Turner and Repatriation Commission - [2005] AATA 1313

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] aata 1313

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2004/1621

VETERANS' APPEALS DIVISION		)
Re		BARRY TURNER

Applicant

And

REPATRIATION COMMISSION

Respondent
WRITTEN REASONS FOR ORAL DECISION

Tribunal

Senior Member Mrs Josephine Kelly
Member Dr Ion Alexander

Date  8 December 2005
Date of Written Reasons             23 December 2005
Place   Sydney

Decision

The decision under review is affirmed.

[sgd] Senior Member Mrs Josephine Kelly
Presiding Member

CATCHWORDS

VETERANS’ APPEALS – operational service in Royal Australian Air Force (“RAAF”) – claim for Post Traumatic Stress Disorder – Applicant asked to identify a fellow pilot’s body after his plane had crashed in 1968 – Applicant when identifying the body only found sandbags – Applicant left the RAAF and then returned to the service – Applicant continues to fly Lear jets for employment – Applicant has no problems with employment – Applicant has happy family relationships – Issue of diagnosis – Applicant not suffering from Post Traumatic Stress Disorder – decision affirmed

LEGISLATION

Veterans Entitlements Act 1986

CASELAW
Repatriation Commission v Cooke (1998) 90 FCR 307

WRITTEN REASONS

At the conclusion of the hearing of this matter, the terms of the decision made and the reasons for that decision were stated orally. The Applicant requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975.

The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons. The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and furnished to the Applicant and to the Respondent.

WRITTEN REASONS FOR ORAL DECISION

Senior Member Mrs Josephine Kelly
Member Dr Ion Alexander

Background

Mr Turner, the Applicant, claims that he suffers from post traumatic stress disorder (“PTSD”) which was caused by an incident that occurred in 1968 during his operational service in the Royal Australian Air Force (“the RAAF”). The incident occurred while he was on leave at the RAAF base at Butterworth in Malaysia from his duties at a Royal Thai Air Force base at Ubon in North Eastern Thailand. Ubon was a forward air defence base for Thailand during the Vietnam War. For the reasons that follow we have found that Mr Turner does not suffer from PTSD and therefore has been unsuccessful in these proceedings.

The Claim

Mr Turner's claim made pursuant to the Veterans Entitlements Act 1986 (“the Act”), on 4 July 2003 was for chronic PTSD, hypertension and heart problems (T4). On 28 April 2004 a delegate of the Repatriation Commission determined that PTSD, hypertension and atrial fibrillation were not war caused diseases (T2). On 17 November 2004 the Veterans’ Review Board affirmed that decision. The claims for hypertension and heart problems were not pursued before us.

Service

Mr Turner served in the RAAF from 7 May 1965 to 11 December 1974 and from 1 September 1975 to 1 July 1986. He had three periods of operational service in Thailand. These were from 9 February 1967 to 9 March 1967, 27 July 1967 to 19 October 1967 and 13 December 1967 to 5 February 1968.

The Evidence of Mr Turner

He was 19 when he enlisted in the RAAF in May 1965 and trained to be a pilot. By 1966 he was a pilot officer flying Sabre jet aircraft. He was the dux of his course. He began drinking alcohol in Thailand during his first period of operational service because the water was unsafe. There was not much soft drink available whereas alcohol was readily available. He drank beer.
The incident upon which the case centred occurred in the following circumstances. During his third period of operational service at Ubon being around Christmas it was more relaxed and there was less activity. He successfully lobbied for leave at Butterworth. On 28 December 1967 he flew out to Butterworth. Before flying out he spent some hours with a pilot who had just arrived talking to him informally about the duties that he would have, the procedures and operations at the base. He had heard of the pilot who had not been to Thailand before but had not met him until that day. He said he struck up a good friendship and told him that he was grateful.
On 3 January 1968 he and his colleagues at Butterworth were informed by the commanding officer of 77 Squadron that the pilot with whom Mr Turner had spoken before leaving Ubon had died when his aircraft crashed into dwellings near the town. He said the immediate reaction was what had happened. During his evidence he frequently used the expression "you get the rider back onto the horse quickly" after an accident. People were sent from Butterworth for a court of inquiry into the accident. He was quite upset that evening and had a few drinks at a wake for the pilot, probably a bit more than usual. He felt guilty because he had lobbied to go on leave and his replacement was killed. That evening he was informed by an engineering officer that the officer commanding 78 Wing wished him to identify the pilot's body at 4 pm the next afternoon.
He was shocked that the body could be in Malaysia so quickly. He thought he had been chosen as peers identified colleagues and he was the senior pilot officer. He asked why him and was told that the wing commander believed the parents of the deceased would fly to Malaysia and would wish to speak one of their son's colleagues. He had no lunch before going to the morgue at the base hospital. He was quite upset about what he would see. He had never seen a dead person before and expected to see a gruesome sight. He was aware that there had been a fire at the crash site. He expected to see badly burnt remains. When he entered the room he saw stainless steel top tables at waist height. A coffin was on one of those. His first sight on looking into the coffin was nothing but sandbags. He was numbed, stunned, shocked. He thought that maybe the fire had been so severe that the remains had been incinerated. He was devastated. He was partly responsible for the pilot having replaced him. He felt guilty. It was very disturbing. He felt pretty grim.
He walked back along the beach very slowly to the officers’ mess. He was thinking that that chap had just replaced him and there was not even a body to show his parents. He was terribly distressed. He told Commander Glassop the next day that he could not identify the body. He did not tell him what he had seen, "I figured he'd know". He never told anyone of what he saw. There being no remains he thought that all future life was erased. He was a practising Catholic. He believed at that time that resurrection could not occur if there was no body. That "rattled" his faith. There was "a double whammy of distress" when he realised the implication of there being no remains. He said he went to his room, did not communicate with anyone and waited for the bar to open and went down and drank a "little more than normal", a dozen cans of beer which was not unreasonable at that time.
Later he thought that it was probably a "wink wink nudge nudge thing" for insurance purposes. He requested no counselling, had none and never lobbied for leave again. He said that he could have flown at that time as it was just like driving a car. Between 6 and 11 January 1968 when he returned to Ubon he had no social life other than drinking of an evening. The weekend following the accident was bad with heavier drinking sessions, more than one dozen cans and on Friday night he lost count after 15 cans. His sleep pattern was affected. He could not sleep unless he had a good alcohol intake. He was fairly morose, keeping to himself other than drinking with a mate. He never encouraged a conversation without thinking. He was riddled with guilt. It could have been him. It would not leave him.
The images were reinforced when he went back to Thailand and saw the burnt wreckage. He thought if there was a body in that aircraft there was no way there would be any remains. This reinforced his belief about there being no possibility of resurrection. He returned to flying within hours of returning to duty. He always felt capable of flying. He was concerned about what he would do if ”that circumstance took place". He was on "a tightrope walk" between drinking enough alcohol to sleep but not enough to prevent his flying the next day. His peers were doing the same.
In the days before Occupational Health and Safety (“OHS”) there were all sorts of incidents, stories of near misses and life threatening experiences. The pilot's death always affected his next move in flying. He felt vulnerable. He was always under training. He described a dog-fight in training where he was flying behind the tail of an aircraft which flew vertically and then fell backwards towards him. He managed to avoid a collision. He put 100 per cent into his flying and then relaxed on ground. He could not eradicate the guilt from his mind.
When posted back to Australia he flew the Sabre jet until the arrival of the Mirage jet which he began to fly in January to June 1969. He had had "another reinforcing death experience" in early November 1968 when asked to identify another pilot whom he knew who had been killed in an air crash. He was at the RAAF base at Williamtown. He thought "why me" and "here we go again" and "do I need this"? He went to the Raymond Terrace Morgue. When a steel drawer was pulled out he saw a burnt body that had suffered a huge trauma below the waist. There was nothing left there. There was stub arms, and burns to the trunk. It was not very pleasant. He thought "what am I in this career for". He was quite distressed and "Everything reinforced distress". He refused to identify any more bodies.
The reason he returned to the RAAF in 1975 after leaving in 1974 was that a job offer fell through because the Hobart Bridge collapse meant people could not get to the airport. Civilian flying jobs were scarce at the time. He had a full medical, psychological and dental reassessment when he re-enlisted in 1975. He wanted to get back. There was no need to lie as they would do a medical check to satisfy themselves. His duties from 1975 until 1986 were as a Mirage pilot. He was a more senior fighter pilot who was looked up to by the junior pilots. He had more responsibilities and safety was always on his mind. Recollections of Ubon never went away. They were always there. It was not easy to sleep. He would enjoy a drink to sleep. He said that you always contained oneself if flying the next day but on Friday nights he drank more. It was difficult to get hold of a new work routine which he put down to age.
He described himself as a passive man who would not encourage anyone to do anything they did not want to do. Since his discharge he has preferred to avoid dealing with other people. He can be quick to be irritated by trivia. He was even angry that he drank to the extent he did. He does not like to congregate with other servicemen finding it unsettling to hear them speak of their experiences and deaths of buddies and gave a recent illustration of an F111 pilot raising the last incident where someone crashed into a hill and only his wedding ring was found.
Mr Turner has been married twice. His first marriage occurred in 1969. He sees the children of his first marriage, a 30 year old son and a 36 year old daughter who has children. He relates well to his grandchildren. His relationship with his current wife has its ups and downs. The downs include having less sex and his irritability which upsets her and then he walks away. She gets irritable because she's not communicating her point. His mind is somewhere else. He has loving feelings towards her and is happy she stays. He described himself as pretty hard to relate to, remote in friendships which is more so since his discharge. He found the questions he was being asked in chief awkward. His guilt and distress at losing close friends has lasted, "I was a jinx". He relaxed when he got back into service in 1976 and made a friend who was killed and never found and he was distressed.
The following emerged in cross-examination. Mr Turner left the RAAF in 1986 because he had had enough of the stress of looking after junior fighter pilots who drank to excess. He was trying to wean himself off alcohol to be an example. It was the beginning of the breakdown of his first marriage. It was not until May 2004 that he learned that the pilot's body he was supposed to have identified at Butterworth had been recovered when he read the report of the inquiry into the accident (T16). He said he had not discussed the report at the time of the inquiry because no cause was found and there was nothing to be said. He said that pilots who killed themselves were either over or under confident. He had a balanced confidence. He passed all his courses in his second period of service but failed a pilot instruction course in 1968.
From 1986 until last year he had a commercial job flying a Lear jet towing targets for the military for live weapon firing. The targets are suspended from the aircraft by cables 5 kilometres to 5 miles long. Ships would fire large guns and missiles. He did not consider it risky until the US Navy fired near him. In 2004 he changed jobs and now flies Lear jets for a private contractor for electronic jamming exercises. He has an annual rating test and a flying test and a medical assessment. The medical assessment is carried out by a designated medical examiner, Dr Bruce Williams, which is submitted to the medical safety part of Civil Aviation and Safety Authority (“CASA”). The Lear jet is a two pilot environment. In re-examination he said that since 2003 he has voluntarily undertaken to fly in the two pilot environment but it is not a condition imposed by CASA. This has come about because of his atrial fibrillation and hypertension about which CASA has some concern.
He believed he has told Dr Williams of his PTSD claim. His target-towing flying took him as far as New Zealand, Fiji and Malaysia. He has just returned from Western Australia where he flew five days for an electronic jamming exercise. He's working out of the RAAF or naval bases at Nowra and would communicate daily with senior officers. He spends time with his family and does not spend much time with his mates. He went to see Dr Koller, psychiatrist, because it was recommended by his RSL advocate that he raise the matter with Dr Jameson, his GP. He said:
To me, life is normal.
In re-examination he said that his GP, Dr Jameson, has not prescribed any medication for a psychiatric condition.

Documents

At T4 pages 56 to 58 Mr Turner states that he suffers a number of anxiety symptoms and that he experienced stress and hypertension while serving in Thailand. At T4 page 88 is Mr Turner's claim for PTSD. In this claim form he notes that his signs and symptoms are:
A constant feeling of anxiety, mood swings and depression.
He believes it is related to his service as it was:
Causally related to incidents on eligible service involving fear, horror and helplessness, death of comrades, stress and trauma of war service.
His service psychiatric assessment was recorded as normal on 15 April 1965 (T3 p 50), when he joined the RAAF. It was also recorded as normal on 20 January 1972 (T3 p 37), 28 June 1978 (T3 p 32) and again on 21 January 1980 (T3 p 31).

Medical Evidence

The medical evidence going to the condition of PTSD was contained in reports from Drs Koller, Horden and Skinner, all psychiatrists. Drs Horden and Skinner also gave oral evidence. Dr Karl Koller (T5 p 101) wrote on 12 June 2003 that it was his opinion that:
This man is diagnosed as chronic post-traumatic stress disorder ..
This he believed was caused by his exposure to traumatic events that involved actual death. That doctor's opinion was based on Mr Turner's complaints of:
ruminations and thought intrusions…..he is socially avoidant.

Evidence of Dr Anthony Horden

Dr Horden recorded that Mr Turner told him that he was currently in full-time employment with a commercial firm in which he flew a non-passenger carrying aircraft, a Lear jet, and that he usually flew for two hours. Dr Horden found him to be a trustworthy person and that he answered questions honestly and truthfully. Mr Turner became distressed and tearful when he described having to view the contents of the coffin of "his friend", but instead only saw sand bags. His diagnosis was that:
Psychiatrically, Mr Turner has, since January 1947 [sic] suffered from a chronic moderately severe Post-Traumatic Stress Disorder (PTSD) sustained whilst he was serving in the RAAF.
This condition is unlikely to improve. His opinion is that Mr Turner was shattered when he saw the coffin in early January 1947 [sic] due to his strong Roman Catholic upbringing. He had his religious beliefs shattered which led to PTSD. Dr Horden found that resulted in a total impairment of functioning as a percentage 45 to 55 per cent. He spent two hours 55 minutes with Mr Turner.
In cross-examination Dr Horden conceded that he had taken no history of Mr Turner having re-enlisted in the RAAF but said that Mr Turner had a degree of comfort when flying. He also did not take a detailed history of his employment from 1986 to 2004. When asked about towing targets he said that they were towed a very long distance behind and it was not especially hazardous. In relation to his assessment of impairment, he felt that it was mainly in relation to his socialising and interacting with people. Mr Turner told him that he did not like to go out, he had intrusive recollections and flashbacks, memories of the open coffin.
Mr Turner had told him that PTSD had contributed to the breakdown of his first marriage presumably because he was short-tempered and drinking quite heavily. As he gets older he is able to cope better and he has reduced his alcohol consumption so it is not affecting his second marriage. Dr Horden said that the event was traumatic because it conflicted with Mr Turner's religious beliefs and he felt guilt which was made worse when he saw the pilot's parents.

Evidence of Dr Skinner

Mr Turner told Dr Skinner that his buddy had died in Thailand and that he felt guilty that he had been away from there at the time and in response to that incident he drank more alcohol. In 1968 he also had to inspect a body and when he went to the coffin it was filled with sand bags. He was very distressed after this incident as he was of Roman Catholic faith and the body being sand bags shattered his faith because it conflicted with his ideas of resurrection. He reports that he has occasionally sleep disturbance that he still has guilt feelings about his personal responsibility.
He states that he has a recalled dream about walking in a minefield where one of his colleagues treads on a mine and is killed but he does not die. He thinks that this dream is significant. He has never seen a psychologist or a psychiatrist for treatment. Under the heading of Summary and Opinion Dr Skinner reports:
Presently Mr Turner is not suffering from any psychiatric illness or emotional disorder.
and that he:
is fit for full operational duties as a pilot.
Her opinion is that Mr Turner is not suffering from post-traumatic stress disorder and is not suffering from PTSD or anxiety disorder as defined by the Statement of Principles.
During her oral evidence Dr Skinner gave her opinion that the ability to fly planes is not consistent with mental illness. There is a risk of loss of concentration, anxiety and depression while flying in the context of considerations of public safety. She considered that Dr Horden's assessed degree of impairment was such that a person could not function effectively as a pilot or a person in a responsible position.

Diagnosis

The kind of disease or injury suffered by Mr Turner must be determined on the balance of probabilities (Repatriation Commission v Cooke (1998) 90 FCR 307).

Consideration

Mr Turner has worked as a pilot of jet fighters and commercial jet aircraft for 37 years since the incident which this claim is based upon and he continues to do so. He re-enlisted in the RAAF in 1976, returning to the environment where deaths in aircraft accidents were likely to happen and indeed did, and he remained there until 1986.
He took on more responsibility for junior pilots and left not because of any symptoms he was suffering but because he was tired of having the responsibility for those who drank too much, which we infer gave rise to concerns about safety.
We prefer Dr Skinner's opinion to that of Dr Horden or Dr Koller. The latter report is scant in the extreme and includes no history. Dr Horden's assessment of impairment is inconsistent with the successful career Mr Turner has pursued. The opinion was based on a very poor history and no appreciation of Mr Turner's flying since he left the RAAF. We do not accept Dr Horden's assessment that Mr Turner's ability to fly was such that he would be unaffected by PTSD. Further, his assertion that 45 to 55 per cent impairment related to his social isolation is not supported by the evidence.
There was considerable argument about whether the incident at Butterworth was a traumatic event such as to satisfy clause A of DSM-IV criteria for PTSD 309.81. It is unnecessary for us to decide that question.
Even if we assume that the incident was relevantly a traumatic event, we accept Dr Skinner's opinion that Mr Turner does not suffer from PTSD or any psychiatric condition. His symptoms do not meet the criteria in B, C, D and E of that criteria from DSM-IV. Further and most importantly, there is no history of occupational impairment or of abnormal social functioning required by clause F of the criteria from DSM-IV.
Mr Turner's drinking may have been heavy from 1968 until around 1986 but on his own evidence it was not unusual. He married in 1969, did a conversion course to learn to fly Mirage jets, left the RAAF and then re-enlisted and remained for 20 years, gradually taking on more responsibility for others. There is no record of any difficulties during his service or in his post-service flying.
We do not accept that he was socially isolated during this RAAF service or thereafter. His flying since leaving the RAAF towing targets for live firing exercises and his present job have been nothing but incident and problem free. He loves flying and is obviously a very competent pilot. He has remarried and that relationship continues with occasional irritations and lack of communications which seems to occur in most marriages or other relationships.
Accordingly, we find that Mr Turner does not suffer from PTSD or any other psychiatric condition.

Decision

The decision under review is affirmed.

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly and Member, Dr Ion Alexander

Signed: Miss Sacha Keady
Associate

Date/s of Hearing  5 December 2005 and 6 December 2005
Date of Decision  8 December 2005
Date of Written Reasons          23 December 2005
Solicitor for the Applicant          Fairbairn Lawyers
Advocate for the Respondent   Department of Veterans' Affairs