Stewart and Repatriation Commission

[2007] AATA 1598

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1598

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q 200600787

VETERANS’ APPEALS  DIVISION		)
Re		Colin Joseph Stewart

Applicant

And  Repatriation Commission

Respondent

DECISION

Tribunal

Senior Member Bernard J McCabe

Dr Graham J Maynard, Member

Date              27 July 2007

PlaceBrisbane

Decision The decisions with respect to the applicant’s anxiety, alcohol abuse and hypertension conditions are affirmed. The decision with respect to the applicant’s tinea is set aside. The Tribunal decides in substitution that the tinea condition is related to the applicant’s service. That aspect of the matter is remitted to the respondent for assessment. The date of effect is 10 August 2004.

................[Sgd].......................

SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – disability pension – skin condition – found to be related to operational service – decision set aside and substituted

VETERANS’ AFFAIRS – Veterans’ Entitlements – disability pension – whether events constitute a severe psychosocial stressor or severe stressor – events startling but lack necessary social element – similarly of insufficient severity to be a severe stressor – statement of principles not satisfied – decision affirmed

Repatriation Commission v Repatriation Commission (1998) 49 ALD 193

Stonehouse and Repatriation Commission [2004] AATA 707

Lees v Repatriation Commission (2002) 125 FCR 331

Youngnickel v Repatriation Commission [2004] FCA 1691

Veterans’ Entitlements Act 1986

REASONS FOR DECISION

27 July 2007    Senior Member B J McCabe

Dr G J Maynard, Member

1.      Mr Stewart suffers from a number of health conditions. He says the conditions are attributable to his operational service in the Navy during the 1960’s. He has made a claim for a disability pension under the Veterans’ Entitlements Act1986 (the Act) but the respondent says he is not eligible. Mr Stewart asked the Tribunal to reconsider his claim.

2.      Mr Stewart says he suffers from generalised anxiety disorder, an alcohol abuse condition, hypertension and tinea. He says the anxiety condition arose after he was exposed to events occurring on board HMAS Derwent in 1965 while it was on operational service in Indonesian waters. His anxiety condition contributed to his alcohol abuse (although he argues in the alternative that the alcohol abuse might have been triggered directly by some of the same events contributing to his anxiety condition) which led in turn to his hypertension. The tinea stands alone.

3.      In order to decide the claims, we must use the statements of principles published by the Repatriation Medical Authority. As we will explain, the substance of the dispute in relation to the anxiety, alcohol and hypertension conditions revolves around the meaning of the expressions severe psychosocial stressor in the SoP in relation to anxiety disorder (No 1 of 2000) and severe stressor in the SoP relating to alcohol abuse or dependence (No 76 of 1998).

4.      For reasons we will explain, the claims in respect of anxiety, alcohol abuse, and hyptertension must fail. The claim in respect of tinea should succeed. 

the background

5.      The applicant joined the Navy when he was 17. He worked as an electrical technician aboard HMAS Derwent while it was deployed on operational service during the Indonesian confrontation in 1965. He was about 23 years old at the time, and a leading hand. He told the Tribunal in his evidence that he was enjoying rapid promotion through the ranks. His rapid progress continued after the events we will come to shortly, but he said he became a heavy drinker and experienced anxiety symptoms. It was not until some time later the conditions began to affect his work performance. He says his drinking in particular had a disastrous impact on his family life. He left the Navy in 1969 after nine years of service. He was employed in the construction of power stations but has not worked since 1995 when he was made redundant.

the legislation and its application

6.      Claims for a disability pension must be assessed in accordance with s 120 of the Act. We are required to establish a diagnosis before making a number of inquiries. The steps in the inquiry process were outlined by the Full Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193.

7.      In this case, there is no real dispute as to diagnoses. The evidence clearly establishes the applicant suffers from an anxiety condition, alcohol abuse and dependence, hypertension and tinea. We must then move on to the Deledio steps.

8.      The first step requires that we identify a hypothesis connecting the applicant’s operational service with the diagnosed conditions. There must be evidence that points to the conclusion favoured by the applicant. We accept that has been done here: the applicant referred to three separate incidents which could (subject to what follows) have contributed to the development of the anxiety, alcohol and (indirectly) hypertension conditions. We also accept his service aboard a ship operating in the tropics may have caused or aggravated a tinea condition.  

9.      The second step is to identify the relevant SoPs. We confirm they are:

·Anxiety disorder (No 1 of 2000);

·Alcohol abuse and/or dependence (No 76 of 1998);

·Hypertension (No 35 of 2003, as amended by No 3 of 2004); and

·Tinea of the skin (No 13 of 2004).

10.     The third step is the contentious one in this case. At this point, we are required to consider whether the applicant’s account is capable of fitting within the SoPs. We do not engage in a fact-finding process: we merely ask whether the story as it was told, can satisfy the SoPs.

11.     We will deal with the tinea condition first. This applicant will be able to ‘fit the SoP’ if there is evidence of skin maceration (softening skin, with peeling) at the affected site within 14 days of the onset of tinea or its clinical worsening.

12.     There was evidence that the applicant experienced a skin condition that may or may not have been tinea in 1960 while he was based at HMAS Cerebrus. He said he was treated for the condition and it quickly resolved. He said it presented quite differently to the condition he later developed while he was serving aboard HMAS Derwent. The applicant described maceration during the course of his operational service. We accept his evidence fits the SoP.

13.     The situation in relation to the other conditions is more complicated. We have to decide whether one or more of three incidents described by the applicant is capable of being regarded as a severe psychosocial stressor or a severe stressor. The incidents in question were:

·The machine gun incident. The applicant says the ship was on alert and he was posted to a space in the foc’sle of the ship. He was on his own and the room was sealed (although not locked) because of the alert. There were two large diesel engines inside, one of which was operating. It was very noisy. The applicant was able to communicate with crew in other parts of the ship by phone in an emergency but he was otherwise isolated. The ship was cruising at about 18 knots but he became aware that it suddenly increased its speed to about 28 knots. The ship became even noisier and vibrated at that speed. He said he assumed the vessel was chasing something. He was startled when a machine gun began to fire. The gun was positioned on the deck immediately above his position. He said he heard the sound of the gun and then a tinkling sound on the outside of the hull. For a few seconds, he assumed the ship was under fire. He said he thought the rounds were striking the hull immediately outside. He said he felt fear for his life and, for a few seconds at least, he thought about his wife and child and believed he was about to die. He soon realised the sound he heard was spent shell casings from the ship’s gun striking the deck. He understood then he was in no immediate danger. He said the whole incident might have lasted less than a minute, and his erroneous perception of being fired upon may have lasted for perhaps 30 seconds. The applicant said he had only heard the guns fire once before.

·The drunken superior. The applicant was put in charge of a shore patrol when the ship visited Tawah. As part of his responsibilities, he accompanied an inebriated sailor to the ship. The sailor in question happened to be the veteran’s supervisor. As their boat approached the ship, the supervisor and the officer of the day on the ship began an altercation. They were shouting at each other.  The supervisor became abusive towards the officer who directed that the man be arrested and charged. When the men boarded the Derwent, the supervisor said he wanted to find the officer and kill him. The applicant physically restrained the supervisor. The applicant grasped the man in a bear hug and ended up sitting on top of him in an attempt to calm him down and restrain him from carrying out his threat against the officer who was elsewhere on the ship. The applicant said he felt guilty because the supervisor was ultimately sent home and Mr Stewart was given his job.

·The aftermath of a shooting incident. The applicant says the Derwent was despatched to rendezvous with a mine sweeper. A member of the mine sweeper’s crew had gone “bersek” with a machine gun and sprayed his vessel with bullets. He shot himself in the foot in the process. The Derwent was sent to collect the man and take him for treatment. The applicant said the scene was calm when the Derwent pulled alongside the minesweeper but the bullet holes in the ship and the injured sailor were there to be seen.

14.     We do not think any of these events when witnessed by a person with the background, experience and training of the applicant would be regarded as a severe psychosocial stressor. The machine gun incident in particular might have been startling, but the fact an event was frightening does not of itself lend it the character of a psychosocial stressor. As the Tribunal explained in Stonehouse and Repatriation Commission [2004] AATA 707:

“The events described in the definition are stressful – but not simply because they are frightening or unusual. Many of the events described, like a divorce or unemployment, are common events that do not ordinarily engender fear. They do cause distress, however, and almost everyone can relate to the pressure and tension one experiences in those situations. Even events that involve violence (eg, being shot at) are psychosocial stressors because the victim is likely to be distressed by the motivation of the aggressor ("What have I done to deserve this? Why me? How could someone do such a thing?") rather than simply being frightened or fearing for his or her bodily integrity. An event that was merely dangerous or frightening – particularly an event that happened quickly, and which passed – does not amount to a psychosocial stressor without that additional dimension. The term was not intended to include all kinds of stressful and terrifying events – the social element makes it quite distinct from the concept of a severe stressor for the purposes of the SoP regulating post-traumatic stress disorder. A severe psychosocial stressor must be a stressor that is both severe and psychosocial in nature, and cause the requisite level of distress to the individual. To satisfy the SoP the individual must have experienced an identifiable event which has social factors that affected his or her mind or behaviour, causing the requisite level of distress.”

15.     We note the applicant in the present case believes he was shot at. Given the fleeting nature of the incident, and the fact there was no social dimension to the stress, we are not satisfied the incident could be described as a severe psychosocial stressor. We do not think his youth or lack of experience of being under fire or the isolation of his position on the ship change the analysis

16.     Being shot at might also be seen as a severe stressor. In this case, we are not persuaded the event – while startling, and momentarily frightening – is of sufficient severity and intensity to merit the description severe stressor. The ship was a large target and it was well-protected against small arms fire. The applicant believed the shells were striking the hull close by his position, but we doubt a person with the background, experience and training of the applicant would believe he was faced with the prospect of death or serious injury.

17.     We are satisfied that neither of the other events described by the applicant can qualify as severe stressors. They are of a different nature and intensity to the examples offered in the course of the definition. They simply do not satisfy the definition of the concept set out in the SoP relating to alcohol abuse.

18.     It follows the applicant’s claim in respect of anxiety disorder and alcohol abuse must fail at the third stage of the Deledio process. We add we are not satisfied from the evidence that a doctor would have been able to diagnose either condition within two years of the date of the incident as required under each SoP. While it is conceivable that symptoms of the conditions were present from an early stage, the courts have made it clear that all of the elements of the condition must be present before one can fix the date of the onset of the condition: Lees v Repatriation Commission (2002) 125 FCR 331; see also Youngnickel v Repatriation Commission [2004] FCA 1691. It also follows the hypertension claim must fail.

19.     We accept the applicant’s tinea condition occurred as he said during the course of his operational service. It is unclear whether the condition was the same condition as the one that was treated in 1960. Even if it was, the condition became symptomatic and was apparently aggravated by the circumstances of the applicant’s operational service in the tropics.

conclusion

20.     The decisions with respect to the applicant’s anxiety, alcohol abuse and hypertension conditions are affirmed. The decision with respect to the applicant’s tinea is set aside. The Tribunal decides in substitution that the tinea condition is related to the applicant’s service. That aspect of the matter is remitted to the respondent for assessment. The date of effect is 10 August 2004.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe and Dr Graham J Maynard, Member.

Signed:         .....................................................................................
  Associate:     Stephen O’Grady

Date of Hearing  29 June 2007
Date of Decision  27 July 2007
The applicant was represented by Mr Reid, of counsel.

The respondent was represented by Mr Smith, a department advocate.