Stan Kaluza and Repatriation Commission
[2013] AATA 424
[2013] AATA 424
Division GENERAL ADMINISTRATIVE DIVISION File Number
N200600840
Re
Stan Kaluza
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Dr S H TohDate 24 June 2013 Place Sydney The Tribunal varies the decision under review and decides that Mr Kaluza suffers from generalised anxiety disorder, alcohol dependence and hypertension, but not from post traumatic stress disorder or alcohol abuse. The Tribunal further decides that Mr Kaluza’s generalised anxiety disorder, alcohol dependence and hypertension are not war caused.
........[sgd]................................................................
Ms N Bell, Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – pension – period of operational service – whether applicant suffers from conditions – posttraumatic stress disorder – generalised anxiety disorder – anxiety disorder – alcohol dependence – alcohol abuse – hypertension – whether conditions war caused – decision under review varied.
LEGISLATION
Veterans Entitlements Act 1986 (Cth), ss 5B(1), 5B(2), 5B(2)(a), 5B(2)(c), 6C
CASES
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Kowalski v Military Rehabilitation and Compensation Commission [2010] FCA 408
Lees v Repatriation Commission (2002) 125 FCR 331
McKenna v Repatriation Commission (1999) 86 FCR 144
Onorato v Repatriation Commission [2011] FCA 1507
Repatriation Commission v Bawden [2012] FCAFC 176
Repatriation Commission v Brady [2007] FCA 1087
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Milenz [2006] FCA 1436
Repatriation Commission v Warren [2007] FCA 866
Sloan v Repatriation Commission [2012] FCA 1079
Summers v Repatriation Commission [2012] FCAFC 104Woodward v Repatriation Commission [2003] FCAFC 300
SECONDARY MATERIALS
Statements of Principles No. 5 of 2008 concerning Post Traumatic Stress Disorder
Statements of Principles No. 1 of 2009 concerning Alcohol Dependence and Alcohol Abuse
Statements of Principles No. 101 of 2007 concerning Anxiety Disorder
Statements of Principles No. 1 of 2000 concerning Anxiety Disorder
Statements of Principles No. 5 of 2008 concerning Post Traumatic Stress Disorder
Statements of Principles No. 1 of 2009 concerning Alcohol Dependence and Alcohol Abuse
Statements of Principles No. 101 of 2007 concerning Anxiety Disorder
Statements of Principles No. 1 of 2000 concerning Anxiety Disorder
Statements of Principles No. 1 of 2009 concerning Alcohol Dependence and Alcohol Abuse
Statements of Principles No. 76 of 1998 concerning Psychoactive Substance Abuse or Dependence
Statements of Principles No. 35 of 2003 concerning Hypertension
Statements of Principles No. 3 of 2004 concerning HypertensionStatements of Principles No. 11 of 2008 concerning Hypertension
REASONS FOR DECISION
Ms N Bell, Senior Member
Dr S H Toh
24 June 2013
This is the third time this application has come before the Tribunal. It was first lodged in 2006. In two appeals to the Federal Court the application was remitted to the Tribunal; on the first occasion, because the Court found the Tribunal had erred in its construction of the instrument determined under section 5B(2)(c) of the Veterans’ Entitlements Act concerning Mr Kaluza’s period of operational service and, on the last occasion, because the Full Court found that the Tribunal was, among other reasons, in error when it held that the only issue that had been remitted was the issue on which Mr Kaluza had succeeded in the Federal Court on the first occasion.
It is clear that on this occasion the entire case has been remitted and the Tribunal is to consider the decision under review in its entirety, starting from the beginning.
Ten years ago Mr Kaluza claimed a pension under the Act for nervous tension, palpitations and high blood pressure. These claimed conditions, characterised by the Repatriation Commission as post traumatic stress disorder, alcohol dependence and hypertensive cardiovascular disease, were found by the Commission to be not war caused. Similarly, the Veterans Review Board found the claimed conditions (after varying hypertensive cardiovascular disease to a diagnosis of hypertension) to be not war caused.
In May 2008 this Tribunal found that Mr Kaluza suffered from generalised anxiety disorder, alcohol abuse and hypertension – none of them war caused. It found he did not suffer from post traumatic stress disorder or from alcohol dependence. The same Tribunal adopted these conclusions in its decision of 2 July 2010.
Mr Kaluza enlisted in the Royal Australian Air Force on 29 August 1963. He was discharged on 31 October 1983. He was an aircraft technician based in Australia. There is no dispute that his service from 7 December 1972 until his discharge was eligible defence service within the meaning of the Act. Between 5 September 1966 and 2 September 1973 he was posted to 37 Squadron at Richmond.
Mr Kaluza claims operational service, which attracts a more beneficial approach under the Act, in connection with flights made by him to Vietnam from the Richmond base. There is no dispute that he was on flights to Vietnam on 21 – 24 February 1969 and 18 – 22 November 1970, but Mr Kaluza contends he was on more than two flights to Vietnam. He relies, in particular, on the following two flights and occurrences on them:
(i)A flight in early 1968 that Mr Kaluza says evacuated sick and injured soldiers from Vung Tao to Butterworth;
(ii)the flight in February 1969 that Mr Kaluza says transported a coffin and SAS soldiers from Butterworth to Pearce.
In this application Mr Kaluza sought “orders” that pension be payable for war caused post traumatic stress disorder, alcohol dependence and hypertension. At the hearing before us, it was also submitted that he suffers from generalised anxiety disorder and alcohol abuse. The only agreement between the parties as to the medical conditions suffered by Mr Kaluza is in respect of hypertension. There is no dispute that he suffers from hypertension.
The Commission maintains that none of the conditions suffered by Mr Kaluza are war caused.
ISSUES
The issues for us to consider are:
(i)What was Mr Kaluza’s operational service?
(ii)From what conditions does Mr Kaluza suffer?
(iii)Are those conditions war caused?
WHAT WAS MR KALUZA’S OPERATIONAL SERVICE?
Mr Kaluza has contended at various times over the years, on forms, to examining doctors, in statements and in evidence to tribunals, that he was on more than two flights to Vietnam from Richmond Base. On some occasions he said he was on four flights in total. On other occasions he said he was on five or six flights. Understandably, given the passage of time, he had no memory of the specific dates of flights.
However, he has recalled a flight in the first half of 1968 which was to take stores, equipment and mail to Vietnam and then repatriated wounded personnel. He has said this flight was under the command of Wing Commander McKimm, that it was diverted to Kuala Lumpur after an air pressure incident and then continued to Vietnam as a Medivac flight returning to Butterworth. He relied on events on that flight in relation to his claimed psychiatric condition.
The statutory provisions that govern and define “operational service” were well summarised by the Commission in its written submissions. We adopt that summary here as follows.
The expression ‘operational service’ is relevantly defined in s 6C of the Act. It provides that a veteran has rendered continuous full-time service in an operational area and was:
(a) a member who was allotted for duty in that area; or
(b) a member of a unit of the Defence Force that was allotted for duty in that area …
The expression operational area is defined in s 5B(1) to mean “an area described in column 1 of Schedule 2 during the period specified in column 2 of Schedule 2 opposite to the description of the area in column 1.”
The expression allotted for duty is relevantly addressed in s 5B(2) as follows:
(2) A reference in this Act to a person, or a unit of the Defence Force, that was allotted for duty in an operational area is a reference:
(a) in the case of duty that was carried out in an operational area described in item 1, 2, 3, 4, 5, 6, 7 or 8 of Schedule 2 (in column 1)--to a person, or unit of the Defence Force, that is allotted for duty in the area (whether retrospectively or otherwise) by written instrument issued by the Defence Force for use by the Commission in determining a person's eligibility for entitlements under this Act; or
…
(c) to a person, or unit of the Defence Force, that is, by written instrument signed by the Minister for Defence, taken to have been allotted for duty in an operational area described in item 4 or 8 in Schedule 2 (in column 1).
For the purpose of s 5B(2)(a), Schedule 2, Column 1 Item 4 of the Act provides:
4. Vietnam (Southern Zone)
The period from and including 31 July 1962 to and including 11 January 1973.
The effect of this determination is that a veteran who was not posted to a unit in Vietnam but travelled to Vietnam in the course of his duties is deemed to have been allotted for duty to Vietnam in the terms provided by the instrument.
The instrument sets out the relevant period in the following terms:
(1) …
(b) each person included in the class of persons specified in Schedule B
to this instrument to have taken to have been allotted for duty in the operational areas described in items 4 and 8 in Schedule 2 (in column 1 of that Schedule) to the Act during the period determined according to paragraphs 1 and 2 in Schedule B .
Schedule B
Class of persons
(b) No. 37 Squadron Richmond.
…
1. The period commences:
(a) if the person was in Australia immediately before the person
commenced the journey to Vietnam on and from the date of the last port of
call in Australia; or
…
2. The period ends:
(a) if, immediately after the person left Vietnam, the person journeyed to
a place outside Australia to perform duty not associated with a continuing
journey to Australia – on the day that the person arrived at that other place
outside Australia; or
(b) in any other case – on the day that the person arrived at the first
port of call in Australia.
(emphasis added)
We heard concurrent evidence from Air Commodore Brennan and Brendan O’Keefe, both of whom had conducted historical research into the question of flights Mr Kaluza had been on board during 1968. They agreed, following their separate extensive research into all available records, that there was one flight in 1968 that bore some of the features of the flight Mr Kaluza had described – a flight to Vietnam on 14 February 1968 whose purpose was changed to an aero-evacuation flight, commanded by Commander McKimm. However, there was no record of this flight having been diverted for any reason. Both historians agreed that the Personnel Occurrence Reports for the flight do not list Mr Kaluza as being on the flight. Both historians agreed that errors can occur on these records. However, Air Commodore Brennan considered the inclusion in the Personnel Occurrence Reports of the names of eight others on the flight to be “telling” and concluded that it is possible but not probable that Mr Kaluza was on the flight. Mr O’Keefe was impressed by the detail with which Mr Kaluza recalled the events, if not the date, and considered that it is probable by a narrow margin that Mr Kaluza was on the flight, but that it is not “clear and definitive”; rather it is “circumstantial”. We note that, in his report of 18 August 2009, Mr O’Keefe described Mr Kaluza’s presence on the flight as “possible” rather than “probable”. There appeared to have been a movement away from this in his oral evidence in concurrent session.
In addition, neither Air Commodore Brennan nor Mr O’Keefe found any record of Mr Kaluza having been on a medical evacuation flight in January 1968 whose mission was recorded as having been delayed for 24 hours due to unserviceability. Both considered this to be the only other recorded 1968 flight that bore a resemblance to the flight described by Mr Kaluza.
We note the submission on behalf of Mr Kaluza that he has consistently referred to having been on up to six flights to Vietnam and did so when that was not important to the proceedings he was involved in. The detail of Mr Kaluza’s descriptions of the flight in early 1968 that began to emerge from about 2006 – being captained by Wing Commander McKimm, being diverted to Kuala Lumpur and the change of task to medical evacuation – was pointed to as an indication of the reliability of his account. Our attention was drawn to a Notice from J H Johnson, Squadron Leader, Operations Officer, dated 4 March 1968 concerning the failure of some Captains to submit air incident reports and referring to two unspecified incidents in January and February when incident reports were warranted but not made. This was suggested as an explanation for why there is no record of a diversion of the 14 February flight to Kuala Lumpur.
Our attention was drawn to the judgment of the High Court in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, in which the Court, in referring to the application of the civil standard of proof to circumstantial evidence, said:
Where direct proof is not available and a conclusion falls short of certainty, it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference, provided they do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a matter of conjecture. … If circumstances are proved in which it is reasonable to find a balance of probabilities in favour of a particular conclusion, it is not to be regarded as mere conjecture or surmise.
We are asked to infer Mr Kaluza’s presence on the 14 February 1968 flight on the basis of his longstanding recollection of having been on up to six flights to Vietnam, his varied and more recent recollections of the features of the flight he says he was on, the possibility that the formal records of personnel are inaccurate, the existence of a complaint about Captains on two occasions in the relevant period not reporting incidents, and records that show that a flight was, in accordance with part of Mr Kaluza’s recollection, captained by Commander McKimm and was changed to an aero evacuation flight.
On the other hand, while the personnel records list eight personnel on the flight, Mr Kaluza is not recorded as one of them. There is not an absence of personnel records; they simply do not reflect Mr Kaluza’s presence on the flight. In addition, there is no documentation of the flight having been diverted to Kuala Lumpur, except for the Notice from the Squadron leader that says two unspecified flights had unspecified air incidents that were not the subject of incident reports.
We do not consider that the evidence and inferences urged on us are sufficient to satisfy us that on the balance of probabilities Mr Kaluza was on the flight on 14 February 1968. We find that they do not “do more than give rise to conflicting inferences of equal degrees of probability”. We find “that the choice between them is a matter of conjecture”. There is too much of a speculative nature. Nor are we satisfied that he was on the medical evacuation flight in January 1968 whose departure was delayed because of unserviceability.
Mr Kaluza also said he had operational service on a flight in February 1969 that he says transported a coffin and SAS soldiers from Butterworth to Pearce. There is now no dispute that he was on a flight to Vietnam on 21-24 February 1969 and that he had operational service for those days. Mr Kaluza relied on events on that flight in relation to his claimed psychiatric condition and his alcohol related condition.
FROM WHAT CONDITIONS DOES MR KALUZA SUFFER?
Through the course of these proceedings Mr Kaluza has raised as possible diagnoses post traumatic stress disorder, generalised anxiety disorder, anxiety disorder not otherwise specified, alcohol dependence and alcohol abuse. There is no dispute that he suffers from hypertension.
In Repatriation Commission v Bawden [2012] FCAFC 176 the Full Court said:
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.
We consider that this observation applies to all of the diagnoses urged on the Tribunal by Mr Kaluza at different stages in these proceedings. We must reach our conclusion as to the kind of disease(s) suffered by Mr Kaluza to the standard of reasonable satisfaction. In this regard we note the clear distinction drawn by the Full Court in Bawden between questions of diagnosis, all aspects of which are to be determined to the standard of reasonable satisfaction or on the balance of probabilities, and, on the other hand, questions of causation which are to be determined in accordance with the steps explained by the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82. As the Full Court in Bawden said, that four step process is not concerned with the issue of whether the disease or injury occurred; rather, the question of diagnosis is governed by section 120(4) of the Veteran’s Entitlements Act 1986 which requires determination to the standard of reasonable satisfaction.
We also had regard to the Full Court’s judgment in Summers v Repatriation Commission [2012] FCAFC 104 in which the Court said that the question of whether Mr Summers had PTSD was “at least on its face, one of diagnosis involving expert medical opinion.” After extracting the definition of PTSD in clause 3 of the Statement of Principles concerning Post Traumatic Stress Disorder (SoP No. 5 of 2008), the Court said:
For the Tribunal to be satisfied that Mr Summers suffered from PTSD it therefore had to be reasonably satisfied of the six matters in sub-cll (b)(A)-(F).
In addition, we had regard to the judgment of the Court in Repatriation Commission v Warren [2007] FCA 866 in which Kiefel J said:
The function of the SoP, in general terms, is to identify the minimum factors which must be present in the circumstances of the veteran’s case, to provide the necessary linkage between the disease suffered and operational service. The factors necessarily refer to the disorder in question. The principal purpose of the definition of each of PTSD and alcohol dependence is to permit a determination as to whether the SoP applies to the condition as found by the Tribunal, presumably upon the basis of clinical diagnosis. The diagnostic criteria for the disorders in the SoP are said to be “those specified in DSM-IV, and are as follows”. The criteria are intended as part of the definition for the purpose of the application of the SoP.
The anterior, or threshold, question for the tribunal is whether the veteran suffers from the disease as claimed. It is a distinct and separate statutory question, in the nature of a precondition to any entitlement to a pension. There is no provision of the VEA which expressly requires the tribunal to have regard to the SoP criteria in determining this question. The requirement that the tribunal be reasonably satisfied that the veteran suffers from the claimed disease will usually require medical opinion. A clinical diagnosis of a condition classified under DSM-IV would necessarily have regard to that manual and the criteria provided by it.
We note that the above paragraphs of the judgment in Warren were quoted in full by the Full Court in Summers.
From these statements of the Court we take that we must:
·Decide the question of what diseases or injuries are suffered by Mr Kaluza as a separate question that is a precondition to any entitlement to pension;
·Determine all aspects of that question to the standard of reasonable satisfaction;
·Determine the question by reference to evidence of clinical diagnosis by medical experts that have, in turn, had regard to the diagnostic criteria provided for the relevant disease by DSM-IV and which in the cases of PTSD and anxiety and alcohol related disorders have been adopted in the definition part of the relevant SoPs.
In this regard, we note that at the close of the hearing, following the final submissions by Counsel for the Commission, Counsel for Mr Kaluza sought an adjournment and leave to obtain and file a further medical report by Dr Dinnen in order to address deficiencies in the medical evidence on the questions of diagnosis of PTSD, generalised anxiety disorder, alcohol abuse and alcohol dependence and to remedy the failure of earlier reports to refer to diagnoses provided in the DSM-IV diagnostic criteria as they are set out in relevant SoPs. These deficiencies had been pointed out, by reference to the authorities mentioned above, by Counsel for the Commission in her final submissions. We granted the leave sought after consent was indicated by the Commission. Directions were made for the filing of a further medical report on behalf of Mr Kaluza, any further medical evidence in reply for the Respondent and for a further date to be set to hear any further submissions.
A report by Dr Dinnen was filed and, in accordance with directions made by us, a further report by Dr Roberts was also filed. When the Tribunal resumed to hear submissions on this further evidence, Counsel for Mr Kaluza sought to have Dr Dinnen give additional oral evidence. We declined to allow this. Our reasons were that the leave we had given to Mr Kaluza to file a further report to remedy the deficiencies pointed out by Counsel for the Commission in her closing submissions was, by any measure, extraordinary leave. It had been the subject of precise directions as to scope which was to be limited to the question of diagnoses and diagnostic criteria. To allow further unspecified oral evidence from Dr Dinnen would have prejudiced the Commission and would likely have necessitated a further lengthy adjournment and attendant costs to remedy that prejudice. We were mindful of the Tribunal’s statutory objective to provide a mechanism of review that is fair, just, economical, informal and quick and equally mindful that these objects must be pursued in relation to all of the parties to an application. On balance, we considered that Mr Kaluza and his legal representatives had already been given unusually wide scope to present his case and to remedy deficiencies highlighted by the Commission, and that to extend that scope with the likely result that the process would be further lengthened would not have been, in all of the circumstances, fair, just, economical or quick.
Mr Kaluza has contended two broad sets of symptoms – stress or anxiety related symptoms and alcohol related symptoms.
Psychiatric symptoms and disease
Mr Kaluza has contended diagnoses of PTSD and, alternatively, of generalised anxiety disorder or, very late in the proceedings, anxiety disorder not otherwise specified.
The collection of psychiatric symptoms variously contended or reported by Mr Kaluza over the years and the various diagnoses made was helpfully summarised by his Counsel in written submissions. To aid the comprehensibility of this decision and statement of reasons we have reproduced Counsel’s summary as Appendix 1.
The report of Dr Reinhardt, Mr Kaluza’s treating psychiatrist, of 6 December 2011 is the only expert medical report before us that provided a clinical diagnosis that directly refers to all of the diagnostic criteria for PTSD in DSM-IV. However, she provided scant detail of the symptoms or history of symptoms obtained by her, that matched the relevant diagnostic criteria.
Her report of 6 December 2011 says:
Chronic Post Traumatic Stress Disorder
Criterion A
1. Mr Kaluza was confronted with events that involved actual death and serious injury to others.
2. Mr Kaluza’s response was intense helplessness and horror.
Criterion B
The traumatic events are persistently re-experienced in the following ways:
- recurrent intrusive recollection of events;
- recurrent distressing dream of events, particularly nightmares of being in a coffin;
- intense distress when exposed to cues that symbolise event;
- psychological reactivity on exposure to cues that resemble/symbolise events.
Criterion C
Persistent avoidance of stimuli and numbing:
- tries to avoid thoughts, feelings, conversations associated with trauma;
- tries to avoid activities, place that arouse memories of trauma;
- diminished interest in significant activities e.g. golf;
- feelings of detachment from others.
Criterion D
Persistent symptoms of increase arousal.
- insomnia
- irritability
- difficulty concentrating
- hypervigilance
- exaggerated startle response
- anxiety
Criterion E
Duration of more than one month.
Criterion F
The disturbance causes significant distress as well as impairment in social, recreational and occupational functioning.
Thus, Mr Kaluza meets DSMIV criteria for Chronic Post Traumatic Stress Disorder. If Criterion A is not accepted because it may be deemed not to fit in to the “Statement of Principles”, Mr Kaluza meets DSMIV Criteria for Generalised Anxiety Disorder. This would be subsumed under the diagnosis of Chronic Post Traumatic Stress Disorder.
Dr Reinhardt’s oral evidence before us established that her report was based on the assumption that the traumatic events experienced by Mr Kaluza included the witnessing of casualties on the 1968 flight. For the reasons set out above in relation to Mr Kaluza’s operational service we have concluded that the only event available to be relied on by Mr Kaluza is the 1969 flight.
The various reports and evidence of Mr Kaluza’s experience on the 1969 flight were summarised by his Counsel as follows:
On 23 October 2003, Dr Reinhardt referred to Mr Kaluza continuing to be disturbed by being invited by SAS soldiers to play cards on the coffin of an aboriginal sapper, who he believed had been shot by the SAS, and of being plagued with nightmares about being the dead sapper and needing to die (Tab 15 p 91.8).
On 18 December 2003, Dr Koller, Psychiatrist, reported that Mr Kaluza continued to be concerned about an incident where a SAS man had shot an aboriginal veteran and played cards on his coffin and invited the dead man to play (Tab 11 p 77.7).
On 21 Jul 2004, Air-Commodore Brennan reported that the remains returned on the 1969 flight did not include those of Corporal Harris, an aboriginal soldier killed by SAS troops that had been returned to Australia in January 1969 (Tab 17 p 102.2). Mr O'Keefe found references to the remains of Corporal Harris being returned on 21 February 1969, consistent with Mr Kaluza’ s belief at the time, and noted that Corporal Harris was known for his fondness for cards (T41 p 226.1)
On 27 April 2006, at the VRB, it was submitted that Mr Kaluza remembered playing cards with 3 SAS soldiers using a casket at a table. A fourth hand was dealt for their mate in the casket and he was invited to take it. This had played on his mind for many years and was responsible for his problems (Tab 30 p 151.5). He had thought the coffin was that of the SAS soldier but now accepted that he had been shot a month before the flight (Tab 30 p 151.9). Mr Kaluza testified that they had picked up some SAS personnel and 2 caskets in Vung Tau and took them to Perth via Butterworth (Tab 30 p 152.5). The card playing occurred between Butterworth and Perth. He had played cards with the 3 SAS soldiers. It was the most stirring, dramatic thing he ever experienced and he felt funny and helpless and guilty that he was playing his hand and not taking his position in the coffin (Tab 30 p 152.6).
On 22 March 2007, Dr Dinnen reported that on one trip to Vietnam, SAS soldiers were playing cards on a coffin when flying directly to Perth and asked him to take a hand. He got upset and felt what the hell and has had vivid dreams of the incident ever since (Tab 37 p 185.8).
Mr Kaluza testified that he was really upset and astounded that the SAS personnel wanted him to play the dead man's hand, which he did to show some bravado but it had haunted him for the rest of his life. He thought the coffin contained the body of an Aboriginal soldier who had been accidentally shot in the head by other Australians and he visualized what he looked like and felt upset and horrified (Tab 56 p 306 line 6 - p 307 line 13).
In oral evidence, Dr Reinhardt said she did not think Mr Kaluza’s experience on the 1969 flight was, on its own, a “sufficient stressor” for PTSD. She said she considered it an exacerbating factor, overlaid on his experience of witnessing casualties and following on from the death, outside operational service, of his friend Noel. She did, however, consider the 1969 experience to be a “sufficient stressor” for generalised anxiety disorder. When asked by the Tribunal to elaborate on this, Dr Reinhardt said she considered the event not sufficient for the purposes of PTSD because Mr Kaluza merely imagined the body in the coffin and did not actually see it. To her way of thinking, this did not amount to being confronted with death. However, she considered this experience with the coffin to have had the most impact on him of all of his stressful experiences and described it as a “powerful” event. She said it caused him to be horrified. It became apparent that she felt constrained by the word “confronted” in the SoP.
In cross examination Dr Reinhardt said that Mr Kaluza’s main response to the coffin incident was one of guilt, largely because of the disrespect being shown to the inhabitant of the coffin and his feeling that it was he, Mr Kaluza, who should have been in the coffin. She agreed that Mr Kaluza had not felt helplessness that was intense.
Dr Dinnen’s report of 30 October 2012 lists a number of “clinical features of psychiatric condition” and then asserts satisfaction or otherwise of the diagnostic criteria of PTSD without reference to the listed clinical features or to the diagnostic criteria in the SoP. He appears to conflate the definition of a “traumatic event” in clause 3(b)(A)(i) and (ii) and the definitions of “category 1A stressor” and “category 1B stressor” in the SoP. The first definition, that of “traumatic event”, is relevant to diagnosis. The second and third definitions go to hypothesised causation and do not qualify the definition of “traumatic event”. In oral evidence Dr Dinnen said that Mr Kaluza had described his reaction as one of helplessness and referred in this respect to his 2007 report. However, a review of Dr Dinnen’s report of 22 March 2007 shows that the only mention of Mr Kaluza’s reaction to events he experienced was a reference to his having felt helplessness and guilt in relation to a flight on which he and other crew brought back casualties who were bandaged and had intravenous tubes – a description similar to Mr Kaluza’s description of the 1968 flight he contended he was on. There is no mention of fear, helplessness or horror in relation to the 1969 coffin incident. Rather, Dr Dinnen reported Mr Kaluza as having said of that incident “I was young. I got upset” and also as having felt “What the hell”.
In any event, although Dr Dinnen, at one point in his October 2012 report, stated that “the diagnosis of Post Traumatic Stress Disorder applies” he expressed doubt that Mr Kaluza was exposed to “a significant traumatic event” because he did not actually see any corpse. He also ventured that there may not be present the three avoidance factors required by clause 3(b)(C) of the SoP.
In oral evidence before us, Dr Dinnen said that the coffin incident was a “sufficient stressor” for PTSD, again conflating the notions of “traumatic event” and “stressor”. He described it as a very significant event for Mr Kaluza and a “traumatic experience”. However, he also conceded that the history he had taken of the coffin incident was limited.
Dr Dinnen’s diagnoses altered over the years of progress of Mr Kaluza’s application. He began with a diagnosis of generalised anxiety disorder but said he “did not cavil with a diagnosis of PTSD”, then appeared to offer more support for a diagnosis of PTSD and finally appeared to return to his original diagnosis of generalised anxiety disorder, raising the difficulties described above with a diagnosis of PTSD.
Dr Roberts, psychiatrist, considered that Mr Kaluza does not suffer from PTSD. He considered, in his report of 4 May 2007, that Mr Kaluza does not have symptoms of heightened anxiety to the degree required for a diagnosis of PTSD. He reported that, even if the physiological signs of heightened anxiety were present, the “stressors” relied on by Mr Kaluza that are related to his service are insufficient to ground causation. However, as to diagnosis, it was an absence of physiological signs of anxiety and Mr Kaluza’s continuing association with the military that grounded Dr Robert’s conclusion that Mr Kaluza does not suffer from PTSD.
Another medical expert who diagnosed PTSD was Dr Koller, the psychiatrist who had referred Mr Kaluza to Dr Reinhardt in 2003. However, Dr Koller did not address the diagnostic criteria in his report.
In relation to the event experienced by Mr Kaluza, we note the view of the Full Federal Court in Bawden, citing the Full Court in Woodward v Repatriation Commission [2003] FCAFC 300, that a person need not experience or witness an event in order to be “confronted” by it; a person may be brought “face to face” with an event either physically or in the mind. Consequently, we are not concerned by Mr Kaluza’s not being present when the soldier in the coffin was killed or that he may have been mistaken about the soldier’s identity or the way in which he was killed or that he did not actually view the corpse. We are satisfied that he was confronted by a soldier’s death, although we understand from Dr Reinhardt that the aspect of his death that most disturbed him was the disrespect to the dead soldier in having a card game played on top of his coffin, an activity Mr Kaluza regarded as very disrespectful and inappropriate but with which he went along for reasons that are understandable in the circumstances.
However, we remain concerned as to whether Mr Kaluza responded to that confrontation with death with “intense fear, helplessness or horror” as required by the diagnostic criteria in DSM-IV, as reproduced in the SoP.
Various descriptors have been used by Mr Kaluza, his treating psychiatrist, Dr Reinhardt, and other examining psychiatrists to describe his response to the coffin incident. They include “stirred”, “funny”, “astounded”, “guilty”, “not amused” (as per Dr Koller in December, 2003), “helpless” (but not intensely so, according to Dr Reinhardt), “horrified”, and “very emotionally upset”. Mr Kaluza described his own “bravado” on the occasion. To our minds, this falls short of the required “intense fear, helplessness or horror” (our emphasis). We do not find that he responded to the event in the intense manner required by the diagnostic criteria. Consequently, we do not find Mr Kaluza’s experience of the card game on the coffin on the 1969 flight to have been a “traumatic event” within the meaning of the DSM-IV definition. It follows that we are not reasonably satisfied that he suffers from PTSD.
We turn now to the alternative anxiety related diagnosis suggested by Mr Kaluza. That condition, generalised anxiety disorder, is set out with its diagnostic criteria, as drawn from DSM-IV, in SoP No. 101 of 2007 as follows:
"generalised anxiety disorder" means a psychiatric disorder (derived from DSM-IV-TR) with the following features:
A. Excessive anxiety and worry (apprehensive expectation), which occur on more days than not for a continuous period of at least six months, about a number of events or activities; and
B. The person finds it difficult to control the worry; and
C. The anxiety and worry are associated with three or more of the following six symptoms, with at least some symptoms present for more days than not during the previous six month period:
(1) restlessness or feeling keyed up or on edge
(2) being easily fatigued
(3) difficulty concentrating or mind going blank
(4) irritability
(5) muscle tension
(6) difficulty falling or staying asleep, or restless unsatisfying sleep; and
D. The focus of the anxiety and worry is not confined to features of any other Axis I disorder; and
E. The anxiety, worry, or physical symptoms (as described in C. above) cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and
F. The anxiety and worry are not due to the direct physiological effects of a substance or a general medical condition and do not occur exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder
Unlike the diagnostic criteria for PTSD, these criteria do not require an event to which a person must have a certain kind of response. Rather, all that is required is a set of clinical signs as set out in the diagnostic criteria. The first sign required is excessive anxiety and worry about a number of events and activities for more days than not for a continuous period of at least six months.
No medical expert has specifically addressed this criterion in full, although a number have diagnosed generalised anxiety disorder. In 1965 Mr Kaluza was diagnosed with a mild anxiety state. In 1972 he was said to have an acute anxiety reaction. Medical reports throughout the 1970s described anxiety, at times controlled by Valium, and there was no further mention of anxiety throughout the 80s (except for a claim for hypertension in relation to which he mentioned “stress” which he had been under for 20 years) and the 90s.
Although Dr Reinhardt in her 2003 report diagnosed PTSD, she described Mr Kaluza’s “constant feeling of anxiety and apprehension”. In 2004 Dr Bell of Health Services Australia recorded that Mr Kaluza had suffered from anxiety for “many years”. In 2005 Dr Wong, occupational physician, diagnosed generalised anxiety disorder without reference to diagnostic criteria. In 2007 Dr Dinnen made the same diagnosis, noting that Mr Kaluza was tense throughout the interview, and referring to his having “suffered anxiety on and off throughout his service”. In 2012 Dr Dinnen reported that Mr Kaluza has excessive worry.
It is a slight stretch, but given the reports of anxiety noted above, and, in particular, Dr Reinhardt’s report in 2003 of Mr Kaluza’s “constant feeling of anxiety and apprehension”, we are satisfied that Mr Kaluza satisfies diagnostic criterion A.
The next criterion requires difficulty in controlling “the worry”. We take this to include difficulty in controlling the anxiety Mr Kaluza suffers. In 2012 Dr Dinnen reported that Mr Kaluza has difficulty controlling his worry. Consequently this criterion is satisfied.
As to criterion C and the symptoms it requires, Dr Dinnen reported in October 2012 that Mr Kaluza “has restlessness and feels keyed up. He is easily fatigued. He has difficulty concentrating. He suffers from irritability. He has muscle tension in the neck and shoulders. He has sleep disturbance.” Diagnostic criterion C is satisfied.
There is no evidence to suggest, as noted in criterion D, that Mr Kaluza’s anxiety is confined to features of any disorder.
As for criterion E, causing clinically significant distress or impairment in social, occupational or other functioning, Dr Dinnen, Dr Reinhardt, Dr Bell and Dr Wong have found Mr Kaluza to be unfit for work as a result of his psychiatric symptoms. Mr Kaluza has given evidence of a marriage that has all but fallen apart. Mr Kaluza has also given evidence of social isolation. This criterion is satisfied.
There is no evidence to suggest the aetiology noted in criterion F. This criterion is satisfied.
Dr Roberts maintained his view that Mr Kaluza suffers only from mild depression and anxiety. He expressed doubt about his reporting and found no physiological manifestation of anxiety. He is somewhat out on a limb in the large body of medical evidence that reports a range of clinically significant symptoms.
We are satisfied that Mr Kaluza suffers from generalised anxiety disorder.
Alcohol related symptoms and disease
Counsel for Mr Kaluza also summarised the various evidence and reports of his alcohol related symptoms. Again for ease of comprehension, we attach that helpful summary as Appendix 2 to these reasons.
It was submitted on Mr Kaluza’s behalf, first, that he suffers from alcohol dependence and, if not, that he suffers from alcohol abuse. It was also submitted that his condition fluctuated between the two at different times.
The diagnostic criteria for alcohol dependence, drawn from DSM-IV, are set out in SoP No.1 of 2009 concerning Alcohol Dependence and Alcohol Abuse. We note that the criteria for alcohol abuse make it clear that diagnoses of alcohol dependence and alcohol abuse must be exclusive of each other. In particular, the diagnostic criteria for alcohol abuse require that the symptoms have never met the criteria for alcohol dependence. (our emphasis)
The criteria for alcohol dependence are:
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 alcohol to achieve intoxication or desired effect; or
(b) markedly diminished effect with continued use of the same amount of alcohol.
(2) Withdrawal, as manifested by either of the following:
(a) the characteristic withdrawal syndrome for 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 alcohol, use 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 alcohol; (e.g. continued drinking despite recognition that an ulcer was made worse by alcohol consumption).
The medical evidence in relation to Mr Kaluza’s alcohol related condition, if any, is unhelpful. No medical practitioner has provided a diagnosis that refers to specific signs by reference to the history taken and expressly relating them to specific diagnostic criteria.
Dr Roberts is, again, alone in concluding that Mr Kaluza suffers from no alcohol related condition. His rationale for doing so is that if Mr Kaluza’s drinking was as heavy as he has said then he could not have held down employment until 2003.
Broadly, and without reference to specific diagnostic criteria, Dr Reinhardt, in her reports and her oral evidence, offered a diagnosis of alcohol dependence. However, it was clear that she was not mindful of the exclusivity of the diagnoses of alcohol abuse and alcohol dependence. She did not exhibit a mindfulness of the relevant diagnostic criteria and used the diagnostic labels interchangeably.
Dr Dinnen, again without reference to specific diagnostic criteria, originally diagnosed alcohol abuse. By the last hearing of the application in this Tribunal, in a report prepared and filed after the conclusion of the Commission’s final submissions, he changed his diagnosis to one of alcohol dependence. He did so by reference to some of the relevant diagnostic criteria but did not detail the history obtained either by him or by other reporting psychiatrists. The criteria he appeared to rely on for his diagnosis were tolerance, persistent desire or unsuccessful efforts to cut down or control alcohol use, and continued alcohol use despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol. In these respects he mentioned tolerance developed “over the years”, but not a feature in recent years; Mr Kaluza’s widely reported efforts to give up alcohol; and his continuing to drink heavily “in spite of the damage caused by alcohol and consistent advice to reduce his intake”.
In the face of this medical opinion that does refer to particular diagnostic criteria, but makes only broad reference to history taken, we considered it permissible to look to other reporting to ascertain whether the evidence elsewhere supports the presence of these signs and features.
We note that Dr Reinhardt took a history of a need for increased amounts of alcohol, as did Dr Koller and Dr Dinnen in an earlier report of his. This satisfies us of the presence of tolerance as defined in the diagnostic criteria.
In October 1972, service medical records noted “LFT's show some mild liver damage probably secondary to [alcohol]”. In his report in February 2012, Dr Dinnen referred to Mr Kaluza’s persistent use of alcohol despite adverse physical effects, including the development of peripheral neuropathy which had improved during a period of abstinence from alcohol. In 2003, Dr Reinhardt referred to Mr Kaluza’s emerging cognitive problems. In 2005 Dr Wong, Occupational Physician, reported on Mr Kaluza’s neuropsychological assessment and the indication that he suffers from cognitive impairment as a result of chronic alcohol abuse. Dr Wong also noted that, after a few months of abstinence, Mr Kaluza had resumed heavy drinking and was likely to continue to do so with the likely result that his cognitive impairment will be permanent. These reports satisfy us that Mr Kaluza engaged in continued alcohol use despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol.
We are satisfied of Mr Kaluza’s attempts to cease using alcohol. These attempts are evidenced by his variously reported periods of abstinence and his admissions to St John of God Hospital.
We are satisfied that Mr Kaluza suffers from alcohol dependence.
As mentioned above, it is a diagnostic criteria of alcohol abuse that “the symptoms have never met the criteria for alcohol dependence”. Consequently, it is unnecessary, and would be incorrect, for us to consider whether Mr Kaluza suffers from alcohol abuse.
Hypertension
There is no dispute that Mr Kaluza suffers from hypertension.
ARE MR KALUZA’S GENERALISED ANXIETY DISORDER, ALCOHOL DEPENDENCE AND HYPERTENSION WAR CAUSED?
We must consider whether Mr Kaluza’s diagnosed conditions were caused by his operational service. In doing so we must apply the standard of reasonable hypothesis by identifying the applicable Statement of Principles (SoP), in this case SoPs No. 101 of 2007 concerning Anxiety Disorder (and, if unsuccessful, then SoP No. 1 of 2000); SoP No. 1 of 2009 concerning Alcohol Dependence and Alcohol Abuse (and, if unsuccessful, then SoP No. 76 of 1998); and SoP No. 35 of 2003 concerning Hypertension. We must consider whether any hypotheses raised by the material before us conform with one of the factors in the relevant SoPs and, if so, whether that factor was related to Mr Kaluza’s operational service. If so, then we must consider whether we are satisfied, beyond reasonable doubt, that the condition is not war caused.
In so doing we will follow the steps set out in Repatriation Commission v Deledio (1998) 83 FCR 82.
Generalised anxiety disorder
We will begin with Mr Kaluza’s generalised anxiety disorder and the current SoP No. 101 of 2007. The factors set out in that SoP and relied on by Mr Kaluza are:
6. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service is:
(a) for generalised anxiety disorder or anxiety disorder not otherwise specified only:
…
(iii) experiencing a category 1B stressor within the five years before the clinical onset of anxiety disorder; or
…
(vi) having a clinically significant psychiatric condition within the ten years before the clinical onset of anxiety disorder; or
…
(c) for generalised anxiety disorder or anxiety disorder not otherwise specified only:
…
(ii) experiencing a category 1B stressor within the five years before the clinical worsening of anxiety disorder; or
…
(v) having a clinically significant psychiatric condition within the ten years before the clinical worsening of anxiety disorder; or
…
Factor 6(a)(iii) poses three issues as to what is pointed to by the material before us: first, whether Mr Kaluza experienced a category 1B stressor; second, the time at which clinical onset of generalised anxiety disorder can be identified; and third, whether the clinical onset took place no more than five years after the category 1B stressor.
Turning to the first inquiry, we considered the definition, in the SoP, of “category 1B stressor”:
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e) being an eyewitness to or participating in, the clearance of critically injured casualties
We did not find material pointing to Mr Kaluza being an eye witness, viewing, or killing in the manner described in the definition during his operational service. For more abundant caution we also considered the definition of “category 1A stressor” as referred to in factor 6(a)(ii):
"a category 1A stressor" means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured
Similarly, we did not find material pointing to any event of the kind described in this definition during Mr Kaluza’s operational service.
It follows that the material does not point to conformity with this factor.
We then turned to factor 6(a)(vi) (having a clinically significant psychiatric condition within the ten years before the clinical onset of anxiety disorder). This factor requires material pointing to the clinical onset of generalised anxiety disorder and material pointing to a clinically significant psychiatric condition within the ten years immediately prior to that onset. “Clinically significant psychiatric condition” is defined in the SoP as:
[A]ny Axis 1 disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner.
We were urged to conclude that “the raised facts… point to the onset of anxiety disorder [sic] in 1968 or 1969” or alternatively in 1972.
This submission gave rise to further submissions on how the Tribunal should approach the question of the date of clinical onset of a disease.
We were directed by Counsel for the Commission to the judgments of the Federal Court in Lees v Repatriation Commission (2002) 125 FCR 331, Repatriation Commission v Cornelius [2002] FCA 750, Repatriation Commission v Milenz [2006] FCA 1436, Repatriation Commission v Brady [2007] FCA 1087, Kowalski v Military Rehabilitation and Compensation Commission [2010] FCA 408, Sloan v Repatriation Commission [2012] FCA 1079.
Counsel for Mr Kaluza relied on the Federal Court’s judgment in Onorato v Repatriation Commission [2011] FCA 1507 which we did not find helpful on the question of clinical onset.
Our reading of the above authorities is that, on questions of clinical onset, we must:
·find material pointing to all of the symptoms of a condition which enable a clinician to conclude that a person suffers from the condition before it can be said that clinical onset is pointed to (Lees); and
·approach clinical worsening (and, we consider, by extension, clinical onset) as a medical-scientific question and not a lay one; the question is a diagnostic one that addresses the features and symptoms of the condition as defined in the relevant SoP and requires that a clinical judgment be made (Milenz);
·have evidence from a medical practitioner that takes into account the criteria prescribed for the relevant disease by the relevant SoP (Brady);
We also note that the Federal Court in Repatriation Commission v Gosewinkel [1999] FCA 1273, held that there cannot be clinical onset of a disease before the condition satisfies all of the requirements of the definition of the disease in the relevant SoP.
The only medical evidence we have on the question of clinical onset of generalised anxiety disorder is that of Dr Dinnen. In his report of October 2012, he said:
The clinical features which would allow diagnoses of generalised anxiety disorder or posttraumatic [sic] stress disorder were not described as being present during those years.
It is unclear which years Dr Dinnen means by “those years”, although he makes frequent reference throughout his report to the period between 1968 and 1972. In answer to the question, reproduced in his report, from Mr Kaluza’s solicitors “[w]hen would you hypothesise that the clinical onset of any anxiety or depressive symptoms occurred?”, Dr Dinnen replied:
As described therefore the clinical onset would have been during operational service between 1969 and 1971.
In answer to the next question from the solicitors “[i]n terms of the diagnostic criteria in the SoPs, what would have been the appropriate diagnosis at the time? Please address those criteria and explain what evidence points to the hypothesis that he satisfied them.”, Dr Dinnen replied:
Anxiety disorder not otherwise specified according to the criteria set out in the Statement of Principles.
We note that the definition of “anxiety disorder not otherwise specified” in the SoP is:
[A] psychiatric disorder (derived from DSM-IV-TR) with prominent anxiety or phobic avoidance that does not meet criteria for any specific anxiety disorder, adjustment disorder with anxiety, or adjustment disorder with mixed anxiety and depressed mood.
It is possible that the brevity of Dr Dinnen’s response and his failure to address relevant diagnostic criteria as requested is explained by the following passage earlier in the report:
Anxiety disorder not otherwise specified is defined as a psychiatric disorder with prominent anxiety that doesn’t meet criteria for any specific anxiety disorder or other psychiatric disorder with anxiety. The patient’s account would suggest that this was the appropriate diagnosis during and after his operational service.
Dr Dinnen did not specify which aspects of “the patient’s account” gave rise to this suggestion. The only mention in Dr Dinnen’s report of an account by Mr Kaluza of anxiety is a reference to Mr Kaluza telling him that “he was very anxious during the trips he made to Vietnam”.
Similar deficiencies were apparent in relation to Dr Dinnen’s answers to similar questions in respect of the clinical onsets of alcohol dependence and alcohol abuse, one or other of which we were also urged to hypothesise had its clinical onset at a time that conforms to factor 6(a)(vi).
It follows that we are unable to find that the material before us points to Mr Kaluza having had a clinically significant psychiatric condition within the ten years before the clinical onset of generalised anxiety disorder.
In addition, we found no material pointing to the clinical worsening of Mr Kaluza’s generalised anxiety disorder and no material pointing to the time of clinical worsening.
We then turned to SoP No. 1 of 2000 which lists the following factors relied on by Mr Kaluza:
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service are:
(a) for generalised anxiety disorder or anxiety disorder not otherwise specified, only
…
(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
(iii) having a clinically significant psychiatric condition within the two years immediately before the clinical onset of anxiety disorder; or
…
The same difficulties in respect of material pointing to the date of clinical onset of either generalised anxiety disorder, anxiety disorder not otherwise specified, alcohol abuse or alcohol dependence attend factors 5 (a)(ii) and (iii) of this SoP.
However, we note that, relevant to factor 5(a)(iii) of this SoP “psychiatric condition” is defined as:
[A]ny Axis 1 disorder of mental health that attracts a diagnosis under DSM-IV
“Clinically significant” is defined as:
[S]ufficient to warrant ongoing management by a psychiatrist, clinical psychologist or General Practitioner
These definitions still require expert medical opinion that refers to diagnostic criteria.
However, even if we are wrong in relation to clinical onset and in relation to whether the material points to a diagnosis of anxiety disorder not otherwise specified, we do not consider that the material points to Mr Kaluza having experienced a severe psychosocial stressor on operational service. In SoP No. 1 of 2000 “severe psychosocial stressor” is defined as:
[A]n identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems
There is no material pointing to Mr Kaluza having been shot at, to the death or serious injury of a close friend or relative, to assault, major illness or injury or to the losses or problems described. We do not consider that the factor requires those specific occurrences, or that the list is exhaustive, but they are an indication of the type of occurrence that is intended by the definition.
The sole occurrence that can be relied on by Mr Kaluza is the incident of the card game on the coffin. We do not accept that the incident of the card game is comparable to the occurrences listed in the definition. We accept that the material points to his having experienced distress on the occurrence but the range of descriptors of that distress contained in the material before us and discussed above does not point to the type or degree of subjective distress set out in the definition.
As to the factors urged by Counsel for Mr Kaluza that involve clinical worsening of his generalised anxiety disorder, we do not find that the material points to the clinical worsening of the condition or to the time of any such clinical worsening, that time being an essential element of the factors.
For these reasons, we consider there is no reasonable hypothesis of war causation of Mr Kaluza’s generalised anxiety disorder.
Alcohol dependence
We turn now to Mr Kaluza’s alcohol dependence and begin with the current SoP No.1 of 2009. That SoP lists the following relevant factors relied on by Mr Kaluza:
6. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service is:
(a) having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse; or
…
(c) experiencing a category 1B stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse;
Counsel for Mr Kaluza stated, in his outline of submissions, his reliance on factors 6(a) and (c) of this SoP. Factor 6(a) is attended by the same problems in relation to clinical onset as are described above in relation to all of the Axis 1 disorders contended by Mr Kaluza. In his report of October 2012, Dr Dinnen does refer to the diagnostic criteria for alcohol dependence, but gives his opinion only about the clinical onset of alcohol abuse – without reference to the diagnostic criteria for that disease. We cannot find material pointing to conformity with this factor.
Nor is there conformity with factor 6(c) because we have found that the material does not point to Mr Kaluza having experienced a category 1B stressor. We reached the same conclusion in relation to a category 1A stressor and for that reason nor is there conformity with factor 6(b).
We then turned to SoP No.76 of 1998 which sets out the following factors relevant to Mr Kaluza’s application:
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:
(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;
For the reasons already stated concerning clinical onset of all contended Axis 1 disorders we cannot find that the material points to conformity with factor 5(a).
Factor 5(b) is:
(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;
“Experiencing a severe stressor” is defined in the SoP as:
[T]he person experienced, witnessed or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
We are mindful that, here, as in all considerations of causation, we are not engaged in fact finding. We must only consider whether the material before us points to the elements of the factor. We consider that the material does point to Mr Kaluza having been confronted with an event (the card game on the coffin) that involved actual death. However, we do not consider that the material points to the event being one which might evoke intense fear, helplessness or horror. The material points to the event having been a card game played on the coffin of a man whom Mr Kaluza mistakenly thought was someone who had been shot by the SAS. He was asked to join the game and did so. The descriptors of Mr Kaluza’s response to the event that feature in the material before us do not point to an evocation of intense fear, helplessness or horror or to the possibility (in the sense of “might”) that he or another man with his knowledge and experience might have that intensity of response. Coffins are not an uncommon sight in everyday life. Mr Kaluza’s evidence at its highest was that he was “horrified”. We do not consider that being “horrified” equates to having a reaction of “intense horror”. Other evidence he has given and histories he has given to medical experts sets his reaction at a significantly lower level of intensity. We are reminded of Dr Reinhardt’s evidence that “his main preoccupation was with feeling guilty and ashamed at being so disrespectful to a fellow serviceman” (transcript p. 34). We do not find that the material as a whole points to the event having amounted to one that might evoke intense fear, helplessness or horror.
We also note that the same difficulties with date of clinical onset arise in relation to this factor.
For these reasons, we consider there is no reasonable hypothesis of war causation of Mr Kaluza’s alcohol dependence.
Hypertension
We turn now to Mr Kaluza’s hypertension. SoP No. 35 of 2003 sets out the following factors relevant to Mr Kaluza’s application:
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension or death from hypertension with the circumstances of a person’s relevant service are:
…
(b) consuming an average of at least 200 grams per week of alcohol which cannot be decreased to less than an average of 200 grams per week, at the time of the clinical onset of hypertension; or
…
(n) suffering from a clinically significant anxiety disorder for the six months immediately before the clinical onset of hypertension
We note that in 2004 the SoP was amended to insert a new factor 5(b) which reads:
(b) consuming an average of at least 200 grams of alcohol per week for a continuous period of at least the 6 months before the clinical onset of hypertension, which cannot be decreased to less than an average of 200 grams per week of alcohol
In 2008 the SoP was further amended to insert a new factor 5(b) which reads:
(b) consuming an average of at least 300 grams of alcohol per week for a continuous period of at least six months before the clinical onset of hypertension
Counsel for Mr Kaluza stated his reliance on factors 5(b) and (n) of the SoP.
It is uncontroversial between the parties that the date of clinical onset of Mr Kaluza’s hypertension was 1975, which Dr Butler, Consultant Physician, found to be the year when a reading of 130/100 was recorded and when hypertensive therapy commenced. We note the diagnostic criteria for hypertension in SoP No. 35 of 2003 as follows:
(b) For the purposes of this Statement of Principles, “hypertension” means permanently elevated blood pressure, evidenced by:
(i) a usual blood pressure reading where the systolic reading is greater than or equal to 140 mmHg or where the diastolic reading is greater than or equal to 90 mmHg; or
(ii) the regular administration of antihypertensive therapy to reduce blood pressure,
This definition excludes temporary elevations in blood pressure from conditions such as acute renal failure, neurogenic hypertension, eclampsia, pre-eclampsia or medications.
Dr Butler’s opinion as to date of clinical onset addresses both alternative diagnostic criteria. We are satisfied that the material points to clinical onset of hypertension in 1975.
In relation to factor 5(n) we note the definition in the SoP of “clinically significant anxiety disorder” as:
Any anxiety disorder attracting a diagnosis under DSM-IV sufficient to warrant ongoing management by a psychiatrist, counsellor or General Practitioner;
The Full Federal Court in McKenna v Repatriation Commission (1999) 86 FCR 144 held that “a complex hypothesis (ie, one comprising more than one element or part) can be no stronger than each of its elements”. For the hypothesised anxiety disorder relied on by Mr Kaluza in relation to this factor to be considered to be related to his service (as required by clause 4 of SoP No 35 of 2003), then that anxiety disorder must itself conform with the SoP relevant to it.
We have already concluded that none of the anxiety disorders hypotheses raised by Mr Kaluza conform to the relevant SoPs. It follows that the hypothesis as to hypertension does not conform to factor 5(n) because any anxiety disorder relied on by Mr Kaluza, as a link in a chain of hypotheses, must itself be war caused.
If our analysis of the reasonableness of this hypertension hypothesis is wrong, then we consider that the hypothesis, even if reasonable, is disproved beyond reasonable doubt because we have found that Mr Kaluza’s generalised anxiety disorder is not war caused.
There is material pointing to Mr Kaluza’s alcohol consumption at the levels required and possibly at the times required by the three versions of factor 5(b). However, to the extent that there is material that points to that hypothesised alcohol consumption being related to alcohol dependence, the hypothesis does not conform to the factor because any alcohol dependence relied on by Mr Kaluza as a link in the hypothesis must itself be war caused. We have found that it is not.
To the extent that there is material that points to a hypothesis that Mr Kaluza consumed alcohol in the amounts required by each version of factor 5(b) outside a diagnosis of alcohol abuse or alcohol dependence, there is no material that points to those levels of alcohol consumption at the required times being related to service as required by clause 4 of the SoP.
If we are wrong in our analysis of the reasonableness of this hypothesis, then the hypothesis, even if reasonable, is disproved beyond reasonable doubt because we have found that Mr Kaluza’s alcohol dependence is not war caused.
It follows that Mr Kaluza’s hypertension is not war caused.
DECISION
The Tribunal varies the decision under review and decides that Mr Kaluza suffers from generalised anxiety disorder, alcohol dependence and hypertension, but not from post traumatic stress disorder or alcohol abuse. The Tribunal further decides that Mr Kaluza’s generalised anxiety disorder, alcohol dependence and hypertension are not war caused.
I certify that the preceding 142 (one hundred and forty -two) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member, Dr S H Toh ........................................................................
Associate
Dated 24 June 2013
Dates of hearing 11 and 12 September 2012 and 7 March 2013 Counsel for the Applicant C Colborne Solicitors for the Applicant Vardanega Roberts Solicitors Counsel for the Respondent K Eastman SC Solicitors for the Respondent Australian Government Solicitor APPENDIX 1
Anxiety symptoms
On 1 April 1965 Mr Kaluza was seen by a psychiatrist who considered he was suffering from a mild anxiety state, apparently derived from emotional problems in relation to his step-father (Tab 39 p 197.6).
In 1972, Mr Kaluza was sent to the United States. He testified that this happened 7 to 8 weeks after he married. He said he was missing his wife and parents and had bad thoughts about a close friend who had been killed in Vietnam and about his own Vietnam experiences. His mind was racing and he could not sleep and drank a lot. When he came back to Australia he just reported having morbid thoughts and dreams but did not want to reveal what they were about because of the stigma of a mental health problem and he only had a year to go to get long service leave (Tab 56 p 307 line 25 to p 309 line 44).
On 10 October 1972, Dr Wilton noted a history of "nervous tension" six weeks earlier when in the USA and to Mr Kaluza being concerned about separation from his wife and to have been drinking heavily. He also worried about his mother. He described tension as building up, difficulty breathing, pain in the chest, a pounding heart and thought his heart may stop. He also was having morbid dreams and thoughts about death a lot. He was diagnosed as having acute anxiety reaction with depressive overtones, probably related to his separation from his parents (Tab 5 p 35.4).
On 17 October 1972, Dr Wilton referred to Mr Kaluza having one mild anxiety attack in the previous week and to remaining anxious when meeting people and to feelings of guilt about having left his wife to go to the USA. On 31 October
1972. he was said to be preoccupied with his health and to be suffering chest
constricting feelings, a lot of flatus and belching, and colicky abdominal pain,
sweating and to be obsessive. His complaints were not incapacitating him greatly
and it was considered important not to reinforce his hypochondasis (Tab 5 p 35-
36).On 12 December 1972, Dr Wilton referred to the psychogenic etiology of his symptoms, to him being extremely insecure and unable to freely express angry feelings and to him being better off if he could cope without medication (T5 p 34).
On 4 January 1972 (sic), Mr Kaluza was said to have suffered from what sounded like a nervous disorder associated with hyperventilation to the point of muscle contraction, palpitations, some looseness of the bowels, dyspepsia and a left inflamammary chest pain (Tab 5 p 33.3). He was noted to be rather agitated and reference was made to his nervous attacks (Tab 5 p 33.6).
In 16 January 1973, Mr Kaluza was noted to be preoccupied with his health, having difficulty getting to sleep and had wind and palpitations after an argument. His nervous condition was said to be predictable. On 13 February1973. he continued to have some somatic complaints and complained of feelings
of insecurity at night. On 13 March 1973 he was said to be getting on well but
not to be sleeping well, having difficulty getting to sleep and to sweating. On 17 April 1973, he was said to be much the same, with his main complaint being a loss of confidence (Tab 5 p 32).An undated report post November 1975, notes that Mr Kaluza commenced heavy drinking and suffered from anxiety whilst in USA in 1972 and that his anxiety state was fairly well controlled by taking Valium when necessary (Tab 5 p 25.4).
On 17 November 1975, Mr Kaluza was said to be suffering from anxiety (1972-1973) but that his anxiety state was in reasonable control (Tab 5 p 31.3).
On 27 November 1975, Mr Kaluza reported that his problems commenced in 1972 and he had suffered from severe anxiety in the USA and developed heavy drinking and continued to have difficulty getting to sleep and to waking up easily (Tab 5 p 29.2) and early and he was talkative with a nervous laugh (T5 p 29.7). His main problem was said to be anxiety which was manifested in many ways and valium was prescribed (Tab 5 p 30.6).
On 17 October 1984, in respect of a claim for hypertension. Mr Kaluza referred to severe mental reaction when told he had polycystic kidneys. He also referred to suffering from fatigue, reduced exercise tolerance and reduced libido in the previous few years and related his hypertension to stress he had been under for 20 years. He mentioned hectic flying conditions, regimented lifestyle with pressure to perform and VIP flights causing great stress (Tab 6 p 43).
On 30 September 2003, Dr Koller referred Mr Kaluza to St John of God Hospital for admission because of his serious alcohol problem (Tab 28 p 130).
In his claim of 2 October 2003, Mr Kaluza referred to symptoms of lack of sleep, nightmares, being short tempered, low self-esteem, suicidal thoughts, and excessive drinking. "Excessive drinking" seems to have been added by Dr House. He also refers to an inability to concentrate, get on with people or finish tasks (Tab 8 p 58 & 62).
On 23 October 2003, Dr Reinhardt described Mr Kaluza"s symptoms as being depression with suicidal ideation, constant feelings of anxiety and apprehension, distressing intrusive thoughts, images and nightmares that relate to his experiences in Vietnam, avoidance of reminders and to having stopped attending ANZAC day, withdrawal from others, loss of interest in activities like golf, irritability, startle response, initial insomnia and disturbed sleep and, more recently, deterioration in memory and concentration (Tab 15 p 92.7). She stated that emerging memory and concentration problems over the last year or so had caused increased anxiety and despair and there has been increased domestic conflict. This had perpetuated a cycle of anxiety, anger, alcohol abuse and guilt. He was agitated and tearful and found to be suffering from chronic PTSD and alcohol dependence, related to Vietnam, and required urgent inpatient treatment (Tab 15 p 93).
From 29 October to 14 November 2003, Mr Kaluza was an in-patient at St John of God Hospital where he was detoxified from alcohol. He was considered to be a highly motivated, intelligent man who should continue to make progress. The diagnosis was chronic PTSD and alcohol dependence (Tab 28 p 131-132).
Dr Koller. Psychiatrist, on 18 December 2003, reported that, at the first consultation, Mr Kaluza complained of a poor family life, heavy drinking, restless sleep and drinking to sleep and to periods of depression (Tab 11 p 76.5) and to a difficult married life once the boys arrived to do with drinking and arguments (Tab 11 p 77.2). He noted thought intrusions, ruminations, distress, recall trauma, angry irritability, sleep disorder, nightmares, poor concentration and avoidance (Tab 11 p 79-80) and diagnosed chronic PTSD and alcohol dependence (Tab 11 p 78.3).
On 8 March 2004, Dr Bell, from HSA, assessed Mr Kaluza, following his absence from work from mid-October 2003. She noted that he had felt at ease with his training role at the Department of Defence but that job had stopped about 2 years earlier and he had been given poorly defined duties and experienced increasing anxiety at work, with poor concentration, difficulty making decisions, an increased sense of isolation and emotional lability, irritability and felt depressed and unable to work (Tab 19 p 108.3).
Dr Bell noted that Mr Kaluza had suffered from anxiety for many years and had recurrent nightmares about some experiences in Vietnam and had long standing sleep disturbances as a result. She also wrote that he experiences a marked startle reaction, sometimes with flashbacks to experiences in Vietnam. In 1973, he had experienced severe anxiety and depression in the USA with panic attacks, insomnia and a feeling he was about to die, which improved over 3-4 years and he was treated with antidepressants and psychotherapy (Tab 19 p 108.4). She implied that over the preceding 2 years his concentration and memory had been impaired, and she noted that he was irritable, emotionally labile, has difficulty making decisions, worsening sleep due to worry about work and recurrent thoughts that he should not be alive and nightmares (Tab 19 p 108.8).
Dr Bell noted that at St John of God Mr Kaluza underwent detoxification and psychotherapy and continued to see Dr Reinhardt and take Cipramil. His mood was more stable but he still had recurrent nightmares, poor concentration and difficulty making decisions etc (Tab 19 p 109.1). He appeared anxious and was slightly tearful at times and his thought content was depressed. His short term memory was moderately impaired and his concentration was very poor (Tab 19 p 109.5). She said he was suffering from chronic PTSD. alcohol dependence, associated with marked depression, anxiety, impaired memory and concentration and decision making and was currently unfit for work (Tab 19 p 109.7).
On 15 June 2004 and 2 March 2005, Dr Reinhardt noted that Mr Kaluza's alcohol dependence was in remission but his residual PTSD symptoms meant he was TPI and not suitable for retraining (Tab 20 p 111 & Tab 22 p 113).
On 14 June 2005, Dr A Wong, Occupational Physician, noted that neurological assessment on 16 May 2005 highlighted cognitive impairment as a result of chronic alcohol abuse. He noted that the diagnosis of PTSD was not universally accepted but that generalised anxiety disorder ("GAD") would also apply and. regardless of the diagnosis, Mr Kaluza was unfit for work and should be referred for Total and Permanent Incapacity Retirement (Tab 23 p 114-115).
On 27 April 2006. Mr Kaluza told the VRB that he has been on medication for his psychiatric condition for about 2 ½ years and has dreams that are morbid about either death or destruction and he feels helpless laying in a coffin not able to breathe, laying in a coffin, playing cards, taking turns, someone shooting at him and being chased (Tab 30 p 153.3) and these were the same as the ones he had in the USA (Tab 30 p 153.7).
On 22 March 2007, Dr Dinnen reported that Mr Kaluza was tense and unsettled throughout the interview (Tab 37 p 183.8). At work, he could not concentrate or focus and masked his difficulties by drinking (Tab 37 p 184.2). Dr Dinnen did not cavil with a diagnosis of PTSD but diagnosed GAD and alcohol abuse due to service (Tab 37 p 190.3).
Dr Dinnen told the Tribunal that Mr Kaluza drank more heavily due to Vietnam as a way of covering up his anxiety symptoms. He considered that the alcohol became an established problem toward the end of the 1960s and certainly became established between 1968 and 1972 (Tab 59 p 344 line 19). He thought the diagnosis from 1972 to 1975 was a generalised anxiety disorder but it was more like PTSD from 2003 (Tab 59 p 344 line 27). He thought the onset or re-emergence of the anxiety disorder was in 1969 or 1970, due to witnessing casualties and dealing with the casket, and this was indicated by Mr Kaluza’s alcohol abuse but it was not diagnosed clinically until 1972 (Tab 59 p 344 line 36 & Tab 60 p 248 line 4 & 28-39). He later stated that he thought the anxiety condition had been present throughout the years and varied and this was the natural history of the condition (Tab 60 p 349 line 6).
Dr Dinnen also testified that the position in 1972 would fit the diagnosis of acute anxiety disorder not otherwise diagnosed, with elements of panic disorder. He thought that Mr Kaluza had then been treated for a generalised anxiety disorder (Tab 61 p 353 line 7).
On 4 May 2007, Dr Roberts wrote that Mr Kaluza had no physiological symptoms of heightened anxiety and this would preclude a diagnosis of PTSD (Tab 40 p 211.3). It would also be most peculiar for a person with PTSD to maintain an association with the military (Tab 40 p 213.5). He noted that Mr Kaluza and his wife live separately under the one roof due to his alcohol ingestion (Tab 40 p 213.8). He stated that Mr Kaluza did not mention other personal, domestic, financial or sexual problems other than financial (Tab 40 p 213.9). Dr Roberts thought the account of identical dreams was that of a malingerer (Tab 40 p 214.3) and found Mr Kaluza's presentation consistent with mild depression and anxiety, with no evidence of cognitive impairment (Tab 40 p 214.8). He thought the stressors were not sufficient for PTSD (Tab 40 p 216.3) and he couldn't confirm a diagnosis of PTSD or an anxiety disorder (Tab 40 p 220.3) and, in any event, stated that there was no significant stressor on service (Tab 40 p 221.2).
Mr Kaluza testified that he maintained his association with the RAAF because that was all he knew and he was married and was financially reliant on his employment. He said it had reminded him of awful events but he thought he would get over it (Tab 56 p 312 line 42).
On 6 December 2011, Dr Reinhardt, responded to a request to provide, amongst other things, a diagnosis or diagnoses by reference to DSM-IV-TR. She has been Mr Kaluza’s treating psychiatrist since 21 October 2003 (p 3.6). She set out the symptoms Mr Kaluza displays against the criteria for a diagnosis of PTSD and concluded that he suffers from chronic PTSD. She stated that if it was found that the stressors he experienced were not sufficient for a diagnosis of PTSD then she would diagnose generalised anxiety disorder (p 2). She considered his psychiatric condition to be severe (p 4.1) and this is consistent with the various periods of inpatient and out-patient treatment that she lists (p 3).
On 2 February 2012, Dr Dinnen prepared another report, having examined Mr Kaluza again. He did not question him very closely because of his obvious distress (p 2.1). He considered that he suffered from generalised anxiety disorder with obvious features of PTSD (p 7.8). He considered that Mr Kaluza's experiences in Vietnam were sufficiently stressful to cause his psychiatric condition (p 8.1).
APPENDIX 2
Alcohol related symptoms and disease
On 11 August 1972, Mr Kaluza was noted to be having 2 beers each day (Tab 5 p 37.3).
On 9 October 1972, it was noted LFT's show some mild liver damage probably secondary to alcohol (Tab 5 p 35.2).
On 10 October 1972, he was said to be drinking 4-5 schooners a day (Tab 5 p 35.5). Mr Kaluza testified that had tried to stay of the booze in 1972, his weight was taken weekly and his drinking was reviewed regularly (Tab 56 p 311 line 21-43).
An undated report post November 1975, notes that Mr Kaluza commenced heavy drinking and suffered from anxiety whilst in USA in 1972 (Tab 5 p 25.3).
Mr Kaluza told the Tribunal that his marriage suffered terribly because of his drinking and in about 1977 or 1979, he had a punch-up with a subordinate at a Christmas Party and he was carpeted and transferred to another unit and again tried to clean up his act (Tab 56 p 311 line 45).
In August 1980, Mr Kaluza was said to have had DUI charges 11 months and 1 week previously and had sought assessment for alcohol rehabilitation. He was reported to drink 4 to 5 cans on Wednesday nights and 6 cans on Saturdays and Sundays but that alcohol was not affecting his work or marriage. He was referred for assessment in respect of his alcohol and thought that acceptance into a program may alleviate results of his DUI problem (Tab 5 p 22).
On 20 June 1981, it was noted that Mr Kaluza had presented in August 1980 and April 1981 for medical attention because he was concerned about his drinking habits and was facing upcoming DUI offences. It was recorded that "Alcohol - Nil" and that he was undergoing a Phase II programme at Hawkesbury Community Centre (Tab 5 p 21.5).
Mr Kaluza testified that he had a child of 3 or 4 at the time of the second DUI and his wife was pregnant and he thought he could be kicked out of the RAAF. The authorities had wanted to put him in a rehabilitation centre but, if that had happened, everyone on the Base would have known he was a drunk. He was given the option to do a voluntary 10 to 12 week course with Alcoholics Anonymous and he did this and was abstinent for 12 months (Tab 56 p 309 line 46 top 310 line 44).
On 17 October 1984, Mr Kaluza is reported as starting to drink on joining the RAAF, to drinking 4 to 6 a week and to never having drank heavily (Tab 6 p 50.5).
On 29 July 1986, Mr Kaluza told the Veterans' Review Board that he had started to drink after enlistment (Tab 7 p 53.5).
In his claim of 2 October 2003, Mr Kaluza or Dr House referred to excessive drinking as one of the symptoms of his nervous tension (Tab 8 p 58).
On 23 October 2003. Dr Koller, referred Mr Kaluzu to Dr Reinhardt for admission for alcohol dependence (Tab 12 p 81). He referred to a history of binge drinking 8 or 9 schooners and often more and much scotch and being crook the next day. He drank heavily every day and this started in the RAAF where he said "if you don't drink, your were not part of the team" (Tab 12 p 82.5).
On 23 October 2003, Dr Reinhardt referred to Mr Kaluza drinking since Vietnam, with DUIs in 1981 and 1982 and loss of licence, abstention for 4 months and continued drinking since then. His current intake was 6 to 7 beers and approximately 1/3 of a bottle of scotch (Tab 15 p 92.5). There was some improvement in his anxiety in 1972 but he treated ongoing anxiety with increasing quantities of alcohol (Tab 15 p 93.1)
Dr Koller, Psychiatrist, on 18 December 2003, reported that Mr Kaluza complained of heavy drinking, drinking to sleep, binge drinking, 8 or 9 schooners and often more and much scotch and of the heavy drinking started in the RAAF, where you drink to be part of the team (Tab lip 76.5), and being aware of the effects of alcohol but that attempts to control his drinking had failed (Tab 11 p 79.4).
On 8 March 2004, Dr Bell, from HSA wrote that throughout his time in Vietnam and thereafter, Mr Kaluza was drinking heavily and has been a binge drinker ever since his anxiety disorder in the USA and has used alcohol to calm himself when his anxiety symptoms and sleep disturbance have been exacerbated. He had 2 DUIs in 1981 and 1982 and was then abstinent for about 12 months (Tab 19 p 108.6). Fie was noted to be drinking increasing amounts of alcohol to control his thoughts and emotions and his hangover made it increasingly difficulty for him to perform at work (Tab 19 p 108.9). With one exception, he had stopped drinking since his admission to hospital and he felt his family had suffered from his long history of heavy drinking (Tab 19 p 109.3).
On 14 June 2005, Dr A Wong, Occupational Physician, noted Mr Kaluza had resumed drinking 6-7 beers and 2 glasses of wine or scotch in the previous 3 months and thus his related cognitive impairment was likely to be permanent (Tab 23 p 114).
On 18 April 2006, Mr Kaluza stated that he depended on alcohol or pills to get to sleep and drinking caused major hassles with family and friends and he shied away from groups because of his drinking (Tab 28 p 140.8).
On 27 April 2006, Mr Kaluza told the VRB that he drank before Vietnam on a social basis but drank more after his Vietnam trips to dull the pain of those trips and drank considerable amounts in the late 1960s and early 1970s and would have averaged more than 3 or 4 drinks a day. He drank more in the USA and had a couple of binge drinking sessions there and was treated for alcoholic poisoning, anxiety and depression and thinks he had anxiety attacks from being away from everyone. He had not wanted to discuss the morbid dreams about Vietnam at the time (Tab 30 p 153.4), which he started to get while in the USA (Tab 30 p 154.6).
On 18 April 2007, Dr Butler, Consultant Physician, recorded that Mr Kaluza, after joining the RAAF, would go drinking with the boys several times weekly. Serious drinking seems to have occurred in relation to an 8 week trip to the USA in 1972. He was drinking a litre of whisky and 24 cans a week. Dr Butler estimated he was then consuming in excess of 600 grams weekly. In 1980 and 1981 DUIs led to abstinence for about a year but then a return to previous habits. Following the admission to St John of God in 2003 he was again abstinent for about a year. Dr Butler reported that he was drinking 5-8 standard drinks a day (Tab 33 p 172).
0n 22 March 2007, Dr Dinnen, stated that, because of his drinking, Mr Kaluza took a friend's advice and went to Vietnam Veterans. He continues to binge drink usually 8 to 10 beers and scotch when he does drink heavily (Tab 37 p 184.7). He started drinking when he joined the Air Force in 1963 and drank more heavily when posted to 37 Squadron in 1966/1967. He realised he had a problem in 1972 (Tab 37 p 184.8). He and his wife have lived separately under the one roof for 10 year "maybe because I always hit the bottle" (Tab 37 p 187.3).
On 4 May 2007, Dr Roberts recorded a history of Mr Kaluza being a binge drinker who consumed 8 to 9 stubbies and in excess of 1/3 of a bottle of scotch a couple of times of week for in excess of 20 years (Tab 40 p 208.3). He said Mr Kaluza said his intake of alcohol had been heavy since 1972 but then said that after the 1972 incident it had been social until the DUI's (Tab 40 p 212.8). Dr Roberts doubted the heavy drinking in 1972 having regard to documentation about alcohol not affecting work or marriage (Tab 40 p 217.8).
Dr Roberts thought it strange that Mr Kaluza did not comment on his symptoms recorded in the RAAF (Tab 40 p 218.3). Dr Roberts thought it was unlikely that he could drink as claimed and yet maintain employment (Tab 40 p 220.7). He maintained that position before the Tribunal. In his report, Dr Roberts wrote that he did not think Mr Kaluza showed organic cerebrial sequelae of alcohol ingestion (Tab 50 p 221.1).
Dr Dinnen told the Tribunal that Mr Kaluza's heavy drinking from the time of the stressful events was a way of dealing with a more prominent anxiety state (Tab 59 p 344 line 4-9 & Tab 60 p 348 line 30 & 37). He confirmed his diagnosis of alcohol abuse, that was established towards the end of 1960s or between 1968 and 1972 (Tab 59 p 344 line 17-25).
Mr Kaluza testified that he had been a social drinker and first had problems with drinking from 1968/69 when he was labeled as a drunk and became quarrelsome and argumentative and was not doing as good a job as he probably could. He said that people who drank in moderation avoided him and it was an ongoing thing of trying to stay off it (Tab 56 p 312 line 14-40).
On 6 December 2011, Dr Reinhardt stated that Mr Kaluza had been drinking excessive alcohol since his Vietnam experiences and had developed tolerance and symptoms of psychological withdrawal when he tried to abstain. She noted that he was still binge drinking every 4 to 5 days and diagnosed alcohol dependence (p 3.1).
On 2 February 2012, Dr Dinnen reported that Mr Kaluza was still drinking scotch, wine and beer and would usually have 4 longnecks a day. After a heavy-drinking session he would not drink for 2 or 3 days (p 2.6). He was still drinking despite having peripheral neuropathy which improved when he abstained for 12 months (p 2.6). Dr Dinnen noted attempts at abstinence, drinking despite adverse physical effects and tolerance and suggested that the diagnosis of alcohol dependence may be correct (p 7.7).
2
11
0