White and Repatriation Commission
[2007] AATA 2003
•30 November 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200600837
VETERANS' APPEALS DIVISION ) Re CHRISTOPHER WHITE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal
Mr R G Kenny, Member
Date 30 November 2007
Place Brisbane
Decision
The Tribunal:
(1) varies the decision under review by amending the diagnosis from adjustment disorder with mixed anxiety and depressed mood to post traumatic stress disorder;
(2) sets aside the decision as varied and substitutes its decision that:
(a) post traumatic stress disorder, alcohol abuse and irritable bowel syndrome are war-caused diseases or injuries in accordance with s 9(1)(b) of the Veterans’ Entitlements Act 1986;
(b) Mr White is entitled to receive a pension for incapacity associated with those conditions with effect from and including 5 January 2004; and
(c) the matter of assessment be remitted to the Repatriation Commission................[Sgd]...............................
RG Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – operational service with Australian Regular Army – application of Statements of Principles – appropriate diagnosis of psychiatric conditions and other conditions – post traumatic stress disorder, alcohol abuse and irritable bowel syndrome – reasonable hypothesis of relevant relationship to service raised – conditions war-caused – decision set aside – assessment of incapacity remitted to respondent
Veterans’ Entitlements Act 1986 (Cth) ss 6C, 7, 9, 14, 69, 120, 120A
Fogarty v Repatriation Commission (2003) 37 AAR 363
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Deledio (1998) 83 FCR 82
Bushell v Repatriation Commission (1992) 175 CLR 408
White v Repatriation Commission [2004] FCA 633
Woodward v Repatriation Commission [2003] FCAFC 160
Repatriation Commission v Stoddart [2003] FCAFC 300
Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750.REASONS FOR DECISION
30 November 2007
Mr R G Kenny, Member
Background
1. Christopher White (the applicant) served in the Australian Regular Army on three separate occasions between 1981 and 2005. On 5 April 2004, he lodged with the Repatriation Commission (the respondent), in accordance with s 14 of the Veterans’ Entitlements Act 1986 (the Act), a claim for a disability pension for “psychiatric conditions”, “alcohol dependence and abuse” and “irritable bowel syndrome” which he contended were related to his army service. On 17 January 2005, the respondent accepted that Mr White suffered from adjustment disorder with mixed anxiety and depressed mood, alcohol abuse and irritable bowel syndrome but determined that these conditions were not related to his service. On 1 August 2006, the Veterans’ Review Board (the Board) affirmed the decision and Mr White now seeks further review by the Administrative Appeals Tribunal (the Tribunal).
Relevant Service and Standard of Proof
2. Mr White’s army service was from 19 August 1981 until 18 August 1984, from 29 June 1988 until 30 April 1993 and from 14 March 2000 until 7 October 2005. From 28 October 2001 until 22 December 2001 and from 1 January 2002 until 17 April 2002 he served in East Timor and this constitutes eligible war service in the form of operational service, as provided for in s 7 and s 6C of the Act. The remainder is defence service, as provided for in s 69 of the Act, but it is not disputed that only the operational service is relevant to this matter.
3. The standard of proof for determining diagnostic matters under the Act is provided for in s 120(4) thereof and this requires that such matters be determined to the Tribunal’s reasonable satisfaction: see Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373. That imports the civil standard of proof so that matters must be determined on the balance of probabilities: see Repatriation Commission v Smith (1987) 15 FCR 327 at 335. The standard of proof applicable to issues of causation for operational service is set out in s 120(1) of the Act which reads:
“Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.”
4. The application of that provision is affected by the terms of s 120(3) and by s 120A of the Act which requires that consideration be given to any relevant Statements of Principles that have been published by the Repatriation Medical Authority (RMA). Under s 9(1)(b) of the Act, a condition will be war-caused if it arose out of, or was attributable to, any eligible war service rendered.
Contentions
5. For the applicant, Mr Honchin submitted that the diagnoses appropriate to Mr White’s claim were post traumatic stress disorder, alcohol abuse and irritable bowel syndrome. This was conceded by Mr Stoner for the respondent.
6. Mr Honchin submitted that post traumatic stress disorder and alcohol abuse were related to any one of three separate incidents which involved Mr White. He labelled these as the “rubbish-tip event”, the “meeting event” and the “baby event”. Alternatively, he submitted that alcohol abuse developed as a condition secondary to post traumatic stress disorder. He also submitted that irritable bowel syndrome was secondary to Mr White’s psychiatric conditions. Mr Stoner conceded that each of the three events occurred but submitted that none of them was sufficient in effect to be responsible for the development of post traumatic stress disorder or alcohol abuse. Mr Stoner also submitted that alcohol abuse did not develop in a manner secondary to post traumatic stress disorder and that, rather, it either developed at the same time as or predated that condition. He conceded that, if post traumatic stress disorder was accepted as being war-caused, Mr White’s irritable bowel syndrome should be accepted as being secondary to it.
The Applicant
7. Mr White gave the following evidence. He had a combined period of 10 years of army service when he went to East Timor as a private in the infantry with 2 RAR. Whilst there, he attended a training course on the operation of a “gun buggy” which he described as a short wheel-based Land Rover equipped with a centrally mounted machine-gun. The training was conducted by a transport unit. In one exercise, he and three other soldiers, each armed with a rifle, stood in the rear of the vehicle as it manoeuvred through bushland. A transport sergeant was in command of the exercise. No explanation had been provided to them about any particular functions they were to carry out during the exercise. They came to a clearing where a truck emptied a load of rubbish comprising food scraps onto the ground. The rubbish was splashed with petrol and set alight. The Land Rover circled the area and the sergeant announced: “They will be here any minute”. Mr White did not know what this meant but soon learned that the reference was to East Timorese civilians, including children, who were intent on gaining access to the food scraps. The sergeant ordered Mr White and the other soldiers in the Land Rover to prevent them from doing so by aiming their rifles at them and keeping them back. The rifles were in “action” mode which meant that the breach was charged and the safety catch was on. They remained in that situation for some 10 to 15 minutes. Mr White kept his rifle trained on the civilians, lowering it from time to time but raising it if they appeared to be edging towards the burning rubbish-tip.
8. When first ordered to keep the civilians away from the food scraps, Mr White was unaware of what was happening. At that stage, being in an operational area, he believed it may be necessary to fire his rifle and felt horrified by that prospect. He soon realized that the civilians were helpless and probably starving and, at that stage, he knew that he would not be able to fire at them. As the Land Rover left the area, he looked back and saw that the civilians were scavenging for food scraps from the pile of burnt material. Mr White said that he “felt sorry for the civilians” and wondered why he had to perform such a duty.
9. The “meeting event” arose when Mr White was involved in a meeting between Australian and Indonesian military officials which took place in West Timor, adjacent to the border and some 600 metres from the Australian checkpoint. He was the driver of one of four vehicles which transported the Australian officials to the meeting which lasted for about four hours. During that time, he and the other drivers were kept under the watch of Indonesian soldiers who were armed with rifles in “instant” mode. Mr White and the other drivers were unarmed. He felt that the Indonesian soldiers were trying to intimidate the Australians. At the time, he felt “a little bit scared” but thought that it was "nothing to get into a flap over”.
10. The “baby event” occurred while Mr White was working at a vehicle and pedestrian checkpoint. A woman carrying a box was reluctant to allow the Australian soldiers to open it for inspection. Eventually, Mr White took the box from her, placed it on the ground and opened it. It contained the body of a dead baby. The woman was upset and crying. He said that he felt “guilty” at the time but as “not overly” having experienced any other feelings except the need to get on with checking other people traversing the checkpoint.
11. Mr White returned to Australia two weeks earlier than originally planned. On the flight back to Australia, he reflected on his service in East Timor. He felt fortunate that “not many bad things” had happened to him. He then recalled the rubbish-tip event and began to feel “low” and “helpless”. He said that these feelings lasted and the rubbish-tip event subsequently became the basis for frequent and recurring dreams. Of the three events which he outlined, the one which was of most significance and which kept coming back to him was the rubbish-tip event. The early return to Australia was to enable him to undertake a corporal’s course in Townsville. This lasted for six weeks and he was then promoted to lance corporal.
12. Mr White was a limited consumer of alcohol before travelling to East Timor and, when he attended staff functions, would have only one or two glasses of beer before leaving. In part, he considered that this was due to the age difference between him and most of his fellow soldiers. His alcohol consumption changed on returning from East Timor. He began to drink heavily, especially on weekends and usually from Thursday to Monday morning. This included the duration of his six week corporal’s course. He also began to have problems at home with his wife. They had frequent arguments and he found it difficult to engage in any form of social activity.
13. Mr White recalled a psychological debriefing after returning from East Timor. On telling the doctor about the rubbish-tip event, he was told that it probably had a greater impact on him because he had young children of his own. At that time, he felt that he was not coping and sought counselling assistance from a veteran’s refuge. He undertook an anger management course and eventually was referred to psychiatrist, Dr Michael Likely. At that time, he preferred to see a civilian psychiatrist as he did not want the army to be aware of the psychological problems that he was experiencing. Nevertheless, his situation eventually became known and he was discharged from the army on the basis that he was medically unfit.
Other Evidence
14. In evidence were statements by Andrew Ryan and Robert Majetic, both of whom served with Mr White in East Timor. Mr Ryan was present at the rubbish-tip event and accompanied Mr White during the meeting event. He confirmed Mr White’s account of them. Mr Majetic confirmed that he was present at the rubbish-tip event and the baby event with Mr White. Also in evidence was a report from a research organisation engaged by the respondent to investigate Mr White’s claims concerning the rubbish-tip event. It included statements from two officers who had command positions at the place where the rubbish-tip event occurred. Their statements confirmed the practice of burning rubbish, including food scraps, and of keeping local civilians away from it until the flames had died down. Mr J D Murphy, then officer commanding the 2nd Battalion Support Group referred to the need to chase locals away but denied that his soldiers were required to point weapons at them. He was unable to confirm the practice with other soldiers in the Battalion Group. Mr J A McTavish was the officer commanding Charlie Company, 2nd Battalion. He was unaware of circumstances where soldiers were required to point weapons to deter approaches of the local civilians.
MedicalEvidence
15. Reports were provided in this matter by psychiatrists Dr Michael Likely, Dr Eric De Leacy and Dr Catherine Oelrichs and also by Mr White’s general practitioner, Dr Paul Patane. Dr Likely has treated Mr White since 2004. In his first report, he noted that Mr White referred to incidents that occurred in East Timor and said the most distressing of these was the rubbish-tip event. Initially, he diagnosed an adjustment disorder with mixed anxiety and depressed mood as well as alcohol abuse. In a subsequent report, Dr Likely amended the first of those diagnoses to post traumatic stress disorder. Dr Oelrichs also referred to various things that occurred in East Timor and nominated the rubbish-tip event as the main one. She diagnosed post traumatic stress disorder and alcohol dependence. Dr De Leacy described reluctance by Mr White to discuss things that occurred in East Timor. However, he described the rubbish-tip event as Mr White’s most distressing incident. He also diagnosed post traumatic stress disorder. Dr Patane diagnosed irritable bowel syndrome.
16. Detailed medical reports, prepared in October 2002 after Mr White’s return from East Timor, were in evidence. These make no reference to the presence of psychiatric symptoms or difficulties at that time. This is consistent with Mr White’s evidence that he concealed any problems because of the potential threat that disclosure posed to his career in the army. Subsequent reports, prepared after he had seen Dr Likely, describe severe depression and anxiety and noted that Mr White had previously attempted to hide these matters for career-oriented reasons. Reports completed in mid 2005 describe his psychiatric symptoms, refer to post traumatic stress disorder, declare him unfit for military service for that reason and led to his discharge from the army on medical grounds.
Diagnosis
17. As noted above, Mr Honchin submitted and Mr Stoner accepted that the diagnoses appropriate to Mr White’s claim were post traumatic stress disorder, alcohol abuse and irritable bowel syndrome. The diagnostic criteria in the Statement of Principles for post traumatic stress disorder require exposure to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person’s response involved intense fear, helplessness, or horror
18. Each of the psychiatrists diagnosed post traumatic stress disorder and related it to the rubbish-tip event. Clearly, they were of the opinion that those two diagnostic elements, noted above, as well as the remaining diagnostic criteria were met in relation to the rubbish-tip event. I am reasonably satisfied that the description given by Mr White of his reactions to the meeting event and the baby event do not meet the second of the criteria listed above. Nevertheless, on the basis of his evidence and that of the psychiatrists in relation to the rubbish-tip event, I am reasonably satisfied that both of those elements and the remaining diagnostic criteria for post traumatic stress disorder are met. I am also reasonably satisfied that the diagnoses of alcohol abuse and irritable bowel syndrome are applicable to Mr White.
Principles of Causation
19. The Federal Court, in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98, set out a four-step procedure for determining issues of causation in relation to operational service. The first of these requires that there be an hypothesis of connection between a claimed condition and service. From the contentions of Mr Honchin and the medical evidence, I accept that separate hypotheses may be identified. These are that Mr White’s post traumatic stress disorder and alcohol abuse resulted directly from some or each of events detailed above; that, alternatively, alcohol abuse developed as a condition secondary to post traumatic stress disorder; and that irritable bowel syndrome was secondary to post traumatic stress disorder.
20. The second of the four Deledio steps requires identification of any relevant Statement of Principles as published by the RMA. Instruments No’d 3 of 1999 (as amended), 76 of 1998 and 103 of 1996 are the Statements of Principles published by the RMA for post traumatic stress disorder, alcohol abuse and irritable bowel syndrome, respectively. In so far as relevant to the hypotheses noted above, the factors of causation and associated definitions read:
Post traumatic stress disorder
5. (a) experiencing a severe stressor prior to the clinical 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 Veterans’ Entitlements Act applies, events that qualify as severe 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;”
Alcohol abuse
5(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse
“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 other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe 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
“psychiatric disorder” means any Axis 1 or 2 disorder of mental health attracting a diagnosis under DSM IV
Irritable bowel syndrome
5(b) suffering a specified psychiatric condition within the six months immediately before the clinical onset of irritable bowel syndrome
“a specified psychiatric condition ” means:
(a) a psychiatric condition with features of anxiety, including:
(i) generalised anxiety disorder, ICD code 300.02; or
(ii) panic disorder, ICD code 300.01; or
(iii) adjustment disorder with features of anxiety, ICD code 309.24, 309.28, 309.3, 309.4, or 309.9; or(iv) post traumatic stress disorder, ICD code 309.81; or
(b) a psychiatric condition with depressive features, including:
(i) major depressive disorder, ICD code 296.2 or 296.3; or
(ii) neurotic depression, ICD code 300.4; or
(iii) other depressive disorders, ICD code 311; or(iv) adjustment disorder with depressed mood, ICD code 309.0, 309.1, 309.4 or 309.28;
21. The third Deledio step does not involve the making of findings of fact but requires a consideration of each advanced hypothesis to determine whether it is reasonable in the sense that there is some material which calls for a determination under subsection 120(1) of the Act: see Bushell v Repatriation Commission (1992) 175 CLR 408 at 415. This requirement will be met if the hypothesis fits, in the sense of being consistent with, the template provided by the relevant factor and associated definition in the Statement of Principles. If an hypothesis is reasonable, it will then be necessary to consider the fourth of the Deledio steps.
Reasonableness of Hypotheses
post traumatic stress disorder: factor 5(a) – experiencing a severe stressor
22. The analysis of experiencing a severe stressor for post traumatic stress disorder involves a consideration of both objective and subjective elements: see White v Repatriation Commission [2004] FCA 633, Woodward v Repatriation Commission [2003] FCAFC 160 and Repatriation Commission v Stoddart [2003] FCAFC 300. Also, it is not a requirement that there be an actual threat: see Stoddart at paragraphs 30 and Woodward at 131-142. In Stoddart the Full Federal Court adopted the following statement from Woodward’s case (at paragraph 30):
“…the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury, etc, if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it, was capable of conveying, and did convey, the risk of death or serious injury. In other words, “experiencing” should be construed as having at least this partially subjective connotation.”
23. The components of the definition of experiencing a severe stressor relate to an event that involved a threat of death or serious injury or threat to a person’s physical integrity. The material before me in relation to the rubbish-tip event points to Mr White experiencing an event which was, judged subjectively from his own perspective and objectively from the point of view of a reasonable person in his position, capable of conveying a risk of at least serious injury to the East Timorese civilians. The material before me meets the template of experiencing a severe stressor in the Statement of Principles for post traumatic stress disorder.
alcohol abuse: factor 5(b) – experiencing a severe stressor
24. The definition of experiencing a severe stressor for alcohol abuse is expressed in the same way as it is for post traumatic stress disorder except that, additionally, it requires that the relevant event be one which might evoke intense fear, helplessness or horror. The evidence points to the rubbish-tip event as satisfying all of the elements of the definition and, therefore, the material before me meets the template of experiencing a severe stressor in the Statement of Principles for alcohol abuse.
25. In addition to the need for experiencing a severe stressor, factor 5(b) requires that there be material which points to the clinical onset of the condition within two years of experiencing the stressor. The term “clinical onset” has not been defined by the RMA but the requirement will be met if symptoms have been described to a medical practitioner who is then able to state that the presence of those symptoms at a particular time indicates that the condition was present at that time: see Re Robertson and Repatriation Commission (1998) 50 ALD 668 at 670 and Repatriation Commission v Cornelius [2002] FCA 750. Dr Likely’s first observations of Mr White were made in August 2004, less than three years after Mr White’s East Timor experiences. He described a heavy alcohol consumption pattern since Mr White returned for East Timor and was able to diagnose alcohol abuse at that time although, in his opinion, it was already partly in remission. That points to a clinical onset within the time-frame nominated in the Statement of Principles.
26. The material before me meets the template set out in factor 5(b) of the Statement of Principles for alcohol abuse.
irritable bowel syndrome: factor 5(b) – suffering a specified psychiatric condition
27. Post traumatic stress disorder is included as a specified psychiatric condition in the Statement of Principles for irritable bowel syndrome. Dr Patane entered a diagnosis of irritable bowel syndrome in April 2004. Dr Likely first diagnosed post traumatic stress disorder in 2005 but noted that this was the condition from which Mr White suffered rather than adjustment disorder. With his first diagnosis of a psychiatric condition in August 2004, he described a presentation of gastrointestinal symptoms since returning from East Timor. The material before me points to the presentation of symptoms of irritable bowel syndrome at about the same time as the development of Mr White’s psychiatric condition and, on that basis, the material before me meets the template of suffering a specified psychiatric condition within the six months immediately before the clinical onset of irritable bowel syndrome.
Deledio Step 4: Is the Condition War-Caused?
28. The evidence of Mr Murphy and Mr McTavish confirmed the general nature of the rubbish-tip disposal of food in the manner described by Mr White. Their statements confirmed the need to repel civilian presence although not necessarily with rifles. Mr White gave his evidence in a forthright and consistent manner and I accept that he was a witness of truth. The specific rubbish-tip event experienced by Mr White was confirmed by Mr Ryan and Mr Majetic. I am not satisfied beyond reasonable doubt that the rubbish-tip event did not occur in the manner and with the reactions he described. Similarly, I am not satisfied beyond reasonable doubt that it did not have the consequences described in the medical evidence such that it resulted in post traumatic stress disorder and alcohol abuse and, in turn, irritable bowel syndrome. In that situation, I am not satisfied beyond reasonable doubt that those conditions are not war-caused in accordance with s 9(1)(b) of the Act.
Decision
29. The Tribunal:
(1)varies the decision under review by amending the diagnosis from adjustment disorder with mixed anxiety and depressed mood to post traumatic stress disorder;
(2)sets aside the decision as varied and substitutes its decision that:
(a) post traumatic stress disorder, alcohol abuse and irritable bowel syndrome are war-caused diseases or injuries in accordance with s 9(1)(b) of the Veterans’ Entitlements Act 1986;
(b) Mr White is entitled to receive a pension for incapacity associated with those conditions with effect from and including 5 January 2004; and
(c) the matter of assessment be remitted to the Repatriation Commission.
I certify that the preceding 29 paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed: ............................................................
F. Kamst, Legal Research Officer
Date/s of Hearing 12 November 2007
Date of Decision 30 November 2007
Counsel for the Applicant Mr D Honchin
Solicitor for the Applicant Purcell Taylor Lawyers
Representative for the Respondent Mr J Stoner
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