Robertson and Repatriation Commission
[2007] AATA 1103
•7 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1103
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/202
VETERANS' APPEALS DIVISION ) Re Peter Robertson Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Ms N Bell, Senior Member Date7 March 2007
PlaceSydney
Decision The decision under review is set aside and instead the Tribunal decides that Mr Robertson’s post traumatic stress disorder, alcohol dependence and major depression are related to his eligible service.
..............................................
Ms N Bell Senior Member
Veterans’ Affairs – Entitled to Eligible Service – Post Traumatic Stress Disorder – Alcohol Dependence – Major Depression – Clinical Onset of Post Traumatic Stress Disorder – Frank E Evans – HMAS Melbourne – Collision – Severe Stressor – Development of Specific Phobia – The Decision Under review is Set Aside – Post Traumatic Stress Disorder – Alcohol Dependence – Major Depression – Related to Eligible Service
Veterans’ Entitlements Act 1986
Lees v Repatriation Commission [2002] FCAFC 398
Repatriation Commission v Stoddart (2004) 77 ALD 67
Woodward v Repatriation Commission (2004) 75 ALD 420
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
REASONS FOR DECISION
Ms N Bell, Senior Member 1. Mr Robertson served in the Royal Australian Navy from January 1965 to March 1988. From 7 December 1972 to 22 March 1988 he had eligible service within the meaning of the Veterans’ Entitlements Act 1986.
2. There is no dispute that he suffers from post traumatic stress disorder, alcohol dependence and major depression. Mr Robertson claims disability pension in respect of these conditions on the basis that they are related to his service. In particular, he claims that his post traumatic stress disorder conforms to the template in Statement of Principles (SoPs) No. 4 of 1999 in that he experienced a severe stressor[1] prior to the clinical onset of his post traumatic stress disorder. In relation to his alcohol dependence and major depression, he claims, in accordance with SoPs Nos. 77 of 1998 and 59 of 1998 respectively, that he was suffering from a psychiatric disorder (in this case, post traumatic stress disorder) at the time of, or for depression, within one year before, the clinical onset of those conditions. This raises the question of the dates of clinical onset of his conditions.
[1] “Severe stressor” has a meaning derived from its definition in the SoP and from interpretation by the Federal Court in a number of cases.
3. Mr Robertson has reported a number of stressful incidents throughout the course of his service – some occurring during his period of eligible service and some not. There is consensus between Mr Robertson’s treating psychiatrist, Dr Reinhardt and Dr Delaforce, the psychiatrist who examined Mr Robertson for the purposes of this application, that a stressor experienced before his eligible service, the collision between the Frank E Evans and the HMAS Melbourne, is a severe stressor and the instigator of his post traumatic stress disorder. I note that, as a diver on the Melbourne at the time of the collision, he was required to enter the water and retrieve survivors, bodies and body parts until sharks arrived and he and other divers were forced to get out. There is no dispute as to the significance and horror of this incident or that it was a severe stressor within the meaning of the SoP.
4. This raises the question of whether the stressors alleged by Mr Robertson to have occurred during his eligible service are also “severe stressors” within the meaning of the SoP and, if so, whether they contributed to or aggravated his post traumatic stress disorder.
5. Mr Robertson also relied, in the alternative, on Dr Delaforce’s opinion that, following the Melbourne - Evans collision, he developed the condition of specific phobia which was a precursor to the post traumatic stress disorder that emerged in the 1990s. Mr Robertson argued that his specific phobia had been aggravated by stressors during eligible service.
6. Therefore, there are three questions to be answered before I can determine whether any or all of Mr Robertson’s conditions are related to his service:
i) What were the dates of clinical onset of Mr Robertson’s post traumatic stress disorder, alcohol dependence and major depression?
ii) Did the stressors alleged by Mr Robertson take place, and, if so, do they amount to “severe stressors”?
iii) If so, did the stressors contribute to or aggravate Mr Robertson’s post traumatic stress disorder? I note that, according to Mr Robertson’s submissions, if his post traumatic stress disorder is established as related to his service, then, depending on the date of clinical onset, it will follow that his alcohol dependence and major depression are also related to his service.
7. Because Mr Robertson’s service is eligible service, rather than operational service, all of these questions must be determined to the standard of the balance of probabilities.
clinical onset
post traumatic stress disorder
8. After canvassing, in detail, the symptoms of post traumatic stress disorder that developed in Mr Robertson, Dr Delaforce concluded that the condition had onset in the mid 1990s. His analysis of the onset of the disease was thorough and methodical, addressing the relevant signs and providing a cohesive picture of a cluster of symptoms emerging and gathering force over a period beginning in the late 80s and joined in the mid 1990s by functional impairment to establish clinical onset. In oral evidence, he identified 1994 as the year of clinical onset.
9. Dr Reinhardt, Mr Robertson’s treating psychiatrist, provided a less detailed analysis, simply stating that his current symptoms of post traumatic stress disorder have been present since the time of the collision of the Melbourne and the Evans. She stated, however, that his symptoms increased and his function deteriorated after events that occurred in 1974 during his eligible service. She did not provide any more detail than this. In her oral evidence she conceded that, in an earlier report, she had said the full range of symptoms of post traumatic stress disorder did not present until the early 1990s and until then excessive alcohol use masked the symptoms that were not apparent soon after the Melbourne - Evans collision. In oral evidence she confirmed that view but also said there appeared not to have been any impairment of functioning for Mr Robertson prior to the 1990s; there may have been some impairment of social or recreational functioning, but she does not really know. She also ventured that he probably did have some distress and that is what gave rise to his drinking, but also conceded that she could not be sure of this and could only speculate. I note that “clinically significant distress or impairment in social, occupational or other important areas of functioning” is a diagnostic criteria of post traumatic stress disorder.
10. In spite of this uncertainty and speculation, and a concession that in order to establish clinical onset, a person must have all of the signs and symptoms of a disease, Dr Reinhardt stated that, in her view, it was probable that Mr Robertson had developed post traumatic stress disorder in 1969.
11. I find Dr Delaforce’s evidence and opinion more persuasive because it is more logical, internally consistent and thorough. I am also mindful of the decision of the Federal court in Lees v Repatriation Commission[2] that, for clinical onset to be established all of the signs and symptoms of a disease must be present. I find, then, that Mr Robertson’s post traumatic stress disorder had its clinical onset in 1994. Given this finding, and its timing much later than any of the stressors claimed by Mr Robertson, there is no need to consider whether there was clinical worsening of his post traumatic stress disorder.
[2] [2002] FCAFC 398
alcohol dependence
12. Dr Delaforce provided an equally thorough analysis of Mr Robertson’s drinking history and development of alcohol dependence. However, the information he had been able to obtain from Mr Robertson only allowed him, by reference to diagnostic criteria, to place the date of clinical onset of alcohol dependence as sometime in the 1990s.
13. I note that a formal diagnosis of alcohol dependence was made by Dr Jurd, psychiatrist, in 1997 when Mr Robertson was admitted to an inpatient alcohol rehabilitation program. He underwent “moderate” alcohol withdrawal during that program which he had attended because he had begun to realise that “his drinking was out of control”.
14. In oral evidence Dr Reinhardt agreed with Dr Delaforce’s diagnosis that Mr Robertson’s excessive drinking reached the stage of alcohol dependence some time in the 1990s.
15. I can only find, then, that the date of clinical onset of Mr Robertson’s alcohol dependence was during the 1990s, but no later than 1997 when a formal diagnosis of that condition was made by Dr Jurd.
major depression
16. Dr Delaforce reported that in Mr Robertson’s first year of civilian life, in 1988, he started to become increasingly depressed with depressed mood, loss of interest and pleasure, decreased appetite and daily thoughts of wishing he was dead or not caring if he was. He said symptoms of depression were at maximum severity in the mid 1990s and, since the late 1980s, had not been absent for at least two months. On this basis, Dr Delaforce placed the clinical onset of Major Depressive Disorder in the mid 1990s.
17. Dr Reinhardt also considered Mr Robertson’s Major Depressive disorder had its clinical onset in the mid 1990s, but she does not give details of how she reached this conclusion.
18. On the basis of Dr Delaforce’s evidence and his reference to the diagnostic criteria, I am satisfied that Mr Robertson’s Major Depressive Disorder had its clinical onset in the mid 1990s.
19. None of these findings is inconsistent with Mr Robertson’s submission that, in accordance with the relevant SoPs, at or before the time Mr Robertson had clinical onset of alcohol dependence and of major depressive disorder, he had clinical onset of his post traumatic stress disorder.
post traumatic stress disorder stressors
drowning of chinese laundryman
20. Mr Robertson’s evidence was that in 1974 a Chinese crewmember was “knocked off” a boat taking crew back to HMAS Stuart when it was in Bangkok. He was unsure whether the Stuart was alongside or anchored at the time. The crewman’s body was found the next morning. Mr Robertson said he felt horror and helplessness, and noted he had seen sailors drown in the collision between the Melbourne and the Evans.
21. There is no mention of the incident in the Stuart’s Record of Proceedings, although an incident of a similar nature was recorded in the Record of Proceedings of the HMAS Vendetta. It was also noted in the Writeway Research report of Captain John McDonald that the Stuart was alongside at the time of the claimed drowning. This casts doubt on the likelihood of crew returning to the Stuart by boat.
22. Mr Colin Rowley was the Petty Officer Cook on the Stuart at the time. His evidence supported Mr Robertson’s recollection of the incident and he remembered it particularly because he had known the drowned man and had let him use the ship’s facilities to cook traditional Chinese food for himself and his fellow Chinese crewmen. He said he cannot recall whether the Stuart was alongside at the time of the drowning but he does recall being midstream for some of the time, that the river was full of rubbish and there was a fear the rubbish would block something on the hull. Consequently they may have had to be midstream to clear that out. Mr Rowley said he learned of the drowning after returning from overnight leave and went to the laundry to express his condolences to the rest of the Chinese crew who were very upset.
23. Mr Rowley agreed that it was very strange that the drowning had not been reported in the Record of Proceedings. He would have expected an inquiry into the drowning. He also noted that Chinese crew were transferred between ships and that some of the crew on the Stuart had been on the Vendetta.
24. While I have no reason to doubt the credibility of either Mr Robertson or Mr Rowley, the passage of time, the occurrence and recording of an almost identical incident in relation to the Vendetta, and the absence of any record of the Stuart being at anchor make me doubt the accuracy of their recollection. I cannot be reasonably satisfied that the incident took place as claimed by Mr Robertson.
hong kong diving incident
25. Mr Robertson had completed the Ships’ Diver’s Course in 1967 – a prestigious achievement. With this qualification he had taken part in the search for the body of Prime Minister Holt and was a diver on the Melbourne when it collided with the Evans. In 1969, before his eligible service commenced, he was sucked into the Melbourne’s suction grate when he was doing a half necklace search. He enrolled in a Refresher Diving Course at HMAS Penguin in 1972 but pulled out as he had “lost his confidence”. It was his first time in the water since the Melbourne – Evans collision.
26. In 1974, on the HMAS Stuart in Hong Kong, Mr Robertson dived. He said he could not remember whether he dived at an officer’s request or whether he asked for permission to dive but when he entered the water he had to surface again. Mr Robertson said he felt uncomfortable and that the dive brought back memories of the Melbourne - Evans collision and made him feel “quite stressed” and he “didn’t feel confident”. He said in his statement that he felt “fear and stressed out”. He later said that he “completely lost it” and never returned to the water.
27. In 1997 Mr Robertson told Dr MacDonald, general practitioner, about the diving incident and also Dr Hooper, psychiatrist, in 2000. He reported to Dr Delaforce that during the dive he had panicky feelings about memories of Melbourne’s collision with the Evans and could not handle it and that after the incident he went ashore and got drunk to wipe out his memories.
28. In the absence of any directly contraverting evidence, I accept Mr Robertson’s evidence of the incident.
29. The question remains whether the incident amounts to a severe stressor of the kind required by the post traumatic stress disorder SoP. The term “experiencing a severe stressor” is defined in that SoP as:
“… 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 another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the
Veterans’ Entitlement Act applies, events that qualify as 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;”
30. Mr Colbourne, for Mr Robertson, submitted that, in accordance with the decisions of the Full Federal Court in Repatriation Commission v Stoddart[3] and Woodward v Repatriation Commission[4], the Hong Kong diving incident amounted to a severe stressor because Mr Robertson’s perception was that he was under threat of serious injury because he was, in the water in Hong Kong, re-experiencing the Melbourne - Evans collision.
[3] (2004) 77 ALD 67
[4] (2004) 75 ALD 420
31. I note the opinion of Dr Delaforce that, at that time, Mr Robertson was suffering from specific phobia, phobia of diving, which had arisen out of his experience of the Melbourne - Evans collision. Dr Delaforce saw Mr Robertson’s specific phobia as a precursor to, and now subsumed by, his post traumatic stress disorder. He considered that Mr Robertson’s response to the Hong Kong dive was a feature of his specific phobia rather than a response to a severe stressor, perceived or otherwise. I note that Dr Reinhardt did not report on the Hong Kong incident at all. She did, however, comment, in oral evidence, on the phenomenon of re-experiencing a prior stressor. Her opinion was that, even though the re-experiencing may be a symptom of the post traumatic stress disorder that was instigated by the original stressor, the re-experiencing may be a stressor in itself.
32. While I acknowledge that the post traumatic stress disorder SoP does not require, in its definition of a severe stressor, a particular reaction (such as horror or helplessness) by a person to the contended stressor, the reactions of the person concerned are relevant to establishing the person’s perception of the alleged stressor and the nature of any perceived threat. That perception is, in turn, relevant to establishing the existence of the stressor according to the decisions in Stoddart and Woodward. Mr Robertson’s descriptions of his feelings on entering the water in Hong Kong do not refer to a threat of physical injury but, rather, to his feeling of panic and memories of the Melbourne – Evans collision. He described a re-experiencing of that catastrophe.
33. I consider that Dr Delaforce’s opinion and explanation of Mr Robertson’s reaction is plausible but it is not inconsistent with the characterisation of Mr Robertson’s experience of diving in Hong Kong as a severe stressor. Whether his reaction was phobic or not, it involved a re-experiencing of the Melbourne – Evans collision. It amounted to being “confronted with an event that involved… threat of death or serious injury, or a threat to the …, or another …, physical integrity.” In this way, the incident meets the SoP definition of “severe stressor.”
cyclone tracey
34. Mr Robertson was on the HMAS Stuart when it went to Darwin to provide assistance in the aftermath of Cyclone Tracey. Mr Robertson, who used to live in Darwin and had many friends there, was concerned about them and said he was very emotional when he saw the devastation there. He described it as stressful and said that stress arose out of Darwin being a small town then, where everyone knew everyone else. He said there were some naval lives lost when the cyclone hit and that made him “stressed out”. He spent his time cleaning up the devastation left in the wake of the cyclone. In cross examination he agreed that his concern was of a general nature and about a range of people he knew.
35. Mr Robertson did not raise his experience of the aftermath of Cyclone Tracey with either Dr Reinhardt or Dr Delaforce.
36. Mr Robertson’s evidence about this experience was vague. He spoke only in general terms about the people he was concerned about. He mentioned no particular individuals and gave no specific evidence of his concerns or perceptions. He spoke only of “stress”. There was no suggestion that he was confronted by a threat to his own or others’ physical integrity. He was confronted by the aftermath of such a threat but I consider this falls short of the intensity of experience envisaged by the definition of severe stressor and his evidence did not indicate a perception of a threat of that order. On this evidence, the experience was not a severe stressor within the meaning of the SoP.
proximity to hmas melbourne
37. Mr Robertson said that, after the Melbourne – Evans collision, he would not go below decks, even at night, when the Melbourne was near his ship because he felt “fear, stress and recalled the drownings” and remembered the collision. He said the Melbourne’s accident, and the absence of any explanation for them, had made him not trust that ship. He said he feared for his life and worried what the Melbourne might do next. He estimated he had sailed in the company of the Melbourne quite often; at least three to six times per year.
38. Mr Robertson did not raise this fear of the Melbourne with either Dr Reinhardt or Dr Delaforce. However, there is mention of it by Dr Danesi, psychiatrist, in a report in 1996. In 1997, Dr MacDonald wrote that Mr Robertson had hatred and claustrophobia associated with being near the Melbourne.
39. I accept that Mr Robertson has a perception of danger to himself and others arising from the proximity of the Melbourne. His perception was understandable given his previous experience of the Melbourne – Evans collision, an accepted severe stressor that has calamitous effects for him and others. On this basis, I consider that, when in the proximity of the Melbourne, he was confronted with a threat of death or serious injury. In this way, incidents of proximity to the Melbourne were severe stressors.
fire on hmas supply
40. In 1979, when Mr Robertson was posted to the HMAS Supply and deployed to the Indian Ocean, the ship’s engine room caught fire. His quarters were near the engine room. He said the alarm, “Fire! Fire! Fire”, went off over the loud speakers in the early hours of the morning. He said there was thick black smoke everywhere so he could not see or breathe properly and he and his fellow crewmen had to evacuate to the upper deck until the fire was put out. He said the Supply was full of Avgas and other fuel and he and others were very scared that it might blow up.
41. Mr Robertson said he feared for his life because the alarm that went off when the Melbourne and the Evans collided was very similar and it brought back vivid memories. He said the Supply was a “floating bomb” because it was a large oil tanker.
42. Mr Robertson conceded he had been trained in fire fighting and had undergone fire drills before but he said these had never taken place at 3.00 am. The only time he had ever been woken for an emergency was the Melbourne collision and the fire on the Supply.
43. I note that Captain MacDonald, on behalf of Writeway Research, described an announcement of fire in a ship at sea as a “chilling experience”. I consider that such an experience, following against the background of the Melbourne – Evans experience, would give rise to an understandable and reasonable perception of threat of injury or death. On this basis, I am satisfied the fire on the Supply was a sever stressor. There is nothing in the Writeway Research report to suggest that this event did not take place.
contribution to post traumatic stress disorder
44. A complicating factor in this application is that Mr Robertson’s post traumatic stress disorder arose out of the initial severe stressor constituted by the Melbourne – Evans collision. That incident occurred outside his period of eligible service and so, if it is the sole cause of his post traumatic stress disorder, which I have found had its clinical onset in 1994, then that disorder is not related to his eligible service.
45. Mr Robertson contends that his post traumatic stress disorder was contributed to by other severe stressors which did take place during eligible service and their contribution to the disorder renders it service related.
46. Dr Delaforce was of the opinion that the Melbourne – Evans collision was the cause of Mr Robertson’s post traumatic stress disorder. However, he allowed that subsequent stressors can make a psychiatric disorder worse. He also agreed that a number of significant stressors will make a condition worse than it would be if there had been only one stressor.
47. Dr Reinhardt characterised the Melbourne – Evans collision as the initial stressor that “sparked the whole thing off” but considered that later stressors would have an exacerbating effect. She also considered that an incident that was, in effect, a re-experiencing of the initial stressor can be characterised as a stressor in itself.
48. I have found that Mr Robertson suffered additional severe stressors during his eligible service (the Hong Kong diving incident, incidents of proximity to the Melbourne and the fire on the Supply).
49. Section 9 of the Act provides for the contribution, to a material degree, of eligible service to an injury suffered, or a disease contracted by a Veteran before the commencement of eligible service. Such contribution renders a disease war caused. Section 9 provides, in part:
9 War-caused injuries or diseases
(1) Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
… (e) the injury suffered, or disease contracted, by the veteran:
(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; …
50. On the basis of the expert evidence I am satisfied that the later stressors “add their measure” to the final manifestation of Mr Robertson’s post traumatic stress disorder in 1994 (Treloar v Australian Telecommunications Commission[5]). In any event, the SoP operates, by factor 5(a) to establish a connection to service (experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder).
[5] (1990) 26 FCR 316
51. Section 120B of the Act establishes war causation where there is material that raises a connection between a disease and service and a SoP upholds that connection. Both requirements are met here and so Mr Robertson’s post traumatic stress disorder is war caused.
alcohol dependence and major depression
52. Mr Robertson relies on SoP factors concerning the existence of a service related psychiatric disorder to establish the connection of his alcohol dependence and major depression with his eligible service. I have found that Mr Robertson’s post traumatic stress disorder had its clinical onset in 1994.
53. The relevant SoP factor for alcohol dependence is:
“5(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence …”
54. I have found that Mr Robertson’s alcohol dependence had its clinical onset some time in the 1990s but not later than 1997, the time it was formally diagnosed. Given the timing of that diagnosis, I consider that, on the balance of probabilities, Mr Robertson had post traumatic stress disorder at the time of the clinical onset of his alcohol dependence.
55. The relevant SoP factor for depressive disorder is:
“5(b) having a clinically significant psychiatric condition within the one year immediately before the clinical onset of depressive disorder;”
56. I found Mr Robertson’s major depression had its clinical onset in the mid 1990s. Given this time range and the clinical onset of post traumatic stress disorder in 1994, I find it more probable than not that Mr Robertson had post traumatic stress disorder within one year immediately before the clinical onset of major depression.
57. It follows that Mr Robertson’s alcohol dependence and major depression are related to his eligible service.
decision
58. The decision under review is set aside and instead the Tribunal decides that Mr Robertson’s post traumatic stress disorder, alcohol dependence and major depression are related to his eligible service.
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: ...............[ Sanjiv Shah ]....................
AssociateDates of Hearing 26 June 2006, 13 December 2006 and 14 December 2006
Date of Decision 7 March 2007
Counsel for the Applicant Mr Craig Colbourne
Solicitor for the Applicant Wyatt AttorneysCounsel for the Respondent Mr Gerard Purcell
Solicitor for the Respondent Department of Veterans’ Affairs
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