Skurrie and Repatriation Commission
[2008] AATA 1093
•8 December 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1093
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0880
VETERANS' APPEALS DIVISION ) Re TREVOR SKURRIE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Brigadier C. Ermert, Member
Dr K. Breen, Member
Date8 December 2008
PlaceMelbourne
Decision The Tribunal sets aside the decision under review and substitutes the decision that Mr Skurrie’s condition of alcohol dependence is war-caused. The Tribunal remits the matter to the respondent for the determination of the revised rate of pension to be paid as a result of this decision, taking into account the further decision of the Tribunal that Mr Skurrie is not eligible for the payment of pension at the special rate. (sgd) Conrad Ermert
Member
VETERANS’ AFFAIRS ‑ operational service ‑ diagnosed conditions – alcohol dependence – PTSD ‑ four stages of Deledio reasoning ‑ hypothesis connecting conditions with operational service ‑ Statements of Principles ‑ whether hypothesis fits Statement of Principles – alcohol dependence found to be war-caused ‑ re-assessment of level of incapacity – incapacity of 70 per cent ‑ whether eligible for special rate – decision set aside – pension to be paid at new rate – not eligible for payment at special rate.
Veterans’ Entitlements Act 1986
Re Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
8 December 2008 Brigadier C. Ermert, Member
Dr K. Breen, Member
INTRODUCTION
1. Mr Trevor Skurrie, the applicant in this case, served in the Australian Army from 1 May 1968 to 1 May 1970 and had operational service in South Vietnam from 21 May 1969 to 18 March 1970. While in South Vietnam Mr Skurrie was posted to a section of 1 Armoured Regiment Light Aid Detachment (LAD), a small technical unit dedicated to providing battlefield repair and recovery assistance to a squadron of 1 Armoured Regiment. Mr Skurrie was employed as the driver of an Armoured Recovery Vehicle (ARV), a vehicle similar to a Centurion tank designed to pull or tow, that is recover, disabled or damaged battle tanks off the battlefield. During Mr Skurrie’s time in South Vietnam the LAD supported the operations of B Squadron and then later A Squadron of 1 Armoured Regiment.
2. While in South Vietnam Mr Skurrie had four particular experiences which he reported as stressful. The first (Stressor 1) occurred on the morning after a night ambush operation, when he was told that a loud explosion he heard was caused by Australian infantry soldiers using Claymore mines to blow up enemy bodies. The second reported experience (Stressor 2) was the smell of dead bodies and the sight of a dead enemy soldier lying beside a track. The third experience (Stressor 3) was when the tank squadron came under attack from machine gun fire and one tank became stuck on a broken tree. Mr Skurrie reversed the ARV away from the immediate site and, when the machine gun fire stopped, he drove forward to recover the tank off the tree and tow it about 200 metres away. The fourth experience (Stressor 4) was when he was required to tow a disabled tank along a track in a rubber plantation, at risk of enemy mines which could have been laid under the track.
3. After returning from South Vietnam Mr Skurrie re-commenced employment with Victorian Railways, working at Stawell and then at Ararat. He was having confrontations with other staff members and was drinking a lot. He often became intoxicated and was not able to work in the mornings. In 1996 he was finding it difficult to cope with the work and accepted a redundancy package. After a period on unemployment benefits, Mr Skurrie took on a two-week cleaning job and then found employment with an IGA supermarket making home deliveries. He worked there for five years but became increasingly irritated with his work colleagues. He would drink to excess and take his frustrations out on his wife. On 5 May 2006 Mr Skurrie felt that he had had enough and decided to cease work. He has not worked since that day. Mr Skurrie contends that if he were free from his alcohol addiction and his anxiety condition he would still be working for IGA and he would not be suffering a loss of remuneration.
4. Mr Skurrie claimed that his alcohol dependence and posttraumatic stress disorder (PTSD) were war-caused conditions. The respondent had already accepted that a number of Mr Skurrie’s other medical conditions were war-caused. If the Tribunal was to find that the alcohol dependence and PTSD was war-caused, Mr Skurrie’s level of impairment would increase to more than 70 per cent, which would make him eligible for consideration of a pension at the Special Rate.
5. On 17 October 2005 Mr Skurrie lodged an application with the Department of Veterans’ Affairs to have back problem, left knee, eye problem, nervous problems and substance abuse accepted as war-caused. On 24 May 2006 the delegate of the Repatriation Commission decided to accept the claim for lumbar spondylosis and osteoarthrosis of the left knee but refused the claim for alcohol dependence, night glare, bilateral presbyopia and bilateral hypermetropia and found no medical condition present to answer the claim for nervous problems. The delegate decided to increase Mr Skurrie’s disability pension to 50 per cent of the general rate. On 30 May 2006 Mr Skurrie lodged an application for a review of the decision with the Veterans’ Review Board (VRB). On 22 January 2007 the VRB decided to:
consent to the withdrawal of that part of the decision … relating to night glare, bilateral presbyopia and bilateral hypermetropia, to amend the diagnosis under review in relation to nervous problems to PTSD and affirm the decision under review
as amended, and to affirm the decisions in relation to alcohol dependence and the assessment of the rate of pension. This matter is an application for a review of that decision of the VRB.
THE HEARING
6. At the hearing Mr Skurrie was represented by Mr Dino De Marchi, solicitor, and the respondent was represented by Mr Gerry Purcell of counsel. The Tribunal heard evidence from Mr and Mrs Skurrie, Dr Nigel Strauss, a consultant and occupational psychiatrist, Dr Robyn Horsley, an occupational physician, and Dr John Mordike of Writeway Research Service. The Tribunal had before it the documents submitted by the respondent pursuant to s 37 of the Administrative Appeals Act 1975 (the T documents). The Tribunal took into evidence reports prepared by Drs Strauss, Horsley and Mordike, alcohol and work histories, a number of Mr Skurrie’s tax returns, a letter from Dr Henry Plange, Mr Skurrie’s GP, Mr Skurrie’s employment records from IGA and a bundle of four photographs of an ARV.
THE ISSUES
7. The first issue to be determined in this case is the diagnosis of the conditions claimed by Mr Skurrie.
8. The second, substantive, issue is whether those conditions are war-caused.
9. If the Tribunal finds that one or more of the claimed conditions is war-caused, the next issue to be determined is whether Mr Skurrie is eligible for payment of the disability pension at the special rate.
WHAT IS THE DIAGNOSIS OF MR SKURRIE’S CONDITIONS?
10. The Tribunal’s first task is to determine the diagnoses of Mr Skurrie’s conditions. The standard of proof to be applied is to the Tribunal’s reasonable satisfaction (Repatriation Commission v Budworth (2001) 116 FCR 200; Repatriation Commission v Cooke (1998) 90 FCR 307; and Repatriation Commission v Gosewinckel (1999) 59 ALD 690). Consistent with these cases, in Re Benjamin v Repatriation Commission (2001) 70 ALD 622 the Full Court of the Federal Court stated at 634:
…When the commission, or the tribunal on review, is required to determine whether a veteran is suffering from a particular injury or disease, that issue must be decided to the reasonable satisfaction of the decision-maker, in accordance with s 120(4) of the Act: …
11. The conditions to be considered are alcohol dependence and PTSD. They are considered in turn.
Alcohol Dependence
12. Mr Skurrie’s evidence was that while he was in South Vietnam he would drink 5 to 6 cans of beer every night and there were times when he would drink a lot more and pass out for the night. On his return from South Vietnam, he continued drinking about the same amount during the week but would drink more at weekends. He gave evidence of one occasion on which he passed out on the railway line after drinking at the pub and one ANZAC Day when he got so drunk that he was unable to get out of the car. Mr Skurrie stated that he has tried to reduce his alcohol intake for the last five years but still drinks around 3 to 4 stubbies of beer per night and still gets intoxicated on a regular basis. Mr Skurrie attributed the divorce from his first wife, in part, to his drinking.
13. In her evidence Mrs Skurrie confirmed her husband’s account of his drinking habits and also gave evidence of his increased drinking after the district football matches, when he would have eight to ten stubbies or more. She also gave evidence that although Mr Skurrie was trying to reduce his drinking he was having little success.
14. In their reports Doctors Strauss, D’Ortenzio and Senadipathy diagnosed Mr Skurrie as suffering the condition of Alcohol Dependence. Dr Strauss confirmed that diagnosis in his evidence to the Tribunal.
15. Alcohol Dependence is defined in the Statement of Principles (SoP) No 17 of 2008 as follows:
"alcohol dependence " means a psychiatric condition that meets the following diagnostic criteria (derived from DSM-IV-TR):
A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:
(1)Tolerance, as defined by either of the following:
(a)a need for markedly increased amounts of the alcohol to achieve intoxication or desired effect; or
(b)markedly diminished effect with continued use of the same amount of the alcohol.
(2)Withdrawal, as manifested by either of the following:
(a)the characteristic withdrawal syndrome for the alcohol; or
(b)the same (or a closely related) alcohol is taken to relieve or avoid withdrawal symptoms.
(3)The alcohol is often taken in larger amounts or over a longer period than was intended.
(4)There is a persistent desire or unsuccessful efforts to cut down or control alcohol use.
(5)A great deal of time is spent in activities necessary to obtain the alcohol (e.g., visiting multiple doctors or driving long distances), use the alcohol or recover from its effects.
(6)Important social, occupational, or recreational activities are given up or reduced because of alcohol use.
(7)The alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by the alcohol (e.g., continued drinking despite recognition that an ulcer was made worse by alcohol consumption).
16. In his submissions Mr Purcell accepted the evidence of Mr Skurrie drinking three to four stubbies before showing any effect and his need for markedly increased amounts periodically at the football club meets the requirement of tolerance (item (1)). There is evidence of Mr Skurrie taking larger amounts of alcohol than intended at the football club, to the extent of falling over on the way home (issue (3)). There is evidence of Mr Skurrie’s persistent and unsuccessful attempts to cut down or control his intake of alcohol (issue (4)), also conceded by Mr Purcell. There is also evidence of Mr Skurrie’s continued use of alcohol despite his knowledge of that use affecting his work, particularly on some mornings (issue (7)). In his submission Mr Purcell conceded that the diagnosis of alcohol dependence was properly made out on the basis of the SoP factors.
17. The Tribunal is satisfied that the diagnosis of alcohol dependence in the case of Mr Skurrie is correct.
Posttraumatic Stress Disorder
18. The applicant’s case is that Mr Skurrie suffers from PTSD. Mr Skurrie’s psychiatric condition has been studied and reported upon by three psychiatrists. Dr Senadipathy was the first psychiatrist to see Mr Skurrie (on 14 December 2005, T12). Dr Senadipathy diagnosed Mr Skurrie’s alcohol dependence and although he recorded that Mr Skurrie had suicidal thoughts when drinking heavily, had trouble sleeping and some social withdrawal, he was unable to elicit any symptoms of mental illness.
19. Dr D’Ortenzio interviewed Mr Skurrie on 4 September 2006 (T 25) and made a diagnosis of alcohol dependence and PTSD.
20. Dr Strauss interviewed Mr Skurrie on 28 August 2007 (Exhibit A5). He also concluded that Mr Skurrie suffered from alcohol dependence and PTSD. Dr Strauss gave evidence in person at the Tribunal. He explained that he did not rely on the criteria in the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM‑IV) for making a diagnosis of PTSD and that he regarded the relevant SoP as a bureaucratic invention to which he did not pay particular attention as a diagnostic tool. Nevertheless, based on his extensive experience in this field, Dr Strauss confirmed his diagnosis of Mr Skurrie’s psychiatric condition as PTSD.
21. As it is not open in law for the Tribunal to make its own diagnosis of Mr Skurrie’s mental health problems, the Tribunal must weigh the medical evidence before it. Without the benefit of questioning Dr Senadipathy about his findings and conclusions, we are not prepared to prefer his diagnosis over the diagnosis of PTSD offered by two experienced psychiatrists. Therefore, we are satisfied on the balance of probabilities that PTSD is the correct diagnosis.
ARE MR SKURRIE’S CONDITIONS WAR‑CAUSED?
22. The question of whether an injury or disease is taken to be war‑caused is covered in s 9 of the Veterans’ Entitlement Act 1986 (the Act). This section provides that:
(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service; …
23. There was no disagreement that Mr Skurrie’s service in South Vietnam constituted operational service. Thus the question of whether his conditions of alcohol dependence and PTSD are war‑caused is to be determined by applying s 120(1) and s 120(3) of the Act. Those sections provide that:
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note:This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
24. Section 120A of the Act provides that, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (RMA) has made an SoP in respect of a particular kind of injury or disease, the reasonableness of a hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which relevantly provides:
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
25. Section 196A of the Act provides for the establishment of the RMA. Section 196B(2) of the Act provides, in effect, that:
(2)If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a)operational service rendered by veterans; or
(b)peacekeeping service rendered by members of Peacekeeping Forces; or
(c)hazardous service rendered by members of the Forces; or
…
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service. …
26. The reference in s 196B(2) of the Act to a particular kind of injury, disease or death being related to service is expounded in s 196B(14) of the Act. Section 196B(14) provides that:
(14)A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a) it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; …
27. The conditions of alcohol dependence and PTSD are the subjects of SoPs. Therefore, the Tribunal must apply the test prescribed by s 120A(3) of the Act, as explained by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97, in the following way:
1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
28. The Tribunal applied those steps to each condition in turn.
ALCOHOL DEPENDENCE
Step 1 – Does the Material Point to a Hypothesis Connecting Alcohol Dependence with Mr Skurrie’s Operational Service?
29. The hypothesis advanced by Mr Skurrie is that he is suffering from alcohol dependence as a result of the increase in his alcohol consumption consequent upon experiencing a number of stressful events while on operational service in South Vietnam. Mr Skurrie gave clear evidence, which was not disputed, of the increase in his drinking while in South Vietnam. Mr Skurrie also gave evidence of the four stressful incidents which occurred during his operational service. The existence of the particular incidents or similar occurrences was supported in the evidence given by the historical researcher, Dr Mordike. Again there was no dispute that Mr Skurrie had experienced the specified incidents. There was further evidence, from Mrs Skurrie, that her husband consumes a high level of alcohol to this day. Three medical specialists have diagnosed Mr Skurrie as alcohol dependant.
30. The Tribunal is satisfied that there is material which points to a hypothesis connecting Mr Skurrie’s alcohol dependence with his operational service.
Step 2 – Is there an SoP in force?
31. Instrument Nº 17 of 2008 is the SoP relating to alcohol dependence and alcohol abuse. Thus, there is in force a relevant SoP determined by the RMA.
Step 3 – Does the Hypothesis Fit the Template of Instrument Nº 17 of 2008?
32. Before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence with a person’s operational service there must exist one of the factors listed in the relevant SoP.
33. Factor 6(b) requires the veteran to experience a category 1A stressor within the five years before the clinical onset of alcohol dependence. The category 1A stressors specified in clause 9 of the SOP include (a) experiencing a life‑threatening event. One of the events relied on by Mr Skurrie is Stressor 3, when a tank about 10 metres in front of the ARV being driven by Mr Skurrie became immobilised on a broken tree and came under machine gun fire from the enemy. Mr Skurrie was then required to reverse his vehicle out of the fire zone, later to come forward to recover the immobilised tank. Although there is no evidence of fire being directed at Mr Skurrie, the Tribunal is satisfied that an event involving enemy machine gun fire within ten metres is a life-threatening event.
34. In his report dated 28 August 2007 (Exhibit A5) Dr Strauss states his belief that Mr Skurrie’s alcohol dependence began while Mr Skurrie was in Vietnam. In his report dated 5 September 2006 (T25) Dr D’Ortenzio recorded his opinion that Mr Skurrie’s alcohol dependence commenced on his return from Vietnam. Mr Skurrie’s life-threatening event is clearly within the specified 5 year period for both diagnoses.
35. Factor 6(c) requires the veteran to experience a category 1B stressor within the five years before the clinical onset of alcohol dependence. The category 1B stressors specified in clause 9 include (b) viewing corpses or critically injured casualties as an eye witness. Mr Skurrie’s evidence, was that he witnessed an enemy corpse by the side of a road and was confronted by the smell of dead bodies (Stressor 2). The evidence was not disputed. This stressor was also experienced within five years of the diagnosed clinical onset of the alcohol dependence.
36. Arising from these considerations the Tribunal finds that the hypothesis meets one or more of the factors specified in Instrument No 17 of2008 and therefore meets the template of the SoP relating to alcohol dependence.
Step 4 - Reasonableness of Hypothesis
37. Following the reasoning in Deledio, as the hypothesis does contain these factors, it can neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. The Tribunal finds, therefore, that the hypothesis is reasonable.
38. The Tribunal must then proceed to consider, under s 120(1) of the Act, whether it is satisfied beyond reasonable doubt that Mr Skurrie’s alcohol dependence did not arise from his operational service.
39. Mr Skurrie gave undisputed evidence of the increase in his consumption of alcohol in Vietnam. Mrs Skurrie gave clear evidence to the Tribunal of the amount of alcohol still consumed by Mr Skurrie, despite her dislike of this habit. All three medical specialists diagnosed Mr Skurrie as having alcohol dependence. There is no evidence available to the Tribunal that Mr Skurrie’s alcohol dependence is not related to his operational service. The Tribunal also notes the concession by the respondent that the case for the war-causation of Mr Skurrie’s alcohol dependence is made out.
40. The Tribunal can not be satisfied beyond reasonable doubt that Mr Skurrie’s alcohol dependence did not arise from his operational service. Accordingly, the Tribunal finds that Mr Skurrie’s condition of alcohol dependence is war-caused in the meaning of the Act.
Posttraumatic Stress Disorder
41. The Tribunal applied the same process to determine if Mr Skurrie’s diagnosed condition of PTSD is war-caused.
Step 1 – Does the Material Point to a Hypothesis Connecting PTSD with Mr Skurrie’s Operational Service?
42. The hypothesis advanced by the applicant is that the Mr Skurrie is suffering from PTSD as a result of experiencing a number of stressful events while on operational service in Vietnam. Mr Skurrie gave evidence of a number of stressful incidents, detailed above as Stressors 1 to 4. The occurrence of the events described by Mr Skurrie was supported by Dr Mordike and there was no dispute that Mr Skurrie had experienced the specified incidents. The Tribunal found earlier that the incident involving the immobilised tank coming under fire ten metres from Mr Skurrie (Stressor 3) was a life threatening event.
43. Two of the three medical specialists have diagnosed Mr Skurrie with the condition of PTSD connected with his operational service.
44. The Tribunal is satisfied that there is material which points to the hypothesis connecting Mr Skurrie’s diagnosed condition of PTSD with his operational service.
Step 2 – Is There an SoP in Force?
45. SoP No 5 of 2008 concerns PTSD and is in force.
Step 3 – Does the Hypothesis Fit the Template of the SoP?
46. Instrument No 5 of 2008 is the SoP concerning PTSD for the purposes of the Veterans’ Entitlement Act 1986.
47. Factor 3(b) of SoP No 5 of 2008 states:
For the purposes of this Statement of Principles, "posttraumatic stress disorder" means a psychiatric condition meeting the following diagnostic criteria (derived from DSM-IV-TR): …
48. The section goes on to list the criteria, all of which have to be met in order for a psychiatric condition to be PTSD for the purposes of the Act. The Tribunal considered these criteria in turn.
49. The first criterion (A) is:
(i)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others, and
(ii) the person’s response involved intense fear, helplessness, or horror, …
50. Mr Skurrie gave evidence about four events during his operational service, referred to as Stressors 1 to 4, which he found to be particularly stressful. The evidence of Dr Mordike supported the possibility of these specific or similar events occurring and the Tribunal is satisfied that they occurred as described by Mr Skurrie.
51. In regard to Stressor 1, Mr Skurrie’s evidence was that he heard one or more explosions and was later told that they were caused by the Claymore mines being used to dispose of enemy bodies. He did not witness the explosions, only being told afterwards what the cause was alleged to have been. The event is therefore one of being told something that may or may not have occurred. The Tribunal does not accept that such an event involves actual or threatened death or serious injury or a threat to the integrity of Mr Skurrie or others. In regard to the effect on him of hearing the report Mr Skurrie thought it was very bad (transcript p19).
52. Stressor 2 involved Mr Skurrie experiencing the smell of dead bodies and on one occasion sighting the dead body of an enemy soldier lying in the ditch beside the track he was on at the time. The Tribunal accepts that by seeing the dead body Mr Skurrie witnessed and was confronted by an event involving actual death; which meets criterion A(i) above. In describing the effect on him of smelling dead bodies, Mr Skurrie said: It wasn’t a very nice smell at all. I wasn’t keen on it at all really (transcript p19). He gave no evidence of the effect of seeing the dead soldier.
53. In regard to the Stressor 3 incident, the Tribunal is satisfied that Mr Skurrie experienced, witnessed and was confronted by an event that involved threatened death or serious injury, if not directly to his self, then to others. Mr Skurrie gave no evidence of his reaction at the time of the incident. However, he did state that he took a photograph of the action before he reversed his vehicle away from the immediate vicinity.
54. The Stressor 4 incident involved towing disabled tanks along paths in rubber plantations which might have contained landmines. In describing his reaction to this stressor, Mr Skurrie said in his evidence that he was always mindful of the threat, that it was always nagging at him, but he agreed that he managed to deal with it and carry out his duties.
55. Mr Skurrie described his general reaction after his stressful incidents as:
Very – very stressful. You sort of go back to your tent, probably sit down for a while by yourself, mainly, think about what has happened and then probably shower up and have tea type of thing and then have a couple of ales (transcript p19).
56. Dr Strauss was asked whether Mr Skurrie’s response to the stressful events involved intense fear, helplessness or horror. Dr Strauss’s evidence in regard to the tank attack incident (Stressor 3) was:
Well, that is an impossible question to answer. We’ve got a – we’ve got a very long lapse of time … the impression I got that he was very fearful of the experience, but you know, people who have been drinking heavily for many years, they are older, it was a long time ago, things get blurred. It’s impossible to know exactly what the response was, but the impression that I got was he was very fearful. … He was frightened. He said he was frightened … that it was upsetting (transcript p70).
57. Dr Strauss was advised of Mr Skurrie’s evidence of taking a photograph before reversing away from the machine gun fire. It was put to him that the incident did not really have the impact on Mr Skurrie that might be expected if he was able to take a photograph. Dr Strauss agreed that it was possible; but said that in some people there may be an element of bravado and denial of the danger.
58. In describing Mr Skurrie’s response to the Stressor 4 incident Dr Strauss said that … the incident made him quite fearful (transcript p71). Later, Dr Strauss said that to him quite fearful is intense fear … I don’t have a problem with that cross‑translation (transcript p82).
59. Under re-examination, Dr Strauss agreed that he had not pursued with Mr Skurrie his reactions to the stressful events in the terms of intense fear, helplessness or horror, the terms of the SoP. Dr Strauss went on to say:
I mean, the impression was that all these experiences were distressing for him and for me, that’s the crux of the assessment. I don’t use words – I don’t ask direct questions about: did you feel intense fear, helplessness or horror. That’s not how I do my job. The statement of principles is not a psychiatric document, it’s a bureaucratic document, so I do my assessment the way that I’m comfortable with and whether or not that meets the statement of principles is really up to me in the sense that I make the diagnosis on the basis of my understanding of the condition (transcript p71).
60. Dr Strauss said that he had the impression that Mr Skurrie found the events fearful and frightening. Dr Strauss said that he got that impression from the way in which Mr Skurrie told him of the events, that he was upset and emotional, that there was a reluctance to talk about it and that he displayed tension, anxiety and emotion.
61. In his report dated 5 September 2006 (T25) Dr D’Ortenzio said that Mr Skurrie experienced considerable distress while describing the report of the Claymore mine incident (Stressor 1) and that Mr Skurrie described feeling very upset. In regard to the tank attack incident (Stressor 3) Mr Skurrie said that he feared things would go horribly wrong. Dr D’Ortenzio also reported Mr Skurrie saying that he was fearful when towing the tank through the rubber plantation and that he was acutely aware that the fuel tank sat right beside me and that an explosion would mean my death (Stressor 4).
62. Dr Senadipathy records (T12) that Mr Skurrie had:
… been in situations where they were under attack a few times and were always aware and weary [sic] of the landmines and ambush. He did not describe any personal traumatic exposure other than what was expected in a war zone”
Consideration of Mr Skurrie’s Reactions to the Stressors
63. In reviewing the evidence the Tribunal can find no direct evidence that Mr Skurrie had a response to any of the stressor events that involved intense fear, helplessness, or horror. Mr Skurrie’s evidence to the Tribunal was that he found the incidents very stressful and that afterwards he would go back to his tent, think about it, then go and have tea and a couple of ales. He also said that the smell of dead bodies was not very nice, that the use of Claymore mines to destroy bodies was very bad, and that he was mindful of the threat of mines while towing tanks through the rubber plantations. The Tribunal heard nothing from Mr Skurrie to indicate that he had reactions to these events in terms strong enough to equate to feelings of intense fear, helplessness or horror.
64. Dr Strauss’s evidence in regard to any immediate impact on Mr Skurrie of the stressors faced in Vietnam was of little assistance. He did not pursue this issue with Mr Skurrie as he felt that time and the long heavy use of alcohol would have made it difficult for Mr Skurrie to remember such impacts. Although Dr Strauss described Mr Skurrie’s reactions as quite fearful, which he later equated to intense fear, he agreed that his opinions were based only on his impressions gained from the way Mr Skurrie recounted the events. Dr Strauss did not directly elicit any history from Mr Skurrie about his reactions to the events, instead relying on his own experience in these matters.
65. Dr D’Ortenzio’s history records that Mr Skurrie felt considerable distress and that he was very upset about the Stressor 1 incident, that he feared things would go horribly wrong when reversing his vehicle out of the machine gun fire (Stressor 3) and that he remained fearful of mines when towing tanks through the rubber plantation (Stressor 4).
66. In the opinion of the Tribunal there is no evidence of Mr Skurrie reacting to any of the stressor events with anything approaching feelings of intense fear, helplessness and horror required by factor 3(b)A(ii) of SoP No 5 of 2008. Accordingly, the Tribunal finds that none of Mr Skurrie’s situations satisfy the requirements of part A of the definition of PTSD contained in factor 3(b) of SoP No 5 of 2008.
67. All of the criteria of factor 3(b) must be satisfied in order for the condition to be the PTSD which is the subject of SoP No 5 of 2008. In this case criterion A is not so satisfied.
68. This means that the hypothesis concerning Mr Skurrie’s diagnosed condition of PTSD does not meet the template of the relevant SoP; and following the reasoning in Deledio the Tribunal finds that the hypothesis is not reasonable for the provisions of the Act. The consequence of this finding is that Mr Skurrie’s psychiatric condition of PTSD as diagnosed by Drs Strauss and D’Ortenzio is not war-caused under the provisions of the Act.
ASSESSMENT
69. As the Tribunal has found that Mr Skurrie’s alcohol dependence is war-caused his level of impairment must be re-assessed. The rate of pension payable for accepted disabilities is assessed using the Guide to the Assessment of Rates of Veterans’ Pensions – Fifth Edition (the Guide). Under the Guide an overall medical impairment rating is combined with a lifestyle rating to give a percentage degree of incapacity. In assessing Mr Skurrie’s previous level of pension the respondent accepted the following levels of medical impairment (T22):
(a)Impairment of Spine and Limbs 5 points (Chapter 3)
(b)Lumbar Spondylosis 2 points (Chapter 3)
(c)Osteoarthrosis of Left Knee 9 points (Chapter 3)
(d)Hearing Impairment and Tinnitus 10 points (Chapter 7)
(e)Skin Disorders 5 points (Chapter 11)
70. A level of impairment due to Mr Skurrie’s psychiatric condition of alcohol dependence must now be included with the previously accepted impairment levels. Mr De Marchi submitted that the level of impairment from Mr Skurrie’s psychiatric condition should be the average of the assessments assigned by the three psychiatrists which are:
(a)Dr D’Ortenzio 22 points (T25)
(b)Dr Strauss 25 points (Exhibit A6)
(c)Dr Senadipathy 3 points (T12)
71. The average of these three assessments is 16.7 which rounds up to a rating of 17. Using the rating of 17 for the psychiatric condition and using the method of aggregating multiple impairments prescribed in the Guide Mr De Marchi submitted that Mr Skurrie’s total incapacity was 70 per cent.
72. This approach was accepted by Mr Purcell as being reasonable. The Tribunal notes that the Guide makes no distinction between an assessment for PTSD and that for alcohol dependence, dealing only with psychiatric conditions as a whole.
73. The Tribunal accepts the reasoning and the 70 per cent level of incapacity adopted by the parties and finds accordingly.
CONSIDERATION OF SPECIAL RATE OF PENSION
74. Entitlement to payment of a special rate of pension is provided for in s 24 of the Act. The relevant sections are:
24 Special rate of pension
(1)This section applies to a veteran if:
…
(a) either:
(i)the degree of incapacity of the veteran from war-caused injury … is determined under section 21A to be at least 70% …
(ii)and
(b) he veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d) …
(2)For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war‑caused injury or war-caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.”
75. There is no dispute between the parties that the provisions s 24(1)(aa) and (aab) are satisfied. The Tribunal has already found that Mr Skurrie’s degree of incapacity from war-caused injuries is 70 per cent. Hence the Tribunal finds that subsection (a)(i) is satisfied.
76. In considering the veteran’s capacity to undertake remunerative work the Tribunal must consider the type of work involved. Mr De Marchi submitted that the type of work being performed by Mr Skurrie was that of a delivery man. This was the last work performed by Mr Skurrie without physical problems, for a period of five years. The Tribunal accepts that delivery work is the type of work for consideration of Mr Skurrie’s ability to undertake remunerative work.
77. Mr Skurrie’s evidence was that he ceased his delivery work because he found it too difficult to cope with his fellow employees because of his anxiety and alcohol problem. Although he got on quite well with the management staff he said he became very irritated by the young staff filling the orders. Mr Skurrie said that if it was not for his anxiety and alcohol problems he would still be working for IGA.
78. Mr De Marchi referred to the report of Dr Horsley, occupational physician (Exhibit A4), and her oral evidence, and submitted that prior to ceasing work Mr Skurrie was performing his duties as a delivery man despite his physical problems. Mr De Marchi submitted that Mr Skurrie gave up work because of his accepted disabilities alone including the psychiatric condition of PTSD. He submitted that the cause of Mr Skurrie giving up work was:
80 per cent his psychiatric condition and perhaps 20 per cent his physical conditions, or maybe even 100 per cent his psychiatric conditions (transcript p137).
79. Dr Horsley reported Mr Skurrie’s history that he had increasing inter-personal conflicts with the supermarket staff and eventually gave up the job. In her oral evidence Dr Horsley agreed that there were no physical reasons that would prevent Mr Skurrie continuing to work in his part time job as a delivery man, although he may need some modification to his work, such as assistance with lifting heavier items. Dr Horsley added that at 59 years of age there would be few working opportunities for Mr Skurrie.
80. Dr Strauss said in evidence that Mr Skurrie was in an undemanding job, delivering groceries, which he found increasingly more difficult to do because of his intolerance with the minor inconveniences that were not his fault. He said that the major reason Mr Skurrie left was because he felt so angry with the people and that made him feel uncomfortable. Dr Strauss also agreed that although Mr Skurrie’s alcohol dependence was a problem during his earlier employment it was not a problem in his last employment working for the grocery firm. Dr Strauss opined that it was Mr Skurrie’s psychiatric condition alone that prevented him from undertaking any remunerative work.
81. Dr D’Ortenzio stated in his report (T25):
Mr Skurrie is no longer employed, having left his last job after some five years. He said that he was struggling to cope with his employer and customer demands and his irritability and intolerance of others made it hard for him to remain in that job and contributed to him leaving work.
82. Dr Senadipathy assessed Mr Skurrie’s alcohol dependence as having minimal interference with his work as a delivery driver.
83. Mr Purcell submitted that there was very little evidence to support a conclusion that Mr Skurrie was unable to work for more than eight hours per week for any reason. When he was working in his last position as a delivery man Mr Skurrie was working 25 hours per week despite his physical incapacities. Mr Purcell also submitted that Mr Skurrie’s alcohol dependence had not affected his work as a delivery man.
84. It is clear from the evidence that there are no physical conditions that render Mr Skurrie incapable of undertaking the remunerative work in which he was previously employed. The evidence from Mr Skurrie, Dr Strauss, Dr Horsley and Dr D’Ortenzio is that the only or primary reason for Mr Skurrie ceasing work is his psychiatric condition. The weight of the evidence is that the particular psychiatric condition preventing Mr Skurrie’s further employment is PTSD, although Mr Skurrie also includes his alcohol dependence as a contributing factor.
85. From this evidence the Tribunal concludes that the incapacities rendering Mr Skurrie incapable of undertaking remunerative work are primarily his PTSD and to a lesser extent his alcohol dependence. Although the Tribunal has found that Mr Skurrie’s alcohol dependence is war‑caused, it has found that his PTSD is not a war-caused condition. The Tribunal also accepts the submission by Mr Purcell that there is no substantive evidence that Mr Skurrie is incapable of working for eight hours per week or less. Indeed, the Tribunal finds no evidence that Mr Skurrie is prevented by his war-caused alcohol dependence from working less than the 25 hours per week that he was working at the time he quit his employment as a delivery man. As a consequence, the Tribunal finds that Mr Skurrie does not satisfy the provisions of s 24(1)(b) of the Act.
86. In regard to s 24(1)(c) of the Act, there is clear evidence that Mr Skurrie has suffered a loss of earnings as a result of ceasing his employment as a delivery man. However, adopting the same reasoning as above, the Tribunal finds that the loss of earnings is not by reason of Mr Skurrie’s war-caused injuries and diseases alone, but that his loss of earnings was contributed to by his non-war-caused condition of PTSD.
87. The above finding also determines the application of s 24(2)(a), in that Mr Skurrie has ceased to engage in remunerative work for reasons other than his incapacity from war‑caused injury or disease (sub-section (i)) and is incapacitated from engaging in remunerative work for some other reason (sub-section (ii)).
88. Section 24(2)(b) does not apply to Mr Skurrie, as by his own evidence he has not been genuinely engaged in seeking remunerative work and has not substantially been prevented from seeking to engage in remunerative work by his war-caused injuries.
89. Following on from these findings, the Tribunal finds that Mr Skurrie is not entitled to a pension at the special rate.
90. The general rate of Mr Skurrie’s pension will, however, need to be adjusted to take into account the acceptance of his alcohol dependence as a war-caused disability.
CONCLUSION
91. After considering all the evidence the Tribunal has found that Mr Skurrie’s alcohol dependence is war-caused. The Tribunal has also found that Mr Skurrie’s PTSD is not war-caused.
92. In considering the application of the special rate of pension the Tribunal found that Mr Skurrie’s type of employment is that of a delivery man. The Tribunal further found that Mr Skurrie was not incapable of undertaking remunerative work as a result of his war-caused injuries alone and that the provisions for the special rate of pension are not met.
DECISION
93. The Tribunal sets aside the decision under review and substitutes the decision that Mr Skurrie’s condition of alcohol dependence is war-caused. The Tribunal remits the matter to the respondent for the determination of the revised general rate of pension to be paid as a result of this decision, taking into account the further decision of the Tribunal that Mr Skurrie is not eligible for the payment of pension at the special rate.
I certify that the ninety-three [93] preceding paragraphs are a true copy of the reasons for the decision herein of
Brigadier C. Ermert, Member
Dr K. Breen, Member
(sgd) Olympia Sarrinikolaou
Clerk
Dates of Hearing: 2 and 3 September 2008
Date of Decision: 8 December 2008
Counsel for the applicant Mr D De Marchi
Solicitor for the applicant De Marchi and Associates
Counsel for the respondent: Mr G Purcell
Solicitor for the respondent: Department of Veterans’ Affairs
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