Ronald Strong and Repatriation Commission

Case [2014] AATA 826

[2014] AATA 826  

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2013/4235

Re

Ronald Strong

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Dr M Denovan, Member
Date

4 November 2014
Place Brisbane

The Tribunal affirms the decision under review.

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

Dr M Denovan, Member

CATCHWORDS

VETERANS’ AFFAIRS – Benefits and entitlements – Eligibility for pension – Posttraumatic Stress Disorder – PTSD – Alcohol Use Disorder – Depressive Disorder – Anxiety Disorder – GAD – Adjustment Disorder – Operational service – No reasonable hypothesis connecting disease with service – Whether condition contributed to by eligible service – Decision under review affirmed.

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) ss 6, 9, 120, 120A, 196B

CASES

Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622

Repatriation Commission v Budworth [2001] FCA 1421; (2001) 116 FCR 200

McKerlie v Repatriation Commission (2010) AAR 535

Repatriation Commission v Bawden [2012] FCAFC 176

Repatriation Commission v Deledio (1998) 83 FCR 82

SECONDARY MATERIALS

American Psychiatric Association. (1994). Diagnostic and Statistical Manual of Mental Disorders (4th ed.). Washington, DC: Author.

American Psychiatric Association. (2013). Diagnostic and Statistical Manual of Mental Disorders (5th ed.). Washington, DC: Author.

Statement of Principles concerning Adjustment Disorder, No. 37 of 2008

Statement of Principles concerning Alcohol Use Disorder, No. 1 of 2009 as amended by No. 29 of 2014.

Statement of Principles concerning Anxiety Disorder, No. 101 of 2007 as amended by No. 42 of 2010 and No. 15 of 2011

Statement of Principles concerning Depressive Disorder, No. 27 of 2008 as amended by No. 40 of 2010

Statement of Principles concerning Post Traumatic Stress Disorder, No. 5 of 2008 (revoked) as amended by No. 19 of 2014 (revoked)

Statement of Principles concerning Post Traumatic Stress Disorder, No. 82 of 2014

REASONS FOR DECISION

Dr M Denovan, Member

4 November 2014

INTRODUCTION

  1. Mr Strong, the applicant in these proceedings, enlisted in the Royal Australian Navy (“RAN”) in May 1965, and served until September 1967. During this period he served in Vietnam waters on HMAS Sydney on three separate occasions, for a total of approximately 40 days. His service in Vietnam waters constitutes operational service within the meaning of s 6 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”).

  2. Mr Strong seeks review of a decision of the Veterans’ Review Board (“VRB”) dated


    28 June 2013, which affirmed the decision of the Repatriation Commission dated


    25 June 2012. In that decision, it was determined that “posttraumatic stress disorder, alcohol dependence and alcohol abuse, and depressive disorder”[1] were not related to service.

    [1] Exhibit 1, folio B.

  3. The basis of Mr Strong’s claim is that whilst performing loading and unloading duties on the deck of HMAS Sydney in Vietnam waters, he saw a two man helicopter approaching the deck about 20 meters from where he was standing. He thought the small helicopter was going to collide with two Chinook helicopters already on board (“the helicopter incident”). His claim is for ‘emotional problems’ causally related to that incident.

  4. On behalf of…

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Details
AGLC
Ronald Strong and Repatriation Commission [2014] AATA 826
Case
[2014] AATA 826
Decision Date

CaseChat Overview and Summary

Ronald Strong, the applicant, sought a review of a decision by the Repatriation Commission that he was not eligible for a pension on the basis of posttraumatic stress disorder (PTSD) and other psychiatric conditions, allegedly arising from his service in the Royal Australian Navy (RAN). The Federal Court of Australia was tasked with reviewing the decision and the underlying evidence and arguments presented by both parties. The primary legal issue before the court was whether the applicant's PTSD and other psychiatric conditions were connected to his operational service in the RAN, specifically if there was a reasonable hypothesis that the claimed helicopter incident during his service constituted a traumatic event necessary for a PTSD diagnosis.

The court examined the applicant's claim that he developed PTSD as a result of being exposed to the potential crash of a helicopter on board the HMAS Sydney. The court also considered the applicant's assertions that earlier incidents, including a gun misfire and an injured sailor, had sensitised him, making him more susceptible to PTSD and other psychiatric conditions. The court was required to determine if the applicant's PTSD and other psychiatric conditions were a result of his service in the RAN or if they were secondary to other events, such as his service in the Queensland Police Service (QPS). The court needed to weigh the opinions of various psychiatrists, including Dr Anderson, who diagnosed PTSD secondary to the helicopter incident, and Dr Milad, who believed PTSD was secondary to the applicant's QPS service.

The court concluded that the applicant's claim of a traumatic helicopter incident did not meet the necessary criteria for a PTSD diagnosis. It found that the applicant's perception of the event as threatening was not reasonable when judged objectively. The court also determined that the sensitising incidents did not occur within the period of operational service and did not provide a reasonable basis to perceive the helicopter incident as threatening. Additionally, the court found that the applicant's PTSD and other psychiatric conditions were more likely secondary to his service in the QPS rather than his service in the RAN. The court affirmed the decision of the Repatriation Commission that the applicant was not eligible for a pension on the basis of PTSD and other psychiatric conditions arising from his service in the RAN.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

If the collection of relevant symptoms[6] points to more than one illness, injury or disease; the Tribunal is obliged, even in the absence of being requested to do so, to make that finding. In the exercise of its inquisitorial responsibilities, the Tribunal is not limited to the case articulated by an applicant.[7] [6] Repatriation Commission v Budworth [2001] FCA 1421; (2001) 116 FCR 200 at [19].[7] McKerlie v Repatriation Commission (2010) AAR 535 at [32], [34], [44] and [45]; Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622 at [47].APPLICANT’S EVIDENCE The applicant enlisted in the RAN in May 1965. He was 17 years old. The applicant’s three periods of service in Vietnamese waters, were from 8 April to 22 April 1967, 28 April to 12 May 1967, and 19 May to 14 June 1967. The thrust of Mr Strong’s claim is that he developed PTSD as a result of being exposed to an incident which involved the potential crash of a helicopter on board the HMAS Sydney. At the time of the helicopter incident, he was mentally stressed, fatigued and in a fearful state. Mr Strong claims that he was exposed to events that involved the misfire of a gun, and a sailor being injured, during his service in the RAN, but prior to his operational service. He claims those events sensitised him, making him more susceptible to the development of PTSD and the other psychiatric conditions. He claims these earlier incidents created a state of mind where he perceived people could have been killed or injured. The applicant had prepared several written statements; he told the Tribunal in his oral evidence that all statements were edited versions of the same document. Included in Exhibit 1, at folios A18-A23; 130 – 135; and 156 – 161, are three of these written statements. The first incident, which Mr Strong claims sensitised him, I will refer to as the ‘gun misfire’.Gun Misfire This incident occurred shortly after the applicant was transferred to HMAS Parramatta on 7 September 1965. The applicant described the incident as follows. There was a misfire during gunnery practice. He was required to handle the cordite charger that was removed from the breach of the gun after it had failed to detonate. The required time interval that would have allowed for a slow burning fuse had not been observed. Whilst he had the cordite cartridge in his hands and was moving to the guardrail to throw it over the side of the ship, the commissioned officer conducting the gunnery practice “stopped [him]” so he could record the cartridge batch number. The applicant was in fear of his life and he was waiting for the cordite to “explode and kill us all”. The applicant stated that he “eventually threw the cartridge over the side”. Following the disposal of the cordite cartridge, attempts were made to remove the shell with an easy out rod. The rod broke after being hit several times with a sledgehammer. After the ship returned to Harbour workmen were bought on board to remove the shell. It was discovered that it was a direct action fuse, and had the head of the easy-out rod have broken and pressure to the direct action fuse occurred, there would have been a disaster. He went numb and could not get the thought out of his mind. Each time he went to the turret he would recall the incident.

Decision

Reasons for decision

The application for review was later withdrawn.Claim lodged 24 October 2011 – the decision under review The applicant is now attending treating psychiatrist Dr Andersen. Mr Strong lodged a claim for ‘emotional condition’, and in a report prepared in support of the claim, Dr Anderson provided the diagnoses of PTSD, GAD, major depression and alcohol dependence. In addition to two written reports, Dr Anderson gave evidence by phone at the hearing. Dr Anderson reported Mr Strong as having nightmares and intrusive thoughts related to helicopters. Dr Anderson opined Mr Strong was exposed to a severe stressor (the helicopter incident). Dr Anderson referred to the gun misfire and the wounded solider incidents. Through his experience of working on board, the applicant became aware that working on the ship was at times extremely dangerous. Dr Anderson referred the gun misfire and wounded sailor incidents as ‘sensitising incidents’ that would make any reasonable person believe that things could go very wrong at times. Dr Anderson opined that PTSD and Alcohol Dependence and Abuse were secondary to experiencing a category 1A stressor, and Depressive Disorder is a consequence of both having experienced a life threatening event and having chronic pain. He indicated GAD was secondary to experiencing stressors and also secondary to PTSD. During questioning at the hearing, Dr Anderson was asked how the Tribunal should reconcile his opinion with the earlier opinions of Dr Unwin, who treated the applicant for many years and opined the applicant’s PTSD was secondary to event experienced in the QPS. Dr Anderson suggested Dr Unwin might have been trying to help Mr Strong with a compensation claim (against the QPS). Asked why the Tribunal should not prefer the opinion of psychiatrist Dr Milad (discussed below), Dr Anderson said Dr Milad possibly got lost in the complexity of Mr Strong’s history, whereas Dr Anderson himself had just focused on the incidents Mr Strong complained to him about. In oral evidence Dr Anderson said his opinion that PTSD was a result of Mr Strong’s RAN service because Mr Strong claims to have intrusive memories and a hyper-alert state right from the time of the helicopter incident. Dr Anderson explained that memories of events that cause PTSD could be supressed as dissociation can happen. He was unable to explain however, how Mr Strong could have been suffering from symptoms of PTSD prior to joining the QPS, when he remembered the category 1A stressor diagnosis was decided upon in 2006. Dr Anderson expressed surprise when he was told Mr Strong claimed to have no recollection of the incident until 2006. Dr Anderson said he was unaware of this, he thought the applicant had remembered the helicopter incident from soon after the event. Dr Anderson said that perhaps he needs to go back and explore that with the applicant. At the request of the respondent, Mr Strong was assessed by Dr Milad. Dr Milad had the benefit of Mr Strong’s previous psychiatric reports, and his WorkCover file. Dr Milad said that he used those reports in combination with the assessment of Mr Strong to try and ascertain his current problem and to try and determine when the problem started. In his report dated 2 April 2014m, Dr Milad provided a diagnosis of PTSD, secondary to events experienced during QPS. Dr Milad said that there were so many reports that clearly documented the association with PTSD and Mr Strong’s police service that it was hard to ignore. Dr Milad said he could find no evidence of Mr Strong having PTSD predating his service in the QPS. He opined that during Mr Strong’s military service, there was no reported traumatic life threatening experiences that would satisfy diagnostic criteria A for PTSD.

Ratio Decidendi

Legal Principle Established

When pushed under cross-examination by the applicant’s representative, Mr Klevanski, Dr Milad expressed some concern that he may be the only obstacle between Mr Strong and a compensation payment. He confirmed that he believed Mr Strong does not meet criteria A for a diagnosis of PTSD, however if everyone else feels strongly and he is the only one who does not accept criteria A is satisfied, then Mr Strong should be given the ‘benefit of the doubt’. CONSIDERATION Prior to commencing that process set out in Deledio,[20] the Tribunal must make a finding on the balance of probabilities, whether it is satisfied that the symptoms constitute an injury or disease.[21] [20] (1998) 83 FCR 82.[21] Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622 at [55]. When the disease said to be responsible for the veteran’s symptoms is PTSD, the decision maker must be satisfied on the balance of probabilities that the traumatic event occurred. This is because a traumatic event is necessary for a diagnosis of PTSD at a medical level. In relation to other psychiatric conditions, said to have been caused by a traumatic event, the decision maker must identify the collection of relevant symptoms, which the psychiatrist has relied upon to make the diagnosis. The decision maker must be reasonably satisfied that the collection of symptoms manifests a diagnosable disease.Posttraumatic Stress Disorder The diagnostic criteria for PTSD, derived from DSM-IV (1994) 4th edition, are set out in paragraph 3 of the relevant SoP No. 5 of 2008 (revoked). The first of these criteria reads:(A) the person has been exposed to a traumatic event in which: (i) the person experienced, witnessed, or was confronted with an ` event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and (ii) the person’s response involved intense fear, helplessness, or horror. The first diagnostic criterion is not satisfied. Whilst I accept the flight deck of HMAS Sydney whilst in Vung Tau Harbour was very busy and helicopters were coming and going frequently, I do not accept the helicopter incident occurred as Mr Strong claims. It is the veteran’s perception of the event and not the event itself that must be assessed.The perception will be reasonable if, judged objectively, from the point of view of a reasonable person in the position of, and with the knowledge of, the veteran, it was capable of and did convey [a threat]. The two sensitising incidents Mr Strong relies upon did not occur within the period of operational service. They are relevant in so far as considering whether a reasonable person, who had experienced the sensitising incidents, would have perceived the helicopter incident as threatening. There is no evidence to suggest that the helicopter incident posed any actual threat or threatened death or serious injury to Mr Strong. There is no suggestion any of the other sailors on the flight deck perceived any danger or imminent threat.