Harrison and Repatriation Commission [2002] AATA 87 (15 February 2002)

Last Updated: 25 February 2002

DECISION AND REASONS FOR DECISION [2002] AATA 87

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/561

VETERANS' APPEALS DIVISION )

Re ROGER DENNIS HARRISON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member) Dr KP Kennedy, OBE (Member) Mr O Rinaudo (Member)

Date 15 February 2002

Place Brisbane

Decision The Tribunal decides that the decision under review is affirmed.

(Sgd) K L Beddoe

Senior Member

CATCHWORDS

VETERANS ENTITLEMENTS: War-caused injuries or disease - post-traumatic stress disorder

Veterans' Entitlements Act 1986 s 120

Statement of Principles Instrument No 15 of 1994, 225 of 1995, 65 of 1996 and 181 of 1996

Mulvaney v Repatriation Commission [2000] AATA 553

Budworth v Repatration Commission [2000] AATA 127 at 62

Cranage v Repatriation Commission [2000] AATA 1119

REASONS FOR DECISION

15 February 2002 Mr K L Beddoe (Senior Member) Dr K P Kennedy, OBE (Member) Mr O Rinaudo (Member)

1. This is an application for review of a decision of Veterans' Review Board of 29 March 2000, which affirmed the decision of the Repatriation Commission dated 24 July 1998 refusing a claim for treatment and pension for depressive disorder. In its determination the Veterans' Review Board stated:

"having reviewed the whole of the material before it and for the reasons given above, the Board finds that none of the minimum factors set out in the Statement of Principles is raised by the evidence in this case. The Board is therefore of the opinion that the material does not raise a reasonable hypothesis within the meaning of sub-section 120(3). It follows that the Board is satisfied beyond reasonable doubt, for the purposes of sub-section 120 (1), that there is no sufficient ground for determining that the veteran's depressive disorder was war-caused."

2. Although the original decision required a determination with respect to whether the applicant, Mr Harrison was suffering depressive disorder as defined in the Statement of Principles Instrument No 65 of 1996 and 181 of 1996, Mr Harrison's case before the Tribunal was based on an illness diagnosis of Post Traumatic Stress Disorder. In this regard the Tribunal was referred to Statement of Principles No 15 of 1994 and No 225 of 1995. In his written submission to the Tribunal, Counsel for Mr Harrison stated:

"there is now only one issue for determination by the Tribunal, namely whether the applicant is entitled to benefits under the Veterans' Entitlements Act 1986 ("the Act") in respect of Post Traumatic Stress Disorder."

3. Accordingly, the Tribunal has determined the application on the basis of whether the applicant is suffering from Post Traumatic Stress Disorder in accordance with the Statement of Principles and is therefore entitled to benefits under the Act.

Oral evidence was given by the applicant Mr Harrison. The Tribunal also had the following exhibits tendered by the parties:

Applicant

Exhibit A Statement of Mr Roger Harrison 6 July 2000

Exhibit B Statement of Mr Roger Harrison 5 October 2000

Exhibit C Statement of Mr Roger Harrison 15 February 2001

Exhibit D Report of Dr John Rogers 6 September 2000

Exhibit E Report of Dr John Rogers 10 November 2000

Respondent

Exhibit 1 Report of Dr Robert Athey 1 April 2001

Evidence of the Applicant

4. Mr Harrison gave evidence to the Tribunal and was cross-examined by the representative of the Respondent. The Tribunal also had the benefit of statements made by Mr Harrison and tendered as exhibits. In summary, Mr Harrison's evidence was as follows:

* Mr Harrison was born on 6 October 1940. He is married and has three children.

* Prior to his military service, which he commenced at the age of 18 Mr Harrison worked as a telephone technician for the Postmaster General's Office.

* Mr Harrison spent 22 years in the Army and in 1981 he joined the Woodman Group as a Credit Manager. In 1995 he was appointed as the Credit Manager for the Woodman Group supervising approximately 8 stores. In about March of 2000 Mr Harrison resigned from his position with the Woodman Group. The Tribunal had before it a letter from the Woodman Group of Companies dated 8 March 2000 in which they stated:

"that it was with great regret that we sought the resignation of Roger Harrison after being employed with this firm since 16 June 1981. His resignation has a result of deterioration in his mental health, which we observed to deteriorate from late 1997. Roger has had to have extensive periods of sick leave and his ability to do his job as our Credit Manager has diminished."

* Mr Harrison was a regular soldier when the Vietnam War commenced. He had operational service in Borneo from 13 August 1964 to 5 November 1964 and in Vietnam from 4 May 1967 to 23 April 1968.

* Mr Harrison was working as a radio operator in the signals division where he was required to intercept, interpret and relay information regarding the enemy including proposed raids on Australian, American and South Vietnamese Army bases.

* Mr Harrison said that when he intercepted and interpreted these messages they were relayed via his superiors to Australian and American officers. Because it was believed that the South Vietnamese Army may have been infiltrated by North Vietnamese spies or informants, the information was not passed on to the South Vietnamese Army for security reasons.

* Mr Harrison said that whilst he knew that the information would lead to the death of Vietcong this did not worry him as much as the casualties, which he knew would be suffered by the South Vietnamese. He said that he knew the South Vietnamese were going to be attacked and could not do anything about it. It caused him to have feelings of helplessness. He thought of it as being gutless and that he was somehow letting down the South Vietnamese people.

* Mr Harrison said that a couple of days after these raids he would be attending what he described as "an Orders Group" where he and others in his unit were told how things were going about operations. He said that casualty numbers were passed down the line. He said that it was at these meetings that he became aware that men, women and children in the South Vietnamese villages had been killed during raids.

* In cross-examination Mr Harrison stated that the he held the rank of Corporal and was a Shift Supervisor. He had five diggers under him. He stated that their unit was the only radio intercept unit in the Australian Army. He was described as a traffic analysis officer.

* Mr Harrison described the death of a former Warrant Officer named Tony Parello who had instructed him at Canungra Army Camp. Mr Harrison stated that Warrant Officer Parello had been killed when the APC in which he was travelling had been hit by a rocket launched grenade. Mr Harrison said that he had thought "here is a bloke on his second tour, who had helped us so much and he gets killed".

* Mr Harrison said that since then a very good friend of his named Johnny Ball had committed suicide, as had another very good friend Tony Blaker and the straw, which had broken the camel's back was the death in 1997 of his good friend Frank Young who had also committed suicide.

* Mr Harrison stated that he had started seeing children in his dreams. Although these children were faceless he saw them as being Vietnamese children, which he could not help. Mr Harrison acknowledged that he did not have any direct knowledge of the intelligence between the United States and the South Vietnamese Army.

* He stated that in addition to his work as a Traffic Analysis Officer he was required to spend a couple of hours in the bunkers on perimeter defence each day.

* Mr Harrison's wife, Mrs Joann Margaret Harrison, was not called to give evidence. However, the Tribunal had before it a statement by her dated 9 July 2000. Having regard to the nature of the claim required to be determined, nothing in her statement is relevant to the Tribunal's consideration.

Medical Evidence

5. The Tribunal had before it the various medical reports tendered as Exhibits and referred to above. The applicant relies primarily on the reports of Dr Rogers, Consultant Psychiatrist, dated 6 September 2000 and 10 November 2000 and the report of Dr Stanton, Consultant Psychiatrist, dated 29 October 1999, which is part of the T documents at pages 45 and 46. Dr Stanton concludes that:

"Mr Harrison meets DSN - IV criteria for Post Traumatic Disorder, with a secondary major depressive illness. His psychiatric illness appears to particularly related to his period of service in Vietnam"

6. In his report of 6 September 2000 Dr John Rogers concludes that:

"There is no doubt that this man suffers from war-caused chronic post traumatic stress disorder"

and further on

"there is ample evidence that he is totally and permanently incapacitated by reason of his war-caused disabilities. Treatment has made only modest improvements to his symptoms and I do no expect this to alter in the foreseeable future. I think it is highly unlikely he would be able to work even up to 8 hours per week part-time. I can think of no suitable alternative work or retraining which would alter the above circumstances."

7. In his report of 10 November 2000 Dr Rogers concludes:

"It is certainly my view that war-caused mental disability alone prevents him from undertaking any kind of remunerative work....In the light of review of enclosed statements dated 5 October 2000 I still remain firmly of the view that during his period of service he experienced a number of stressors which qualify under definitions outlined in Statement of Principles Instrument No 15 of 1994."

8. Although it was submitted that Dr Athey, in his report of 1 April, supported the contention that Mr Harrison is suffering Post Traumatic Disorder, this is qualified by Dr Athey as follows:

"In summary, it is my opinion that Mr Harrison is suffering from a major psychiatric problem. The problem consists basically of two parts; a severe and chronic and clinically very significant depression and in my opinion that is also an ongoing chronic Post Traumatic Stress Disorder. I have argued the reasons for this above. In my opinion Mr Harrison was able to contain his Post Traumatic Stress Disorder symptoms until the depression, at which point he was no longer able to contain the symptoms of both conditions, thus setting up a particularly serious psychiatric condition."

Statement of Principles and Their Application

9. As stated the relevant Instrument is No 15 of 1994, 225 of 1995. The relevant parts are as follows:

"Being of the view that there is sound medical scientific evidence that indicates that Post Traumatic Stress Disorder and death from Post Traumatic Stress Disorder can be related to operational service rendered by veterans....that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting Post Traumatic Stress Disorder or death from Post Traumatic Stress Disorder with the circumstances of that service are:

(a) experiencing a stressor prior to the clinical onset of Post Traumatic Stress Disorder; ..."

10. "Experiencing a stressor" means the following (derived from DSM - IV: (a)). The person experienced, witnessed or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person's or other person's, physical integrity; and (b) the person's response to that event involved intense fear, helplessness or horror. In his submission Counsel for the applicant argued that Mr Harrison satisfied the requirements of factor 1(a) of Instrument No 15 of 1994 in that:

"During his service in Vietnam he experienced a stressor prior to the clinical onset of Post Traumatic Stress Disorder in that he was, inter alia, confronted with events that involved, inter alia, a threat to other people's physical integrity and his response to those events involved intense fear, helplessness or horror."

Reference is made to part of Dr Athey's report of 1 April 2001 at page 7 where he says:

"...the physical integrity of others was seen by Mr Harrison to be entirely dependent on his actions and he had a firm belief that other's physical integrity, or for that matter their lives, was dependent on him. Secondary to that there was also the on-going possibility that the enemy knew that the was handling sensitive information and there was an increased risk of attack."

11. The Tribunal was also referred to Dr Roger's report of 6 September 2000 at page 2 and 3 where he stated:

"He served in Vietnam between April 1967 and April 1968 with the Seventh Signals Regimental Detachment. The nature of his work was unusual in that they worked and lived almost totally isolated from the rest of the camp in a special radio intercept unit that monitored enemy morse code transmissions. Attached to them was the unit which translated the code from Vietnamese to English. Increasingly throughout the war their information was demonstrated to be extremely accurate and enabled them to know locations, attack patterns and intentions of the Fifth CB Division, especially units 274, 275 and D445. They had very clear information regarding the presence of enemy units prior to the battle of Long Tan, however this information was not used or accepted by those in authority. They worked long hours in work that required an extreme level of concentration. They obtained a very real measure of threat to their own units but clearly relied on the response of their colleagues to the information to deal with this. This amounted to real and persisting confrontation with threatening events and particularly the anticipation of these through the nature of their signal interception.

He was serving during the period of the Tet Offensives, an Instructor with whom he had a good deal of contact prior to Vietnam was killed in this when a rocket struck an APC containing Tony Parello. During this incident, artillery support for the action in Baria and elsewhere was constant, Nui Dat was cut off and there was a constant threat that the camp itself might be overrun. ...

His unusual position inside a radio shack and constant awareness of enemy radio traffic meant that throughout his stay he was confronted with events via this medium which involved actual and threatened death to his colleagues. More immediate physical threat to his own person occurred during the Tet Offensives when there was constant possibility of being overrun with continuous artillery and the death of a close friend and instructor Tony Parello in nearby Baria. Persistent changes following his return are apparent including disturbed sleep and dreams regarding the war, high levels of psychological arousal, numbing of emotions and social withdrawal, constant hypervigilence, irritability and startle response."

12. Dr Athey in his report of the 1 April 2001 notes:

"The weakest argument for Post Traumatic Stress Disorder in DSM - IV is in section A, .1, where a 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. Initially he does not appear to fit that requirement, but on the information I obtained I consider he does, on the grounds that the physical integrity of others was seen by Mr Harrison to be entirely dependent on his actions and he had a firm belief that other people's physical integrity, or for that matter their lives, was dependent on him. Secondary to that there was also the ongoing possibility that the enemy knew that he was handling sensitive information and there was an increased risk of attack."

13. This assessment is the interpretation by Dr Athey of the subjective assessment of Mr Harrison that the lives of others depended on his actions and on him. And that he had a perception that it was likely that the enemy would attack their position if they knew of the type of information being handled by the unit.

14. In the submission of the respondent, the Tribunal was urged to consider a number of authorities, which touched on the interpretation of paragraph (a) of SoP No 15 1994 defining "experiencing a stressor" (see paragraph 11 above). The Tribunal was referred to the decision in Re Budworth and Repatration Commission [2000] AATA 127 at 62 where Deputy President McMahon stated:

"The stressors must have an objective existence [and] there is no scope for personal assessment of stressors except in [assessing the person's response to the event]....

The types of incidents ... which would amount to such objective stressors include military combat, violent personal attack, being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war or in a concentration camp and so on."

15. This reasoning was followed in the decision in Re Mulvaney v Repatriation Commission [2000] AATA 553 rejecting the earlier decision of Re Jehn where Senior Member Lewis had determined that the use of the word "experiencing" by its very nature introduces a subjectivity.

16. In this case on the evidence presented by Mr Harrison, Mr Harrison was primarily engaged in the interception of messages, which gave advance warning of likely attacks by North Vietnamese forces. For security reasons this intelligence was not passed to South Vietnamese forces and Mr Harrison, in the course of his duties, became aware that on occasions South Vietnamese units and camps were attacked resulting in injuries and death which might have been avoided if the intelligence gathered by Mr Harrison had been passed on to the South Vietnamese forces.

17. Mr Harrison's evidence was vague about what he was told about these attacks by whom he was told and when. The Tribunal accepts however that Mr Harrison would have been made aware either directly or indirectly that casualties and deaths had occurred as a result of attacks by North Vietnamese forces which his unit was aware were imminent. Mr Harrison was of course not present during such attacks nor did he observe or encounter the events first hand. Nor is there any evidence that Mr Harrison's unit position ever came under attack. Accordingly there cannot be said to have been any objective element to his experiencing a stressor as set out in factor 1(a) of the definition of "experiencing a stressor".

18. In coming to this conclusion the Tribunal has relied on the decision of Re Cranage v Repatriation Commission [2000] AATA 1119 and in particular paragraph 93 where Senior Member Handley states:

"The Statement of Principles is a legislative instrument. It is a disallowable instrument under section 46A of the Acts Interpretation Act and is subject to the rules of statutory interpretation. On this basis I am satisfied that the submissions made by the respondent as to the manner in 'experiencing a stressor' should be interpreted are sound. I can do no better than to adopt part of the decision in Re Slattery at paragraph 79 as follows:

'The word 'witnessed' suggests that the person was present at the event involving real or present (ie actual) or threatened death. The word 'experienced' suggests that the person observed or encountered such an event and the word 'confronted' that he or she was faced with such an event'."

Senior Member Handley went on to note at paragraph 104 that:

"I am satisfied that the words 'an incident in which there were external stimuli' should be interpreted objectively ...."

Conclusion

19. The Tribunal is not satisfied in this case that, whilst it is clear that Mr Harrison is suffering Post Traumatic Stress Disorder, that such disorder was brought on by the applicant experiencing a stressor during his service in Vietnam.

20. Accordingly the applicant does not meet the requisite standard and the application therefore must fail.

21. The decision under review is therefore affirmed.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member), Dr KP Kennedy, OBE (Member), Mr O Rinaudo (Member)

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

Associate

Date/s of Hearing 24 August 2001

Date of Decision 15 February 2002

For the Applicant Mr O'Gorman

For the Respondent Mr Stoner