TGB partner Tim White writes about the increase of Post-Traumatic Stress Syndrome and psychological injuries in the Australian Defence Force. 

Why are there more claims? 

With the amount of operational duties undertaken by Australian defence force members in the last decade or so, it is not surprising that we are seeing a significant increase in compensation claims for psychological injury being submitted to the Department of Veterans Affairs (DVA).  40,000 Australian soldiers have reportedly served in Afghanistan or Iraq, while some studies indicate that about 30% of US veterans return from the Middle East suffering PTSD or another psychological injury. 

Two of the more common psychological conditions claimed are Post-Traumatic Stress Disorder (PTSD) and major depression.  Both of these are significant illnesses that have a considerable impact on a person’s ability to function from day-to-day and also maintain any fulltime employment. 

What are the statistics?

According to the DVA, there are currently in the order of 340,000 veterans receiving entitlements under either the Veterans’ Entitlements Act (VEA), the Military Rehabilitation and Compensation Act (MRCA) or the Safety, Rehabilitation and Compensation Act (SRCA).

The total health and compensation expenditure annually for veterans covered by these three different pieces of legislation is approximately $12 billion. The physical and financial cost is huge. 

Over the many years that I have been helping Defence members and veterans with claims, I have seen first hand the increasing diagnosis of PTSD among veterans.  It takes an enormous toll on the person diagnosed with the condition, as well as their families and friends.  It can prevent an ADF member from being able to continue their military duties, resulting in a medical discharge from the defence force and being forced to rely on unemployment payments. 

What does the law say? 

There have been numerous court cases that have considered PTSD in a military context.  The Repatriation Medical Authority (RMA) in 2014 amended the Statement of Principles (SOP) for PTSD to reflect the more current medical opinion of the importance of an individual’s perception of an event or events in the occurrence of a stressful event. 

Under the MRCA legislation, for an ADF member to have the condition of PTSD accepted, there are relevant factors that the person must fulfil, as set out in the SOP for PTSD.  The ADF member must experience either a category 1A or a category 1B stressor before the clinical onset of PTSD.  A category 1A stressor involves the experience of a life threatening event while a category B stressor involves witnessing another person being critically injured or killed, or viewing atrocities inflicted to another person. 

However, the significant amendment that occurred to the PTSD SOP in 2014 is as follows: 

1. “Having a perception of threat and/or harm to integrity of the self as a consequence of being in what: 

i. The individual concerned, and

ii. a reasonable person in the circumstances of that individual would have;

considered to be any or all of a threatening, hostile, hazardous and/or menacing situation and/or environment before the clinical onset of PTSD. 

The significant change to is the addition of the words “having a perception”. Rather than the stressor being viewed simply from an objective and rational perspective, this amendment allows for the perception of the individual concerned to be taken into account in assessing the severity of the stressor.  So a subjective assessment of the stressor can now occur. 

The key cases 

This amendment has taken some time to occur and in part can be attributable to a case that I successfully pursued for a Navy veteran, Repatriation Commission v Stoddart [2003] FCAFC 300.  In this matter the condition of PTSD had been rejected as a consequence of the DVA not accepting that the stressor or stressors that the veteran had been exposed to were significant enough to have caused his PTSD condition.  The Full Court in this decision addressed the importance of the subjective element when considering a stressor. The veteran was successful, and the Court considered in detail the importance of taking into account the subjective aspect and the individual’s perspective of the events that occurred, when assessing the seriousness or the nature of the relevant stressor. 

The Full Court agreed with the following summary: 

“It is consistent with the provisions that the SOPs should be read as meaning that a claimant experiences a severe stressor if that person experiences, witnesses or is confronted with an event or events which that person perceived as a threat of death or serious injury or to physical integrity, and which with that person’s knowledge and in that person’s experience could reasonably be so perceived.  In my judgement the language of the definition of experiencing a stressor caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury or threat of physical integrity, if the event or events which are set to constitute the threat, judged objectively from the point of view a reasonable person in the position of and with a knowledge of the person experiencing those events, are capable and did convey (ie are subjectively experienced) the risk of death or serious injury or to physical integrity.” 

Importantly this case acknowledged that the subjective experience of an individual must be taken into account when determining if a relevant event or stressor constitutes a category 1B or category 1A stressor.  So an ADF member’s perception of the event or events that have occurred is vital when considering the severity of any relevant stressor. 

Subsequent decisions of the Court have accepted this landmark decision of Stoddart. 

Some of the further important decisions that have gone onto consider Stoddart include :

1. Skinner v Repatriation Commission [2013] AATA 751;

2. Repatriation Commission v Mayfield [2008] FMCA 1103;

3. Repatriation Commission v Norton [2008] FCA 1132;

4. Demczuk and Repatriation Commission [2005] AATA 1012 

There are many other decisions that have considered claims for PTSD, but the abovementioned primarily deal with this issue of the person’s perception of a stressor and how that is to be taken into account when assessing a claim for PTSD. 

Summary 

In closing, claims for psychological conditions arising from military service are certainly on the rise. Indeed I fear that they will continue to rise substantially over the next decade or so following the conflicts of Iraq and Afghanistan. Important considerations must be made by the DVA when considering and assessing these claims for such significant psychological conditions. An understanding of the environment in which these events occur and the perception of the member’s experience and reaction to the stressor must be taken into account when the DVA assesses whether or not an event is a severe stressor in accordance with the relevant SOP for PTSD.  These claims are complex and legal advice should be sought, particularly if a claim for such a condition is denied. 

Tim White is a Partner at Tindall Gask Bentley Lawyers, specialising in military compensation claims. For an initial discussion about your matter, call him or register online.