Wilson and Repatriation Commission
[2000] AATA 764
•4 August 2000
DECISION AND REASONS FOR DECISION [2000] AATA 764
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1340
VETERANS' APPEALS DIVISION )
Re ANTHONY JAMES WILSON
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date4 August 2000
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N1999/1340
)
veterans' appeals DIVISION )
Re: ANTHONY JAMES WILSON
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date 4 August 2000
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter,
1.The decision of the Respondent of 23 April 1998 regarding Hypertension is AFFIRMED.
2.The decision of the Respondent regarding Post Traumatic Stress Disorder and Psychoactive Substance Abuse is SET ASIDE and the Tribunal substitutes in lieu thereof its decision namely THAT the Applicant, Anthony James Wilson, is entitled to pension for incapacity occasioned by the war-caused diseases of Post Traumatic Stress Disorder and Psychoactive Substance Abuse as and from 7 July 1997.
3.This Matter is remitted to the Respondent in order that it might assess the rate of pension to be paid for all war-caused injuries and diseases suffered by the Applicant.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Whether Applicant experienced a stressor so as to conform with Statement of Principles for post traumatic stress disorder and psychoactive substance abuse. Onus on Respondent to prove events relied upon as stressors did not occur.
Veterans' Entitlements Act 1986 - subs120(1), (3), (6), s120A
Repatriation Commission v Deledio 83 FCR 82
Repatriation Commission v Gosewinkle 1999 FCA 1273
Dixon v Repatriation Commission 29 AAR 235
Harris v Repatriation Commission 2000 fca 873
Repatriation Commission v Keeley [2000] FCA 532
REASONS FOR DECISION
Senior Member M D Allen
1.At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.
2.The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
3.The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Signed: Kwai-Ling Wong
..................................................................................……………………………….Associate
Date of Hearing 4 August 2000
Date of Decision 4 August 2000
Counsel for the Applicant Mr M VincentSolicitor for Applicant R L Whyburn & Associates
Advocate for Respondent Ms M Doggett, Department of Veterans' AffairsDRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N1999/1340
By MR M.D. ALLEN, Senior Member
WILSON and REPATRIATION COMMISSION
SYDNEY, FRIDAY, 4 AUGUST 2000MR ALLEN: Well, in this matter the applicant pursuant to an application lodged with the Tribunal on 7 September 1999 seeks review of a decision by the respondent made 23 April 1998 and affirmed by a Veterans' Review Board on 29 June 1999 which refused his claim for the conditions of post traumatic stress disorder with alcohol dependence and hypertension.
At the outset let me say that I will affirm the decision in regards to hypertension as on the material before me there is nothing to support a finding that hypertension as opposed to transitory raised blood pressure levels exists. The applicant served in South Vietnam between 12 June 1967 and 9 December 1997. Consequently he has operational service and therefore sub section (1) and sub section (3) of section 120 of the Veterans' Entitlements Act 1986 apply in relation to the standard of proof in his matter. Sub section (1) reads:
Where a claim under part 2 for a pension in respect of the incapacity from injury or disease of a veteran relates to the operational service rendered by the veteran the Commission shall determine that the disease was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
Sub section (3) reads inter alia:
In applying sub section (1) in respect of the incapacity of a person from injury or disease related to service rendered by the person the Commission shall be satisfied beyond reasonable doubt that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury, or
(b)the disease was a war-caused disease, or
(c)the death was war-caused,
as the case may be.
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©Auscript Pty Ltd 2000If the Commission after consideration of the whole of the material before it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the person.
As the present applicant's claim was lodged with the respondent after 1 June 1994 sub section (120A) applies to this matter. That is to say a reasonable hypothesis connecting his disease with was service must conform with the so called Statement of Principles.
The relationship between sub sections (1) and (3) of section 120 and section 120A of the Veterans' Entitlements Act was referred to by the Full Court in Repatriation Commission v Deledio 83 FCR 82. It is there said that the procedure should be as follows:
1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). …
3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a seasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4.Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed.
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©Auscript Pty Ltd 2000If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
I would only interpolate there to say that sub section (6) of section 120 of the Veterans' Entitlements Act provides that no party bears any onus of proof. In Repatriation Commission v Gosewinkle 1999 FCA 1273, Weinberger J addressed the question of the condition which may or may not be said to exist. He said at paragraph 37:
The Full Court referring to the Full Court of the Federal Court in Repatriation Commission v Cooke 160 ALR 17 observed that it made good sense to apply a disease or injury existed given that evidence concerning that issue was far more likely to be readily available than evidence relevant to causation.
In Dixon v Repatriation Commission 29 AAR 235, Wilcox J said relating to Deledio:
Once the decision-maker identifies a relevant Statement of Principles (step 2 in the Deledio summary) the decision-maker must "form the opinion whether the hypothesis raised is a reasonable one". It will be a reasonable one if (and only if) it contains "one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service". However, at this stage the decision-maker is not concerned with the accuracy of the material giving rise to the hypothesis; the decision-maker is still working under s 120(3). The two steps additional to those identified in Byrnes – that is, steps 2 and 3 in the Deledio formulation – are simply limitations on the result that may be obtained in connection with the first of the two Byrnes steps. As the Full Court said in Deledio, it is only at the step 4 stage of the process "that the Tribunal will be required to find facts from the material before it". In the present case the Tribunal fused together steps 3 and 4. It should have resolved step 3 by determining whether the claims made in the material before it satisfied the factor requirements of the Statement of Principles relating to generalised anxiety disorder; that is, still considering them as claims and without making any judgment about their truth. If the AAT had answered this question in the affirmative, the final step would have been to consider the truth of the claims, this being a step in carrying out the
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©Auscript Pty Ltd 2000obligation imposed on the Tribunal by s 120(1) of the Act to decide whether it is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the disease was war-caused. If the Tribunal had been satisfied beyond reasonable doubt that Mr Dixon did not undergo the experiences he claimed, or that any experiences he did undergo did not cause the generalised anxiety disorder he claimed to suffer, this would have been a proper basis for achieving the satisfaction mentioned in s 120(1) and dismissing his appeal.
As was further said by Finn J in Harris v Repatriation Commission 2000 fca 873:
The Tribunal will when dealing with stage 3 of Deledio was concerned not with the proof or disproof from the various SOP factors as such in Mr Harris' case but whether material before it was consistent with the existence of those factors or else properly allowed one or more of them to be assumed, so committing the SOP to uphold the applicant's hypothesis. Importantly as Heerey J noted in Deledio 47 ALD at 275 an hypothesis can be so upheld notwithstanding that "one of the disputed facts happens also to be a component of an SOP".
In many ways the respondents submissions in this matter seem to me to amount to a submission that if I could not be satisfied on the balance of probability as to the particular factual matters then the SOPs were not met and this matter had to be affirmed. It seems to me that that seems to negate the preferential onus of proof provided in subsection (1) of section 120. It seems to me that the correct way of approaching this matter is that outlined in both Deledio, Gosewinkle at paragraph 25, together with the comments of Wilcox J in Harris quoted above.
The only other matter which I would add now for completeness is as was pointed out in Repatriation Commission v Keeley [2000] FCA 532. The Statement of Principles to be applied are those in force at the time the respondent made its initial decision.
In this matter, those Statements of Principles are in relation to post traumatic stress disorder, Instruments Number 15 of 1994 as amended by Instrument Number 225 of 1995 and Instrument Number 5 of 1994 relating to psychoactive substance abuse or dependence.
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©Auscript Pty Ltd 2000It may also be a neat point whether one accepts, as a separate diagnosis, post traumatic stress disorder with alcohol dependence in that if alcohol dependence is a sequela of the PTSD then a separate Statement of Principles is not required to be addressed, as it is merely a sequela of the original condition. However, that is a moot point and, in this matter, there is sufficient material to merit a discussion of Instrument 5 of 1994 relating to psychoactive substance abuse.
The Applicant gave sworn evidence in this matter and he detailed various events which had occurred during his service in Vietnam. His service was as a craftsman at 102 Field Workshops, which was located at the 1st Australian Logistic Support Group, which in turn was located on Vung Tau beach. He says in his statement and his evidence that:
The area where he was located was believed to be in a secure area.
He said that:
On one night, what he took to be a mortar bomb landed in the area.
There has been adduced by the respondent a report by a historian, a Mr Tilbrook and it is clear from the material provided by Mr Tilbrook that it is unlikely that it was a mortar. Whatever it may or may not have been, the applicant gave evidence of seeing a flash and hearing a detonation. It seems to me that whatever it might have been, I accept the reaction the applicant stated was his reaction at the time; namely that
At the immediate moment, I really thought my life was in danger.
No doubt that passed but that was his reaction at the moment. There were other incidents. One of them referred to is encapsulated quite neatly in the report of Dr Leonard Lee, who tendered a report on behalf of the respondent. He said:
He sometimes had to do picket duties. I had to peer out into black open space.
It is something to take into account that here was a young man conscripted for service and then placed in a hostile situation and no doubt matters began to plan on his mind. Another matter which also has remained with him to this day is feelings of stress and distress whenever he heard a helicopter flying into 1 Australian Field Hospital,
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©Auscript Pty Ltd 2000which was the unit next to his because, after the sounding of a siren and the helicopter coming in, everybody knew that it was a "Dustoff" helicopter bearing wounded troops to the triage at 1 Australian Field Hospital.
He says:
The sound of a helicopter still causes him distress
And indeed that is something anybody who was exposed to those circumstances can empathise with. Notwithstanding that, I cannot really consider that the Dustoff instances come within the definition of experiencing a stressor in Instrument Number 15 of 1994. That document states:
A post traumatic stress disorder is connected with service if the applicant experiencing a stressor prior to the clinical onset of post traumatic stress disorder and experiencing a stressor is defined in the following terms:
(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
(i)the person's response involved intense fear, helplessness, or horror."
There were, however, two other instances where the applicant had such feelings. The first of these was when he was en route from 1ALSG to Nui Dat. He was in a landrover and passed by what he thought were the bodies of two Vietnamese civilians by the roadside. The report of Mr Tilbrook has no record of this and it was argued for the respondent that, as no record had been made of the two bodies, the factor did not exist.
It seems to me that the fact that there was no other record of the two bodies leads to two possibilities – either (1) the applicant is attempting to improve his case or (2) there were no bodies but the applicant honestly believes that he did see bodies. In this matter, I am not satisfied that the applicant is falsifying his account.
I have heard him and seen him give evidence and be cross-examined and, whilst I accept that he may well have been mistaken, I accept
that he has the honest belief a belief which, in all the circumstances, iswilrepJ 4.8.00 P-6
©Auscript Pty Ltd 2000a reasonable one that there were two bodies lying beside the road and that induced in him feelings of helplessness or horror.
The third event I might relate is that when he blundered in, to use a term, a Vietnamese funeral, the vehicle in which he was travelling, being en route from 1ALSG to the airport, was brought to a halt by the funeral procession. As he says in his statement, "He thought it was some sort of festival occasion:
Attracted by the bright colours, I got out of the vehicle to take a closer look.
He was then yelled at by his comrades and he observed a Vietnamese – I notice his statement says "a couple" but in the evidence it was quite clear that it is only that he noticed – chasing him with a large stick. He says of that:
At the immediate moment, I really thought my life was in danger.
Let me say of this incident as well, one must take it in its background situation. As I said, he is a young man. He is in a country – generally assumed to be both hostile and friendly and sometimes it is difficult to know which is which. He is in a situation which is outside his normal experiences. He has blundered in on what might be assumed to be, if not exactly a private occasion, one where Australian troops would not be welcome, and is then chased by a Vietnamese wielding a large stick in the presence of other Vietnamese.
One might well expect that he would fear for his own physical safety in that and, as he said:
I really thought my life was in danger.
As to the diagnosis of his condition, one can refer first of all to the reports of Dr Graham Altman, consultant psychiatrist, in the section 37 documents. In his first report, which is at document T10, Dr Altman stated:
In summary, in my opinion, as a result of his Vietnam experience, Mr Wilson suffers from a severe post chronic post traumatic stress disorder with associated major depression and alcohol dependence.
Later reports, such at T13 and T15, Dr Altman adheres to that diagnosis. A comprehensive report was given by Dr Anthony Dinnen,
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©Auscript Pty Ltd 2000psychiatrist, and that report dated 6 April 2000 became exhibit A4. I am particularly impressed with Dr Dinnen's report because my knowledge gained at this Tribunal is that Dr Dinnen has previously worked for the Department of Veterans' Affairs at Concord Hospital and has some experience in the treatment of veterans.
At page 2 of his report, Dr Dinnen's history, he says:
The patient said "the environment was in a war zone to start off with. I was vulnerable the whole time." I asked if he meant that he was in a constant state of apprehension and he confirmed that that was basically the case.
Dr Dinnen then deals with certain comments by the Veterans Review Board and it is important to note that, at page 5 of his report, Dr Dinnen said:
For the Veterans' Review Board to assert that this patient experienced nothing more or less than any other soldier is as
irrelevant to assessing the impact of his experiences upon him in the development of a psychiatric disorder as it would be to say that a prisoner of war of the Japanese experienced no more or less than any other prisoner of war of the Japanese during the Second World War.
I might add as my own aside that if one substitutes for the Veterans' Review Board comments on the funeral the fact of a motor vehicle accident, they would be forced to the conclusion that, because motor vehicle accidents happen in Australia and also to tourists overseas, no ex-servicemen who had been on operational service could ever claim any repatriation benefit for injuries received in the motor vehicle accident.
So far as the comment, "events which did not go beyond the norm in terms of operational environment in Vietnam" I would only say that we're not interested in the norm. We are interested in the effect upon the actual individual. We all have different degrees of courage. Incidents may to some be minor but, to this applicant, the events such as the bodies beside the road and the funeral were major and they affected him and they continue to have an effect.
Dr Dinnen concludes his report by stating:
My findings are in support of those of Dr Altman, the patient's treating psychiatrist.
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Dr Lee gave two reports to the respondent. It is interesting that Dr Lee notes that the applicant acknowledged being psychologically dependent on alcohol and escalating the amount that he drank. Al these features are consistent with a DSM-4 diagnosis of alcohol dependence. Dr Lee did not diagnose a post traumatic stress disorder. However, it seems to me that I am more persuaded by the reports of the applicant's treating psychiatrist and also by the reports of Dr Dinnen who, as I said, has considerable experience in the veterans area.
I am satisfied on the balance of probability that the applicant does have a post traumatic stress disorder. So far as the facts that gave rise to that post traumatic stress disorder, it is not a matter of accepting the applicant and rejecting Mr Tilbrook, but rather it is a case of whether I am satisfied beyond reasonable doubt that the incidents to which the applicant states, did not occur. Experiencing a stressor is defined as experiencing or being confronted with an event that involved actual or threatened death or serious injury.
So particularly as the funeral is concerned, it was. He was confronted with an event namely, a Vietnamese with a large stick and hostile intent that involved threatened serious injury or at least a threat to his physical integrity, and did that response involve intense fear, helplessness or horror as he said, "I was trembling, I thought I'd left myself exposed to danger to the extent I could have been severely injured, the incident has never left me", that would seem to me and I so find it comes within the definition of stressor. Similarly the event related to the body, though if certainly he witnessed death or what he honestly and reasonably believed to be death and his reaction was horror, on those matters alone it seems to me that he comes within the Statement of Principles for post traumatic stress disorder.
The Statement of Principles of psychoactive substance abuse refers to experiencing a stressful event prior to the clinical onset of psychoactive substance abuse and maintaining the abuse or dependence post service. There is evidence that he self medicated after these stressful events by alcohol, indeed alcohol was a stress reliever during the whole of his Vietnam service. There is evidence from his eldest sibling a Mrs Ford of his being a moderate drinker before service and a very heavy, indeed problem drinker after service.
I am satisfied on the balance of probability that his service gave rise to an alcohol habit, and I am also satisfied that he had the stressful event prior to the clinical onset of dependence and he maintained the
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©Auscript Pty Ltd 2000dependence post service. There was originally in this matter a question of the assessment of the rate of pension to be paid, however, because of matters which arose during the course of the hearing, it seems to me that the better course is to remit that matter to the respondent in order that it might be assessed. The decision under review will be set aside and the Tribunal substitutes in lieu thereof, it's decision, that the applicant's post traumatic stress disorder and psychoactive substance abuse are war caused diseases and that he is entitled to pension for incapacity from those diseases from 7 July 1997.
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