FEDERAL COURT OF AUSTRALIA Benjamin v Repatriation Commission [2001] FCA 522 VETERANS' AFFAIRS – appeal from Administrative Appeals Tribunal – claim for disability pension – determination whether veteran contracted disease as claimed – relevance of diagnostic criteria in definition of disease in Statement of Principles – standard of proof – whether obliged to determine other conditions not the subject of the pension claim were war-caused. Veterans' Entitlements Act 1986 (Cth) ss 120(1), (3) and (4), s120A(4) Repatriation Commission v Cooke (1998) 90 FCR 307 applied. DAVID HEDLEY JEFFERY BENJAMIN v REPATRIATION COMMISSION N 963 OF 2000 WHITLAM J SYDNEY 30 MAY 2001 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 963 OF 2000 On appeal from the Veterans' Appeals Division of the Administrative Appeals Tribunal BETWEEN: DAVID HEDLEY JEFFREY BENJAMIN APPLICANT AND: REPATRIATION COMMISSION RESPONDENT JUDGE: WHITLAM J DATE OF ORDER: 30 MAY 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 963 OF 2000 On appeal from the Veterans' Appeals Division of the Administrative Appeals Tribunal BETWEEN: DAVID HEDLEY JEFFREY BENJAMIN APPLICANT AND: REPATRIATION COMMISSION RESPONDENT JUDGE: WHITLAM J DATE: 30 MAY 2001 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") with respect to a claim made by the applicant for a pension under Part II of the Veterans' Entitlements Act 1986 ("the Act"). The alleged errors of law concern two aspects of the way in which the Tribunal determined the question whether the applicant had contracted a disease for the purposes of his claim. They arise out of the use made by the Tribunal of a Statement of Principles determined under s 196B(2) of the Act. 2 The applicant was born on 13 June 1940. He served in the Navy from 1957 to 1969 and rendered several periods of "operational service" in Vietnam. 3 On 19 September 1997 the relevant claim was lodged with the Department of Veterans' Affairs. In the claim form the applicant described his disability as post traumatic stress disorder ("PSTD"). The form was accompanied by a diagnosis of such condition provided by his local GP, Dr KG Dunstan. At this stage the applicant had not consulted a psychiatrist. However, Dr Dunstan referred him to a psychiatrist, Dr Karen Reinhardt, whom he saw for the first time on 27 October 1997. Since that time the applicant has evidently remained under her care. 4 Dr Reinhardt diagnosed the applicant as suffering from what she described as "Chronic Post Traumatic Stress Disorder and Alcohol Dependence". On 26 March 1998 a delegate of the respondent ("the Commission") determined that his PTSD and alcohol dependence were not war-caused and refused his claim. 5 The applicant applied for a review of the delegate's decision by the Veterans' Review Board ("VRB"). The evidence before the VRB included two reports from Dr Reinhardt, in one of which she said that her patient continued to meet "DSM-IV criteria" for chronic PTSD and alcohol abuse. On 21 October 1998 the VRB found that the applicant's PTSD and alcohol dependence were not war-caused and affirmed the delegate's decision. In its reasons for decision, the VRB referred to a Statement of Principles concerning PTSD made by the Repatriation Medical Authority ("RMA") under s 196B(2) of the Act. This Statement of Principles ("the SoP") was set out in the Instrument No. 15 of 1994 as amended by Instrument No. 225 of 1995. 6 Clause 1 of the SoP set out three possible factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting PTSD with operational service rendered by a veteran. The present case is concerned with the factor set out in par 1(a), which was described as "experiencing a stressor prior to the clinical onset of post traumatic stress disorder". Clause 2 of the SoP provided that such a factor must be related to service rendered by the veteran. Definitions of the expressions "DSM-IV", "experiencing a stressor" and "post-traumatic stress disorder" were prescribed for the purposes of the SoP in cl 4. It may be noted (1) that "DSM-IV" was defined to mean the 4th edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, and (2) that the definitions of the two other expressions were expressed to be derived from DSM-IV. 7 On 17 December 1998 the applicant lodged an application for review with the Tribunal. The parties qualified several medical experts for the purposes of this review. The Commission had the applicant examined by Dr Robert D Lewin, a psychiatrist, and by Dr Mark Burns, an occupational physician. The applicant's solicitor also had him assessed by an occupational physician, Dr Martha Baz, and sought the opinion of another consultant psychiatrist, Dr Anthony Dinnen. Medical reports provided by these experts and by Dr Reinhardt contained conflicting diagnoses of the applicant's condition. 8 Dr Reinhardt maintained her opinion that the applicant suffered from chronic PTSD and alcohol dependence. Dr Lewin did not diagnose PTSD because, in his opinion, the applicant did not satisfy the criteria in DSM-IV. Dr Dinnen reported that, in his opinion, the applicant suffered from alcohol dependence. He thought that a factor set out in a Statement of Principles in respect of alcohol dependence was related to the applicant's operational service, and accordingly he assessed the applicant's incapacity resulting from that disease. Dr Dinnen did not diagnose PTSD. Yet Dr Baz assessed the incapacity resulting from PTSD with alcohol abuse. On the other hand, Dr Burns considered that the applicant did not have PTSD, but that he did have alcohol dependence. Dr Burns assessed the applicant's incapacity resulting from alcohol dependence. (Each of Dr Baz and Dr Burns also took into account a previously accepted disability for hearing loss.) The threshold issue thus raised for the Tribunal by these varying opinions was whether the applicant had the claimed conditions of PTSD and alcohol dependence. 9 The hearing before the Tribunal took place on 22 - 24 May 2000. All the specialist doctors gave oral evidence, and a transcript of their evidence is included in the appeal papers. In the course of his evidence Dr Lewin accepted that the applicant suffered from alcohol dependence. However, the correctness of Dr Reinhardt's diagnosis of PTSD remained a live issue, and in their evidence all three psychiatrists referred to the definition of that psychiatric condition in the SoP. 10 Clause 4 of the SoP contained the following definitions: " '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 people's physical integrity; and (b) the person's response to that event involved intense fear, helplessness or horror; 'post–traumatic stress disorder' means a psychiatric condition meeting the following description (derived from DSM-IV): (a) the person has been exposed to a traumatic event in which: (i) 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 (ii) the person's responseinvolved intense fear, helplessness, or horror; and (b) the traumatic event is persistently re-experienced in one or more of the following ways: (i) recurrent and intrusive distressing recollections of the event, including images, thoughts or perceptions; (ii) recurrent distressing dreams of the event; (iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations and dissociative flashback episodes including those that occur on awakening or when intoxicated); (iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; (v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and (c) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma) as indicated by three or more of the following: (i) efforts to avoid thoughts, feelings, or conversations associated with the trauma; (ii) efforts to avoid activities, places, or people that arouse recollections of the trauma; (iii) inability to recall an important aspect of the trauma; (iv) markedly diminished interest or participation in significant activities; (v) feeling of detachment or estrangement from others; (vi) restricted range of affect (eg, unable to have loving feelings); (vii) sense of a foreshortened future (eg, does not expect to have a career, marriage, children or a normal life span); and (d) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following: (i) difficulty falling or staying asleep; (ii) irritability or outbursts of anger; (iii) difficulty concentrating; (iv) hypervigilance; (v) exaggerated startle response; and (e) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d) is more than one month; and (f) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning." 11 It will be observed that the criterion in par (a) of the definition of "post-traumatic stress disorder" was very similar to the definition of "experiencing a stressor". Further, that criterion required exposure to a traumatic event of a specified type. The applicant claimed to have been exposed to several such events during his service aboard an unarmed merchant vessel, MV Jeparit. In addition to his evidence about these alleged incidents, the so-called "T documents" included relevant information furnished by the Senior Navy Historical Officer at Navy Headquarters. The Tribunal also received evidence on this topic in the form of reports by a consulting historian, Brendan G O'Keefe (tendered by the applicant) and by Dr Jeffrey Grey, Associate Professor of History at the Australian Defence Force Academy (tendered by the Commission). 12 Dr Dinnen explained in his evidence-in-chief that the history he had taken during his consultation with the applicant did not cover the range of symptoms required to diagnose PTSD. He was content to accept Dr Reinhardt's opinion based on her extended contact with the applicant. However, Dr Dinnen did give evidence in chief, in cross-examination and in re-examination of his opinion on the question whether the applicant had been exposed to a traumatic event of the type specified in the SoP's definition of PTSD. He described such an event as a stressor. 13 In her evidence-in-chief Dr Reinhardt supported her diagnosis, as she had done in one of her earlier reports, by reference to the DSM-IV criteria for PTSD. She also expressed the opinion in cross-examination that the service incidents described by the applicant satisfied the traumatic event criterion in the SoP's definition of PTSD. Moreover, Dr Reinhardt thought that the applicant had all the symptoms of PTSD. 14 On the other hand, Dr Lewin firmly maintained his opinion that the applicant had never been exposed to a stressor sufficient to justify a diagnosis of PTSD. In his evidence-in-chief he confirmed this opinion by specific reference to the criterion in the SoP's definition requiring exposure to a traumatic event. Dr Lewin said that he also did not diagnose PTSD because the applicant's history "did not give the rich picture of a number of clinical features of the rest of that definition". In cross-examination, he was pressed to accept certain incidents described by the applicant as being stressors sufficient to meet the initial diagnostic criterion in the light of the treating psychiatrist's findings of "classical" symptoms of PTSD, but allowed only that he would entertain such an event "as a hypothesis as a clinician for practical purposes". Dr Lewin said that, if he were "clearly and unequivocally convinced of the rest of the history and there was no other reasonable explanation", then he would look at the possibility of treating a patient on the basis that he had PTSD. 15 The Tribunal gave its decision on 9 August 2000. It set aside the decision under review and substituted a decision in the following terms: "(a) psychoactive substance abuse is accepted as a war-caused condition; (b) post-traumatic stress disorder is rejected as a war caused condition; (c) the applicant is not entitled to special rate; and (d) the matter is remitted to the respondent to determine the applicant's general rate of pension as and from 19 June 1997." 16 In its reasons for decision the Tribunal began by describing at [3] the issues before it as "whether or not the applicant meets the relevant diagnostic criterion for PTSD and alcohol abuse or dependence; and if so whether or not there is a causal connection between the conditions and his war service". After referring to the history of the proceeding, the evidence and the parties' submissions, the Tribunal then stated its findings on what it called the "diagnoses". The Tribunal said: "32. The Tribunal is required to be reasonably satisfied that the diagnoses of PTSD and alcohol dependence are sustainable diagnoses. … Diagnosis is required to be assessed by reference to the SoP definition of a disease or condition…" (Emphasis supplied.) 17 Unsurprisingly, in view of Dr Lewin's testimony, the Tribunal regarded the applicant as alcohol dependent and found at [35] that this condition fitted the definition of psychoactive substance abuse or dependence in a Statement of Principles determined by the RMA on 8 September 1994. So far as the diagnosis of PTSD was concerned, the Tribunal said: "38. … Ultimately, it is a question of fact, as to whether the Tribunal is reasonably satisfied that the applicant experienced what could be considered to be a 'traumatic event' as per the SoP definition, and, if so, whether or not he experienced intense fear, helplessness or horror as a result. …" It then referred to the evidence of the three psychiatrists, of the applicant and of Dr Grey and Mr O'Keefe and concluded: "46. … the Tribunal does not consider, as a matter of fact, and is not reasonably satisfied that the events described to it by the applicant constitute 'traumatic events' as that term is to be understood by reference to SoP No. 15 of 1994. Whilst the events were stressful, the Tribunal does not consider that they were of a magnitude so as to be considered 'traumatic'. It does not agree that as a matter of law, the experiences the applicant faced can be said to be comparable with that of being physically assaulted as suggested by Dr Dinnen. Whilst it is respectful of his opinion, the Tribunal must consider the matter in light of the definition included in the SoP. 47. The Tribunal was also not reasonably satisfied that sub-paragraph (b) of the definition in the SoP could be met by the applicant. … Certainly, the Tribunal considers that sub-paragraphs (c), (d), (e) and (f) are satisfied, however failing sub-paragraphs (a) and (b), the Tribunal cannot be reasonably satisfied that the diagnosis of PTSD as required by the SoP is met and so finds. Accordingly, in respect of PTSD, it is not necessary to consider the hypothesis raised in relation to war service and the Tribunal so finds." (Emphasis supplied.) 18 Accordingly the Tribunal proceeded to consider only whether the material before it raised a reasonable hypothesis connecting the applicant's alcohol dependence with the circumstances of his operational service. It did so by reference to the first of the factors set out in the Statement of Principles concerning psychoactive substance abuse or dependence. The requirements of that factor having been found to be "met", the Tribunal said at [66] that it was "not satisfied beyond a reasonable doubt that the applicant's condition of psychoactive substance dependence is not war-caused". 19 Next, the Tribunal considered whether the special rate of pension was payable to the applicant under s 24 of the Act. It found at [71] that the applicant was not suffering a wage loss by reason of incapacity from his alcohol dependence "alone" and, accordingly, made paragraphs (c) and (d) of its decision. In the course of reaching that conclusion, the Tribunal said: "68. … It must be remembered that medico-legal assessments are not legal assessments, for that is the Tribunal's job. They are medical assessments done within the context of legal proceedings. Whilst the Tribunal has ultimately found that PTSD is not a war-caused condition in this case, that is more a matter of fact and law than medicine. 69. The difficulty for the Tribunal is that it cannot accept PTSD as a war-caused condition, as it does not satisfy the SoP. This is not to say that as a matter of clinical treatment, the applicant does not suffer from a psychiatric condition which affects his ability to work or continue working; and that from a clinical perspective, PTSD may be an appropriate label for such a condition. It means, that as a matter of law, the diagnosis of PTSD is not made out and the applicant does not fit the legally prescribed definition. The Tribunal does find however, that the applicant suffers from some psychiatric problems, and that these have affected his capacity to work, and indeed his ability to continue in the remunerative work he was undertaking. Such problems (however labelled) are not conditions accepted as being war-caused, as a matter of law. As a matter of law, there are clearly other factors, and other non-accepted disabilities impacting upon both incapacity for, and prevention from continuing work, and the Tribunal so finds. …" 20 The applicant appeals from that part of the Tribunal's decision which rejected PTSD as a war-caused condition. His notice of appeal states the questions of law raised by his appeal as follows: "(1) Having found that the Applicant did not suffer from [PTSD], as defined in the [SoP], did the Tribunal err by failing to determine whether he nevertheless had a psychiatric condition, and if so, whether it was pensionable? (2) Did the Tribunal err by making its determination, as to whether the Applicant had PTSD, on the balance of probabilities?" 21 In my view, it must be said at once that paragraph (b) of the Tribunal's decision and the final sentence in [68] of its reasons are infelicitously expressed. The Tribunal never at any time found the applicant to have suffered PTSD and thus it never considered whether such a condition was war-caused. 22 The applicant submits that the initial task when determining an incapacity claim such as the present one is to determine whether a disease exists. I do not understand the Commission to dispute that proposition. It is plainly correct: Repatriation Commission v Cooke (1998) 90 FCR 307 at 310, 312. The applicant submits that the Act does not set up a requirement that a claimed disease must be a disease which meets a disease definition in a Statement of Principles. He relies particularly on the statements in the Tribunal's reasons which I have highlighted in [16] and [17] above to demonstrate that in the present case the Tribunal limited its function to considering whether a disease existed as defined in the SoP. The applicant further submits that the Tribunal later erred when, having found at [69] that the applicant "suffered from some psychiatric problems", it failed to consider whether those problems comprised a war-caused disease. 23 The Commission accepts that ss 120(1) and (3) and 120A of the Act come into operation only after a disease has been found to exist, but says that in the present case the Tribunal merely used the definition of PTSD in the SoP as a guide to diagnosis. However, the Commission also drew my attention to the decision in Repatriation Commission v Gosewinckel (1999) 59 ALD 690, where Weinberg J held that the issue whether a veteran was suffering from a claimed disorder was to be determined by reference to the diagnostic criteria prescribed in a relevant Statement of Principles. 24 In Cooke the Full Court said (at 310) that s 120(1) and (3) of the Act assume the present existence of the relevant disease. This must, as the Full Court had earlier indicated (at 308), be a claimed disease. With respect, I do not agree with the views about the ratio in Cooke adopted in Budworth v Repatriation Commission [2001] FCA 317 and Meehan v Repatriation Commission [2001] FCA 597, which do not refer to the "narrow issue of law" so identified by the Full Court. In my opinion, it should be borne in mind that a claim for a pension under Part II of the Act is required by s 14(5) to be made in respect of incapacity from "a particular injury or disease". That means for present purposes that it is first necessary to determine whether the veteran contracted the disease "as claimed". That important qualification is acknowledged in the language of s 19(7)(a) of the Act. 25 Strictly speaking, I do not think it is necessary to consider whether a relevant Statement of Principles is in force until a determination is required under s 120(1) and (3). Section 120A(4) suggests that is so because only at that stage will "the kind of disease contracted" by the veteran have been determined. It is plain enough from the Tribunal's reasons that, in determining whether the applicant suffered PTSD, it regarded itself as bound to apply the definition in the SoP. In that respect, in my opinion, the Tribunal erred in its initial task. Its approach could hardly be thought to be unexpected since it is obvious that the cases of both parties before the Tribunal were couched in terms of the SoP. Importantly however, such an error was, in my view, of no practical consequence whatsoever. All the psychiatrists gave evidence by reference to the requirements of the SoP or the DSM-IV diagnostic criteria for PTSD (which were also in evidence before the Tribunal). Exposure to a traumatic event was, on all the evidence before the Tribunal, the primary criterion required for diagnosis of PTSD. The severity, duration and proximity of such exposure are, according to the DSM-IV criteria, the most important factors affecting the likelihood of developing the disorder. In the present case the Tribunal found that the applicant never experienced such an event. 26 Here the disorder "claimed" by the applicant was PTSD. He did not claim to be suffering some other psychiatric problems and, no matter what the Tribunal said when assessing whether to grant the special rate of pension under s 24 of the Act in respect of his accepted condition, the Tribunal made no finding which obliged it then to determine whether such problems were war-caused. The comments of the Tribunal must be read in the context of what it said about the appropriate label for the treatment of the applicant's condition from a clinical perspective. They represent no more than a courteous acknowledgment of his treating psychiatrist's opinion and may have been prompted by Dr Lewin's evidence, to which I have already referred. In any event, the Tribunal is not at liberty to pluck conditions out of the air, even if it wished to do so. As I have mentioned, s 14(5) of the Act requires a claim to be in respect of "incapacity from a particular injury or disease". The significance of claims being in an approved form also appears from s 20. The importance of identifying with some degree of specificity the incapacity from which a veteran may be suffering is further reinforced by ss 14(2), 15(5), 19(7), 21 and 178 of the Act. The approved form of claim for the purposes of s 14 requires a doctor to provide a diagnosis for each disability. Here the applicant claimed incapacity from PTSD. The claim did not relate to some unspecified kind of psychiatric or mental disorder. 27 The finding that the applicant did not suffer from PTSD plainly involved the application by the Tribunal of the civil standard of proof prescribed by s 120(4) of the Act. However, since the Tribunal made that finding by reference to the definition of PTSD in the SoP, the applicant submits that the Tribunal was bound to apply the reverse criminal standard of proof under s 120(1) of the Act. That submission overlooks the fact that the Tribunal never had to consider a hypothesis under s 120(3) and was hence not obliged to form an opinion by reference to the SoP. 28 It is interesting to note that, had a statutory obligation to consider the SoP arisen, the relevant factor was "experiencing a stressor prior to the clinical onset of [PTSD]". The expression "clinical onset" is apt to refer in a temporal sense to the symptoms, not the traumatic event itself. Yet as I have earlier remarked, the SoP's definition of "experiencing a stressor" was practically identical with par (a) of its definition of PTSD, which included the traumatic event criterion. Had the Tribunal advanced to the hypothesis stage under s 120(3), the Tribunal would have had to have been satisfied beyond reasonable doubt that exposure to a traumatic event did not occur. It is possible, perhaps even highly likely, that it would have been so satisfied in the light of Dr Grey's reports undermining the assumptions upon which the opinions of Dr Reinhardt and Dr Dinnen were founded. I did wonder, nonetheless, about the fairness of the Tribunal making a finding at the initial stage upon the same question, namely, whether the applicant experienced a traumatic event, by the application of a standard of proof that is less generous from a veteran's standpoint. Ultimately I do not think it could make any difference because the Tribunal was not reasonably satisfied that the applicant re-experienced any event as required by the criterion in par (b) of the SoP's definition of the PTSD. (The Tribunal's satisfaction in respect of pars (c) and (d) of that definition could only have been in respect of symptoms not associated with an event, but its statement in respect of par (e) of the definition puzzles me.) 29 Although the applicant succeeded in identifying an error of law on the part of the Tribunal, he failed to make out either of his grounds of appeal. The appeal will be dismissed with costs. I certify that the preceding twenty nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam. Associate: Dated: 29 May 2001 Counsel for the applicant: M B Smith Solicitor for the applicant: Legal Aid Commission of New South Wales Counsel for the respondent: R M Henderson with L J Kemp Solicitor for the respondent: Australian Government Solicitor Date of hearing: 7 December 2000 Date of judgment: 30 May 2001