WZNX and Repatriation Commission
[2012] AATA 13
•13 January 2012
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2012] AATA 13
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/5683
VETERANS' APPEALS DIVISION ) Re WZNX Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date13 January 2012
PlaceMelbourne
Decision The Tribunal:
1. sets aside the decision of the Veterans’ Review Board dated 28 July 2008 insofar as it found the applicant does not suffer posttraumatic stress disorder and in substitution decides the applicant suffers schizophrenia, posttraumatic stress disorder and depressive disorder; and
2. affirms the remainder of the decision insofar as it found disability pension should be cancelled with effect from 13 December 2004.
(sgd) John Handley
Senior Member
VETERANS’ AFFAIRS ‑ operational service ‑ posttraumatic stress disorder (PTSD) accepted as war-caused in April 2002 with effect from January 2001 ‑ in 2004 PTSD not found to be war-caused ‑ decision made to cancel pension after investigation found service events did not occur ‑ whether events in service as alleged did occur ‑ diagnosis ‑ schizophrenia, PTSD and/or depressive disorder ‑ cancellation of pension ‑ date of effect of cancellation ‑ discretion exercised
Veterans’ Entitlements Act 1986 ss 120, 120A, 31, 135, 175
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
13 January 2012 Mr John Handley, Senior Member 1.This application has a very long and unfortunate history. For reasons which will be become apparent later, an order has been made pursuant to s 35(2)(aa) and (c) of the Administrative Appeals Tribunal Act 1975 prohibiting publication of the name of the applicant and restricting disclosure of evidence that might identify him to all persons, except the parties’ representatives, Tribunal personnel and employees of Auscript.
BACKGOUND
2.On 29 April 2002 the Veterans’ Review Board (VRB) set aside a decision, in part, previously made by a delegate of the Repatriation Commission (the Commission) and decided that the applicant’s posttraumatic stress disorder (PTSD) was related to his operational service in East Timor. The VRB otherwise affirmed the delegate’s decision that depressive disorder, generalised anxiety disorder and alcohol abuse were not war‑caused.
3.The applicant was subsequently assessed as having an entitlement to pension at 80 per cent of the general rate with effect from 9 January 2001 until 3 April 2001, temporary payment of special rate thereafter until 7 June 2004 and then automatic reversion back to 80 per cent of the general rate.
4.The applicant sought review of the VRB’s decision before this Tribunal (N° 2002/662) but withdrew the application on 5 September 2002.
5.In 2003 the Commission investigated the circumstances of the applicant’s service and ultimately became satisfied that the events previously alleged did not occur.
6.On 13 December 2004 a delegate of the Commission determined that the applicant’s pension should be cancelled with effect from 9 January 2001. The applicant sought review of that decision and on 28 July 2008, the VRB agreed that the applicant’s pension should be cancelled but with effect from 13 December 2004. It also decided the applicant did not suffer PTSD.
7.The applicant has applied to this Tribunal for review of the VRB’s decision made on 28 July 2008.
ISSUES
8.The issues to be determined in this review are:
a)Does the applicant suffer from an injury or disease?
b)What, if any, were the events to which the applicant was exposed during his operational service?
c)Did the applicant suffer injury or disease as a consequence of events in service?
9.There was disagreement between the medical witnesses about the diagnosis, namely, whether he suffered primarily from paranoid schizophrenia or PTSD. It was agreed that the applicant suffered depressive disorder. The distinction between the medical witnesses was whether the applicant suffered schizophrenia. There were references made to him suffering from alcohol abuse and dependence but that is not part of the decision under review and I do not propose to deal with it.
EVIDENCE
10.The applicant gave evidence on the first day of hearing on circuit in country Victoria. When the hearing resumed in Melbourne, the Tribunal heard evidence from the applicant’s treating psychiatrist, Dr Stuart Wild and Professor Graham Burrows, who was engaged by the Commission. Evidence was also heard from Lieutenant Commander Matthew Keogh, a former Petty Officer (Medical) who served with the applicant on HMAS Newcastle (Newcastle). References will be made to the T‑Documents, which contain a number of medical reports and other clinical data, including a medical report from Dr Rose, a psychiatrist to whom the applicant was referred in 2001.
APPLICANT’S HISTORY
11.The applicant is presently 48 years of age, divorced and the father of two adult children. He also has an eight year old daughter from a subsequent relationship which has ended. He lives in southern New South Wales with his parents and receives a superannuation pension.
12.He first enlisted in the Royal Australian Navy (Navy) on 2 April 1986 and for personal reasons accepted an optional discharge two months later. Thereafter, he worked in civilian employment until 17 February 1997 when he again enlisted with the Navy. He remained a member until 1 April 2001 when he was discharged as medically unfit.
13.The applicant was engaged in operational service whilst a steward on‑board Newcastle in East Timor between 19 December 1999 and 26 January 2000 and between 3 and 9 February 2000.
EVENTS IN SERVICE
14.The applicant said in 1999 he was serving in Cairns in Far North Queensland and was assigned to HMAS Melville. That vessel had not been commissioned and he was the only steward engaged on it. He became ill and threatened suicide. He was treated by Navy medical personnel and was referred to Dr Paul Trott, a consultant civilian psychiatrist. His health eventually improved.
15.In November 1999, following an assessment by Dr Hardman, he was found not to be depressed or psychotic, his earlier episodes of depression had resolved with supportive psychotherapy and he was found fit to resume sea going duties. It was also noted that the applicant had been unable to tolerate the medication that had previously been prescribed to him.
16.The applicant was then transferred to Newcastle which proceeded to serve off the coast of East Timor from mid-December 1999 until early February 2000. The applicant and other personnel were engaged in humanitarian relief at Oecussi where he observed considerable damage to buildings and property.
17.The applicant said he was trained as a medic (the training was described as your basic medic training course) and fire brigade duties when on-board Newcastle.
18.The humanitarian activities in which he was engaged required him to travel from Newcastle – which was anchored off shore – onto the Oecussi mainland almost daily during the period that Newcastle provided assistance between December 1999 and February 2000. When onshore he said he performed whatever was asked of him. In addition to assisting in the demolition, repair or reconstruction of public buildings, he said he was also involved in unloading persons from trucks that transported them to a local hospital for treatment. He said persons attended with ulcers, abrasions and burns ... and we’d treat those children in what we were trained... to do (Transcript, p11). The applicant acknowledged that there were medically qualified persons engaged in treatment of civilians. However, if the injuries were minor the applicant said we could help them out (Transcript, p13).
19.The applicant said that he frequently saw children who had suffered burns. He said that they were stressed, crying. He said that he was involved in triage type activity where the head medic had asked him to ascertain the severity of the burns and if they were regarded as being severe, those persons were sent to the front of the hospital (Transcript, p15).
20.The applicant said that the experience of working with injured persons, especially children, was horrifying. He was scared and it wrecked his life. He sought counselling from a Chaplain because he thought that would be more confidential than speaking with enlisted doctors.
21.The applicant said that prior to going to sea, he was taking antidepressants. Whilst on-board Newcastle he said he was not taking prescribed antidepressant medication, the Navy didn’t give me any anti-depressants and it was not explained to him why medication was not provided (Transcript, p16).
22.On his return to Australia the applicant said he went on a drunken binge for a long, long time. He said he was absent without leave for many months and was eventually hospitalised (Transcript, p16).
23.The applicant acknowledged in cross-examination that he and his brother were routinely assaulted by their father when they were infants. He also acknowledged – consistent with histories taken from the treating and medico-legal psychiatrists ‑ that he had been sexually abused by his uncle over a period of two or three years when he was aged between seven and ten years.
24.The applicant said he could not remember why he left the Navy after his first enlistment which occupied about two months. He recalled that he was engaged in civilian employment for a number of years. In the interim, he and his wife separated and he lost contact with his children when he moved to live with his parents in Southern New South Wales. He said that he was lonely and missed [his] kids something shocking (Transcript, p22).When he re-enlisted and was transferred to Cairns, he became depressed and sad because of his absence from his children.
25.The applicant said that he had considered suicide before travelling to East Timor because of pressure, the loneliness, the isolation (Transcript, p23). He recalled that he was referred to Dr Trott and after a period of treatment he was eventually given an improved medical rating and was cleared to return to duty.
26.The applicant said that he was fit to resume duty because he was consuming medication. He denied notifying medical staff that he was not taking antidepressant or other medication and said that he probably indicated to doctors that he was fit to resume duties because he didn’t want any backlash nor did he want to be seen as weak in front of other sailors (Transcript, p24).
27.The applicant agreed that he had given evidence at the first VRB hearing that he had been a member of a SMET team (Ship’s Medical Emergency Team). He also agreed that he had given evidence that he had served as a member of that team in triage type functions at the Oecussi hospital and had given minor treatment to injured civilians. The applicant was adamant that his evidence was truthful. He had read a statement of Lieutenant Commander Keogh who had recorded that the applicant was never a member of a SMET team and had never performed any treatment or triage duties. He said Lieutenant Commander Keogh was dishonest.
28.The applicant said that if he had been working near a hospital when a truck arrived with injured persons, he was asked to assist in the medical side of things, because I was medically trained (Transcript, p26).
29.The applicant agreed that he had probably told Professor Burrows that he was feeling paranoid and described the symptoms of that sensation as hearing voices and having visions.
LIEUTENANT COMMANDER KEOGH
30.Lieutenant Commander Keogh was the Petty Officer (Medical) on-board Newcastle during its operational deployment to East Timor in 1999 and 2000. He was the senior medical officer in charge of the sickbay. He was also responsible for exercises which involved the training of SMET team members. In his statement of 18 August 2010, Lieutenant Commander Keogh said the applicant was not involved in the exercises to qualify for SMET team membership and he was not a SMET team member during deployment to East Timor.
31.In evidence he said the applicant qualified for SMET team membership in May or June of 2000, after he had returned from East Timor. He did not disagree with the proposition put to him by Mr Moore that the applicant gained proficiency in SMET training in 1998.
32.Lieutenant Commander Keogh said that the SMET team members may have volunteered to go ashore but they had no involvement with any treatment nor did they attend patients because they were not trained or prepared for it. Actual medical treatment was undertaken by medically qualified persons either from Newcastle or the 3RAR group from the Australian Army. Lieutenant Commander Keogh said that there was no triage function as such, rather persons waited in a queue for treatment. He recalled that a nurse who spoke the local language waited near the entry but treatment was conducted on the basis of first in, first served (Transcript, p33). In a letter dated 30 January 2003, Lieutenant Commander Keogh said the applicant’s claim of being engaged in treatment of civilians and triage responsibility is totally false (T27, p298).
33.Lieutenant Commander Keogh said that persons who joined a ship attend with a number of documents, one of which contains medical data. If a member requires pharmacy medication, it is obtained before a vessel leaves port; it is stored in a drug cupboard and administered to patients when needed.
34.All documents carried by members joining a vessel are checked and read to complete medical categorisations and to make sure that persons are fit to go to sea. If they are unfit, they are left onshore and reviewed every three or six months. Lieutenant Commander Keogh said that there were four medical categories, ranging from category one (fitness to be deployed anywhere) to category four (unfit to go to sea) (Transcript, p35).
35.In examination-in-chief, Lieutenant Commander Keogh said that he did not treat or see any persons with burn injuries. However, in cross-examination he acknowledged it was possible that other medical personnel could have treated injuries of that type. He said he had no recollection of persons being brought to the medical facility by truck but did not deny that it was possible. He acknowledged that the applicant could have come in contact with children during the course of his construction work and also acknowledged that he could have seen burns victims.
36.Lieutenant Commander Keogh said persons on-board who are taking prescribed antidepressant medication are not permitted to be armed or be issued with a weapon. He identified the applicant from a bundle of photographs taken in East Timor (Exhibit A2), one of which depicts the applicant holding a rifle.
CLINICAL RECORDS
37.The T-Documents contain the applicant’s service medical records (T3, p35‑131). Entries commence in March 1997 and conclude at April 2001 when he was discharged as medically unfit.
38.On 19 April 1999 the applicant attended the White Rock Surgery in Cairns and was diagnosed with depression. Zoloft was prescribed.
39.The applicant thereafter had treatment principally at the Navy Health Centre in Cairns. An entry records the applicant had picked up a lot on two weeks of Zoloft. Having seen his children, his depression was recorded as settling. Part of the record is missing and the date of that consultation is not known. I assume that consultation occurred approximately two weeks after the appointment at the White Rock Surgery on 19 April 1999 because the applicant was then prescribed Zoloft.
40.On 10 May 1999 the applicant consulted Dr Provan who found he was suffering from anxiety and insomnia. Prescriptions for additional medication were issued. The applicant was referred to Dr Trott.
41.In a letter to Dr Provan on 10 June 1999, Dr Trott reported that the applicant suffered from a mild depressive disorder secondary to the situational crisis (the limited access with his children). He also referred to the applicant feeling criticised and threatened by the hierarchy of the navy. Dr Trott reported that the applicant appeared to have enjoyed a resolution of depressive symptoms, improvement in levels of energy and concentration and he foreshadowed that the applicant should be psychologically ready to return to sea (T3, p92).
42.On 14 July 1999 Dr Provan recorded that the applicant was deteriorating, was taking antidepressant medication but he denied it to his superiors in an attempt to get clearance to stay on (HMAS) Melville. He recorded that during the previous evening the applicant had consumed alcohol and had thoughts of hanging himself. Arrangements were made for the applicant to consult Dr Trott on the following day (T3, p50).
43.In a report written on the following day (15 July 1999), Dr Trott obtained a history of the applicant being involved in some unpleasant events in a bar which were distressing to him. He reported that the applicant felt relieved that his depression had been identified, agreed to take prescribed medication and to engage in supportive psychotherapy. Dr Trott recommended that the applicant be referred to a psychiatrist for ongoing treatment and management (T3, p94-96).
44.There are two short entries by Dr Provan on 16 and 20 July 1999 but no other clinical notes concerning psychiatric treatment before operational service until a report completed on 25 November 1999 by Dr Hardman, psychiatrist. The reasons for her assessment are not known. However, I assume – by the content of the report – that consideration was then given to whether the applicant was fit to resume sea going duties.
45.Dr Hardman took a long history and also referred to the clinical notes and the reports of Dr Trott. She concluded that there was no evidence that the applicant suffered depression, he was nil psychotic and he was fit to resume sea going duties. She also noted the applicant was unable to tolerate medication (T3, p100-105).
46.On the same day, 25 November 1999, a report of a medical board – apparently having accepted the conclusions of Dr Hardman – recommended the applicant as Category One. Having regard to the evidence earlier of Lieutenant Commander Keogh, a category at that level permitted the applicant to return to sea duties.
47.On 10 February 2000 – after the applicant had returned from East Timor – Dr Trott wrote a letter to Dr Provan discharging the applicant from his care.
48.For reasons which are not obvious, reports and other material in the T‑documents indicate the applicant’s emotional health deteriorated considerably in 2000.
49.On 26 August 2000, a medical board recommended the applicant be regarded as Category Seven for three months. That recommendation was made in a report completed at the Balmoral Naval Hospital in Sydney where the applicant was admitted following his return to the Navy having been absent without leave for the preceding three weeks.
50.On 29 August 2000, Dr Fukui, a psychiatrist, reported that the major stressor confronting the applicant and responsible for the development of his depressive illness had been separation from his children which the applicant described as being unbearable (T3, p98 & 119). The applicant was then an inpatient at the Balmoral Naval Hospital and subsequently had outpatient treatment until 3 October 2000 when a final diagnosis was made of severe depressive episode without psychotic symptoms; mental and behavioural disorders due to use of alcohol, dependence syndrome (T3, p115).
51.A report dated 10 October 2000 recorded that the applicant had been increasingly depressed last 2/3 months (T3, p98).He did not appear to be psychotic but did admit strong suicidal impulsivity and had heavily consumed alcohol.
52.In report dated 7 November 2000, it was noted that the applicant commenced medication following his admission as an inpatient. During his inpatient treatment over a period of three weeks, it was noted that his progress was excellent and he regained a lightening of mood and reactive affect (T3, p119).He later was permitted to have convalescent leave with his family but on return the applicant relapsed badly with anxiety, agitation and reluctance to return to work. He was then re-admitted.
53.Subsequently, arrangements for the applicant to be discharged from service were put in place, culminating in him finally being discharged on 1 April 2001. In the report dated 1 March 2001, the Board of Final Medical Survey recommended that the applicant be discharged because he suffered from major depression which renders him unfit for sea service (T3, p28).
54.The applicant then returned to live with his family in southern New South Wales and made his claim under the Veterans’ Entitlements Act 1986 (the Act). The Commission arranged for him to be examined on a medico legal basis by Dr Norman Rose, a consultant psychiatrist. In a report of 6 June 2001, Dr Rose concluded that the applicant had been suffering from major depressive disorder and generalised anxiety disorder from the time he was treated in Cairns. He also noted that the applicant was suffering from alcohol abuse prior to service in East Timor. Additionally, as a result of his East Timor experiences he determined that the applicant developed a chronic post traumatic stress disorder (T6, p154).
55.At the date of consultation, Dr Rose was satisfied the applicant suffered from major depressive disorder, generalised anxiety disorder, alcohol abuse and PTSD.
MEDICAL EVIDENCE
Dr Wild
56.Dr Wild is a practising psychiatrist who has been treating the applicant since 2002.
57.In a report of 13 May 2010, Dr Wild concluded that the applicant suffered from alcohol dependence, chronic PTSD and alcohol induced psychotic disorder with delusions (Exhibit A1).
58.In his report he concluded that alcohol dependence was not due to his military service but possibly aggravated by it, having regard to events during his service in East Timor.
59.The diagnosis of chronic PTSD was made on the assumption that the applicant did experience stressors as alleged in East Timor. Dr Wild conceded that if, as a fact, the applicant did not experience those stressors then the symptoms he exhibited would be consistent with major depression with prominent anxiety. In those circumstances, the alternative diagnosis should be regarded as a continuation of a pre-existing depressive illness. Alternatively, it could be argued that the applicant suffered an aggravation of a pre-existing depressive illness on the basis that he was consuming prescribed antidepressant medication whilst serving in East Timor, he had run out of it, the medication could not immediately be made available to him and there was an absence of psychological support. An alternative diagnosis could be of alcohol-induced mood disorder because chronic alcohol misuse is known to cause many common symptoms of PTSD.
60.In relation to the third diagnosis of alcohol-induced psychotic disorder with delusions, Dr Wild reported that it is attributable to the applicant’s predisposition by a family history in his father of both alcohol abuse/dependence and psychosis… (Exhibit A1, p18).
61.Dr Wild noted that Professor Burrows had reported that the applicant suffered schizophrenia. Dr Wild regarded that condition, if it existed, as not being service related because it would be considered to be a neuro developmental disorder unrelated to life experiences.
62.In evidence, Dr Wild said that having regard to a conversation he had with the applicant on the day prior to giving evidence – having also become aware of the opinions expressed by Professor Burrows and having also read the transcript of the first day of hearing – he was uncertain about the validity of his third diagnosis of alcohol-induced psychotic disorder with delusions.
63.Having had a discussion with the applicant, Dr Wild became satisfied that the applicant in fact had not suffered from hallucinations but rather he suffered:
… a wide range of obsessive-compulsive symptoms, including intrusive obsessional ideas that harm was going to happen in some way, and intrusive vivid mental images of harm happening… (Transcript, p5)
Professor Burrows
64.Professor Burrows consulted the applicant at the request of the Commission in July and September 2009.
65.In his report dated 27 October 2009 (Exhibit R1), Professor Burrows concluded that the applicant suffered from paranoid schizophrenia which was the primary diagnosis. He was satisfied that the applicant suffered from PTSD, depressive disorder and alcohol abuse and dependency as secondary disorders. He confirmed these conclusions in evidence (Transcript, p25).
66.Professor Burrows was asked to consider the evidence of the applicant where he described himself as being paranoid because he hears voices and has visions. The applicant gave an example of having a vision of a child on a pushbike being struck by a car and observing the after effect of it all, but it didn’t happen. Then I’ve got to bring it back that it didn’t happen… (Transcript of 25 August 2010, p37-38). Dr Burrows said that type of experience is common in persons who suffer schizophrenia because they see things that don’t occur and imagine they are occurring, and then realise that perhaps they didn’t, but at times will feel that they’re not certain (Transcript, p22)
DIAGNOSIS
67.Before consideration can be given to whether the hypotheses advanced by the applicant are reasonable, a finding must be made on the balance of probabilities of the illness or injury suffered by him.
68.Doctors Wild and Rose and Professor Burrows all agree the applicant suffers PTSD. The opinion expressed by Dr Rose in 2001 of the applicant then suffering PTSD indicates that illness has existed for many years.
69.The distinction between Dr Wild and Professor Burrows is whether the condition of PTSD is a primary or secondary illness. Dr Wild said it is the former. Professor Burrows said it is the latter. Dr Wild was not satisfied the applicant suffered schizophrenia.
70.Professor Burrows also diagnosed depression, secondary to schizophrenia. Dr Wild said if the events in East Timor did not occur, he would then diagnose major depression, in lieu of PTSD.
71.Both doctors took account of the applicant suffering alcohol dependence or alcohol abuse. It was dismissed as war-caused when the applicant first made a claim in 2001. That decision was also affirmed by the VRB. It was not claimed in the second application. It is not an illness or condition for which a decision has been made in this review. Therefore, I do not propose to determine whether there is any connection between alcohol dependence or abuse and service.
72.Prior to giving his evidence before the Tribunal, Dr Wild had a telephone conversation with the applicant. Following that conversation, he reviewed the diagnoses recorded in his report of 13 May 2010 and wondered whether the applicant in fact had an obsessive compulsive disorder (OCD). Having reviewed the applicant’s evidence and read the transcript, I am satisfied that Dr Wild was canvassing the possibility of OCD rather than expressing a conclusion. In those circumstances, I am not satisfied that the applicant suffers from OCD.
73.The opinions of Professor Burrows and Dr Wild have merit. In those circumstances, I am satisfied and find on the balance of probabilities that the applicant does suffer schizophrenia with PTSD either as a primary or secondary illness. Additionally, the applicant suffers depression, either as a secondary illness or in lieu of PTSD. Although Professor Burrows is the only doctor who diagnosed schizophrenia he is eminent in the treatment of persons with that illness and I regard his opinion as credible.
74.It should not be assumed that the diagnosis of PTSD is dependent on exposure to traumatic events in service. The applicant’s history revealed personal events prior to service which probably satisfy the PTSD definition and his symptoms probably satisfy the clinical criteria.
IS PTSD, DEPRESSIVE DISORDER AND SCHIZOPHRENIA WAR-CAUSED?
75.Section 120 of the Act provides that an injury or disease will be war-caused unless the decision-maker is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. There will be no sufficient ground for making that determination if the material does not raise a reasonable hypothesis connecting the injury or disease with war service (s 120(3) of the Act). Section 120A(3) provides that a hypothesis will be reasonable if there is a Statement of Principles (SoP) in force that upholds the hypothesis.
76.In Repatriation Commission v Deledio (1998) 83 FCR 82 at 97, the Federal Court set out a four-stage process to determine whether an injury or disease is war-caused in accordance with s 120 and s 120A of the Act.
77.The applicant submitted that he experienced a severe stressor prior to the clinical onset of PTSD; or he experienced an event perceived as a severe psychosocial stressor prior to the clinical worsening of schizophrenia and he was unable to obtain appropriate clinical management for his depressive disorder. I am satisfied that there is material, being the evidence of the applicant and the histories taken by the doctors, pointing to a hypothesis connecting his illnesses to service. Therefore, the first stage is satisfied.
78.There are SoPs in force applicable to the illnesses of PTSD, schizophrenia and depressive disorder.
79.During the assessment period, which I am satisfied commenced on the date that the applicant first made his claim in 2001 (s 19 of the Act) the only two SoPs for schizophrenia are Instruments N° 132 of 1996 and N° 15 of 2009. For reasons I will discuss later, I am not satisfied that the applicant can satisfy any of the factors found in the instrument currently in force. I will have regard to factor 5(a) of Instrument N° 132 of 1996, namely, experiencing an event perceived as a severe psychosocial stressor within 30 days immediately before the clinical worsening of schizophrenia.
80.A severe psychosocial stressor is defined at paragraph 7 as:
…an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury in a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.
81.In the assessment period there were two SoPs concerning PTSD, namely Instruments N° 3 of 1999 and N° 5 of 2008. For reasons which will also be recorded later, I am not satisfied that the applicant can qualify under the SoP currently in force. I will give consideration to Instrument N° 3 of 1999. Mr Moore submitted that the applicant should qualify under factor 5(a) namely, experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder. The expression experiencing a severe stressor is defined at paragraph 8 of Instrument N° 3 of 1999 as:
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 Act applies, events that qualify as stressors include:
(i)threat of serious injury or death; or
(ii)engagement with the enemy; or
(iii)witnessing casualties or participation in observation of casualty clearance, atrocities or abusive violence.
82.There are four SoPs concerning depressive disorder in force within the assessment period. The most recent Instrument, N° 40 of 2010 is an amendment only to paragraph 6 of Instrument N° 27 of 2008. For reasons which will be discussed later, I am not satisfied that the applicant can qualify under the SoP currently in force namely, Instrument N° 27 of 2008 as amended by N° 40 of 2010. The remaining instruments are N° 17 of 2007 and N° 58 of 1998.
83.Mr Moore submitted that the applicant satisfies factor 5(k) of Instrument N° 58 of 1998, namely an inability to obtain appropriate clinical management for depressive disorder.
84.The second stage of Deledio is therefore satisfied.
85.The third stage of Deledio requires the decision maker to determine whether the hypotheses raised by the applicant are reasonable. The hypotheses as raised by the applicant are consistent with the template found within SoPs. There is material pointing to the applicant (i) having experienced a severe stressor prior to the clinical onset of PTSD (factor 5(a) of Instruments N° 3 of 1999); (ii) being unable to obtain appropriate clinical management for depressive disorder (factor 5(k) of Instrument N° 58 of 1998); and (iii) experiencing an event perceived as a severe psychosocial stressor before the clinical worsening of schizophrenia (factor 5(a) of Instrument N° 132 of 1996). The hypotheses raised contain one or more of the factors specified in the relevant SoPs. Therefore, I am satisfied that the hypotheses are reasonable and the third stage is also satisfied.
86.This and other applications involving consideration of connection between operational service and illness or injury rise or fall (if the third stage is met) at the fourth stage of Deledio. It is at that stage that a finding must be made whether the Tribunal can be satisfied beyond reasonable doubt that the illness was not war-caused. If the Tribunal is not satisfied, the claim will succeed. Alternatively, if the Tribunal is satisfied beyond reasonable doubt that the illness was not war-caused the claim must fail. It is only at this stage of analysis that findings of fact are made on the material before the Tribunal.
87.The application is put on two bases, namely:
a)that the applicant experienced a severe stressor prior to the clinical onset of PTSD or experienced an event perceived as a severe psychosocial stressor prior to the clinical worsening of schizophrenia; and/or
b)there was an inability by him to obtain appropriate clinical management for depressive disorder.
88.It was the case of the applicant that while in East Timor, he was a member of the SMET team, he was engaged in triage type duties, he did attend persons with minor injuries and he was distressed by the sight of persons who suffered burn injuries.
89.On the evidence of Lieutenant Commander Keogh, I am satisfied the applicant was not ever a member of the SMET team. He was not trained to undertake SMET duties and he would not have been engaged in any medical-type activity onshore. Additionally, he would not have been engaged in any triage type activity because he was not qualified to do so. I am satisfied that East Timorese civilians were treated only by medically qualified persons only (and not SMET team members) being either by members of the crew of Newcastle or personnel from the Australian Army 3RAR base onshore.
90.Consistent also with the evidence of Lieutenant Commander Keogh, I am not satisfied that the applicant did observe persons who suffered burn injuries.
91.Whilst Lieutenant Commander Keogh said that he was not onshore everyday – as the applicant apparently was – he did not ever treat burns victims. I note also from the reports of Commander Naughton and the appended extracts from medical officers that the statistics of injuries treated were 50 per cent malaria, 25 per cent skin infections and 25 per cent exotic tropical diseases (T10, p169-171). Independently of Lieutenant Commander Keogh, there is no evidence of civilians being treated for burns. Dr Karen Taylor, a former colleague of Lieutenant Commander Keogh in East Timor, described the types of illnesses and injuries treated in Oecussi in an email of 6 February 2003 (T27, p300). Her description is compatible with the report of Commander Naughton. Dr Taylor has not recorded treatment of civilians for burns.
92.I have no doubt that the applicant was engaged in humanitarian and relief type work onshore, cleaning up and removing debris from damaged buildings and assisting in reconstruction. In the course of those activities the applicant would have had contact with East Timorese civilians who were awaiting treatment. I am satisfied that the applicant would have been distressed at observing those persons and he would have been mindful of his role particularly in assisting those and other persons recover and rehabilitate. I am also mindful – and find as a fact – that the applicant did distribute lollies to children that he purchased on-board Newcastle.
93.However, the applicant’s reaction of distress and upset would not have satisfied the definitions of having experienced a severe stressor in the PTSD instrument, as reproduced earlier nor would he have experienced an event perceived as a severe psychosocial stressor, as defined. Being distressed at observing civilians, particularly children and assisting in the rebuilding, in the midst of destruction by previous forces hostile to East Timor, will not suffice. He must have experienced, witnessed or confronted an event or events involving actual or threat of death or serious injury or a threat to a person’s physical integrity (PTSD); or reacted to an identifiable occurrence that evoked feelings of substantial distress (Schizophrenia). Some examples recorded in the definition include being shot at, death, serious injury and sexual assault. Those types of events indicate the type of response or reaction that would qualify as substantial distress. At an objective and subjective level, the applicant’s experiences in East Timor, as l have found, do not satisfy the definitions.
94.Additionally, each factor in each of the above SoPs is qualified by having experienced either a severe stressor or a severe psychosocial stressor prior to the clinical onset or clinical worsening of PTSD or schizophrenia. There was no evidence of the occasion of clinical onset or clinical worsening of those conditions.
95.The remaining instrument concerned the depressive disorder. It was submitted that the applicant had a long history of depressive illness (for which he had been prescribed medication) which prohibited him from sea going duties. Later, he was classified as fit to join Newcastle but there was opposing evidence whether medical documentation was ever submitted on-board and/or whether antidepressant medication was ever prescribed for which a prescription would have been issued. It was also submitted that medication was not available to the applicant nor was any counselling available to him whilst on-board Newcastle at, during or on return from East Timor where he had become disturbed by the events that he had confronted. Those events, it was submitted, constituted stressors which were building up and as a consequence of an inability to obtain appropriate clinical management, he absented himself without leave from the Navy a short time after Newcastle returned to Sydney. Later the applicant became hospitalised and medicated because of his depressive disorder.
96.With respect, the facts do not, on the probabilities, point to those conclusions.
97.The applicant did have treatment for depression from April 1999 but the notes point to him having improved and qualifying for a Category One rating on 25 November 1999. That permitted him to join Newcastle and travel to East Timor. That rating was achieved after the applicant was examined by Dr Hardman, a psychiatrist, who noted that the applicant had undertaken specialist psychiatric treatment with Dr Trott, had come to terms with a number of interpersonal issues, had improved sleep, mood and appetite, was more confident and was no longer having suicidal thoughts. Dr Hardman also recorded that the applicant was unable to tolerate medication and specifically recorded that depression he had previously suffered resolved because of supportive psychotherapy (T3, p105).
98.There is nothing from Dr Hardman’s assessment which points to the applicant having been regarded as fit for sea going service subject to consuming prescribed antidepressant medication. Additionally, there is nothing which points to him having been prescribed medication. All of the other medical references, both in the clinical notes and the reports of Dr Trott, refer to the occasions when drugs were prescribed. There is no such reference in the report of Dr Hardman. The reference to the applicant being unable to tolerate medication also suggests that issuing a prescription would have been pointless.
99.It therefore follows that when the applicant joined Newcastle he did not have a prescription for medication which he could have handed over and which, by Navy practice, would have caused the prescribed medication to have been brought on-board and securely stored for the applicant’s benefit.
100.Further, it would appear from the report of Dr Hardman that the applicant was not in any need of medication.
101.The applicant said he did seek and obtain counselling on-board Newcastle from the Chaplain. If it did occur, it may explain the absence in the clinical records of those consultations. If the applicant did have counselling by the Chaplain, nothing points to the applicant undertaking it because of symptoms or effects of any war caused injuries. If the applicant is to be believed on this issue, it contradicts his submission that counselling was not available.
102.It appears from the report of proceedings that Newcastle returned to Sydney in early February 2000 (T10, p176-177). There are no medical or other clinical records with respect to depression or any other psychiatric type injury after the report of Dr Hardman until, August 2000 – that is six months later – when the applicant was admitted to the Balmoral Naval Hospital and was subsequently admitted as an inpatient. In the interim, he attended for treatment of neck and back injuries (T3, p113) and for a knee injury (T3, p112). Nothing points to any depressive type illness for which he sought treatment.
103.Indeed there is nothing which points to the applicant suffering from depression or like injury whilst on-board Newcastle, throughout his period of operational service.
104.The complaint of the applicant that his medication on-board Newcastle was confiscated cannot be sustained. I am not satisfied that he ever presented a prescription which is the reason why that medication was not obtained and stored for him. There is nothing which points to the applicant having a need for any type of clinical treatment for depression whilst on-board Newcastle. Nothing points to his apparent deterioration after service in East Timor having a connection with an inability to obtain appropriate clinical management.
105.The clinical notes of Dr Fukui, a treating psychiatrist, are not within the T‑documents. Part of her notes are reproduced at pages 98, 119 and 120 which record at 29 August 2000 that the applicant had become increasingly depressed over the previous two or three months. That entry does not suggest that service events in East Timor were responsible. The major stressor to developing his depressive illness was the separation from his two children which he finds unbearable. He has otherwise enjoyed the work with the Navy (T3, p119).
106.The opinion expressed by Dr Fukui that the major stressor is the applicant’s separation from his children resonates throughout his clinical history as a precipitating factor in the worsening of depressive symptoms (T3, p49, 86, 88 & 91). Mr Rayner, a psychologist, attended the applicant on 28 August 2000, after he presented to the Balmoral Naval Hospital in Sydney, having been absent without leave for 3 weeks. In a lengthy history, Mr Rayner recorded that he was distressed by seeing other sailors’ reunions with children (T26, p279). While there was no reference to specific events in East Timor, the applicant blamed the Navy for the separation and told Mr Raynor that his situation deteriorated after he was deployed to East Timor.
107.In conclusion, I am not satisfied that the applicant had any inability to obtain appropriate clinical management. Nothing points to him having a need for clinical management during his period of operational service. If there was a need, medically qualified persons were on-board Newcastle and onshore after he returned. The applicant cannot complain that confiscating his medication caused an inability to have clinical treatment because, as I found above, he did not have any medication which was capable of being confiscated. He was found fit to travel to East Timor and nothing points to him having a need for treatment at all whilst on-board and not before mid-2000, being some months after he returned from East Timor and then outside the period of operational service.
108.Some photographs were received into evidence, one showing the applicant holding a rifle in East Timor. I accept the evidence of Lieutenant Commander Keogh that the Navy would not issue weapons to a sailor taking antidepressant medication. I am satisfied the applicant was rated as category one and did not consume, nor produce a prescription for, antidepressant medication when he commenced his tour on-board Newcastle.
109.In concluding this part, l draw attention to a written submission made by the applicant’s advocate and lodged with the VRB during the first review hearing that during his time in East Timor … his prescribed medication Prothiadin ran out and none was available on board Newcastle (T11, p196). The advocate no doubt made these submissions on the instructions of the applicant. I can find nothing in the clinical or other records, whether before or after operational service that Prothiadin was ever prescribed and certainly nothing to indicate that it was prescribed for consumption during his service in East Timor.
110.Additionally, it was submitted before this Tribunal that there was no psychiatric assistance available to him on-board (Transcript, p53). That may be so, but there were medically qualified persons on-board Newcastle. If the applicant needed clinical management, he could have sought it from those persons. However, that presupposes that there was such a need. As found earlier, there is nothing which points to him having any illness or injury which required appropriate clinical management whilst on-board Newcastle or when he was in East Timor.
111.For all of the above reasons, I am satisfied that although not war-caused, the applicant does suffer from the conditions of schizophrenia, PTSD and depressive disorder. The finding of the VRB with respect to diagnosis is set aside (T2, p13). The evidence heard in this review involved matters not before the Commission and the VRB when decisions were respectively made in 2001 and 2002. Therefore, the decision of the VRB insofar as it decided to cancel the pension, will be affirmed.
DATE OF EFFECT
112.This review commenced by reason of a decision made by the Commission pursuant to s 31 of the Act on 13 December 2004. The Commission then decided that PTSD was not war-caused and disability pension was cancelled with effect from 9 January 2001 being the date from which pension was paid as a consequence of the VRB decision made on 29 April 2002.
113.The remainder of the decision before this Tribunal is the decision made by the VRB to vary the date of effect of the Commission’s decision to cancel the applicant’s pension. That decision was made having regard to a matter that was not before it or the VRB when the decision to grant pension was made (s 31(6)(a) of the Act). In such a case, the Commission may determine in writing to cancel pension from the date of that determination or such later date as is determined (s 31(7)).
114.On 16 July 2002 the Commission raised an overpayment against the applicant in the sum of $23,664.54. On 23 April 2003 it decided to recover that sum by deducting $61.64 from his service pension commencing on 15 May 2003 (T28, T29, p304-305).
115.There is nothing in the T‑Documents nor was it submitted that the applicant had ever sought to stay that decision. There were no submissions concerning the power of the Tribunal to review the decision to cancel the pension. Section 135(1), (2) and (3) and s 175 of the Act invests this Tribunal with jurisdiction to review the cancellation decision.
116.On 28 July 2008 the majority of the VRB decided that the date of effect of cancellation should be 13 December 2004 being the date of the Commission’s decision to cancel the applicant’s pension. The majority was satisfied that the applicant did have a history of psychiatric illness which caused frequent periods of hospitalisation. They were also satisfied, having regard to the clinical and service medical records, that the claims made by the applicant, although false, should be viewed in the context of his significant and long standing psychiatric ill health. The majority of the VRB was satisfied that the applicant portrayed a genuine, although inaccurate, recollection of the events in East Timor or he may have been functioning with a reduced mental capacity at the time that he made his claim.
117.Whilst it was acknowledged that it was in the public interest to pursue recovery, it was unlikely that the debt would ever be recovered from the applicant. Indeed, the VRB was concerned that attempts to recover may exacerbate the applicant’s mental illness. On balance, the majority of Members were satisfied that the pension should not be cancelled earlier than the date of the Commission’s decision, namely, 13 December 2004.
118.The minority Member who decided the pension should be cancelled with effect from 9 January 2001 concluded that even if the veteran was suffering from a psychiatric condition prior to his East Timor service, he could find no medical evidence suggesting his pre-existing mental state affected his perception of his experiences during operational service. Additionally, there was nothing to suggest that the applicant’s psychiatric state had an impact on his ability to give accurate and truthful information when making his claim.
119.On 13 February 2002, two months before the applicant first gave evidence at the VRB hearing he was certified by Dr Keppell as totally incapacitated for all employment for six months (T25, p262). Dr Keppell also noted a past medical history of PTSD, alcohol abuse and major depression (T25, p261). Dr Wild in a report to the Commission on 28 May 2002, the month after the VRB hearing, reported the applicant then:
… continues to complain of a wide range of persistent symptoms that cause considerable distress and from which relief is difficult for him to obtain even with support and reassurance. On the [PTSD] checklist (Military Version) he reports extreme difficulty with repeated disturbing memories, thoughts and images of his military experience, repeated disturbing dreams, suddenly acting or feeling as if he were in a stressful military experience again, feeling very upset and experiencing physical reactions when reminded of his stressful experiences …
120.The notes of Dr Keppell and the report of Dr Wild suggest that the applicant’s psychiatric state is likely to have impacted on his ability to give evidence.
121.It is my view, in the exercise of the discretion available under s 31(6) of the Act, that the date of effect of cancellation of pension should be 13 December 2004.
122.There is no doubt that the applicant has a long psychiatric history, which commenced during childhood when he was the subject of assault by his father and sexual abuse by his uncle. The service medical records indicate that throughout a greater part of 1999, he was treated by medical practitioners for conditions variously described as depression and anxiety. He was frequently exhibiting symptoms of suicidal ideation, alcohol abuse and he was prescribed medication, although there is some doubt whether he ever consumed it. At least three of his practitioners immediately before East Timor were psychiatrists (Dr Provan, Dr Trott and Dr Hardman).
123.With the benefit of hindsight and upon review of his clinical records, the applicant’s decline commenced after he returned from East Timor when he was also treated by psychiatrists including treatment as an inpatient.
124.In July 2000 he was referred to Mr Rayner after he fell from a boat and described feelings of sheer terror and panic (T26, p282).It was reported that a lifejacket he was wearing failed to inflate, he was submerged and became breathless. In evidence, the applicant denied that this event occurred. Approximately three weeks later he commenced a period of absence without leave where it would appear he spent most of that time consuming alcohol. When the applicant returned, he saw Mr Raynor on 28 August 2000 who recorded wants out of Navy. DO reports discharge date Mar 01 (T26, p279).
125.On 1 March 2001 the Medical Board convened at the Balmoral Naval Hospital and recommended that the applicant be discharged from service by reason of suffering from major depression (T3, p28). The applicant was discharged with effect from 1 April 2001.
126.The applicant made his first claim for pension under the Act on 9 April 2001 – nine days after he was formally discharged. In the following month he was assessed by Dr Rose at the request of the Commission. Dr Rose noted that the applicant then presented as highly anxious and agitated, he had a coarse tremor, was frightened of and reluctant to talk about his experiences in East Timor and he expressed ideas of helplessness, hopelessness and vindictive rage. He was regarded as being psychiatrically quite ill and presenting with symptoms of suicidal ideation, murderous thoughts and severe anxiety and depression ... avoidance, hyper-arousal and possible nightmares. He appears to be preoccupied with his experiences in East Timor (T25, p266-267).
127.I am satisfied that in April 2001 the applicant was severely affected by a long standing psychiatric illness. The evidence he gave to the VRB was false but it was a product of his psychiatric illness and the emotional state that he then endured.
128.Expenditure of public funds should not be ignored but on balance, the rights and wellbeing of a mentally-ill individual should not be disregarded or considered to have lesser significance.
129.The applicant remains a person who suffers a severe psychiatric illness as indicated by his presentation at the Tribunal when he gave his evidence and consistent also with the evidence of the doctors at the hearing. The distinction between them as to diagnosis is of no relevance on this issue. They both agreed that the applicant was severely psychiatrically disturbed.
130.In the circumstances, the discretion available under s 31(6) should be exercised in a manner favourable to the applicant. The date of effect of cancellation should be the date of the Commission’s determination namely, 13 December 2004. Therefore, the Tribunal also affirms this part of the VRB’s decision.
DECISION
131.For these reasons, the Tribunal:
a)sets aside the decision of the VRB insofar as it found the applicant does not suffer PTSD and in substitution decides the applicant suffers schizophrenia, PTSD and depressive disorder; and
b)affirms the remainder of the decision insofar as it found disability pension should be cancelled with effect from 13 December 2004.
I certify that the one hundred and thirty-one [131] preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member
Signed: Olympia Sarrinikolaou
Legal Assistant
Dates of Hearing 25 August and 15 October 2010; and 1 April 2011
Date of Decision 13 January 2012
Counsel for the Applicant Mr G. Moore
Solicitor for the Applicant Mr P. Liefman
Counsel for the Respondent Mr D. Brown
Solicitor for the Respondent Australian Government Solicitor
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