Smith and Repatriation Commission

[2007] AATA 1511

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1511

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No D 200600025

VETERANS' APPEALS DIVISION		)
Re		GREGORY SMITH

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date30 May 2007

PlaceDarwin  

Decision

1.    The decision of the respondent is set aside;

2.    Substitute a decision that the applicant’s condition of post traumatic stress disorder was war-caused with effect from 15 February 2003;

3.    The matter is remitted to the respondent for the assessment of pension.

..............................................

Deputy President

CATCHWORDS

VETERANS’ AFFAIRS – claim for disability support pension – warning of incoming missile a severe stressor – diagnosis of adjustment disorder with anxious and depressed mood and post traumatic stress disorder – whether conditions are related to service – differing medical histories relating to intrusive recollections taken by two doctors – applicant suffered from post traumatic stress disorder at time of claim – decision set aside – substitute decision that condition of post traumatic stress disorder was war caused with effect from 15 February 2003 – matter remitted to respondent for assessment of pension.

Veterans’ Entitlements Act 1986

REASONS FOR DECISION

30 May 2007 Deputy President P E Hack SC    

1.This is an application by Mr Gregory Smith to review a decision of the Repatriation Commission evidenced by letter dated 4 September 2003. By that decision the Commission determined that Mr Smith’s condition, then diagnosed as adjustment disorder with anxious and depressed mood, was not causally related to Mr Smith’s operational service or to his eligible service.

2.Subsequently on 29 August 2006 the Veterans’ Review Board affirmed the Commission’s decision although varying the diagnosis to one of post traumatic stress disorder.

3.Mr Smith enlisted in the Royal Australian Navy in October 1977 at the age of 15 years. He served in the Navy for the next 20 years. During that service he was engaged in “operational service”, as that expression is used in the Veterans’ Entitlements Act 1986 (the Act), in the period between 20 November 1990 and 19 April 1991 when he was a member of the crew of HMAS Brisbane in the Arabian Gulf.

4.The balance of Mr Smith’s service was “eligible service”, as that term is used in the Act, however the way that the case has been argued makes that service irrelevant to the outcome. The manner in which the case has been argued has meant that the issue to be determined is quite narrow.

5.The issue is one of the proper diagnosis of Mr Smith’s condition. Mr Crowe, who appeared for the Commission, conceded that if the proper diagnosis was one of post traumatic stress disorder then Mr Smith’s claim ought to be accepted. Conversely Mr Piper, the solicitor for Mr Smith, conceded that if the diagnosis was not one of post traumatic stress disorder then the claim was rightly rejected.

6.Given these positions it is not necessary to set out in any great detail the factual background against which the issue for decision arises nor is it necessary to detail the legislative framework.

7.Mr Smith was a chef in the Navy. In November 1990 he left Australia aboard HMAS Brisbane to travel to the Arabian Gulf as part of the Coalition Forces. HMAS Brisbane’s mission was to support American aircraft carriers engaged in the first Gulf war. The evidence of Mr Smith was that on the evening of 24 January 1991 the Principal Warfare Officer aboard the vessel broadcast a warning throughout the ship of an incoming Exocet missile and called all hands to action stations. Mr Crowe, the respondent’s representative, accepted that an incident of the type described by Mr Smith occurred on that day and that it was objectively capable of amounting to a severe stressor as that term is used in the applicable Statement of Principles.

8.Mr Smith gave evidence that he found the incident quite terrifying and his evidence to that effect was not challenged. He said that after he returned from the Gulf he had recurring dreams and nightmares involving the Exocet missile. It caused him to wake up in what he described as “an urgent state of mind”. His spouse, who was not required for cross-examination, gave evidence that the sound of roosters crowing caused him to have flashbacks of the warning broadcast to the ship’s company on the occasion involving the Exocet missile.

9.In my view it is appropriate to regard this incident as having both the objective and subjective character required for a severe stressor.

10.In May 2003 Mr Smith made a claim for payment of a disability pension based upon the existence of post traumatic stress disorder. It is material, in light of the argument advanced by the Commission, to note that Mr Smith made no reference to the Exocet missile incident in the section of the claim form devoted to a description of the claimant’s belief why service caused, contributed to or aggravated the claimed disability.

11.Thereafter, and at the request of the Commission, Mr Smith was seen by Dr Markou, a consultant psychiatrist, on 2 July 2003. I am satisfied, despite the evidence of Mr Smith, that the consultation lasted in the order of 50 minutes. Dr Markou reported to the Commission that in his opinion Mr Smith was suffering from adjustment disorder with anxious and depressed mood. His view was that Mr Smith was not suffering from post traumatic stress disorder. In a subsequent report Dr Markou explained that he was unable to diagnose post traumatic stress disorder because he was unable to obtain a history from Mr Smith of “intrusive recollections”; that is, memories and dreams of traumatic events. Again in light of the Commission’s argument it is relevant to note that the Exocet incident is not referred to in Dr Markou’s report.

12.Later in the same month Mr Smith saw Dr Parker, another consultant psychiatrist. Dr Parker had a much longer consultation, in the order of two hours. Dr Parker reported a history of traumatic dreams from 1992 involving flashbacks of events during his service including the Exocet missile incident.

13.Despite the different diagnoses Mr Crowe submitted that it was not a case where one psychiatrist had to be preferred over the other; rather, he submitted, the case was one where the accuracy of the history given to the psychiatrists was the crucial factor in determining which diagnosis was to be preferred. I accept that submission. Dr Markou accepted that he would have diagnosed post traumatic stress disorder had a history of intrusive recollections been given by Mr Smith and Dr Parker accepted that without a history of such recollections it was not possible to diagnose that condition.

14.Not surprisingly, Dr Markou now has no recollection of the consultation with Mr Smith. But he does have a detailed report and his clinical notes which are in evidence before me. I find it inconceivable that Mr Smith could have made mention in his consultation with Dr Markou of an event of the nature of the Exocet missile and his subsequent reaction to it without Dr Markou making some reference to it in his notes or report. The absence of any reference to the event or its aftermath satisfies me that it was not mentioned in the course of the consultation with Dr Markou. Mr Smith waxed and waned in his evidence on the point saying, variously, that it had been mentioned by him to Dr Markou, that it had not been mentioned and finally that it had been mentioned but only briefly. I consider that realistically Mr Smith could have no real recollection whether it was mentioned or not.

15.Thus I approach the matter on the footing that the likelihood is that Mr Smith made no mention of the Exocet missile incident during the course of his consultation with Dr Markou.

16.But that is not the end of the matter. If, as is undoubtedly the case, it was recounted as part of the history given to Dr Parker there seem to me to be only two possible explanations for it not having been mentioned to Dr Markou. The first possibility is that the event did not trouble Mr Smith as he claimed that it did and it did not cause him to have intrusive recollections of the event. If that be the case, the history given to Dr Parker was fabricated as was Mr Smith’s evidence before me. The other possibility is that Mr Smith, despite being troubled by the incident and having experienced intrusive recollections of it, did not make mention of it because of the circumstances that prevailed in the course of the consultation with Dr Markou.

17.I reach the conclusion that the latter possibility is to be preferred both as a matter of logic and because I do not accept that Mr Smith fabricated his history as given to Dr Parker and his evidence before me.

18.My conclusion is based upon a number of considerations. First, I should say that while there are some aspects of the evidence of Mr Smith that are concerning, for example his evidence on the question of having told Dr Markou about the Exocet missile incident, my impression of him was that he was an honest but confused witness rather than one who was wicked. The case theory advanced by Mr Crowe requires not only that Mr Smith had fabricated his symptoms and evidence about the Exocet missile incident but also that he appreciated, prior to his consultation with Dr Parker later in July, that he had failed to make mention of the incident and that that failure would have a significant effect on diagnosis.

19.Dr Markou’s report was obtained by, and addressed to, the Commission and there is no evidence that Mr Smith had access to it or its conclusions at any time prior to his consultation with Dr Parker. Mr Crowe suggested, somewhat faintly as it seemed to me, that Mr Smith’s RSL advocate may have had access to the report. It seems to me that it is for the Commission, whose report it was, to demonstrate the circulation of its report before I could accept such a proposition; the more so when Mr Smith’s denial of having seen the report was not challenged.

20.Then I have the evidence of Mr Smith’s spouse. That evidence establishes, at the very least, that Mr Smith had at earlier times been troubled by intrusive recollections of the Exocet missile incident.

21.The circumstances of the consultation with Dr Markou are, as well, likely to have affected the extent to which Mr Smith gave a full and complete account of his symptoms. He described the consultation as one that seemed to him to be more focussed upon his prevailing social conditions rather the wider scope that obviously was the focus of the doctor’s questions. My impression, from Mr Smith’s evidence of the occasion, was that he did not do himself justice, not because of any fault on the part of Dr Markou but because he (Mr Smith) distracted himself by analysing the purpose of questions and the direction of the interview rather than concentrating merely upon recounting a history of events and his life. He displayed that tendency of analysing questions posed to him before me, especially in cross-examination, which I hasten to add was perfectly fair and proper.

22.Dr Parker, in his report, spoke of Mr Smith having been initially “distant and angry” before he was eventually able to establish a rapport with him. It seems to me to be objectively likely that in a shorter interview with Dr Markou Mr Smith managed to distract himself from giving a proper and full account of his symptoms and did not make mention of the intrusive recollections that had troubled him and continued to do so, albeit that he self-medicated in the way described in his evidence and his accounts to both doctors. There is as well, the likelihood, as Dr Parker explained, that that self-medication significantly lessened the presenting problems such that it took a longer interview to prise a reliable history from Mr Smith.

23.Finally I accept, as was submitted by Mr Piper, that Dr Parker’s adherence to the diagnosis over the course of some 17 consultations in the period from July 2003 to October 2005, makes it more likely that his initial diagnosis was correct. I am confident that Dr Parker would have revised his diagnosis had he seen cause to do so during the course of treatment between July 2003 and October 2005.

24.In the result I am satisfied that at the time of Mr Smith’s consultation with Dr Markou he was then suffering from intrusive recollections but failed to make mention of them in the course of the consultation, not because he was not then experiencing them but because of the circumstances of the interview. I bear in mind, in coming to that conclusion, Mr Crowe’s submission regarding the unlikelihood that an event that Mr Smith describes as the most significant traumatic event was not mentioned. But, as I observed in the course of argument, that assumes, contrary to experience, that the human mind works computer-like in an ordered and disciplined way. In Mr Smith’s circumstances the assumption is all the more unwarranted. I also bear in mind that the Exocet missile incident was not referred to in Mr Smith’s claim form but the space available to provide an answer encourages brevity and does not suggest that the reasons should be ranked.

25.Given the evidence of both Dr Markou that the presence of intrusive recollections would have lead him to a diagnosis of post traumatic stress disorder there is unanimity in the evidence of diagnosis of post traumatic stress disorder as being the condition that Mr Smith was afflicted by at the time of his claim.

26.In light of this conclusion and the concession by Mr Crowe that if that was the diagnosis then Mr Smith was entitled to succeed, then I would set aside the decision of the Commission of 4 September 2003, as varied by the decision of the Veterans’ Review Board of 29 August 2006, and substitute a decision that the applicant’s condition of post traumatic stress disorder was war-caused with effect from 15 February 2003. I would remit the matter to the Commission for the assessment of pension.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         .....................................................................................
  Eleanor O’Gorman, Associate

Date of Hearing  29 May 2007
Date of Decision  30 May 2007
Written Reasons  5 July 2007
Solicitor for the Applicant          Pipers Barristers and Solicitors  
Solicitor for the Respondent     Departmental Advocate