Ronald Strong and Repatriation Commission
[2014] AATA 826
•4 November 2014
[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
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”).
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.
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.
On behalf of the respondent, Mr Williams contends the applicant’s psychiatric conditions are related to events that occurred following his discharge from the RAN. Mr Strong joined Queensland Police Service (“QPS”) in 1969 and served in that organisation for two periods, totally more than 25 years. In 1975, and again in 2001, Mr Strong required time off work as a result of illness, diagnosed as posttraumatic stress disorder (“PTSD”) secondary to events that occurred during his QPS. Mr Strong received fortnightly payments of Worker’s Compensation during his time off, and a lump sum settlement, in relation to that illness.
The question for me is, with reference to the relevant Statement of Principles (“SoPs”), if Mr Strong suffers from any psychiatric illnesses or injuries that are causally related his eligible service.
LEGISLATION
Under s 9(1)(b) of the Act, an injury or disease will be war caused if it arose out of, or was attributable to, any eligible war service rendered by the applicant.
For issues of causation and operational service, the standard of proof is set out in
ss 120(1) and 120(3) of the Act. The Tribunal shall determine that the injury or disease is war caused, unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. Section 120A of the Act requires that consideration be given to any relevant SOP that has been published by the
Repatriation Medical Authority (“RMA”). The relevant SoPs in this case are:
·
Posttraumatic Stress Disorder, SoP No. 5 of 2008 (revoked) as amended by
No. 19 of 2014 (revoked); and SoP No. 82 of 2014 (date of effect
22 September 2014)
·Alcohol Use Disorder, SoP No. 1 of 2009 as amended by No. 29 of 2014
·Depressive Disorder, SoP No. 27 of 2008 as amended by No. 40 of 2010
·
Anxiety Disorder, SoP No. 101 of 2007, as amended by No. 42 of 2010 and
No. 15 of 201; and
·Adjustment Disorder, SoP No. 37 of 2008.
After Mr Strong made his claim, the RMA revoked the SoP for Posttraumatic Stress Disorder No. 5 of 2008, and the SoP amendment No. 19 of 2014, and replaced it with SoP No. 82 of 2014, with the date of effect being 22 September 2014. In circumstances such as these, the applicant is to be given the benefit of the most favourable SoP. Both parties agree that there is no advantage to the applicant provided by the new SoPs. I have carefully considered the more recent SoP and agree. The new SoP has been prepared using the fifth[2] and most recent edition of the Diagnostic Statistic Manual (“DSM”). Doctors who provided opinions as to Mr Strong’s conditions have referenced the fourth[3] edition of the DSM, which is the same edition referred to by the RMA in the earlier SoPs, thus making those earlier SoPs the most appropriate.
[2] American Psychiatric Association. (2013). Diagnostic and Statistical Manual of Mental Disorders (5th ed.). Washington, DC: Author.
[3] American Psychiatric Association. (1994). Diagnostic and Statistical Manual of Mental Disorders (4th ed.). Washington, DC: Author.
The relevant factor and definition for PTSD, in SoP No. 5 of 2008, as amended by
No. 19 of 2014 is as follows:
Posttraumatic Stress Disorder
6. …
(a)experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder
…
“a category 1A stressor” means one or more of the following service traumatic events:
(a) experiencing a life-threatening event
(b) being subject to a serious physical attack or assault including rape and sexual molestation, or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured.
The relevant factors and definitions for Alcohol Use Disorder, in SoP No. 1 of 2009, as amended by No. 29 of 2014 is as follows:
Alcohol Use Disorder
6. …
(a) having a clinically significant psychiatric condition at the time of the clinical onset of alcohol use disorder, or
(b)experiencing a category 1A stressor within the five years before the clinical onset of alcohol dependence of alcohol abuse
…
“a category 1A stressor” means one or more of the following severe traumatic events:
(a) experiencing a life threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured
…
“a clinically significant psychiatric condition” means a specified disorder of mental health, which is of sufficient severity to warrant ongoing management, which may involve regular visits (for example, at least monthly) to a psychiatrist, counsellor or general practitioner.
The relevant factors and definition for Depressive Disorder, in SoP No. 27 of 2008 as amended by No. 40 of 2010 is as follows:
Depressive Disorder
6. …
(a) for major depressive episode, recurrent major depressive disorder, dysthymic disorder and depressive disorder not otherwise specified only…
(ii) experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder
…
"a category 1A stressor" means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured.
The relevant factors and definition for Anxiety Disorder, in SoP No. 101 of 2007, as amended by SoPs No. 42 of 2010 and No. 15 of 2011 is as follows:
Anxiety Disorder
6.…
(a)for generalised anxiety disorder of anxiety disorder not otherwise specified only…
(ii)experiencing a category 1A stressor within the five years before the clinical onset of anxiety disorder
…
"a category 1A stressor" means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured.
The relevant factors and definition for Adjustment Disorder, in SoP No. 37 of 2008 is as follows:
Adjustment Disorder
6.The factor that must as a minimum exists before it can be said that a reasonable hypothesis has been raised connecting adjustment disorder… with circumstances of a person’s relevant service is:
(a)experiencing a category 1A stressor within the three months before the clinical onset of adjustment disorder
…
"a category 1A stressor" means one or more of the following severe
traumatic events:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured.
In Repatriation Commission v Deledio,[4] the Full Court of the Federal Court set out a four step process of analysis to determine whether a reasonable hypothesis connecting operational service and a claimed condition exists. However, prior to commencing that process, the Tribunal must make a finding on the balance of probabilities, whether it is satisfied that the symptoms constitute an injury or disease.[5]
[4] (1998) 83 FCR 82.
[5] Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622 at [55].
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.
In his oral evidence the applicant’s description of the gun misfire incident was somewhat different. Referring to the order given to him by his superior officer to stop, and allow the cartridge batch number to be recorded, he said, “That was one order that I disobeyed”.
The second incident Mr Strong claims sensitised him, involved the injury of another sailor during a training exercise, which I will refer to as the ‘injured sailor incident’.
Injured sailor incident
This incident occurred during training at the West Heads Gunnery Range. The applicant described the incident as follows. The sailor performing the duty of Cordite loader had his right arm mangled when he attempted to stabilise a wobbling shell with his hand. Not seeing what was happening, the shell loader pushed the load plunger, and the right arm of the Cordite loader was mangled in the process.
We assisted him until the arrival of Medics. The [sailor] was in shock there was blood everywhere and the initial treatment was not very organised. This image has remained with me since that time. It forms part of my night maires [sic].
Prior to ‘helicopter incident’
The applicant claims the two incidents described above made it very difficult for him to undergo his gunnery training for his QMG qualification (Quarter Master Gunner). He would be worried during live firing and find it difficult to sleep at night with the worry of having to go to the Gunnery Range.
After being transferred to the HMAS Harman in November 1966, he did not see his wife and young son “for several months, and then on discharge”.
When the HMAS Sydney sailed for Vietnam in April 1967 he and the other sailors were aware that threats had been made against the ship and escort ships were to be present during the voyage. The sailors were required to work their normal shifts plus night time watches; night time duty was an additional six hours per night on top of his regular hours. On route to Vietnam the ship carried out several exercises, including emergency leaving ship stations, defence stations, officer of watch manoeuvres, man overboard drill, gunnery functions trials and small arm firing. The applicant stated that, “All indicated we were in danger during the trips”. Through the grapevine the sailors had been made aware that vessels had been sunk in and around Vung Tau Harbour by enemy divers and by explosives floated on the tide, hidden amongst the debris floating in the harbour. He was forewarned that there would be armed boats in the water around the ship dropping charges and divers would be making regular checks of the hull. There was also a prevailing fear of danger from ‘the communists’: “The radio broadcasts by the communist radio were threatening the welfare of the sailors on the HMAS Sydney”.[8]
[8] Exhibit 1, folio 33A.
Approximately two days before arriving in Vietnam, the ship was closed up into
Defence Stations and remained that way until the completion of the dismemberment and embankment of troops and equipment.
As soon as the ship arrived in Vung Tau Harbour, armed security boats were in the water dropping charges into the water around the ship, the vibrations from which were felt through the ship. There were numerous aircraft flying about the harbour. Other ships were anchored in the harbour and there were other American patrol boats moving about the harbour. Aircraft activity over the land could be seen.
On our arrival in the Bay I observed a scene of chaos and from what I can recall there were boats travelling over the bay American fast patrol boats and shark mouths painted on the bow, barges travelling everywhere and aircraft and helicopters overhead. There appeared no order for an area that was a safety danger for our ship and crew.[9]
[9] Exhibit 1, folio 33A.
Helicopter incident
The incident was described by the applicant as follows. It occurred on his first trip to Vietnam, a short time after the sailors started to unload. Chinook helicopters were on the flight deck, with their motors and blades running, loading soldiers. The applicant was standing on the flight deck less than 20-30 meters from the loading when he saw a small two person helicopter coming in towards the area. It came from nowhere, he did not see any markings on the helicopter and he did not know if it was friendly or foe. He was “terrified beyond belief”, and remained in the toilet for hours “shaking and crying”.
In his statement received by the Respondent in 2013,
I could not see that there was enough room for the small chopper to land and a flight deck officer appeared to be waiving it off. The small helicopter continued on a path toward the congested part of the deck, towards the two Chinooks and the soldiers loading. I believed that it was going to crash into the Chinooks, and that the soldiers near the Chinooks, other naval personnel and I would be killed or seriously injured from the explosion of the crash... I froze thinking I was dead… the fear took over and I ran for my life jumping off the flight deck onto a sponson and off onto the [toilets] where I stayed in a cubical by myself for hours in a cold sweat, numb and powerless still waiting for the worst to happen. I was just waiting to die.
In his oral evidence the applicant said that prior to 2006 he had no memory of the helicopter incident. He said he was watching television when he saw footage of a helicopter crashing of the side of an aircraft carrier in Timor. (The VRB noted that an Army helicopter crashed off the coast of Fiji whilst trying to land on HMAS Kanimbla on 30 November 2006). He said that prior to 2006, he only remembered the chaos and the fact that he had been a coward, that he had hid in the toilet for three hours, and that he was terrified of going on the flight deck during the next two tours of Vietnam.
Under cross-examination Mr Strong said at the time of the helicopter incident, no ship alarm sounded, and there was no firing by the patrol boats or other helicopters. He said that he did not care about anyone else at the time, “all I did was worry about myself”. He said the biggest thing that upset him was the chaos.
Following the helicopter incident
He did not speak to anyone about the incident for fear of being classed as a coward.
(The VRB recorded Mr Strong as saying after the incident he asked about the small helicopter and was told that it was someone returning to the ship). He began to drink in an attempt to “take away the fear”:
Although I had started drinking after the incident on the Gunnery Range West Head that night I got as many cans of beer other sailors who did not drink to try and take away the fear I could not shake. I continued this practice from that time on. My drink just continued to increase.
The fear he experienced never left him and each subsequent trip made to Vietnam, he became worse, “My anxiety and depression would overtake my life”. In September 1967 he was consuming two to three bottles of scotch per week, but he would still drink anything that was available, such as beer, rum, vodka, port or wine.
I was further traumatised reading a story in the Courier Mail which outlined the expectations of sailors who served on the HMAS Sydney and visited Vung Tau Bay where the Sydney distilled their water could expect to contract cancer because of the Agent Orange in the Bay water. This caused me to further slip into depression and thoughts of suicide.
Discharge from RAN and career in the QPS
He did not want to be sent on a fourth trip to Vietnam. He was so scared of the thought of returning to Vietnam, he asked his then wife to write a letter so he could discharge on compassionate grounds. He told his wife he needed to get out of the RAN.
After entry into the QPS, the applicant stated “I did not tell anyone about my incident which caused my unbearable fear I had experienced in the navy or the mental difficulties I was experiencing.”
At the time he was interviewed for the job in the QPS, he was having nightmares and drinking heavily to drown out the feeling that he was a coward. He was able to cope with the demands of his job because his brother-in-law helped him through. The fact that he was posted to Woolloongabba station where drinking on duty was the norm, meant his excessive drinking was tolerated and not seen as out of the ordinary.
The long hours of work in the police service did not bother him because, due to the ongoing problems he continued to experience as a result of his RAN service, he was unable to sleep and was drinking heavily. He found it difficult to sleep because of the nightmares of the incidents in the navy. The lack of ability to sleep, and the drinking kept him going. He put himself in places of danger during his police service, to prove to himself he was not the coward he felt he was.
His first wife left him because she could no longer live with him due to his anxiety depression, anger, mood swings, and withdrawals, drinking and strictness he placed on her and the children. In 1975, he suffered a ‘breakdown’. His first marriage broke down, he was drinking heavily, stressed, tired, angry and moody. He left in 1975 and became a single parent to his son. His two daughters left with his wife.
He was able to re-enter the QPS in 1980 with the help of a sympathetic general practitioner (“GP”) who did not inform the QPS about his medication (I presume this medication was for treatment of psychiatric conditions). His nightmares about Vietnam continued, and his second wife left him for reasons similar to the first wife.
In 2001 he had another breakdown. He was off work for a lengthy period of time, and treated by psychiatrist Dr Alston Unwin. Dr Unwin diagnosed him with PTSD. He worked with Dr Unwin on many occasions during his time in the QPS, in his role as a hostage negotiator. On many of those occasions, Dr Unwin had pulled him aside and advised him he was exhibiting signs of PTSD. Mr Strong regards Dr Unwin as a friend.
In his oral evidence Mr Strong said that the cause of his breakdowns in the QPS were the memories of the chaotic situation in Vung Tau Harbour. He said in was not able to do his duties (in the QPS) anymore. He was driving near Georgetown one day, and he had to pull over – he did not know where he was. He commenced sick leave at that point. When asked about events he experienced during his time with the QPS that may have been possible stressors, he did not consider the events stressors, stating that after each event he was “on a high”.
Asked why he made a claim against the QPS for Worker’s Compensation lump sum for PTSD (which he at the time said was a result of incidents in the QPS when he actually believed he suffered the condition because of his service in the RAN) Mr Strong said he had a mate who had become a barrister, and it was a “contest with the police force”, about the way he was treated and the way they tried to get rid of him.
MEDICAL EVIDENCE/HISTORY
Naval service
On 28 April 1966 whilst serving in HMAS Parramatta Mr Strong presented to the medical centre complaining of symptoms he said were because he was worrying about his wife. A diagnosis of anxiety and depression was made, and on 2 May 1966 he was admitted to Flinders Navy Hospital with acute depression and fits of crying. The record states he had a ‘well developed welfare problem’ and that he kept repeating comments such as ‘I miss my wife’ and ‘I can’t work’. Consultant Psychiatrist Dr Reynolds’ impression at the time was that Mr Strong was a childish dependent individual.
Dr Reynolds opined that apart from an inadequate personality, Mr Strong did not present with a psychiatric problem. Dr Bartholomew, a naval doctor, agreed with the diagnosis of inadequate dependent personality, and opined the applicant was “immature and dependent and quite unsuitable for sea service at the present time”. The veteran was medically downgraded for six months, and was precluded from sea service during that time. On 10 May 1966 the veteran’s psychological records indicate: “the Senior Chaplin reckons [he is] homesick (!!) [sic] and is angling for a compassionate discharge. Describes him as miserable, inadequate [and] bloody minded”.
On 7 October 1966 he was reassessed as “well and happy”, and the diagnosis was revised to “transient situational state of adolescence”. During his hospitalisation for psychiatric illness in May 1966, he made no mention of the gun misfire incident, and there is no indication in the military records that he made reference to it or the injured sailor incident.
Police service
Mr Strong joined the QPS in 1968 and was medically discharged in 1975. He told the VRB that he was harassed into leaving the QPS at the time, because he was on
Worker’s Compensation for PTSD. Between 1975 and 1980 he was in receipt of a pension and was looking after his children after his marriage had broken down. There are no details about the 1975 WorkCover Queensland (“WorkCover”) claim before the Tribunal.
Mr Strong re-joined the QPS in 1980 and continued full time duties until 2001 when he had another ‘break down’. He commenced treatment with psychiatrist Dr Unwin, who diagnosed PTSD secondary to events experienced during his service in the QPS.
The WorkCover file relating to Mr Strong’s 2001 claim is in evidence.[10] Information in that file indicates that Mr Strong presented to GP Dr Murray Towne on
22 December 2001 with an emotional crisis. Dr Towne provided the following account in his report:
During this conversation, [Mr Strong] kept referring to negative events that had occurred to him during his time in the police service. He described issues with negotiating crisis, poor management, unfair and unsafe practices and he had a lot of anger regarding the above issues. He felt that he was in despair. He felt that he was unable to return to work.[11]
[10] Exhibit 3.
[11] Exhibit 3, folio 20.
Dr Unwin, Mr Strong’s treating psychiatrist since 2001, provided many detailed reports to WorkCover. In many of those reports he stated the applicant was medically retired on the ground of PTSD. In his report dated 28 March 2002, Dr Unwin listed in great detail the symptoms Mr Strong experienced related to the diagnostic criteria for PTSD. The symptoms referred to by Dr Unwin relate exclusively to events experienced during
Mr Strong’s service with the QPS. He referred to many events that Mr Strong said troubled him, including the death of four tourists, a man who lived close to him, and an occasion when an armed man was shot dead by fellow officer. Dr Unwin wrote in his report:
He has over the years been involved in many incidents of a traumatic and catastrophic nature. When he completed a list which I requested of these, I was amazed at the number and magnitude of his trauma experience.[12]
[12] Exhibit 3, folio 82.
Mr Strong prepared a statement dated 31 January 2002, in which he said that he had attended a murder suicide event on 5 April 1992 and a Siege at Brisbane Airport on
25 August 2000. He stated that since the airport siege, his ability to sleep had reduced, and he wakes up due to this incident and others on his mind and cannot get back to sleep.
In her report dated 6 February 2002, psychologist Debra Kapelis provided the following information:
Mr Strong reported that his psychological condition had developed from events over
34 years of work in the Qld. Police Service. Mr Strong provided written descriptions of six of the incidents that he had been involved in and said that there were many more… The events named as leading to Mr Strong’s condition tended to be crisis or traumatic situations such as hostage setting or one involving dead bodies such as car accidents. A second common factor was Mr Strong’s perception that the Police Service had been incompetent in some way or had handled a situation not as well as they could have.[13]
[13] Exhibit 3, folio 73.
Ms Kapelis opined that Mr Strong had developed PTSD over the 34 years that he has spent in the police service; an incident in March 1988 may have been the trigger.
As a result of PTSD related to his time with the QPS, Mr Strong has some time off work in 2001-2002.
In 2002, Dr Una Stephenson opined that Mr Strong was suffering from
Depressive Disorder with Generalised Anxiety on a background of PTSD. She said he describes hypervigilance: an excessive preoccupation with and looking out for danger. He describes flashbacks to his worst QPS experiences and difficulty sleeping, finding himself preoccupied with what he has seen and experienced; and that in the course of his work at QPS, Mr Strong had experienced a multitude of stressors, which justify a full diagnosis of PTSD. Dr Stephenson opined his depression back in 1975 seems to have arisen from a combination of family circumstances and the stress of work.
Mr Strong returned to work in February 2002, and worked intermittently until he ceased work permanently on 2 December 2002. His ceasing work was following the advice of a psychiatrist.[14] In her report dated 30 October 2002, Dr Stephenson recommended
Mr Strong utilise the remainder of his sick leave until his retirement goes through.
[14] Exhibit 3, folio 159.
In his report dated 30 July 2003, Dr Unwin confirmed the diagnosis of PTSD related to events experienced during his QPS. Dr Unwin stated Mr Strong’s PTSD will be present for the rest of his life. He opined that Mr Strong was incapable of performing any further police work or any work that resembles such activity.
Mr Strong applied for a lump sum payment from WorkCover through his legal representatives. The amount applied for was nearly half a million dollars. WorkCover rejected the claim and made a counterclaim, which Mr Strong did not accept.
Psychiatrist Dr Reddan was asked to review Mr Strong. She prepared a lengthy report dated 19 February 2004. In that report she noted Mr Strong left the Navy because his wife was having trouble looking after the children. She made no mention of any stressors experienced by Mr Strong during his naval service.
Dr Reddan opined that Mr Strong was suffering from Major Depressive Episode. She said that although the symptoms of PTSD are similar, Mr Strong did not exhibit hyper arousal and avoidance phenomena, core features of the later condition. Dr Reddan does not refer to Mr Strong mentioning any problems associated with his RAN service. She opined his underlying personality together with events he experienced during his QPS were responsible for his depressive illness. Dr Reddan noted that Mr Strong returned to work “to finish [his] time” as he was turning 55 years of age. She observed he returned to work approximately on 1 March 2002, his retirement was finalised in 2003.
The matter went before the Worker’s Compensation Tribunal and it was determined that Mr Strong has an incapacity for work resulting from chronic PTSD. The Tribunal found the impairment to be partial and permanent, and found the degree of impairment to be 12.5%. An out-of-court settlement with WorkCover was made. The evidence before me is that the agreement between Mr Strong and WorkCover was made on 6 May 2004.
Claim for PTSD lodge by applicant in 2007
Mr Strong lodged a claim for PTSD in February 2007. In that claim his description of the events that he thought caused his PTSD were vague. He stated the cause of his PTSD was “guilty feelings, for the soldiers we transported to and from and feelings of helplessness unable to control events while in Vietnam, in fear of death of helicopters”.
Mr Strong said his recollection of events in Vietnam had been supressed until 2006. In an email dated 28 July 2008, he wrote:
We immediately started to unload and American Helicopters were flying around the Bay and landing on the Flight deck of the Sydney. Our flight deck officer was waving off American helicopters that took no notice and landed on the flight deck on no semblance of order, it was chaos on the flight deck everything was being done in a rush without regard to safety. The treats of the communists and the fear of a helicopter crashing onto the deck where we were working and seriously injuring or killing us put the fear of God into me… what I saw as [sic] Chaos and nobody considered debriefing us.[15]
[15] Exhibit 1, 33A – 33C.
Mr Strong made no mention of hiding in the toilet for three hours. He made no mention of the helicopter incident he now relies upon. Nor did he mention the two events he now claims sensitised him.
Dr Unwin provided a very brief report dated 23 May 2008 in which he provided a diagnosis of PTSD, and stated that Mr Strong satisfies Criteria A, B, C, D and E.
Dr Unwin said that Mr Strong’s suffered from PTSD which commenced during his service career and intensified during his police service. Dr Unwin did not provide any details of any events Mr Strong experienced during his service in the RAN. In an earlier one-page report dated 31 January 2007,[16] Dr Unwin stated that the applicant’s PTSD was reactivated when recently a helicopter crashed over the side of a ship.
[16] Exhibit 1, folio 8.
Mr Strong’s claim for PTSD was rejected on the basis that no particular stressor was identified in either of the reports by his treating psychiatrist Dr Unwin.
Claim for anxiety disorder in 2008
Mr Strong lodged another claim for a psychiatric condition on 24 September 2008. The claim was for anxiety disorder, secondary to chronic back pain, which he claimed to have been suffering for “the last 20-30 years”. GP Dr Fulton, who had provided a diagnosis of PTSD in the claim form lodged in February 2007, completed the medical component of the claim and provided a diagnosis of generalised anxiety disorder (“GAD”) and PTSD.
At the time Mr Strong made this claim, he had changed psychiatrists from Dr Unwin to Dr Radovic. A note in the respondent’s files indicates Mr Strong said he changed psychiatrists because Dr Unwin was too old, had done a bad report, and the applicant had no confidence in him. In his oral evidence to this Tribunal, he said he changed because he wanted a psychiatrist closer to his residence at the Sunshine coast (Dr Unwin practiced in Brisbane).
Dr Radovic provided a report dated 13 November 2008, and a subsequent report dated
20 January 2009. Dr Radovic recorded a detailed history, and he referred to Mr Strong having previously believed all of his mental health problems were as a result of experiencing traumatic and stressful events and situations during his police service. It was only when he saw a helicopter crash on the news about three years prior to
Dr Radovic’s 2008 report that details and recollections of experiences during his trips to Vietnam had come back to him. From that time, Mr Strong reported a sudden increase in anxiety, depression, anger, insomnia, flask backs, nightmares and excessive drinking.
Dr Radovic opined (referencing DSM, fourth edition[17]) Mr Strong suffered from GAD and PTSD. The history provided by veteran was recorded in Dr Radovic’s report as follows.
[17] American Psychiatric Association. (2000). Diagnostic and Statistical Manual of Mental Disorders (4th ed., text rev.). Washington, DC: Author.
Several helicopters for anti-submarine duties were taken on board the HMAS Sydney. The helicopters were supposed to form part of the ships defence. Their presence added to Mr Strong’s concern about the ships safety. The communist radio was broadcasting threats to HMAS Sydney. On arrival to Vung Tau Harbour, Mr Strong observed lights everywhere and scenes of chaos. Dr Radovic stated in his 2008 report:
Locals in boats travelling over the bay, American fast patrol boats, barges travelling everywhere, and aircraft and helicopter gunships overhead and the anchorage site for HMAS Sydney was close enough to landfall, occupied from time to time by Vietcong, to be hit by their rockets.[18]
[18] Exhibit 1, folio 71.
Vietcong divers could have been hiding in the debris that was floating by on a fast current, allowing explosives and mines to be planted on HMAS Sydney. Dr Radovic’s 2008 report reads:
Mr Strong perceived the area as a dangerous zone for HMAS Sydney and its crew... boats which were put into water to patrol around the ship, dropping scar charges and towing anti-diver devices. The divers were constantly checking the hull of the ship for divers and mines. Large helicopters were coming and going form the flight deck, with troop arriving and leaving Vung Tau.[19]
[19] Exhibit 1, folio 71.
Mr Strong observed a lack of control as would be expected on the flight deck. There was an occasion when he was on the flight deck near a flight deck officer. The officer was waving off American helicopters that took no notice and landed on the flight deck in a dangerous location in an apparently dangerous and life threatening manner.
Dr Radovic stated the threat of communists, and the fear of helicopter crashing onto the deck where they were working and potentially seriously injuring or killing someone, along with the sound of scare charges caused Mr Strong to experience intense fear of having his life threatened, and intense feelings of insecurity, horror and terror.
Dr Radovic was clearly of the opinion that it was a result of these circumstances, which he opined involved threatened death or serious injury and a threat to the physical integrity of self and others, that caused the applicant to develop GAD. Dr Radovic opined the clinical onset of GAD was 1967. There was no mention of Mr Strong hiding in the toilet for three hours.
Decision of respondent 30 January 2009
The respondent accepted GAD as service caused, secondary to pain Mr Strong experienced due to service caused medical conditions. In a decision dated
30 January 2009, the respondent increased Mr Strong’s disability pension to 100% of the General Rate with effect from 24 June 2008. The Commission relied upon Dr Radovic’s report, in which he stated the applicant’s psychiatric impairment was contributed to GAD by 60% and PTSD by 40%. The Commission later revised the assessment on the basis of a report of Dr Anderson, who apportioned the contribution of anxiety disorder to 20% of his impairment. Mr Strong lodged an application for review of that decision. In his application he stated:
After further consultation with treating psychiatrist, medical evidence will be provided showing that his emotional behaviour is entirely due to GAD and he does not suffer from posttraumatic stress disorder.
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.
Dr Milad concluded Mr Strong also suffers from depression, and that a number of factors have contributed to that condition over the years, including prolonged exposure to stressful jobs in the QPS, marital breakdowns, and medical conditions including diabetes, heart conditions, chronic obstructive sleep apnoea, and excessive alcohol abuse.
Dr Milad opined that Mr Strong most likely suffered from Adjustment Disorder during the mid to late 1970’s as a result of his marriage breakdown and which resulted in his single parent status.
Dr Milad opined there was no clear confirmation of Alcohol Disorder prior to the reports in 2008. Dr Milad said the pathology tests performed on Mr Strong were inconsistent with the long history of alcohol use he has claimed in his more recent statements.
Dr Milad admitted it was possible to have normal pathological markers for alcohol use and still have a diagnosis of alcohol abuse or alcohol dependence. Not one of the doctors who have examined Mr Strong prior to 2008 reported any evidence of alcohol abuse or dependence. Dr Milad regarded it likely that if any psychiatric condition relating to alcohol misuse was found, the clinical onset was not before 2008.
Dr Milad said it was hard to reconcile Dr Unwin’s opinion he expressed in the report to the Repatriation Commission with his previous reports prepared for the purpose of the Worker’s Compensation claims related to the applicant’s time with the QPS. Asked why the Tribunal should not prefer the opinion of Dr Anderson, Dr Milad suggested that
Dr Anderson being Mr Strong’s treating psychiatrist is not in a position to be objective. As it is hard to be impartial in the role of a treating psychiatrist, he may be merely trying to please his patient.
Dr Milad opined that Mr Strong retired early because there was a change in his circumstances that lead to an exacerbation of his symptoms of QPS related conditions of PTSD and Major Depressive Disorder.
Dr Milad took exception to the applicant’s claim that the clinical examination took only 40 minutes. (Mr Strong complained Dr Milad saw him for only 40 minutes, was disinterested, and had cut him off when he tried to give him background.) Dr Milad was adamant that he spends a minimum of one and a half hours with every patient that he assesses, and very often he spends more than two hours. He said Mr Strong was no exception. Dr Milad said he had never interviewed anyone for 40 minutes, as it was not sufficient time to make a conclusion about anyone’s life.
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.
In his earlier statements, Mr Strong claimed the two-man helicopter was American. In his most recent statement, he says he did not know if it was friend or foe, the implication being an enemy helicopter would be a threat to all on the HMAS Sydney. Mr Strong describes the scene as one with multiple armed boats, and the ship was in a state of alert. It is almost impossible to believe that an enemy helicopter could have got anywhere near the HMAS Sydney or any other allied vessel without someone other than Mr Strong and the sailor with paddles noticing. I consider a reasonable man in Mr Strong’s shoes would have realised the helicopter was friendly. Mr Strong was 20 years old at the time. He had two years of experience in the Navy and had undergone the training exercises on route to Vietnam. A reasonable person in Mr Strong’s position would have realised an enemy helicopter would have been recognised and forcefully deterred before it got anywhere near the flight deck of HMAS Sydney. No reasonable person would be convinced an enemy helicopter was about to land on the HMAS Sydney and the only deterrent was a sailor waving paddles.
If Mr Strong believed it was an American helicopter, as he previously claimed, any apprehension or concern that the helicopter may hit the parked Chinooks would have been short lived. The helicopter would have landed within a matter of seconds. The account of the incident given to Dr Radovic suggests Mr Strong remained on the deck when the helicopter landed, and did not run and hide for three hours as he now claims. Mr Strong describes the flight deck as being very busy with many sailors present. A reasonable person may have initially been anxious as a result of the intense activity, though would have evaluated the situation, with reference to the reaction of the other sailors on deck. Any anxiety about a potential accident would have been short lived; the helicopter would have landed within a matter of seconds, relieving any observer of any concern about death or injury. I do not accept that a sailor with the experience of
Mr Strong would have interpreted the waving of paddles to be a sign that the helicopter should not land, and that there was imminent danger. Mr Strong was experienced enough to know that paddles are waved to assist helicopters in positioning landing as a matter of course.
Mr Campbell provided a statement dated 1 March 2014. He did not give evidence at the hearing. Mr Campbell states that he was posted to Vietnam in early September 1966 as the Rotary Section Commander of 161 (Indep) Reece Flight. Mr Campbell states that he was piloting small helicopters flying from Nui Dat to HMAS Sydney during the time of Mr Strong’s first tour of Vietnam. Mr Campbell explained it was normal for small helicopters to land closest to obstacles and ensure room was left for other aircraft. He stated it was normal for the helicopters to land ‘fast and hot’. He opined that service personnel who were accustomed to observing Iroquois and Chinook helicopters landing may have found this alarming when confronted for the first time in a confined space.
Although the landing of helicopters on the deck of HMAS Sydney may have caused alarm, I do not accept that a reasonable person would have responded to the landing of any helicopter in the manner Mr Strong now claims he did. He claims he remained in the toilet for three hours shaking and crying and thinking he was going to die. Any threat of injury or death as a result of a helicopter collision would have resolved soon after the crash, and not continued for three hours after the collision.
Although he said that he was in fear because he imagined that might have been injured or killed, his written and oral evidence indicates that his fear was related to the concerns that he would be labelled as a coward, and the stigma that might occur if he mentioned his feelings. Any stigma he believed would flow from divulging his feelings suggests that he was ashamed that the incident had caused him to hide in the toilet after observing the helicopter.
In discussing his feelings there is no reference to him hiding in the toilet for three hours, or any suggestion of significant negative feelings arising from the incident, before his first application for PTSD was rejected. It is apparent that he returned to normal duties afterwards. I find that Mr Strong may have felt concern about the helicopters landing on the flight deck whilst in Vietnam waters, but his response did not involve feelings of intense fear, helplessness, or horror.
Mr Strong indicated to Dr Radovic and in some of his written statements that he experienced some general anxiety as a result of threats from communists, and also the large amount of activity occurring on the flight deck and surrounding waters in Vietnam. These general concerns do not constitute an event as defined in the SoP. I find that during his operational service the applicant did not experience, witness or was confronted with an event that involved actual or threatened death or serious injury, or threat to the physical integrity of himself.
Even if I had have been reasonably satisfied that Mr Strong experienced, witnessed or was confronted with a severe stressor of the type required by the SoP, his claim for PTSD would not succeed. This is because I am satisfied beyond reasonable doubt that
Mr Strong suffers from PTSD as a result of his service in the QPS, and that he has never suffered from any psychiatric symptoms as a result of his service in the RAN.
Mr Strong’s Worker’s Compensation claims were finalised in approximately 2004, and in 2007 lodged a claim with the respondent. I am mindful that just as it is possible to break the same leg in two different locations from two different injuries, so too is it possible to develop two PTSD conditions from two or more different traumatic events. It is also possible for a person suffering from PTSD to have the condition aggravated by a subsequent traumatic event. I am reasonably satisfied that neither of these possibilities has occurred in Mr Strong’s case. My reasons are as follows.
Mr Strong successfully applied for compensation for PTSD said to be caused by incidents that occurred during his work in the QPS. The evidence of the health professionals who assessed Mr Strong in relation to his QPS Worker’s Compensation claim has already been summarised.
The history he has provided both in his written statements and to doctors in relation to his claim with the Repatriation Commission is diabolically different to that which he persistently provided to previous doctors who assessed him when he was claiming compensation from the QPS. In dealing with the Repatriation Commission he has sought to play down the role the events he experienced in the QPS said to have lead to PTSD and claims he was traumatised by incidents that occurred during his RAN service. Repressed memory is not an explanation for the change in the history provided by
Mr Strong, as he now claims to have been suffering from psychiatric symptoms related to incidents that occurred during his RAN service, since the time he was serving.
The doctors who have made a causal link between his RAN service and his psychiatric conditions have done so on the basis of the more recent history provided by Mr Strong. In which he claims he experienced symptoms related to RAN service during his service and had difficulty performing his RAN duties as a result of his symptoms.
Drs Reddan and Stephenson specifically state that Mr Strong claimed he enjoyed his RAN service and that he did not find any particular incidents during his RAN stressful.
Although Dr Unwin has provided two brief reports in which he opines there is a link with Mr Strong’s RAN service and PTSD, yet he has not provided any details of how
Mr Strong meets any of the diagnostic criteria set out in the SoP for the condition.
Dr Unwin’s lengthy association with Mr Strong, who considers him a friend, may explain why he was prepared to provide brief reports to support Mr Strong’s claim with the Repatriation Commission.
As pointed out by Dr Milad, Dr Unwin’s opinion is difficult to reconcile with his earlier, very detailed reports to Worker’s Compensation. Dr Unwin certainly provided no explanation as to why the effects of his service in RAN were not referred to in the reports that he prepared for the purpose of assisting Mr Strong’s claim for
Worker’s Compensation related to his QPS employment. On the basis of Dr Unwin’s reports, I am reasonably satisfied that Mr Strong developed PTSD secondary to events he was exposed to during his QPS. Dr Unwin does not provide sufficient information for me to be reasonably satisfied of a diagnosis of PTSD related to the veteran’s RAN service.
Dr Radovic relates Mr Strong’s PTSD to his police service; however he has opined that Mr Strong was predisposed to PTSD because of his underlying service-caused GAD.
Dr Radovic was not available for cross-examination however it appears he did not have access to Mr Strong’s Worker’s Compensation files. It is reasonable to assume he relied upon the history given to him by Mr Strong when he made his assessment.
As history included in Dr Radovic’s report is very different to that given by the veteran to the doctors he had consulted prior to Dr Radovic, it is impossible to place any weight on his opinions. Mr Strong advised Dr Radovic that he had symptoms of anxiety, worries, short temper, short fuse, irritability, restlessness, difficulty concentrating, sleep disturbance, depressed mood and alcohol use, commencing during the three trips to Vietnam. Dr Radovic was under the impression that Mr Strong left the Navy as a result of these symptoms, and because he feared another tour of Vietnam. There is a large amount of evidence that indicates Mr Strong was discharged from the RAN on compassionate grounds. He told Dr Reddan as recently as in 2004 he enjoyed his time in the RAN, and that he discharged because his was his wife was not coping with the children. This is consistent with the history recorded by Dr Stephenson. Mr Strong now claims this was not the reason he was discharged. Although Mr Strong now says he convinced his wife to write to the RAN because he was not coping and did not want to return to Vietnam, it is difficult to accept Mr Strong’s most recent account as the truth, in light of the information contained in the reports of Drs Reddan and Stephenson.
There are many discrepancies in the evidence provided by Mr Strong, and as a result I conclude he is not a reliable historian. His story has gradually changed, and in my opinion the changes are explainable by his evolving understanding of the legislative requirements necessary to have his diagnosed conditions accepted as related to his service, with the view to have all of his psychiatric conditions accepted, and qualify for the special rate of pension. Dr Milad also noted that there had been an inconsistent history provided by Mr Strong over the years, which he opined has led to difficulty in establishing a sequence of events in his trajectory of life and psychological problems.
Mr Strong met Dr Unwin through his police work and has spoken to Dr Unwin on many occasions when he has been angry or distressed by work events. These were not formal treatment sessions, according to Mr Strong, but rather informal telephone conversations. Given the lengthy history and close relationship Mr Strong had with Dr Unwin, I find it incredulous that Mr Strong has suffered nightmares, been unable to sleep, and drinking heavily since his time in the RAN, and because of events that occurred in RAN; however there is no mention of any of this in Dr Unwin’s reports. I note Dr Unwin’s report of 2008 was written after Mr Strong claims to have remembered the helicopter incident, yet Dr Unwin makes no reference to the incident. Supressed memory may explain a lack of recall of incidents, but this does not account for the numerous discrepancies in the history given by Mr Strong.
I agree with Dr Milad, that Dr Anderson is not objective in his role as treating psychiatrist. Dr Anderson has not reviewed the Worker’s Compensation file. He is not in a position to assess the credibility of the history provided to him by the applicant, and it is not his role to make such assessment.
Dr Anderson relied on the recent history provided by Mr Strong, in particular, he relied on Mr Strong’s claim that he has been suffering from distressing symptoms related to incidents that occurred during his RAN service, and since that time. Dr Anderson agreed during the hearing that he had based his conclusions on a misunderstanding of the history; he believed Mr Strong had symptoms related to the helicopter incident since about the time the incident had occurred. Mr Strong told me that although he only recalled the helicopter incident in 2006, he had always remembered being fearful on the flight deck, and had always remembered hiding in the toilet. He also always recalled being fearful of returning on a forth tour of Vietnam, and discharging to avoid further stress. This is a very different account to that which he gave to the doctors and health professions when he was claiming compensation for PTSD associated with his QPS.
Mr Strong had given detailed accounts of his symptoms to Drs Reddan, Stephenson and Urwin,[23] and there is no mention of his reporting any symptoms related to his RAD service.
[23] With the exception of his very brief 2008 report already noted.
Mr Hasenkam, a former member of the QPS, provided a statement dated 27 August 2014. He said that when working with Mr Strong in the QPS, he saw him put himself in personal danger when it was not expressly necessary.
Dr Milad said it is most unlikely the applicant had been suffering PTSD prior to his application to the QPS. Dr Milad explained that a person suffering from PTSD would likely not expose himself or herself to the chance of experiencing similar stressors by joining the police force.
Mr Strong has sought to explain his joining the police force. He claims he was trying to prove himself as a result of the overwhelming feeling that he was a coward when he hid in the toilet for three hours. He claims that during his service in the police force, he continually put himself in harm’s way, to prove to himself he was not a coward.
That explanation does not explain why, if he was so keen to try and prove himself, he orchestrated a compassionate discharge from the RAN so as to avoid further service in Vietnam waters. I note Mr Strong did not mention that he placed himself in the path of danger to prove to himself he was not a coward when he was interviewed in relation to his claim for compensation from the QPS.
The Full Court, Federal Court of Australia in Bawden[24] said
One should be slow to attribute to the legislature an intention that incapacity from an alleged illness which the decision maker does not accept occurred at all is nevertheless compensable because it cannot be proven beyond reasonable doubt that it did not occur.
[24] Repatriation Commission v Bawden [2012] FCAFC 176 at [49].
There is no objective evidence that supports Mr Strong’s account of the incidents he relies upon, and I am satisfied beyond reasonable doubt that he did not experience any trauma or stressors during his RAN service, and that he has not been suffering from psychiatric symptoms since his RAN service. Drs Radovic and Anderson were misinformed, and consequently their diagnostic conclusions are unreliable.
Generalised Anxiety Disorder
Dr Radovic and Dr Anderson both opined Mr Strong suffers from GAD as a consequence of his experiences during his military service. Dr Anderson opined anxiety disorder was also secondary to PTSD.
I accept there is a diagnosis of anxiety disorder and there is a hypothesis of a connection of this connection with Mr Strong’s service in the RAN.
Drs Radovic and Anderson have opined the onset of this condition was within the required time frame, however I am satisfied they have relied on information which is inconsistent with that given to the doctors who previously examined Mr Strong.
Dr Radovic, in his report dated 13 November 2008 he quoted Mr Strong as saying:
From that time on [after the three trips to Vietnam] I had heightened anxiety whenever I was not in control of situations both in my personal life and my work. I commenced having nightmares, loss of sleep, bouts of anger, lack of trust in others, particularly people in charge, and from the first trip drastically increased my drinking of alcohol to numb me and try to reduce the feeling of disgrace. I commenced to withdraw from family and friends.[25]
[25] Exhibit 1, folio 72.
Further, in the same report, referred to above, Dr Radovic wrote: “The symptoms of anxiety and depression commenced during these three trips to Vietnam between April and June 1967 and gradually worsened over time”. Dr Radovic opined Mr Strong has presented with symptoms of anxiety disorder continuously since April 1967.
As already stated, the history Dr Radovic relied upon, although consistent with that given by Mr Strong in his written evidence to the Repatriation Commission, is inconsistent with that provided by the applicant to the numerous health professionals when he was claiming Worker’s Compensation during his time with the QPS. For example, Community Psychiatrist, Dr Stephenson in her report dated 8 February 2002 wrote:
He served on ‘HMAS Sydney’ and indeed saw service in waters around Vietnam, but he says he wasn’t exposed to any particular experiences in the Vietnam region, though he did have a couple of unfortunate experiences in the Service; he witnessed serious accident in which a young man lost his arm and lost some mates in a road accident. He liked the Navy and would have stayed happily, but his marriage was getting into trouble and felt his wife couldn’t cope with the children on her own, so he left and followed up an ambition to join the Police Force.[26]
[26] Exhibit 3, folio 79.
Dr Stephenson examined Mr Strong and dated the onset of anxiety disorder as approximately 2002. There is no contemporaneous evidence to suggest Mr Strong was suffering from symptoms of anxiety disorder prior to that time. Even if Mr Strong experienced a category 1A or 1B, or category 2, stressor during his operational service, he did not develop symptoms of general anxiety until well after time requirement of the SoP.
Dr Stephenson identified the cause of Mr Strong’s anxiety as his service in the QPS. For the reasons given above I do not accept the history provided to Dr Radovic and Andersons, and I am satisfied beyond reasonable doubt that their diagnoses have been made on history that is inaccurate. I am therefore satisfied beyond reasonable doubt that the condition is not causally related to his naval service.
It is very surprising to see that in a decision dated 30 January 2009, the respondent accepted a claim for anxiety disorder on the basis of chronic pain. Dr Radovic focused his report on the stressor experienced by the applicant during his service. Dr Anderson also attributed Mr Strong’s GAD to experiences during Mr Strong’s service in the RAN, not to pain.
Dr Radovic made a comment to the effect that the applicant’s back pain causes a significant increase in anxiety. He did not state that chronic pain was a significant cause of his anxiety disorder. Anxiety is a symptom of many illnesses and injuries; GAD is one of many such conditions. Anxiety alone is not the basis for a diagnosis of GAD. The delegate clearly erred in that decision, as Dr Radovic did not suggest chronic pain was causally related to either the development of, or aggravation of, Mr Strong’s GAD. Further, Dr Radovic opined the onset of GAD was 1967. The factor in the SoP requires chronic pain to have been present for at least three months prior to the onset of GAD, as a minimum requirement for the condition to be found to be related to service. From
Mr Strong’s claim, it can be inferred that he did not develop service-related chronic pain until the late 1970’s, at the very earliest.
Depressive Disorder
Psychiatrists Drs Anderson, Reddan and Stephenson provided a diagnosis of Depressive Disorder.
Psychologist Debra Kapelis provided a very detailed history in her report included in the WorkCover file. Relevantly she wrote when discussing previous medical and psychiatric history, Mr Strong reported experiencing depression from 1974 to 1980. This developed after he broke up with his first wife. At the time the QPS also wanted to transfer him to Mount Isa. He retired from the QPS on the grounds of ill health and received a police pension.
Dr Anderson opined the cause of Mr Strong’s depression was the events experienced during his QPS. Dr Reddan opined depression was due to a combination of his personal disposition, plus his service in the QPS.
Dr Milan, who had access to Mr Strong’s Worker’s Compensation file and RAN medical records, opined that Mr Strong’s depression was causally related to a number of factors, including prolonged exposure to stressful jobs in the QPS, marital breakdowns and medical conditions not accepted as defence caused, including diabetes, heart conditions, chronic obstructive sleep apnoea, and excessive alcohol abuse.
Even if Mr Strong has now developed depression and anxiety as a result of his naval service, the onset of his depression was identified by both Drs Reddan and Stephenson to be approximately 2001. The earliest clinical onset of depression was 1974, as identified by Debra Kapelis. She identified the cause of that depression as being marital breakup and Mr Strong’s objection to being transferred. The SoP requires the condition to have a clinical onset within five years of service related stressor. There is no contemporaneous evidence to support the contention that Mr Strong suffered from symptoms of depression associated with his RAN service prior to his consulting Dr Anderson. I am satisfied beyond reasonable doubt that there is no reasonable hypothesis that his depression was services-caused, as Mr Strong did not develop symptoms of service-caused depression within the time frame required by the SoP.
Alcohol problems
Dr Anderson diagnosed Mr Strong as suffering from alcohol dependence and abuse, from the time of his service in the RAN. Dr Milan stated this was unlikely, as none of the psychiatrists who examined Mr Strong in relation to his claims relating to incidents he experienced during his QPS identified alcohol disorders. Dr Milan said that pathology results, though not conclusive, suggest Mr Strong has not been abusing alcohol since his RAN service to the degree he claims.
The first indication that Mr Strong had a history of alcohol abuse and alcohol dependence was when he was reviewed by Dr Anderson, however there is no evidence of any such problems in the numerous psychiatric reports prepared earlier. I am satisfied beyond reasonable doubt that Dr Anderson is incorrect and Mr Strong, though he may have a history of alcohol abuse and alcohol dependence, has not had symptoms of these conditions since his RAN service, or as a result of his RAN service, as he now claims.
Since the association with service relied upon stressors which I am satisfied beyond reasonable doubt never occurred, and relied upon a history of alcohol abuse since RAN service that was absent in all previous psychiatric reports, I am satisfied beyond reasonable doubt that Mr Strong’s alcohol dependence and alcohol abuse are not related to his RAN service.
Adjustment Disorder
Dr Milan provided a diagnosis of adjustment disorder, clinical onset in the 1970’s, which he opined was as a result of Mr Strong’s marriage break down and single parent status. No doctor has suggested an association with this condition and Mr Strong’s RAN service. I find that there is no reasonable hypothesis raised by the evidence which connects Adjustment Disorder and Mr Strong’s RAN service.
DECISION
The decision under review is affirmed.
I certify that the preceding 143 (one hundred and forty - three) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member ..........................[Sgd]..............................................
Associate
Dated 4 November 2014
Date of hearing 4 September 2014 Date final submissions received 9 September 2014 Counsel for the Applicant Ilan Klevanski, Cockburn Legal Solicitors for the Respondent Bruce Williams, Department of Veterans' Affairs
[22] Boarder v Repatriation Commission (No 2) [2010] FCA 1430 at [67].
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