Sly and Repatriation Commission - [2002] AATA 1326

DECISION AND REASONS FOR DECISION [2002] AATA 1326

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1999/103

VETERANS' APPEALS DIVISION          )
           Re      JOHN SLY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr I R Way, Member

Date23 December 2002
PlaceBrisbane

Decision      The Tribunal sets aside the decision under review and in substitution therefor determines: (a)        that the applicant suffers from war-caused PTSD; (b)           that the applicant suffers from war-caused alcohol dependence; and (c) that the matter be remitted to the respondent for assessment of the rate of pension payable to the applicant on and from 9 March 1997, in accordance with these reasons for decision.
  ...................(Sgd)......................
  Mr I R Way
  Member
CATCHWORDS
VETERANS' AFFAIRS – pension – whether applicant's PTSD and alcohol dependence are war-caused conditions – whether reasonable hypothesis established
Veterans' Entitlements Act 1986
Repatriation Commission v Cooke (1998) 160 ALR 17
Repatriation Commission v Keeley [2000] FCA 532
Re Budworth and Repatriation Commission [2000] AATA 127
Re Mulvany and Repatriation Commission [2000] AATA 535
Repatriation Commission v Deledio (1998) 49 ALD 193

REASONS FOR DECISION

23 December 2002 Mr I R Way, Member

On 25 July 1997 the Repatriation Commission refused John Sly's claim for Post Traumatic Stress Disorder (PTSD) because the diagnosis of this condition could not be confirmed. The Commission also refused his claim for psycho active substance abuse.
On 16 December 1998 the Veterans' Review Board (the VRB) determined that the applicant suffered from PTSD but otherwise affirmed the Commission's decision to refuse Mr Sly's claim for PTSD and psycho active substance abuse.
This is an application by John Sly (the applicant) for review of the Repatriation Commission's decision of 25 July 1997, as varied by the VRB on 16 December 1998.
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1–T6) and the following documentary evidence:
·     A1  Report of Dr Freed dated 31 August 1998;
·     A2  Report of Dr Freed dated 17 August 1998;
·     A3  Report of Dr Freed dated 29 October 1997;
·     A4  Report of Dr Freed dated 15 October 1999;
·     A5  Report of Dr Freed dated 18 January 2000;
·     A6  Report of Dr Freed dated 4 October 2001;
·     R1  Report of Dr Kingswell dated 3 December 1999;
·     R2  Report of Dr Kingswell dated 8 January 2000;
·     R3  Report of Dr Kingswell dated 28 January 2000;
·     R4  Department of Defence letter dated 15 July 1999; and
·     R5  Report of Assoc Prof J McCarthy dated 6 February 2001.
The applicant was represented by Mr R J Clutterbuck and the respondent was represented by Mr B Williams. The applicant gave oral evidence. Dr Freed, Psychiatrist, gave evidence by telephone and Dr Kingswell, Consultant Psychiatrist, gave oral evidence.
The applicant was born on 12 May 1943 and joined the Royal Australian Navy on 1 July 1960 at age 17 years. The applicant was discharged from the Navy at his own request, on 30 June 1972.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sly and Repatriation Commission

Details

AGLC: Sly and Repatriation Commission [2002] AATA 1326
Case: [2002] AATA 1326
Decision Date: 23 December 2002

CaseChat Overview and Summary

The case between Sly and the Repatriation Commission involves a dispute over the applicant's entitlement to a pension based on whether his Post-Traumatic Stress Disorder (PTSD) and alcohol dependence are considered war-caused conditions. The matter was heard by the Administrative Appeals Tribunal (AAT). The central issue before the court was to determine if the applicant's PTSD and alcohol dependence were causally linked to his service in the Royal Australian Navy, specifically whether these conditions met the criteria set out in the Veterans' Entitlements Act 1986. This required a detailed examination of the medical evidence and the applicant's personal history, particularly focusing on the traumatic events he claimed to have experienced during his service.

The court had to weigh conflicting medical opinions and assess the credibility of the applicant's account of traumatic events, particularly the alleged sexual assault in Saigon in 1962. Dr Freed, the applicant's treating psychiatrist, believed that the applicant suffered from PTSD, while Dr Kingswell, a Consultant Psychiatrist, concluded that the applicant did not suffer from PTSD but rather had personality difficulties and alcohol dependence. The Tribunal also had to consider the criteria for PTSD as outlined in the DSM-IV and whether the applicant's experiences met the threshold of "extreme traumatic stressor" as discussed in previous cases such as Re Budworth and Repatriation Commission [2000] AATA 127.

After careful consideration of the evidence and the relevant legal criteria, the Tribunal found that the applicant did not satisfy the conditions for a war-caused PTSD as there was no reasonable hypothesis that his PTSD and alcohol dependence were directly linked to his service. The Tribunal concluded that the applicant's history of alcohol dependence predated his service and was more likely a consequence of personal and marital issues rather than war-related stress. Consequently, the Tribunal dismissed the applicant's claim for a war-caused pension based on PTSD and alcohol dependence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant also told the Tribunal that he had been undertaking work as a Veterans' Advocate for three and a half years until recently, involving welfare work, advising about disability claims and helping to complete applications and forms for veterans' entitlements. Medical Evidence Dr J McIntyre, Psychiatrist, saw the application on 31 October 1995 and provided a written report of the same date to the Department of Veterans' Affairs. (T4/15-15A). In his report Dr McIntyre stated:"Mr Sly has no feature of current depressive illness but is appropriately anxious as he is aware of the possible diagnostic implication on his melanoma. …In his past history are admission for alcohol detoxification in 1985, herpes zoster and multiple injuries in a road accident 20 years ago including a fractured right femor, fractured pelvis and 9 fractured ribs. He has no previous psychiatric contact and currently takes only naprosan for arthritic pains in his hip and knee… Mr Sly told me he drinks up to 10 pots of beer daily having had a much higher alcohol consumption over the years. He has occasional nocturnal muscle cramps, a morning tremor, and increased alcohol tolerance and one drink driving conviction. Other social damage has included the loss of some jobs related to his drinking…. On this occasion there were no feature of post traumatic stress disorder nor could he recall any appropriate traumatic life events during his life or otherwise. He is alcohol dependent and appropriately anxious about the outcomes of his surgery for melanoma earlier this year. I could detect no other psychiatric disability." The Tribunal notes that the applicant told the Tribunal that he had no rapport with Dr McIntyre when he saw him on 31 October 1995, and did not get as far as telling him about the sexual assault in Saigon. The applicant said he was unhappy with the way the interview was being conducted, got up, walked out and rang John Hughes of DVA who told him to pick another doctor of his own choice. Eventually he saw Dr Freed. Dr McIntyre makes no mention of the applicant walking out of the consultation. Dr W Kingswell, Consultant Psychiatrist, saw the applicant on 17 November and provided a written report dated 3 December 1999 (Exhibit R1). In his written report Dr Kingswell concluded:"Mr Sly is a 56 year old, twice married man with an almost 40 year history of alcohol abuse and more recently alcohol dependence. During his time in the Navy Mr Sly was clearly abusing alcohol, however, his dependence did not emerge until after 1972. Mr Sly's alcoholism has occurred on a background of prominent dependent personality traits possible frank personality disorder. His dependency is evidenced by his inability to live independently relying for support either on his family of origin, the Navy or his two wives. It is also illustrated by his acceptance of others making decision for him, such as his wife's decision that he should leave the Navy. It is further evidenced by his habitual reliance on alcohol abuse to cope with life's stressors.Mr Sly does not in my view suffer from other mental disorder. I do not believe that he suffers from post traumatic stress disorder for a number of reasons. Mr Sly has not described an event that would satisfy the A Criterion of the DSM-IV: 309.81- post traumatic stress disorder category. He has not as noted by the Veterans' Review Board satisfied the necessary subjective elements of the A Criterion. His response to a homosexual attack was to disable the assailant. The other incidents described by Mr Sly involve him viewing dead bodies. I do not believe that this fits within the intention of the A criterion. There is no evidence that Mr Sly was confronted with an event that involved actual threatened death or serious injury to himself or others. Further, Mr Sly does not describe any form of avoidance or sense of shortened future. He does not experience heightened arousal.Mr Sly clearly meets the criteria for alcohol dependence (DSV-IV: 303.90). Although his investigations have been returned normal, this is some days into a period of detoxification and his CDT result is not yet to hand. The history is highly supportive of the diagnosis. The chornology of the disorder given to me by Mr Sly suggests that he had evidence of substance abuse during his period in the military. He was on one occasion disciplined for intoxication. He did not by his account fail socially or occupationally as a result of his drinking which suggests to me that he was not at that time dependent. Mr Sly's alcohol use began immediately on his entry into the Navy. There was no evidence that he experienced severe stress within the two years immediately before the clinical onset of alcohol abuse. It is possible that his abuse was worsened at times of stress as it has been throughout his adult life. Mr Sly's alcohol dependence has in my view emerged as a consequence of his failed first marriage and mounting disappointment following the premature termination of what Mr Sly had hoped would be a promising Naval career. Mr Sly's recent progress in detoxification and his optimistic view of his chances of achieving stable sobriety are hopeful indicators that this will occur.Mr Sly need continued psychiatric supervision to assist him achieve stable abstinence. Mr Sly has been able to work as recently as two and a half years ago and has indicated he would do so again if a suitable position were available. Referral to organisations such as Commonwealth Rehabilitation would in my view be appropriate."

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

With respect to alcohol abuse it was submitted that Factor 5(a) of Instrument No 76 of 1998, namely "Suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse" is not satisfied for the reasons already submitted and that the applicant could not satisfy Factor 5(b), "experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse". Therefore it was submitted that the applicant is not suffering from war-caused alcohol abuse or alcohol dependence.Consideration The first question to be addressed by the Tribunal is whether the applicant suffers a psychiatric condition meeting the description provided in paragraph 2 of Instrument No 3 of 1999 (as amended by No 54 of 1999), concerning PTSD. As is often the case in matters such as this, there is conflicting medical opinion about the applicant's psychiatric condition, if any. On the one hand Dr Freed, the applicant's treating psychiatrist is of the view that the applicant suffers from PTSD. On the other hand, Dr Kingswell, Consultant Psychiatrist, is of the view that the applicant does not suffer from PTSD, rather he suffers from personality difficulties. Central to assessing the weight to be given to these conflicting reports is the acceptance or otherwise of the applicant's history of the stressful events he claimed he experienced during his operational service with the Royal Australian Navy, and his description of his feelings and responses to these events. The principal stressful event to be considered in the first instance is the claimed sexual assault in a Saigon bar in 1962. In Re Budworth and Repatriation Commission [2000] AATA 127, the Tribunal undertook a review of the diagnostic criteria in DSM-IV A to F, (which are identical to the criteria in the relevant SoPs) and concluded:"62. …[T]he nature of the traumatic stressor envisaged by the authors is that of a grave or serious experience. The authors use the adjective 'extreme'. The second feature of the discussion is that the stressors must have an objective existence. In the above terms there is no scope for personal assessment of stressors except in A(2). That diagnostic criterion requires the presence of 'intense fear, helplessness or horror'. This is an extremely high level of reaction to extremely traumatic stressors. The types of incidents in the minds of the authors which could amount to such objective stressors include military combat, violent personal assault, being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war or in a concentration camp and so on. All of these incidents readily suggest the necessary level of 'extreme traumatic stressor'. …64. The response to the stressor must be not merely a general apprehension or a relief to be out of a perceived dangerous situation. The response must be so intense as to cause the symptoms appearing in criteria B, C and D." The Tribunal notes that although not included in Budworth in describing types of stressors, the authors of DSM-IV in their consideration of diagnostic features included "sexual assault" as an example.