STICHER Applicant And REPATRIATION COMMISSION
[2010] AATA 336
•7 May 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 336
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/5217
VETERANS' APPEALS DIVISION ) Re MICHAEL STICHER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr S Karas, AO, Senior Member Date7 May 2010
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and substitutes it for the decision that the applicant is entitled to pension under the Veterans’ Entitlements Act 1986 (Cth) on and from 23 February 2008.
..................[Sgd]..................
Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – Pensions and benefits – Whether injury or disease is war-cause – Application of Statement of Principles – Requisite hypothesis satisfied connecting injury or disease to operational service – Conditions for satisfying a category 2 stressor met – Decision set aside.
Veterans’ Entitlements Act 1986 (Cth)
Bushell v Repatriation Commission (1992) 175 CLR 408
Repatriation Commission v Deledio (1998) 83 FCR 82
Stoddart v Repatriation Commission [2003] FCA 334
REASONS FOR DECISION
7 May 2010 Mr S Karas, AO, Senior Member BACKGROUND
1. Michael Sticher (the applicant) was born in 1952 and served with the Australian Army from 4 March 1969 to 3 March 1972. He rendered operational service in South Vietnam from 13 March 1971 and left there on board the HMAS Sydney on 6 November 1971. He arrived back in Australia on 16 November 1971.
2. A decision by a delegate of the respondent dated 12 January 2009 found that the conditions of Anxiety Disorder and Alcohol Abuse and Alcohol Dependence were not war-caused. On 15 September 2009, the Veterans’ Review Board (VRB) varied the decision under review by amending the diagnosis of Alcohol Abuse and Alcohol Dependence to Alcohol Dependence and affirmed the decision. The applicant’s pension in respect of his accepted conditions was found by the VRB to have been correctly assessed at 30% of the general rate during the assessment period.
3. On 30 October 2009, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the VRB decision.
ISSUES AND LEGISLATION
4.The issues for the Tribunal to determine are:
(a)whether anxiety disorder and alcohol dependence are war-caused within the meaning of s 9 of the Veterans’ Entitlements Act 1986 (Cth) (the Act); and particularly,
(b)whether the applicant experienced a category 1A, 1B or category 2 stressor (as defined in the various Statements of Principle listed below) during operational service and whether the clinical onset of anxiety disorder preceded the clinical onset of alcohol dependence.
5.Section 9 of the Act provides that a persons’ injury or disease is war-caused if it:
· resulted from an occurrence on operational service;
· arose out of or was attributable to eligible war service;
· resulted from an accident while travelling to or from duty;
· was due to an accident that would not have occurred or a disease that would not have been contracted but for eligible war service; or
· was contributed to in a material degree or aggravated by eligible war service.
6. In determining the issues, the Tribunal must apply different standards of proof in respect of the applicant’s operational and non-operational service.
7. The standard of proof that applies in relation to operational service is that of “reasonable hypothesis” ss 120(1) and 120(3) of the Act. Whether a hypothesis is reasonable is determined by reference to s 120A of the Act and the relevant Statement of Principles (SoPs).
8. The standard for non-operational service is that of “reasonable satisfaction”, s 120(4) of the Act. The Tribunal will be “reasonably satisfied” if, on the balance of probabilities, the applicant’s condition is defence-caused in accordance with s 120B of the Act and the relevant SoPs.
9. The SoPs set out factors that, if met, satisfy the standard of proof requirements. At least one of these factors must be found to exist before the requisite nexus between the applicants’ condition and his service may be found. The relevant SoPs for this matter are:
· Generalised Anxiety Disorder: Instrument No 1 of 2007.
· Alcohol Abuse/Dependence: Instrument No 1 of 2009 and Instrument No 17 of 2008 which was in force at the date of the respondent’s decision.
10. Instrument No 101 of 2007 contains the following factors:
(a) for generalised anxiety.
(i) being a prisoner of war before the clinical onset of anxiety disorder; or
(ii)experiencing a category 1A stressor within the five years before the clinical onset of anxiety disorder; or
(iii)experiencing a category 1B stressor within the five years before the clinical onset of anxiety disorder; or
(iv)having a significant other who experiences a category 1A stressor within the two years before the clinical onset of anxiety disorder; or
(v)experiencing a category 2 stressor within the one year 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
(vii)having a medical illness or injury which is life-threatening or which results in serious physical or cognitive disability, within the five years before the clinical onset of anxiety disorder; or
(viii) having epilepsy at the time of the clinical onset of anxiety disorder; or
(ix)having chronic pain of at least three months duration at the time of the clinical onset of anxiety disorder; or
(x)experiencing the death of a significant other within the two years before the clinical onset of anxiety disorder; or
"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;
"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;
"a category 2 stressor" means one or more of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry:
(a)being socially isolated and unable to maintain friendships or family relationships, due to physical location, language barriers, disability, or medical or psychiatric illness;
(b)experiencing a problem with a long-term relationship including: the break-up of a close personal relationship, the need for marital or relationship counselling, marital separation, or divorce;
(c)having concerns in the work or school environment including: on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful work loads, or experiencing bullying in the workplace or school environment;
(d)experiencing serious legal issues including: being detained or held in custody, on-going involvement with the police concerning violations of the law, or court appearances associated with personal legal problems;
(e)having severe financial hardship including: loss of employment, long periods of unemployment, foreclosure on a property, or bankruptcy;
(f)having a family member or significant other experience a major deterioration in their health; or
(g)being a full-time caregiver to a family member or significant other with a severe physical, mental or developmental disability;
"a clinically significant psychiatric condition" means any 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;
11. The relevant SoPs concerning Alcohol Abuse or Alcohol Dependence provides:
(a)having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b)experiencing a category 1A stressor within the five years before 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; or
12. Section 19 of the Act provides that an applicants’ incapacity from war-caused or defence-caused conditions shall be assessed throughout the whole of the assessment period, which commences on the application date (in this case 23 February 2008) and ends when the claim or application is determined.
EVIDENCE
13. A hearing of this matter was held on 9 April 2010. The applicant attended with his wife. He was represented by Counsel (Mr Harding) and Mr Kelly represented the respondent.
14. The applicant confirmed that what he had said at his earlier interviews with the respondent and VRB was true and correct and was consistent with the evidence given at the hearing before the Tribunal where the applicant was more expansive and elaborated on his earlier statements and referred in greater detail to his Vietnam experiences. He expressed his feelings of frustration, his inability to fit in and wanting to come home, that he really missed Australia and his family and that he had made a mistake in joining up.
15. In his evidence at the hearing, the applicant referred in part to his attending boarding school, and living with his grandmother as he was unable to live with his violent father at home.
16. After finishing school (he did not finish grade 11) he went to work at Rothwells in Brisbane. He joined the army in 1969 on “the spur of the moment” not thinking he would have to serve in Vietnam. He went to Vietnam at age 19 in February 1971. He was not keen on being a soldier and was not a good one. He was frightened when the guns went off and when on picket duty in the dark. He was a “terrible smoker” and “boozed” all of the time.
17. The applicant told of his training at Kapooka, learning tailoring in Albury and his transfer to Townsville before going to Vietnam. As a tailor in Vietnam he had his own “Humpy”, where he made flags and the like.
18. He felt the separation especially from his family. He had so much time on his hands in Vietnam, and with nothing to do, he drank beer. He would volunteer for convoys to help break the boredom. When bored he would go within himself and drink a lot. He wept in his bed as he had wept in boarding school. He felt he had “no direction”. He felt he was not coping and felt down about the separation from his family. He felt he was treated differently from the other soldiers and was ostracized to an extent.
19. He noted that back home his mother, sister and three younger brothers were suffering at the hands of his abusive father and he felt powerless to assist them while in Vietnam.
20. In Vietnam he had an allocation of alcohol and he also received the allocations of others who did not drink. There was always plenty of beer and he could also get spirits. He usually succumbed to drinking duty free alcohol that was intended to be sent to Australia.
21. When he returned to Australia he had “weeks and weeks of boozing” and drank all the time. He got “into boozing so much he couldn’t get out of it”. He had no contact with anyone other than his family. He got his job back at Rothwells and met his wife.
22. The applicant referred to the loss of his child soon after birth and he thought the loss of the baby was “because of Vietnam”.
23. He referred to his experiences as a train driver in Brisbane, his continued drinking, and other incidents that added to or kept him drinking. He indicated that he saw Dr Hargreaves, a consultant psychiatrist in 2001. He was proud of himself as a train driver before falling “in a heap” after witnessing a suicide attempt and becoming very depressed and unable to sleep.
24. Dr Hargreaves gave evidence over the telephone. He submitted two reports on the applicant dated 9 August 2001 and 28 September 2008. The reports reflect the facts told to him by the applicant. He first saw the applicant in 2001. Reference was made to the applicant’s anxiety and emotional state in Vietnam and how he turned to alcohol to cope. The applicant was not coping with a range of stressors in Vietnam including family happenings in Australia and was diagnosed with an anxiety disorder. He got into the alcohol as a relaxant and for self medication.
25. Mr Harding referred to the issues in this matter and how the anxiety disorder was caused by the applicant’s Vietnam service and it constituted a Category 2 stressor as the applicant underwent social isolation, and lack of friendships in Vietnam. He had concerns in his work environment, was bullied and lacked social support. Reference was also made to the family’s deteriorating situation in Australia and his helplessness while in Vietnam to do anything for the family. In Vietnam, the applicant “broke down”, was not coping or “fitting in” there. Given his circumstances Category 2 stressors applied in his case.
26. Mr Harding referred to the lack of support in his work environment in Vietnam where the applicant was not “coping or fitting in”. He kept to himself, was socially isolated and was “like a fish out of water”. Even when the applicant was back in Brisbane he drank all day, every day to relieve his stressors. Although he was not in Vietnam he was still dependent on alcohol.
27. Mr Harding stressed that the applicant had been consistent in his evidence throughout this matter. He had talked of his isolation and separation in 1987 as reflected in the T documents. He was a Vietnam veteran who had not had a severe stressor but “a mundane stressor” as a weak, vulnerable, immature person unable to cope with the separation from his family when in Vietnam and developed an anxiety state coupled with alcohol abuse and dependence.
28. Mr Kelly for the respondent noted that Category 1 and 1A stressors were not relevant in this case. Only Category 2 stressors were to be considered.
29. Mr Kelly noted the Category 2(A) stressors indicating that the applicant found it hard to maintain friendships and how all soldiers were sent away. He referred to the applicant’s friendships and the applicant being away from home for quite a time before going to Vietnam and submitted that therefore, Category 2(A) did not apply in his case.
30. Mr Kelly submitted that there was no evidence regarding the applicant’s workload being stressful. Mr Kelly referred to the statements of Mr Wills and Captain Ryan that attested to the fact that the applicant was drinking a lot and was looked after by his mates in Vietnam. It was submitted that Category 2(c) did not apply to him.
31. Mr Kelly submitted that the applicant’s alcohol abuse/dependence developed prior to his anxiety state or disorder being diagnosed and that the Category 2 stressors did not apply. He referred to Stoddart’s case by the Federal Court in 2003.
32. Mr Harding also referred to Stoddart’s case and to Category 2 stressors indicating 2(c) does apply based on the applicant being bullied and referred to the causation effects from Vietnam and not post Vietnam events like the death of his child and the train incidents. He maintained the causation for the applicant’s problems were from Vietnam.
CONSIDERATION
33. The Tribunal notes that the applicant was medically examined by Dr Lieboff in 1987 for a “nervous condition” to be accepted as service related given the applicant’s time and experiences in Vietnam. That report by Dr Lieboff noted in part that the applicant felt the separation from his family, friends and environment in Australia quite acutely. He was uneasy in Vietnam and drank heavily.
34. It appears from the material and evidence before the Tribunal that the applicant started drinking alcohol regularly in Vietnam from his posting there in March 1971. Dr Hargreaves noted the applicant drank heavily from being in an unreal environment in Vietnam and being cut off from home and having easy access to alcohol there. Dr Hargreaves also referred in his 2001 report to other non service related episodes and stressors including the loss of a child. Dr Hargreaves indicated that the applicant developed an anxiety disorder that he self medicated with alcohol. In a further report in 2008, Dr Hargreaves after recording why the applicant began drinking heavily in Vietnam, indicated that in his opinion the applicant began binge drinking in Vietnam on a regular basis because of the easy access to alcohol and his anxiety levels. He was alcohol dependent by the time he returned to Australia.
35. The applicant in his statement of facts and contentions noted in part that he was unsuited to army life and unfit to go to Vietnam. In Vietnam, the applicant was frightened of his environment particularly night picket duty and was fearful of the gunfire. During that time, he started to drink very heavily and would do so when he was supposed to be working. Other incidents involving the applicant in Vietnam were referred to including “conflicting letters from his parents” that his mother had been beaten and was in hiding. The applicant maintained that he experienced Category 2(a), (c) and (f) stressors for the purpose of SoP No 1 of 2007 in respect of the condition of anxiety disorder during his operational service in Vietnam by reason of:
· being isolated from his family and adverse events within his family unit during such separation;
· concerns over the nature of his duties by virtue of his guard duties and duties outside the perimeter of the base at which he served;
· death of a work colleague.
36. The applicant submitted his alcohol dependence/abuse is causally service related to satisfy SoP No 1 of 2009 or alternatively SoP No 17 of 2008 “by virtue of him suffering a clinically significant psychiatric condition of anxiety disorder at the time of the clinical onset of alcohol abuse/dependence”.
37. In applying ss 120(1) to (3) of the Act the Tribunal has had regard to the steps indicated in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97. In that case the Full Court of the Federal Court noted the Tribunal in cases of this type should proceed as follows:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(D) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In doing so, no question of onus of proof or the application of any presumption will be involved.
38. The Tribunal agrees that the evidence and the material before it points to a requisite hypothesis that connects the applicant’s condition to his service in Vietnam. The Tribunal notes the relevant SoPs in this matter are SoP No 1 of 2009, SoP No 17 of 2008 and SoP No 1 of 2007 given the applicant’s stated condition of Anxiety Disorder at the time and the clinical onset of alcohol abuse and dependence.
39. Given all of the evidence and material before it the Tribunal finds that the applicant was socially isolated in Vietnam. Indeed, he was adamant that he did not make any real friends in Vietnam that carried on to his post Vietnam Service to any great extent. The reports of Dr Hargreaves in 2001 and 2008 also confirm his anxiety disorder and resultant alcohol abuse and dependence due to his Vietnam service. Consequently, the Tribunal is of the opinion that the “hypothesis” raised in this matter is a reasonable one and is consistent with the SoPs referred to above that is to say the Tribunal is not satisfied beyond a reasonable doubt that the applicant’s anxiety disorder and alcohol abuse and dependence was not related to his service in Vietnam.
40. The Tribunal finds that the applicant was credible in his answers and evidence, and has no reason to doubt him. In all the circumstances the Tribunal finds that the applicant satisfies the Category 2 stressor as referred to in the legislation and his Anxiety Disorder and Alcohol Abuse and Dependence was aggravated or contributed to in a material degree by his service in Vietnam as also identified in the reports and evidence of Dr Hargreaves. Therefore his anxiety disorder and alcohol abuse and dependence arises from his operational service in Vietnam.
41. The Tribunal notes that there is sufficient probative evidence and material in this regard to support the contention or hypothesis made and is supported by expert opinion. Indeed, in Bushell v Repatriation Commission (1992) 175 CLR 408 at 414 the High Court noted:
…the case must be rare where it can be said that a hypothesis, based on the raised facts is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge…
DECISION
42. The Tribunal sets aside the decision under review and substitutes the decision that the applicant is entitled to pension under the Veterans’ Entitlements Act 1986 (Cth) on and from 23 February 2008.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Karas, AO, Senior Member
Signed: ..................[Sgd]......................................................
Research AssociateDate/s of Hearing 9 April 2010
Date of Decision 7 May 2010
Counsel for the Applicant Mr Anthony Harding
Solicitor for the Applicant Cockburn Legal & Consulting
Solicitor for the Respondent Mr Jeff Kelly
0
5
0