Wilson and Military Rehabilitation and Compensation Commission
[2005] AATA 1024
•17 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1024
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/331
GENERAL ADMINISTRATIVE DIVISION )
Re ANDREW WILSON Applicant
And MILITARY REHABILITATION
AND COMPENSATION
COMMISSIONRespondent
DECISION
Tribunal Ms M J Carstairs, Member
Dr J B Morley, MemberDate17 October 2005
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.................[Sgd]........................
M J Carstairs
Presiding Member
CATCHWORDS
COMPENSATION – endogenous depression – alcohol dependence – alcohol abuse – personality disorder – alleged bullying and harassment – conditions not service-related.
Safety Rehabilitation and Compensation Act 1988 s4,14.
Treloar V Australian Telecommunications Commission (1990) 26 FCR 316
REASONS FOR DECISION
17 October 2005 Ms M J Carstairs, Member
Dr J B Morley, Member
1. In 2003 Andrew Patrick Wilson claimed compensation for endogenous depression and personality disorder as being injuries or diseases suffered when he served with the Royal Australian Air Force. Mr Wilson served from 20 June 1991 to 23 June 1995 and was discharged on the basis that his services were no longer required.
2. Mr Wilson alleges that he was bullied and threatened by colleagues during his RAAF service. He also relies on having witnessed the traumatic death of his friend, Corporal Craig Nelson who was killed when hit by a train when Mr Wilson and he were returning to base after they had been out drinking socially one evening. Mr Wilson says that the bullying and his reaction to his friend’s death have had long term effects on his psychiatric health. He also claims that he did not receive adequate treatment for psychiatric problems that became evident during his service.
3. The respondent initially accepted liability for panic disorder with agoraphobia and major depressive disorder but later revoked that determination and concluded that any psychiatric condition was unrelated to the applicant’s RAAF service.
LEGISLATION
4. Section 14 of the Safety, Rehabilitation and Compensation Act 1988 provides for compensation to be paid where injury suffered by an employee results in death, incapacity for work, or impairment. Section 4(8) of the Act provides that a reference to injury suffered by an employee is reference to an injury suffered in respect of which compensation is payable under the Act. Section 4 defines injury as:
(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…..
Disease is defined in s4 of the Act as:
(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;
with ailment further defined in s4 as meaning any physical or mental ailment, disorder, defect or morbid condition either of sudden onset or gradual development.
THE APPLICANT’S EVIDENCE
5. The applicant’s evidence consisted of an undated written statement (T4) which accompanied his claim, as well as his oral evidence. In his written statement he said that he was harassed during his RAAF service, and service life put a strain on his marriage leading to a breakdown in the marriage. He said he has lost contact with his daughter.
6. In his oral evidence he stated that prior to joining the RAAF at the age of twenty-two he undertook civilian employment as a cabinet maker, after leaving school and taking up an apprenticeship at about the age of fourteen. He said that he was only a social drinker before he joined the RAAF. However he said that when he was posted to Townsville he came under the influence of a Sergeant Coad, who was his superior in the unit where he worked. Sergeant Coad was a heavy drinker, who took the applicant under his wing and he made it plain to him that drinking was part of the culture in Townsville. The applicant said that while he was aware of the effects that alcohol was having on him and he did not want to partake to the levels that were encouraged he felt powerless when Sergeant Coad had told him that if he reported any of the excessive drinking to others, the applicant’s life in the RAAF would be made difficult for him. The applicant said that he feared losing his job if he made a report.
7. The applicant said that he blames his alcohol consumption in Townsville for problems that occurred in his marriage at this time and other problems that developed when he was posted to Darwin. He said that when he was transferred to Darwin in 1994 he hoped to escape the drinking environment. However he said that drinking was prevalent in Darwin and he joined in. He said that he was labelled, he thought unfairly, as a drinker in Darwin. He did not believe that he obtained support from the RAAF for his drinking problem. He said that during his time in Darwin his standards were slipping, particularly in his dress, which he used to take pride in, and he felt badly about himself. He also referred to his financial problems and facing a criminal charge for stealing an outboard motor, which he said he had taken and sold in order to obtain money for alcohol.
8. The applicant also described the incident in which his friend Corporal Craig Nelson was killed when hit by a train. He had been drinking that night with Corporal Nelson and they were returning home when the incident occurred. In his oral evidence the applicant said that they were on the platform together when the train was coming but Corporal Nelson left the group and walked down the platform. Later the train driver told the applicant the train had hit and killed Corporal Nelson. It was very unclear in the applicant’s evidence whether he actually saw Corporal Nelson’s body. He said he was not believed when he reported the death. He said after the death he was picked on and called a murderer. He said that Corporal Nelson’s parents believed he had pushed Craig under the train. He said that he did not discuss the incident fully when he was admitted to hospital for three days as he did not want to be branded a murderer. The hospital note of the applicant’s admission in a distressed state on the night of the accident recorded (Exhibit R2, page 12):
Presented at hospital last night after his friend was hit by train and killed. Apparently he had been at the pub with 2 other friends…They were waiting for a train home when their friend walked off down the platform. A while later they saw ambulances arrive and went to investigate. The train driver apparently told them their friend had been hit.
9. The applicant said that he sees his problems as being the result of alcohol consumption and the back-stabbing and bullying he had suffered at work as well as the impact of his friend’s death. Nevertheless he said that he wished he was back in the services as he feels disappointed about losing his career. He said that the RAAF should have treated his alcohol problems rather than discharging him from the service.
MEDICAL EVIDENCE
10. The medical evidence presented to the Tribunal consisted of:
§ Two reports from consultant psychiatrist Dr Leonard Marinovich dated 8 September 1994 (T7 folio 44) and 16 November 1994.
§ Psychological Report from Captain J T Michalski of 17 February 1995 (T12 folios 75-76).
§ The applicant's Department of Defence psychological records (T12 folios 75-87).
§ Report from RAAF psychiatrist Dr Hansen dated 12 May 1995 (exhibit R2 pages 30-31).
§ Substance Abuse Counsellor Warrant Officer C Boshammer’s report (AREP Clinical Formulation) dated 22 May 1995 (exhibit R2, pages 23-26; T7 folios 45-48)
§ The applicant's service medical records (T7 folios 26-68).
§ The applicant's complete military medical records (exhibit R2).
§ The applicant's service records (exhibit R3).
§ Report from general practitioner Dr Michael Monsour dated 23 December 2003 (T17 folio 121).
§ Report from Senior Medical Compensation Adviser Dr A Casperson dated 7 January 2004 (T19 folios 124-126).
§ Report from consultant psychiatrist Associate Professor Frank Varghese dated 2 December 2004 (exhibit R1).
§ Three reports from Dr Robert John Athey, consultant psychiatrist, dated 25 November 2003 (T14), 18 March 2005 (exhibit A2) and 12 May 2005 (exhibit A3). Dr Athey also gave oral evidence at the hearing.
11. In his enlistment application papers dated 23 and 24 January 1991 the applicant stated that he had an occasional drink (exhibit R3 page 11) and 4/6 beers/month (exhibit R2 page 84). On 24 January the RAAF Recruiting Officer recorded that the applicant had admitted to a conviction the previous year on one drunk and disorderly charge for which he had been fined $400 (exhibit R3 page 7). The Victoria Police records show that the applicant appeared in the Melbourne Magistrate's Court on 14 March 1990 on two charges of resisting police and being drunk and disorderly, for which he was fined a total of $450 (exhibit R3 page 30). A Minute dated 26 February 1991 records a request for a character waiver on the grounds of the mitigating circumstances and his otherwise exemplary behaviour (exhibit R3 page 26). The approval was granted for the applicant's enlistment on 19 June 1991 (exhibit R3 page 46).
12. The applicant's Periodic Health Assessment dated 3 August 1993 notes that he had 1-2 drinks (of alcohol) monthly or less (T7 folio 26). His Outpatient Clinical Records during his Edinburgh and Townsville postings from June 1991 to March 1994 (R2 pages 101-113) record more than 20 attendances for incidental illnesses, with no reference to alcohol or related illnesses.
13. His Medical Examination Record dated 12 August 1993 shows that his psychiatric assessment was normal (T7 folio 27).
14. On 24 December 1993 at 0430 hrs the applicant was brought to hospital for admission by the police, alleging he had been assaulted by being kicked in the face (exhibit R2 page 59). He was difficult to examine as is very intoxicated. There also is an entry on 17 January 1994 (R2 page 102) of his being injured in a fight in Townsville when he was withdrawing money from a flexi-teller on Christmas Eve, and for which he was taken by the police to the Townsville General Hospital, and found to have sustained a fractured nose; there is no reference to this being alcohol related.
15. Then, in Darwin, on 21 September 1994, he had a Medical Fitness Board examination, at which he was noted to have endogenous depression... paranoid delusions, formal thought disorder, flat affect and aggression (T7 folio 28).
16. The events between the applicant's two medical assessments of 3 August 1993 and 21 September 1994 are recorded in the applicant's complete military medical records (exhibit R2) and service records (exhibit R3), of which there are two main matters.
17. Firstly, from June 1994 and continuing to February 1995, numerous documents record his financial difficulties, and irresponsibility towards debts, including frequent lying, and resulting in Formal Warnings (exhibit R2 pages 67, 102-104, 134-135, 137-138, 141-143, 144-145, 159-162, 164 and 165). In addition, his medical records show that from 29 August to 4 November 1994 he attended the Base Outpatient Clinic several times in varying degrees of distress (R2 pages 93-98).
18. He was seen by consultant psychiatrist Dr Leonard Marinovich, who noted his financial difficulties, and diagnosed in his report of 8 September 1994 (T7 folio 44) that for the previous five months the applicant had had an endogenous depressive episode with a paranoid quality. Because of his suicidal thoughts Dr Marinovich arranged his immediate admission into hospital, and prognosed a good response to treatment; there is no record available to the Tribunal of this admission, apparently into the Royal Darwin Hospital.
19. On 20 September 1994, Flight Lieutenant Whitmarsh noted (R2 page 96):
Discharged from hospital. Affect much better, however problems persist: 1. Wife left him this morning for a trial of four weeks. 2. He is being teased at LOM because they believe he had 'stress leave' and he desperately wants to be posted out of Darwin. Taking lithium, Zoloft... needs MFB [Medical Fitness Board]....
20. On 11 October 1994 a Medical Board reclassified his employment to temporary standard of A4-G5T-Z6T ie G5 indicates unfit [for] field or tactical deployments, and Z6 denotes medically unfit to serve overseas, and fit to serve in Australia only in cities which have a full range of specialist services (exhibit R2 page 41).
21. The entry by SMO Squadron Leader Johnson of 2 November 1994 records (R2 page 94):
Missed psychiatry appointment yesterday - trouble sleeping - difficulty with wife leaving - has been telling lots of lies to RAAF police, administration, Padre. Very convoluted stories. Admits to twisting stories around. Just trying to sort out his life. Confronted with lies. Admission and repentance professed. Agrees to see psychiatrist. Probably some form of personality disorder with compulsive lying.
22. When Dr Marinovich reviewed the applicant on 3 November 1994 following his hospital admission, he noted that the applicant had failed to keep a previous post-discharge appointment with him. He found that the applicant was no longer depressed. However he now remarked: He could not (or would not) see that his devious use of words, his failure to take responsibility for his own actions and his basic lack of honesty might have been important reasons as to why his life has not gone the way that he wants it to. He now diagnosed the applicant with a personality disorder, probably of inadequate psychopathic type, and opined that he was not a suitable candidate to remain in the Service. His transfer to Richmond, for his access to the Medical Services he needed, was recommended. There is no reference in any of these documents to the applicant having problems with alcohol.
23. Second, these are followed by records of the delay of his transfer from Darwin because of the hearing of charges, and his eventual conviction in the Darwin Magistrates Court on 15 February 1995, for theft of an outboard motor from fellow airman LAC Koulakis (pages 97-101, 107-111, 185-186, 188-189, and 190-192).
24. Meanwhile, on 31 January 1995 a Security Clearance Change of Circumstances Report was raised, on the grounds of his limited progress with his indebtedness, his misleading of those attempting to assist him, and his charge of theft on 30 December 1994 by the Northern Territory Police (R3 pages 193-194).
25. He was referred for a Psychological Report, for an Adverse Report Assessment, to Captain J T Michalski of 17 February 1995 (R3 pages 147-148). Captain Michalski concluded that the applicant did not possess either the maturity or motivation to avoid placing himself in a similar position in the future, and found no psychological grounds to prevent an Adverse Report being taken to its full conclusion.
26. None of these above-mentioned documents contain any reference to the applicant abusing or being dependent on alcohol.
27. Following his transfer to Richmond, on 24 March 1995 at 0230 hours the applicant was admitted into No 3 RAAF Hospital with facial injuries (R2 pages 8 and 17-22). The nursing report records that he had been kicked and punched repeatedly in head and face, no LOC [loss of consciousness], smells of ethanol - 6-8 stubbies consumed. When examined by the Duty Medical Officer (DMO) he alleged he had been assaulted when he stepped in on a fight, and had taken a punch to his face. X-rays disclosed a fracture of his nasal bones (page 35). He was discharged on 26 March 1995.
28. He re-presented to the Hospital on the night of 31 March 1995, and was admitted for Critical Incident Stress Management (R2 pages 9-16 and 27-28). The DMO's notes of 1 April 1995 recorded the applicant's account of the death of Corporal Nelson. His Medical Board and psychiatric assessment of the previous September, and his posting to Richmond for assessment for specialist care, were noted. An Alcohol Withdrawal Observation Chart was maintained four-hourly from 1 April to 4 April, with normal observations (page 14). He was treated with Zoloft 50 mg daily, and then was discharged. It appears that no firm diagnoses of depression or alcohol abuse were made.
29. On 12 May 1995 he attended for outpatient review, for possible psychiatric assistance following Corporal Nelson's death, and for possible assessment for the alcohol rehabilitation (AREP) programme (R2 pages 88-90 and T7 folio 65). Dr Lutz noted that the applicant said that he was coping well with Corporal Nelson's death, sleeping and eating normally; although he still felt it he was not dwelling on it. Although psychiatric counselling was recommended, Mr Wilson said that he did not need it. Dr Lutz wrote: Therefore no appointment for psychiatric help to be arranged until patient requests it and agrees to keep appointment; patient informed of same. It was noted that he had not kept previous appointments with psychiatrists (see also R2 pages 36 and 34). As it happened he was seen that day by RAAF psychiatrist Dr Hansen (R2 pages 29-31).
30. With regard to his possible alcohol problem Dr Lutz recorded at the interview (Exhibit R3 88-90):
Patient states that he drinks up to 80 g on an average weekend, nil during the week. He 'gets drunk' about once a month, when out socially with friends, about 140-200 g. Denies any period of his life with heavier drinking. Denies any history of alcohol-related problems. Specifically denied driving under the influence before being confronted with history of loss of licence, then admitted driving under the influence 18 months ago. Christmas Eve 1993 (was) admitted after an alleged assault. Doctor's note "intoxicated +++", but no blood alcohol level taken.... Impression: Personality disorder, definite alcohol abuse. Degree of dependence difficult to assess due to patient's willingness to lie regarding the same (note lying regarding driving under the influence). My impression is that he has abuse rather than significant dependence. This assessment is based on the information I have to hand. Counselled regarding safe levels of drinking....
31. He had liver function tests and full blood count performed that day (R2 pages 32 and 33); the latter was normal, and the liver function tests showed only marginal elevations in the levels of the serum concentrations of gamma GT and ALT, with all other results being normal. However, arrangements were made for his assessment for alcohol rehabilitation (AREP).
32. On 12 May 1995 the applicant also attended a psychiatric consultation with Dr Hansen (R2 pages 29-31). He acknowledged his theft, and his lying to cover up. Dr Hansen noted the past eight month’s stresses on Mr Wilson. He diagnosed an adjustment disorder relating to Corporal Nelson's death; he also considered a possible personality disorder, alternatively that he had decompensated with stress. He advised him to continue on Zoloft, with review several days later. There is no reference to his having problems with alcohol.
33. His AREP assessment was conducted by Substance Abuse Counsellor Warrant Officer C Boshammer, whose report is dated 22 May 1995 (exhibit R2, pages 23-26). He remarked that the applicant stated very clearly that he did not have a drinking problem and could not understand why he was being assessed (page 23). He obtained the applicant's following Drinking History (pages 24 and 25):
8. Andrew states that he first drank at age 18 and says that it made him sick. He could not or would not recall drinking prior to 18. At first he stated that he has never drank [sic] on a regular basis, then admitted that he would drink once a fortnight whilst in Darwin for 12 months. He states that he drinks slowly and always remembers the nights [sic] events even if he gets drunk. He states that he only ever consumes five or six stubbies (eight standard drinks) and that this amount gets him drunk. It seems unlikely that someone who has been drinking regularly for seven years or more would be 'drunk' on the above amounts, and no amount of questioning could encourage Andrew to enlarge on this amounts [sic]. However, he did admit to consuming ten standard drinks between 1700-2030 hrs that he can recall, on the night his friend was killed and also that he was drunk on this occasion. Andrew would only admit to being drunk on two occasions since arriving at Richmond, one such incident was stated by the assessor. He admits that although he has not been charged for DIU (sic) that he has driven a vehicle whilst drunk from the Airmens [sic] Club to his married quarter in Darwin. Andrew also admits to thoughts of wanting to harm or kill himself once when he found himself in financial difficulty whilst in Darwin. Andrew states that in a typical week he would only consume 11 standard drinks over a three day period.
34. This contemporaneously recorded account is at variance with his substantially heavier drinking history provided by the applicant at the hearing. Warrant Officer Boshammer goes on to record:
9. Andrew states that he has no military charges but has two civilian charges as follows:
a. Stealing a motor - fined $550.00 and placed on 12 months Good Behaviour Bond.
b. 1989 Drunk and Disorderly - locked up in cells for a couple of hours before being charged and released. Cannot recall the amount he was fined.
When questioned on the Drunk and Disorderly Charge and the indication from the hotelier that he (Andrew) was a regular patron, Andrew became vague about his recollections of his attendance at the hotel. Additionally, when questioned on whether he had a previous DUI conviction, he denied this and stated that his previous defacto had made it up to get him back.
35. Warrant Officer Boshammer applied the Michigan A1 Screen Test (MAST) for alcohol abuse, and the DSM-IIIR criteria for alcohol dependence, and found no confirmation of the diagnosis for either of these (page 25). In his Summary of the Report he remarked: However, Andrew stated on the assessment form that he dislikes his habit of lying and therefore it is unlikely that he has been entirely open and honest whether intentionally or not (page 25).
36. A Minute was raised on 2 June 1995 recommending the applicant's discharge Services Being No Longer Required. This was on the grounds of DI(AF) PERS 4-4 (Adverse Report), that failure to make arrangements for payment of debts could eventually result in discharge. His Commanding Officer considered that a discharge recommendation is appropriate given the member's negative attitude to discharging his debts (R3 pages 211-212). There is no reference in the Minute to his being depressed, or suffering alcohol abuse or dependence; and the applicant was not medically discharged.
37. The Tribunal now turns to the medical reports commissioned for this hearing.
38. In his first report of 25 November 2003 (T14 folios 99-114), consultant psychiatrist Dr Robert Athey obtained the applicant's history of depression and anxiety, including feeling suicidal, when in Darwin; and that he had felt kicked out of the RAAF, not treated well, and that he should have had more treatment ... at the time. He has never fully recovered since then and is currently not on any treatment apart from consulting his general practitioner occasionally; he had previously consulted a psychologist and a psychiatrist. He obtained a history from the applicant of an alleged homosexual rape in King's Cross which he understood to have occurred shortly after the applicant joined the Service; and of Corporal Nelson's death and his finding his remains; and of his being bullied and threatened. He went on to record: After his breakdown where he was hospitalised in Darwin he was labelled ‘schizo’ and continued to have that label for the remainder of his military career. He also had been ridiculed over his then de facto relationship with an indigenous woman, from whom he later had separated. He felt that he had been unfairly discharged from the RAAF. He had not settled into the workforce since his discharge. He drank heavily while in the RAAF to try and block out the memories and fears of the way he was treated. He noted that the applicant had never settled into the workforce since leaving the RAAF, that he had recurrent attacks of depression, often feeling anxious, with panic attacks, and found it difficult to go into unfamiliar environments or to deal with crowds or other people.
39. The applicant told Dr Athey that he only occasionally drinks now. He diagnosed that the applicant suffered from panic disorder with agoraphobia and major depressive disorder (recurrent). Dr Athey concluded that the applicant's RAAF employment probably was the principal cause of his condition, contributing to an important, major and significant extent. He nominated his bullying and threatening to have contributed substantially, with other factors being his alleged rape, his finding of Corporal Nelson's remains, and his high level of alcohol consumption, which had now abated. He considered that, although he might improve with treatment, he would never be free of anxiety symptoms, and probably not of depression. He was unable to return to his pre-injury level of employment. He needed antidepressant medication and psychotherapy. Though he thought Mr Wilson would benefit from assessment by a rehabilitation counsellor, Dr Athey did not consider him to be totally incapacitated for work.
40. On 23 December 2003 the applicant's general practitioner Dr Michael Monsour certified that he was suffering from permanent major depression and panic disorder (T17).
41. In his report dated 7 January 2004 (T19) Senior Medical Compensation Adviser for the respondent, Dr A Casperson, formulated the following opinions, based on review of the applicant's file, that:
§the applicant's alleged homosexual rape was not service-related;
§his 1994 depression was not service-related;
§he possibly suffered service-related harassment/bullying from August 1994 to March 1995;
§his family history of depression increased his risk of contracting the same;
§he was offered reasonable treatment/support for his adjustment reaction to Corporal Nelson's death; and
§the applicant's panic disorder with agoraphobia probably did not develop before his RAAF discharge.
42. When seen by consultant psychiatrist Associate Professor Frank Varghese on 9 September 2004 Mr Wilson told Dr Varghese that his problems began during his first two years of RAAF service in Townsville, when he was drinking heavily, for which he blamed his superior Sergeant Coad. This was also Mr Wilson’s evidence to the Tribunal.
43. As well, Mr Wilson told Dr Varghese that he was bullied; and ridiculed, including because his wife was indigenous. He said that, when he spoke to his Commanding Officer he was told to ignore it. He was called a troublemaker. He told Dr Varghese that he saw a counsellor for these problems, and was advised to stop drinking. By the time he transferred to Darwin after two years, he and his wife had divorced. He was drinking up to six stubbies a day, which was less than in Townsville. He told Dr Varghese that he was referred to psychiatrist Dr Marinovich in Darwin, and was assessed by the Alcohol Service. There also had been some misunderstanding regarding stealing, and the cops were involved and I was charged. He was returned to Richmond because there was no treatment at Darwin.
44. Mr Wilson also described his experience of Corporal Nelson's death and said that he was offered treatment for his alcohol problem, and for help with Corporal Nelson's death. He gave as his history that he left the RAAF two months later because Corporal Nelson's death shook me up, and was told to get out of the RAAF, with no reason given and without treatment for his alcohol problem.
45. Mr Wilson said that towards the end of his service he was drinking a cask of wine a day because I was pissed off with the RAAF and dreaming about what I lost and also Craig [Nelson]. Currently he drank half a case [of alcohol] a day. He reported occasional morning tremors; and was not sure whether he might have had delirium tremens. He said that he attempted suicide in Darwin, for which he was admitted into Darwin Hospital for three days. He said that this was because of a broken relationship and his financial problems, and he was diagnosed with alcoholism and depression. He had had no other psychiatric admissions although after Corporal Nelson's death he was in the RAAF Hospital for alcohol withdrawal, when he believed that he saw a psychiatrist.
46. Associate Professor Varghese's provisional formulation was that his principal clinical problem was alcohol dependence, probably of longstanding. He opined: Mr Wilson's alcoholism cannot meaningfully be attributed to his employment in the RAAF. I noted by his account it commenced shortly after he joined the Service and it seems that he suffered substantial difficulties in the Service because of alcohol. He then perused the documentation made available to him, which included references to the applicant's excessive drinking and apparently suicidal ideation following his RAAF discharge, from notes provided by Mount Druitt Hospital, as well as documents cited above from the applicant's RAAF records. He concluded:
§A significant issue in evaluating his case was the reliability of the applicant's data provided.
§The applicant's principal clinical issue was alcohol dependence of many years, which he tended to deny during his RAAF service
§Adverse events during his RAAF service which could have led to psychiatric problems were not regarded by his decision-makers at the time as being service-related.
§He now states that his problem is alcohol dependence, related to encouragement, mistreatment, discrimination, harassment, and numerous traumatic events.
§Whether he has any psychiatric condition can only be assessed after he has abstained from alcohol for a substantial period.
47. Associate Professor Varghese opined that the applicant suffers from alcohol dependence, adding he possibly has had episodes of depression and adjustment disorder. His alcohol dependence was not caused, contributed to, aggravated, accelerated, or caused to recur, by his RAAF service. Associate Professor Varghese further stated that because of the applicant’s lack of insight, tendency to blame others, and the problems caused by it, his prognosis was poor; this was not necessarily permanent.
48. He was re-examined on 15 March 2005 by Dr Athey, who provided his second report dated 18 March 2005 (exhibit A2). For this interview he had available several documents, including Associate Professor Varghese's report. Dr Athey noted the variation in the applicant's history, that his alleged homosexual rape that Dr Athey had referred to in his initial report had occurred following his RAAF discharge, and not shortly after joining the service; and that inconsistencies in his history have also been noted in the material on file. He found insufficient evidence in the applicant's history that he was currently drinking excessively. He still opined the applicant's diagnoses as panic disorder with agoraphobia, major depressive disorder (moderate severity, recurrent) and alcohol dependence syndrome (in partial remission). In relation to his service, he accepted the applicant's description of his history of bullying as plausible but without corroborative evidence.
49. In his third report of 12 May 2005 (exhibit A3), responding to a question on the extent to which the applicant's condition was related to his RAAF service, he chose significant contributing factor rather than probable cause.
50. When cross-examined, Dr Athey agreed that in compensation matters the applicant's history has to be credible, accurate and truthful. He agreed with the significance, in this respect, of the applicant's history on the following points:
§the varying accounts of the applicant's alleged homosexual rape between his first and second reports;
§the applicant's history of finding Corporal Nelson's remains in his first report, which he did not give to Associate Professor Varghese;
§the applicant's lack of reference to alcohol problems at his first consultation with Dr Athey, compared with when he saw Associate Professor Varghese 10 months later and Dr Athey again another six months later; and
§his lack of reference at the first consultation to his acute financial difficulties experienced in Darwin.
51. From this medical evidence the Tribunal finds that the applicant's diagnoses are alcohol dependence syndrome and major depressive disorder (recurrent), probably with panic disorder with agoraphobia. Although Dr Athey and Associate Professor Varghese have placed different emphases on the respective diagnoses of depressive disorder and alcohol dependence, the Tribunal accepts both diagnoses, acknowledging Associate Professor Varghese's reservations about firmly diagnosing past depression or adjustment disorder because of the applicant's alcohol dependence at the time that he saw him. However, the Tribunal has clearly recorded contemporaneous documentation that the applicant had a significant depressive illness which required his admission to hospital in Darwin in September 1994.
52. The Tribunal also has noted references to the applicant possibly having a personality disorder. On page 10 of his second report (exhibit A2) Dr Athey remarks on this, but had insufficient information to make a formal diagnosis. In his report, Dr Varghese remarked: The only remaining psychiatric issue is that of personality which has been noted both by myself and other assessing medical practitioners. Dr Varghese ventured no final conclusion on this. The Tribunal leaves this aspect of the applicant's diagnosis open; but it has noted Squadron Leader Johnson's impression in November 1994 that the applicant probably had some form of personality disorder with compulsive lying; and in May 1995 Duty Medical Officer Dr Lutz and psychiatrist Dr Hansen also raised this possible diagnosis. The Tribunal has also noted Dr Marinovich's assessment of the applicant in Darwin in his second report of 16 November 1994 as unable to perceive his difficulties and noted his devious use of words, his failure to take responsibility for his own actions and his basic lack of honesty; and his diagnosis of the applicant with a personality disorder.
CONSIDERATION OF THE ISSUES
53. The Tribunal accepts that what must be decided is whether the incidents in the applicant’s service or the failure to adequately treat certain psychiatric conditions did in fact and in truth contribute to the applicant’s psychiatric conditions: Treloar v Australian Telecommunications Commission (1990) 26 FCR 316.
54. The Tribunal has noted numerous instances of the applicant lying, referred to in service records and the medical evidence. For the applicant to succeed in this claim the Tribunal must believe that what the applicant now says about bullying and harassment during his service; about the pressure on him to consume alcohol, changing him from a social drinker to a person with an alcohol disorder; and about the effects on him of the death of his friend in the train accident; is true. In view of the well documented history of the applicant lying and the applicant’s admissions to this habit that are recorded in his medical and service personnel records, the Tribunal was not prepared to accept his evidence unless it was corroborated by other evidence.
55. There was no lay evidence called that corroborated the applicant’s evidence about bullying and harassment, nor about the culture of excessive alcohol consumption that he said existed in the RAAF in Townsville. The Tribunal took into account that the applicant made no report at the time, and took into account that there is no corroborating medical evidence that the applicant had any alcohol-related health issues at this time. In regard to the claims about bullying and harassment now made by the applicant, again the contemporaneous records show no reference to bullying, apart from a single reference on 20 September 1994 about being teased. The corpus of his evidence regarding this claim is his own uncorroborated testimony, which the Tribunal is unable to accept on its own, because of the records of his frequently manifest lying.
56. After his normal psychiatric assessment in August 1993 in Townsville, the applicant's records show that he suffered a single significant depressive illness during his RAAF service in September 1994 in Darwin. There is no history of the applicant having suffered depression before his service. The Tribunal was satisfied that the applicant's major depressive disorder (recurrent) commenced during his service and accepts Dr Athey’s evidence in regard to this condition. However the Tribunal was satisfied that the occurrence of the incident of depressive disorder for which the applicant was hospitalised in 1994 had only a temporal connection with his service. The contemporaneous medical evidence and other service records show that the applicant had multiple severe stressors in his life at the time, including his dire financial circumstances, facing criminal charges for theft, and his problems in his personal relationship, that better explain the cause of his depressive condition. The medical evidence does not support the conclusion that there is a connection with the applicant’s service.
57. With regard to the applicant's diagnosis of alcohol dependence syndrome, he had a pre-enlistment history of an alcohol-related incident, of his conviction in Victoria for being drunk and disorderly in March 1990. His first such incident during his RAAF service was recorded in December 1993, while he was still in Townsville. The next were his two admissions into hospital in Richmond in March and May 1995. On 12 May 1995 Duty Medical Officer Flight Lieutenant Lutz's impression was that the applicant had alcohol abuse rather than dependence.
58. However in his AREP assessment dated 22 May 1995 .Substance Abuse Councillor Warrant Officer Boshammer recorded the applicant's statement that he did not have a drinking problem and could not understand why he was being assessed. He found no confirmation on testing the applicant for either alcohol abuse or dependence. Warrant Officer Boshammer qualified his interpretation of his findings by remarking in his Summary that the applicant dislikes his habit of lying and therefore it is unlikely that he has been entirely open and honest whether intentionally or not (Exhibit R2, folio 23-26). There is no reference to this diagnosis in the documentation leading to the applicant's discharge from the service shortly after this. In this respect the Tribunal finds that, on the balance of probabilities, although the applicant's problems with alcohol became more evident in the latter stages of his RAAF service, at that stage they did not amount to either alcohol abuse or dependence.
59. It is significant that in his first interview with Dr Athey the applicant did not mention any issues with alcohol and Dr Athey took no history of alcohol consumption at this interview. Yet this has become a substantial part of the applicant’s claim for compensation. The lack of consistent reporting on these fundamental matters reinforces the Tribunal’s view that it is difficult to rely on what the applicant says in regard to them. Both Dr Athey and Dr Varghese reached the same conclusion about the reliability of the applicant’s evidence presented to them and Dr Athey confirmed that he had formed his initial views on an incomplete history, particularly with the absence of any reference to the financial difficulties that the applicant experienced in Darwin when he had his first recorded depressive episode.
60. The single documented depressive illness suffered by the applicant in September 1994 was at the time of his extensive financial problems. He did not mention these at either of his interviews with Dr Athey, but during his cross-examination, Dr Athey agreed that the applicant's debts at that time were significant stressors. The Tribunal agrees with Associate Professor Varghese that these cannot be regarded as being service-related, and the Tribunal so finds.
61. With regard to the RAAF failing to provide proper treatment for alcohol abuse, the Tribunal has already found that the applicant was not suffering this condition at the time of his service. At his AREP assessment by Warrant Officer Boshammer the applicant stated that he did not have a drinking problem and assured the investigating officer of his moderate drinking habit. Therefore, on the balance of probabilities the Tribunal finds that the applicant's claim that the RAAF did not provide proper treatment for the effects on him of alcohol abuse is not substantiated.
62. As for failing to provide proper treatment for him following Corporal Nelson's death, the applicant's claim contradicts what Associate Professor Varghese recorded at page 3 of the report of his interview with the applicant that the applicant was offered help following Corporal Nelson’s death. The applicant's records confirm that, on 12 May 1995 Dr Lutz offered him counselling, but he felt that he did not need this; nevertheless, he was seen for this that same day by psychiatrist Dr Hansen who diagnosed adjustment disorder, and recommended his continuing on antidepressant medication (Zoloft), and his further review. Moreover the Tribunal has noted also that the applicant failed to keep previously made appointments with Dr Hansen as well as in Darwin with Dr Marinovich. The Tribunal was satisfied that there are no grounds for the applicant's claim that the RAAF failed to provide proper treatment for him for the effects on him of Corporal Nelson's death.
63. We accept Dr Athey’s evidence that the applicant suffers from panic disorder with agoraphobia. However there is no medical evidence adduced that suggests that this condition commenced during, or was related to, his service in the RAAF, apart from Dr Athey’s initial report, which the Tribunal has reservations about in view of the misleading history that was given to Dr Athey, particularly in regard to when the alleged sexual attack on the applicant occurred.
64. Thus the Tribunal finds that, on the balance of probabilities, the applicant's psychiatric condition was not contributed to or aggravated by his RAAF service.
DECISION
65. The Tribunal affirms the decision under review.
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Presiding Member and Dr J B Morley, Member
Signed: Jeff Mills
Legal Research OfficerDate/s of Hearing 28 July 2005
Date of Decision 17 October 2005
Counsel for the Applicant Mr P J Goodwin
Solicitor for the Applicant Carswell & Company
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Australian Government Solicitor
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