Ribic and Comcare
[2003] AATA 841
•29 August 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 841
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/1163
GENERAL ADMINISTRATIVE DIVISION ) Re TROY ADAM RIBIC Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr B J McCabe, Member Date29 August 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ...................(Sgd)......................
B J McCabe
Member
CATCHWORDS
WORKERS’ COMPENSATION – post-traumatic stress disorder – drug abuse – diagnosis – whether applicant failed to disclose his drug use to the respondent - section 7(7) of the Safety Rehabilitation and Compensation Act 1988– whether applicant “made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease”
Safety Rehabilitation and Compensation Act 1988
REASONS FOR DECISION
29 August 2003 Mr B J McCabe, Member Introduction
1. Troy Ribic is the applicant in these proceedings. He is currently 29 years of age and claims to be suffering from Post Traumatic Stress Disorder (PTSD). He has a history of substance abuse. He claims he developed these conditions as a result of his experiences serving in the defence forces – first the army, and then the navy (although most of the evidence in the case focused on the applicant’s experiences in the army). The respondent initially accepted liability to pay compensation in respect of the PTSD, but is subsequently revoked its determination. Mr Ribic has now appealed to the Tribunal.
2. Mr Ribic claims he has an injury within the meaning of the Safety, Rehabilitation and Compensation Act 1988.. The Commonwealth is liable to compensate claimants where the injury in question is attributable to the workplace. It is therefore necessary for the Tribunal to decide whether the applicant has sustained a compensable injury (in this case, PTSD) arising out of his experiences at work.
The Material Before the Tribunal
3. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. It also received the applicant’s statement dated 26 December 2001, a handwritten report dated 26 October 2002 (with a typed copy dated 30 October 2002) of Dr Perce Tucker, and a further report of Dr Tucker dated 27 November 2002.
4. The applicant gave evidence at the hearing. He was represented by Mr Ward. The respondent was represented by Mr Clark.
The Facts
(a) the applicant’s background
5. Troy Ribic was born on 7 December 1972. He comes from a military family: his father served as a cook in the army. The applicant had a troubled youth, it seems. Mr Ward, for the applicant, explained Mr Ribic did not fit in at school. The applicant says he was bashed, and he was not a good student.
6. After leaving school, the applicant worked in a fruit shop in Bundaberg for several months, and was then unemployed. He worked briefly in a number of jobs thereafter. He referred in his evidence to an incident in which he was approached in a public toilet by a man who was attempting to initiate a sexual encounter. It is unclear what, if anything, to make of that disclosure although Mr Ribic seemed to think it was significant. In any event, he enlisted in the army on 4 February 1992. He said his father had also been a soldier, and he was proud to follow in his footsteps. Coincidentally, the applicant’s father also suffered from PTSD. The applicant subsequently left the army and joined the navy. He has since been discharged from the defence forces.
(b) army service
7. Mr Ribic’s time in the army was unhappy. He told an army psychologist (at document T4, page 20) that he had difficulty with the demanding exercises required, and he was subject to frequent punishments. He also said his lack of determination made other recruits resent him. He claims he was bashed and tortured and physically and verbally abused. He said he was often humiliated. Some of the details of his experiences are set out in an undated statement included in the T documents at T10, pages 84-85. He claimed he was physically assaulted by up to five other soldiers at a time. They would hold him down and handcuff him, hit him with rifle butts, and tip water and beer over him. He claimed he was punched and strangled. He said (at document T12 at page 88):
“In the end I could not go out anywhere without looking over my shoulder to see who or what was there.”
8. In his oral testimony, he also claimed he had been raped at Singleton – an allegation that had not been raised with the respondent, or with Dr Alcorn who examined him on behalf of the respondent. He said four soldiers held him down while a fifth soldier sexually assaulted him. Mr Ribic said he had not raised the rape allegation in the past because he was embarrassed about the experience.
9. The applicant claims his abusive treatment continued after he transferred to the transport unit. He reported some of the allegations of abuse to the army. His parents also made a complaint about his treatment to the Minister. An army investigation was unable to substantiate most of the allegations. He also told an army psychologist that he was happy in the army (document T4, page 18). The applicant left the army in 1993.
(c) drug misuse
10. Mr Ribic said in his statement that he did not use drugs prior to joining the army. He conceded that was not true during the course of his oral evidence. He said a neighbour introduced him to cannabis in 1991. He used the drug about once a fortnight prior to joining the army in 1992, consuming three or four cones through a bong on each occasion. He agreed he did not give a true account of his drug use in his entrance medical examination when he enlisted in the army as he feared he might prejudice his chances of being accepted. He also conceded he did not tell the truth about his drug use when he subsequently joined the navy.
11. Mr Ribic says he was not dependent on drugs before joining the army, and therefore did not feel obliged to report his drug history. He also says he did not use drugs while he was in the army. He concedes he resumed cannabis use in 1994 after he joined the navy. A pattern of drug abuse developed following a relationship breakdown. He admits to using LSD in 1995, and he developed an addiction to amphetamines in 1997. He said in his evidence he was taking amphetamines intravenously every day during that period – although he occasionally did without drugs as he did not have the money. His habit was costing him around $4,000 each week, he said. He denied ever using rohypnol, heroin or cocaine, contrary to suggestions in the medical reports. He says he stopped using drugs in 1999, although he later conceded he may have used drugs as recently as 2001.
(d) suicide attempts
12. There was also a dispute over Mr Ribic’s history of attempts at suicide. Dr Alcorn’s report says the applicant disclosed he had attempted to commit suicide when he was 16. The applicant rejected that claim in his statement, although he appeared to resile from the denial in the course of his oral testimony. He acknowledged in an undated statement included at page 88 of the T documents (T12) that he attempted to commit suicide at least 18 times over a three-year period, starting when he was in the navy.
(e) the medical evidence
13. Dr Tucker, the applicant’s psychiatrist, gave evidence at the hearing. He confirmed his diagnosis of PTSD made in his earlier reports. He acknowledged that substance abuse had taken its toll on the applicant – the use of amphetamines may have contributed to a psychotic reaction, but he said that was secondary to the PTSD. He was satisfied the applicant exhibited classic symptoms of someone with PTSD who had been threatened, persecuted and beaten. He also confirmed that Mr Ribic had made the rape allegation comparatively recently, although he said it was not unusual for someone to suppress the details of a traumatic event like that. He said he spent many hours with the applicant alone and in the company of his parents. He knew the Ribic family.
14. Dr Tucker said he thought the applicant probably did use drugs experimentally during his teen years, but doubted he was a heavy user. He accepted Mr Ribic may have used some cannabis while in the army. He says he relied on the truthfulness of the applicant and was surprised Mr Ribic had admitted to telling lies. He did not know of any suicide attempts prior the applicant’s enlistment in the army.
15. Dr Alcorn also gave oral evidence in addition to his extensive written report. Dr Alcorn says the applicant suffers from schizophrenia, not PTSD. He offered an alternative diagnosis of psychosis due to amphetamine abuse. He offered several reasons for rejecting a diagnosis of PTSD. He noted there was no evidence of the expected physiological hyper-arousal (eg, a raised heart rate) when relating the stressful incidents. He also had difficulty remembering incidents, which is unusual. Dr Alcorn says the applicant’s description of his sexual relationships suggests he did not lose his sex drive, which one would expect if the rape allegation was true. He did not exhibit avoidance behaviours either. He also had delusions or hallucinations that were consistent with his own views of himself. Dr Alcorn says PTSD sufferers may also experience delusions, but they tend to be distressed by them because they do not gel with their own self-image. He noted persecutory delusions and feared that people could read his mind and take thoughts out of his head. He also noted ‘blunted effect’: unchanging facial expressions that were characteristic of psychosis. Dr Alcorn opined that the applicant’s symptoms were all explicable by the drug use and the psychosis. He also said the applicant exhibited a number of psycho-social vulnerabilities.
16. Dr Alcorn questioned whether the treating psychiatrist’s evidence might be compromised in light of the lengthy relationship with the patient. He said treating doctors sometimes fell into the trap of reviewing progress rather than reconsidering diagnosis when it became apparent that the treatment was not working.
17. Dr Cotton, a psychologist, also provided a report. He noted the applicant’s symptoms were consistent with a diagnosis of PTSD, amongst other conditions. He said the condition might have been attributable to a number of factors, including pre-existing personality features, peer group influence and stressful events, including bullying in the army and the navy. Dr Cotton conceded the applicant might have developed his current conditions even if he had not undertaken army service. In his report dated 30 November 1999, Dr Cotton concludes:
“In practical terms, it is now almost impossible to disentangle these influences and determine whether or not army factors have specifically contributed.”
18. I note that Dr Cotton’s assessment apparently proceeds on the basis that the applicant’s claims about his treatment in the army are substantially true.
Conclusions
19. I prefer Dr Alcorn’s assessment that the applicant does not suffer from PTSD attributable to stressful events that occurred during his military service.
20. The task of assessing the applicant’s case is made more difficult because he does not have a record of telling the truth. That may be because of his condition or his drug use, of course: Mr Ward suggested on the applicant’s behalf that his encounter with Dr Alcorn should be treated with caution because he was abusing amphetamines at the time. But after observing the applicant and hearing all the evidence, I am satisfied he is not a reliable witness. I am therefore unable to be satisfied that the bullying incidents and assaults and other stressful events he described (and which formed the basis of a diagnosis of PTSD) actually took place.
21. My preference for Dr Alcorn’s report is also informed by the admission that the applicant had a more extensive history of drug misuse prior to joining the army than he had admitted to. I also doubt he did not use drugs while he was in the army, although I note his claim that he only resumed his drug habit in the navy after a relationship breakdown – which tends to exculpate the army.
22. I also note that his admission he did not tell the truth about his history of drug use creates an obstacle under s 7(7) of the Safety, Rehabilitation and Compensation Act 1988. That section provides that a disease is not treated as an injury for the purposes of the Act if the employee “made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease”. The failure to disclose the history of drug misuse before entering the army suggests the applicant cannot recover compensation in respect of the injury that flows from that disease.
23. The respondent’s decision is therefore affirmed.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Member
Signed: Sarah Oliver
AssociateDate of Hearing 23 January 2003
Date of Decision 29 August 2003Solicitor for the Applicant Mr Ward, Aylward Game
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Dibbs Barker Gosling
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