Trigge and Repatriation Commission

[2004] AATA 1114

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1114

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/398

VETERANS' APPEALS  DIVISION		)
Re		MICHAEL TRIGGE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member McCabe;
Mr Way, Member

Date27 October 2004  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

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

Senior Member

CATCHWORDS

VETERANS’ ENTITLEMENTS LAW – pensions and benefits – whether reasonable hypothesis exists connecting PTSD and alcohol abuse with service – whether alternate diagnosis is available – whether reasonable hypothesis exists connecting depressive disorder or anxiety disorder with service – meaning of severe psychosocial stressor – decision affirmed

Veterans’ Entitlements Act 1986

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Cooke [1998] FCA 1717

Stoddart v Repatriation Commission [2003] FCA 334

Re Stonehouse and Repatriation Commission [2004] AATA 707

White v Repatriation Commission [2004] FCA 633

McKenna v Repatriation Commission [1999] FCA 323

REASONS FOR DECISION

27 October 2004   Senior Member McCabe;
Mr Way, Member  

Introduction

1. This is an application pursuant to s 175(1)(a) of the Veterans’ Entitlements Act 1986 (the Act) for a review of a decision of the Veterans’ Review Board (the VRB) of 31 March 2003.  The VRB decided to amend an earlier decision of the respondent: the applicant’s diagnosis of post traumatic stress disorder (PTSD) was modified to generalised anxiety disorder.  Nevertheless the VRB concluded the condition was not war-caused.

2.      The matter was heard on 3-4 August 2004.  Mr Trigge was represented by Mr Clutterbuck of counsel.  The respondent was represented by Mr Williams, a departmental advocate.

3. Before the Tribunal were the documents compiled pursuant to s 37 Administrative Appeals Tribunal Act 1975.  Also in evidence were the following documents:

• A medical report of Dr Carter dated 10 May 2004;
• A statement of the applicant dated 12 July 2003;
• The applicant’s daily medical records from the time of his service in the Royal Australian Navy (RAN) dated 16, 20 27 July 1970;
• A research report compiled by Writeway Research dated 10 December 2003.  The researcher was Mr Macdonald;
• A brief biography of Mr Macdonald;
• A medical report of Dr Leong dated 30 September 2003;
• A copy of the applicant’s service medical documents;

• Information from Workcover Queensland dated 28 August 2003.

4.      The following people also gave oral evidence:

• Mr Trigge (the applicant);
• Dr Carter;
• Mr Macdonald;
• Mr Blazey;

• Dr Leong.

5.      The applicant says he currently suffers two psychiatric conditions: alcohol abuse or dependence, and either anxiety disorder and depressive disorder or PTSD.  He claims various incidents he experienced while on operational service caused these conditions.  For reasons we explain below, we are not satisfied his claim should succeed.

The Relevant Facts

6.      Mr Trigge rendered eligible service in Vietnam in the Royal Australian Navy from 6 July 1970 to 9 October 1970 on board HMAS Hobart.

7.      The applicant says three incidents caused his PTSD and consequent alcohol abuse.  We will refer to them as the “scare-charge incident”, the “kill-sheet incident” and the “BBQ on the quarterdeck”.

The scare charge Incident

8.      Mr Trigge describes the scare charge incident in his statement (ff31-34 T4 of the “T-documents”).  He says:

In the first month, I think…there was an explosion that went off outside the hull directly opposite where I was on active watch.  All I remember is that I thought we had been hit and believed death was imminent and that we would all die.  I don’t remember what happened after that at all.  My medical records show from that time that I apparently started having action headaches.

In a subsequent statement he said:

During the first month whilst on active duty there was a huge explosion and I thought the ship had been hit and I was going to die.  I was later told the explosion was a scare charge, however at the time I was severely distressed as I thought we had been bombed.

The Kill-Sheet incident

9.      In his statement (ff31-34 T-4 of the “T-documents”) Mr Trigge describes the kill-sheet incident.  He says:

During my time in Vietnam I remember being numb with grief when I saw the kill sheet the first time and I only remember seeing [it] once.  But there I was, a pacifist that was contributing to the death of humans.  Were they children/women I don’t know but it affected me greatly.

10.     As we understand it a “kill-sheet” is a record of the number of enemy soldiers killed or buildings destroyed by the ship’s bombardment.

The barbeque on the Quarterdeck

11.     The third incident relied upon by Mr Trigge concerns a barbeque he attended one day on the quarterdeck of the Hobart.  He says in his statement:

The only other memory is of a BBQ on the quarterdeck. But when I arrived at the BBQ you could see tracers and firing in Saigon harbour…I thought “you are all crazy” and went below.  I thought if we could see them they could see us and we might be hit.

The Law

12.     Section 13(1) of the Act renders the Commonwealth liable to pay a pension to a veteran where that veteran has become incapacitated from (relevantly) a war-caused disease.  The circumstances in which a disease is said to be “war-caused” are set out in s 9(1). 

13.     In the course of making its decision as to whether the applicant’s condition is war-caused, the Tribunal must follow the process laid out in s 120 of the Act. The Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 said s 120 required the Tribunal to apply a four-stage test.

14.     Before it commences the Delidio process the Tribunal must be satisfied as to a diagnosis.  Section 120(4) says the Tribunal must decide the diagnosis to its reasonable satisfaction: Repatriation Commission v Cooke [1998] FCA 1717.

Consideration and Application

15.     There is substantial medical evidence before the Tribunal regarding the applicant’s psychiatric conditions.

16.     In a report dated 23 January 2002 (ff57-60 T4 of the “T-documents”) Dr Carter diagnoses Mr Trigge with generalised anxiety disorder as a result of the above stressors.  She said she thought the stressors identified by Mr Trigge did not meet the definition of “severe stressor” within the meaning of DSM-IV, therefore he could not have PTSD.  She does not mention alcohol abuse or dependence.

17.     In a later report dated 10 May 2004 (exhibit 2) Dr Carter reiterates her diagnosis of anxiety disorder, and also diagnoses Mr Trigge with alcohol dependence.  She dates the onset of anxiety disorder to 1970.  She dates the onset  of alcohol abuse to late 1970 or early 1971.

18.     In a report dated 18 May 2001 (ff20-25 T4 of the “T-documents”) Dr Holm diagnoses Mr Trigge with PTSD and alcohol abuse or dependence.  He does not consider any other psychiatric condition.

19.     Finally in a report dated 30 September 2003 (exhibit 6) Dr Leong diagnoses Mr Trigge with PTSD (in partial remission), major depressive disorder (in partial remission) and alcohol abuse or dependence (in remission).

20.     On the basis of this medical evidence we are reasonably satisfied the correct diagnosis is of anxiety disorder and alcohol abuse or dependence.  We are not satisfied PTSD is the correct diagnosis because the applicant did not experience a severe stressor, for reasons we explain below. (For the sake of completeness we will deal with PTSD as though we accepted the diagnosis, in order to examine and test the alleged stressors).

Delidio Steps

21.     The first step of Delidio requires the Tribunal to identify a hypothesis connecting the injury with the circumstances of the veteran’s service.  We are satisfied a hypothesis exists here: the applicant experienced the three incidents outlined above while on operational service on HMAS Hobart and developed a psychiatric condition and a drinking problem as a result.

22.     The second step of Delidio requires the Tribunal to identify the relevant Statements of Principle (SoPs).  Here, Instrument 3 of 1999 as amended by Instrument 54 of 1999 deals with PTSD.  It relevantly states:

5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder…with the circumstances of a person’s relevant service are:

(a) experiencing a severe stressor prior to the onset of post traumatic stress disorder…

…

“experiencing a severe stressor” means the 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 another person’s , physical integrity.

In the setting of service in the  Defence Forces, or other service where the Veteran’s Entitlements Act applies, events that qualify as stressors include:

(i) threat of serious injury or death; or

(ii) engagement with the enemy; or

(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence…

23.     Instrument 76 of 1998 deals with alcohol dependence or abuse.  It relevantly states:

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;

(b) experiencing a severe stressor within the two years immediately before

the clinical onset of alcohol dependence or alcohol abuse

24.     The definition of “experiencing a severe stressor” is identical to that in the PTSD SoP.

25.     The third step of Delidio requires the Tribunal to assess whether the facts as stated by the applicant “fit” the SoP.  Facts are not in issue at this point. We will deal firstly with PTSD.

Do the facts fit the PTSD SoP?

26.     At least one of the incidents as described by the applicant must fit the definition of “severe stressor” to satisfy this test.

a) Kill- Sheet Incident

27.     While the examples listed in the definition of “severe stressor” are by no means exhaustive they are an indicator of the magnitude of event required to satisfy the definition.  We think witnessing a kill-sheet is not of sufficient magnitude to qualify as “experiencing a severe stressor”.

28.     Furthermore we do not think looking at a kill-sheet – a sheet of paper which enumerated the number of enemy killed or wounded – means the witness has “experienced, witnessed or been confronted with” an event involving death or serious injury, as meant by the SoP.  Readers of newspapers are often confronted with stories and statistics of people who have been killed or injured.  That does not mean those readers are confronted with something amounting to a “severe stressor” when they do so.

29.     Mr Trigge says he was a pacifist, therefore the kill sheet affected him more directly.  The decision of the Federal Court in Stoddart v Repatriation Commission [2003] FCA 334 indicates the test has both subjective and objective elements:

"In my judgment the language of the definition of "experiencing a stressor" caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively form the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (i.e. are subjectively experienced) the risk of death or serious injury to physical integrity."

30.     If these events were judged from the point of view of a reasonable person (who was a pacifist with the applicant’s experience and knowledge) we do not think they are capable of conveying and did convey the necessary threat.  Seeing a kill-sheet is simply too remote from the occasion of injury or death, or threat of injury or death, to qualify as a severe stressor.

b) Scare charge incident

31.     The scare charge incident does not qualify as a severe stressor, either on its face or assisted by the objective/subjective test in Stoddart.  It is useful to deconstruct the events surrounding the experiencing of these events.  Mr Trigge was in the ship, below the waterline.  He heard “a huge explosion”.  He assumed the ship was under attack, and felt he was going to die.  Another sailor who was with him laughed at his reaction.

32.     What of his experience?  Mr Trigge had been in the Navy for six years at this stage.  He was an experienced sailor.  He had served on several ships including HMAS Derwent, Melbourne and Brisbane.  He had been part of the Brisbane’s Commissioning Crew in the United States (apparently involving some extensive training).  We do not think a reasonable person with this knowledge and experience would have reacted as Mr Trigge did.  The incident does not amount to a severe stressor.

c) Barbeque on the quarterdeck

33.     Mr Trigge’s recollection of this incident is described above.  His reaction to seeing tracers in Saigon harbour is significant.  He says he thought “You are all crazy” and went below decks.  This is not a reaction of “intense fear, helplessness or horror” as required by section 2(b)(A)(ii) of the PTSD SoP.  The incident cannot be relied upon to support a diagnosis for PTSD.

34.     In any event we do not think seeing tracers being discharged onshore, from a vantage point of a considerable distance off-shore, can represent a “severe stressor” in this case.  The applicant says he was not being fired upon.  There was no threat of death to himself or to his comrades.  There may have been some danger to the people onshore, but they are too remote from the applicant.  Because the ship was a considerable distance offshore we do not think this incident would have conveyed the necessary level of threat to a reasonable person in Mr Trigge’s position with his knowledge and experience.  That is borne out by the fact Mr Trigge’s shipmates were having a barbeque and apparently did not react as he did.  We do not think events should be tested from the vantage point of “a member of the Armed Forces who is…idiosyncratic or unduly timorous or sensitive”: Hillier and Repatriation Commission [2004] AATA 897 at par. 67.

Conclusions regarding PTSD

35.     None of the incidents relied upon by the applicant fit the definition of severe stressor.  Accepting for the moment Mr Trigge has PTSD (and we note a diagnosis of PTSD requires the sufferer to experience a “severe stressor”) the hypothesis connecting that condition with service is not reasonable.

Anxiety Disorder, Depressive Disorder

36.     We are satisfied Mr Trigge suffers anxiety disorder and depressive disorder based on the reports of Drs Carter and Leong.

37.     There is a hypothesis connecting these diseases with the circumstances of Mr Trigge’s service.  The relevant SoPs are Instruments No. 1 of 2000 concerning anxiety disorder, and No. 58 of 1998 concerning depressive disorder.  The anxiety disorder SoP relevantly states:

5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder …with the circumstances of a person’s relevant service are:

…

(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder …

(iii) having a clinically significant psychiatric condition within the two years immediately before the clinical onset of anxiety disorder…

“severe psychosocial stressor” means an 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…

38.     The depressive disorder SoP relevantly states:

5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder …with the circumstances of a person’s relevant service are:

…

(b) experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of anxiety disorder;

(c) having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder…

39.     The term “severe psychosocial stressor” in this SoP is the same as in the anxiety disorder SoP.

40.     The terms of the SoPs mean Mr Trigge will pass the third step of the Delidio process if any of the incidents he described meet the definition of “severe psychosocial stressor”.  Facts are not in issue here.

41.     We do not think any of the events amount to a “severe psychosocial stressor”.  The scare charge incident and the barbeque on the deck incident both lack any kind of social element.  While the examples listed in the SoPs are not exhaustive, they are indicative of the kinds of stressors the Repatriation Medical Authority intended to be included in the definition.  The scare charge incident and the barbeque on the deck incident were both incidents which were short, sharp shocks to Mr Trigge.  In the first he would have realised there was no danger when another sailor laughed at his reaction; in the other he simply went below decks and (presumably) felt safe again.  We also think a severe psychosocial stressor must include some kind of psychosocial element: see Re Stonehouse and Repatriation Commission [2004] AATA 707 at par 17 – 19. That interpretation is supported by the examples given in the SoPs. These incidents do not contain any psychosocial element.

42.     We think the kill sheet incident has a psychosocial element to it.  This incident was shocking to Mr Trigge because he realised at that moment that he was participating in the destruction of other human beings.  The incident may have been accompanied by an on-going sense of guilt on the part of Mr Trigge (although this was not raised in the evidence or at hearing).  In any event we do not think this event was sufficiently severe to fit into the SoP.  Mr Trigge was simply too remote from the situation.  It is significant that while he realised people were being killed, he did not know any of them – the incident is not akin to the injury or death of a close friend or relative.

43.     The Federal Court in White v Repatriation Commission [2004] FCA 633 indicated the test in relation to severe psychosocial stressors has both a subjective and an objective element. Taking into account the subjective state of knowledge and experience of Mr Trigge – including his claim that he was a pacifist – we still do not think any of the incidents amounts to a severe psychosocial stressor.

44.     None of the incidents fits the definition of severe psychosocial stressor.  None of the other factors in the anxiety SoP or the depressive disorder SoP can be met.  The hypothesis raised is not reasonable. Those conditions are not related to service.

Alcohol Abuse or Dependence

45.     The SoP is reproduced above at par 23.  Mr Trigge’s claim is to connect his alcohol abuse with his service through either a severe stressor (Factor 5(b)) or through his experiencing a war-caused psychiatric condition (Factor 5(a)). 

46.     We have already established none of the events relied upon by Mr Trigge constitute a severe stressor in the relevant sense.  We have also established that none of his claimed psychiatric conditions are related to service.  An injury or illness that is not war-caused cannot be relied upon to fulfil a factor in another SoP to make another condition war-caused.  Where one hypothesis (here, that alcohol abuse is war-caused) includes one or more sub-hypotheses (here, that PTSD or anxiety disorder or depressive disorder is war-caused) the sub-hypotheses must be reasonable for the hypothesis to be reasonable.  “A complex hypothesis…can be no stronger than each of its elements or parts”: McKenna v Repatriation Commission [1999] FCA 323, per Branson, Sundberg and Kenny JJ. Here, we have already established the sub-hypotheses are not reasonable.

47.     It follows that alcohol abuse or dependence is not war-caused.

Conclusion

48.     The decision under review is affirmed.  Mr Trigge’s psychiatric conditions are not war-caused.

I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe and Mr Way, Member

Signed:         [Sgd]
  Associate:  Thomas Ritchie

Dates of Hearing: 3-4 August 2004.
Date of Decision: 27 October 2004.
The applicant was represented by Mr Clutterbuck of counsel.    
The respondent was represented by Mr Williams, a departmental advocate.