Somers and Repatriation Commission [2000] AATA 839 (13 July 2000)

Last Updated: 12 October 2000

DECISION AND REASONS FOR DECISION [2000] AATA 839

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1572

VETERAN'S APPEALS DIVISION )

Re IAN SOMERS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr D. Chappell, Deputy President

Date 13 July 2000

Place Sydney

Decision The Tribunal varies the decision of the Veterans' Review Board dated 20 August 1999 and finds that the applicant is entitled to be paid the special rate pension on and from 18 July 1998.

..............................................

Deputy President

CATCHWORDS

VETERAN'S AFFAIRS - assessment of pension payable - standard of proof that of reasonable satisfaction - war caused disabilities - unfit for usual work - diagnosis post traumatic stress disorder - encompassed alcohol dependency - decision varied - applicant entitled to special rate pension

Veterans' Entitlements Act 1986 s 124

REASONS FOR DECISION

13 July 2000 Dr D. Chappell, Deputy President

1. This is an application by Mr Ian Somers, a veteran, for a review of the decision of the Veterans' Review Board, dated 20 August 1999, which set aside the decision of the Repatriation Commission, dated 1 July 1998, and substituted the decision that the pension payable to Mr Somers should be assessed at 80 per cent of the general rate, effective from 15 May 1998.

2. At today's hearing before the Tribunal, Mr Somers appeared in person and he has also given personal testimony. Mr Somers' wife, Mrs Mary Somers, and Dr Anthony Hordern, a consultant psychiatrist also gave personal testimony. The respondent did not call any witnesses to give evidence in person. However, both parties have tendered a number of medical reports and other documents and those are set out in the list of exhibits. The Tribunal also had before it the s37 documents filed for the purposes of s37 of the Administrative Appeals Tribunal Act 1975.

3. The principal issue which is to be determined by the Tribunal in this matter is a narrow one. It was phrased in this way by Mr Colbourne in his submissions made on behalf of the applicant. It is whether any aspect of the psychiatric condition suffered by Mr Somers is non-pensionable. Put in a more technical way by Mr Wallis in the respondent's Statement of Facts and Contentions of 10 July 2000, where it is noted that "the relevant standard of proof is that of reasonable satisfaction, pursuant to s120(4), of the Veterans' Entitlements Act 1986 (the Act).

4. Among other contentions made on behalf of the respondent is one conceding that Mr Somers does satisfy ss24(1)(aa), (aab) and (a)(i) of the Act. However, the respondent contends that Mr Somers does not satisfy subsection 24(1)(c) on the ground that he was not suffering, or is not suffering, a loss of earnings by being prevented from working at the Sawtell Bowling Club as a result of war-caused disabilities alone. It is further contended in that document that Mr Somers is suffering a loss of earnings due to the effects of a constellation of psychiatric disorders unrelated to his war service. Reference is made to the findings of reports of Dr Lee, dated 4 February 2000, and Dr Burns dated 9 February 2000.

5. There are a number of agreed facts in this matter, which I should also refer to, as set out in the applicant's Statement of Facts and Contentions. They are that the applicant's disabilities determined to be war-caused are gastro-oesophageal reflux disease, irritable bowel syndrome, and post traumatic stress disorder (PTSD), as I shall term it from here on. It is also agreed that the degree of incapacity is at least 70 per cent; that Mr Somers served in the Navy for 11 years in the catering area; and that he was subsequently working as a barman following his discharge from Naval service but had considerable difficulty coping because of depression and anxiety.

6. The applicant's more formal contentions were that Mr Somers was unfit for his usual work in catering and bar work because of his accepted war-caused disabilities alone. It was submitted that Dr Knight, his family physician, had certified Mr Somers as being unfit for work on 17 July 1998, and that his resignation on the grounds of ill-health was due to his psychiatric disabilities. Accordingly he is entitled to be paid the special rate pension on and from 18 July 1998.

7. A preliminary issue which the parties have asked the Tribunal to resolve, and which indeed is an important matter in itself, is what is comprised under the PTSD disability found in the delegate's decision of 1 April 1997, which is before the Tribunal in the form exhibit A1. It was contended by Mr Colbourne that the delegate had accepted under this psychiatric condition not only of PTSD as described in DSM4, but also the alcohol dependence which is mentioned in the delegate's report. The thrust of Mr Colbourne's contention was that the acceptance was implicit and that it encompassed the conditions which had been separately referred to in Dr Delaforce's report dated 16 December 1996 (see T: 33-34). Dr Delaforce said:

I diagnose the following mental disorders.

a) Posttraumatic Stress Disorder, Chronic, Mild

b) Major Depressive Disorder, Recurrent, In Full Remission

c) Alcohol Dependence, With Physiological Withdrawal

(T5: 33)

8. Mr Wallis has contended on behalf of the respondent that this was not an appropriate assumption and that in fact the conditions of substance abuse and dependency were separate conditions, and had been diagnosed as separate conditions.

9. On this point I accept what has been contended on behalf of the applicant. I believe it is implicit from a reading of the delegate's report that under the psychiatric condition referred to as post traumatic stress disorder, the diagnosis did also encompass the alcohol dependency and related condition which was found to be present in relation to other aspects of the diagnosis made of Mr Somers' health status. I also note that the delegate did reject specifically the tension headaches that had been advanced as being another eligibility criteria for the conditions which were being experienced as a result of a war-caused disability by Mr Somers. Had the delegate intended also to exclude those other conditions, I believe he would have done so at that time.

10. I turn now to the evidence which was presented today to the Tribunal in the form of the personal testimony given by Mr and Mrs Somers and by Dr Hordern. I found Mr Somers to be a convincing witness although he has now acknowledged he does have problems with his memory. He linked what was subsequently diagnosed as PTSD to the traumatic incident, which he had experienced in the Navy during the time of his service, and in particular to the event that occurred aboard the HMAS Sydney in 1968. I think it is worth noting that there is no dispute between the parties that this event was one which resulted in this particular condition, and its related pension eligibility.

11. Mr Somers gave a convincing account about the reasons why he had eventually to relinquish his job as a bar manager at the Sawtell Bowling Club. Dr Knight, his family physician, who certified him as being unfit for work in July of 1998, made it clear that it was his psychiatric condition which made him unable to continue his employment.

12. Mrs Somers, his wife, was also a convincing witness. Her long-term marriage to Mr Somers has been marked by many difficulties, over later years in particular. Mrs Somers said that she noted marked changes in her husband's behaviour patterns around the time of the incident aboard the Sydney which led to the PTSD. She noticed that Mr Somers began to drink much more heavily - she said it amounted to binge drinking in some instances and that he became extremely irritable. Mrs Somers said that this nearly led to the breakdown of their marriage. Mrs Somers said that she still found it difficult to maintain her relationship with her husband.

13. Dr Hordern, a consultant psychiatrist was a highly credible witness. He provided the Tribunal with an extremely thorough and detailed written report based upon a lengthy session and interview with Mr Somers (A4). That report contains an extensive history of Mr Somers' naval service and personal life, and his medical background. I wish to refer in particular to the conclusions that Dr Hordern reached about the psychiatric condition which was suffered by Mr Somers:

The diagnosis of chronic post traumatic stress disorder is not in doubt. Mr Somers has experienced virtually all the classical symptoms of this illness. The stressor which caused his PTSD was the traumatic experience he had when he was unexpectedly trapped, alone and in pitch darkness, half way up a near-vertical 20 foot Ladder in a flour store below the water line in HMAS Sydney in or near Vung Tau harbour in 1968. Following this experience - he was lastingly ashamed that he hadn't coped better with it - Mr Somers became afraid of putting to sea, smoked heavily, drank alcohol excessively and exhibited a change in personality.

(A4: 10)

14. Dr Hordern goes on to say,

I fully concur with the views expressed by Dr Delaforce in his two reports dated 18.12.96 and 23.12.98... I note that Dr T.P Dearlove (who has no psychiatric qualification) has agreed with the diagnosis of Mr Somers having a personality disorder made by a psychiatrist, Dr. E. Williams, though the latter provides no grounds for reaching this diagnosis...

(A4: 10)

15. Dr Hordern indicated that Mr Somers grew up with a secure stable affectionate relationship with his mother, his maternal grandmother and later in a similar relationship with his stepfather. There was no evidence that he exhibited his psychopathic tendencies or psychopathic behaviour in childhood, adolescence or in adult life. Mr Somers was making good progress in his chosen career in the Royal Australian Navy until he had his traumatic experience on the ladder in a flour store below the water line on HMAS Sydney in or about 1968.

16. Dr Hordern, who was subject to questioning by Mr Wallis, maintained that he held this view and he held it even after looking at three additional reports which were tendered on behalf of the respondent (exhibits R1, R2 and R3) containing some past medical history. Dr Hordern said he did not in any way change his views as a result of reading these reports, and that any pre-existing anxiety condition or disorder which might have been diagnosed at an earlier stage while Mr Somers was in the Navy, had long since disappeared.

17. Dr Hordern reaffirmed the success that Mr Somers had achieved in the Navy, rising to the rank of a Petty Officer. He also noted the Medical Board's conclusions reached at the time of Mr Somers' discharge from the Navy on 19 February 1971 about Mr Somers' mental health. It was clear from the notation on the discharge document that the Medical Board itself disagreed with the diagnosis that had been made, I assume, by a single psychiatrist. The records shows (T3: 27) that the patient had transferred from HMAS Encounter where IMS was performed on 20 February 1971. The report further noted that:

Medical Board has recommended Final Medical Survey and invaliding as an immature hysterical psychopath. (See previous history noted....)

At the bottom of this report there is the notation, made I assume by the chairman of the Medical Board at the time, that:

In view of the fact that this member is an Acting Petty Officer with 10 years' service, and has no previous psychiatric record it is considered that his invaliding disability is an anxiety reaction. He has only negligible disability from his hernias or his L. knee.

18. That concludes my summary of the personal testimony that was given today. The submissions that both parties have made are all fresh in our minds and I am not going to repeat them in depth. Mr Colbourne said that on the basis of the evidence and particularly that provided by Dr Hordern, the Tribunal should conclude that the entire psychiatric condition was pensionable and that all the psychiatric evidence, with the exception of Dr Lee's report, pointed in that direction. Mr Colbourne also stated that Dr Lee had spent very little time with Mr Somers and had not had the opportunity to interview Mr Somers' wife, as had Dr Hordern and the other psychiatric reporters.

19. Mr Wallis in his closing submissions repeated that the premise that the respondent was operating upon was that Mr Somers was suffering from a constellation of psychiatric conditions. His alcohol dependence predated the accepted disability by a number of years, and the later PTSD was superimposed on an earlier anxiety state.

20. The Tribunal reaches the conclusion, on the basis of all the evidence before it, that it is reasonably satisfied that Mr Somers' psychiatric condition is entirely pensionable. I find especially persuasive the report and the testimony which has been provided by Dr Hordern. He countered the specific contention of the respondent that a constellation of disorders was the appropriate diagnosis in a convincing way. He pointed clearly to PTSD being the psychiatric condition that Mr Somers suffered as a result of the traumatic incident, and one which ultimately resulted in him being unable to cope in the employment setting at the Sawtell Bowling Club. This was not a superimposing of PTSD on another anxiety disorder. Dr Hordern said that it was very improbable that this was so. I find his view compelling. His evidence was also, in terms of the diagnosis he made, consistent with the provisions of DSM-4, and with the evidence that was given today by Mrs Somers in terms of when she first noticed her husband's change of personality. More formally, I find that the applicant does satisfy subsection 24(1)(c) of the Act. Thus the tribunal varies the decision of the Veterans' Review Board dated 20 August 1999 and finds that the applicant is entitled to be paid the special rate pension on and from 18 July 1998.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Dr D. Chappell.

Signed: .....................................................................................

Associate

Date of Hearing 13 July 2000

Date of Decision 13 July 2000

Advocate for the Applicant Mr Colbourne

Advocate for the Respondent Mr R. Wallis