Riddel and Repatriation Commission
[2004] AATA 1279
•2 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1279
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/743
VETERANS APPEALS DIVISION )
Re JAMES RIDDEL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr EK Christie, Member Date2 December 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...................[Sgd]........................
EK Christie
Member
CATCHWORDS
VETERANS' AFFAIRS – benefits and entitlements- anxiety disorder (specific phobia) – alcohol abuse – alcohol disorder- clinical onset of symptoms – reasonable hypothesis - proof of facts necessary to support the hypothesis or which are inconsistent with the hypothesis.
Veterans’ Entitlements Act 1986 s120
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Whetton (1991) 24 ALD 33
Robertson and Repatriation Commission (1998) 50 ALD 668
Deledio v Repatriation Commission (1997) 47 ALD 261
Jackman v Repatriation Commission [1997] FCA 564
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Stares (1996) 41 ALD 212
East v Repatriation Commission (1987) 74 ALR 518, (1987) 12 ALD 389
Repatriation Commission v Bey (1997) 47 ALD 481
Bushell v Repatriation Commission (1992) 175 CLR 408
Dixon v Repatriation Commission (1999) 29 AAR 235, (1999) 59 ALD 315
Byrnes v Repatriation Commission (1993) 177 CLR 564, (1993) 30 ALD 1
Stoddart v Repatriation Commission [2003] FCA 334, (2003) 74 ALD 366Repatriation Commission v Stoddart [2003] FCAFC 300
Repatriation Commission v Cooke (1998) 160 ALR 17, (1998) 52 ALD 1
Repatriation Commission v Hill (2002) 69 ALD 581
Caswell v Powell Duffryn Associated Collieries [1939] 3 All ER 722REASONS FOR DECISION
2 December 2004 Dr EK Christie, Member 1. This is an application by James Riddel to review a decision of the Veterans’ Review Board (the “VRB”) made on 1 August 2003 in which the VRB decided to:
“(a)AFFIRM the decision under review in respect of alcohol dependence or alcohol abuse, hypertension and sleep apnoea. This means that the Repatriation Commission decision in relation to these conditions is unchanged.
(b)AFFIRM the decision under review in respect of anxiety disorder. This means that the Repatriation Commission decision in relation to this condition is unchanged.”
2. With respect to the “Generalised Anxiety Disorder’ Anxiety Disorder SoP” and specifically Factor 5a(ii):
“(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”
where “severe pscyhosocial stressor” is defined to mean:
“…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,”
the VRB concluded that it was unable to find that Mr Riddel had experienced a severe psychosocial stressor and that :
“In the Board’s view, the requirements of factor 5(a)(ii) are not met. The Board reviewed all other factors in both Statements of Principles for generalised anxiety disorder and found also that none was met in the veteran’s circumstances.” (T7, Folio 188)
3. With respect to the “Alcohol Dependence/Alcohol Abuse SoP” – specifically Factors 5(a) and 5(b):
“(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”,
the VRB concluded:
“36. The only psychiatric disorder that the veteran has apart from his alcohol dependence or alcohol abuse is his anxiety disorder. As the Board has found that this is not related to his eligible service, factor 5(a) is not met.” (T7, Folio 187); and
“38. This is a more difficult definition [the SoP definition for ‘experiencing a severe stressor’] to meet than that of ‘severe psychosocial stressor’ in the SoP for anxiety disorder. For similar reasons as advanced above, the Board was unable to find that the incidents raised on HMAS Queensborough meet this definition. Thus factor 5(b) is not met.” (T7, Folio 189)
4.With respect to the “Hypertension SoP” and Factor 5(b):
“(b)suffering from alcohol dependence or alcohol abuse, involving consumption of an average of at least 200 grams per week of alcohol (contained within alcoholic drinks) at the time of the clinical onset of hypertension,”
the VRB concluded that its finding was that Mr Riddel’s “alcohol dependence or alcohol abuse is not related to service. Therefore, factor 5(b) is not met”. (T7 Folio 189)
5. At the hearing James Riddel was represented by Mr RJ Clutterbuck of Counsel. Mr J Kelly, a Departmental Advocate, represented the Repatriation Commission.
6. At the hearing, the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” documents, Exhibit R1) and the various documents tendered by the parties.
Facts
7. Mr Riddel is now aged 69 and served in the Royal Australian Navy from 27 August 1956 to 31 August 1976. The following periods of service are eligible service as defined in the Act:
§ Operational service Far East Strategic
Reserve
18 March 1959 to 28 April 1959
6 March 1962 to 19 March 1962
Vietnam
31 May 1965 to 22 June 1965
§ Defence service
7 December 1972 to 31 August 1976
8.Mr Riddel has the following accepted and non-accepted service related disabilities:
SERVICE RELATED DISABILITIES
NON-SERVICE RELATED DISABILITIES
Gastro-oesophageal reflux disease
Diabetes Mellitus
Peptic Ulcer Disease
Impotence
Solar Keratosis of the Face
Non Melanotic Malignant Neoplasm of the skin
Fracture 12th Thoracic Vertebra with thoracolumbar spondylosis
Solar Skin Damage
Anal Fistula
Hypertension
Sleep Apnoea
Alcohol Dependence or Alcohol Abuse
Anxiety Disorder
Issues to be Decided
9. At the commencement of the hearing the parties agreed that the only issues of the reviewable decision which remained in dispute and required resolution was whether the conditions of (a) alcohol abuse or alcohol dependence and (b) hypertension were service related disabilities. The conditions of anxiety disorder and sleep apnoea were not pursued.
10. Central to Mr Riddel’s application for review was the issue whether he experienced a severe stressor during operational service. (Tribunal emphasis).
11. Two separate incidents were advanced as events that constituted the requirement for experiencing a severe stressor: Both incidents occurred whilst Mr Riddel was at sea on HMAS Queensborough in March 1962, in Singapore Harbour:
(a)Incident 1: Faulty equipment which led to partial flooding of the forward seaman’s mess up to a level of approximately two feel; and
(b)Incident 2: The following day, as a clearance diver, took part in a training dive when the ship was tied up alongside in Singapore Harbour. Whilst underwater, he suffered a panic attack, ditched his diving gear and swam immediately to the surface.
Examination of the Evidence
12. The oral evidence of Mr Riddel and Mr Alexander Schultz, a crew member of HMAS Queensborough in March 1962 is firstly considered in relation to the issues to be decided.
Evidence of James William Riddel
13. In relation to the diving incident (“Incident 2”), Mr Riddle described the exercise as a routine examination of the ship’s hull in the forenoon. The ship was tied up at the dock. The water was dirty with visibility about one foot (30cm). He said that he jumped in by himself, swam alongside the ship and then swam down 4 - 5m. About 5 minutes (maximum) later, he became disorientated, lost contact with the surface and bottom, panicked and headed towards the surface. At the time he feared that he was going to drown. On approaching the surface, he saw light and then swam to shore. When this incident was reported, he advised that he did not wish to dive again. He said that the officer’s report referred to him as being psychologically unfit for diving.
14. Mr Riddle described these diving conditions in Singapore Harbour as being more extreme compared with past situations in which he had dived. Notwithstanding that he ceased naval diving in 1962, Mr Riddle commenced a diving course in 1967 with the aim of returning to diving. However, he withdrew on the second day of the course after his first dive because the fear of drowning in Singapore Harbour returned.
15. In relation to the partial flooding (about 2 feet) of the forward seamen’s mess (“Incident 1”) on the previous night, Mr Riddel said that this occurred at night when the changes of watch were taking place. He said that he became apprehensive that there was a possibility of danger or sinking because of the flooding and never slept in this location again.
16. Mr Riddel gave the following description of his drinking habits:
(a)Five years before the incidents, he consumed very little alcohol;
(b)After the incident on HMAS Queensborough, he drank as it seemed to make him feel better. From this time, whilst ashore, he drank heavily and got inebriated. Whilst on board ship, he drank 3 - 4 large bottles of beer each night; and
(c)From 1962, his alcohol consumption then increased over time: 6 - 8 cans of beer/day and 2 – 3 bottles whiskey/week [or “pro rata” red wine].
17. He said that he could perform his naval duties whilst having this drinking pattern because he had little paper work to do at sea.
18. During cross-examination, Mr Riddel was asked about his Employment Record. (Folio 122) for these periods (May to November 1962, November 1962 to December 1964 and March 1964 to August 1965) in which the following remarks were recorded:
§ “studied very hard and obtained excellent marks in regulatory branch duties”
§ “above average and hard-working”
§ “mature approach to his duties”
In response to a question why drinking did not interfere with his course performance during these periods of time, he replied that he had “learned to contain his drinking”.
Evidence of Alexander Schultz
19. Mr Schulz said that he recalled the incident occurring on or about 12 March 1962. A faulty valve on the primary section of a hull and fire pump resulted in partial flooding of the forward seamen’s mess up to a level of about two feet (30cm).
Expert Evidence of Dr Maxwell Katz, Psychiatrist
20.In his report (Exhibit A4), Dr Katz expressed the following opinion:
“On the basis of my consultation with James Riddel and the history as reported to me above I am of the opinion James Riddel has a several decade history of drinking which James acknowledges is at a dependent level, and which drinking history fulfils the criteria for making the DSM-IV diagnosis of Alcohol Dependency with James dating the onset of heavy and regular ingestion of alcohol following the dive incident in 1962 when he became disorientated and, by his report, ‘panicked’. (at page 5).
and
“It is difficult to accurately assess James’ mental state while he is continually inebriated with alcohol for which substance James appears to develop cravings about mid afternoon each day as he begins to withdraw from the same while it is reasonably probable from James’ history that he had had a panic episode during the 1962 dive which evidently significantly altered the configuration of his naval career subsequently.” (at page 6)
21. When asked during cross-examination as to the date of the onset of his alcohol dependency, Dr Katz stated that “I suppose it evolved from the time that he began drinking heavily, so it would be difficult to estimate a dependency date, but I would imagine that he had been drinking continuously for a period of a year or more that he became dependent on substance.” However, he commented that this was only a “guesstimate” as an accurate assessment could not be made as “some people might be predisposed to develop that almost immediately. In some people, it might take a while for that to manifest”.
22. Whilst he conceded that he could not give a date for onset of alcohol dependency he acknowledged that it was “possible” that the dependency manifested itself within a period of one or two years after the incident(s) in 1962.
23. When asked whether the history he had taken from Mr Riddel gave any examples of “incidents or events or his lifestyle which would enable you to make a diagnosis of alcohol dependence in March 1964”, Dr Katz replied:
“We didn’t address any issues specific to that date, as far as I can recall.”
24. The Tribunal summarised the evidence and information before the Tribunal that characterised the physical conditions of the dive (Incident 2) as well as the lack of training at the time for divers for dealing with psychological states during a dive. The Tribunal then sought expert opinion from Dr Katz in relation to the impacts of phobic anxiety states (e.g. claustrophobia, agoraphobia) on a diver’s psychiatric state.
25. Dr Katz expressed the following opinion:
“…People came (sic) become progressively sensitised over time, which may not manifest as that process is occurring. It might be held, at first, by an event like a panic attack in a situation that compromises them or threatens them, and it’s possible, from what you are saying, that as a result of his training he wasn’t emotionally or psychologically inured, if you like, against that process of sensitisation that might have manifested with that event.”
26. When then asked by the Tribunal, whether a one-off event, like Incident 2, would have consequences that could persist over a long period of time – or whether they continue for a finite period of time before the symptoms ended, Dr Katz replied:
“There would be a period of sensitisation, but once – once it triggered a major reaction, such as a panic attack, then the likelihood is that that person would remain indefinitely sensitive to environments in which they were originally sensitised.”
Later, he expanded on this point by saying:
“What I mean is a person can become progressively sensitised over a period of time and that it might manifest or be helped by a particular episode, like a panic attack, subject to which that person would develop a phobic reaction to environments reflecting back to the period of sensitisation” and that
“In Mr Riddel’s case the sensitisation would only apply to diving”.
27. When asked whether there was any significance with respect to sensitisation in the fact that Mr Riddel withdrew from the diving course that he commenced in 1967, after the first dive on the second day of the course, Dr Katz stated:
“Yes, as much as re-entry [into] an environment which induced the sensitisation can cause a re-triggering of the phobic reaction.”
Expert Evidence of Dr John Wainwright, Psychiatrist
28.In his report, Dr Wainwright [10 December 2003, Exhibit A3] expressed the following opinion:
“33. In my opinion, Mr Riddel may have had a Specific Phobia (Diagnostic and Statistical Manual of Mental Disorders – Fourth Edition) as a result of the partial flooding to the forehead mess deck on the port side of HMAS Queensborough in 1962. His fear of drowning resulted in significant phobic anxiety when diving in Singapore, which Mr Riddel attempted to avoid by not diving again. This phobic anxiety recurred in 1967 when Mr Riddel attempted to resume diving. Unfortunately, Mr Riddel did not attempt to face this fear, which is the main treatment for this disorder, and he therefore continued to avoid diving from that time. It should be noted, however, that there has been no recurrence of this anxiety because Mr Riddel’s fear of drowning has not been activated.
…
36. With regard to the possible diagnosis of Alcohol Dependence or Alcohol Abuse, there seems little doubt from the blood screening that Mr Riddel drinks alcohol to excess. However, his history does not support a long period of alcohol abuse, he had a good work history and a successful marriage. … When the blood tests are examined, there is only a mild elevation of the GGT, with no elevation of any of the other liver enzymes. There is no elevation of the MCV. These two factors are not consistent with the prolonged history of heavy alcohol ingestion that Mr Riddel has given. During my 3 hour interview I did not detect any evidence of alcohol abuse. He showed no tremor, and did not reveal any stigmata of alcohol abuse. With regard to the diagnostic criteria for alcohol dependence, Mr Riddel does not give a history of tolerance, withdrawal, alcohol being taken in larger amounts over a longer period than what was intended, a persistent desire or unsuccessful efforts, to cut down and control alcohol use. A great deal of time is not spent in activities necessary to obtain alcohol, use alcohol, or recover from its effects, and important social occupational, or recreational activities are not given up or reduced because of alcohol use. Mr Riddel, therefore, does not fulfil the criteria for Alcohol Dependence. With regard to the diagnostic criteria for Alcohol Abuse, Mr Riddel does not give a history of recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school or home; does not give a history consistent with recurrent alcohol use in situations in which it is physically hazardous; does not give a history of recurrent alcohol-related legal problems; and does not give a history of continued alcohol use, despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol. In my opinion, therefore, he does not fulfil the criteria for Alcohol Abuse. While he may use alcohol, at this time, in excess of the quantities regarded as safe by the National Health & Medical Research Council, there is not evidence that alcohol has ever been a serious problem with Mr Riddel’s life.
37. In summary, in my opinion Mr Riddel may have had an Anxiety Disorder (specific Phobia) for a short time during his Navy service, but there is no evidence that he currently suffers from a psychiatric disorder.”
29.During cross-examination, Dr Wainwright gave the following responses:
(a)That he acknowledged that he was aware Mr Riddle had access to alcohol on board ship;
(b)In relation to the biochemical assays related to detection of alcohol disorders, Dr Wainwright stated:
“I think the combination of elevation in gamma GT and in the CDT does suggest in fact that probably excessive alcohol intake and they in fact, particularly in combination are very reliable indicators of alcohol abuse” and
conceded that there was “indication of excessive alcohol intake” with Mr Riddel;
(c)With respect to the DSM-IV SoP criteria for alcohol dependence, Dr Wainwright acknowledged that questions relating to these criteria were not asked of Mr Riddel directly – but rather indirectly.
30. With respect to Dr Rosalie Troup’s diagnosis of concurrent generalised anxiety disorder and alcohol abuse, Dr Wainwright stated “they are very difficult diagnoses to make together because its so hard to tease what the anxiety is coming from, the physiological effects of the alcohol or withdrawal from alcohol and generalised anxiety disorder and so I would never make that sort of diagnosis in tandem”.
Statutory Requirements and Legal Principles
31. Section 120(1) of the Veteran’s Entitlement Act provides that, where a claim under Part II for a pension in respect of an incapacity from injury or disease of a veteran, or the death of a veteran relates to the operational service rendered by the veteran, “the Commission shall determine … that the injury, disease or death of the veteran was war caused …unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.”
32. Section 120(3) of the Veteran’s Entitlement Act provides that in applying subsection (1), “the Commission shall be satisfied, beyond reasonable doubt that there is no sufficient ground for determining … that the injury, disease or death was war-caused …if the Commission, after consideration of the whole of the material before it does not raise a reasonable hypotheses connecting the … injury, disease or death with the circumstances of the particular service rendered by the person”.
33. Following the introduction of Statements of Principles, the Federal Court eventually reached a position where it summarised four steps which it said amount to the course that a decision-maker must adopt in concluding whether injury, death or disease is related to service. In Repatriation Commission v Deledio (1998) 49 ALD 193 the Full Federal Court, at 206, recorded the four 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 s196B(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 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 s196B(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 s120(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 (emphasis added).” (at 49 ALD 206)
34. In Repatriation Commission v Hancock[2003] FCA 711, Selway FCJ identified a further problem necessarily involving at least two extra steps before Step 1 of the “Deledio methodology”:-
“The first of these is self-evident. It is necessary to establish the pre-conditions for a claim other than causation [the status of the veteran and applicant] on the balance of probabilities … Secondly, in order to ascertain whether a SoP applies, it is necessary to identify the “kind of injury” or “kind of death” suffered by the veteran: see s 120A(2) and (4) of the Act.”
35. The following legal principles are relevant in addressing expert medical opinion for applications made under the Veterans’ Entitlement Act:
(a)In Repatriation Commission v Whetton (1991) 24 ALD 690 the Full Federal Court held:
“The legal principle that the Tribunal had the ultimate question of deciding the standing of the hypothesis raised and should not be deflected from that task by the opinion of experts did not mean that the Tribunal was excused from understanding and making findings upon expert evidence relevant to the question it had to decide. It meant rather that the Tribunal must not abdicate its own function.”
(b)In Re Robertson and Repatriation Commission (1999) 50 ALD 668, the Tribunal gave the following meaning to the phrase “clinical onset”:
“The ‘clinical onset’ of a disease occurs either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.”
36. In Deledio v Repatriation Commission (1997) 47 ALD 261 Heerey FCJ made the following observations on the concept of sound expert medical evidence in relation to sections 120 and 120A of the Act:
“The concept of ‘sound medical-scientific evidence’ introduced by the 1994 amendments is a standard not unlike the Frye test [Frye v United States 293 F 1013 “expert opinion evidence needed to conform to methods and principles which had received widespread acceptance in a particular field of knowledge”]. In this respect at least, the Parliament has accepted the Baume Committee's criticism of ‘doctor shopping’.”
37. The following legal principles are relevant in addressing principles for proof in accordance with the standards prescribed under the Veterans’ Entitlement Act.
(a)The standard in subsection 120(4) meant, as Tamberlin J noted in Jackman v Repatriation Commission [1997] FCA 564:
“The AAT had to determine, to its reasonable satisfaction, whether the applicant’s war-caused disabilities were the only reason for him not being in remunerative employment. Burchett J in Cavell stated that this determination is not to be made upon ‘nice philosophical distinctions’, equally it is not to be made upon complex calculations of the probability that an intervening event may have occurred. The approach is to be guided by commonsense with an ‘eye to reality’ [Emphasis added].”
(b). In Repatriation Commission v Gosewinckel (1999) 59 ALD 690, the Court concluded with respect to the standard in subsection 120(1) and 120(3):
“The standard of proof for determining whether a veteran was suffering a morbid condition was the reasonable satisfaction standard in s 120(4) and not the reasonable hypothesis standard in s 120(1) and (3). The reasonable hypothesis standard was to be used to decide whether an injury, disease or death of a veteran was war caused. All other matters were to be dealt with the reasonable satisfaction standard in s 120 (4) [Emphasis added].”
38. The following legal principles are relevant with respect to the Tribunal’s consideration of the four steps in the “Deledio methodology”.
(a)A hypothesis is no more than a supposition or conjectural explanation of an ultimate fact: see Repatriation Commission v Stares (1996) 41 ALD 212 at 217.
(b)In East v Repatriation Commission (1987) 74 ALR 518 the Full Federal Court at 534 said:
“A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.”
(c)In Repatriation Commission v Bey (1997) 47 ALD 481, a Full Federal Court of five Judges concluded:
“While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must … be pointed to or supported, and not merely left open as a possibility, by the material before the decision-maker.”
(d)In Bushell v Repatriation Commission (1992) 175 CLR 408 the High Court said (at 414-415) that an hypothesis is not reasonable if it is:
“obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous”
and
“The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts (“the raised facts”) which supports the hypothesis and if the hypothesis can be regarded as` reasonable if the facts are true”
(e)Furthermore, in relation to divergent medical or scientific opinion, the High Court in Bushell said (at 415):
“As we have pointed out, it is not the function of s 120(3) to require the Commission to choose between competing hypotheses or to determine whether one medical or scientific opinion is to be preferred to another. This does not mean, however, that in performing its function’s under s. 120(3) the Commission cannot have regard to the medical or scientific materials which is opposed to the material which supports the veteran’s claim. Indeed, the Commission is bound to have regard to the opposing material for the purpose of examining the validity of the reasoning which supports the claim that there is a connexion between the incapacity or death and the service of a veteran. But it is vital that the Commission keep in mind that the hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion.”
(f)With respect to the third step referred to in Deledio v Repatriation Commission (1997) 47 ALD 261, Heerey FCJ stated:
“The particular claim then has to fit the template laid down by the template …Do the facts raised by the claimant give rise to a reasonable hypothesis. Proof of facts is not in issue at this point.”
(g)With respect to the fourth step referred to in Deledio, Wilcox J in Dixon v Repatriation Commission (1999) 29 AAR 235 at 242-2 stated:
“… As the Full Court said in Deleido it is only at the step 4 of the process that the Tribunal will be required to find facts from the material before it.”
(h)In Byrnes v Repatriation Commission (1993) 1777 CLR 564, the High Court, in its analysis, said at 571:
“The position may be summarised as follows:
(1) First, sub-s (3) of s 120 is applied: do all or some of the facts raised by the material before the Commissions give rise to a reasonable hypothesis connecting the veteran’s service with the war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable the claim fails. Proof of facts is not in issue at this point.
(2) If a reasonable hypothesis is established sub-s (1) of s 120 is applied. The claim will succeed[1] unless:
(a)one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b)the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.”
39. The legal principles, in Stoddart v Repatriation Commission [2003] FCA 334, Manson FCJ, are relevant with respect to the Tribunal’s consideration of the factual evidence in relation to the concept as defined in the SoP - “experiencing a severe stressor”:
“The definition of ‘experiencing a severe stressor’ relevantly requires the applicant to have experienced, witnessed or been confronted with an event or events of a certain character. The issue is to identify what character of event or events may amount to a threat of death or serious injury or to physical integrity …”
and
“It is not apparent to me why the SoPs should distinguish between events which actually involved the threat of death or serious injury leading to … PTSD and events which were perceived (and for the sake of considering the contention, I assume reasonably perceived) as involving the threat of death or serious injury leading to …PTSD.”
40. On appeal (Repatriation Commission v Stoddart [2003] FCFCA 300) the Full Federal Court concluded, at para. 34:
“The description, ‘a risk of death’, can be used appropriately to describe a clear and present danger of death and a mere possibility of death. Ordinarily, it is the context in which such a description is used (with or without an accompanying adjective: cf. ‘risk’ vs. ‘mere risk’ in Repatriation Commission v Thompson (1998) 44 FCR 20 at 24) that will indicate the gravity of the risk that is being incurred.”
41. The Tribunal has applied the reasoning and principles in this decision to the application for review.
Submissions and Contentions of the Parties
42. Mr Clutterbuck’s submissions focussed on whether the applicant suffered a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse.
43. In addition, whether the applicant experienced a severe stressor within the two years immediately before the clinical onset of alcohol dependence or abuse.
44. Mr Clutterbuck submitted that Mr Riddel met three of the criteria for alcohol dependence:
(a)tolerance increasing;
(b)that the applicant was involved in activities necessary to obtain alcohol; and
(c)that the alcohol consumption continued, despite knowledge of the physical or psychological problems that it may cause.
45. In addition Mr Clutterbuck submitted that three of the DSM-IV criteria (1, 2 and 4) for alcohol abuse were satisfied.
46. Mr Clutterbuck submitted that Dr Katz’ diagnosis should be given weight relative to Dr Wainwright. Dr Katz had diagnosed Mr Riddel as suffering alcohol dependency, stating the heavy onset of drinking commenced following the dive incident in 1962 when he became disoriented and, by his report, when he panicked. He contended that Dr Wainwright’s diagnostic evaluation for alcohol abuse – dependence had limitations as it relied on the patient to volunteer the relevant matters upon which the diagnostic criteria were evaluated.
47. In terms of the clinical onset of alcohol abuse-dependence, Mr Clutterbuck submitted that the expert evidence before the Tribunal “seems to indicate that nobody can realistically say when the actual onset was – of the true dependence. Dr Katz goes so far as to say, ‘well, it could well have been within the two year period’. And so one must then come back to the veteran to determine whether, in fact, he has truly suffered a dependence or an abuse within that two year period of time.” In these circumstances he submitted that the Tribunal could infer the date of clinical onset.
48. In this regard, Mr Clutterbuck referred to Mr Riddel’s evidence that he was not a substantial user of alcohol before these incidents. He became anxious after the incidents and because of anxiety commenced drinking heavily. Moreover, his evidence was “that…his imbibing of alcohol only seemed to increase after that period of time. And one could logically conclude that after a period of some two years of being a regular user – for example, while he was on Queensborough he was using his own rations and other people’s rations. While he was on HMAS Melbourne, he got himself into a position where he was actually the keeper of the keys of the freezer and had access to alcohol on a very regular basis. Now, all psychiatrists seem to agree that he is constantly using alcohol and he has been told by his own general practitioner, ‘it’s time to dry out’, but he elects not to do so. So we really have a constant progression of alcohol abuse on the evidence before the Tribunal.”
49. Mr Clutterbuck referred to the following drinking habits of Mr Riddel: that his alcohol intake for the last several years includes six to eight cans of beer per day plus two to three bottles of whisky per week, and a bottle of red wine a night, if he has no whisky; from 1962 and over the years his alcohol intake had increased to the present levels; and that he originally drank as a result of the stress of service and continued drinking until it became a habit.
50. In relation to the severe stressor requirement imposed by the “alcohol abuse/ dependence SoP”, Mr Clutterbuck conceded that Incident 2 (the diving incident) was the major event. This event came within the “severe stressor principle” “as it caused him to fear for his life.” He submitted that this event represented an objective and assessable state of affairs. He submitted that, based on Mr Riddel’s evidence, he suffered alcohol dependence soon after this incident.
51. Mr Clutterbuck further contended that Mr Riddel had suffered an anxiety disorder or a phobic disorder at the time of incident 2 (the diving incident and his fear of drowning). Moreover, it was his contention that “it would appear that it would be a diagnosable psychiatric disorder as both psychiatrists have referred to it and given it a label.”
52. Mr Clutterbuck stated that the “Hypertension SoP” has as one of its relevant factors, that the veteran must be suffering alcohol abuse or alcohol dependence involving consumption of an average of at least 200 grams of alcohol at the time of clinical onset of hypertension. This factor was satisfied given that both Dr Troup and Dr Katz indicated that Mr Riddel suffers alcohol dependence. In addition, Dr Wainwright acknowledged that Mr Riddel consumes excessive amounts of alcohol.
53. Mr Kelly submitted that Mr Riddel did not satisfy any of the four DSM-IV criteria for alcohol abuse over a 12 months period when considered against Factor 5(c) of the SoP: “suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence of alcohol abuse” – notwithstanding only one criterion had to be met. He referred to Mr Riddel’s six promotions throughout his navy career and employment records after the Singapore incident - which he described as “glowing reports”, as evidence that his alcohol use had not resulted in a failure to fulfil major obligations at work. Moreover, there was no evidence before the Tribunal that either criteria 2, 3, or 4 of the DSM-IV criteria for alcohol abuse were satisfied.
54. Accordingly, it was Mr Kelly’s contention that given alcohol abuse was a “lesser” condition relative to alcohol dependence, then if the DSM-IV criteria for alcohol abuse could not be satisfied – neither could the DSM-IV criteria for alcohol dependence be satisfied over the same 12 month period.
55. Mr Kelly was referred by the Tribunal to the medical report of Dr Wright (T6, Folio 93, 6 September 2002), who had concluded that alcohol dependence, rather than alcohol abuse, was the appropriate condition. Mr Kelly responded that little weight should be given to the opinion as it did not go back to the period prescribed by the SoP – but only applied at the time of the report.
56. Mr Kelly submitted that an analysis of the evidence of Dr Katz and Dr Wainwright indicated that Mr Riddel’s psychiatric condition was only a problem when he was placed in a “diving environment”. Outside this environment, there was no problem with this condition – as indicated by his naval career achievements.
57. In relation to being “exposed to a severe stressor”, Mr Kelly contended that this SoP requirement was not satisfied when the factual evidence was reviewed: Mr Riddel became disorientated diving in 5 metres of water, 5 metres away from the wharf when he was diving for less than 5 minutes. There was no engagement with the enemy.
Consideration of the Issues
58. The Tribunal has reached a decision in this application for review taking into account the oral and documentary evidence, the legislation and the case law. At the commencement of the hearing, the applicant advised that it would not be pursuing the disabilities of “Anxiety Disorder” and “Sleep Apnoea”.
59. The Tribunal has adopted the sequential stages in Deledio’s case in order to resolve the issues in dispute. However, the Tribunal commences with a preliminary step to Deledio in order to ascertain whether a SoP applies, in order to identify the “kind of injury” suffered by the veteran: Hancock’s case.
60. It was not in dispute that Mr Riddel had a “panic episode” during the diving incident (Incident 2) in 1962. Moreover, the oral evidence of both psychiatrists confirms that this incident led to the potential for phobic anxiety states during diving.
61. Dr Wainwright’s opinion was that Mr Riddel may have had a Specific Phobia (DSM-IV) as a result of the partial flooding (Incident 1); in addition, that the diving event (incidents) resulted in a significant phobic anxiety. This phobic anxiety recurred in 1967 when Mr Riddel attempted to resume diving.
62. In terms of whether the “one-off” event (i.e. the diving incident) would have continuing consequences, Dr Katz expressed the opinion that a phobic reaction to the environment would develop reflecting back to that specific environment.
63. Dr Wainwright’s opinion was that Mr Riddel would not have an anxiety state when he was not in an environment where he might drown – a viewpoint consistent with Dr Katz’ oral evidence.
64. The Tribunal accepts the expert medical evidence of Dr Wainwright and is reasonably satisfied that Mr Riddel has suffered from the injury of Anxiety Disorder (Specific Phobia): see Repatriation Commission v Cooke (1998) 160 ALR 17. In making this conclusion, the Tribunal finds that Dr Wainwright has been objective in his assessment to ensure the correct diagnosis was made.
65. The Tribunal also accepts Dr Wainwright’s opinion that this phobic anxiety disorder occurred for only a short-time during Mr Riddel’s operational service. The expert evidence that the specific phobia reflects the period of sensitisation is a relevant consideration in this regard.
Whether the Material Before the Tribunal Points to an Hypothesis that connects the Death of the Veteran with the Circumstances of Service
66. Based on the evidence and information before the Tribunal, the hypothesis connecting Mr Riddel’s operational service with his injury was as follows:
Operational service phobic disorder alcohol abuse-alcohol dependence hypertension.
67. Applying the principles in East and Stares, the Tribunal concludes that the essential elements are pointed to by the material before the Tribunal and so raises an hypothesis connecting the diseases of Mr Riddel with the circumstances of his service. The Tribunal recognises the hypothesis to be “a supposition made as a starting point for further investigation from known facts and no more than a conjectural explanation of an ultimate fact”.
Whether a SoP in is Force
68.The relevant SoPs in force that are relevant to this application for review are:
(a)Alcohol Abuse: Dependence: Instrument No 76 of 1998 and
(b)Hypertension: Instrument No 31 of 2001.
69. The question that section 120(3) of the Veterans’ Entitlements Act requires to be asked is whether some or all of the facts raised by the material before the decision-maker gives rise to a reasonable hypotheses connecting Mr Riddel’s injury with his operational service: see Byrnes case at 571.
70. In relation to the hypothesis raised by the evidence, and pursuant to section 120(3) of the Act, the following factors are contained within the “Alcohol abuse – dependence SoP” and are consistent with the template or factor:
“Factors
5. 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 or death from 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; or …” [Emphasis added]
where
“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.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include”
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
Whether the Hypothesis is a Reasonable One
71. Given the Tribunal’s finding that Mr Riddel has suffered from a phobic anxiety disorder, the Tribunal has adopted the approach in Repatriation Commission v Hill (2002) 69 ALD 581 to determine whether a reasonable hypothesis exists. That is whether the material raises or points to a connection between Mr Riddel and the factors prescribed by the SoP during his operational service.
72. The following material before the Tribunal relates the circumstances of Mr Riddel’s operational service to his psychiatric condition:
(a)the two incidents (partial flooding and diving) and the nature of the “stressors” experienced in Singapore Harbour in 1962;
(b)the expert opinion of Dr Katz and Dr Wainwright in relation to phobic disorders; and
(c)the expert opinion of the above two psychiatrists as well as the medical reports of Dr R Troup and Dr Wright in relation to alcohol abuse-dependence.
73. Accordingly, based on the evaluation of all the material before the Tribunal there is an hypothesis pointed to by the facts, that is reasonable, as it involves more than a “mere possibility”.
74. Furthermore, there is material before the Tribunal that raises the threat of serious injury or death as perceived by Mr Riddel from the two incidents in Singapore Harbour.
Whether the Factual Evidence Before the Tribunal Discharges the Legal Standard of Proof
75. In making its findings of fact, the Tribunal has carefully considered all of the oral evidence and documentary material before it in determining the final step in Deledio, in relation to the reasonable hypothesis.
76. A central issue for the Tribunal to decide is the time of the clinical onset of alcohol dependence or alcohol abuse. In this regard the Tribunal has relied on the following objective criteria found in DSM-IV.
77. “Substance Use Disorder” refers to Substance Dependence and Substance Abuse. Alcohol is a drug of abuse. Furthermore, DSM-IV recognises that Alcohol Abuse requires fewer symptoms and thus may be less severe than Alcohol Dependence.
(a) Criteria for Substance Dependence (DSM-IV at 197)
“A maladaptive pattern of substance use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period (Tribunal emphasis):
(1) tolerance, as defined by either of the following:
(a)a need for markedly increased amounts of the substance to achieve intoxication or desired effect
(b)markedly diminished effect with continued use of the same amount of the substance
(2) withdrawal, as manifested by either of the following:
(a)the characteristic withdrawal syndrome for the substance (refer to Criteria A and B of the criteria sets for Withdrawal from the specific substances)
(b)the same (or a closely related) substance is taken to relieve or avoid withdrawal symptoms
(3)the substance is often taken in larger amounts or over a longer period than was intended
(4)there is a persistent desire or unsuccessful efforts to cut down or control substance use
(5)a great deal of time is spent in activities necessary to obtain the substance (e.g., visiting multiple doctors or driving long distances), use the substance (e.g., chain-smoking), or recover from its effects
(6)important social, occupational, or recreational activities are given up or reduced because of substance use
(7)the substance use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by the substance (e.g., current cocaine use despite recognition that an ulcer was made worse by alcohol consumption).”
(b) Criteria for Substance Abuse (DSM-IV at 199)
“A.A maladaptive pattern of substance use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period (Tribunal emphasis):
(1)recurrent substance use resulting in a failure to fulfil major role obligations at work, school, or home (e.g. repeated absences or poor work performance related to substance use; substance-related absences, suspensions, or expulsions from school; neglect of children or household)
(2)recurrent substance use in situations in which it is physically hazardous (e.g., driving an automobile or operating a machine when impaired by substance use)
(3)recurrent substance-related legal problems (e.g., arrests for substance-related disorderly conduct)
(4)continued substance use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the substance (e.g., arguments with spouse about consequences of intoxication, physical fights)
B.The symptoms have never met the criteria for Substance Dependence for this class of substance.”
78. The Tribunal finds that the clinical onset of alcohol abuse/dependence did not occur within the two year period following exposure to the stresssors in 1962. The Tribunal has relied on the objective criteria in DSM-IV for alcohol abuse in order to address the legal meaning of clinical onset: see Robertson’s case.
79. The Tribunal has made this finding for the following reasons. In any 12 month period during the prescribed two years by the “Alcohol Abuse SoP” , Mr Riddel did not fail to fulfil “major role obligations” at work or have “poor work performance”. Rather, his naval employment record from May 1962 – August 1965 (T6, Folio 122) reveals a “above average”, “quietly impressive” and “hard-working serviceman”. His medical examination on discharge (29 April 1976) placed him as Category One. His rank was a CPO (T6, Folios 4,5). There is no expert opinion evidence before the Tribunal of the other DSM-IV criteria for alcohol abuse: (a) recurrent substance use in hazardous situations; (b) recurrent substance-related legal problems; or (c) persistent or recurrent social or inter-personal problems. Only one of these criterion has to be satisfied under DSM-IV over a 12 month period with respect to the diagnosis of alcohol abuse. None can be satisfied at the requisite level of proof: see Gosewinckel’s case: Cooke’s case. Dr Wainwright’s assessment of these criteria further indicated that none of these four criteria were satisfied. In this regard, the Tribunal prefers the evidence of Dr Wainwright as the Tribunal considers his opinion evidence is consistent with the observations on expert evidence made by Heerey J in Deledio’s case.
80. Counsel for the applicant contended that the Tribunal could infer the time of clinical onset by reference to Mr Riddel’s evidence of drinking prior to and immediately after the two incidents in Singapore Harbour.
81. In considering the weight to be placed on an inference in this factual situation the decision of LJ Wright in Caswell v Powell Duffryn Associated Collieries 3 (1939) All England Law Reports 722 at 733 is particularly relevant:
“There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish… But if there are no positive proved facts, from which any inference can be made, the method of inference fails and what is left is mere speculation or conjecture.”
82. Mr Clutterbuck relies on the evidence of Mr Riddel. The Tribunal has made a finding that the objective criteria for alcohol abuse in DSM-IV have not been satisfied. Furthermore, Dr Katz, the applicant’s psychiatrist has conceded that any time he may have stated for the claimed onset of alcohol dependency was only a “guesstimate”, although he acknowledged it was “possible” that the condition manifested itself within a period of one or two years after the two incidents in 1962. However, Dr Katz makes no reference to the objective criteria of DSM-IV.
83. Accordingly, applying these facts and findings to the principle in Caswell’s case, the Tribunal concludes that the inference relied on by the applicant is “mere speculation”, without corroborative factual evidence that addresses the objective criteria contained in DSM-IV. In this regard, and for reasons stated earlier, the Tribunal prefers the evidence of Dr Wainwright.
84. Two other psychiatrists have considered the question of the alcohol abuse-dependence condition and Mr Riddel. Dr R Troup (T6, Folio 104) states:
“The sequence of events that occurred in veteran was the diving incident which is described above causing a Generalised Anxiety Disorder. This occurred immediately after the diving incident and because he felt all the symptoms of a Generalised Anxiety Disorder. He felt because he was a first class diver this should not have happened to him and he felt guilty and embarrassed as well as having all they symptoms of Generalised Anxiety Disorder. ‘Prior to this he used to have the odd drink of alcohol but his alcohol consumption escalated markedly after this incident, even while he was on the ship. So the development of the generalised anxiety developed coincidentally with increasing alcohol dependency and he fits in with the Statement of Principles for generalised anxiety as well as alcohol dependency/”
85. The Tribunal placed little weight on this evidence as it is subjective – not objective opinion in its approach to the diagnosis of alcohol dependence and its consideration of the DSM-IV criteria.
86.Dr W Wright’s report (T6, folio 93, 96: 6 September 2002) states:
“Mr Riddel said that his main problem was over-use of alcohol. He drinks 6 to 8 stubbies of beer per night, each being followed by a whiskey chaser. He consumes an average of 2 to 3 bottles of whiskey per week. Mr Riddel said that starts drinking about 4.00 or 4.30 pm and continues until 7.30pm. he then eats his evening meal, and watches television before retiring at 8.00pm. He has had this pattern for many years.” [Tribunal emphasis]
And
“On the information provided, Mr Riddel suffers from Alcohol Dependence (DSM-IV TR 309.90).”
87. The Tribunal concludes that this evidence is relevant to the period around the time of consultation only. Furthermore, there has been no direct evaluation of the DSM-IV criteria for alcohol dependence by Dr Wright. Accordingly, the Tribunal places little weight on his report in terms of its application to the relevant period as prescribed by the “alcohol abuse-dependence” SoP.
88. The Tribunal has made an earlier finding that Mr Riddel’s phobic anxiety disorder occurred for only a short period during his operational service (see para 65).
89. Accordingly, given the above findings, and applying the reasoning in Byrnes case, the Tribunal concludes that the truth of another fact in the material which is consistent with the hypothesis cannot be proved beyond reasonable doubt.
90. Given the above findings, the Tribunal concludes that for the purposes of section 120(1) of the Act, it is satisfied beyond reasonable doubt that the alcohol abuse-dependence condition of Mr Riddel was not caused by his operational service for the following reasons:
(a)Factor 5(c) of the “alcohol abuse/dependence SoP” is not satisfied because Mr Riddel did not suffer a psychiatric disorder at the time of the clinical onset of alcohol abuse or alcohol dependence. The phobic anxiety disorder occurred immediately after the incidents in Singapore Harbour in 1962 – but persisted for only a short period during operational service. The Tribunal has made an earlier finding that there was no real evidence that Mr Riddel suffered alcohol abuse or dependence at the time relevant to the consideration of his phobic anxiety disorder. Also, a relevant consideration is that DSM-IV recognises the diagnosis for alcohol abuse requires fewer symptoms and thus may be less severe than alcohol dependence (see para 77); and
(b)Factor 5(b) is not satisfied. Mr Riddel experienced a “stressor” in the incidents in Singapore Harbour in 1962. The Tribunal has found that the clinical onset of alcohol abuse-dependence did not emerge in the two year period immediately following these stressor(s) being experienced. Given this finding, there is no need for the Tribunal to consider Stoddart’s case to determine whether the “stressor” experienced was a “severe stressor”. In addition, there is no need for the Tribunal to consider the “Hypertension SoP” and Factor 5(b).
91.For all the above reasons the decision under review is affirmed.
I certify that the 91 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: Camille Banks
AssociateDate/s of Hearing 6 October 2004
Date of Decision 2 December 2004
Counsel for the Applicant Mr R Clutterbuck
Solicitor for the Applicant Streeting Haney, Lawyers
For the Respondent Mr J Kelly, Departmental Advocate
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