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Hunter and Repatriation Commission [2009] AATA 259 (21 April 2009)

Last Updated: 23 April 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 259

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N 2006/1354-55

VETERANS’ APPEALS DIVISION
)

Re
BRIAN HUNTER

Applicant
And
REPATRIATION COMMISSION

Respondent


DECISION

Tribunal
Dr J D Campbell, Member and Rear Admiral AR Horton AO, Member

Date 21 April 2009

Place Sydney

Decision
(a) The decision under review in relation to the claim for post traumatic stress disorder is affirmed in so far as the post traumatic stress disorder is concerned, but is varied to include a finding that Mr Hunter has a war-caused disease of alcohol dependence (in remission) with the date of effect being 2 March 2005; and
(b) The decision under review in relation to rate of pension payable is affirmed at 100 percent of the general rate.

...................[Sgd]........................
Dr J D Campbell

Member

CATCHWORDS
VETERANS’ ENTITLEMENTS – Disability pension – Claim for post traumatic stress disorder – Claim for special rate – Reasonable hypothesis based on statement of principles – Whether post traumatic stress disorder is war caused – Decision under review is varied and affirmed.


Veterans’ Entitlements Act 1986; ss 24, 28, 120

Statement of Principles concerning alcohol dependence or alcohol abuse No. 76 of 1998

Statement of Principles concerning alcohol dependence and alcohol abuse No. 1 of 2009

Statement of Principles concerning post traumatic stress disorder No. 3 of 1999

Statement of Principles concerning concerning posttraumatic stress disorder No 5 of 2008


Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622

Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408

Delahunty v Repatriation Commission [2004] FCA 309; (2004) 38 AAR 511

Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 48 ALD 1

Forbes v Repatriation Commission [2000] FCA 328; (2000) 58 ALD 394

Fox v Repatriation Commission (1996) 45 ALD 317

Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82

Repatriation Commission v Owens (1996) 70 ALJR 904

Stoddart v Repatriation Commission [2003] FCA 334; (2003) 74 ALD 366

Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 75 ALD 420

REASONS FOR DECISION


21 April 2009
Dr J D Campbell, Member
Rear Admiral AR Horton AO, Member

  1. Mr Hunter was born in April 1941. Mr Hunter served in the Royal Australian Navy from 26 May 1958 to 25 May 1979. Mr Hunter rendered operational service as follows:
(a)
HMAS Melbourne
7 April 1960 – 28 April 1960
6 May 1960 – 20 May 1960
6 June 1960 – 16 June 1960
(b)
HMAS Vendetta
26 March 1962 – 12 April 1962
(c)
HMAS Teal
11 May 1965 – 21 May 1965
28 May 1965 – 3 February 1966
(d)
HMAS Melbourne
25 April 1966 – 6 May 1966
25 May 1966 – 9 June 1966

  1. Mr Hunter rendered eligible defence service between 7 December 1972 and 25 May 1979.
  2. Mr Hunter lodged a claim on 1 February 2000 concerning post traumatic stress disorder (PTSD), alcohol dependence or alcohol abuse, chronic gastritis and gastro-oesphogeal reflux disease. On 16 March 2000, the Repatriation Commission determined that chronic gastritis and gastro-oesphageal reflux disease were war-caused diseases, while the conditions of post traumatic stress disorder and alcohol dependence or alcohol abuse were not war-caused. Disability pension was increased to 40 per cent of the general rate with date of effect being 1 November 1999. On 21 June 2002, the Administrative Appeals Tribunal set aside the decision of the Repatriation Commission and, while finding that post traumatic stress disorder and alcohol abuse were not war-caused conditions, concluded that Mr Hunter suffered from a war-caused disease of Anxiety Disorder, with date of effect being 1 November 1999. On remittal, disability pension was paid at 90 per cent of the general rate.
  3. On 6 May 2004 Mr Hunter lodged a claim for depression (depressive disorder) and an increase in disability pension for previously accepted war-caused conditions, namely chronic gastritis, bilateral sensori-neural hearing loss, gastro-oesophageal reflux disease and anxiety disorder.
  4. In a determination dated 23 December 2004 the Repatriation Commission accepted Mr Hunter’s depressive disorder as being war-caused, and increased the rate of disability pension to 100 per cent of the general rate, with the date of effect being 6 February 2004.
  5. On 2 June 2005, Mr Hunter lodged a claim for acceptance of post traumatic stress disorder as a war-caused disease. On 7 June 2005, the Repatriation Commission determined that post traumatic stress disorder was not related to his service.
  6. On 6 September 2006, the Veterans’ Review Board affirmed both decisions (23 December 2004 and 7 June 2005) of the Repatriation Commission.

ISSUES

  1. The relevant issues to be considered in these two matters are:

EVIDENCE

  1. Mr Hunter in a written statement dated 9 August 2000 to a previous hearing (2T T13 P89) detailed the following circumstances in relation to his service on HMAS Teal:
  2. In a further written statement dated 1 June 2001 (Exhibit A2) Mr Hunter detailed the following:
  3. In a further statement dated 18 March 2008 (Exhibit A3) Mr Hunter detailed his employment history and activities after leaving the navy:
  4. In a statement made in a claim for post traumatic stress disorder lodged on 27 July 1998 (2T T4 P22) Mr Hunter at paragraph 16 stated:
On HMAS Melbourne when it collided with USS Frank E Evans my job on Melbourne was such that I had full exposure to the incident. The Navy did not provide any counselling or treatment and this no doubt exacerbated the distress that I suffered and have since suffered. This incident rekindled fears and concerns that I had from my earlier service in Borneo and Vietnam”.

  1. In oral evidence Mr Hunter confirmed that the crew which they were replacing in Teal told them of their fire fight with the Indonesians in 1964. That as the senior radio operator his action station was permanently in the wireless office, while when on approach stations, he may be on deck. Mr Hunter described the wireless office as being situated beneath the upper deck, about as big as a toilet and stifling hot. In relation to the HMS Woolaston incident Mr Hunter said that he heard the incident being reported on the network frequency. Mr Hunter said he felt the deepest apprehension with the incident highlighting the importance and seriousness of the situation.
  2. In relation to the Tawau River incident Mr Hunter stated that he was on deck with the Indonesian fire going over the Teal, with the crew believing that the Indonesians wanted to annoy them with noise. In relation to the apprehending of the barter traders Mr Hunter stated that he was closed up in the wireless office, and was told about the whole incident by other members of the crew.
  3. In addressing the Skory class destroyer incident Mr Hunter confirmed that he was in the wireless office and sent a location report in which Lt Cmdr Murray, the Commanding Officer concluded the signal which referred to a Story class destroyer, with the words “intend engaging”. Mr Hunter stated that he “did not know what we were up against until this message came down the tube, and I saw that we were up against a destroyer, which is six times our weight, made of steel with, I estimated 4 to 4.5 inch guns”. Mr Hunter confirmed that he was in a state of terror and soiled himself.
  4. Mr Hunter confirmed that from the beginning of his service on Teal he was constantly apprehensive and tense and filled with a sense of foreboding, with the destroyer incident making him aware that this was “a very, very dangerous position we were all in”. Following his service on Teal Mr Hunter found he was more a perfectionist, expected people to carry out orders he gave them and harder on his family.
  5. In relation to the collision with USS Evans Mr Hunter stated that he was off watch and in his bunk when he heard hands to collision stations. Mr Hunter stated he heard scratching noises down the side of the ship, realised they had cut a ship in half, went onto the deck when he saw the aft section of the Evans lashed to the side of the Melbourne, with the front of the Evans lying on its side, with people on its hull (a couple sitting, a couple standing) being encouraged to jump into the water and be picked up – a circumstance which they ignored. Mr Hunter stated that he left the scene as there was nothing he could do and proceeded to the sick bay to offer to donate blood. In the event Mr Hunter did not give blood, as so many others had volunteered, Mr Hunter stated that he proceeded to the main wireless office and took over the watch. Mr Hunter said that he had never experienced sadness like it. In comparison his emotions of fear on Teal were related to being ashamed of feeling frightened. Mr Hunter said the feeling of apprehension and tension that arose as a consequence of his service on Teal continued thereafter and it was such feelings that made it extremely hard for him.
  6. Mr Hunter in an alcohol questionnaire completed on 23 July 1998 (2T T4 P29) stated that he started drinking prior to service, and that early in his service his consumption was a can a day (beer ration). Mr Hunter said his alcohol consumption increased with more responsibilities associated with promotion, and that after service he took up drinking spirits and that he continued to drink three or more glasses of wine each night in 1998.
  7. In oral evidence Mr Hunter confirmed that he commenced drinking scotch in addition to beer while serving on the Teal, and that while serving on the Teal he seemed to take every opportunity to just drink. That after Teal he was drinking half a bottle of scotch each night, which continued for many years until his treating general practitioner told him such consumption was causing him a stomach problem. Thereafter, he changed to drinking wine – a litre a night after work plus half a bottle of port until he stopped drinking in 2005. Mr Hunter stated that while aboard HMAS Melbourne he would only consume the issued beer ration.
  8. In relation to any further employment after his resignation in 2004 Mr Hunter confirmed that he had sought work as a school crossing supervisor and in various other positions, as well as re-employment with his previous employer. Mr Hunter stated that he was not successful in any of these attempts to secure employment. Mr Hunter stated that he did feel he could not work anymore, as he has difficulties with concentration, a situation which caused him to resign from his job in 2004, as he was unable to do the job.
  9. In response to questions in cross-examination Mr Hunter stated that:
“We closed the destroyer very quickly and I was told that we moved in underneath the bridge of the destroyer very close so that they couldn’t get their A and B and X guns trained on us ... some of the sailors told me we were so close they could see the captain’s face on board the destroyer ... we had a Malay interpreter on board and he called to them by loud hailer and asked what they were doing in Malaysian territorial waters ... a period of time when nothing happened and then I got the message and it was “intend engaging” and I sent it on coastal common ... shortly after the message went back came the reply from the Indonesian captain “We are lost. Please guide us back to our lines”...”

EVIDENCE BY MR BAKER

  1. Mr Baker provided a statement dated 27 June 2001 (Exhibit R3). Mr Baker detailed comments relayed to the relief crew by the outgoing crew in May 1965 concerning the activities HMAS Teal had undertaken, and which in his view indicated that a reasonable man could perceive him and others to be in a perilous situation.
  2. Mr Baker stated that Mr Hunter as the senior radio operator was isolated below deck, when at action stations, with the only knowledge of what was happening above being what was passed to him by voice pipe from the bridge or by the ship’s main broadcast.
  3. In his statement, Mr Baker detailed the circumstances of a daytime confrontation with an Indonesian destroyer in which the Indonesian captain was warned by the captain of HMAS Teal to leave the area or suffer the consequences. “A Mexican standoff ensued. During this time our weapons were trained on the Indonesians and their guns on us ....... A signal of intention to engage was passed to LRO Hunter for transmission to the relevant authorities. We were close enough to the other ship to see the expression of uncertainty on the face of the Indonesian captain before they left the area......”
  4. In oral evidence Mr Baker described the incident as the two ships travelling parallel to each other on the same course, about 25 feet apart for 10 to 15 minutes before the Indonesian ship turned to port. During this period sailors within each ship trained their weapons on the other.
  5. In another incident Mr Baker stated that HMAS Teal was called to assist a Malaysian patrol boat in confrontation with an Indonesian crewed Russian ship. Mr Baker stated that the larger ship turned away and left the area, with the distance between HMAS Teal and the vessel being in the order of half a mile.
  6. In response to questions in cross-examination Mr Baker detailed:

EVIDENCE OF MR NEILL

  1. In a statement dated 9 July 2008 (Exhibit A9) Mr Neill stated that he served on HMAS Teal from May 1965 to March 1966, with his action station being to man the Twin Vickers on the Port Side Bridge. Mr Neill remembers HMAS Teal intercepting two to three barter traders’ boats, and if they failed to stop the captain would order him to fire. On one occasion Mr Neill remembers being ordered to cease firing as he was getting too close to the boat.
  2. In oral evidence Mr Neill confirmed his written statement. Mr Neill expressed difficulty with recall of detail on a number of occasions but was explicit in denying he was ever drunk on duty. He stated he could only remember HMAS Teal intercepting a maximum of two to three sampans, that he did man a Twin Vickers and does remember HMAS Teal being in the vicinity of a stranded Indonesian destroyer. He said that he does not recall HMAS Teal being fired at and does not recall his fire splintering a sampan.

EVIDENCE OF LT CMDR MURRAY DSC

  1. In a written statement dated 31 May 2007 (Exhibit R10) Lt Cmdr Murray detailed the following comments in relation to Mr Hunter’s statement:
  2. In oral evidence Lt Cmdr Murray confirmed his written statement and defined in detail the patrol activities of HMAS Teal and the practices adopted during his period as captain. Lt Cmdr Murray also agreed that working alone, locked down in the wireless room would be more stressful than when you have your mates around you. Lt Cmdr Murray was also particular in defining the circumstances of the incidents involving the stranded Indonesian destroyer and the “A” class patrol boat.
  3. During his oral evidence Lt Cmdr Murray indicated that he had had a minor stroke some 18 months earlier and that he had recovered well, with minimal effect on his memory.

EVIDENCE OF COMMANDER COOKE-RUSSELL

  1. In a written statement dated 10 April 2007 (Exhibit R10, Attachment 2) Cmdr Cooke-Russell detailed the following comments in response to Mr Hunter’s written statement:

EVIDENCE OF WITNESS A

  1. In a written statement dated 28 July 2008 (Exhibit A7) Mr A detailed the circumstances that Mr Hunter was confronted with when he joined the organisation after leaving the navy in 1979. Mr A stated that Mr Hunter quickly restored order to a system that was in disarray. Nevertheless, Mr Hunter’s desires for punctuality and perfection lead to interpersonal difficulties, with Mr Hunter being eventually replaced by another office manager, as it was clear that he was too inflexible and unforgiving.
  2. Mr Hunter was then transferred to the position of computer manager where he remained for four years. Mr Hunter was then placed in the position of Administration Officer, with the five members reporting to him on different floors of the building, each with a great deal of autonomy. Mr Hunter was counselled many times throughout his career, but this did not alter his attitude in his belief of what was right .
  3. In the latter part of Mr Hunter’s career Mr A noted that Mr Hunter withdrew from the office setting, establishing himself in a remote section of the building and from which he rarely ventured. He had difficulty relating to other members of staff, suffered from severe mood swings and did not join staff in social functions. His demeanour in the later months of his employment was sombre, unsmiling and quiet unless provoked. He appeared apprehensive and worried.
  4. In oral evidence Mr A, the deputy manager of the office, said he had never observed Mr Hunter to be affected by alcohol, or to have an alcohol problem. Mr Hunter had the use of an office vehicle. Mr A stated that Mr Hunter’s positive qualities were recognised within the office while efforts were made to ensure that he did not alienate other staff in the carriage of his functions, which he was able to do quite well. Mr A was unaware that Mr Hunter had a Driving Under the Influence offence.

EVIDENCE OF MR R1

  1. Mr R1 provided an affidavit to the Tribunal dated 4 August 2008 (Exhibit R18). Mr R1 was a senior officer with the organisation and had been employed in various roles over 30 years in the organisation. Mr R1 stated that he was the manager of the Sydney office from January 2002 to July 2004 and after that as a division head in the Sydney office until January 2006.
  2. In oral evidence Mr R1 stated that his knowledge of Mr Hunter was gained when he was the manager of the Sydney office, and at a time when Mr Hunter was administration support officer. Mr R1 stated that his knowledge of Mr Hunter’s roles and responsibilities between 1984 and 2002 were based mainly on office records.
  3. Mr R1 considered Mr Hunter dedicated to the organisation; that he was aware that he had worked well in areas from registry to administration – that from time to time he had conflicts with people – he could be very forthright – and that as administration officer he had some good systems.
  4. Mr R1 was unaware that Mr Hunter was having difficulties with his work prior to being presented with medical certificates to that effect. Mr R1 was aware that Mr Hunter was referred for psychiatric assessment but never saw the report. Mr R1 considered Mr Hunter to be a quite satisfactory employee but recognised that at times he could be quite stubborn.
  5. Mr R1 stated that during Mr Hunter’s 25 years of employment the only work issue which drew Mr Hunter to management’s attention was his personality clashes with staff, and in summary Mr Hunter was a good employee and he was surprised when Mr Hunter attended with the letter from the psychiatrist (Dr Altman) in March 2004. Mr R1 stated that he was unaware of the extent of Mr Hunter’s alcohol consumption as detailed in the report of Dr Prior (Exhibit R14).

MEDICAL EVIDENCE: DR ALTMAN – CONSULTANT PSYCHIATRIST

  1. Mr Hunter was referred to Dr Altman by Dr Brittain, Mr Hunter’s treating general practitioner in late 1998. In a report dated 11 December 1998 (1T T4 P16) Dr Altman described the following:
“Seeing the men from the Evans standing on the hull of the Evans and our people trying to get them off and they went down (and drowned) – they just stood there”.
“The whole thing was traumatic – I was one of the communicators and had to send messages involved in the incident”.
  1. Dr. Altman on further questioning of Mr Hunter noted that this incident had affected Mr Hunter in the following ways:
  2. Dr Altman also noted that Mr Hunter presented with a number of significant depressive symptoms, namely:
  3. Dr Altman was of the opinion that Mr Hunter suffered from a severe chronic post traumatic stress disorder with an associated major depression and alcohol dependence as a result of the collision between HMAS Melbourne and the USS Evans in 1969. Dr Atlman confirmed his opinion after four further consultations with Mr Hunter in a letter to Dr Brittain dated 3 June 1999 (1T T6 P24).
  4. In a further report to Dr Brittain on 25 November 1999 (1T T5 P22) Dr Altman stated that he was now of the opinion that Mr Hunter’s psychiatric disorder occurred due to his service on HMAS Teal, with the later collision in 1969 aggravating his post traumatic stress disorder. Dr Altman detailed the circumstances which Mr Hunter found stressful when serving on the HMAS Teal:
  5. Dr Altman records that the abovementioned incidents affected Mr Hunter in the following ways:
  6. In a further report to Dr Brittain dated 5 February 2004 (1 T9 P80) Dr Altman confirmed his opinion of 25 November 1999 that the psychiatric disorder dated back to service onboard HMAS Teal and noted Mr Hunter’s deteriorating ability to cope adequately with work to the point that he is no longer functioning well at work and is not coping. He noted Mr Hunter as stating:
“The pressure is too great. I become confused. I cannot do the job. I get tense and I snap people’s heads off – I abuse people.”

MEDICAL EVIDENCE: DR SHAND – CONSULTANT PSYCHIATRIST

  1. In a medical report dated 24 February 2001 Dr Shand, a consultant psychiatrist, details a history of Mr Hunter:
  2. Dr Shand reported that Mr Hunter gave the following answers to direct questions about the subcriteria for the diagnosis of post traumatic stress disorder:
  3. Dr Shand considered Mr Hunter to be suffering from post traumatic stress disorder with depressed and anxious mood. Dr Shand considered that the clinical onset of some symptoms seemed to be associated with his employment post-service, but others such as nightmares, insomnia, re-experiencing and reliving and avoidance of anything or anyone to do with his naval service and symptoms of increased arousal could date back to an earlier time. Dr Shand stated that the major stressors experienced by Mr Hunter in his operational service was the incident with the Indonesian destroyer and the Melbourne-Evans collision in 1969. Dr Shand believed the two experiences as described by Mr Hunter satisfy the diagnostic criteria for experiencing a severe stressor as contained in the Statement of Principles, while Mr Hunter’s answers to direct questions satisfied the remaining criteria.
  4. Dr Shand was also of the opinion that Mr Hunter’s history of alcohol consumption during service and post-service up to the present qualifies a diagnosis of alcohol dependence. Dr Shand was of the opinion that the condition arose as a consequence of Mr Hunter experiencing a severe stressor, namely the collision between the HMAS Melbourne and USS Evans in 1969.
  5. Similarly, Dr Shand considered the post traumatic stress disorder with depressed and anxious mood to have arisen as a consequence of the HMAS Melbourne/ USS Evans collision in 1969, with the stressor concerning the Indonesian destroyer considerably less significant.

MEDICAL EVIDENCE: DR DINNEN – CONSULTANT PSYCHIATRIST

  1. In a report dated 31 January 2001 (1T T24 P134) Dr Dinnen, a consultant psychiatrist, described Mr Hunter’s symptoms in the following terms:
  2. Dr Dinnen considered that Mr Hunter suffers from post traumatic stress disorder and alcohol abuse as a consequence of his service in the navy. The significant traumatic events involving his service on HMAS Teal and HMAS Melbourne would provide sufficient stressors in his view to cause post traumatic stress disorder.
  3. In a further report dated 2 October 2007 (Exhibit A5) Dr Dinnen noted that the purpose of the consultation was an assessment of Mr Hunter’s ability to work. Dr Dinnen noted that Mr Hunter provided him with the following details:
  4. After reviewing all the documentation Dr Dinnen commented “all psychiatrists who have examined this patient have had no difficulty in diagnosing chronic post traumatic stress disorder (an anxiety disorder) with associated depression and alcohol abuse” (with the exception of Dr Roberts). He commented further, “one cannot extricate symptoms of anxiety and depression from post traumatic stress disorder”. In such situation the diagnosis is one which best fits the clinical picture. In his view “it is nonsense to have anxiety and depressive disorder accepted” as war-caused and post traumatic stress disorder and alcohol abuse not accepted when “they are all part and parcel of the same psychiatric condition”.
  5. In oral evidence Dr Dinnen confirmed his written opinion and in so doing stated that there was sufficient symptoms defined for him to make a diagnosis of post traumatic stress disorder and alcohol abuse. Dr Dinnen stated his concern in relation to the concept of having two psychiatric disorders, namely anxiety disorder and depressive disorder accepted as war caused and two other disorders, post traumatic stress disorder and alcohol abuse/dependence not accepted as war-caused. The difficulty in such a process is that the symptoms of each disorder are in many cases common to each disorder and further symptomatology of each disorder is often co-morbid with the other.
  6. In relation to the issue of impairment of memory and cognition in Dr Dinnen’s opinion they are rarely related to alcohol. Further without significant impairment of memory, Mr Hunter’s memory and cognitive difficulties are more likely in his opinion to be associated with his other psychiatric disorders, which are often associated with cognitive impairment. In this regard Dr Dinnen differed from the view expressed by Dr Prior in his report.

MEDICAL EVIDENCE: DR KOLLER – CONSULTANT PSYCHIATRIST

  1. In a report dated 22 October 2005 (1T T23 P131) Dr Koller discussed the confrontational situations Mr Hunter faced while serving on the HMAS Teal. These included:
  2. Dr Koller believed he had provided more detail of the traumatic events than the earlier psychiatrists. Dr Koller concluded that the life threatening events met the DSM IV criteria for post traumatic stress disorder.

MEDICAL EVIDENCE: DR PRIOR – CONSULTANT PSYCHIATRIST

  1. In a report dated 3 March 2004 (Exhibit R14) Dr Prior, a consultant psychiatrist, detailed his opinion as to Mr Hunter’s fitness for duty. Dr Prior detailed Mr Hunter as describing chronic post traumatic stress disorder symptoms, alcohol dependence and symptoms of increasing cognitive difficulties more recently. Dr Prior noted that this occurs in the context of obsessive compulsive personality traits.
  2. Dr Prior notes that Mr Hunter detailed two service related stressful events while serving in the Navy, namely:
  3. Dr Prior detailed Mr Hunter’s list of symptoms and his history of alcohol consumption and experiencing withdrawal symptoms, blackouts and brief auditory hallucinations when intoxicated, as well as being charged with drink driving in the past.
  4. Dr Prior considered Mr Hunter to be suffering from chronic post traumatic stress disorder with co-morbid alcohol dependence on a background of obsessive compulsive personality traits.
  5. Dr Prior did not feel that Mr Hunter was currently fit for duty because of the cognitive difficulties, and that he would need to detoxify and undergo neuropsychological testing to determine level of cognitive damage. Dr Prior considered Mr Hunter would be fit to resume duties within six weeks to two months following detoxification.

MEDICAL EVIDENCE: DR ROBERTS – CONSULTANT PSYCHIATRIST

  1. In a report dated 11 April 2007 (Exhibit R8) Dr Roberts, a consultant psychiatrist, noted that “Mr Hunter referred to himself as being anxious and asserted that he was suffering from depression”. He noted that Mr Hunter stated that “there were times when he felt he had no reason to go on and would be best out of the way”. Mr Hunter stated that if he failed to complete a task in the manner he thought appropriate at work he would become depressed and that he “had a propensity to be angry with others”.
  2. Dr Roberts noted that there was “no evidence of diurnal mood variations” and in relation to sleep “he dropped off to sleep very easily” but had strange dreams, with the dreams making no sense to him. Dr Roberts details a history of Mr Hunter seeing a psychiatrist in 1962; having seen a female hypnotherapist because of anger towards a member of staff “who was duck shoving her work to others”. In 1984 Dr Roberts records Mr Hunter having a nervous breakdown and was prescribed Murelax by his general practitioner. In 1986 Mr Hunter described feeling the onset of his condition and in 1992 saw a psychologist because of difficulty in concentrating and because he was getting frustrated and depressed. Dr Roberts records Mr Hunter seeing Dr Altman in 1998 and being treated with Zoloft at a dose of 200mgs at night. Dr Roberts noted that Mr Hunter had three PCA charges with one conviction.
  3. Dr Roberts noted Mr Hunter’s consumption of alcohol to be excessive for many years with the amount increasing over time. Dr Roberts noted that Mr Hunter had not consumed any alcohol since April 2005.
  4. Dr Roberts stated that Mr Hunter asserted that he had cognitive impairment “which is not clinically evident”, but “to the extent that it is assumed to be present, it is mild and not relevant... the only symptomatology that is psychologically influenced relates to chest, respiratory and heart – such a symptom complex being consistent with minor levels of anxiety only”. He stated that Mr Hunter saw himself as being nervous, tense, anxious and depressed.
  5. Dr Roberts noted Mr Hunter as defining the following significant events during service, namely:
  6. Dr Roberts considered that the description of the above events, which appear to involve Mr Hunter imagining particular events, did not satisfy the definition of experiencing a severe stressor.
  7. Dr Roberts did not consider Mr Hunter to be suffering from an anxiety disorder. He was of the view that post traumatic stress disorder was never present and that alcohol abuse is no longer a factor for consideration. Dr Roberts did not consider that a psychiatric disorder currently exists, with his view being that Mr Hunter was essentially a normal person.
  8. In oral evidence Dr Roberts confirmed his opinion that the absence of any symptomatology of heightened anxiety of a significant degree does not permit him to confirm a diagnosis of anxiety disorder or post traumatic stress disorder.
  9. Dr Roberts confirmed Dr Dinnen’s statement that it was difficult to extricate symptoms of anxiety and post traumatic stress disorder from depression.

CONSIDERATIONS AND FINDINGS

  1. We are mindful that matters surrounding Mr Hunter’s psychiatric status have been under consideration for in excess of ten years. Such a long process has, by the nature of the various considerations, added complexity rather than simplified the issues before us. We acknowledge that Mr Hunter has had accepted as war caused diseases both anxiety disorder and depressive disorder. We also understand that Mr Hunter has been receiving Zoloft, an anti-anxiety and anti-depressive drug for many years while under the care of his treating psychiatrist, Dr Altman. It is not our intention to revisit either disease and/or the findings that such diseases are war caused in that the history as given by Mr Hunter commenced with anxiety as a symptom being first raised while serving on HMAS Vendetta on 27 March 1962 (1T T3 P12). Further, history given by Mr Hunter concerning his service on HMAS Teal in 1965/1966 and on HMAS Melbourne in 1967 to various psychiatrists has been analysed and all accept that he has a complex conundrum of anxiety and depressive symptoms, the latter occurring in the early to mid eighties. We note that even Dr Roberts in his opinion of 11 April 2007 acknowledges that at the time Mr Hunter had mild symptoms of anxiety.
  2. The two matters before us relate to two claims by Mr Hunter. The first relates to a claim made for post traumatic stress disorder, and the second for a review of his entitlement to disability pension. We have detailed earlier in this decision the evidence given by Mr Hunter and the opinions of the various psychiatrists.
  3. Our first task in this claim is to establish on grounds of reasonable satisfaction the diagnosis of injuries/disease(s) relevant to the claim. In doing so we acknowledge that the underlying factual situation upon which the diagnostic criteria are factored must also be found on the balance of probabilities to exist (Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622 considered and followed).
  4. Bearing in mind such requirements we are satisfied that Mr Hunter, in response to the claim lodged, suffers from chronic post traumatic stress disorder and alcohol dependence (in remission). In so finding we rely upon the evidence of Mr Hunter insofar as the description of his symptomatology and the opinion of Doctors Altman, Shand and Dinnen. Each of these psychiatrists details Mr Hunter’s symptoms and assesses them against the diagnostic criteria listed in DSM IV-TR for post traumatic stress disorder and alcohol dependence. We also observe that Dr Prior and Dr Koller detailed similar diagnoses, with the latter not offering an opinion as regards alcohol but again Dr Koller’s report was not particularly fulsome, while Dr Prior’s report was more concerned with assessment of Mr Hunter’s work capacity.
  5. We note that Dr Roberts concluded that Mr Hunter was currently suffering some mild anxiety symptoms but these did not constitute a psychiatric disorder. We express some difficulty in understanding the opinion proferred by Dr Roberts in that, while he has a particular format for conducting his consultation, he appears to construct an opinion on a narrowly defined history assessed against background material provided to him and considered at the time of formatting his report. In this matter it would appear that there was no mention of Mr Hunter’s clinical history of his experiences during the HMAS Melbourne/USS Evans collision, and when considered after reviewing the sent material concluded that it was not a relevant issue, as it did not occur during a period of eligible service.
  6. We are mindful that his claim was for post traumatic stress disorder. Nevertheless we are satisfied that such a claim does encompass consideration of Mr Hunter’s alcohol consumption. In so doing we acknowledge that excess alcohol consumption is a co-morbid condition associated with post traumatic stress disorder, and hence properly considered in such a claim.
  7. While our attention was drawn to a circumstance when Mr Hunter (2T T4 P28) was seen to be under-reporting his alcohol consumption eg. Alcohol questionnaire, the weight of evidence clearly indicates that Mr Hunter was an occasional drinker prior to service, a social drinker early in his service and a regular drinker with binge drinking on shore while on HMAS Teal. There was an increase in quantity of alcohol consumed (including a change to Scotch) in 1969 and a further increase in quantity mid to late seventies and thereafter until 2005, when he ceased consuming alcohol.
  8. Prior to his cessation of drinking in April 2005 we are satisfied that Mr Hunter satisfied the diagnostic criteria for a diagnosis of alcohol dependence. In so finding we rely upon the opinion of Doctors Altman, Shand, Prior and Dinnen, with the latter appearing to use the term ‘abuse’ interchangeably with ‘dependence’. We therefore conclude that Mr Hunter does satisfy the DSM IV-TR diagnostic criteria for alcohol dependence (in remission).

RELATIONSHIP TO SERVICE

  1. In determining whether Mr Hunter’s post traumatic stress disorder and alcohol dependence (in remission) are war caused we are mindful of the approach adopted in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 (Deledio).
  2. We have considered all the material in evidence before us and are satisfied that there is material pointing to a hypothesis linking Mr Hunter’s conditions of post traumatic stress disorder and alcohol dependence with circumstances of his service, namely circumstances during his service on HMAS Teal in 1965/1966 and/or HMAS Melbourne in 1969.
  3. We note that the two current and relevant Statements of Principles are:
  4. We observe that the factor relied upon connecting post traumatic stress disorder and alcohol dependence is 6(a), (b) of Instrument No 5 of 2008 and 6(b), (c) of Instrument No 1 of 2009. The factors nominated are similar in both Instruments, namely:
  5. We note the definition of a category 1A and 1B stressor:
...
A “category 1A stressor” means one or more of the following severe traumatic events:
(a) Experiencing a life threatening event;
(b) Being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) Being threatened with a weapon, being held captive, being kidnapped or being tortured;
A “category 1B stressor” means one of the following severe traumatic events:
(a) Being an eyewitness to a person being killed or critically injured;
(b) Viewing corpses or critically injured casualties as an eyewitness;
(c) Being an eyewitness to atrocities inflicted on another person or persons;
(d) Killing or maiming a person; or
(e) Being an eyewitness to or participating in, the clearance of critically injured casualties.
...

  1. We further note that the following terms are defined in the nominated instruments:
...
An “eyewitness” means a person who observes an incident first hand and can give direct evidence of it. This excludes a person exposed only to media coverage of the incident (both instruments)
...
A “clinically significant psychiatric condition” means any Axis I or Axis II disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management, excluding alcohol-related disorders. The ongoing management may involve regular visits (for example, at least monthly) to a psychiatrist, clinical psychologist or general practitioner (Statement of Principles concerning alcohol dependence and alcohol abuse No. 1 of 2009).
...

  1. We note the circumstances of his service upon which Mr Hunter relies are the events he has nominated while serving on HMAS Teal in 1965/1966. In particular he relies upon:
  2. This was the general scenario existing when Mr Hunter detailed the events surrounding HMS Woolaston, the interception of some sampans during patrolling activity on the Tawau River and the incidents involving an Indonesian destroyer and/or an “A” class patrol boat. Mr Hunter’s description of the events has and remains particular and has been outlined in detail over the years that the matter has been in contest. We would note that Mr Hunter details material relating to the Indonesian destroyer incident, while material from other sources (record of proceedings, Lt Cmdr Murray, Cmdr Cooke-Russell and Mr Baker) clearly refers to another incident.
  3. In the matter concerning Mr Hunter’s post traumatic stress disorder, he relies upon the material concerning a nominated series of incidents together with his responses when serving on HMAS Teal in 1965/1966 to point towards experiencing a traumatic event and other nominated diagnostic criteria listed in Instrument No 5 of 2008. Further, he relies upon such material as pointing to experiencing a life-threatening event.
  4. We are mindful that in addressing the third stage of the Deledio process, we must consider all the material that is before us and satisfy ourselves that there is material pointing to the diagnostic criteria nominated in clause 3 of Instrument No 5 of 2008 (headed kind of injury, death or disease) concerning posttraumatic stress disorder, with this indicating that there has to be material pointing to Mr Hunter being “exposed to a traumatic event in which the person experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and the person’s response involved intense fear, helplessness or horror”. Further, there must be material pointing to Mr Hunter experiencing a category 1A stressor, which in this matter involves experiencing a life-threatening event as nominated by factor 6(a) in Instrument No 5 of 2008 or factor 6(b) in Instrument No 1 of 2009 concerning alcohol dependence and abuse. It is noted that in factor 6 of the Statement of Principles concerning alcohol dependence and alcohol abuse No. 1 of 2009 there must be material pointing to the clinical onset of alcohol dependence/alcohol abuse within five years of experiencing the category 1A or 1B stressor.
  5. In progressing our consideration, we are mindful of what has been stated by Mansfield J in Stoddart v Repatriation Commission [2003] FCA 334; (2003) 74 ALD 366 and approved by the Full Court in Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 75 ALD 420 that the word “threat” did not provide for “idiosyncratic and personal perception of events which judged objectively do not fall within the adjectival clause”. We also note the comments of Tamberlin J in Delahunty v Repatriation Commission [2004] FCA 309; (2004) 38 AAR 511:
...
In Woodward, the Full Court pointed out that the "experience" had to be based on an "event" and that a figment of the imagination such as might arise through "paranoid ideation" would not be sufficient to meet this requirement. ...
...

  1. In essence, we conclude that while an actual threat may not necessarily have occurred, an objective and assessable state of affairs is required, against which an individual’s subjective response can be objectively assessed against the response of the reasonable person to the nominated event.
  2. Having considered all the material, we observe that Mr Hunter relies on a number of events he experienced on HMAS Teal in 1965/1966. We note the hypothesis postulated is that such events constitute Mr Hunter being exposed to traumatic events that involved actual or threatened death or serious injury, with his response involving intense fear, helplessness or horror and with Mr Hunter suffering other symptoms permitting a diagnosis of post traumatic stress disorder. We would observe that the relevant factor relating the post traumatic stress disorder to service is one of experiencing a category 1A or 1B stressor (such as a life-threatening event) within 5 years of the clinical onset of the post traumatic stress disorder, which in many, if not most cases, will be the same traumatic event that gave rise to the post traumatic stress disorder.
  3. In addressing all the material and the events relied upon, we consider that the event in which the outgoing crew briefed the relief crew, does not point to Mr Hunter experiencing a traumatic event, as defined, in that the material did not point to Mr Hunter being exposed to an event which he experienced, witnessed or was confronted with that involved actual or threatened death or serious injury or a threat to the physical integrity of himself or others. Further, the material does not point to Mr Hunter’s response being one of intense fear, helplessness or horror (Mr Hunter described his response as being “under no misapprehension as to how serious and dangerous our job was to be”).
  4. We consider that the general circumstances of their patrolling activities at night-time did not point to Mr Hunter experiencing a traumatic event as defined above nor does the material point to Mr Hunter’s response being other than one of being extremely tense and frightening. There is no material pointing to such circumstances as creating a category 1A or 1B stressor such as a life-threatening event.
  5. We consider that the material relating to the HMS Woolaston incident points to an event in which Mr Hunter was confronted with, but not as an eyewitness to, an event involving actual death. The material points to Mr Hunter experiencing the deepest apprehension, with the incident reinforcing the importance and seriousness of their situation. In such circumstances, the material does not point to Mr Hunter being exposed to a traumatic event or to experiencing a life-threatening event of the kind defined as a category 1A or 1B stressor.
  6. In addressing the material relating to the Tawau River incident, some of the material points to Mr Hunter being on deck with Indonesian fire going over their heads, with the belief being that it was the intention of the Indonesians to annoy them with the noise. The material points to Mr Hunter's response to such an incident as depriving him of sleep and causing quite a deal of stress. In such circumstances, we consider that the material does not point to Mr Hunter being exposed to a traumatic event or experiencing a life-threatening event.
  7. We note that there is material pointing to HMAS Teal intercepting some sampans and handing some barter traders over to the Malaysian and then Singaporean police. The material points to Mr Hunter being in the wireless room, with his only knowledge of the events as being what he was told by other crew members. In such circumstances, we consider that the material does not point to Mr Hunter being exposed to a traumatic event or experiencing a life-threatening event.
  8. In addressing the material relating to the incident involving an Indonesian destroyer, we observe much conflict in the material before us. We note that such conflict may relate to the date and type of vessel involved and to the very circumstances of the incident irrespective of the type of vessel involved. We note that the material provided by Mr Hunter details an event in which a confrontation occurred between HMAS Teal, a wooden minesweeper and an Indonesian “Skory” class destroyer operating in Malaysian waters. Further, the material as nominated by Mr Hunter points to Mr Hunter isolated in the wireless room being instructed to and sending a message to CIC Far East Fleet by the Captain of HMAS Teal that he intended to engage the destroyer. The material points to Mr Hunter’s response while at duty in the wireless room in his swimming trunks being that he soiled himself.
  9. In the light of such material, we consider, having reviewed all the material, that there is material pointing to each element of the hypothesis, namely being exposed to a traumatic event and meeting the diagnostic criteria for post traumatic stress disorder as nominated in the SoP,as well as experiencing a life-threatening event. In so finding that there is a reasonable hypothesis linking Mr Hunter’s post traumatic stress disorder with his service, we are mindful of what Brennan CJ stated in Repatriation Commission v Owens (1996) 70 ALJR 904:
...
It is not whether an hypothesis of connection would be reasonable if some facts are ignored; the question in answered by reference to the whole of the material before the Administrative Appeals Tribunal.
...

  1. In addressing the fourth stage of the Deledio formulations we are reminded of our task at that stage by what was stated by the High Court in Bushell v Repatriation Commission [1992] HCA 47; [1992] 175 CLR 408 where at 416 they explained the proper construction and application of s 120(1):
... Thus if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them .... If that is done the claim will succeed unless the Commission is satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis can operate does not exist.
...

  1. The evidence, apart from the material provided by Mr Hunter, relating to the Indonesian destroyer is particular, namely it was aground in Indonesian waters just outside of Singapore and had been so for a period of time. More particularly the latter account of the status and position of the Indonesian destroyer is consistent with the evidence of Lt Cmdr Murray, Cmdr Cooke-Russell, Mr Baker and Mr Neil, as well as being consistent with HMAS Teal’s record of proceedings. In such circumstances, we are satisfied beyond reasonable doubt that the incident as related to us involving an Indonesian destroyer in Malaysian waters did not occur as detailed by Mr Hunter.
  2. Further, Mr Hunter detailed evidence that he received a message from Lt Cmdr Murray to signal CIC Far East Fleet that he intended to engage the Indonesian destroyer. Mr Hunter stated that he sent the message. Mr Baker stated that Mr Hunter told him of such events. Lt Cmdr Murray stated that there was no such incident, and that he would never have sent such a message. Cmdr Cooke-Russell was aware of the stranded vessel, and there is an absence of any formal record of such a signal having been sent, or any record of such an encounter in HMAS Teal’s record of proceedings.
  3. We note that there was an encounter with an Indonesian “A” class patrol boat in November 1965, in which HMAS Teal intercepted the latter vessel in Malaysian territorial waters. When challenged, the Indonesian vessel altered course to regain Indonesian waters, with the incident being uneventful (evidence of Lt Cmdr Murray). Cmdr Cooke-Russell confirmed the basic facts as nominated by Lt Cmdr Murray, adding that the Indonesian captain indicated that he had made a navigational error. We note that both officers indicated that the two vessels remained separated by a considerable distance. We note that HMAS Teal's record of proceedings for 28 November 1965 confirms such an event as described by the two officers.
  4. Mr Baker detailed an event in which HMAS Teal and an Indonesian destroyer (possibly an “A” class patrol boat) sailed parallel to one another 25 feet apart for 10 to 15 minutes with sailors on each ship training their weapons on the other. Mr Baker also details an event in which HMAS Teal was called to assist a Malaysian patrol boat in confrontation with an Indonesian ship, with the latter ship turning away as HMAS Teal approached, with HMAS Teal never coming within half a mile of the Indonesian vessel. We observe that there is no other evidence to support Mr Baker’s description of the destroyer incident. We consider his description to be highly imaginative and upon which no reliance can be placed. We observe that his description of the confrontation incident takes the issues in question no further, in so far as determining the factual issues intrinsic to the hypothesis.
  5. We are mindful that much time has passed since the events in question occurred and that memories as to such events become less reliable. In this matter we have the benefits of official records made at the time of the occurrence of such events. We have the evidence from other witnesses involved in the incidents. We have analysed all the evidence and we are satisfied beyond reasonable doubt that the account given by Mr Hunter of the encounter with an Indonesian destroyer is one which cannot be relied upon. In such circumstances, we are satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis can operate does not exist.
  6. We are also mindful that such a factual foundation underlies the clinical opinions formulated by doctors Altman, Shand, Dinnen, Keller and Roberts. Doctors Altman, Dinnen and Keller formulate an opinion relating Mr Hunter’s post traumatic stress disorder to events on HMAS Teal, Dr Shand to events involving the HMAS Melbourne/USS Evans collision, Dr Prior refers to events on both ships, while Dr Roberts is of a view that no psychiatric diagnosis is applicable at the time of his consultation. In such circumstances, the reliability of their opinions would need to be considered in the light of a different factual foundation.
  7. In the light of such findings, we conclude that Mr Hunter’s post traumatic stress disorder is not related to the events nominated as occurring when serving on HMAS Teal in 1965/1966. In so finding, we are satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis can operate did not exist, and in particular to material pointing to Mr Hunter experiencing a traumatic event or a life-threatening event at that time.
  8. A similar analysis relates to experiencing a category 1A stressor (such as a life-threatening event) as required by factor 6(b) of the Statement of Principles (SoP) concerning alcohol dependence and alcohol abuse No 1 of 2009. We shall not repeat the analysis. We also note that factor 6(a) of the same instrument cannot be of assistance to Mr Hunter as there is no material pointing to Mr Hunter having a clinically significant psychiatric condition (defined in SoP No 1 of 2009) prior to the clinical onset of his alcohol dependence/alcohol abuse. In such circumstances, we are unable to conclude that a reasonable hypothesis exists linking his alcohol dependence with his service under the current Statement of Principles concerning alcohol dependence and alcohol abuse No 1 of 2009.
  9. In addressing the same two diseases of post traumatic stress disorder and alcohol dependence in the light of the Statement of Principles existing at the time of the primary determinations on 7 June 2005 and 6 March 2000 respectively, we observe that the relevant instruments are Statement of Principles concerning post traumatic stress disorder No. 3 of 1999, and Statement of Principles concerning alcohol dependence or alcohol abuse No. 76 of 1998. We note that the factor relied upon and common to both instruments was “experiencing a severe stressor” (factor 5(a) of Instrument No 3 of 1999, factor 5(b) of Instrument No 76 of 1998). The term “severe stressor” is defined within clause 8 of both instruments, with the only variation lying within the Statement of Principles concerning alcohol dependence or alcohol abuse No. 76 of 1998 and which required material pointing to events which might invoke intense fear, helplessness or horror.
  10. We do not intend to repeat the analyses made in relation to the later (ie, current) SoPs as the analysis relating to “experiencing a life-threatening event” and an analysis concerning “experiencing a severe stressor” lead to a similar outcome in this matter.
  11. In the analysis so far under the earlier SoPs, we again conclude Mr Hunter’s post traumatic stress disorder cannot be said to be related to his operational and/or defence service, as the facts constituting the hypothesis have been disproved beyond reasonable doubt.
  12. In relation to the issue of alcohol dependence, we observe that factor 5(a) of Instrument No 76 of 1998 states:
...
(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse.
...

We note that clause 8 of the same instrument defines:

...
“psychiatric disorder” means any Axis 1 or 2 disorder of mental health attracting a diagnosis under DSM-IV.
...

  1. We observe that there is material pointing to Mr Hunter suffering from a war-caused anxiety disorder by the time he completed his service on HMAS Teal in 1966 (war-caused disease concluded in AAT decision of 21 June 2002). Further, there is material pointing to “the clinical onset of alcohol dependence in 1969 after the collision between HMAS Melbourne and the USS Evans. Both Dr Altman and Dr Shand point to the period as to the time of the clinical onset of alcohol dependence.
  2. As a consequence, we find that a reasonable hypothesis exists linking Mr Hunter’s disease of alcohol dependence with his operational service. In addressing the factual elements constituting the hypothesis pursuant to s 120(1) of the Veterans’ Entitlements Act 1986 (the Act), we are unable to find any of the facts constituting the hypothesis disproved beyond reasonable doubt nor are we able to find proven the existence of other facts beyond reasonable doubt, that by their existence, would disprove beyond reasonable doubt the hypothesis.
  3. In such circumstances, we conclude that Mr Hunter’s disease of alcohol dependence is war-caused. We further note that this condition has been in remission since April 2005.
  4. We acknowledged that Mr Hunter does suffer from post traumatic stress disorder. We conclude that this disease is not related to either his operational and/or defence service, and, as such does not fall within the jurisdiction arising from the two matters before us in the context of the Act. We do note, however, evidence and material to suggest that the disease may have been causally related to the HMAS Melbourne/USS Evans collision in 1969. This was a period of ineligible service in terms of the Act, with any legal redress to be pursued in the military compensation jurisdiction.
  5. In summary, we conclude that

ASSESSMENT

  1. Mr Hunter, in his application of 6 May 2004, sought an increase in his rate of payment of disability pension. We note that as a consequence of the Repatriation Commission decision dated 23 December 2004, Mr Hunter’s rate of disability pension was increased to 100 percent of the general rate with date of effect being 6 February 2004.
  2. In assessing whether Mr Hunter qualifies for a pension for economic loss, namely a special rate or intermediate rate of pension, we acknowledge that Mr Hunter satisfies ss 24(1)(aa), 24(1)(aab) and 24(1)(a)(i) of the Act.
  3. We have considered the factors nominated in s 28 of the Act that we must have regard to in determining what kinds of remunerative work Mr Hunter is capable of undertaking. We conclude that the kind of remunerative work Mr Hunter was capable of undertaking was as an administrative officer, general clerical or information management activities.
  4. We note that Mr Hunter ceased work, by way of resignation in April 2004 with a certificate from Dr Altman dated 5 February 2004, a treating psychiatrist, confirming that Mr Hunter continues to suffer from symptoms of post traumatic stress disorder.. Dr Altman stated that Mr Hunter was totally and permanently unfit to work.
  5. Further, We note the opinion of Dr Prior, who in his report of 3 March 2004, considered Mr Hunter to be suffering from chronic post traumatic stress disorder with co-morbid alcohol dependence on a background of obsessive-compulsive personality traits. Dr Price considered that Mr Hunter was not fit for duty at that time.
  6. Similarly, we note the opinion of Dr Dinnen of 2 October 2007 in which he stated that Mr Hunter was, in his opinion, not capable of working more than eight hours a week because of his accepted war-caused disabilities of anxiety disorder and depressive disorder. Dr Dinnen also expressed the view that Mr Hunter ceased work because of his post traumatic stress disorder with associated anxiety, depression and (in remission) alcohol abuse. Dr Dinnen was also of the opinion that it was impossible to isolate the symptoms arising from each of the psychiatric conditions.
  7. Dr Rosenthal, a consultant occupational physician, in his report dated 10 April 2007 (Exhibit A6), noted that Mr Hunter’s symptoms from anxiety, depression and post traumatic stress disorder preoccupy him most hours of every day, with it not being possible to separate symptoms of anxiety and depression from symptoms of post traumatic stress disorder. Dr Rosenthal considered that Mr Hunter is not capable of continuing any remunerative work activities because of his accepted and non-accepted medical conditions. Further, he concluded that Mr Hunter was not capable of working more than eight hour per week, because of his accepted and non-accepted disabilities with the latter having only a minor effect.
  8. We acknowledge the given context that Mr Hunter suffers from post traumatic stress disorder (non-accepted as war caused) and anxiety disorder, depressive disorder and alcohol dependence (in remission), the latter three being accepted as war-caused. Further accepting the fact that it is extremely difficult to define at a point in time the particular source of the symptomatology, common to anxiety disorder, depressive disorder and post traumatic stress disorder, we turn to address s 24(1)(b).
  9. We are satisfied that Mr Hunter suffers incapacity arising from both his war-caused conditions of anxiety disorder and depressive disorder and we are satisfied that he also suffers incapacity from his non-accepted condition of post traumatic stress disorder. While we note that Mr Hunter suffers from alcohol dependence (in remission), we observe that he is currently suffering no defined incapacity from that disease. Further, we find that as each disease, whether accepted or not accepted, can give rise to identical symptoms, any consideration of an “alone test” is fraught with much difficulty. In the particulars of this matter, there is much to suggest that Mr Hunter suffers from post traumatic stress disorder with co-morbid conditions of anxiety, depressive disorder and alcohol dependence. In such circumstances (such circumstances being consistent with all the clinical opinions bar Dr Roberts), any attempt to isolate and assess particular components would be both artificial and provide a result which would at best be speculative.
  10. In such circumstances, we cannot be satisfied on the balance of probabilities that Mr Hunter meets the requirements nominated in s 24(1)(b) of the Act.
  11. In addressing s 24(1)(c), we are mindful of the four questions to be considered, such questions were stated by Branson J in Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 48 ALD 1. We have considered the relevant remunerative work that Mr Hunter was regarded as able to undertake. We have considered the difficulties in attempting to assess whether Mr Hunter’s war-caused diseases are preventing him from continuing to undertake such work. For the purpose of completing this segment of the analyses, we shall assume they do. In answering the third question, it is evident that there are non-war-caused diseases preventing Mr Hunter from continuing to undertake that work. In such circumstances, we conclude that there is another factor (non-war-caused post traumatic stress disorder) that plays a part in Mr Hunter’s inability to work or to obtain and hold remunerative employment (Forbes v Repatriation Commission [2000] FCA 328; (2000) 58 ALD 394 – considered and applied).
  12. In turning our attention to s 24(2)(b), we note that Mr Hunter was under 65 years of age at the date the relevant application was received. In addressing the issue of whether Mr Hunter was genuinely seeking to engage in remunerative work, we note that Mr Hunter stated in oral evidence that his difficulties with concentration which caused him to resign from his job in 2004, as he was unable to do the job, continued and this made him feel he could not work anymore. We do note that Mr Hunter made an application to be a school crossing attendant in 2004, and sought to return to his previous job at that time as well as making enquiry about a job as an administrative officer. In assessing such evidence, we conclude that Mr Hunter’s activities were not indicative of the requirement that he be “genuinely seeking to engage in remunerative work”. In so finding, we consider his physical endeavours to obtain remunerative work underwhelming and inconsistent with his stated feeling that he could not work. We considered such endeavours to have been relatively isolated, inconsistent with his stated feelings and lacking in the “mantle of genuineness”.
  13. Finally, in addressing the issue of substantial cause, we are mindful that all the psychiatrists, bar Dr Roberts, have diagnosed Mr Hunter as suffering from post traumatic stress disorder and other psychiatric disorders (anxiety, depressive, alcohol dependence). All have stated, again with the exception of Dr Roberts and Dr Koller that post traumatic stress disorder and such other nominated conditions caused him to cease work and prevent him from continuing to work. In such circumstances, we consider it difficult to exclude post traumatic stress disorder from being at best the operative factor that explains Mr Hunter’s inability to work. To find otherwise, we would have to ignore the issue of common symptomatology, and the opinions of Dr Altman, the treating psychiatrist and Dr Shand (Fox v Repatriation Commission (1996) 45 ALD 317).
  14. In all the circumstances we conclude that Mr Hunter does not satisfy s 24(1)(c) of the Act, the ameliorating provisions contained within 24(2)(b) having been considered and adverse findings made.
  15. In such circumstances, we conclude that on the balance of probabilities Mr Hunter does not qualify for a “special” or an “intermediate” rate of pension.
  16. Finally, we would conclude by determining that the rate of payment of disability remains at 100 percent of the general rate. In so finding, we acknowledge the similarity of the assessments made by all the psychiatrists (with the exception of Dr Roberts) under the Guide to the Assessment of Rates of Veterans' Pensions (GARP), and that of Dr Rosenthal. Further, we respect the opinion of the common symptomatology between the three psychiatric disorders, and the difficulties inherent in allocation of such symptoms in any assessment process. Finally, we also note the acceptance of alcohol dependence (in remission) as war-caused, but would not seek to allocate an additional GARP rating at this point in time.
  17. In conclusion, we make the following findings:

I certify that the 139 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member and Rear Admiral A R Horton AO, Member


Signed: ..............[Sgd].............................................................

Associate


Dates of Hearing: 18 March 2008

4 August 2008

5 August 2008

27 November 2008

28 November 2008

Date of Decision: 21 April 2009

Solicitor for the Applicant: Mr G Isolani

Counsel for the Applicant: Mr M Perry

Solicitor for the Respondent: Ms R Casamento

Counsel for the Respondent: Mr G Purcell

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