from transmitting the GDA information was distressing, and caused his already heavy drinking to increase until around 1999, when he dramatically reduced his alcohol intake.
10. After returning from duty in Vietnam Mr Pritchard received a number of postings, mainly to shore billets. He was discharged from the Navy on 26 June 1976.
11. After leaving the Navy, Mr Pritchard took a “sabbatical” year before deciding to rejoin the work force. He worked in the office of an ammunition factory for six years. He then took a job as a barman at a club for five years. Thereafter he gained employment as a storeman in a fashion house for 12 years. He became the dispatch manager but resigned as a result of his disagreement with management over changes being introduced. His last employment was six years as a supervisor in a publishing company. He stated that his last employment ended as a result of a costly error, for which he was unjustly blamed. Nevertheless he decided to accept a redundancy payment of $10,000. This decision he now considered was a terrible mistake.
12. Mr Pritchard has chosen not to marry and has no regrets about this decision. He appears to lead a relatively solitary life. However, he has a small group of defence force related drinking friends. He used to play golf, but had to give this up in 2001, because his knee troubled him.
13. Mr Pritchard has several concerns about his health. He has had shoulder and knee problems gradually getting worse over many years. Since he ceased work in 2001 he has had several unsuccessful operations on his shoulders and his knee. He was diagnosed with diabetes in 1999. As both his parents died of bowel cancer he is aware of his strong familial chance of suffering from this form of cancer. At one time he was suspected of having the disease but it was investigated and no cancer was found. He now has regular follow-up testing. In addition, following a friend’s death from asbestosis, he underwent investigation and was shown to have pleural plaques on his chest X ray. This proves he has been exposed to, and has inhaled, asbestos particles. However, he was assured by Dr P.J. Despas, the specialist respiratory physician to whom he was referred, that the risk is very low of his developing mesothelioma or asbestosis, as these conditions are associated with a history of significant amounts of asbestos inhalation over a long period of time. Such a history does not apply to Mr Pritchard, but he claims that he cannot get it out of his head and he keeps worrying about it. He recalled in evidence the example of the late Rear Admiral Sir David Martin, under whom he served and whom he greatly admired, who died of an asbestos-related illness.
EVIDENCE REGARDING GENERALISED ANXIETY DISORDER
14. Mr Pritchard showed no outward signs of anxiety when giving his evidence except for a short show of reasonable irritation during cross-examination. His evidence was adequate but variable in estimated details when asked the same question at different times during his evidence. He showed some reluctance to answer questions regarding his feelings at the time of handling the GDA reports on board HMAS Perth in Vietnam. It seems that at that time he regarded himself as “just doing his job”; his negative thoughts about the consequences of the ship’s actions arose with any intensity only after he came home. He was distressed by the way returning Vietnam veterans were neglected and abused, and came to regard the war as having been unjust. In answer to a question as to when his thoughts about Australia’s role in the Vietnam War changed, Mr Pritchard replied that “I couldn’t give you an exact time, but over the past few years, and the way you look back and see different aspects of it.”
15. Mr Pritchard gave evidence that he began drinking alcohol on the occasion of his 18th birthday at sea on HMAS Yarra (31 May 1965, before being posted to Vietnam). He told the Tribunal he preferred to drink ashore, where he could drink as much as he wanted, rather than the two cans per day allowed aboard ship. In specific questioning as to his gradual increase in drinking when ashore, whether he got drunk occasionally or frequently, he replied “Frequently”. Further, his evidence suggested this behaviour was not uncommon amongst the rest of the crew. He estimated he was drinking between 10 to 15 schooners a day by the time he joined HMAS Perth, before they sailed to Vietnam waters. He stated that his drinking increased during his time aboard the HMAS Perth, mainly by the addition of spirits, but claimed this did not have any effect on his work. He stated he drank more heavily during the remainder of his Navy service, the 12 months after his discharge and throughout nearly all his 29 years of post Navy employment, up until 1999. His evidence was that he drank 12 to 15 schooners a day on average up to 1999, when he was informed for the second time that his liver was being damaged. He then greatly reduced his drinking, to an average consumption of two cans per day.
16. Mr Pritchard gave little evidence of his actual feelings at the time of his alleged stressful knowledge from the GDA reports, despite several attempts being made by counsel to elicit these. He gave answers to questions, such as: “Well it was part of the job.” Later when asked to elaborate on this, he said “You didn’t take a lot of notice”. Asked when he took notice of it, he replied “Basically when we came home.”
17. When asked about his feelings when reading and hearing the results of the bombardments, he replied “you weren’t so much happy with what was going on, but it was part of the job - you had to do, and we – it was more when – the more upsetting part was when you used to get the papers from Sydney, etcetera, or Melbourne or Brisbane, wherever and you’d read them and used to really make you upset from that. Like, people in Australia were saying this and that about – we knew for a fact some of the reports in the paper were that wrong it wasn’t funny. Like there was nothing going on, we were doing nothing and we’d been on the gun line……” Asked why he continued to volunteer for work he found stressful he explained, “you knew what you were doing, yes. You mightn’t agree with it, but you weren’t going to say to the Captain, I don’t like this, I don’t like that. That would be like jumping into a madhouse”.
18. Mr Pritchard indicated in his evidence that he considered the effects on him while aboard HMAS Perth were caused by a combination of the actual reports (GDA) and the erroneous newspaper reports. He described the extent of his knowledge in terms of a presumption that they were killing Viet Cong, as he did not actually see anyone killed. His views of the Vietnam War changed probably some two to three years later. He couldn’t pinpoint any particular time but it was probably after talking to his Army friends. He reiterated his early statement, that he did not worry about it much up there (off the Vietnam coast), but “you would be sorry for all the people killed”. However, back in Australia, considering the Army blokes killed, he would think “why didn’t we kill them all?”.
19. Mr Pritchard’s evidence dwelt on what were described by his counsel as “revised thoughts” back in Australia. These revised thoughts were based on:
- his changed view that the Vietnam War was wrong some two to three years after his return;
- the perceived insult at being ordered not to wear his uniform when off duty;
- his subsequent discussions with Army friends (mainly post discharge).
20. Mr Pritchard gave evidence about his 12 months “Sabbatical” immediately after he left the Navy, which he described as “I had 12 months of getting drunk”. He stated the reason for this was “I had enough of so much authoritarian (sic) for 12 years, I just wanted to be by myself and sit down and do nothing.” He explained that he lived at home at Granville, didn’t socialise much other than to go to the same pub or club every day. Eventually he ran out of money and had to seek employment.
21. Mr Pritchard gave no detailed evidence of his symptoms during his employment after he left the Navy other than that he was a loner and continued to drink heavily. The majority of his evidence focused on current symptoms and only as far back as the last six years. Mr Pritchard sought and received no psychological or psychiatric treatment until 2000 and then only after several years of pressure from his sister to lodge a claim, and after advice from the Vietnam Veterans Association. He initially saw Dr S. K. Law for a medico-legal report and later received treatment from him for what Dr Law diagnosed as General Anxiety Disorder. Mr Pritchard’s evidence, when asked why he did not seek treatment earlier was: “I didn’t think I had to.”
Medical Evidence
22. The first doctor consulted by Mr Pritchard in relation to his feelings of anxiety was Dr S. K. Law, consultant psychiatrist. Dr Law’s written reports were before the Tribunal. Dr Law saw Mr Pritchard initially on two occasions in May 2001. He diagnosed “a moderately severe degree of generalised anxiety disorder, which has most probably been causally related to the various stressors he has experienced in past military-time experiences.” At that time he prescribed no medication but eventually prescribed a small therapeutic dose of Tolvon of 60 mgs per day and a sleeping tablet at night. Dr Law continues to treat Mr Pritchard seeing him about every four months.
23. The initial medico-legal report of Dr. Law recorded Mr Pritchard as giving a history of:
· Sleep impairment since leaving the Navy and relies on alcohol to promote sleep and cigarettes to calm his nerves.
· Bad dreams and waking up in a cold sweat.
· Worries mainly about his various health problems, for example “asbestosis”, which he found difficult to control. During times when he felt anxious his hands and right leg would shake, his palms would sweat, he would have a headache, butterflies in his stomach and tightness in his chest.
· History of nail biting declared on entry into the Navy and he tends to do the same now, when nervous.
· Involvement in passing on information of killed and injured resulting from HMAS Perth bombardment ashore in Vietnam.
· Drinking and smoking started in the Navy increased during his service and continued post navy at 12 to 15 schooners and 30 cigarettes per day. He stopped drinking in 1995 but continues to smoke.
24. Dr Law also carried out a GARP Assessment, which expanded this history:
· “Very often Mr Pritchard is unable to distract himself from a moderate degree of distress from his anxiety symptoms.
· “His facial expression, demeanour, and spoken words will reveal to the astute observe that he is significantly distressed.
· “Needs to pay extra attention for own safety in daily living, owing to somewhat impaired concentration. For example, looking long before crossing a street.
· “Anxiety symptoms and somewhat impaired concentration affect his work ability, can only probably work up to only 20 hours per week. (No consideration given to his concomitant physical problems.)
· “Domestic situation; conflicts at times only.
· “Minor reduction in social activities.
· “Anxiety symptoms and impaired concentration have contributed to his substantially reduced amount of recreational activities.
· “Will need outpatient support from doctor and/or psychiatrist at least on and off.”
25. Dr Law’s report of 14 July 2001 commented on the refusal of the Veterans’ Affairs Department to accept the diagnosis of Generalised Anxiety Disorder, as related to war service, because Mr Pritchard’s symptoms were considered to have developed in later life, mainly associated with health problems. He acknowledged that it is difficult to convince a third party of the exact time of onset of a mental condition, especially when it occurred many years ago. Also the sole dependence on subjective accounts from patients as informants was not sufficient, when such accounts are made many years after the alleged time of onset of a mental condition. However he considered the documentary evidence of nail biting as a child and now, was significant as an indicator of feelings of anxiety. He reaffirmed his opinion that Mr Prichard had anxiety disorder of a mild degree, already existing during his military service and that “this anxiety disorder has worsened following his exposure to severe psychosocial stressor during operational service.”
26. Dr Law reported on 15 April 2002 that Mr Pritchard was being admitted for investigation of a suspected cancer of the bowel from X rays, which were of concern to his surgeon particularly as Mr Prichard has a strong family history of bowel cancer in that both his mother and father died of this disease. Mr Prichard was obviously more anxious than when he was last seen and he appeared frail and dejected.
27. Dr Law reviewed Mr Pritchard on 7 February 2003 and found him to be mentally worse. Mr Pritchard agreed to start medication. His knee was painful, stiff and weak after two unsuccessful operations. Dr Law started him on Tolvon 10 increasing to 20 mgs at night. (This is the last report by Dr Law in Dr Salim’s Clinical Notes contained in Exhibit R1.)
28. Dr Anthony Dinnen, consultant psychiatrist, was called by the Applicant and gave evidence by telephone. The Tribunal also had before it Dr Dinnen’s written report of 6 March 2003.
29. Dr Dinnen’s report of 6 March 2003 records that he observed that Mr Pritchard “conveyed a nervous affect throughout the interview” but later commented that the “Patient gave what is obviously a restricted account and is heavily flavoured by long standing symptoms of anxiety and social avoidance”. He considered other possible diagnoses but rejected these with the concluding phrase “although his behaviour at interview was not indicative of such gross pathology”.
30. Dr Dinnen obtained a history of symptoms regarding:
· Sleep difficulty because of tinnitus for years and dreaming of past things and thinking of what happened in the Navy, particularly in the last few years and since he gave up heavy drinking 6 years ago. This was helped by medication (Tolvon 20mg at night), which gave him 2-3 hours sleep at night. At the hearing Dr Dinnen was informed that this medication had been increased to 60 mgs and he considered this was in the therapeutic range for treatment of a psychiatric condition.
· Shaking of his hands and leg, which Mr Pritchard relates to his nervousness; Dr Dinnen elicited symptoms of shaking, which had been present for years. On questioning, Mr Pritchard answered it was not present when he joined the Navy but came about during his service (time not specified) and was present just before playing football games. The shaking settled after the first two schooners. The shakes and his drinking became worse during his service on HMAS Perth. Before this time his nerves weren’t too bad.
· “Butterflies” in his stomach, which was another symptom of his nerves. These began during his service on HMAS Perth and persist to the present day.
· Drinking history. Mr Pritchard became a heavy drinker while in the Navy. He was only a “light drinker” at first but from about 1967 onwards he increased his drinking. It gradually reached the stage where he was drinking 10-12 schooners of beer at a sitting, while ashore. This was when he served in Vietnam in HMAS Perth (1970-71). “It masked everything”, he said. He claimed the drinking was to control his nervous symptoms, which he claimed were related to his relaying the Gun Damage Assessment reports to the Captain. He claimed to have done this about 50 to 60 times the during bombardment of the Vietnam coast by the HMAS Perth and that this caused him concern and worried him and caused him to drink more.
· Smoking. Mr Pritchard is a heavy smoker but cannot give it up and still smokes 30 cigarettes per day. Mr Pritchard feels that smoking relieves his nervousness and his nerves are worse if he tries to stop.
31. Dr Dinnen explored the reason Mr Pritchard took the option to accept discharge in June 1976. Mr Pritchard explained that at that time he had a shore posting and became aware if he signed on again he would be given a sea posting. He asked for three months leave but when this was refused he impulsively took the discharge option. He considered he had been poorly treated and has had nothing to do with the Navy since that time. “They did the dirty on me”.
32. Dr Dinnen questioned Mr Pritchard regarding the emotional effect on him of the diagnosis of pleural plaques. Mr Pritchard had an uncle who died of asbestosis but he had not been in the Navy. A friend died similarly two years ago (2001) and he had talked to him. He was also aware of (Rear? Admiral) Sir David Martin, who died of asbestosis, but this was several years before Mr Pritchard knew of his own exposure to asbestos. However, he told Dr Dinnen this affected him greatly. Mr Pritchard told Dr Dinnen his pleural plaques were getting bigger (but this is inconsistent with Dr Despas’s reports of 2001 and 2003, which do not mention any increase in the size of the plaques).
33. In oral evidence before the Tribunal Dr Dinnen adhered to the content of his written reports. He stated that he did not specifically ask Mr Pritchard how he felt at the time of his being on the gun line in Vietnam, but only in retrospect. Asked for his opinion on the date of clinical onset of Generalised Anxiety Disorder, Dr Dinnen replied that there was a “reasonable presumption” that it dated from Mr Pritchard’s service in Vietnam.
34. The Respondent called Dr. Robert Haik, psychiatrist, to give evidence. Dr Haik’s two written reports were also before the Tribunal.
35. Dr Haik evaluated Mr Pritchard one week after Dr Dinnen and found him to be a pleasant matter of fact historian, who showed no evidence of irritability, emotional upset, agitation or other suggestions that might indicate anxiety or depression. The history he obtained of symptoms of “nerves” consisted of complaints of sweaty palms, butterflies in the stomach, and shakes in the hands. Mr Pritchard did not report these symptoms while in the Navy as he considered that he would have been discharged, which he did not want. He also stated he was not incapacitated by these episodes and he did not worry about his symptoms. He carried on his duties and did the best he could. He was successful in being awarded a Naval Board Commendation in 1971. He dealt with his thoughts by putting them to the back of his mind and carrying on.
36. With regard to Mr Pritchard’s drinking history, Dr Haik noted that Mr Pritchard drank heavily ashore during his Vietnam engagement, and subsequently. After discharge he would drink between 12-15 schooners a day after work. He would be at the hotel from 4.30 to 9 pm. socialising with mates. In the past six years Mr Pritchard had become “totally abstinent” and no longer went to bars. (However, Mr Pritchard himself stated, in evidence before the Tribunal, that he is now a moderate drinker.)
37. Dr Haik noted that, after leaving the Navy, Mr Pritchard during his 29 years of employment put his occasional (3 to 4 time per year) thoughts of his naval experiences and worries to the back of his mind until “Only in the last 3 or 4 years it came to annoy me – my legs and shoulders and thoughts, my memories, what happened in Vietnam and on the Yarra”. He also recorded that Mr Pritchard did not have legal problems, never missed work, never drank at work and had no history indicating a diagnosis of alcohol abuse. He had successfully, even though at the second attempt, brought his alcohol consumption under control for six years. “However, when his alcohol use is measured by the criteria defined in DSM IV (or appropriate SoP) Mr Pritchard does not suffer from Alcohol Dependence or Abuse.”
38. Dr Haik noted that Mr Pritchard’s current problem is sleep disturbance; he retires at 11pm , wakes at 1am and again at 4am, and leaves the bedroom at 6.30am. This is caused by tinnitus, which he has suffered over many years, and which has not responded to treatment.
39. Dr Haik’s general opinion was set out as follows in his report of 13 March 2003:
“4.4. Given Mr Pritchard’s history that when he thinks about the potential danger of being shot at ‘I’d get sweaty palms, butterflies in the stomach, a bit of a shake in the hands’, it might be understood that these are anxiety-based symptoms. He is only prompted to think about such thoughts after reading of (sic) seeing something that might jog his memory – about 3 or 4 times a year. This isn’t evidence of a Generalised Anxiety Disorder.
The SoP for GAD requires, for a diagnosis, that at least 3 of 6 criteria be met and that some symptoms be present for most days than not during the last 6 months: 1. Restless or feeling keyed up or on edge; 2. being easily fatigued; 3. difficulty concentrating; 4. irritability; 5. muscle tension; 6. sleeping difficulties. These are quite disabling symptoms. Mr Pritchard does not conform to the required number of these criteria. The onset of any anxiety-based symptoms must occur within 2 years of a psychosocial stressor. This factor is not met.
Mr Pritchard may suffer short episodes of anxiety lasting minutes of (sic) hours, but this is within the realm of a normal reaction to a stressor, real or in fantasy.
Mr Pritchard’s refusal of medication at the time that he first consulted Dr Law might reflect the degree of his perceived impairment of symptoms. The fact that the Tolvon, prescribed several months ago, has had little beneficial effect also reflects the absence of an appropriate illness pattern of anxiety. Interestingly, a medication such as Tolvon is quite sedating and yet he reported that it has offered no improvement to his sleep pattern – only a dry mouth which is a common side-effect.”
THE APPLICABLE LAW
40. By section 13(1) of the Act the Commonwealth is liable to pay a pension to a veteran who has become incapacitated from a war-caused injury or a war-caused disease. “War-caused injuries or diseases” are defined in section 9 of the Act. The standard of proof to be applied by the Commission in connecting incapacity with relevant war service is set out in section 120 of the Act, as affected by section 120A of the Act. In relation to the condition alleged to be war-caused, namely generalised anxiety disorder, there is in force a Statement of Principles, Instrument No. 1 of 2000 to be applied in accordance with section 120A of the Act.
41. The steps to be taken by the Commission in assessing the liability of the Commonwealth in such cases in accordance with the Act have been set out and discussed in a number of judicial decisions, including Byrnes v Repatriation Commission (1993) 177 CLR 564, Repatriation Commission v Deledio (1998) 83 FCR 82, Repatriation Commission v Hill (2002) 69 ALD 581, and White v Repatriation Commission (2004) 39 AAR 67. The Full Court of the Federal Court in Deledio (supra), at 97-98, summarised those steps as follows:
(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 …
(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.
42. Before applying these four steps, it is first necessary to decide what disease or condition Mr Pritchard is suffering, relevantly to his claim. The standard of proof for determining whether a disease exists was discussed in Repatriation Commission v Colin Mack Cooke (1998) 90 FCR 307. It was held that the diagnosis of a condition should be decided to the reasonable satisfaction of the Repatriation Commission. Reference should also be made to Benjamin v Repatriation Commission (2001) 70 ALD 622 where the Full Court of the Federal Court of Australia stated, at 634-5:
“The first question for the tribunal will be how to characterise the psychiatric problems exhibited by the veteran. If the tribunal is satisfied that the symptoms constitute an injury or disease, the second question will be whether there is an SoP in force in respect of the disease. The diagnosis of that disease, and the determination of whether or not there is an SoP in force in respect of that kind of disease, falls for determination according to the standard of proof laid down in s 120(4) [reasonable satisfaction]. The characterisation of a disease (or injury or death in an appropriate case), for the purposes of determining whether or not an SoP is in force in respect of that kind of disease (or injury or death), is separate from the question of whether a claim relates to the operational service rendered by a veteran within s 120(1). The standard of proof laid down by s 120(1) has no application to the former question.”
Evaluation of the evidence
43. As to the first question that the Tribunal must consider, there was a conflict of evidence regarding the nature of Mr Pritchard’s present psychiatric condition. For the Applicant it was argued that Dr Law and Dr Dinnen had both found symptoms of anxiety disorder. The Respondent, relying on the evidence of Dr Haik, argued that there was no psychiatric condition corresponding to the claim. Dr Haik alone referred to the diagnostic criteria for generalised anxiety disorder (“GAD”), which are set out in DSM-IV (the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, 4th edition) and reproduced in clause 8 of the SoP. Dr Dinnen, in cross-examination, conceded that he had not addressed these criteria; he had presumed GAD in his examination of Mr Pritchard.
44. The Tribunal finds that Dr Haik’s evidence, confirming his report of 13 March 2003 (paragraph 39 in these written reasons for decision) is compelling on this question. Mr Pritchard’s present condition is not so severe as to constitute GAD.
45. It was conceded by counsel for the Applicant that if no GAD were established then there would be no hypothesis since there would be no condition. Thus, it is unnecessary for the Tribunal to consider the matter further.
DECISION
46. The decision of the Commission to reject the claim in respect of the right knee, affirmed by the Board on 27 October 2003, is set aside, with the date of effect of 23 January 2001. In respect of the remaining claims the decisions of the Commission of 26 June 2001, as affirmed, varied or set aside by the Board on 14 October 2002 and 27 October 2003, are affirmed. The question of the appropriate impairment rating under the GARP is remitted to the Commission.
I certify that the preceding 46 paragraphs are a true copy of the decision and reasons for decision of Prof I. A. Shearer, Senior Member and Dr P. Lynch, Member:
Signed: A. Garcia
..................................................................................……………………………….Associate
Date of Hearing 28 and 29 September 2005
Date of Decision 16 March 2006
Counsel for the Applicant Mr M. Vincent
Advocate for the Respondent Mr G. Doube
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