FEDERAL COURT OF AUSTRALIA Gerzina v Repatriation Commission [2004] FCAFC 96 VETERANS' AFFAIRS – disease – post-traumatic stress disorder – whether requires reaction of "horror" or of "intense horror" ADMINISTRATIVE LAW – whether interpretation of DSM-IV is a question of fact or law Veterans' Entitlements Act 1986 (Cth) ss 9(1), 13(1) Benjamin v Repatriation Commission (2001) FCA 1879 referred to ALDO ANDRE GERZINA v REPATRIATION COMMISSION V 1060 of 2003 BLACK CJ, HEEREY AND BENNETT JJ 3 MAY 2004 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 1060 OF 2003 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: ALDO ANDRE GERZINA APPLICANT AND: REPATRIATION COMMISSION RESPONDENT JUDGES: BLACK CJ, HEEREY AND BENNETT JJ DATE OF ORDER: 3 MAY 2004 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. There be no orders as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 1060 OF 2003 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: ALDO ANDRE GERZINA APPLICANT AND: REPATRIATION COMMISSION RESPONDENT JUDGES: BLACK CJ, HEEREY AND BENNETT JJ DATE: 3 MAY 2004 PLACE: MELBOURNE REASONS FOR JUDGMENT THE COURT: 1 The appellant appeals from a judgment of McInnis FM given on 7 November 2003: Gerzina v Repatriation Commission [2003] FMCA 490. The learned Federal Magistrate dismissed the appellant's appeals under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal which affirmed the respondent Repatriation Commission's decision rejecting a claim for a pension under Pt II of the Veterans' Entitlements Act 1986 (Cth) ("the Act"). 2 The condition relevant for present purposes was an alleged condition of post‑traumatic stress disorder ("PTSD"). The issue raised by the appeal is whether the Tribunal erred in law in considering the construction of the diagnostic criteria for PTSD in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition ("DSM-IV"). That criterion is relevantly as follows: "Diagnostic criteria for 309.81 Posttraumatic Stress Disorder A. The person has been exposed to a traumatic event in which both of the following were present: (1) 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 (2) the person's response involved intense fear, helplessness, or horror." 3 In essence, the argument on the appeal was that the Tribunal erred in elevating DSM-IV to the position of a statute and further misconstruing it by regarding the adjective "intense" as qualifying the words "helplessness" and "horror" as well as "fear". The submission of senior counsel for the respondent was that this was not a question of law and therefore not a matter as to which an appeal lay under s 44(1). We note that this issue was not raised before the learned Federal Magistrate who understandably therefore embarked upon an exercise in the construction of criterion (A)(2) of DSM-IV. 4 Section 13(1) of the Act renders the Commonwealth liable to pay a pension where a veteran is incapacitated by a war-caused disease. A disease is war-caused if, amongst other things, the disease resulted from an occurrence that happened while the veteran was rendering operational service, or arose out of or was attributable to any eligible war service rendered by the veteran: ss 9(1)(a) and (b). 5 Where a person claims to suffer from a war-caused disease the decision‑maker must first determine whether the person suffers from the claimed disease and that issue must be decided to the "reasonable satisfaction" of the decision‑maker. If a positive finding is made on that question, the decision‑maker will proceed to decide whether the disease is war-caused, applying the standard of proof in a case of operational service in ss 121 and 3 of the Act, as affected by s 120A. 6 The appellant served in the Australian Army in Vietnam from 18 February 1969 to 11 February 1970. It was not in dispute that this service was operational service within the meaning of the Act. The appellant's case was that there were two circumstances that were relevantly traumatic during his Vietnam service. 7 First, he was in the vicinity of a helipad when wounded soldiers were arriving by helicopter, having been evacuated to hospital. Secondly, as the senior NCO in the vehicle workshop, he opened damaged tanks and armoured personnel carriers for cleaning and preparation for return to Australia and on four or five occasions he had worked on vehicles in which traces of blood or skin were visible to him and which had a putrefying smell. 8 Two reports by the appellant's treating psychiatrist, Dr Seabridge, were before the Tribunal. Two other psychiatrists, Dr Cooper and Dr Timney prepared reports and gave evidence. Dr Cooper, but not Dr Timney, considered that diagnostic criterion (A)(2) was met. Dr Timney's evidence was that the appellant's response was, 'Not one that indicated significant emotional distress or terror or helplessness'. 9 The Tribunal, after referring to the statutory criteria under the subheading 'The Issue Whether Mr Gerzina Suffers from PTSD', quoted two Full Court decisions and then said at paragraph 11: "We therefore must consider the evidence as to whether or not Mr Gerzina suffers from PTSD using the diagnostic criteria set out in the [DSM-IV]." 10 The Tribunal then quoted the criteria already mentioned. The Tribunal's conclusion was as follows: "38. On the evidence we are not satisfied that Mr Gerzina found his attendances at the helipad to be "traumatic events". We find that his accounts of those activities to the VRB and Dr Cooper were somewhat exaggerated as to his proximity to and involvement with the wounded. Further, if the experience was traumatic, we would have expected Mr Gerzina to have included it in his claim to have "anxiety/depression" accepted as a war-caused disease, rather than relying simply on his anxiety while driving in South Vietnam. Another factor which makes us doubt the accuracy of Mr Gerzina's account, and the traumatic nature of his activities at the helipad, is the evidence that he went back there to keep WO2 Tyrrell company, on two or three occasions, even though it was not his responsibility to perform the task of emptying the CONEX. 39. As to the second alleged traumatic event, we find that Mr Gerzina was upset by his duties involving the inspection and preparation of battle damaged vehicles for return to Australia, and by the smell of putrefaction and the traces of blood or skin indicating that people had died or been severely wounded in those vehicles. But we are not satisfied that his reaction was such as to satisfy criterion A(ii) of the diagnostic criteria for PTSD. Mr Gerzina could not have felt any fear as a result of those duties. He gave the impression in his evidence, and we find, that he did feel "horror". But we are not satisfied that it was "intense horror".. If so, that seems to us to be inconsistent with his account to Dr Seabridge, that he went to Saigon to ask the Colonel to transfer him to an operational area because he was frustrated by the routine nature of his work, in the light of the reminders in the vehicles that other soldiers were killed. 40. The evidence does not establish to our satisfaction that Mr Gerzina's reaction to either of the two traumatic events he described involved "intense fear, helplessness, or horror". We prefer Dr Timney's evidence on this issue to that of Dr Cooper. Dr Timney said that the history he obtained was of a reaction to the traumatic events which did not satisfy criterion A(ii). Mr Gerzina told him that he did not perceive the events as particularly traumatic at the time. He told Dr Timney that he felt very frustrated in that he wanted to get out among the action and be part of it and be of more use. 41. We find that during his service Mr Gerzina saw himself as a skilled career serviceman and felt he could be more use than he was being in the workshop. At that time he accepted that the traumatic events he described to us, though unpleasant and upsetting, were part of the experience of service in the Armed Forces. They did not evoke a response which involved "intense fear, helplessness, or horror". We find that diagnostic criterion A(ii) is not satisfied. Thus we accept the opinions of Dr Seabridge and Dr Timney, in preference to that of Dr Cooper, and find that Mr Gerzina does not suffer from PTSD." 11 We agree with the submission of senior counsel for the respondent that the interpretation of the criteria (A)(2) in DSM-IV in this case did not raise a question of law. There was before the Tribunal evidence from appropriately qualified medical specialists, both of whom used DSM-IV as the appropriate framework for making a diagnosis. No other framework or criterion was suggested. It was in this setting that the Tribunal had to reach a conclusion about the question of the appellant's diagnosis. This was a question of fact. 12 In par 11 of its reasons, when the Tribunal said that it "must" consider the evidence using the criterion in DSM-IV, we do not think the Tribunal transposed what was a factual criterion into some legal norm. Immediately prior to par 11 the Tribunal had referred to the decision in Benjamin v Repatriation Commission [2001] FCA 1879 in which the Full Court explained that although the Statements of Principle ("SoPs") must be used in determining whether or not a disease is war-caused, they are not relevant to the issue of diagnosis of a claimed condition. 13 In Benjamin the Full Court pointed out (at [41]) that although the relevant SoP condition was in the same terms as DSM-IV it was nevertheless impermissible to use the SoP to determine the question of diagnosis. However, because of the similarity of the definitions in the SoP on the one hand and DSM-IV on the other, the error was of no practical consequence. In that context, therefore, when the Tribunal said that it "must" use DSM-IV it was simply following the Full Court and looking at DSM-IV rather than the SoP. 14 In reaching its conclusion about the appellant's entitlement the Tribunal preferred one medical witness over another and in the course of doing so gave a particular meaning to a document – DSM-IV – which is not, and was not treated as, a statutory or quasi-statutory instrument. This was purely a question of fact. The same point was made by Spigelman CJ (with whom Mason P and Meagher JA agreed) in State of New South Wales v Seedsman [2000] NSWCA 119 at [114] in the context of a common law claim: "DSM-IV is not a statutory formulation which a court must construe and decide whether the requirements are satisfied. It is, as its title suggests, a 'diagnostic manual' for clinical use. It contains within itself a number of explicit warnings against the kind of use to which the Appellant sought to put it and which emphasise that the criteria are only guidelines for professional judgment." 15 We do not think that we need, or should, consider whether the particular construction of DSM-IV criterion (A)(2) the Tribunal took was the appropriate one. In the circumstances of the present case, this was purely a question of fact. Our jurisdiction is confined to dealing with questions of law. 16 The appeal must be dismissed. Since, as we have already noted, the successful point was not taken before the learned Federal Magistrate there will be no order as to costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black, Justice Heerey and Justice Bennett. Associate: Dated: 11 May 2004 Counsel for the Applicant: G Moore Solicitor for the Applicant: P Liefman Counsel for the Respondent: P Hanks QC and J Macdonnell Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 3 May 2004 Date of Judgment: 3 May 2004