Simpson and Repatriation Commission (Veterans' entitlements)
[2018] AATA 343
•28 February 2018
Simpson and Repatriation Commission (Veterans' entitlements) [2018] AATA 343 (28 February 2018)
Division:VETERANS' APPEALS DIVISION
File Number: 2015/4150
Re:James Simpson
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:28 February 2018
Place:Brisbane
The decision under review is affirmed.
……………[sgd]……………………………………
Senior Member Theodore Tavoularis
CATCHWORDS
VETERANS’ ENTITLEMENTS – where Applicant is in receipt of the pension at 100% of the General Rate – where Applicant seeks to claim new conditions – post-traumatic stress disorder – epilepsy – alcohol abuse – where Applicant seeks the pension at the Special Rate or the Intermediate Rate – where Applicant had previously claimed post-traumatic stress disorder – traumatic event – where Applicant relies on a traumatic event not mentioned before – whether Applicant suffers from post-traumatic stress disorder – whether post-traumatic stress disorder causally linked to Applicant’s service – whether Applicant suffers from epilepsy – whether epilepsy causally linked to Applicant’s service – whether Applicant suffers from alcohol abuse – whether alcohol abuse causally linked to Applicant’s service – “alone” test – whether Applicant prevented from undertaking work due to accepted conditions alone – whether ameliorating provisions apply – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 33
Veterans’ Entitlements Act 1986 (Cth), ss 5D, 23, 24,70, 151CASES
Comcare v Mather and Mitchell
(1995) 56 FCR 456
Comcare v PVYW [2013] HCA 41
Confidential and Commissioner of Taxation [2013] AATA 382
Re Easton and Repatriation Commission (1987) 12 ALD 777
Jones v Dunkel (1959) 101 CLR 298
Kumar and Minister for Immigration and Citizenship[2009] AATA 124
Repatriation Commission v Bawden[2012] FCAFC 176
Re Repatriation Commission and Delkou (No 2) (1986) 9 ALD 358
Re Repatriation Commission and Falkner (1987) 12 ALD 87
Repatriation Commission v Smith (1987) FCR 327
Repatriation Commission v Warren (2007) 95 ALD 606
Re Robertson and Repatriation Commission(1998) 50 ALD 668
Roncevich v Repatriation Commission (2005) 222 CLR 115
Simpson and Repatriation Commission [2003] AATA 316
Smith and Repatriation Commission[2015] AATA 786
SECONDARY MATERIALS
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders: DSM-V (5th ed, American Psychiatric Publishing, 2013)
JD Heydon, Cross on Evidence (9th ed, 2013)
Statement of Principles concerning Alcohol Use Disorder, No 2 of 2009
Statement of Principles concerning Alcohol Use Disorder, No 30 of 2014
Statement of Principles concerning Epilepsy, No 76 of 2013
Statement of Principles concerning Posttraumatic Stress Disorder, No 83 of 2014
REASONS FOR DECISION
Senior Member Theodore Tavoularis
28 February 2018
INTRODUCTION
Mr James Simpson (“the Applicant”) served in the Royal Australian Navy (“RAN”) from 1970-1980. The Repatriation Commission (“the Respondent”) has already accepted liability for some of the injuries he says have arisen out of his service. The Applicant is in receipt of the pension at 100% of the General Rate for these injuries.
Now, the Applicant seeks to claim he suffers from the conditions of “P.T.S.D & alcohol abuse” and epilepsy, which was “caused by excessive alcohol intake due to my PTSD. After trauma knife fight in March 1974”.[1] He further asserts that he is entitled to an increase in his pension rate as “my accepted disabilities have deteriorated”.[2]
[1] See Exhibit 5, T-documents, T 32, pp 201-202.
[2] Ibid, p 203.
I note from the outset that this is not the Applicant’s first time agitating that he suffers from a mental health condition before the Tribunal. In 1997 a claim for, inter alia, generalised anxiety disorder was subject to a consent decision by the Tribunal.[3] The mental health element of the Applicant’s claim was rejected. In 2003, a claim by the Applicant for post-traumatic stress disorder (“PTSD”) was rejected by the Tribunal in a decision after a full hearing.[4]
[3] Ibid, T 12, p 52.
[4] See Simpson and Repatriation Commission [2003] AATA 316.
ISSUES
There are five core issues before the Tribunal:
(a)whether the Applicant suffers from PTSD. If the answer is “no”, then I need proceed no further in relation to this asserted condition;
(b)if the Applicant does suffer from PTSD, the next question is whether the Respondent should be liable to the Applicant for this condition; and
(c)whether the Applicant suffers from alcoholism, and whether the Respondent should be liable to him for that condition;
(d)whether the Applicant suffers from epilepsy, and whether the Respondent should be liable to him for that condition; and
(e)whether the Applicant is entitled to a disability pension above his current rate of 100% of the general rate.
While issues (a) and (b) were the main ones agitated before me at the hearing, it is nevertheless important to address the merits of the other claims referred to in the decision under review. I will address each of these issues in turn.
THE LEGAL FRAMEWORK
While it is agreed that a brief period of the Applicant’s service is “operational service”, none of the events to which he attributed his PTSD or other conditions occurred during that period. Consequently, I will address this matter on the basis of the assertion that the Applicant’s conditions were defence-caused.
Such claims are determined on the basis of s 70 of the Veterans’ Entitlements Act 1986 (Cth) (“the VEA”), which reads:
70 Eligibility for pension under this Part
1Where:
(a)the death of a member of the Forces or member of a Peacekeeping Force was defence‑caused; or
(b)a member of the Forces or member of a Peacekeeping Force is incapacitated from a defence‑caused injury or a defence‑caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)in the case of the death of the member—pension by way of compensation to the dependants of the member; or
(d)in the case of the incapacity of the member—pension by way of compensation to the member;
in accordance with this Act.
2Where:
(a)a member of the Forces or a member of a Peacekeeping Force has died;
(b)the death of the member was not defence‑caused; and
(c)the member was, immediately before the member’s death:
(i) a member to whom subsection 22(4) or section 23, 24 or 25 applied by virtue of section 73; or
(ii) a member to whom section 22 so applied who was in receipt of a pension the rate of which had been increased by reason that the pension was in respect of an incapacity described in item 1, 2, 3, 4, 5, 6, 7 or 8 of the table in section 27;
the Commonwealth is, subject to this Act, liable to pay pensions by way of compensation to the dependants of the member.
…
5For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence‑caused, an injury suffered by such a member shall be taken to be a defence‑caused injury or a disease contracted by such a member shall be taken to be a defence‑caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
(b)subject to subsection (8), the death, injury or disease, as the case may be, resulted from an accident that occurred while the member was travelling, during any defence service or peacekeeping service of the member but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place upon having ceased to perform duty; or
(c)the death is to be deemed by subsection (6) to be defence‑caused, the injury is to be deemed by subsection (7) to be a defence‑caused injury or the disease is to be deemed by subsection (7) to be a defence‑caused disease, as the case may be; or
(d)the injury or disease from which the member died, or is incapacitated:
(i) was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of 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 defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or
(e)the injury or disease from which the member died is an injury or disease that has been determined in accordance with this section other than this paragraph to have been a defence‑caused injury or defence‑caused disease, as the case may be;
Note: The effect of paragraph (e) is that, if the member has died from an injury or disease that has already been determined by the Commission to be defence‑caused, the death is to be taken to have been defence‑caused. Accordingly the Commission is not required to relate the death to defence service or peacekeeping service rendered by the member and sections 120A and 120B do not apply.
but not otherwise.
Note: After the MRCA commencement date, compensation is provided under the MRCA (instead of this Act) for some new defence‑caused injuries, diseases and deaths: see section 70A.
…
7Where, in the opinion of the Commission, the incapacity of a member of the Forces or member of a Peacekeeping Force was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered defence service or peacekeeping service, as the case may be, or but for changes in the member’s environment consequent upon his or her having rendered any such service:
(a)if the incapacity of the member was due to an accident—that incapacity shall be deemed to have arisen out of the injury suffered by the member as a result of the accident and the injury so suffered shall be deemed to be a defence‑caused injury suffered by the member; or
(b)if the incapacity was due to a disease—the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a defence‑caused disease contracted by the member, for the purposes of this Act.
So, relevantly, the Respondent will be liable if I find that:
(a)The Applicant suffers from an injury or disease as defined in the VEA; and
(b)That injury or disease “arose out of, or was attributable to, any defence service… of the member”;[5] or
(c)The injury was caused by an accident which would not have occurred or the disease would not have been contracted, “but for his or her having rendered defence service or peacekeeping service, as the case may be, or but for changes in the member’s environment consequent upon his or her having rendered any such service”.[6]
[5] See VEA, s 70(5)(a).
[6] VEA, s 70(7).
With respect of s 70(5)(a) of the VEA, the High Court has provided guidance:
The use disjunctively in s 70(5) of the expressions “arose out of” and “attributable” manifest a legislative intention to give “defence-caused” a broad meaning, and certainly one not necessarily to be circumscribed by considerations such as whether the relevant act of the appellant was one that he was obliged to do as a soldier. A causal link alone or a causal connexion is capable of satisfying the test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.[7]
[7] Roncevich v Repatriation Commission (2005) 222 CLR 115, [27].
Thus, in order for the Applicant to be successful, I must first find that he suffers from an injury or disease which he claims, and secondly that the said injury or disease was causally connected to his service.
“Injury” and “disease” are defined by s 5D of the VEA:
1In this Act, unless the contrary intention appears:
blinded in an eye has the meaning given by subsection (3).
disease means:
(c)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(d)the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(e)the aggravation of such an ailment, disorder, defect or morbid condition; or
(f)a temporary departure from:
(i) the normal physiological state; or
(ii) the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).
incapacity from a defence‑caused injury or incapacity from a defence‑caused disease has the meaning given by subsection (2).
incapacity from a war‑caused injury or incapacity from a war‑caused disease has the meaning given by subsection (2).
injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a)a disease; or
(b)the aggravation of a physical or mental injury.
War‑caused injury; war‑caused disease; defence‑caused injury; defence‑caused disease
3In this Act, unless the contrary intention appears:
(a)a reference to the incapacity of a veteran from a war‑caused injury or a war‑caused disease; or
(b)a reference to the incapacity of a person who is a member of the Forces, or a member of a Peacekeeping Force (as defined by subsection 68(1)), from a defence‑caused injury or a defence‑caused disease;
is a reference to the effects of that injury or disease and not a reference to the injury or disease itself.
For the Applicant to succeed in his claim, it must be shown that he is suffering from an injury or disease to the Tribunal’s “reasonable satisfaction”.[8] This phrase was discussed in the case of Repatriation Commission v Smith,[9] where Beaumont J said that a decision-maker must ask:
...itself whether on the facts of the case, it was persuaded on the civil standard. There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other (see Re Repatriation Commission and Delkou (No 2) (1986) 9 ALD 358; Re Easton and Repatriation Commission (1987) 12 ALD 777; Re Repatriation Commission and Falkner (1987) 12 ALD 87.[10]
[8] See VEA, s 120(4).
[9] (1987) FCR 327.
[10] Repatriation Commission v Smith (1987) FCR 327, 335.
DOES THE APPLICANT SUFFER FROM PTSD?
I note that it was not always contentious that the Applicant suffered from PTSD. Rather, the Respondent, in its initial statement of facts, issues and contentions (“SFIC”), conceded that the Applicant did suffer from PTSD.[11] The Respondent subsequently retracted that previous concession in its amended SFIC, after a change in representation.[12]
[11] Exhibit 2, p 1.
[12] Exhibit 3, p 8, [46].
As this is now a point of contention, I must address it as the first of the issues before me.
What Is The Medical Evidence?
The Applicant is a 64 year-old ex-serviceman who served in the RAN from 10 April 1970 until his elective discharge on 14 April 1980. He saw operational service from 21-26 November 1972.
In his claim for “Disability Pension and Medical Treatment”, submitted on 26 May 1994,[13] the Applicant asserted a primary diagnosis of “post-traumatic stress syndrome” via the report of his then-general practitioner, Dr Denis Bergin.[14] The claim included descriptive elements of the primary PTSD condition such as “insomnia, alcohol dependency, depression, irritability, anxiety”.[15]
[13] Exhibit 5, T-Documents, T 4, p 13.
[14] Ibid, T 4, p 20.
[15] Ibid.
In particular, the Applicant asserted that his PTSD condition derived from the following incidents/episodes that arose during his time of service:
(a)“stressful + other conditions in an operational area by having ship to ship accidents at sea”;[16]
(b)the vessel upon which he was serving (HMAS Vampire), on at least three occasions, collided with other ships at sea and this was “extremely stressful”;[17] and
(c)an incident involving the Applicant finding himself below deck and potentially entombed there and a feeling of panic and fear about not being able to get to the upper deck before all watertight hatches were closed and secured.[18]
[16] Ibid.
[17] Ibid, T 4, p 19.
[18] Ibid.
Symptoms arising from these events, according to the Applicant’s 1994 claim, first came within the ambit of his knowledge in the 1980s.[19]
[19] Ibid, T 4, p 20.
As will be noted in the course of recounting the Applicant’s symptoms apparently giving rise to his PTSD, there is a gradual evolution from one group of symptomatic causes to another as this matter has taken its course through various decision making processes.
I further note that the Applicant’s diagnosis itself has changed. On 25 October 1994, the Applicant’s psychiatric condition was reassessed to “generalised anxiety state”.[20] This claimed condition was, on 28 November 1994, rejected by the Respondent which denied liability for both the generalised anxiety state and other claimed conditions.[21]
[20] Ibid, T 6, p 26.
[21] Ibid, T 7, pp 28-29.
According to the Respondent, the Applicant’s generalised anxiety state did not derive from any aspect of his military service. Instead, it had its roots in the Applicant’s personal problems and marital difficulties which, according to the Respondent’s delegate, were not related to his military service. Further, the Respondent’s delegate found no evidence of anxiety-related problems during the Applicant’s eligible service.[22]
[22] Ibid, T 7, p 29.
This decision was re-considered by the Veterans’ Review Board (“VRB”) on 1 March 1996. This was preceded by a finding in March 1995 by the consultant psychiatrist, Dr John Miller, who made a diagnosis of anxiety disorder but, notably, not one of PTSD.[23]
[23] Ibid, T 9, p 31.
Dr Miller noted the Applicant’s recounting of his various experiences while in active service, he was of the view that the various incidents claimed by the Applicant to be behind his PTSD were in fact “…anxiety-provoking situations…” and that the Applicant “…suffered anxiety subsequent to that period in the Navy.”[24]
[24] Ibid.
In reconsidering the matter on 1 March 1996, the VRB adjourned the hearing, pending further investigations into the nature of the events the Applicant asserted as causing his mental health issues. Notably, the VRB said it “has difficulty with the suggestion that the service incidents described, which appear to have been minor, could have led to any permanent psychological damage.”[25]
[25] Ibid, T 9, p 39.
On 16 October 1996, after reviewing more information from the RAN regarding the incidents the Applicant mentioned, the VRB affirmed the decision of the Respondent made on 28 November 1994. The VRB directly dealt with the incidents and collisions in which the HMAS Vampire was involved. In particular, the VRB noted:
(a)that on 6 June 1974, the HMAS Vampire collided with a British naval vessel as a result of which no damage was sustained by either vessel; and
(b)that on 22 October 1972, the HMAS Vampire collided with a Filipino naval vessel and neither vessel sustained damage other than scrape marks on their respective hulls;
(c)that on 1 August 1974, the HMAS Vampire collided with a fishing vessel resulting in superficial damage to each vessel.[26]
[26] Ibid, T 11, p 45.
The findings of the VRB are telling in the sense that the Respondent thought the relatively insubstantial and “trivial” nature of the collision incidents did not give rise to any permanent psychiatric condition; that the Applicant’s psychiatric symptoms were the result of an unhappy personal relationship; that no significant service-related stressor could be utilised as a basis for the Applicant’s anxiety-based symptoms; and, as a consequence, the Applicant’s claimed anxiety condition was unrelated to his defence service.[27]
[27] Ibid, T 11, p 46.
The Applicant took the matter further and ventilated an appeal before this Tribunal. That proceeding culminated in a consent decision dated 21 November 1997. Relevantly, the Tribunal affirmed the VRB’s decision in relation to the generalised anxiety disorder.[28]
[28] Ibid, T 12, p 52.
Just under two and a half years later, in March 2000, the Applicant filed a fresh claim for disability pension and medical treatment. The primary condition asserted was PTSD. The claim was configured on the basis that the PTSD was “causally related to trauma of incidents involving collisions of Naval ships during period of eligible service at which time fear, horror and helplessness was experienced with residual problems.” The Applicant further claimed that these symptoms first came to his attention in “72/74”.[29]
[29] Ibid, ST 7, p 800.
This fresh claim culminated in a fresh round of reports. The first definitive report identifying PTSD came from Dr Koller via his report dated 3 March 2000.[30] Dr Koller recounted the various collision incidents and the incident involving the Applicant being nearly trapped below deck and noted that the Applicant:
…describes a situation of great fear, helplessness and the distinct possibility he would die. Since that time he asserts restless sleep, nightmares of situations “where I am trying to get out, weird dreams”. He might suddenly sit bolt upright in bed or quickly leave the bed and search of a door that isn’t there. He says it is surprising how often he thinks over and has thought intrusions about the Vampire incident.[31]
[30] Ibid, ST 7, p 809.
[31] Ibid.
The fresh application came before the Respondent on 30 May 2000.[32] The Respondent rejected the Applicant’s claim for PTSD. The decision was configured on the basis of whether the Applicant had experienced a severe stressor under the applicable statement of principles (“SoP”). The Respondent found this was not the case and thus could not produce a reasonable hypothesis connecting the Applicant’s claimed PTSD to his military service.[33]
[32] Ibid, ST 7, p 839.
[33] Ibid, ST 7, pp 840-841.
Unhappy with this decision, the Applicant sought reconsideration and filed the necessary paperwork with the VRB on 12 July 2000.[34] The matter came before the VRB on 15 February 2001. It affirmed the Respondent’s decision of 30 May 2000 insofar as the Applicant’s claimed PTSD was concerned.[35] Crucial among its findings was the following:
…the Board is reasonably satisfied that the preponderance of medical opinion (as expressed by Dr Lambeth and Dr Miller) is that the veteran’s psychiatric condition is diagnosed as generalised anxiety disorder.
Consequently the Board could not be satisfied on the balance of probabilities that the veteran’s psychiatric condition was appropriately diagnosed as post traumatic stress disorder.[36]
[34] Ibid, ST 7, p 851.
[35] Ibid, ST 7, p 854.
[36] Ibid, ST 7, p 866.
The Applicant, on 22 November 2001, attended for an evaluation with Dr Robert Haik, a psychiatrist. Dr Haik had the benefit of both this face-to-face evaluation and of the reports provided throughout the course of the matter thus far. He noted:
There was no clinical evidence of anxiety or depression… There was no evidence of memory impairment, cognitive dysfunction, speech disorganisation, mood disorder or other psychiatric phenomena.[37]
[37] Ibid, T 20, p 107.
Dr Haik then focused on the Applicant’s asserted stressful experiences during his military service, and noted the Applicant’s presentation of a six-page typed “list of events” which, according to the Applicant, were the core reasons or factors behind his PTSD:
As can be seen, it lists a number of aversive experiences: The first when he fell out of the bunk and cracked a tooth on his first night on board a ship, the second was the heat and smell of the boiler room, the third was his position as fire sentry and the bomb hoax, the fourth the report of a fire on board MELBOURNE, the fifth was checking the aircraft arrester wire, the sixth was the fear of exercising close to Melbourne while onboard the VAMPIRE, the seventh being an armed sailor in Vung Tao Harbour, the eighth the heavy weather on the way to Japan, the ninth a terrorist threat in Hong Kong, the tenth the collision with the supply ship knocking him off balance, and the eleventh was the collision in the Brisbane River.[38]
[38] Ibid, T 20, p 108.
I am not certain about where this ‘scattergun’ approach actually took the Applicant’s case then or now. As best as I recall the evidence, the first nine abovementioned events had not previously been cited or relied upon. Most critically for present purposes and from what I have seen of the medical reports to this point, the fight or affray at the St Kilda pub in 1974 was not mentioned by the Applicant when talking about his mental health to Dr Haik.
Dr Haik’s evidence is appropriately summarised by his answers to specific questions put to him:
2. Does Mr Simpson have a psychiatric disorder?
No.
…
d. Treatment for anxiety disorder or PTSD is also unusual. If Mr Simpson was seriously disabled by these conditions it is indeed puzzling why he has not sought or maintained treatment…
…it might be argued that Mr Simpson is stubborn and simply determined to have PTSD or anxiety disorder accepted as a disability, on principle… His demeanour is challenging and his efforts might be regarded as an anti-authority trait. This is not necessarily a psychiatric disorder.[39]
[39] Ibid, pp 113-114.
Dr Haik found that the Applicant did not have a psychiatric disorder and that he did not need any psychiatric treatment.[40] Dr Haik also expressly discounted a diagnosis of alcohol dependence or abuse, noting that the Applicant had stated that he only drinks on 3 or fewer times per week.[41]
[40] Ibid, pp 115-116.
[41] Ibid, T 20, p 115.
The Tribunal, on 4 April 2003, affirmed the VRB’s decision of 15 February 2001 that had, in turn, affirmed the Respondent Commission’s decision of 30 May 2000.[42] The Tribunal thought the Applicant suffered from generalized anxiety disorder,[43] but found that it could not apply the relevant SoP due to the delay between the incident sought to be relied upon and the onset of that condition.[44]
[42] Ibid, T 36, p 236.
[43] Ibid, T 36, p 247, [30].
[44] Ibid, p 249, [34].
The Applicant re-activated this matter on 15 November 2010.[45] He sought an increase in his disability pension from its then rate. The Respondent accepted this claim and on 4 February 2011 increased his disability pension to 100% of the General Rate.[46] The Applicant was apparently dissatisfied with this decision and on 19 April 2011 made application to the VRB for review of the Respondent’s decision of 4 February 2011.[47] In this application, the Applicant contended “I believe my accepted disabilities caused me to cease work”.[48] He was seeking a disability pension increase to the intermediate or special rate.
[45] Ibid, T 21, p 117.
[46] Ibid, T 27, p 169.
[47] Ibid, T 29, p 183.
[48] Ibid, T 29, p 183.
The VRB rejected the Applicant’s claim and, in its decision of 28 October 2011:
(a) found the Applicant was not eligible for the disability pension at neither the intermediate or special rate; and
(b) confirmed his disability pension would remain at 100% of the General Rate.[49]
[49] Ibid, T 31, p 185.
At the hearing before the VRB on 28 October 2011, the Applicant submitted both oral and written evidence about PTSD. At paragraph 20 of its decision, the VRB noted:
20. The Applicant gave the following further evidence at the hearing in regard to the above issues raised by the Board.
…
He has gotten over his PTSD, it has no relevance any more; it has not been an issue for 15 years.[50]
[my underlining]
[50] Ibid, T 31, p 190.
This oral evidence was augmented by written evidence tendered as exhibits. Exhibit 1 in the VRB proceedings contains the following letter from the Applicant “To whom it may concern”:
7/10/2011
TO WHOM IT MAY CONCERN
Dear Sir/Madam,
This letter is written confirming statements expressed by my local doctor, that the following non accepted conditions do not have an impact on my day to day activities.
1. Post traumatic stress disorder.
2. Generalized anxiety disorder.
…
As previously stated in a letter submitted from my last employer, the reason’s [sic] for my giving up employment are, back, hip and right knee which are service related accepted conditions.[51]
[51] Ibid, p 196.
Exhibit 2 in the VRB proceedings comprised a letter from the Applicant’s then general practitioner (Dr Geoffrey Madden) dated 5 October 2011. Its terms are as follows:
Mr Simpson presented here today as part of the wash up from recent pain programs and for adjustment of pain medication.
He wanted it noted that he is currently suffering no symptoms related to PTSD, general anxiety, IBS, his left eye and sinusitis.
He is currently on no treatment for these condition [sic] nor suffering any symptoms, other than the blindness in his left eye, from these conditions.
His recent disability relates to pain from his joint diseases.[52]
[my underlining]
[52] Ibid, p 197.
Over two years later, the Applicant re-enlivened his asserted PTSD condition consequent upon an initial handwritten note from the Consultant Psychiatrist, Dr Bruce Lawford. Dr Lawford says, inter alia, these things:
Thank you for referring me James Simpson. He certainly has symptoms very suggestive of PTSD + has experienced general traumatic events whilst serving in the navy.
He also has major problems w alcohol and meets criteria for alcohol abuse/ dependence disorder + his epilepsy may be related to alcohol induced seizures.
…
I think he meets DSM – iv criteria for PTSD + alcohol abuse disorder.[53]
[53] Ibid, pp B19 – B20.
His claim for Disability Pension lodged on 13 December 2013, was grounded upon the conditions of PTSD, alcohol abuse and epilepsy. The Applicant also lodged, on 13 December 2013, an application for an increase in his disability pension.[54]
[54] Ibid, T 32, pp 199-208.
The PTSD in this claim form was predicated upon an incident the Applicant says he experienced in March 1974 at a social outing in St Kilda, Melbourne. The basis of this PTSD claim arises from emotional trauma the Applicant says he suffered as a result of:
(a) his involvement in a hotel brawl involving threatening behaviour towards him by others, apparently armed with dangerous implements; and
(b) resulting injuries to five servicemen “one very seriously”.
The Respondent Commission, on 31 January 2014, rejected each of the three asserted conditions as not being related to the Applicant’s military service. The Delegate said:
I have considered all relevant evidence and am satisfied beyond reasonable doubt that posttraumatic stress disorder is not related to Mr Simpson’s operational service. I am also satisfied that the condition is not related to his eligible service.[55]
[55] Ibid, T 33, p 220.
The Delegate made similar findings for both the alcohol abuse and epilepsy disorders.[56] The Applicant, via his Advocate, requested the VRB to review the Delegate’s decision.[57] The reason for appealing was given as “Assessment + Entitlement”.[58] This request for review was received on 26 February 2014.[59] The VRB considered this request on 16 April 2014 and apparently requested more information from the RAN. One important piece of information it received was the HMAS Vampire’s Report of Proceedings for the month of March 1974, which relevantly stated:
16. The conduct of the ship’s company has been satisfactory. An unfortunate incident occurred in St Kilda, Melbourne when a number of sailors were provoked into a brawl during which five suffered either knife or broken bottle wounds. The Victorian Police arrested two known criminals in connection with the woundings. One of these criminals has since been arrested and charged with two murders and other violent crimes which took place a week after the brawl.[60]
[my underlining].
[56] Ibid, pp 221 and 223.
[57] Ibid, T 34, p 227.
[58] Ibid.
[59] Ibid.
[60] Ibid, T 37, p 253.
As part of his requested review by the VRB, the Applicant provided a “Veterans Statement” recounting the incident at St Kilda in March 1974:
In March of 1974 While on H.M.A.S. Vampire I was involved in an extremely traumatic knife fighting incident at St. Kilda in Melbourne. Five of us were injured very seriously, it was just after this incident that I experienced my first fitting episode due to the increase in alcohol consumption, and the trauma that I experienced from being involved in this horrifying accident. These fitting episodes have been prevalent since this incident, I managed to keep these fitting episodes from my superiors for fear of being kicked out of the Navy. I still relive this nightmare to this very day, and continually wake up in the middle of the night, it is as though time has been reversed, and I am in the middle of this vicious brawl fighting for mine and my mates lives, I was terrified that I was going to be killed. My drinking has not diminished over the years if anything it has gotten worse, in fact drinking was the main focal point for the disintegration of my first marriage and my second marriage is heading down the same path.[61]
[61] Ibid, p B 16.
I have misgivings about the true nature of both the incident in March 1974 and how the Applicant has sought to permeate asserted symptoms of PTSD into his recollected version of that incident. First, with reference to the incident itself, the ship’s Report notes the sailors were provoked into a brawl and that five suffered either knife or broken bottle wounds. I am prepared to accept that one of the five injured sailors may well have been the Applicant. The ship’s report makes no mention of the nature of those injuries, whether they were superficial or more serious and/or whether any treatment was administered. Nor is there any detail of any perpetrator(s) being charged as a result of provoking or participating in the incident. The more (indeed much more) traumatic episode(s) must surely be the “…two murders and other violent crimes which took place a week or two after the brawl”. I would have no misgivings about the Applicant’s description of the incident and its asserted effect on his mental health if “…the two murders and other violent crimes…” occurred as part of the specific incident recounted and now sought to be relied upon. In that circumstance, the ship’s Report will no doubt have been a deal more comprehensive.
Secondly, this is the first time in the entirety of the Applicant’s lengthy claims history that he has sought to ventilate the circumstances of the March 1974 St Kilda brawl. As summarised, he has in at least two earlier claims (in 1994 and 1999), propounded PTSD as a factor affecting his mental health, but has asserted the PTSD was due to other factors such as ship to ship “collisions” and feelings of panic and claustrophobia about being apparently trapped below decks during an incident. Earlier decision makers have made findings about the relatively inconsequential and benign nature of the asserted “collisions”. Absent Dr Lawford, I am not able to locate a single other doctor’s report in the evidence that records the Applicant citing the 1974 St Kilda incident as a cause for his asserted PTSD.
Indeed, his self-reporting of the PTSD symptoms or causes in his two previous claims is notable for the range of causes cited, except for the 1974 St Kilda incident. In the claim submitted in 1994, he claimed the PTSD had been caused by:
·stressful and other conditions in an operational area by having ship to ship accidents at sea;
·at least three collision events between the HMAS Vampire which was “extremely stressful”;
·the “trapped below decks” incident which, according to the Applicant, had become “firmly entrenched” in his mind.
In the 1994 claim, the Applicant said he first became aware of the symptoms in the 1980’s. This claim was not successful.
In his 1999 claim, he sought to reconfigure the asserted causes of his PTSD. This time the “collisions” between the HMAS Vampire and other vessels not only occurred, but were now said to cause the Applicant fear, horror and helplessness and an apparent conviction of a distinct possibility that he would die. The symptoms resulting from these factors became known to the Applicant in “72/74”.[62] No decision maker thought these factors constituted a cause or stressor on which any finding for PTSD could be based. This claim, too, failed.
[62] Ibid, T 14, p 60.
What is relevant for present purposes is that in two previous claims propounding PTSD despite (1) the Applicant asserting incidents in October 1972 (ship collision), June 1974 (ship collision – fear of bearing washed overboard), August 1974 (ship collision – fear of being trapped below deck) and (2) him variously quoting dates of onset of those PTSD symptoms as diverse as “in the 1980’s” (1994 claim) and “72/74” (1998 claim), there is not a single mention of the March 1974 St Kilda brawl now being propounded as the cause of his PTSD.
The 2014 application also featured another report from Dr Geoffrey Madden, the Applicant’s GP.[63] Dr Madden’s report is dated 11 March 2014. Most likely after receiving Dr Lawford’s abovementioned handwritten report of 29 July 2013, Dr Madden expressed a view that the Applicant “has symptoms of PTSD (flashbacks etc) relating to an incident when he was attacked in Melbourne. He felt in fear of his life and that a friend had been killed and the memories of that incident intrude into his current thoughts and still effect [sic] his health”.
[63] Ibid, T 37, p 263.
Two things can be said of Dr Madden’s evidence. First, it contains a glaring factual error because no-one was killed in the 1974 St Kilda incident. Second, his finding of “symptoms of PTSD (flashbacks etc)…” is squarely at odds with his opinion given in support of the 2010 Application where, in his report dated 5 October 2011,[64] he confirms the Applicant told him he was “…suffering no symptoms related to PTSD [or] general anxiety…”.
[64] Ibid, p 197.
I therefore have misgivings about Dr Madden’s evidence which seems to alternate depending on what a given specialist may tell him or how the Applicant wants to best configure one of his Applications.
Dr Lawford’s Evidence
Report of 29 July 2013
Dr Lawford first saw the Applicant on 29 July 2013. This consultation came about as a result of Dr Madden’s referral. After the consultation, Dr Lawford wrote a handwritten note back to Dr Madden as follows:
Dr Geoffrey Madden 29/7/13
Beenleigh
Dear Geoffrey,
Thank you for referring Mr James Simpson. He certainly has symptoms very suggestive of PTSD + has experienced several traumatic events whilst serving in the navy.
He also has major problems w alcohol – meets criteria for alcohol abuse/ dependence disorder + his epilepsy may be related to alcohol induced seizures.
…
[in a postscript to this report, Dr Lawford says]
I think he meets DSM – iv criteria for PTSD + alcohol discorder.[65]
[65] Ibid, pp 214 – 215.
Report of 7 March 2014
This report followed a contemporaneous attempt by the Applicant to take his own life. In this report, Dr Lawford writes to Dr Madden and says:
Dr Geoffrey Madden 7/3/14
...
Beenleigh
Dear Geoffrey,
James Simpson was admitted here [Greenslopes Private Hospital] on transfer from Logan Hospital. He took a serious O/D [overdose] of alcohol + benzodiazepines (60 x 5mg diazepam) + moclobemide (60 x 300mg).
This was in response to a negative finding from DVA regarding his claim for an increased pension.
Mr Simpson was attacked by a person or persons w a knife/knives etc while in the Navy and although supporting evidence of this was provided DVA rejected the claim for PTSD. His problems have been furthered by his consumption of [approximately] 100 mg of alcohol per day. He has elevated LFTS as a result.
…
He will be seeing me next week for review + is aware that should suicidal thoughts re-occur he can attend emergency here after hours or see me during hours.[66]
[66] Ibid: pp 258 – 260.
Report of 23 September 2014
Dr Lawford made further reference to the 1974 St Kilda incident in his report of 23 September 2014:
To Whom it may Concern 23/9/14
…
Mr James Simpson, d.o.b. 14/02/54 suffers from PTSD + alcohol abuse disorder.
His problems began when he was involved in a knife fight at St Kilda in Melbourne in 1974. PTSD commenced soon after this fight and subsequent traumatic events aggravated his PTSD. His alcohol abuse disorder has arisen [secondary] to his PTSD.
Yours sincerely[67]
[67] Ibid: p 265.
Report of 4 February 2015
This report, more fulsome than those preceding it, was prepared for the VRB’s review of the determination dated 31 January 2014. The report commences with “…I have examined the veteran and have determined that he suffers from Post Traumatic Stress Disorder and Alcohol Dependence Disorder.”[68] Three specific events are cited as causative of the Applicant’s symptoms:
(1) the March 1974 incident at St Kilda;
(2) the further incident in 1974 (June) relating to the collision between the HMAS Vampire which resulted in the Applicant apprehending a fear of being washed overboard; and
(3) the further incident in August 1974 involving a coming together between the HMAS Vampire and a fishing trawler in the Brisbane River. This is the incident where the Applicant became fearful of being trapped below deck without a means of escape.
[68] Ibid, p 270.
Dr Lawford said “I could not find any other events in his life that would be involved or related to his PTSD.”[69] In terms of a formal diagnosis, Dr Lawford found as follows:
Axis I – Post Traumatic Stress Disorder and Alcohol Dependence Disorder.
Axis II – There is no personality disorder present.
Axis III – Medical conditions: widespread osteoarthritis, detached retina left eye, performed knee replacement left knee.
Axis IV – There is no change recently in his psychosocial circumstances.
Axis V – Global Assessment of Functioning is approximately 50 as he has serious symptoms, for example, suicidal ideation and serious impairments in social and occupational functioning.[70]
[69] Ibid, p 272.
[70] Ibid, p 273.
Dr Lawford then administered an interview with the Applicant to ascertain whether the DSM – IV criteria for Post Traumatic Stress Disorder were met. Dr Lawford’s findings were as follows:
The results of the instruction interview for Post Traumatic Stress Disorder are as follows:
Criterion A was met. The veteran experienced, witnessed and was confronted with events that involved actual or threatened death or serious injury and a threat to the physical integrity of himself or others. His response involved intense fear, helplessness and horror. The events that were important were physical assault and attack and someone hurt. Therefore criterion A was met.
There are five criteria B symptoms with a score of 3 or more.
There were six criteria C symptoms with a score of 3 or more.
There were four criteria D symptoms with a score of 3 or more. The symptoms have been present for many years and the symptoms have caused clinically significant distress and impairment in social and occupational functioning.
PTSD diagnosis criteria A to F were met.
…
The veteran meets DSM – IV criteria for Post Traumatic Stress Disorder. It appears that his condition began some time in 1974. The veteran states that at the time, he was not aware of it, although he knew something was happening, was not aware of the diagnosis, although he knew that he had changed.
…
The duration of the disturbance has been over 40 years and the disturbance has caused clinically significant distress and impairment in social and occupational functioning.
In my opinion, there is a causal relationship between his PTSD and exposure to the assault with knives and bottles.[71]
[71] Ibid, pp 274 – 275.
As part of the VRB’s consideration of the matter in June 2015, the Applicant submitted a statement[72] that he contended itemised the root causes of his PTSD:
[72] Ibid, pp 291 – 292.
The following is a list of dates and incidents which have contributed to my being diagnosed with P.T.S.D. during my naval career. The following are listed in order with the first incident being the one that affects me the most:
Incident 1: In March 1974 the HMAS Vampire was in Melbourne for a visit, whilst there a number of us visited a pub in St Kilda, a brawl evolved with a group of skin heads, who attacked us without provocation. One of our mates [Blue Skimmings] was severely wounded and myself and others sustained cuts from broken bottles and knives, while trying to defend ourselves from this ferocious attack. We were in fear of our lives and as we were outnumbered 3 to 1 I felt as though I could have been killed at any stage. It was only through perseverance, skill and good fortune that were [sic] able to repel our attackers and if it wasn’t for big Mick Mara and the rest of us would have been either killed or critically injured. Lesser men may have probably turned tail and ran leaving their mate to defend for himself, but servicemen have a creed and that is the way we stay and help our mates no matter what even if it means dying in the process. I sustained cuts to my right hand when I was defending myself and the scars are reminder of this terrible knife fight to this very day. I was in fear for my life.[73]
65.The other two incidents cited by the Applicant were (1) the abovementioned incident in August 1974 between the HMAS Vampire and the fishing trawler (the Cyleton) apparently resulting in a fear of him being trapped below deck without means of escape and (2) the abovementioned in incident in June 1974 between HMAS Vampire and the English fleet tanker (RFA Tidespring) apparently causing a fear or apprehension in the mind of the Applicant being washed overboard or otherwise experiencing life threatening harm as a result of a helicopter positioned on the deck of the RFA Tidespring.[74]
66.As noted by the Respondent,[75] on 9 June 2015, the VRB affirmed the decision dated 31 January 2014. The VRB found:
(i)no connection between the March 1974 St Kilda brawl and the Applicant’s service as he was not on duty during his shore leave;
(ii)the two incidents between HMAS Vampire and the other two vessels in June and August 1974 respectively, were not traumatic events for the purposes of the relevant SoP being No 83 of 2014 concerning posttraumatic stress disorder;
(iii)the Applicant’s claim for PTSD was rejected; and
(iv)the Applicant’s disability pension should be continued at 100% of the general rate.
67.On 11 August 2015, the Applicant applied to this Tribunal for review of the VRB’s determination of 9 June 2015.[76]
[73] Ibid, p 291.
[74] Ibid.
[75] Exhibit 3, Respondent’s Amended SFIC, page 7, [41].
[76] Exhibit 5, T Documents, p A1.
The Cross-Examination of Dr Lawford
Dr Lawford initially said in cross examination it was not actually his opinion that the 1974 St Kilda brawl was a Criterion A event. He said “It’s not my opinion, it’s in the DSM-V. I’m just saying it [the 1974 St Kilda brawl] meets what’s in the DSM-V”. Eventually, Dr Lawford said he did form an opinion that what the Applicant describes as occurring in March 1974 is a Criterion A event. Further, Dr Lawford confirmed the Applicant’s presentation and the symptoms he reports are referable back to the 1974 St Kilda brawl. Dr Lawford said: “That’s the history, yes.”
Dr Lawford agreed he first saw the Applicant some 39 years after the 1974 St Kilda brawl, which he now asserts constitutes a Criterion A event. Dr Lawford also agreed he was aware that the Applicant first raised the St Kilda brawl as being indicative of the other criteria – other than Criteria A and B – in July 2013. He further conceded that on a number of occasions before July 2013, the Applicant had described – in explicit detail – many other events that he said were causative of his PTSD. In agreeing with this suggestion, Dr Lawford acknowledged he had read at least “some” of the earlier reports where the applicant had recounted these other events to other examining medical practitioners as causative of his PTSD.
As well as agreeing with the suggestion that the Applicant had, over the course of decades, cited numerous events as responsible for his PTSD, Dr Lawford agreed that some of those earlier medical practitioners had diagnosed PTSD, while others reached no such diagnosis. Dr Lawford said this was “absolutely” correct and recalled at least one earlier diagnosis of anxiety disorder.
Dr Lawford was asked to comment on the suggestion that a common feature of PTSD is that people do not want to talk about a particular event that is later asserted to be a primary cause of that particular PTSD. He said this was correct and that he had experienced discussions with referring General Practitioners who had seen patients for “thirty years” but did not mention one specific causative event for PTSD before they were referred to a psychiatrist.
Dr Lawford was asked to comment on whether it is common that people will talk ad nauseum about events (apparently causative of their PTSD), make multiple claims to government entities for compensation arising or citing those events as causative factors, but then fail to mention a specific event such as, for present purposes, the St Kilda brawl. His response was “it is typical, quite common for people not to mention the actual event that really worries them.” I understand that “the actual event” that really worried the Applicant is now asserted to be the St Kilda brawl in 1974.
This question was, importantly to my mind, further refined and put to Dr Lawford on the basis of whether it is apparently common for a patient to say “I’ve experienced all these other things that caused me PTSD but I am not going to mention one specific event?”. Dr Lawford’s response was not convincing. He said “I don’t know if he said “I’m not going to mention it”. He probably didn’t want to talk about it.” Dr Lawford sought to justify this opinion on the basis that the other events (aside from the 1974 St Kilda brawl) said to be causative of the Applicant’s PTSD were “not as traumatic” for the Applicant as the St Kilda brawl.
It was pressed by Counsel for the Respondent that for the Applicant, those “traumatic events” claimed before 2013 were indeed traumatic. Dr Lawford was asked whether he accepted that pre-2013 history. He answered with “he just didn’t tell anyone about it”.[77]
[77] That is, the 1974 St Kilda brawl.
Specific recounting of previous traumatic events (aside from the St Kilda brawl) by the Applicant were then put to Dr Lawford. For example, the Applicant was asserting in 2001 that the collision incident involving the HMAS Vampire led him to record:
I still suffer flashbacks of that day. I wake up in the middle of the night constantly screaming out looking for an escape route through a wardrobe or window not knowing where I am. My wife always pacifies me, calms me down and brings me back to reality. My anxiety stress levels have increased over the years to the extent that when I now get stressed I become light headed and dizzy and on occasion have blacked out.
Dr Lawford acknowledged he had read and was aware of this statement. It was then put to Dr Lawford that the Applicant in 2001 had no difficulty in saying he had PTSD, had no difficulty in reciting the events that he said caused that PTSD and the symptoms that he said he suffered from, yet Dr Lawford’s view is that it is “common” that applicants do not mention a specific causative event. The response was, in my respectful view, equivocal and unconvincing. Dr Lawford said “It’s not only me who says it, DSM-V says it.”
The following proposition was then put to Dr Lawford: “DSM-V says: people list a whole list of events and then forget one”? Dr Lawford said “…DSM-V says people avoid talking about or having conversations about the traumatic event.” Counsel for the Respondent pursued this point and asked “this is not a case about that, doctor, is it? This is a case where a man who has been explicitly claiming PTSD and explicitly telling people what he thinks has caused it. Would you agree with that?” Dr Lawford agreed with this proposition and asserted the Applicant “hasn’t come out with the full story.”
Dr Lawford thought this failure to come out with the full story is “quite common”. He noted his aforementioned experience with General Practitioners who see patients for upwards of thirty years and who have told him that a particular applicant “has not mentioned this to me before”. Counsel for the Respondent sought to temper Dr Lawford’s observation with this question: “In that example you gave, doctor, have those people said to the GPs: ‘I’ve got PTSD; these are all the things that have caused it’? Have those people been saying: ‘here’s all the other things I say caused my PTSD’, or is it ‘I don’t know what’s wrong with me and I haven’t raised those events before’?”
Dr Lawford’s response was unclear. He said “He wouldn’t say that he’s got PTSD; he shouldn’t have made that diagnosis.” Counsel for the Respondent observed that the Applicant in fact had said on a number of occasions that he did have PTSD. Further, that the Applicant had written documents which say “List of events in chronological order that have contributed to my generalised anxiety disorder and PTSD”. Dr Lawford said he had read this document.
Dr Lawford was asked if he agreed with the proposition that the Applicant has had no previous difficulties in saying what it is that has caused his PTSD. Dr Lawford disagreed with that proposition, saying “He has not told the doctors what has caused his PTSD”, and that the Applicant has simply “…avoided talking about the real issue.”
Counsel for the Respondent – to my mind critically – put an alternative scenario to Dr Lawford: that, in essence, this is a retrospective creation of history of what it is the Applicant thinks has caused his PTSD. Dr Lawford’s initial response was “…well… It’s actually what happened. It’s not a fictitious event.” Counsel for the Respondent noted the event may have happened but that not every event which would meet Criterion A requirements necessarily, of itself, causes PTSD. Dr Lawford responded with “that’s true”.
This further proposition was then put to Dr Lawford: “what we have is a possibility that he is recreating history in terms of saying: ‘yes, this traumatic event occurred and now I think everything that I say I’ve been suffering from is reflective back on that’.” Initially, Dr Lawford disagreed there was any possibility the Applicant was recreating history. He was asked to categorically exclude that possibility. He said “I do exclude it, yes.”
Counsel for the Respondent pressed this point and asked Dr Lawford whether he completely excluded the possibility that the Applicant is recreating history. Dr Lawford replied: “On the balance of probabilities, I would say that he is not… I would say that he has experienced an event which is enough under all criteria, including the Statement of Principles… is enough to cause PTSD. His life changed dramatically at that time. Prior to 1974, he was an average sort of person without any particular major problems. By 1975, he’s lost his marriage, his alcohol intake increased at that time; his behaviour changed and his behaviour has been changed ever since that day. So… well what did cause it then?” Dr Lawford thought it was “very unlikely” that the Applicant was recreating history.
Dr Lawford agreed he first saw the Applicant on 29 July 2013. He was taken to Exhibit 8 comprising the Applicant’s medical records held by the Greenslopes Private Hospital. He was asked to read out the clinical notes for his first two consultations with the Applicant, they being 29 July 2013 and 26 August 2013. He agreed the clinical notes of 26 August 2013 contain the first reference to the St Kilda brawl, noted as “Knife fight St Kilda”.[78]
[78] Exhibit 8, Greenslopes Private Hospital records, pp 13 and 14.
Dr Lawford was then referred to the diagnostic interview for PTSD he conducted with the Applicant. This interview was conducted as a “Structured Interview for PTSD” and is annexed to Dr Lawford’s abovementioned report dated 4 February 2015.[79] Dr Lawford agreed this interview “probably was” the first time he had conducted this particular interview with the Applicant. He agreed he had been “probably” seeing the Applicant for about a year and a half before he conducted this “Structured Interview”.
[79] Exhibit 5, T-Documents, T 40, pp 276-285.
There followed this series of questions from Counsel for the Respondent to Dr Lawford:
Counsel: Doctor, you were taken to the diagnosis for PTSD in the DSM. I understand from your experience that the DSM then slots into the SoP. Would you agree with me – we’re not talking about Mr Simpson at this particular moment – but would you agree with me that a person can experience a situation which meets the definition of a Criterion A event and not suffer PTSD?
Dr Lawford: Sure… only about 20% of combat veterans get PTSD.
Counsel: Would you agree with me that it’s also possible that some events, for reasons unknown, can be Category A events which cause PTSD and others which also would meet that definition, might of themselves have no impact on the PTSD?
Dr Lawford: Sure.
Counsel: Is it also correct in the way that the diagnostic criteria links between the Criterion A or B events and then Criterions B, C, D, E to H – that is linking back – things such as experiencing flashbacks, avoidance are, under the diagnostic criteria,, required to be associated with the Criterion A or B event?
Dr Lawford: Yes, absolutely.
Counsel: And would you accept, doctor, that is, leaving aside for the moment – I want to ask you this hypothetical question: you say that Mr Simpson didn’t talk about the St Kilda event; if you accept for the moment that what he was telling doctors in 2001 and the mid ‘90s through to 2001, as to (a) what were the traumatic events that he experienced in the Navy, and (b) what the effects of those were, such as what I read out to you before, that those reported symptoms are referable back to those events which I described?
Dr Lawford: That’s right.
Counsel: And so, the basis upon which you say the Tribunal should reject that earlier history is because you say it’s common that people don’t talk about a particular event?
Dr Lawford: They don’t talk about it and they also have problems remembering it. It’s in the DSM-V Criteria. So, as I said, I don’t think he made things easy for himself or anyone else in the fact that he didn’t mention this earlier.
Issues with Dr Lawford’s Evidence
As mentioned earlier, the Respondent has withdrawn its previous concession that the Applicant suffers from PTSD. As an initial point, I am of the view that this concession can be fairly maintained because the evidence convinces me that procedural fairness has been afforded to the Applicant who has had the benefit of multiple reports by Dr Lawford as well as Dr Lawford’s oral testimony at the hearing. I am of the further view that it is open to the Respondent to withdraw its previous concession (of the Applicant having PTSD) in circumstances where the Applicant has provided a plethora of causative factors for that asserted condition.
In his evidence, Dr Lawford sought to sustain the proposition that the St Kilda brawl constituted a DSM-V Criterion A event and that the following Criteria B, C, D and E were satisfied and related to that event. Dr Lawford’s stated position is of critical importance to this Tribunal’s findings relating to whether or not the Applicant does suffer from PTSD. To my mind, there are significant questions about the reliability of Dr Lawford’s evidence when one has regard to the totality of the history that has been provided to Dr Lawford about the 1974 St Kilda brawl.
There is no resistance from the Respondent about whether or not the 1974 St Kilda brawl ever occurred. Clearly, an incident did occur. However, considered in the context of the DSM-V analysis, what Dr Lawford is now saying is that some 39 years after that event, all of the Applicant’s previously stated causative factors for his PTSD - such as the events on the HMAS Vampire, amongst others – are now all referable back to the 1974 St Kilda brawl. For reasons that follow, I have serious misgivings about the veracity of Dr Lawford’s evidence and the extent to which his diagnosis is tenable.
As the treating psychiatrist of the Applicant, it occurred to me that Dr Lawford’s evidence lacked a sufficient level of objectivity in relation to what the Applicant had told him. Dr Lawford was particularly guarded about even contemplating, let alone accepting, the reality of a broader spectrum of reasons behind the Applicant’s varied history of causative factors for his asserted PTSD.
For example, in cross-examination, Dr Lawford was very reactive towards, and very reluctant to, accept even a possibility that the Applicant (1) may have been untruthful in his historical recitation of the causative event(s) behind his PTSD and (2) may have been recreating history in a retrospective way such as to identify a new event as being causative.
I likewise have significant difficulty in accepting Dr Lawford’s evidence that it is apparently “common” for an applicant to – over the course of something like 25 years – file a multiplicity of claims, consult with a significant number of medical professionals, provide a history of a range of causative events yet fail to mention what is now propounded to be the most critical causative event for his PTSD (the 1974 St Kilda brawl). It is clearly not the experience of this Tribunal in cases of this nature for it to be “common” for an applicant to adopt a retrospective ‘scattergun’ approach towards finding and then propounding a cause(s) behind a claimed condition.
Dr Lawford sought to justify this “common” theme of his evidence by telling the Tribunal that, in his experience, it is apparently common that patients do not openly talk about a causative event, but rather, merely tell their health professional that they are or have been unwell. That is not what has occurred when one has regard to the history of what this Applicant has told previous decision-makers. The Applicant has not been concealing or refusing to ventilate causative factors for his asserted PTSD. He has not just been telling doctors that he has merely been feeling unwell. The Applicant has been quite explicit in reciting causative factors for his asserted PTSD.
Dr Lawford, in my view, somewhat unconvincingly, sought to temper his evidence by suggesting (1) that it was difficult to ascertain whether a patient was either lying about causative factors or otherwise concealing them from a health professional and (2) that the Applicant was very unwell. There is no doubt the Applicant is unwell. The seminal question for this Tribunal is whether it can be satisfied, on the balance of probabilities, that the entire diagnosis of the Applicant’s PTSD is based on what he told Dr Lawford some 39 years after the 1974 St Kilda brawl in circumstances where:
(i)that event has never been previously mentioned by the Applicant;
(ii)a significant number of other causative events have been cited by the Applicant and propounded before a number of previous decision-makers;
(iii)the Applicant has, for something like 30 years, consulted with and undergone treatment with medical professionals (psychiatrists, counsellors) who are specifically qualified to identify causative events and treat resulting conditions.
Despite the Applicant’s numerous applications, numerous histories and recitations of causative events and treatments at the hands of suitably qualified health professionals, the 1974 St Kilda brawl has never previously been raised by the Applicant or detected by a medical professional as causative of his asserted PTSD.
Counsel for the Respondent pointed to a number of difficulties with the history that has been recorded by Dr Lawford and upon which his diagnosis and evidence has been chiefly based. The history recorded by Dr Lawson is, in a number of respects, at odds with what has actually transpired in the Applicant’s life. Here are some examples:
(i)Dr Lawford thought the Applicant’s employment history was mainly an itinerant one, suggestive of him being in and out of employment for virtually the entirety of his post-naval service. This is not the case. It is clear the Applicant has, to his credit, applied for, obtained and held positions with employers and has done so for periods of at least seven years. The Applicant has not been itinerant and otherwise incapable of holding down employment for which he has successfully applied;
(ii)Dr Lawford thought the Applicant’s marriage came to an end very shortly after the 1974 St Kilda brawl incident. That assumption is incorrect. The marriage lasted until 1979 or 1980 with the Applicant’s wife apparently leaving him;
(iii)Dr Lawford said in his oral evidence that the Applicant was a largely normal individual prior to the 1974 St Kilda brawl. This assumption is clearly at odds with what the Applicant has said at Exhibit 7 comprising his “List of events in chronological order that have contributed to my Generalised Anxiety Disorder and Post traumatic Stress Disorder”. This list is silent about the 1974 St Kilda brawl yet is vocal and detailed about issues of helplessness, anxiety, insomnia and traumatic claustrophobia from as early as his time of service on the HMAS Melbourne in the early part of 1971, some three years or more before the 1974 St Kilda brawl.
As was aptly put by Counsel for the Respondent, there is a “constellation of uncertainties" arising from the histories provided by this Applicant. That collection of uncertainties has not been, to my mind, adequately accounted for in the history Dr Lawford has received and upon which the entirety of his diagnosis is based. I therefore have significant misgivings about both the history provided by the Applicant to Dr Lawford and the previous histories provided by the Applicant to other health professionals and/or decision makers as well. These misgivings, in turn, lead me to harbour serious doubts about Dr Lawford’s diagnosis and, more critically, the reliability around connecting that diagnosis with the 1974 St Kilda brawl.
It is these doubts that, in turn, lead me to experiencing difficulty with accepting that the 1974 St Kilda brawl meets the requirements of a Criterion A event. Even if that event does meet the requirements of Criterion A, I am not satisfied about the validity of the relationship between the asserted Criterion A event and its association with the symptoms and responses now propounded by the Applicant as consequential upon that event. In other words, I am not satisfied, on the balance of probabilities, that the Criterion A event now propounded does, of itself, automatically demonstrate that the remainder of the symptoms now reported by the Applicant are referable back to that primary causative event.
I therefore have grave difficulty in accepting Dr Lawford’s diagnosis in circumstances where the preceding history, both medical and factual, seriously and probably fatally challenges the notion that the 1974 St Kilda brawl is a Criterion A event primarily causative of the Applicant's asserted PTSD. Even though the circumstances of the 1974 St Kilda brawl might meet the requirements of a Criterion A event, I cannot be reasonably satisfied that the effect of that incident was consistent with Criterions B, C, D and E. Dr Lawford thinks it is consistent.
I am of the view that there is no such consistency between Criterion A and the other four Criterions due, primarily, to the glaring inconsistencies clearly apparent in the various histories provided by the Applicant. My further finding is that Dr Lawford has failed to take into account those glaring inconsistencies and has sought to ameliorate that position by suggesting it is “common” for patients to say nothing about a primary causative event and to otherwise maintain a period of passive unwellness until, somehow, the primary causative event is revealed by a patient some 39 years later. On any objective analysis, that is not the case presently before the Tribunal.
ISSUES WITH THE APPLICANT’S EVIDENCE
It is a matter of record that the Applicant gave evidence of symptoms and/or causes of his PTSD both to the VRB in 2001 and to the Tribunal in 2003. That evidence was largely a recapitulation of his earlier claims made in 1994. It is clear from the evidence that for at least ten years, the Applicant was contending his PTSD and/or anxiety disorder conditions arose from specific incidents that occurred on board the HMAS Vampire. It is also clear from the evidence given to decision-making bodies in the entire period leading up to commencement of this claim in 2013 that there is no reference, evidence or suggestion in any of the evidence of the 1974 St Kilda brawl as a causative factor – let alone a primary causative factor - of his PTSD.
Counsel for the Respondent referred the Tribunal to s 151 of the VEA. That section provides as follows:
151 Powers of Board
1The Board may:
(c)take evidence on oath or affirmation for the purposes of a review; or
(a)adjourn a hearing of a review from time to time.
2The presiding member in relation to a review may:
(a)summon a person to appear at any hearing of the review to give evidence and to produce such documents (if any) as are referred to in the summons;
(b)require a person appearing at a hearing of the review for the purpose of giving evidence either to take an oath or to make an affirmation; and
(c)administer an oath or affirmation to a person so appearing.
It seems clear from this provision that the VRB has power to take evidence under oath. During the interlocutory process of this matter, concerted, generous and determined efforts were made, or offered to be made, to facilitate the Applicant giving evidence in person in any one of a number of ways. The Respondent agreed to meet the not inconsiderable cost of bringing Dr Lawford to the hearing so he (i.e. Dr Lawford) could give his evidence in person. Further to that, it was proposed that Dr Lawford literally sit in the witness box with the Applicant while he (i.e. the Applicant) gave his evidence. Further again, it was proposed that the entire hearing be temporarily relocated off-site at Dr Lawford’s rooms at the Greenslopes Private Hospital for the receipt of the Applicant’s evidence. Despite these fair and generous concessions and accommodations, the Applicant (a) did not attend the hearing (which ran across two days), nor (b) did he give any oral evidence, whether in person or by telephone or by way of videolink.
In these circumstances, the Respondent – rightly, to my mind – urged the Tribunal to have regard to s 151 of the VEA and, in the absence of an opportunity to cross-examine the Applicant, to assume that he nevertheless gave either sworn evidence under oath or by way of affirmation to both the VRB in 2001 and to the Tribunal in 2003.
In response, the Applicant’s Advocate submitted that no oaths are taken by witnesses appearing before the VRB. In his view, “the VRB don’t do that [i.e. receive evidence under oath or by affirmation] and never have.” The further submission was that this is “because the Repatriation Commission is not in attendance and they do not do that. There’s no affirmation, there’s no swearing on the Bible, nothing of that nature.”
I have much difficulty accepting such a contention. It must surely be incorrect for at least two reasons. First, as noted by Counsel for the Respondent, neither of the Applicant’s representatives at the hearing before me were present when the Applicant gave evidence at previous VRB hearings. They therefore cannot be in any position to say whether or not the VRB did or did not require evidence to be given on oath in 2001.
In the final analysis, I think this contention put on behalf of the Applicant goes nowhere because in circumstances where someone is giving evidence before the VRB, the presumption must surely be that such evidence would be truthful. Secondly, such a presumption is supported by s 151(4) of the VEA, which relevantly provides:
4The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the evidence that the person will give will be true.
Secondly, there can be no doubt that in the proceedings before the Tribunal in 2003, the Applicant would have given evidence either by way of oath or affirmation. On the basis of the above, and given there has been no evidence led to the contrary, I will proceed under the assumption that the Applicant gave sworn evidence in the 2001 VRB proceedings and the 2003 Tribunal proceedings.
The Rule in Jones v Dunkel
Counsel for the Respondent referred me to the rule in Jones v Dunkel,[80] regarding inferences that can be drawn about the failure to give evidence.[81] The Respondent took an altruistic approach towards the Tribunal not applying the rule in Jones v Dunkel and not drawing an adverse inference from the Applicant’s failure to give evidence. This approach was based on two things:
(a)the possibility that Dr Lawford’s reports and oral testimony at the hearing provide a sufficient explanation for the Applicant’s main contention;[82] and
(b)given (i) the Respondent’s role in assisting the Tribunal to reach the correct or preferable decision, and (ii) having regard to the Respondent’s obligation to be a model litigant, the Tribunal ought not apply the rule in Jones v Dunkel on the basis of Dr Lawford’s evidence.
[80] (1959) 101 CLR 298.
[81] For the rule, see Jones v Dunkel (1959) 101 CLR 298. Such an inference can be drawn by the Tribunal (see e.g. Kumar and Minister for Immigration and Citizenship [2009] AATA 124). However, one must note that the adverse inference is not that the evidence would be damaging to the party that has failed to provide it. Rather. The inference that should be drawn is that the untendered evidence would not help the party who failed to tender it (see Confidential and Commissioner of Taxation [2013] AATA 382, citing JD Heydon, Cross on Evidence (9th ed, 2013) at [1215]). It is further worthwhile noting that the rule in Jones v Dunkel is an evidentiary rule and so, pursuant to s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth), it is not a rule by which the Tribunal is bound. It is nevertheless a helpful guide to the appropriate balance for a Tribunal to strike in circumstances where the rule in Jones v Dunkel might otherwise apply.
[82] That is, that the 1974 St Kilda brawl is now the primary causative factor behind the Applicant’s PTSD.
The Respondent is not, however, entirely tepid about the Applicant’s earlier evidence. The Respondent contends the Tribunal should allocate no weight to the Applicant’s statements:
…based on what are glaring inconsistencies over a period of many, many years and particularly where, notwithstanding that this matter has been on foot since 2015 [sic; the initial claim was lodged in 2013], no written statement has been provided by the Applicant as to why he never raised the 1974 St Kilda incident until July 2013.
[my underlining]
I accept this submission because, on any reasonable view, the evidence does indeed disclose glaring inconsistencies between what the Applicant told the VRB on several occasions about causative factors behind his PTSD. There are likewise statements made by the Applicant attributing the causes of his PTSD to a wide range of events other than the 1974 St Kilda brawl. Indeed, there is one instance where the Applicant told the VRB that:
(a)his PTSD did “ not have any impact on my day to day activities…”;[83] and
(b)via his General Practitioner, Dr Madden, who noted (in 2011) “He… is… suffering no symptoms related to PTSD, general anxiety…”;[84] and
(c)“He has gotten over his PTSD; it has no relevance any more; it has not been an issue for 15 years.”[85]
[83] Exhibit 5, T-Documents, T 31, p 196.
[84] Ibid, p 197.
[85] Ibid, p 190.
In light of these glaring inconsistencies, the Respondent contends the Tribunal should be “incredibly hesitant” to accept the Applicant’s most recent version of events “in circumstances where the diagnosis of the condition and the requirement of the satisfaction of the SoP depends almost entirely on an assessment of the veracity of the history that’s been reported.” I think there is considerable merit in that contention.
Specific examples of Inconsistencies in the Applicant’s Evidence
The Tribunal is mindful that it is rare for the Respondent in a matter such as this to make submissions about an applicant’s credit and whether or not an applicant’s evidence should be accepted. I am nevertheless of the view that the evolution of the Applicant’s evidence spanning multiple claims determined by multiple decision-makers over a period of decades, now leads the Tribunal to somewhat of a cross-roads: given the wide gulf between the Applicant’s evidence and contentions in previous proceedings and that in the present one, how can this evidence be reconciled?
A comparative examination of his evidence throughout his claims history, unfortunately, leads me to find that the Applicant has deliberately formulated of his evidence to advance each of his successive claims. A period of some 39 years elapsed from the 1974 St Kilda brawl and the Applicant’s first mention of his having PTSD as a result of that incident. Excepting the claim presently before the Tribunal, and despite a multitude of claims across 1994-2011, the Applicant has never raised the 1974 St Kilda brawl as causative (to any extent) of either his anxiety disorder (one of his originally-claimed conditions, although he has not agitated it here), or PTSD. As noted by Counsel for the Respondent, there is absolutely no mention whatsoever of the 1974 St Kilda brawl as a causative factor of the Applicant’s PTSD in any document before the Tribunal until its notation (but not definitive diagnosis) by Dr Lawford in July 2013.
To my mind, what is more telling against the Applicant is the actual content of his detailed written and oral statements put before decision-makers over a period of something like 25 years. Those earlier (i.e. pre-2013) written and oral statements disclose that his PTSD was apparently caused by a series of other incidents. There is no mention of the 1974 St Kilda brawl.
The Applicant’s “List of Events in Chronological Order”
Doctors Haik and Dinnen are both psychiatrists who examined the Applicant in 2001. Each of these psychiatrists was provided with a document from the Applicant entitled “List of events in chronological order that have contributed to my Generalised Anxiety Disorder and Post traumatic Stress Disorder”.[86] This document comprises six and a half pages of closely-typed, single-spaced commentary. Nowhere in this “List of events” is there any reference to the 1974 St Kilda brawl.
[86] See Exhibit 7.
At the foot of the fifth page, the Applicant refers to the 1974 collision incident on board the HMAS Vampire, specifically, the one involving the fishing trawler in the Brisbane River where the Applicant thought he would be trapped below-deck:
I still suffer flashbacks, of that day, I wake up in the middle of the night constantly screaming out looking for and [sic] escape route through a wardrobe or window, nor knowing where I am. My wife always pacifies me and calms me down and brings me back to reality.
My anxiety/stress levels have increased over the years to the extent that when I now get stressed I become light headed and dizzy and have on one occasion blacked out.[87]
[87] Ibid, p 5.
The Applicant’s Evidence to the Tribunal in 2003
Both reports of Drs Haik and Dinnen are predicated on the basis of this evidence. It is, in essence, the evidence the Applicant gave to the VRB in 2001 and to this Tribunal in 2003. The Tribunal’s decision in the 2003 matter notes the Applicant gave evidence of four incidents that he contended were causative of his claimed conditions including that of PTSD:[88]
(a)while serving on the HMAS Vampire on 1-2 December 1972, he experienced extreme conditions and huge seas with the gale lasting for three days;
(b)in 1972 when the HMAS Vampire was in port in Hong Kong, the Applicant was posted to sentry duty with an unloaded rifle. He said he felt frightened and helpless being in an isolated, strange place in darkness;
(c)the aforementioned collision incident in June 1974 between the HMAS Vampire and the British supply ship RFA Tidespring resulting in the Applicant fearing he would be washed overboard and drowned. He told the Tribunal in 2003 that he became “frightened and stiff with fear”; and
(d)the aforementioned collision incident in August 1974 between the HMAS Vampire and a fishing trawler on the Brisbane River where, due to an apparent fear of being trapped below deck, the Applicant felt an overwhelming fear and helplessness.
[88] Exhibit 5, T-Documents, T 36, pp 239-241, [8]-[14].
The Applicant’s Evidence in Support of His 1994 Claim
The flavour of the evidence given in 2003 before the Tribunal seems to have had its genesis in an earlier claim in 1994.[89] In that claim, the Applicant said his asserted psychological symptoms:
…can be attributed to working under stressful conditions. During my time in the Navy in operational areas, I can recall at least three occasions where the H.M.A.S. Vampire had collisions with other ships at sea, and as I was working below deck when most of these events took place, and had no idea of the magnitude of the impending accidents, these circumstances were extremely stressful at the time. I can clearly recall one incident when hands were called to emergency stations, and I had only a short time to get out on to the upper deck, before all water tight [sic] hatches were closed and secured. That particular incident is firmly entrenched in my mind.[90]
[89] Ibid, T 4, p 19.
[90] Ibid.
The consistent theme of specific incidents aboard the HMAS Vampire as the causative factors for his anxiety and PTSD is thus clearly apparent from the Applicant’s ventilation of this matter from 1994-2003. At no point is there any mention whatsoever of the 1974 St Kilda brawl as a causative factor.
Job Applications in 2006
In 2006, the Applicant applied for positions with Australia Post and Spotless Catering, respectively. Both of those employers provided the Applicant with pre-employment questionnaires, to be completed by him.[91] Both questionnaires appear identically-worded. This is how the Applicant responded to certain specific questions:
[91] Ibid, ST 5, pp 458, 472.
Do you have or have you ever had the following? Please answer all questions by writing YES or NO in the box [DO NOT TICK]
Item No
Condition
Yes or No
…
…
…
27
Depression?
No
28
Stress at work?
No
29
Anxiety, nervous illness or breakdown which you have discussed with a doctor or counsellor?
No
30
Mental illness such as Schizophrenia or Bipolar disorder?
No
31
Conflict at work that required medical treatment or counselling?
No
…
…
…
38
Epilepsy, fits or blackouts?
No
39
Dizzy spells, fainting, attacks of unconsciousness?
No
…
…
…
The answers given by the Applicant are squarely at odds with what the Applicant told decision-makers in 1994, 2001 and 2003. It seems the Applicant not only tailors his evidence to suit a particular claim, he likewise tailors it to take advantage of employment opportunities as well.
The Applicant’s Evidence Given in the 2011 Claim
In the 2011 claim, the Applicant gave evidence to the VRB to the effect of the following: “He has gotten over his PTSD; it has no relevance any more; it has not been an issue for 15 years.”[92] In written submissions in support of this claim, he told the VRB that PTSD and generalised anxiety disorder did not “impact on my daily activities.”[93] The Applicant’s General Practitioner, presumably upon instructions from the Applicant, told the VRB (in written evidence) that the Applicant was “…currently suffering no symptoms related to PTSD, general anxiety…”.[94] Again, this evidence is squarely at odds with his evidence in 2003 (and, of course, 2001 and 1994), to the effect that (1) he was suffering from PTSD, and (2) that it was caused by his naval service.
[92] Ibid, T 31, p 190.
[93] Ibid, p 196.
[94] Ibid, p 197.
The next – and current – stage in the evolution of the Applicant’s evidence about the causes of his PTSD is to be found in the version he has told Dr Lawford. This divergent and glaringly inconsistent, evidence does the Applicant’s credibility no favours. Similarly, this latest claim, predicated as it is on the 1974 St Kilda brawl as the primary causative factor for his PTSD and materialising as it does in December 2013, barely five months after Dr Lawford’s notation of “symptoms very suggestive of PTSD” on 29 July 2013, is, to my mind, more than indicative of a pre-disposition in the Applicant to reinvent history to suit the given clam he is propounding at a given time.
An Alternate Explanation for the Re-Configuration of the Applicant’s Evidence
The all too often stark reality of these sorts of applications is that they exist to propagate allegations of the type now propounded in an effort to meet the “alone” test for the special or intermediate rate pensions. The Applicant’s claims history thus far demonstrates previous decision-makers have rejected his claims on the basis that he had psychiatric conditions that were not service-related. Consequently, previous decision-makers found that the Applicant’s service-related physical conditions alone did not prevent him from engaging in remunerative work.
Findings: Does the Applicant Suffer from PTSD?
The relevant question is whether I am reasonably satisfied that the Applicant suffers from PTSD. I recognise that it is not necessary for me to apply the SoP definition of PTSD,[95] although that definition may nevertheless be helpful, particularly as it references the Diagnostic and Statistical Manual of Mental Disorders (Fifth Edition) (“DSM-V”) criteria for PTSD. It is worthwhile mentioning, however, that the relevant SoP amends the DSM-V criteria for its own specific purpose.
[95] As noted by the Respondent in Exhibit 3, p 8, [48.2], citing Repatriation Commission v Warren (2007) 95 ALD 606.
The Respondent has sought to argue that a “critical element of Dr Lawford’s diagnosis [of PTSD] is his acceptance of the occurrence of a Criterion A event and that Criterion’s [sic] B, C, D and E are satisfied and related to that event.”[96] The Respondent then submitted that the abovementioned DSM-V criteria are not satisfied in the case of the Applicant.[97]
[96] Exhibit 3, p 8, [49].
[97] Ibid, pp 8-9, [50]-[53].
I note that “it is not sufficient to simply check off the symptoms in the diagnostic criteria to make a mental disorder diagnosis”,[98] and the writers of the DSM-V themselves warned that:
...dangers arise because of the imperfect fit between the questions of ultimate concern to the law and the information contained in a clinical diagnosis.[99]
[98] DSM-V, p 19.
[99] Ibid, p 25.
Rather, the writers of the DSM-V emphasised that it is intended as a clinical tool and “the relative severity and valence of individual criteria and their contribution to a diagnosis require clinical judgment.”[100] Essentially, they seem to be warning lawyers not to try their hands at playing doctor; clinical judgment and experience is of some value.
[100] Ibid, p 19.
In this context, and to make the correct and preferable decision, I must therefore weigh what medical evidence exists as to the Applicant’s mental state and the various views of his doctors. Reference to the DSM-V is of some use in contextualising their reports, but I do not consider that it should be the Tribunal’s lodestar in determining whether the Applicant in fact suffers from PTSD. The answer to that question must be divined from the medical evidence.
Helpfully, the Full Court of the Federal Court in Bawden provided some guidance on how to proceed, especially in cases of PTSD:
While there is no onus on a veteran to attach a label to the disease or injury manifest in his or her symptoms, if the disease or injury is alleged to be PTSD, the question of diagnosis is squarely raised and must be resolved.
…
…The point for present purposes is that PTSD can only be diagnosed as an illness or disease in terms of a traumatic event. It may be that, as Dr White suggested in his evidence before the Tribunal, there are PTSD-like diseases not falling within the DSM-IV description, such as, for example, an adjustment disorder or a depressive disorder. The decision-maker needs to consider whether the veteran’s symptoms manifest any illness or disease resulting in incapacity. But, to the extent that the claim is for incapacity from PTSD and a decision-maker is not satisfied that a traumatic event produced those symptoms, the decision-maker cannot proceed to a diagnosis of PTSD.[101]
[my emphasis]
[101] Repatriation Commission v Bawden [2012] FCAFC 176, [45], [47].
Thus, if the Applicant is to be found to suffer from PTSD, I must not only be satisfied that the Applicant suffers from symptoms concordant with PTSD, but also, as noted in DSM-V, those symptoms must be found to relate back to or be associated with the traumatic event the Applicant purports to have caused his PTSD.
DSM-V considers the following to be “traumatic event(s)” for the purposes of diagnosing PTSD: “Exposure to actual or threatened death, serious injury, or sexual violence”.[102] Notably, DSM-V also notes that the symptoms associated with the traumatic event must not be “attributable to the physiological effects of a substance (e.g., medication, alcohol) or another medical condition.”[103]
[102] Ibid, p 271.
[103] Ibid, p 272.
What Symptoms does the Applicant Purport to Show?
There is evidence dating back more than twenty years supporting the proposition that the Applicant suffers from some form of mental health condition. However, this evidence is, at best, deeply conflicted.
On the balance of the above medical evidence, the more recent and compelling medical evidence supports the notion that the Applicant suffers from symptoms which may be attributed to PTSD. However, that is insufficient for me to be reasonably satisfied that the Applicant suffers from that condition. Rather, I must be satisfied that these symptoms were “associated with the traumatic event(s), beginning after the traumatic event(s) occurred”.[104]
[104] DSM-V, pp 271-272.
Was the St Kilda Brawl a Traumatic Event?
In the present application, the Applicant seeks to rely on the St Kilda brawl as being the traumatic event to which his asserted PTSD is associated.[105] In particular, he sought to rely on the diagnosis made by Dr Lawford,[106] which linked his PTSD to the St Kilda brawl, and also referred to secondary issues being “due to my PTSD. After trauma knife fight in March 1974”.[107]
[105] See Exhibit 1.
[106] Exhibit 5, T-Documents, T 32, p 201.
[107] Ibid, p 202.
With respect to the seriousness of the St Kilda brawl, the Applicant stated in his Veteran’s Statement that “…Five of us were injured very seriously…”. This perspective was echoed by Mr K. R. Skimmings, a retired CPO Coxswain, whose buck’s night the sailors had been celebrating when they became involved in the St Kilda brawl:
…they weilded [sic] knives broken bottles etc, I personally was attacked by at least 5 of these sharpies. I was stabbed in the back twice, kidney area, I was held down and a bottle was broken and screwed into the side of my face, all my friends (as above) received the same type of injuries & punishment from these thugs. We were truly in a life threatening situation…. All my mate’s [sic] had suffered serious injuries… All of the above mate’s [sic] were injured in a serious way that night we all feared for our lives.[108]
[108] T-Docs, pp 267-268.
Mr Neil Bryan, retired LCDR, also wrote of the attack on Mr Skimmings in 2013:
I recall him being bashed over the head with a bottle, stabbed with a knife several times and Jim and I rushed to his side to assist him and ward off our assailants. All the time the attack continued and both Jim [the Applicant] and I were wounded by the bottles and other weapons including knives that were being used. I remember Jim being cut on one of his hands as he tried to ward off his attackers.[109]
[109] Ibid, p 255.
These unofficial reports should be compared to the official “Report of Proceedings” of the ship on which the men were serving, dated 1 April 1974. That Report refers to the event thus:
An unfortunate incident occurred in St Kilda, Melbourne when a number of sailors were provoked into a brawl during which five suffered either knife or broken bottle wounds. The Victorian Police arrested two known criminals in connection with the woundings. One of these criminals has since been arrested and charged with two murders and other violent crimes which took place a week after the brawl.[110]
[110] Ibid, p 253.
Curiously, the Applicant’s representatives did not call any evidence at the hearing in support of the notion that the Applicant or others in his group had suffered “serious injuries” as a result of the St Kilda brawl. Neither the Applicant, Mr Bryan, nor Mr Skimmings was called to either give evidence or be cross-examined, and no police reports into the incident were adduced. Indeed, from the evidence before me, it does not appear that the Victorian Police ever charged anyone with crimes relating to this brawl. In a similar vein, the Historical Record of the Applicant’s service does not mention his suffering from any injury that would impair his capacity to perform his duties.[111]
[111] Ibid, pp 6-12.
I find it difficult to accept the idea that Mr Skimmings would have suffered the injuries he described and such injuries – surely amounting to grievous bodily harm and purportedly requiring that he take three weeks’ medical leave – were left unmentioned in the ship’s Report of Proceedings. I also find the Applicant’s failure to call evidence to shed light on this incident or even mention it before mentioning it to Dr Lawford troubling.
Clearly, I have been presented with two different pictures. In one, the Applicant and his friends were set upon by armed and dangerous thugs who threatened their lives and occasioned serious injury upon them. In the other, there was a brawl where the Applicant or his companions suffered some knife or bottle wounds. While on its face, there does not appear to be too great a gulf between these differing portrayals of the brawl, that is not the case. The Applicant’s version, if accepted, would lead to a finding that he was exposed to actual or threatened death or serious injury. The alternate version of events is far more equivocal: it points to no-one suffering serious injuries. Rather, at best for the Applicant, it may show he was exposed to the threat of serious injury.
On balance of the evidence and given knives and broken bottles were undoubtedly involved in the brawl, I am prepared to accept that, at the very least, the Applicant was exposed to the threat of serious injury, even if none may have actually occurred. Consequently, I am reasonably satisfied that the Applicant was exposed to a traumatic event.
Are the Applicant’s Symptoms Associated with the St Kilda Brawl?
While I am satisfied that the Applicant was exposed to a traumatic event, that is not enough for me to find that he suffers from PTSD. Rather, I must be satisfied that, on the basis of the whole of the evidence before me, what symptoms he may suffer are associated with the St Kilda brawl. For the reasons below, I find that they are not.
The Applicant seeks to rely on the report of Dr Lawford, who referred to four ways in which the Applicant suffers from symptoms associated with the brawl in St Kilda:
·He has recurrent and intrusive distressing recollection of events, including images and thoughts during the day and has some recurring distressing nightmares related to the event.
·He has intense psychological distress and physiological reactivity when confronted with cues that remind of the event.
·He has persistent avoidance of stimuli associated with the trauma, that is, he avoids reunions and navy events.
·Numbing of general responses not present before the trauma.[112]
[112] Exhibit 5, T-documents, T 40, p 274.
For the purposes of this report, “The events that were important [i.e. that are related to the Applicant’s purported PTSD] were physical assault and attack and seeing someone hurt.”[113] Crucially, Dr Lawson reported that “The veteran dates his problems as beginning in 1974”,[114] and concluded that “It appears that his condition began some time in 1974.”[115]
[113] Ibid.
[114] Ibid, p 271.
[115] Ibid, p 274.
Interestingly, Dr Lawford’s report is the first time the Applicant mentioned nightmares related to the St Kilda brawl. Every other time nightmares or sleep disturbances are mentioned in the medical reports – and they do not come up infrequently – it is in relation to the collisions he experienced while aboard the HMAS Vampire. I have comprehensively set out the other issues with Dr Lawford’s evidence above. Ultimately, I do not consider his evidence that the Applicant is suffering from PTSD compelling, for the reasons stated above.
Overall, I find the Applicant’s claim history irreconcilable with the fact the Applicant now purports to have been suffering from PTSD as a result of the St Kilda brawl, especially where there is no record of the Applicant so much as mentioning the brawl to his treating doctors before he sought to lodge the present claim. When one looks to the totality of the evidence, it becomes abundantly clear that the Applicant does not suffer from PTSD arising from the St Kilda brawl. Rather, he has, over the course of more than twenty years, changed his story with every new claim in the hope that each successive claim would bring him closer to attaining a higher rate of compensation.
In these circumstances, I simply cannot be reasonably satisfied that the Applicant suffers from PTSD. Dr Lawford’s present evidence – and the case the Applicant sought to run at the hearing – fundamentally undermines the Applicant’s previous claimed grounds for suffering from PTSD. However, those same grounds, in addition to the vast array of medical evidence from the Applicant’s previous claims, have hamstrung his present case. There is, frankly, no sufficiently consistent line of diagnoses or evidence on which to ground a reasonable satisfaction that the Applicant suffers from PTSD, as he purports. Consequently, I cannot find that he suffers from PTSD, so the Respondent is not liable for this asserted condition.
EVEN ASSUMING A DIAGNOSIS OF PTSD, IS THERE A LINK WITH THE APPLICANT’S SERVICE?
For the sake of completeness and out of an abundance of caution, I will canvass a theoretical scenario of the Tribunal accepting Dr Lawford’s diagnosis of PTSD. For present purposes, it would be necessary (1) for the Tribunal to make a finding that a hypothesis is raised in terms of the relevant SoP and (2) to accept that the relevant causative factor as being the 1974 St Kilda brawl. That, however, is not the end of the exercise. The Tribunal must also be satisfied, on the balance of probabilities, that the relevant factor comprising the 1974 St Kilda brawl is connected with the Applicant’s service.
Section 70 of the VEA provides as follows:
70 Eligibility for pension under this Part
…
3For the purposes of this Act… an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peace keeping service, as the case may be, of the member;…
Having regard to the totality of the evidence before the Tribunal, I have grave difficulty in being satisfied that the circumstances of the 1974 St Kilda brawl was an event that arose out of or was attributable to this Applicant’s defence service.
It was contended on behalf of the Applicant that although he was on shore leave, he was nevertheless dressed in service uniform at the time of the 1974 St Kilda brawl. On this basis, contends the Applicant, this event is connected with his service. The Applicant’s Advocate took the Tribunal to the decision of the High Court in Roncevich v Repatriation Commission (2005) 222 CLR 115 wherein the Court made it clear that “defence-caused” should be given a broad meaning and that a causal link or connection need not fulfil additional criteria such as “sole, dominant, direct or proximate”. Applied to present circumstances, this test is not limited to whether the 1974 St Kilda brawl arose out of a specific task the Applicant was directed to perform. The test is of broader scope so that the question becomes: was the injury that the Applicant says arose out of the 1974 St Kilda brawl attributable to any defence service of the Applicant?
The Respondent referred the Tribunal to two authorities that dealt with the question of whether an event giving rise to an injury arose out of or in the course of an applicant’s employment. In Comcare v PVYW,[116] the High Court said the enquiry is one of whether the claimed injury is referable to the specific employment activity or the place in which the injury is said to have been sustained. Of perhaps more relevance for present purposes is the authority of Smith and Repatriation Commission (“Smith”).[117] That case involved events that occurred while an applicant was on shore leave. Senior Member McCabe[118] found that events occurring while the Applicant was on shore leave were attributable to his defence service. However, Smith can be distinguished from the circumstances presently before the Tribunal because the facts in Smith involved two separate events that each occurred on two separate occasions while that Applicant was on shore leave. The two separate events were capable of differentiation when one had regard to what Mr Smith was required to be doing on each occasion. On the first occasion, the Tribunal could not find any connection with Mr Smith’s service because the only factor indicating any sort of connection was that at the time of this first event, the Applicant was (1) a serving member of the armed forces and (2) that he was on shore leave.
[116] [2013] HCA 41.
[117] [2015] AATA 786.
[118] As he then was, now Deputy President McCabe.
Comparatively, the second incident involved a specific direction to Mr Smith to go to a certain place and attend a certain function and upon completion of that function, he was further directed to make his own way back to the vessel. The subject incident occurred while Mr Smith was on his way back to the vessel. There is thus a clear difference between this second incident involving Mr Smith and the factual circumstances of the 1974 St Kilda brawl propounded by the Applicant now before the Tribunal. It is beyond argument that Mr Smith had been required to be at a certain place at a certain time, to attend or perform a certain function and to then return to the vessel. On that basis, a sufficient connection between the event (comprising the second incident) and Mr Smith’s service was found by the Tribunal.
This finding, to my mind, squares with the High Court’s view in PVYW v Comcare involving, as that matter did, the analogous exercise of whether an employee’s injuries can still be found to arise out of or in the course of that employee’s employment. In other words, by having regard to the specific activity or specific place in which the claimed event has occurred, it is possible to attribute an incident to a person’s employment and/or service even though the person is not engaged in his/her actual or regular mode of work. The critical point is that such a finding can only be made in strictly defined circumstances.
Can those strictly defined circumstances be found in the 1974 St Kilda brawl? I think not, for the following reasons:
(i)at the time of the 1974 St Kilda brawl, the Applicant was doubtless a serving member of the RAN;
(ii)at the time of the 1974 St Kilda brawl, the Applicant was in uniform but this was not a stipulation of his employment nor was it a direction from any person in authority. The choice to wear the uniform was entirely his;
(iii)as a then young man in uniform he, perhaps understandably, thought he would be more appealing to members of the opposite sex while out ‘on the town’ than if he wore civilian clothes. One other member of the Applicant’s group was also in uniform and the remaining members were in civilian clothes;
(iv)the evidence confirms the Applicant and his group of friends were in St Kilda to attend a friend’s bucks night. There is no evidence to suggest that either the Applicant or the group as a whole had to take their shore leave at a certain place, for a certain function and, once that function had finished, to then make their own way back to the vessel as was the case with Mr Smith’s second incident as a result of which the necessary connection was found.
There is authority to suggest that the law can come to the aid of a claiming applicant in circumstances where an event occurs even in a social context. The critical point is, however, that there must be some sort of formal direction about how that social time is to be expended by a claiming applicant. The Respondent helpfully referred the Tribunal to a decision of Justice Kiefel[119] in Comcare v Mather and Mitchell.[120]
[119] As Her Honour then was, now Chief Justice of the High Court of Australia.
[120] (1995) 56 FCR 456.
In that case, two members of the army were serving in the Northern Territory and were due to have a night out. They were specifically directed to avoid attending a list of pubs in Darwin and were further specifically directed that they could attend certain other pubs. The servicemen attended the pubs that they were directed were in order to attend. On their way back from their night out, they were both struck by a truck. One serviceman died while the other was severely injured. Her Honour found that because of the specific direction to attend certain pubs and not to attend other pubs, there was a sufficient connection between the event giving rise to the surviving serviceman’s injuries and the rendered defence service.
The Applicant’s Advocate contended at the hearing that the connection between a given incident and a person’s service is a perpetual one. The Advocate submitted at the hearing:
I don’t think it [the Applicant’s service] started or finished at all because when you sign to be in the Armed Forces of Australia, you’re on 24 hour duty. Yes, there’s shore leave, and in some cases they do have shore leave, but that doesn’t take them away from the responsibility of being charged for a misdemeanour that they do whilst on service. So you can’t just say: ‘Stop, I’m not in the Armed Forces; Start, I now am.’ You can’t do that. You are on duty 24 hours a day and you get leave from the ship… you are still on and can be called. And I have a number of places where they have been called back to duty whilst on leave. So you can’t just stop because the contract is 24 hours. It’s not 8 till 5. It’s 24 hours and he was returning to work… he’s gone out, he’s going back to work and he got injured. Simple. It’s 24 hours.
Having regard to the totality of the factual circumstances of the Applicant’s shore leave on the night of the 1974 St Kilda brawl, I do not think such a submission is tenable. The circumstances of this case do not reach those of the second incident experienced by Mr Smith where a formal direction was given to attend a certain place for a certain function and, upon completion of that function, to return to the vessel. Even in a perhaps less formal and more social sense, as was the case involving the army servicemen in Comcare v Mather and Mitchell, there is no evidence of any such social-type direction or prohibition to either the Applicant or any member of his group on the night of the 1974 St Kilda brawl. It is, to my mind, beyond question that this Applicant and his group of friends were on shore leave and that they were in a position of being able to do whatever they wanted to do.
What was actually done by the Applicant (and his group) was to become involved in an argument, albeit a physical argument, with another group. As such, there cannot be any connection between the event comprising the 1974 St Kilda brawl and the Applicant’s defence service. Accordingly, the provisions of s 70(5)(a) are not met because the injury or disease now propounded by the Applicant as arising from the 1974 St Kilda brawl did not arise out of nor was it attributable to his defence service.
THE REMAINING TWO CLAIMS: EPILEPSY AND ALCOHOL ABUSE DISORDER
Epilepsy
I have two primary difficulties with the Applicant’s claim for epilepsy. The first difficulty with this claimed condition is that there is, at best, a lack of convincing evidence as to a definitive diagnosis of the condition. The Applicant’s general practitioner (Dr Madden) told the hearing that a neurologist to whom the Applicant had been referred (Dr Stephen Read[121]) thought the Applicant had epilepsy. However, a closer perusal of Dr Read’s reports indicates a more circumspect opinion. Dr Read said in his report of 18 November 2010:
I am a little suspicious the episode represents convulsive syncope rather than a true epileptic seizure, as he does have fairly frequent episodes of what sound [sic] like presyncope.[122]
[121] Dr Read’s reports appear at pp 209 – 217 of Exhibit 6 comprising “Bundle of Medical Records”.
[122] Ibid, page 210.
On 5 February 2013, Dr Read wrote:
I saw Mr Simpson today for review of the episodes which I attributed to focal epilepsy.
He has had no further episodes since I last saw him, and continues to take Epilim 200mg tds without any problems.[123]
[123] Ibid, page 217.
As I understood the oral evidence of Dr Madden and the written evidence of Dr Read, neither of them is definitive about a diagnosis of epilepsy. Rather, they nevertheless seem content to keep the Applicant on certain medication because that medication seems to be keeping any symptoms the Applicant may suffer at bay. I am not, however, reasonably satisfied that this constitutes a diagnosis of epilepsy.
The second difficulty with this claimed condition arises with respect to the relevant SoP. Even if the Tribunal were to accept the diagnosis of epilepsy as a condition which is service related (which I do not), serious misgivings arise due to the timing of the onset of that condition. According to the history provided by the Applicant, his asserted epilepsy arose in the immediate aftermath of the 1974 St Kilda brawl.[124] If this is the case, the Applicant cannot possibly meet any of the factors contained in clause 6 of the SoP. As identified by the Respondent, one of the factors in clause 6 that might be relevant to the Applicant involved a finding of him drinking at least 150 kilograms of alcohol within ten years before the clinical onset of the claimed epilepsy.[125] The clinical onset of a disease takes place “either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present.”[126] Having “fitting episodes” clearly meets this definition.
[124] See Exhibit 5, T Documents, p B 16.
[125] See SoP 76 of 2013 factor 6(l).
[126] See Re Robertson and Repatriation Commission (1998) 50 ALD 668, [23].
However, time is against the Applicant: he had only been serving in the navy for four years prior to 1974 and, on his own evidence, he says his alcohol consumption giving rise to his asserted epilepsy only increased after the 1974 St Kilda brawl.[127]
[127] See Exhibit 5, T Documents, p B 16.
I also note that on 15 April 2014, Dr Madden wrote of the Applicant:
no reason not to be driving
needs a form
no conditions
no fits for many years
on no medication for epilepsy[128]
[128] Ibid, ST 6, p 568.
In November 2010, Dr Madden reported that the Applicant “had a seizure in Las Vegas [on] 26/10/2010… no medical information… had one 15 years ago”.[129]
[129] Ibid, ST 6, p 594.
This would place at least one seizure as occurring in or around 1995. The evidence seems to be that, in that period, the Applicant drank less than 30 grams of alcohol per day and was not dependant on it.[130] Regardless of whether the onset of the condition (assuming that it had been satisfactorily diagnosed) was in 1995 or in 1974, the evidence does not support the notion that the Applicant was consuming alcohol to the level required by the SoP – 150 kilograms over the course of ten years – in the decade before the onset of the Applicant’s fitting episodes. Due to the absence of this evidence, this element of the Applicant’s claim must fail.
[130] Ibid, T 6, p 26; ST 7, p 772.
Alcohol Abuse Disorder
I have significant misgivings about whether this asserted condition has been established on the evidence. As was the case with the claimed epilepsy, the Applicant does not refer to which factor mentioned in the relevant SoP is said to have caused the claimed alcohol abuse disorder. Again, even if the Tribunal were to accept that the Applicant suffers from alcohol abuse disorder, a fatal difficulty arises in terms of the Tribunal being reasonably satisfied that this claimed condition had a sufficient connection with the Applicant’s defence service. The relevant SoP (No 2 of 2009 as amended by No 30 of 2014) clearly requires this condition to be connected with the circumstances of the Applicant’s relevant service. Neither of the two relevant factors (6(a) and 6(b)) are met because:
(i)I have found that PTSD was not defence caused; and
(ii)in any event, I have found that the only Category 1A stressor on which the Applicant could possibly rely – the 1974 St Kilda brawl – was not connected to his service.
As noted by the VRB in the decision under review,[131] the Applicant has an accrued right to have this claim for alcohol abuse disorder considered in light of the SoP that was in force at the time of the decision. That would be instrument No 9 of 2009 relating to Alcohol Dependence and Alcohol Abuse. That particular SoP requires a diagnosis based on the requirements of DSM-IV. Factors 6(a) and 6(b) of the 2009 SoP are identical to the 2014 SoP. The outcome would thus be the same for the Applicant even if this claimed condition were considered in light of the 2009 SoP.
[131] Ibid, p B 10.
Consequently, this limb of the Applicant’s claim must also fail.
INCREASE IN DISABILITY PENSION: SPECIAL RATE, INTERMEDIATE RATE AND THE EXTREME DISABLEMENT RATE
In his amended Statement of Facts, Issues and Contentions received by this Tribunal on 15 September 2016, the Applicant:
…seeks review of a decision… of the Veterans’ Review Board (VRB)… [dated] 9 June 2015 rejecting the… claim for PTSD, Alcohol Use Disorder and Epilepsy and confirming that the… disability pension should continue at 100% of the general rate.[132]
[132] Exhibit 1, Applicant’s amended SFIC – second tranche of documents comprising nine pages: see page 1 of 9.
I will now therefore address the question of whether the Applicant is entitled to receive the pension at a rate greater than 100% of the General Rate.
The Special Rate can be paid to a veteran who:
(i)suffers from a total and permanent incapacity, which was war or defence-caused, and which, alone, prevents the veteran from undertaking paid work for more than eight hours per week; and
(ii)is prevented from continuing paid work solely because of accepted disabilities and, as a consequence, is suffering a loss of earnings; and
(iii)is under 65 years of age and is not working, but has been genuinely seeking work. In those circumstances, an Applicant will be considered to have been “prevented from continuing paid work solely because of accepted disabilities” if the accepted disabilities are the substantial cause for remaining out of the work force.
The Intermediate Rate has the same criteria as apply to the Special Rate, save that the veteran must be incapacitated for work other than on a part-time or intermittent basis.
I have made certain findings about each of the claimed conditions of PTSD, epilepsy and alcohol abuse disorder. Those findings are, in essence, that none of the three conditions are connected to the Applicant’s service.
However, I have found that the Applicant exhibits some symptoms of mental health issues, albeit ones unconnected to his defence service. Consequently, even if I were to find that the Applicant was wholly prevented from working either full or part-time by the conditions from which he purports to suffer, I cannot find that his accepted conditions, alone, prevented him from continuing paid work. This is particularly the case where the Applicant’s mental health issues are propounded by him and his representatives as being sufficiently significant that they prevented him from attending the hearing in this matter. Therefore, I am not satisfied that the Applicant’s accepted conditions, alone, prevented him from undertaking remunerative work.
I note that no evidence was led by the Applicant’s representatives regarding whether he has been seeking more remunerative work. In these circumstances, I am also unable to find that the Applicant’s accepted conditions are the substantial cause of his inability to obtain work. Thus, he cannot meet the so-called ‘ameliorating provisions’ contained in ss 23(3) and 24(2) of the VEA.
As a result of the above, I find that the Applicant is not entitled to the pension at either the Special or the Intermediate Rates.
The Extreme Disablement Adjustment is payable to veterans who are severely incapacitated by service-related incapacity but who are not eligible for a pension at either the Special or Intermediate Rate. This level of pension is payable to a veteran who must:
(i)be at least 65 years of age;
(ii)have a degree of incapacity of 100%; and
(iii)have a medical impairment rating for accepted disabilities of at least 70 points, and a lifestyle rating of at least 6.
The Applicant is not eligible for disability pension at this rate because he is under 65 years of age.
The Applicant does not meet the alone test in s 24(1)(c) or s 23(1)(c) of the VEA and thus is not eligible for disability pension at either the Special or Intermediate Rate. He has not attained the age of 65 years and is not eligible for disability pension at the Extreme Disablement Adjustment rate. The highest rate of disability pension thus payable to this Applicant is 100% of the General Rate.
SUMMARY OF FINDINGS
The five abovementioned issues before the Tribunal can thus be answered as follows:
(a)does the Applicant suffer from PTSD?
Answer: No;
(b)even if the Tribunal were to find that the Applicant does suffer from PTSD, should the Respondent be liable to the Applicant for this condition?
Answer: No;
(c)whether the Applicant suffers from alcoholism, and whether the Respondent should be liable to him for that condition?
Answer: No to both the diagnosis and the liability of the Respondent;
(d)whether the Applicant suffers from epilepsy, and whether the Respondent should be liable to him for that condition?
Answer: No to both the diagnosis and the liability of the Respondent; and
(e)whether the Applicant is entitled to a disability pension above his current rate of 100% of the general rate?
Answer: No.
CONCLUSION
Accordingly, the decision under review is affirmed.
I certify that the preceding 186 (one hundred and eighty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
...................[sgd].....................................................
Associate
Dated: 28 February 2018
Date of hearing: 14 June 2017 Advocate for the Applicant: Mr Bob Richards Counsel for the Respondent: Mr Ben Dube Solicitors for the Respondent: Australian Government Solicitor
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