Re Stonehouse and Repatriation Commission
[2004] AATA 707
•2 July 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 707
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/283
VETERANS' APPEALS DIVISION ) Re DOUGLAS STONEHOUSE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member Bernard McCabe
Major-General J Stein, MemberDate 2 July 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
....................[Sgd].......................
BJ McCabe
Senior Member
CATCHWORDS
VETERANS AFFAIRS – pensions and entitlements – applicant claims anxiety disorder is service related – whether applicant experienced a severe psychosocial stressor – meaning of the term severe psychosocial stressor – whether clinical onset occurred within two years of severe psychosocial stressor – decision affirmed
VETERANS AFFAIRS – pensions and entitlements – applicant claims alcohol abuse or alcohol dependence is service related – whether applicant experienced a severe stressor – whether applicant suffers alcohol abuse or alcohol dependence – decision affirmed
Veterans’ Entitlements Act 1986
Repatriation Commission v Deledio (1998) 83 FCR 82
Demczuk v Repatriation Commission [2003] FCA 1188
White v Repatriation Commission [2004] FCA 633
O’Neil v Repatriation Commission (2001) 34 AAR 290
Benjamin v Repatriation Commission [2001] FCA 1879
McKenna v Repatriation Commission [1999] FCA 323
Krause and Repatriation Commission [2004] AATA 359
Repatriation Commission v Stoddart [2003] FCAFC 300REASONS FOR DECISION
2 July 2004 Senior Member Bernard McCabe
Major-General J Stein, Member1. This is an application for review of a decision of the Veterans’ Review Board (the VRB) of 14 February 2002. The VRB affirmed the Repatriation Commission’s decision of 13 September 2000 as varied by the Commission on 28 September 2001. The Commission decided the applicant’s conditions of anxiety disorder and alcohol dependence or abuse are not war caused.
2. The matter was heard by the Tribunal on 9-10 March 2004. The applicant was represented by Mr Harding. The respondent was represented by Mr Kelly, a departmental advocate. The documents submitted pursuant to s37 Administrative Appeals Tribunal Act 1975 were tendered in evidence. Also in evidence were:
• Statement of the applicant dated 2 July 2002;
• Undated statement of J. Durick;
• Two statutory declarations of Mervyn Ward dated 12 March 2002
• A statement of Mervyn Ward dated 1 August 2003;
• A statement of Ian Hunger dated 30 July 2003;
• A statement of Malcolm Wheat dated 10 August 2003;
• A statement of William Krause dated 28 July 2003;
• A statement of William Reilly dated 22 July 2003;
• A report of Dr Wainwright dated 28 October 2002;
• A report of Dr Carter dated 8 May 2003;
• A Writeway Research report dated 7 March 2003• An extract from a Naval Ratings Handbook.
Several witnesses also gave evidence at the hearing:
• The applicant;
• Joseph Durick;
• Mervyn Ward;
• Ian Hunter;
• Malcolm Wheat;
• William Krause;
• William Reilly;• Dr Janice Carter; and
• Dr Wainwright.
The Facts
3. The applicant served with the Royal Australian Navy from 14 January 1963 until 13 January 1972. For the purposes of the Veterans’ Entitlements Act 1986 he had six periods of operational service. They were:
(a)27 May 1965 – 17 July 1965 aboard HMAS Yarra;
(b)29 July 1965 – 1 September 1965 aboard HMAS Yarra;
(c)25 April 1966 – 9 May 1966 aboard HMAS Yarra;
(d)26 May 1966 - 9 June 1966 aboard HMAS Yarra;
(e)15 September 1969 – 11 April 1970 aboard HMAS Vendetta;
(f)28 October 1970 – 9 November 1970 aboard the HMAS Vendetta.
4. An incident occurred while he was on operational service in Da Nang harbour (aboard HMAS Vendetta) which he says is responsible for his conditions. He recounts his experience of the event in his statement (exhibit 2). He says
The most terrifying incident that really affected me was the one in relation to Scare Charge. In October 1969 a scare charge was dropped very, very close to the ship and while I was in the gun magazine on the lower deck below the water line and was unaware that charges were even going to be dropped.
After the initial shock of the explosion against the ships hull I was sure we had been mined. The lights went out and the memory of drowning in a sinking ship came back to me. I felt absolutely trapped in a darkened area surrounded by ammunition and I did not know what to do next. I thought I was going to die.
The ship speakers called “Hand to Emergency Station Forward”. This incident really frightened me at that time as I was well below the water line and in this condition all water hatches are closed and you have to get out before they are shut on you. As it happened they were being shut as we were trying to get out…
5. The applicant says this incident caused him to develop an anxiety disorder. He also says his service in Vietnam caused him to become a regular heavy drinker and caused his alcohol dependence. He says:
even though I was not adverse to having a drink prior to going to Vietnam, there is no doubt whatsoever that South Vietnam service especially the 6 months long term had a detrimental affect [sic] on me in as much that I then became quite a regular drinker
6. He says he was disciplined for his excessive consumption of alcohol while in Singapore in 1970.
The Law and Application
7. The applicant claims two conditions are related to service. We will deal first with his anxiety disorder and then with the alcohol abuse or dependence.
8. The approach in relation to each claim is the same. It was explained by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82. The Tribunal must firstly determine whether the material before it gives rise to a hypothesis connecting the injury with the service rendered. There is clearly an hypothesis connecting the applicant’s anxiety disorder with his service on board HMAS Vendetta: the incident with the scare charges that caused him to fear being trapped in a sinking ship. There is also an hypothesis connecting his alcohol dependence or abuse with his service: his drinking was a response to his experience with the scare charge incident and a reaction to the anxiety condition that he developed.
9. The next step is to determine the relevant Statements of Principle (SoPs). This approach applies as this claim was lodged after 1 June 1994. In this case, they are:
(a)for anxiety disorder, instrument 1 of 2000;
(b)for alcohol dependence or abuse, instrument 76 of 1998.
10. The Tribunal must then determine whether the facts as presented “fit” the SoP. It is not the Tribunal’s role to make findings of fact at this point: see for example Demczuk v Repatriation Commission [2003] FCA 1188.
Do the facts as presented fit the SoP for Anxiety Disorder?
11. The applicant sought to rely on Factor 5(a)(ii) of the SoP. It provides:
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder…with the circumstances of a person’s relevant service are:
a.) for generalised anxiety disorder or anxiety disorder not otherwise specified, only
ii.) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder
12. The key term is defined later in the instrument:
“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems
13. Accepting the applicant’s version of events, the questions for the Tribunal are:
· Could the scare charge incident qualify as a severe psychosocial stressor?
· Did clinical onset of anxiety disorder occur within two years of the applicant’s experiencing the event?
We are satisfied the scare charge incident was an “identifiable occurrence” within the meaning of the SoP.
Was the incident a severe psychosocial stressor?
14. The applicant says he heard the explosion, was terrified for his life, and immediately escaped the magazine and reached the upper deck. Do these facts suggest the applicant experienced a severe psycho-social stressor within the meaning of the SoP?
15. The case of White v Repatriation Commission [2004] FCA 633 provides guidance as to how the term should be construed. Spender J said the test had both a subjective and an objective element (cf : O’Neil v Repatriation Commission (2001) 34 AAR 290). His Honour explained at paragraph 30:
the definition of severe psychosocial stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned. Both aspects are relevant and necessary.
16. It follows the task of the decision-maker is to be satisfied to the relevant level that:
· there was an identifiable occurrence, the nature of which is such as to evoke the kind of feelings that one would expect in a person like the applicant exposed to that occurrence; and
· the person actually experienced those feelings.
17. White settles the subjective/objective element of the test. But the term requires further explanation. In particular the terms “severe” and “stressor” must be read in conjunction with the qualifier “psychosocial”. The words in the instrument must be given their plain meaning. What is the plain meaning of psychosocial stressor? Psychosocial is defined in the Oxford English Dictionary as:
Pertaining to the influence of social factors on an individual's mind or behaviour, and to the interrelation of behavioural and social factors
This definition is consistent with the examples of psychosocial stressors given in the instrument:
for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems
18. The events described in the definition are stressful – but not simply because they are frightening or unusual. Many of the events described, like a divorce or unemployment, are common events that do not ordinarily engender fear. They do cause distress, however, and almost everyone can relate to the pressure and tension one experiences in those situations. Even events that involve violence (eg, being shot at) are psychosocial stressors because the victim is likely to be distressed by the motivation of the aggressor (“What have I done to deserve this? Why me? How could someone do such a thing?”) rather than simply being frightened or fearing for his or her bodily integrity. An event that was merely dangerous or frightening – particularly an event that happened quickly, and which passed – does not amount to a psychosocial stressor without that additional dimension. The term was not intended to include all kinds of stressful and terrifying events – the social element makes it quite distinct from the concept of a severe stressor for the purposes of the SoP regulating post-traumatic stress disorder.
19. A severe psychosocial stressor must be a stressor that is both severe and psychosocial in nature, and cause the requisite level of distress to the individual. To satisfy the SoP the individual must have experienced an identifiable which has social factors that affected his or her mind or behaviour, causing the requisite level of distress.
20. In oral evidence Mr Stonehouse described the event and the feelings it evoked in him:
This explosion…was so loud, because being below the water line everything is so magnified and the first thing you think [is] “We’ve been hit”. Like, you’re just waiting for the water to come in…All we could do was get out before we were trapped in there...
So if you could explain in some more detail your feelings, your emotions while this happened? –Well, just pure panic. As far as I’m concerned, that’s it, I’m going to die and I remember all the people – the ones I know that are already dead, who I met in the cruise school and the ones that dies on the [HMAS] Voyager.
21. The applicant’s account of the incident cannot satisfy the definition of severe psychosocial stressor. While his account suggests it was certainly frightening, the incident lacks the necessary social element. It is more akin to a severe stressor within the meaning of various other SoPs.
22. Even if we are wrong in our conclusions with respect to the absence of a social dimension to the incident, the event cannot fit the definition of severe psychosocial stressor because it is not an occurrence that could evoke feelings of the necessary kind in an ordinary person (or Mr Stonehouse himself, to the extent that he was not an ordinary person) exposed to that occurrence. In other words it fails on the objective element of the White test. This incident occurred very quickly. As soon as Mr Stonehouse heard the explosion his training kicked in and he dashed to the upper decks where he quickly discovered the reality of the situation. His misapprehension of fear of death was very brief. He was not unable to function. We are not satisfied the feelings of distress Mr Stonehouse says he felt satisfy the test.
Did the Applicant experience clinical onset of Anxiety disorder within 2 years of experiencing the event?
23. We can now proceed to the fourth step in Delido. The applicant said he experienced clinical onset of the condition within two years of experiencing the incident. Can the fact that clinical onset occurred within two years of the incident be disproved beyond a reasonable doubt? We think it can.
24. Dr Carter said in her first report:
An example of how he experienced anxiety is that, after 1970, when this occurred, he started drinking heavily.
25. The applicant started drinking heavily. This is the only evidence we have of clinical onset. Its significance is diminished when we note the applicant was no stranger to drink before the incident. In cross examination the following exchange took place between Mr Kelly and the applicant:
Were you drinking then?---Just average.
What’s average?---…well I don’t know, maybe five or six, probably.
So you were having two a night on the ship, and when you went ashore you had five or six beers?---You’d probably have more sometimes.
26. Dr Wainwright disagrees with Dr Carter. He says clinical onset occurred when the applicant was working at Ansett (well beyond two years after the incident). In his report Dr Wainwright writes:
Mr Stonehouse states that he has had these feelings “ever since I have been at Ansett – about 13 years. The first time I noticed it I was working in a cleaners. I had to go into a locker in an aircraft and there were no lights in there. You don’t know where you are. You feel trapped in there and want to get out”. He states that this occurred just after he had started work at Ansett…
27. A third doctor prepared a report. Dr Chalk interviewed Mr Stonehouse in 2000 (ff17-19 T4 of the T-documents). His brief report does not mention any symptoms of anxiety disorder at all. This is strange and runs against the applicant’s story.
28. The respondent can prove beyond a reasonable doubt that clinical onset of the condition did not occur within two years of the applicant’s experiencing the event. The evidence supporting the applicant’s story in this regard is weak, and it is contradicted by other evidence (such as the evidence of Dr Wainwright that the applicant said his problems began while he was at Ansett). The weaknesses are compounded by problems with Dr Carter’s report that we will discuss below.
29. The diagnosis and connection to service is further complicated by the fact that the applicant experienced several other incidents, unrelated to service, that are more likely to have been severe psychosocial stressors. His brother had a motor vehicle accident in 1969 that left him in a coma for 3 months. He was still in the coma when Mr Stonehouse left for Vietnam. The applicant had separated from his wife just before the accident. These events were clearly not related to service.
The Medical Evidence about Anxiety Disorder
30. Dr Carter diagnosed the applicant with generalised anxiety disorder. She has been treating the applicant for three years. Two reports of Dr Carter were in evidence. The first is a general report dated 17 August 2001 (f25-28 of the T documents). The second report is dated 8 May 2003 (exhibit 9). That report is largely directed towards refuting a report prepared by Dr Wainwright (exhibit 3).
31. Dr Carter reports several potential stressors in her first report. She reports the scare charge incident. She also reports the applicant’s brother being in a coma and marriage breakdown as stressors. Dr Carter goes on to explain that the applicant satisfies the SoP principles for generalised anxiety disorder.
32. In oral evidence, the following exchange took place between Mr Harding and Dr Carter:
What the Tribunal wants to be clear about is whether…you used the statement of principles to form a diagnosis? --- Yes, I did.
Okay. Now, did you use DSM-IV [the diagnostic service manual] as well? --- No. DSM-IV is the same as the statement of principles. The only difference is the definition of the stressor.
33. It is for the Tribunal to determine whether an individual satisfies the SoP, assisted by the opinions and diagnoses of doctors. The practice of diagnosing straight from the SoP was raised in Benjamin v Repatriation Commission [2001] FCA 1879. There the Full Federal Court said:
The Tribunal made its diagnosis by reference to [the] SoP…His Honour correctly held that to be impermissible, as the scheme of the Act contemplates that SoPs be used to determine the standard of proof. SoPs are not relevant to the question of diagnosis.
34. The court held that error to be “of no practical consequence whatsoever” due to the similarity of the definition in the SoP and the criteria in DSM-IV. Dr Carter said that in this case the SoP and DSM-IV are also very similar in their relevant definitions. That may be true, but we remain concerned by her approach to diagnosis.
35. Our impression from her report (in particular pages 2-3) is that her diagnoses were perfunctory. The report does not explain how the applicant suffers from the conditions or give evidence of their symptoms. It seems to be a mechanical exercise that simply states the symptoms of anxiety disorder and alcohol abuse or dependence. For example, in her first report (at ff25-28 T4 of the T-documents) she writes:
The veteran experienced a series of stressful events not more than two years before the clinical onset of generalised anxiety disorder. Following the stressors already described, the veteran developed excessive anxiety and worry, with apprehensive expectation, which occurred on more days than not, for more than six months, about a number of activities, such as his work. He found it difficult to control. It was associated with the following symptoms. He felt restless and keyed up, and on edge. He was easily fatigued. He had concentration difficulties and his mind went blank. He was irritable. His muscles became tight. He had sleep disturbance, with difficulty falling asleep and staying asleep, and he had restless, unsatisfying sleep. The focus of this was not any other Axis I disorder…the anxiety and the worry caused him clinically significant distress and impairment in his social, occupational and other areas of functioning…
36. There is no detail given about how or when the applicant experienced these symptoms. The report provides no objective evidence upon which the diagnosis was based. It would be far more persuasive if it did so.
Conclusions Regarding Anxiety Disorder
37. Even accepting the applicant’s version of events, we are not satisfied he experienced a severe psychosocial stressor. Factor 5 (a)(ii) is not satisfied and the hypothesis connecting his condition to service is not reasonable. Even if the applicant were able to ‘fit’ his version of events to the SoP, we are satisfied the respondent could prove beyond a reasonable doubt that clinical onset occurred more than two years after the incident.
Alcohol Abuse or Dependence
38. The condition of alcohol abuse or dependence is covered by instrument 76 of 1998. The applicant seeks to rely on either factor 5(a) or alternatively factor 5(b). The SoP relevantly provides:
The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse…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
39. Applying the third step of Delidio, do the facts as reported by the applicant ‘fit’ the SoP?
Suffering a psychiatric Disorder at time of Clinical Onset
40. The psychiatric disorder on which the applicant seeks to rely is anxiety disorder. We have already established the applicant’s anxiety disorder is not service-related. Therefore it cannot be used to satisfy factor 5(a): McKennav Repatriation Commission [1999] FCA 323.
41. The applicant did not seek to rely upon any other psychiatric disorder. A claim based on factor 5(a) must fail.
experiencing a severe stressor within 2 years of Clinical Onset
42. Factor 5(b) requires the applicant to have experienced a “severe stressor”. That term is defined later in the instrument:
“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 other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror
43. We accept Mr Stonehouse was frightened momentarily by the incident. He heard an explosion, and dashed up to the deck of the ship. But the true state of affairs was soon apparent. The event could not evoke intense fear, helplessness or horror in someone of Mr Stonehouse’s background or experience. He was not an inexperienced youth, and there was nothing in the evidence to suggest his experience in the Navy or elsewhere made such a reaction reasonable: Repatriation Commission v Stoddart [2003] FCAFC 300.
44. Commodore Wilson was a gunnery officer on the Vendetta at the time of the incident. At the hearing he said of the incident:
…this is the sort of thing that we practiced a great deal. The ship went to action stations and that’s just part of the routine of the ship…I concede that some people may have got a fright…[but] at the time there was no suggestion there was any panic anywhere on the ship. [It was] not an extraordinary event, just a pretty ordinary event that did occur a fair few times.
45. In other words, the applicant did exactly what he was supposed to do in the circumstances, notwithstanding his fright.
46. We note the recent decision in Krause and Repatriation Commission [2004] AATA 359, where the same incident was held to be a “severe stressor” within the meaning of instrument 3 of 1999. That instrument concerns Post Traumatic Stress Disorder. Though the factual matrix was the same the experience of that applicant (Mr Krause) was very different to that of Mr Stonehouse. Mr Krause gave evidence in the present matter. In his oral evidence Mr Krause recalled:
I was awoken by an explosion…I bounded out of my bunk. My mess deck was next door to the cafeteria, which is my way of exit, so I was heading straight through the cafeteria. At that particular time all the doors, watertight doors, were being shut and I was unable to exit from the cafeteria…
You didn’t make it to the top deck? --- No
So you were locked in a cafeteria in the dark? --- That’s correct.
47. The present case is different. Mr Stonehouse was not locked down in the dark. He made it to the top deck. His experience could not have been as distressing as that of Mr Krause. Krause does not help Mr Stonehouse’s case.
48. The event was not a severe stressor. Factor 5(b) of the instrument is not satisfied, and there are no other relevant factors the applicant could satisfy.
Conclusions re: Alcohol Abuse or Dependence
49. Accepting the applicant’s version of events, the hypothesis does not ‘fit’ the SoP. Accordingly the claim must fail.
50. For the sake of completeness, we note there are questions over the diagnosis of alcohol dependence or abuse. Dr Carter diagnosed him with the condition. Neither Dr Wainwright nor Dr Chalk believes the applicant suffers from it.
51. Dr Wainwright says in his report of 28 October 2002:
While Mr Stonehouse may drink in excess of the safe limits…there is no evidence that he fulfils the criteria for Alcohol Abuse.
52. Dr Chalk interviewed Mr Stonehouse in 2000 (ff17-19 T4 of the T-documents). In Dr Chalk’s brief report he agrees with Dr Wainwright when he writes:
Although he drinks undoubtedly excessively, he does not fulfil DSM-IV criteria for alcohol abuse or dependence. He has little or no insight into his condition, has no wish to change and does not in my view have an Axis I disorder.
53. The hypothesis connecting the applicant’s alcohol abuse or dependence to service is not reasonable. That condition is not related to service either.
54. The hypothesis connecting the applicant’s anxiety disorder to service is not reasonable either. This means the condition is not related to service, and is not compensable. At any rate a necessary element of the SoP can be disproved beyond a reasonable doubt.
CONCLUSION
55. The decision under review is therefore affirmed.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard McCabe and Major-General J Stein, Member
Signed: [Sgd]
Associate: Thomas RitchieDate/s of Hearing: 9-10 March 2004
Date of Decision: 2 July 2004
The applicant was represented by Mr Mackie and Mr Harding of counsel
The respondent was represented by Mr Kelly, a departmental advocate
28
8
0