Re Hughes and Repatriation Commission
[2000] AATA 571
•26 June 2000
DECISION AND REASONS FOR DECISION [2000] AATA 571
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1998/1590
VETERANS' APPEALS DIVISION )
Re BRIAN JOHN HUGHES
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen Dr J D Campbell, Member Rear Admiral A R Horton AO, Member
Date26 June 2000
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N1998/1590
)
VETERANS' APPEALS DIVISION )
Re BRIAN JOHN HUGHES
Applicant
AndREPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Dr J Campbell, Member
Rear Admiral A Horton, AO, Member
Date 26 June 2000
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision, namely THAT:
1.The Applicant is entitled to pension for the war-caused diseases of post traumatic stress disorder, psycho-active substance abuse and hypertension.
2.The Applicant is entitled to pension for incapacity from all war-caused injuries and diseases suffered at the Special Rate pursuant to section 24 of the Veterans' Entitlements Act 1986 as and from 29 May 1997.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Post traumatic stress disorder, hypertension and substance abuse. If present before operational service aggravation by operational service meets Statements of Principals. In alternative acceptance that operational service acted on vulnerability caused by prior events so as to cause conditions.
Veterans' Entitlements Act 1986 - s24, subss120(1) and 120(3)
Dell v Repatriation Commission (1985) 2 RPD 427
Repatriation Commission v Cooke 160 ALR 17
Repatriation Commission v Keeley [2000] FCA 532
Repatriation Commission v Deledio 83 FCR 82
Re Cavell and Repatriation Commission 9 AAR 534
REASONS FOR DECISION
Senior Member M D Allen
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant through his Solicitors and pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Dr J D Campbell, Member
Rear Admiral A R Horton AO, Member
Signed: Ivanka Mamic
....................................................................................Associate
Date of Hearing 26 June 2000
Date of Decision 26 June 2000
Counsel for Applicant Mr M VincentSolicitor for Applicant R L Whyburn & Associates
Advocate for Respondent Ms G Pacey, Department of Veterans' AffairsDRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N99/727
By MR M.D. ALLEN, Senior Member
DR J.D. CAMPBELL, Member
REAR ADMIRAL A. HORTON, AO, Member
No N98/1590
BRIAN HUGHES and REPATRIATION COMMISSION
SYDNEY, MONDEY, 26 JUNE 2000MR ALLEN: In this matter pursuant to an application lodged with the Tribunal on 5 November 1998 the applicant sought review of a decision by the respondent, as varied by a Veterans Review Board that his post traumatic stress disorder and hypertension were not war caused diseases. As the applicant had operational service the standard of proof in this matter is that laid down by subsection 120(1) and subsection 120(3) of the Veterans' Entitlements Act 1986 as amended. Those two particular subsections state in effect that the claim is to be granted unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for determining that there is raised on the material before the Tribunal a reasonable hypothesis connecting the diseases claimed by the applicant with the circumstances of the particular service rendered by him.
As the applicant's claim was lodged with the respondent after the first day of June 1994 section 120A of the Veterans' Entitlements Act provides that a reasonable hypothesis cannot exist unless it conforms with a so called statement of principls. A statement of principles in this particular case is in relation to post traumatic stress disorder instrument number 15 of 1994 as amended by instrument number 225 of 1995. In relation to hypertension instrument number 83 of 1995 and to a condition of psycho active substance abuse instrument number 5 of 1994. Although the applicant's original claim as I said referred only to post traumatic stress disorder and hypertension the Tribunal determined that the claim as lodged with the respondent was sufficient to also encompass a claim for psycho active substance abuse relying on the decision of the Federal Court in Dell v Repatriation Commission.
That decision is to be found in volume 2 of Repatriation Pensions Decisions at page 427. As to whether the particular diseases are in fact suffered by the applicant, we refer to the decision in Repatriation Commission v Cooke 160 ALR 17 where the Full Court of the Federal Court said in effect that the existence or otherwise of the nominated disease must be found on the balance of probabilities. In making that decision however, as will all other decisions in this matter, it must be
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©Auscript Pty Ltd 2000kept in mind that subsection 6 of section 120 of the Veterans' Entitlements Act provides that there is no onus of proof upon either party to the review.
The other matter before us of course is that as the Full Court of the Federal Court held in Repatriation Commission v Keeley unreported [2000] FCA 532 that the statements of principles which are to be considered by this Tribunal are those statements of principles which were in force at the time the respondent made its original decision in the applicant's case. As to the interaction of the provisions of subsection 1 and subsection 3 of section 120 of the Act and the so called statements of principles this was discussed by the Full Court of the Federal Court in Repatriation Commission v Deledio 83 FCR 82. There the court said:
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 seasonable 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.
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In this matter the applicant gave evidence as to how certain events both before and after his service in South Vietnam affected him. He was conscripted into the Australian Army and after recruit training was allocated to Royal Australian Engineers. There he trained as a storeman. Whilst posted to the School of Military Engineering at Casula whilst waiting on posting to Vietnam he was involved in an accident at the School of Military Engineering when as part of a work detail trying to prevent soil erosion along the bank of the Georges River a section of that river bank fell in and two of the sappers who were part of his work party were covered by the falling earth and timber and subsequently died.
The applicant apart from being present at the time this accident happened and attempting and being one of the party who dug out the two deceased soldiers also as he had been friendly with one of the deceased had to go to the morgue and identify him. In evidence he said:
The other guy had been with me at Singleton in the early training, the basic training, and so I had been with him from day one in the army so I was asked to identify him at the morgue.
He was asked how did that event affect you.
Well, I recall in the morgue having to get within about a foot of the guy to identify him. I had never seen a dead body and his face was blue and it was awfully hard to confirm the fact that it was him.
Later he had to give evidence to a court of inquiry in the matter. The whole event is set out in exhibit R8 which is a copy of the Army Court of Inquiry into the incident.
Now, it would appear – it was quite clear and indeed confirmed by psychiatrist, Dr Lewin, that any person would have found these events particularly stressful. In passing we are absolutely incredulous and cannot understand the remarks of a Veterans' Review Board who after saying he saw the boy suffocate and die of internal injuries while he and others attempted to dig them out from beneath the pile of girders, soil and rubble but the Board found that the veteran's experiencing did not fall within the definition of stressor. As we said that simply staggers imagination and credulity that such a comment could be made really makes one wonder whether such people should be making decisions on veterans welfare.
The applicant was then sent to Vietnam and there he also found a series of harrowing incidents. In particular he saw heads of deceased Vietcong being placed on posts for display. He was asked how did you feel when you first saw it.
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©Auscript Pty Ltd 2000You look, you glance, you are appalled. You look again to see if you are seeing believing. You do things in front of other guys who has seen it before you know. You become gung ho and that's nothing. You know it's hard to say but it was there and I saw it and observed and it stood out, stuck in my mind thirty odd years ago.
These particular matters were discussed in reports which were before the Tribunal. In particular we would refer to the report of Dr Dinnen, psychiatrist. In passing we would also note to our knowledge, Dr Dinnen, has had a long association with veterans matters and has at one stage been employed by the Department of Veterans' Affairs at Repatriation Hospital Concord.
After interviewing the applicant, Dr Dinnen comments there could be no argument that this patient is grossly incapacitated by long-standing psychiatric problems including alcohol abuse and symptoms of anxiety and depression.
His presentation at interview and the reports quoted leave room for no other interpretation in my opinion.
Dr Dinnen then referred to a set of statements of principles which were later than the ones which this Tribunal has to refer to and are in fact even more limiting. He says:
The later statements of principle, instrument 3 of 1999, defining post traumatic stress disorder has been considered. I have compared this with the previous instruments, No. 15 of 1994 and 225 of 1995 and believe that the criteria are satisfied to the extent that the patient could be considered as suffering from this condition as a result of service.
Dr Dinnen then goes through the various criteria as outlined in the DSM and the SOP for a diagnosis of post traumatic stress disorder and finds that within those criteria a post traumatic stress disorder is the diagnosis.
The applicant's treating psychiatrist is Dr Altman. His report is at document T18 of the documents prepared for the tribunal pursuant to section 37 of
the Administrative Appeals Tribunal Act. In that document he sets out the history. At page 62 he says:On further questioning it became evident that his Vietnam experiences has affected him in the following ways.
He then sets out again material meeting the criteria of the statement of principles and concludes the above features are indicative of a chronic post traumatic stress disorder.
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©Auscript Pty Ltd 2000Dr Lewin was called by the respondent. Initially Dr Lewin did not diagnose a post traumatic stress disorder. However, having been confronted with the document which became exhibit R8, he conceded that it was conceivable that the diagnosis of a post traumatic stress disorder is correct and added that although he would not make that diagnosis he does consider it a reasonable hypothesis. He further added that a person who has been exposed to a significant stressor, meaning of course the accident at Casula, is clearly more vulnerable.
He also added in a question to the tribunal that a person who has a post traumatic stress disorder as a result of an incident such as that at Casula would have such a post traumatic stress disorder aggravated, that is to say be made worse than it otherwise would have been as a result of his service in Vietnam, particularly the experiences of this applicant. We've already mentioned some of his experiences, such as the heads.
There is also the fact that he was driving on roads in an unaccompanied vehicle and the particular incidents are set out in the reports of various psychiatrists and we do not think we need to recapitulate them here. So far as a psychoactive substance abuse dependence is concerned, we need go no further than the evidence of Dr Lewin before this tribunal today. Having interviewed the applicant, Dr Lewin had the clinical impression that he had an alcohol dependence syndrome.
When one looks at the statement of principles the first cause is experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence and maintaining the abuse or dependence post service, well it would seem clear here that what happened to the applicant, there was a stressful event prior to the clinical onset. He was then subjected to further stressful events, events stressful to him in Vietnam and the whole milieu of Vietnam was that alcohol was readily available and cheap.
There is reference to this in the evidence before the tribunal in particular that although there was a ration of beer it was always possible to get more beer because of other people who were absent at the particular time. It is also a factor, that factor C, experiencing a stressful event prior to the clinical worsening of psychoactive substance abuse or dependence, maintaining the abuse or dependence post service. That again refers to aggravation.
Now the aggravation sections are set out in paragraph (e), subsection (1) of section 9 of the Veterans' Entitlements Act which reads, inter alia, where the disease contracted by the veteran was suffered or contracted before the commencement of the period or last period of eligible war service rendered by the veteran but not while the veteran was rendering eligible war service and in the opinion of the Commission the injury or disease was contributed to in a material degree or was aggravated by any eligible war
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service rendered by that veteran being service rendered after the veteran suffered that injury or contracted that disease.So that it is quite clear, as hypothesis here that, one, the veteran suffered a post traumatic stress disorder and, two, a psychoactive substance abuse or dependence prior to going to Vietnam and that his eligible service in Vietnam rendered it such that an aggravation occurred. The other hypothesis is as pointed out by the respondent's witness, Dr Lewin, that the applicant was more vulnerable as a result of the incidents.
The only other matter we need address on that is an argument by the respondent that somehow experiencing a stressor prior to the clinical onset of post traumatic stress disorder relates to something which occurred on service. However, (b) is pointed out, experiencing a stressor prior to the clinical worsening of post traumatic stress disorder and that clearly, as per paragraph (3) of the SOP brings in the aggravation provisions. In other words, as we interpret sub-paragraph (b) of paragraph (3) of the SOP together with sub-paragraph (b) of paragraph (1), it is clear that if a post traumatic stress disorder has been caused prior to eligible service and is then made worse than it otherwise would have been by the eligible service then the SOP is met.
The other disease claimed to be war caused is the applicant's hypertension. Now, in this regard we don't need to repeat it. We would simply refer to the evidence of Dr Richards, cardiologist, which occurs at pages 42-46 of the transcript in this matter. In particular, and we do quote this, Dr Richards said:
In this case Mr Hughes consumes alcohol and is hypertensive and it's my opinion that his alcohol is the cause or has exacerbated hypertension. If his alcohol consumption was considered due to service it's my opinion that it would follow that hypertension was due to service through consumption of alcohol.
In this matter, having regard to the SOP and the evidence it is clear to us that the factors have been met and the applicant's psychoactive substance abuse or dependence has met the criteria of instrument No. 5 of 1994.
The matter then must be assessed as to the degree of pension payable to the applicant for these particular diseases. Exhibit R7 is a report by Dr Mark Burns, occupational physician to the respondent. At page 5 of his report Dr Burns did an assessment pursuant to the Guide to the Assessment of Repatriation Pensions, 5th Edition and stated:
An impairment rating of 40 points rounded and a lifestyle rating of 4 would give him an incapacity of 80 per cent.
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©Auscript Pty Ltd 2000As the applicant's incapacity is over 70 per cent one must consider whether he is entitled to pension at either the special rate or the intermediate rate. The criteria for the grant of pension at the special rate is set out in section 24 of the Veterans' Entitlements Act and as this applicant is under the age of 65 years what is applicable is subsection (1) of section 24.
In particular, the tribunal must be satisfied that the veteran is suffering a loss of salary or wages or earnings on his or her own account as a result of the incapacity from war-caused injury or diseases alone. So far as the alone test is concerned all we need refer to is the decision of Burchett J in Cavell and Repatriation Commission 9 AAR 534 at 539 where his Honour said that the task of the Tribunal was to make a practical decision whether the veteran's loss of remunerative work is attributable to his service related incapacities and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions but with an eye to reality and as a matter in respect of which commonsense is the proper guide. There was considerable evidence given by the applicant as to the circumstances in which he ceased work.
Dr Burns it would appear had before him for the purposes of exhibit R7 the section 37 documents, his original report, the report of Dr Richards, dated 14 April 1999 and the transcript of proceedings before the Administrative Appeals Tribunal on 5 January 2000. We would only say that that is when the applicant and Dr Richards gave evidence. Dr Burns concludes his report by stating.
If the additional information supplied to me today by Mr Hughes is taken into account then I believe it would be extremely difficult for him to return to the workforce. I believe that his psychological problems which he in fact is denying and covering up are fairly significant. I believe that currently it would be impossible for him to work more than eight hours per week due to his psychological problems. Additionally, I believe that his drowsiness may also give him some problems with work but this would only be a temporary incapacity as his medication could be altered. I believe that his substantial problem would in fact be his psychological one.
I would only add that Dr Lewin, the respondent's psychiatrist, as we understand it, agreed that even on the matter of psychoactive substance abuse that the applicant would not be capable of undertaking work. So it seems to us that in all the circumstances the criteria for the grant of pension at the special rate have been met.
The decision of the tribunal will therefore be that the decision of the respondent is set aside and the tribunal substitutes in lieu thereof its decision, namely, that the applicant is entitled to pension for the war-
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©Auscript Pty Ltd 2000caused diseases of post traumatic stress disorder, psychoactive substance abuse and hypertension and is entitled to pension for the incapacity occasioned by those diseases at the special rate pursuant to section 24 of the Veterans' Entitlements Act, that pension to be paid as and from the 29th day of May 1997.
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