Watson and Repatriation Commission (Veterans’ entitlements) [2016] AATA 408 (20 June 2016)
Division
VETERANS' APPEALS DIVISION
File Number(s)
2014/0553
Re
Peter Watson
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member P W Taylor SC
Date 20 June 2016 Place Sydney The decision under review is affirmed.
...............................[sgd].........................................
Senior Member P W Taylor SC
CATCHWORDS
VETERANS’ ENTITLEMENTS – application for disability pension – post traumatic stress disorder – depressive disorder – whether disorders were “war caused” – diagnosis of disorders – whether the veteran experienced a life threatening event – “exposure to a traumatic event” – “intense fear, helplessness or horror” – “experiencing a severe stressor” – “experienced, witness or was confronted with” – “confronted with” – Tribunal not satisfied that the Veteran has post traumatic stress disorder – Tribunal not satisfied that the veteran has major depression – decision affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 ss 9, 13, 120, 120A, 196B
CASES
Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622
Bull v Repatriation Commission [2001] FCA 1832; (2001) 188 ALR 756; 66 ALD 271; 34 AAR 326;
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564 at 570
Collins v Administrative Appeals Tribunal [2007] FCAFC 111; (2007) 163 FCR 35; 96 ALD 536
Deledio v Repatriation Commission (1997) 47 ALD 261
Ellis v Repatriation Commission [2014] FCA 847; (2014) 142 ALD 352
Fenner v Repatriation Commission [2005] FCA 27; 218 ALR 122
Forrester v Repatriation Commission [2013] FCA 898
Hunter v Repatriation Commission [2010] FCA 145
McKerlie v Repatriation Commission [2010] FCA 1127
Paddon v Repatriation Commission [2010] FCA 1147
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton [2001] FCA 1194; (2001) 110 FCR 321; 65 ALD 609
Repatriation Commission v Hill [2002] FCA 192; (2002) 69 ALD 581
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Law (1981) 147 CLR 635
Repatriation Commission v McKenna (1998) 52 ALD 72
Repatriation Commission v O’Brien (1985) 155 CLR 422
Repatriation Commission v Smith (1987) 15 FCR 327; 74 ALR 537; 12 ALD 798
Repatriation Commission v Warren (2008) 167 FCR 511
Rayson v Repatriation Commission [2012] FCA 648
Stoddart v Repatriation Commission [2003] FCA 334; (2003) 197 ALR 283Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 131 FCR 473; 75 ALD 420
SECONDARY MATERIALS
Statement of Principles concerning Depressive Disorder No 27 of 2008
Statement of Principles concerning Depressive Disorder No 83 of 2015
Statement of Principles concerning Posttraumatic Stress Disorder No 5 of 2008Statement of Principles concerning Posttraumatic Stress Disorder No 82 of 2014
REASONS FOR DECISION
Senior Member P W Taylor SC
20 June 2016
Commander Watson served in the Royal Australian Navy from January 1963 until June 1984. From 1994 until 2001 he was on active reserve. From 2001, until he stopped work at the end of June 2012, he was a full…
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- Case
- [2016] AATA 408
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether Commander Watson's diagnosed conditions of PTSD and major depression met the criteria for being "war caused" under the Veterans’ Entitlements Act 1986 (VE Act). Specifically, the court had to determine if the April 1970 incident constituted a "life threatening event" or a "severe stressor" as defined by the relevant Statements of Principles (SoPs) for PTSD and depression, and whether Commander Watson had "directly experienced" or "witnessed" such an event, or was "confronted with" it in a manner that satisfied the diagnostic criteria.
The court considered expert evidence from Dr. Altman and Dr. Smith. Both experts agreed that the circumstances of the April 1970 incident, on their own, did not involve exposure to a "traumatic experience" sufficient for a PTSD diagnosis. However, Dr. Altman believed the diagnosis could be sustained by considering Commander Watson's observation of survivors' concern about something left behind in the sea and his apprehension that this "something" might have been people who were harmed or killed. Dr. Altman concluded Commander Watson had experienced fear and horror due to his concern about others, the brief search, the Captain's apparent lack of concern, and his own powerlessness. In contrast, Dr. Smith maintained that Commander Watson's reaction was merely a subjective apprehension after the event that someone might have been hurt, which he considered insufficient to meet the diagnostic criteria for a severe stressor under the applicable SoPs. Regarding the depressive disorder, the court found that Dr. Altman had not explicitly addressed the relevant diagnostic criteria, and given Dr. Smith's contrary view and his engagement with those criteria, the court was not satisfied that Commander Watson suffered from major depression.
Ultimately, the court was not satisfied that Commander Watson had established PTSD or major depression that were "war caused" according to the relevant legislative provisions and Statements of Principles. Consequently, Commander Watson's claim for a disability pension could not succeed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In relation to Dr Altman’s diagnosis of Major Depressive Disorder, I have referred earlier to the fact that Dr Altman at no stage explicitly addressed the appropriate diagnostic criteria in SoP no 27 of 2008. (Those criteria were substantially the same as those contained in the corresponding definitions in Schedule 1 to SoP no 83 of 2015 – the SoP that has been in effect since 20 July 2015.) In the absence of specific consideration by Dr Altman of the relevant diagnostic criteria, and taking into account also (i) Dr Smith’s contrary view, (ii) the fact that Dr Smith did address those criteria, and (iii) that Dr Altman did not respond (in his 11 September 2014 report) to Dr Smith’s specific disputation, I am not satisfied that Commander Watson has Major Depression.ALTERNATIVE CONSIDERATION OF THE RAISED HYPOTHESES Because of the conclusions I reached in relation to Commander Watson’s claimed conditions, it is not necessary to address his arguments based on the existence of reasonable hypotheses relating those conditions to his war service. However, against the contingency that elsewhere another view may be taken about his claimed conditions, I will also make findings in relation to their connection with his war service. Where an SoP applies to a veteran’s injury or disease it prescribes the essential content of an hypothesis that is reasonable for the purposes of VE Act s 120(3), and thus capable of connecting the particular kind of injury or disease with the circumstances of a veteran's particular service. In order to satisfy the dual requirements that the hypothesis is raised by the material (VE Act s 120(3)) and upheld by an SoP (VE Act s 120A(3)), a veteran’s hypothesis must be supported by material pointing to each element that the SoP stipulates as essential for the hypothesis to be upheld. The hypothesis must start with the veteran’s claim related disease, and end with the veteran’s service. The connection between the two may “comprise a number of links or factors each of which must be upheld”: Repatriation Commission v McKenna (1998) 52 ALD 72 at 80; Repatriation Commission v Hill [2002] FCA 192; (2002) 69 ALD 581 at [55]. In relation to Commander Watson’s asserted PTSD condition, the material to which I have referred raises only one hypothesis:- that his condition is war caused because he “experienced a life threatening event” (the 1970 Hobart incident) during his war service. In relation to Commander Watson’s asserted Major Depressive Disorder, the material to which I have referred raises the hypotheses that his condition is war caused because, (a)he experienced or had (i)a “category 2 stressor” within one year before the onset of his depressive disorder – that category 2 stressor being alternatively·socially isolated and unable to maintain friendships or family relationships due to medical or psychiatric illness ·having concerns in the work environment(see paragraphs 32, 40 and 44 above)(ii)a sleep disorder for the six months before the clinical onset of depressive disorder (see paragraph 33 above)(iii)a specified sleep wake disorder (specifically restless legs) for the six months before the clinical onset of his depressive disorder; and(b)those factors occurred or developed either (iv)as a result of the 1970 Hobart occurrence, or (v)his service (including his perceptions and reactions to the occurrence), or (vi)only because it was materially contribute to by, or would not have occurred “but for” contribution from, his service: see VE Act s 196B(14)(a), (b), (d) & (f).SOP NO 82 OF 2014 – PTSD – SCOPE AND FACTORS