YZJT and Repatriation Commission (Veterans’ entitlements) - [2016] AATA 288

YZJT and Repatriation Commission (Veterans’ entitlements) [2016] AATA 288 (5 May 2016)

Division

GENERAL DIVISION

File Number(s)

2014/5701

Re

YZJT

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Senior Member A C Cotter

Date 5 May 2016

Place Brisbane
The decision under review is set aside. In its place, the following decision is substituted:
(a)The Major Depressive Disorder was defence-caused.
(b)The Post Traumatic Stress Disorder was not defence-caused.
(c)Remit to the Commission the question of the rate of assessment of disability pension in respect of the Major Depressive Disorder.

.......................[sgd].................................................
Senior Member A C Cotter
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – whether posttraumatic stress disorder related to service – whether depressive disorder related to service – reasonable satisfaction of tribunal – where tribunal not satisfied posttraumatic stress disorder was defence-caused – where tribunal satisfied depressive disorder was defence-caused – decision under review is set aside and substituted
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 70, 120, 120B, 196B
Statement of Principles concerning Posttraumatic Stress Disorder (Instrument No. 83 of 2014)
Statement of Principles concerning Depressive Disorder (Instrument No. 84 of 2015)
CASES
Border v Repatriation Commission (No. 2) (2010) 191 FCR 163
Repatriation Commission v Gorton (2001) 65 ALD 609
Repatriation Commission v Stafford (1995) 56 FCR 132
Repatriation Commission v Stoddart (2003) 134 FCR 392
Roncevich v Repatriation Commission (2005) 222 CLR 115
SECONDARY MATERIALS
Collins Australian Dictionary (rev 5^th ed, Harper Collins Publishers (Australia) Pty Ltd, 2014)
Macquarie Dictionary (rev 6^th ed, Macquarie Dictionary Publishers Pty Ltd, 2013)
REASONS FOR DECISION
Senior Member A C Cotter

The Applicant was a member of the Royal Australian Navy from 24 June 1986 to 23 May 1992. All of that service constitutes eligible defence service for the purpose of the Veterans’ Entitlements Act 1986 (Cth) (“Act”).
In July 2012, the Applicant submitted a claim for a disability pension for disabilities which were described in her claim form as “PTSD” (Post Traumatic Stress Disorder) and “Fibromyalgia”.[1] Accompanying the form were various annexures, including two letters from her treating doctors, Dr Craig Russell and Dr Andrea Boros-Lavack. The former, the Applicant’s general practitioner, confirmed that her major symptoms were “consistent with the diagnoses of Fibromyalgia, Depression and Anxiety”. He said that they could be “commonly associated with the chronic pain syndrome of Post-Traumatic Stress Disorder (PTSD)”.[2] The letter from the Dr Boros-Lavack, the Applicant’s psychiatrist, stated that she believed that the Applicant’s “PTSD, Major Depressive Disorder, Chronic Pain Disorder (i.e. Fibromyalgia) and Obesity are all linked to her multiple traumas sustained in the Navy at HMAS Albatross Nowra”.[3]
[1] Exhibit 9, T Documents, T 17, pages 115 and 116, Applicant’s claim form dated 5 June 2012.
[2] Exhibit 9, T Documents, T 19, page 122, letter from Dr Craig Russell dated 18 November 2011.
[3] Exhibit 9, T Documents, T 20, page 123, letter from Dr Andrea Boros-Lavack dated 27 October 2011.
The Applicant also suffers from a number of other disabilities, which have previously been accepted as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] AATA 288
Decision Date: 5 May 2016

CaseChat Overview and Summary

This matter concerned an application by the Applicant, YZJT, for a disability pension under the *Veterans’ Entitlements Act 1986* (Cth). The Applicant sought to establish that her Major Depressive Disorder (MDD) and Posttraumatic Stress Disorder (PTSD) were defence-caused. The Repatriation Commission (the Respondent) had made a decision under review, which the Administrative Appeals Tribunal (AAT) was considering.

The AAT was required to determine whether the Applicant’s MDD and PTSD were defence-caused, applying the relevant Statements of Principles (SoPs) in force at the time. Specifically, the AAT needed to assess whether the evidence satisfied the criteria outlined in the SoP concerning PTSD and the SoP concerning Depressive Disorder, considering the Applicant's service history, including experiences of harassment, bullying, exposure to hazardous substances, physical injuries, and a sexual assault.

The AAT considered the medical evidence, particularly the opinion of Dr. Andrea Boros-Lavack, who testified that the Applicant suffered from both MDD and PTSD, and that these conditions had independent origins but interacted. Dr. Boros-Lavack attributed the MDD to a combination of physical injuries and the negative experiences arising from the male-dominated culture and harassment within the Navy. The AAT found that while the Applicant's PTSD was not established as defence-caused, the evidence, when considered against the Depressive Disorder SoP, reasonably satisfied the Tribunal that her MDD was defence-caused.

Consequently, the AAT set aside the decision under review and substituted its own decision. The substituted decision declared that the Applicant's MDD was defence-caused, while her PTSD was not. The matter was remitted to the Commission for the assessment of the rate of disability pension in respect of the MDD.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Besides these specific events to which she testified at the hearing, the Applicant also described to her psychiatrist various other stressful occurrences and experiences over her time in service. She told her psychiatrist about being hung upside down from a crane for 30 minutes at a time and being ridiculed for her reaction.[21] She also said that she had to clean the rescue nets in the helicopters which were used to fish bodies out of the water. She also saw photos of helicopter crashes with dead crew still in the aircraft, which she described as “extreme horror”.[22][21] Exhibit 9, T Documents, T 26, page 133, report of Dr Andrea Boros-Lavack dated 5 October 2012.[22] Exhibit 9, T Documents, T 21, pages 124-125, Applicant’s statutory declaration declared 27 March 2012.The medical evidence – an overview Dr Boros-Lavack authored several reports and gave evidence at the hearing by telephone. She testified that the Applicant suffered from MDD as well as PTSD. Asked whether MDD stood on its own, she said that the Applicant would still have MDD even if she did not have PTSD. She said that the two disorders were independent; they had their origins in different causes, but that there was an inter-play between them.[23] [23] Transcript of proceedings, page 15, lines 31- 41. Dr Boros-Lavack was of the opinion that the ingredients of the MDD were twofold: the physical injuries and pain that the Applicant suffered from her two falls and the repetitive injuries which caused Osteoarthritis and Fibromyalgia; and the negative experiences the Applicant encountered as a result of the male dominated culture in which she worked, with its related chronic harassment and bullying. She said the MDD only came to the fore when the Applicant was pregnant with her first son (which would have been about late 1991/early 1992).[24][24] Ibid page 16, lines 1-24. Questioned specifically as to the date of clinical onset of the MDD, Dr Boros-Lavack said:…So the depression actually started during the Navy, in terms of the bullying and harassment, and the series of traumatic incidents in the Navy, together with the painful physical injuries, and that kind of come to the crunch with the first – or second trimester when she got into a premature labour. And then it continued into postnatal depression, and later at the post – postnatal depression with her second child. So this is how it started. It started with low degree of - of dysthymia or coming to major depression around pregnancy with the first child, which she decided to leave the Navy afterwards and got this postnatally, and then second with the second child, but the depression emanating from her service since she joined in the 1980s.[25] [25] Ibid page 24, lines 4-14. Even though the accounts of the various incidents emerged over a period of time, Dr Boros-Lavack considered the Applicant to be a reliable reporter. She saw nothing unusual with different recollections emerging over time. She said that the Applicant had originally lacked the words, insight and understanding to explain the psychological distress from which she was suffering; it was like a “mish-mash” of subjects that would emerge and come to the fore at different times, being triggered by different recollections or events. They might not emerge in a logical order or sequence. Dr Boros-Lavack used that to explain why the Applicant had only recounted the sexual assault relatively recently, compared with a number of the other reported incidents.[26][26] Ibid pages 16 (line 35)-17 (line 25) and page 34 (lines 11- 37).

Decision

Reasons for decision

For those reasons, I am satisfied, on the balance of probabilities, that the Depressive Disorder SoP supports the contention and therefore, that the Applicant’s MDD was defence-caused.CONCLUSION While I do not consider that the Applicant’s PTSD was defence-caused, I am reasonably satisfied that her MDD was defence-caused. Accordingly, the decision of the VRB under review is set aside. In its place, the following decision is substituted:(a)The Major Depressive Disorder was defence-caused.(b)The Post Traumatic Stress Disorder was not defence-caused.(c)Remit to the Commission the question of the rate of assessment of disability pension in respect of the Major Depressive Disorder.

Ratio Decidendi

Legal Principle Established

In deciding the issues in the present case, I will need to consider the Statement of Principles concerning Posttraumatic Stress Disorder (Instrument No. 83 of 2014) (“PTSD SoP”) and the Statement of Principles concerning Depressive Disorder (Instrument No. 84 of 2015 (“Depressive Disorder SoP”) which are the relevant Statements of Principles in force at the time of this decision. As it is open to the Applicant to rely on the Statements of Principles that preceded these and which were in force at the time of the Commission’s decision,[13] it may also be necessary to refer to them (they being Instrument No 6 of 2008 for PTSD and Instrument No. 28 of 2008 for Depressive Disorder).CONSIDERATION[13] See Repatriation Commission v Gorton (2001) 65 ALD 609.The Applicant’s case – an overview The Applicant was 21 years old when she joined the Navy in 1986. She was initially categorised as a Motor Transport Driver (“MTD”). On completion of her initial training, she was posted to Naval Air Station Nowra (HMAS Albatross) to undergo MTD category training. Some time into that course, she decided that she wanted to work as an ATA (Aviation Technician Aircraft); her request for a transfer was approved.[14][14] Exhibit 9, T Documents, T 31, page 160, letter Warrant Officer T. H. McDonald to Senior Naval Psychologist dated 29 October 1986. At the time, the aviation branch of the Navy was overwhelmingly male dominated, with female sailors only having started to enter the branch in the mid-1980s. There were few, if any, facilities dedicated for female sailors; they often had to share change rooms, bathrooms and toilets with their male colleagues. The Applicant and her husband (who was also in the aviation branch) described ongoing physical, sexual and verbal harassment and bullying of the female ATAs and a prevailing male dominant culture.[15][15] Exhibit 9, T Documents, T 21, pages 124-125, Applicant’s statutory declaration declared 27 March 2012, and T 22, pages 126-127, statutory declaration of the Applicant’s husband declared 27 March 2012. The Applicant also recounted that in her role, she was exposed to deadly chemicals, oils, fuels, asbestos, beryllium and other toxins. She suffered from painful dermatitis as a result. She also described the heavy manual labour that she had to undertake.[16] On two separate occasions, she fell from a high platform, sustaining painful back injuries. During her time at HMAS Albatross, she also suffered knee injuries which further reduced her mobility, with associated extreme pain. [16] Exhibit 2, Applicant’s statement dated 5 July 2015. In addition to the pain suffered from her injuries and the ongoing bullying and harassment to which she was subjected, the Applicant identified a number of specific incidents which she said were particularly traumatic for her. I describe those briefly below. In 1987, she was subjected to a sexual assault. While working as an ATA, she said that it was practice to meet up at the end of the week’s maintenance and flying programs to go over certain matters. It was not uncommon to meet in town at a local hotel. Drinking was part of the culture and one was looked down on and frowned upon if they did not participate; it was considered advisable to attend and to be seen to be fitting in. On the particular night in question, the Applicant was having her second drink when she became disorientated and distressed and started to have trouble breathing. She blacked out. She next recalled waking up, naked, in a strange house. She was disorientated and frightened with “absolute fear” and not knowing where she was. Her genitals were sore, bruised and swollen. Semen was in and around her genitals. She felt dirty and unclean, shamed and embarrassed. She caught a taxi back to the base. Concerned that she might have contracted a sexually transmitted disease, she had a test for AIDS at the base hospital. It was negative. She tried to report the incident to her superior a couple of days later, but he told her to be quiet and to forget it. She did not discuss the attack with anyone else as she was scared of retribution. She later discovered that her assailant was a young trainee naval aviation officer.[17] [17] Exhibit 9, T Documents, T 28, page 142, Applicant’s statement dated 28 November 2012.

Division	GENERAL DIVISION
File Number(s)	2014/5701
Re	YZJT
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Senior Member A C Cotter
Date	5 May 2016
Place	Brisbane