Williams and Military Rehabilitation and Compensation Commission

[2008] AATA 1077

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1077

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q 200600689, 2007/2806

VETERANS' APPEALS DIVISION		)
Re		GRAHAM DENTON WILLIAMS

Applicant

And MILITARY REHABILITATION and COMPENSATION COMMISSION  

Respondent

DECISION

Tribunal Deputy President P E Hack SC and Dr M Denovan, Member

Date2 December 2008

PlaceBrisbane

Decision

The Tribunal:

(a) sets aside that part of the decision dated 30 March 2004 which determined that the respondent was not liable for post-traumatic stress disorder;

(b) affirms that part of the decision dated 30 March 2004 that denied liability for hypertension;

(c) sets aside the decision dated 9 May 2007 that determined that the respondent was not liable for alcohol abuse;

(d)  substitutes a decision that the respondent is liable to pay compensation to the applicant for the conditions of post traumatic stress disorder and alcohol abuse;

(e) remits the matters to the respondent to determine the compensation payable.

.............Signed...............

Deputy President

CATCHWORDS

COMPENSATION – injuries suffered as a result of military service – collision of the HMAS Melbourne with the USS Frank E Evans – post-traumatic stress disorder – alcohol dependence – alcohol abuse – held that the events of the collision did contribute to the applicant’s conditions – decisions under review set aside in part

Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 14

REASONS FOR DECISION

2 December 2008   Deputy President P E Hack SC and Dr M Denovan, Member   

Introduction

1.Mr Graham Williams seeks a review of two determinations by the respondent, the Military Rehabilitation and Compensation Commission. The first of these, made on 30 March 2004 and affirmed on reconsideration on 1 August 2006, denied liability to pay compensation for the conditions of post-traumatic stress disorder and hypertension. The second determination, made on 9 May 2007, and affirmed on reconsideration on 20 June 2007, denied liability to pay compensation for the condition of “alcohol dependency”[1]. In relation to the first of these determinations, Mr Williams seeks review only of that part of the decision that denied liability for post-traumatic stress disorder. He no longer presses his application in relation to that part of the decision that denied liability to pay compensation for hypertension.

[1]        The claim was made for “alcohol dependence or alcohol abuse”.

Background

2.Mr Williams is now 60 years old. He enlisted in the Royal Australian Navy on 1 June 1967, was posted to the 805 SQDN and was on board HMAS Melbourne at the time of the collision with the USS Frank E Evans on 3 June 1969.

3.Mr Williams lodged a claim for rehabilitation and compensation with respect to incapacity resulting from post-traumatic stress disorder and hypertension on 1 May 2003. A report provided by Write Way Research Services Pty Ltd indicated that Mr Williams’ account of his experiences on the HMAS Melbourne when it collided with the USS Frank E Evans generally accorded with the factual information contained in the Board of Inquiry report.

4.Mr Sean Ryan, a psychologist, saw Mr Williams on 14 August 2004. Mr Ryan expressed the opinion that Mr Williams was suffering from post-traumatic stress disorder as a result of the collision.

5.At the request of the Commission Dr Norman Rose, a consultant psychiatrist, assessed Mr Williams on 12 July 2006. Dr Rose was of the view that Mr Williams was suffering from alcohol dependency but no other psychiatric disorder. Dr Rose considered that Mr Williams’ alcohol dependency would have been contributed to by the collision to a slight degree only.

6.Mr Williams lodged a further claim for rehabilitation and compensation resulting from alcohol dependence and alcohol abuse on 6 March 2007.

7.In his report dated 13 February 2007 Dr Scott Jenkins, another consultant psychiatrist, stated that Mr Williams was receiving cognitive behaviour therapy for the treatment of post-traumatic stress disorder.

8.The Commission sought a report from psychiatrist Dr Michael Leong. Dr Leong opined in his report dated 16 May 2007 that Mr Williams was suffering from chronic post-traumatic stress disorder in partial remission, and from alcohol abuse. Dr Leong stated that the collision in 1969 was the cause of Mr Williams’ post-traumatic stress disorder, and his alcohol abuse was related to his post-traumatic stress disorder condition.

9.Dr Rose was asked to provide a supplementary report addressing the comments made by Dr Leong. Dr Rose said that Dr Leong had not addressed all of the DSM IV criteria for a diagnosis of post-traumatic stress disorder and considered that the history provided to him by Mr Williams was different from that given to him.

Issues

10.The issues for us to determine are:

(a)whether the applicant suffers from post-traumatic stress disorder, alcohol dependence and alcohol abuse; and

(b)if so, whether the requisite causal relationship existed between the collision between HMAS Melbourne and the USS Frank E Evans on 3 June 1969 and any or all of these conditions.

Consideration of the issues

11.In accordance with s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act), Comcare[2] is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. The term “injury” is defined to include a “disease”. Relevant definitions in s 4(1) of the SRC Act at the time relevant to these proceedings read:

[2]Or, as in the present case, the Military Rehabilitation and Compensation Commission, by virtue of s 147 of the SRC Act.

“aggravation includes acceleration or recurrence.

ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

...

disease means:

(a)       any ailment suffered by an employee; or

(b)       the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.

…

injury means:

(a)       a disease suffered by an employee; or

(b)       an injury (other than a disease) suffered by an employee, being a              physical or mental injury arising out of, or in the course of, the   employee’s employment; or

(c)       an aggravation of a physical or mental injury (other than a disease)           suffered by an employee (whether or not that injury arose out of, or in                  the course of, the employee’s employment), being an aggravation that           arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”

12.It is not in dispute that Mr Williams was serving aboard HMAS Melbourne at the time of the collision with the USS Frank E Evans in 1969. The Commission accepts that a person could develop post-traumatic stress disorder as the result of witnessing that collision, however contends that Mr Williams did not.

13.Mr Williams gave evidence that he was awoken from his sleep by the piping of “hands to collision stations”. He put his trousers on and ran to the nearest manhole located approximately 5 metres away. Mr Williams said that as the hatches were down and his deck was below the water line he feared drowning. He said that when he went up the main hatch he saw the aft part of the USS Frank E Evans very close to him. He said that there was screaming and scraping of metal. He then went up to the flight deck and saw an American soldier lying motionless near the front deck. Mr Williams explained that it took only a matter of seconds to put his trousers on and he estimated that within 5 minutes he was on the flight deck.

14.Of the three psychiatrists who have assessed Mr Williams in relation to his claims, Dr Jenkins and Dr Leong have opined that Mr Williams developed post-traumatic stress disorder as a result of the collision incident. Psychiatrist Dr Rose does not agree.

15.The Commission contends that we should prefer the opinion of Dr Rose, as Dr Leong accepted in oral evidence that he based his diagnosis on the history provided to him by Mr Williams. That history, according to the Commission, cannot be relied upon as Mr Williams has given various accounts of his experiences on the day of the collision, and also of his symptoms after that date. Our attention was drawn to evidence of Mr Williams having sought sleeping tablets when he was performing shift work, and having sought treatment for emotional stress after his separation and divorce, and also after the death of his sister. It was argued that this was evidence that Mr Williams was not backward in seeking help for issues of an emotionally stressful nature, which was inconsistent with that fact that he claims that he has suffered symptoms of post-traumatic stress disorder since 1969, but did not seek medical help for the same until 2003.

16.Dr Rose told the Tribunal that he did not think that Mr Williams suffered from all the symptoms necessary for a diagnosis of post-traumatic stress disorder. In his later report, Dr Rose points out that all of the diagnostic criteria for a diagnosis of post-traumatic stress disorder have not been detailed in either the reports of Dr Jenkins or Dr Leong. Dr Rose also pointed out that the history given to him was different from that which Mr Williams gave to Dr Leong. Dr Rose questioned the reliability of the history given to Dr Leong and opined that if the history given to Dr Leong was not reliable, then neither was Dr Leong’s diagnosis.

17.Dr Leong was provided with Dr Rose’s initial report prior to seeing Mr Williams. Dr Leong was aware of the history given to Dr Rose and repeats much of it in his own report. Dr Leong observed that there were a number of inconsistencies in both the history provided by Mr Williams and also in some of the medical reports and documentation. In spite of this observation, Dr Leong concluded that Mr Williams suffers from chronic post-traumatic stress disorder as a result of witnessing the HMAS Melbourne collision.

18.It was Mr Williams’ evidence that he did not realise he had post-traumatic stress disorder until 2003, when the possibility was raised with him by a friend. Prior to that date he considered that his symptoms were either due to his own personality or to extraneous factors such as his divorce. In his written report Dr Leong referred to Mr Williams having previously been prescribed Prozac and sleeping tablets by his general practitioner. Dr Leong's report also refers to the report of Mr Ryan, which included a reference to Mr Williams having grief counselling after the death of his sister. In oral evidence, Dr Leong opined that Mr Williams might have suffered from adjustment disorders after his divorce and the death of his sister. Dr Leong said that this was not inconsistent with his conclusion that Mr Williams was suffering from post-traumatic stress disorder. Dr Leong suggested that the fact that Mr Williams did not seek out any psychological or psychiatric treatment following the incident in 1969 was understandable as in that era to do so would likely have been regarded as a sign of personal weakness. Dr Leong stated that Mr Williams appears to have dealt with the problem by the extended use of alcohol.

19.We prefer the opinion of Dr Leong to that of Dr Rose. Dr Leong’s opinion is consistent with that of psychiatrist Dr Jenkins, psychologist Mr Ryan, and general practitioner Dr Kylie Lucas, all of whom opine that Mr Williams developed post-traumatic stress disorder as a result of witnessing the HMAS Melbourne’s collision with the USS Frank E Evans. Mr Williams’ evidence is consistent with the Write Way report and whilst there are some discrepancies in the accounts given by Mr Williams, those discrepancies are not of a nature that would lead us to question the factual basis upon which Drs Jenkins and Leong based their diagnostic conclusions. Mr Williams has consistently reported seeing the USS Frank E Evans scraping down the side of the HMAS Melbourne and the American sailor who was thrown onto the HMAS Melbourne. He has also consistently complained to the medical practitioners whose reports appear before us of a fear of drowning and of symptoms since the incident. We consider that the likely explanation of the variations in Mr Williams’ reporting is due to the large passage of time that has transpired since the collision incident. We consider that Dr Leong has adequately explained why Mr Williams did not seek treatment for post-traumatic stress disorder prior to 2003.

20.We acknowledge that all of the diagnostic criteria for post-traumatic stress disorder are not formally addressed in Dr Leong’s report, and are not specifically addressed at all in the reports of Dr Jenkins. This, however, does not in our opinion suggest that both Dr Jenkins and Dr Leong failed to turn their minds to all of the diagnostic criteria for post-traumatic stress disorder. We consider that as both Dr Jenkins and Dr Leong are experts in the field of psychiatry, they would have turned their minds to all of the diagnostic criteria, even if they did not specifically address each one in their written reports, before opining that Mr Williams suffered from post-traumatic stress disorder. It was not suggested to them that their opinions had not been infirmed by the appropriate diagnostic criteria.

21.In relation to alcohol dependence or alcohol abuse, Dr Leong has opined that Mr Williams suffered from alcohol abuse, which was a sequel to post-traumatic stress disorder, in that Mr Williams used alcohol as a form of self medication. Dr Rose opined that Mr Williams suffered from alcohol dependence. Mr Williams gave evidence that he increased the amount of alcohol that he consumed significantly after the collision in 1969. Mr Williams said that he did this to assist with his difficulty in sleeping. Dr Rose opined that it is more likely Mr Williams increased his alcohol intake as the result of peer pressure and to reduce his pre-existing shyness. Mr Williams denied that he was shy prior to enlistment, and cited his involvement in a number of sporting and community activities as evidence to the contrary. Dr Leong stated that he did not find evidence of Mr Williams’ having pre-morbid personality as described by Dr Rose. Mr Williams admitted under cross examination that peer pressure, the fact that he enjoyed drinking and that he had more opportunity to drink after June 1969, were factors that may have contributed to his having increased his consumption at that time.

22.We consider that whilst peer pressure, availability of opportunity to drink, and the fact that he enjoyed drinking were factors that may well have been significant in Mr Williams having increased his consumption of alcohol following the collision, increase in alcohol consumption alone does not equate with a diagnosis of either alcohol dependency or alcohol abuse. Dr Leong has indicated that there is a significant connection between Mr Williams’ post-traumatic stress disorder and his alcohol abuse, and we prefer his opinion to that of Dr Rose.

23.We are satisfied by the evidence, particularly that of Dr Leong, that Mr Williams suffers from post-traumatic stress disorder and alcohol abuse, and that his service on HMAS Melbourne at the time of the collision with the USS Frank E Evans made a material contribution to both of these conditions.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC and Dr M Denovan, Member

Signed:         ...................Signed................................................
  Jacqueline Woods, Associate

Date of Hearing  28 October 2008
Date of Decision  2 December 2008
Solicitor for the Applicant          Mr N Payne
Counsel for the Respondent     Ms E Ford
Solicitor for the Respondent    Dibbs Abbott Stillman