Reinke and Repatriation Commission

[2010] AATA 1040

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1040

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2009/5640

VETERANS’ APPEALS DIVISION		)
Re		GREGORY REINKE

Applicant

And  REPATRIATION COMMISSION

Respondent

DECISION

Tribunal  Senior Member Bernard J McCabe

Date 22 December 2010

Place Brisbane (heard in Townsville)

Decision  The Tribunal affirms the decision under review.

.................[Sgd].............................

Senior Member

CATCHWORDS

VETERANS’ COMPENSATION - anxiety disorder - major depressive disorder - alcohol abuse disorder – hearing radio chatter does not constitute an experience of a life-threatening event – general dissatisfaction does not amount to concerns in the work – decision affirmed.

REASONS FOR DECISION

22 December 2010 Senior Member Bernard J McCabe         

1.      Mr Gregory Reinke visited Vietnam as a member of the crew of HMAS Vampire in 1972. He was a radio operator. While he was on duty in the ship’s control centre, he says he overheard American radio operators discussing a bombing campaign that had led to civilian casualties some months before. Mr Reinke says that revelation caused him to develop anxiety disorder, major depressive disorder and alcohol abuse disorder. He has asked that these conditions be accepted for the purposes of a claim under the Veterans’ Entitlements Act 1986 (Cth).

Background to the claim

2.      Mr Reinke’s older brother had served in Vietnam in the RAAF. The brother told hair-raising stories about his experiences when he returned to the family home in Roma. The applicant says he was inspired to join up even though his brother was badly affected by what he saw. The applicant joined the Navy just before his 16^th birthday in January 1970.

3.      The applicant completed his training as a radio operator and sailed to Vietnam in November 1972 aboard the Vampire. The vessel was accompanying HMAS Sydney and moored in Vung Tau harbor. The evidence at the hearing suggests the Vampire did not stay in the harbor overnight. It anchored offshore and returned to port the following morning. During this period, the ship was at defence stations and Mr Reinke was at his post in the control room monitoring the radio and radar. Mr Reinke says he heard chatter on one of the radio nets he monitored. The chatter passed between two or more Americans, who were presumably radio operators in US naval vessels in the vicinity. Mr Reinke did not participate in the conversation. He heard one of the individuals describe the results of a bombing campaign that was conducted earlier in the year. Apparently a school and a hospital had been hit in the attacks by (presumably) US forces.

4.      Mr Reinke says this revelation caused him to question what Australia was doing in Vietnam, and what he was doing in the Navy. There is no suggestion that he was involved in the attacks discussed by the American personnel; the Vampire did not serve on the gun-line, for example, and Mr Reinke was not involved in spotting targets for attack or coordinating any action. He says he reflected on what he had heard and came to have a deeper appreciation of the reality of war that his brother had spoken about.

5.      Over the next few months, Mr Reinke says his friends began to notice he was less sociable. He declined to accompany his mates on the usual activities when the ship’s company went ashore in Hong Kong after the ship had returned from Vietnam, for example. Mr Reinke says he did not think he was having any problems, but other people were noticing a change in his demeanour. He had also begun to consume more alcohol. He was collecting his own beer ration and any spare cans he could find. His drinking escalated quickly.

6.      Mr Reinke was transferred to HMAS Moreton in Brisbane towards the end of 1973. He was courting his future wife at the time. They were married in 1974. Not long after they were married, the applicant’s wife expressed concern over behavioural changes and Mr Reinke was put in touch with a social worker. He began to receive regular counselling in 1974. He was receiving psychiatric help from 1975.

Diagnoses

7.      The medical evidence clearly establishes the applicant suffers from generalised anxiety disorder, depressive disorder and alcohol abuse. Professor Jones, who prepared a report on behalf of the respondent, also suggested the applicant may suffer from an adjustment disorder but the respondent did not press that condition. I need not reach a view in relation to that issue for the purposes of these proceedings.

The legal framework

8.      The applicant’s hypothesis is that he developed his psychiatric conditions after he heard the chatter on the radio while he was aboard the Vampire as it was moored in Vung Tau harbor in November 1972.

9.      The relevant statements of principle (“SoPs”) are No 101 of 2007 (and, if necessary, No 42 of 2010) in relation to anxiety disorder; No 27 of 2008 (and, if necessary, No 40 of 2010) in relation to depressive disorder and No 1 of 2009 (and, if necessary, No 17 of 2008) in relation to alcohol abuse.

10.     Each of the SoPs refer to category 1A and category 1B stressors. Those stressors are defined in almost identical terms in each of the SoPs. The SoPs relating to anxiety and depression also refer to category 2B stressors. I must decide whether the events described by Mr Reinke satisfy the criteria applicable to:

- category 1A or 1B stressors which are referred to in the SoPs in respect of all three conditions, or

- category 2 stressors referred to in the SoPs for anxiety and depression.

11.     I turn firstly to category 1A stressors. It was common ground that I could only accept there was a category 1A stressor if I was satisfied the events described by the applicant were capable of being regarded as “experiencing a life-threatening event”. The expression is undefined.

12.     I am not satisfied the events recounted by the applicant – specifically, hearing the radio chatter about the results of a bombing campaign some months before – can be said to be experiencing a life threatening event. Mr Reinke was simply too far removed from an event that had happened months before. He was not experiencing the event. He was, at most, experiencing an historical report of the event. I do not think the definition in the SoPs comprehends this sort of experience.

13.     I am not aware of any evidence that is capable of satisfying the definition of a category 1B stressor.

14.     That disposes of the claim for alcohol abuse. It remains for me to consider the claim that the applicant experienced a category 2 stressor for the purposes of the anxiety and depression SoPs. Mr Honchin, for the applicant, noted that category 2 included a reference to “having concerns in the work or school environment…”. He acknowledged Mr Reinke did not experience any of the events in the workplace that were offered as examples of behaviour that gave rise to concern, but he pointed out the examples were merely illustrative, not exhaustive. He said Mr Reinke did have concerns in the workplace – specifically, he was profoundly disillusioned about his role in the Navy in light of what he had learned from the radio chatter. Mr Reinke certainly gave evidence that he became withdrawn and de-motivated following the revelations and he questioned the futility of Australia’s involvement in Vietnam.

15.     I do not think a general sense of dissatisfaction or even disillusionment with one’s work can satisfy the description “concerns in the work…environment…”. While I acknowledge the list of examples in the SoP is not exhaustive, the general principles of construction suggest any behaviour giving rise to concerns should be comparable to the examples given. Crudely speaking, the examples given all refer to behaviour or events that make a workplace unpleasant or stressful in some way. But Mr Reinke’s workplace was no less pleasant nor more stressful as a result of anything that occurred. What changed, if anything, was his attitude. His problem was not a stressful workplace. There was no stressor, as such, present in his workplace.

16.     It follows I am not persuaded there was a category 2 stressor present. In those circumstances, the applicant’s claim cannot succeed.

Conclusion

17.     The decision under review is affirmed.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed: .................[Sgd]..........................................................
  Patrick MacDonald

Dates of Hearing  8 December 2010 
  9 December 2010
Date of Decision  22 December 2010
Counsel for the Applicant              Mr D Honchin

Solicitor for the Applicant              Michael Purcell, Purcell Taylor Lawyers

Advocate for the Respondent       Mr J Stoner