The Court Steps In
Even when the decision makers do all the right investigations, and the AAT delivers a realistic decision after looking at the big picture, the Federal Court can pick out one specific piece of the decision, and demand that future claims be determined in a manner that defies reason.
Such was the 2003 decision in the case of Stoddart. You will recall that the definition of a “severe stressor” refers to “actual or threat of death or serious injury”. Mr Stoddart had been a young sailor who made five short voyages while attached to the F.E.S.R. You will also recall that this particular service was noteworthy in that no danger was present whatsoever. Nevertheless, he told the Tribunal that, when he had to work in the bowels of the ship below the waterline, particularly when “action stations” were called, he was terrified that they might be hit by enemy fire, and he would be killed. In fact, so terrified was he, that whenever he got to port, his only recourse was to hit the grog. Whether any reasonable person would have formed the same view as to the danger of the situation, especially after surviving the first action station, was not examined by the Tribunal. There was no objective threat to life or limb; end of story.
Wrong, said the judge. A threat is a threat if you honestly believe you are in danger, even if you are mistaken. After all, if a person put a gun to your head and threatened to shoot, you would be rightly terrified out of your mind. Even if the gun were not loaded, or were only a replica, provided you were ignorant of the fact, it would still be a threat.
Viewed in that light, it makes perfect sense. But the fact remains, Stoddart’s own case was ludicrous. Without any concern for the outcome of future claims, the judge had broken the door wide open for any number of bogus claims. Provided a person could say, with some degree of plausibility, “I honestly believed I was in grave danger,” he would be in line for a pension.
You will remember that, not only must there have been an event involving actual or threat of death or serious injury, but the veteran must have “experienced, witnessed, or [been] confronted with” it. Close on the heels of Stoddart came the that of Woodward, which addressed the issue of confrontation. Mr Woodward had been a clerk in Vietnam. He had never faced the enemy, but he did have to process the forms concerning the deaths of those who did, and he was required to pack the belongings of one of the victims, and view photos of the deceased’s wife and daughter in his tent.
The Commission might have explained that this was all very trivial, but instead it argued that the victim had not been a relative or close friend. The Full Court pointed out that nothing in the definition required such an interpretation. True enough. But anyone can see that, in Woodward’s case, the decision was ludicrous. PTSD was originally conceived as a reaction to events well outside the normal range of human experience. Now, virtual everybody can be a victim, because all of us are “confronted” with death at some stage. Or have you never been to a funeral?
Veterans’ lawyers frequently try to get read into these two decisions more than is actually there. Often overlooked was the fact that neither decision dealt with the question of how severe a stressor had to be. It was not until 2004 that this was tackled, in the case of White, which essentially ruled that the examples provided by the SoPs in the definitions of “severe (psychosocial) stressor” are there for a purpose. Anything which counts as a severe (psychosocial) stressor must be at least as severe as the examples. This put a brake on some of the most extreme claims, but not all. With Stoddart and Woodward, the Federal Court handed live ammunition to every phony with an anxiety and/or drinking problem. And, the irony is, everyone knows it. To invoke either of those two decisions is a virtual admission that your “stressor” is very, very weak, and you are trying to get in on a technicality. Nobody who really was involved in battle, or in any other situation of extreme danger, ever has to refer to them.
Just before Christmas 2007, the RMA issued a new SoP, replacing a “severe stressor” with “category 1A” and 1B stressors”. These are defined as one of the following events:
1A: (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.1B: (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 or 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.
Finally, after all the symptom coaching, bogus psychiatric reports, and unrealistic legal decisions, there is one additional group who really are ripping off the system: the Liars.
Heaven only knows how many there were, and how many got away with it in the past. The tendency was to always take the veteran’s word for it. Most of what they said sounded reasonable and, anyway, there was no suggestion that it would be possible to check up on it. Then, about the middle of the 1990s, things began to change. It started when the Veterans' Review Board noticed that they were hearing accounts of “stressors” which had not been put to the Department in the first instance, and many of them had the ring of untruth about them. The Board therefore directed the Department to obtain an historian’s report on the allegations.
Not everything that happens in wartime ends up in the written records, but enough is present to definitely rule out some accounts. The Department was taken by surprise by the instructions, but it persevered, and what it turned up was such a vast web of duplicity that, within a couple of years, virtually everybody not known to have been a front line soldier was having his story double checked. Pretty soon, the Department had on contract a whole team of investigators, former officers in the armed forces, who could not only access the unit diaries, ships’ logs, and other records held by the Australian War Memorial, but also contact other members of the unit or ship who were in a position to know. The team is thoroughly hated by the ex-service community, but the facts they have turned up have been invaluable.
At its simplest, a veteran attends a psychiatrist and gives a highly graphic account of his service, and the psychiatrist laps it up. When an historian casts doubts on it, he comes back with a much watered down version of events. No, he wasn’t actually present when the helicopter crashed; he heard about it the next day. He heard gunfire one night, but he was a long way off. He didn’t personally attend to injured comrades; he visited them in hospital after they had all been properly bandaged and taken care of. And so on.
The demonstrably false stories are mostly, I am convinced, based on some specific incident, mixed with a certain degree of wartime rumour and innuendo, then exaggerated and elaborated to such an extent that the genuine details are impossible to recognize. But there is usually a grain of truth buried somewhere at the bottom. The reason I say this is that, if they had been making it up from scratch, they would be expected to do a better job.
Nevertheless, many of the accounts presented to psychiatrists definitely have been cut from whole cloth. Here a brief selection of some which come to mind:
- A Second War veteran described being involved in an ambush with Japanese troops in New Guinea on the occasion when Ted Kenna won his Victoria Cross. However, his military record revealed that he did not arrive in New Guinea until two weeks before the end of the war, no interaction with the Japanese occurred, and although Ted Kenna's action would have been much talked about at the time, it happened some time before he arrived. (I mention this case to demonstrate that it is not just veterans of later wars who bend the truth. However, it is rarely possible to follow up allegations made about World War II incidents.)
- Another soldier spent just three months in Vietnam. “If he had nominated just one good stressor, I would have accepted him,” said the Claims Assessor. However, he described more action in those three months than Indiana Jones experienced in three films, so the researchers were called in. His Commanding Officer was quoted as saying, “It’s the biggest work of fiction I’ve ever heard.”
- According to one sailor, while his warship was cruising off Vietnam, he saw an enemy combatant aim a machine gun at the ship from a truck on the beach. He didn’t fire at the ship, but the sight caused him “intense fear, helplessness or horror”. This story, implausible at best, was easily disproved by the consideration of the draught of the vessel and the depth of the water; it could not have approached closer than five kilometres from the shore. What was infuriating about this claim, however, was that I still had to concede it. He also claimed to be suffering nightmares, flashbacks etc due to a fire on board which could be proved to have taken place. But I knew he was a liar.
- Another ship had to sail up the Mekong River during which time, according to one sailor, it was fired on from the shore. He heard the shots, and the sound of the machine gun rounds striking the hull. He was apparently the only one to do so, because the captain’s official report of the voyage read: “Although the passage was without incident, it was nevertheless interesting and quite scenic.”
- While a ship was in Vung Tau Harbour, a sampan sailed within 75 metres of it, and suddenly exploded. Since the vessel was on close alert for sabotage and attacks, one would think that such an incident would be noted and acted upon, but no report makes mention of it. Nevertheless, the same story has been told by several different veterans, all alleging different dates, and some of them have been successful, so the decision makers haven’t completely woken up to this furphy.
- At various stages, members of the R.A.A.F. were seconded for several months at a time to the great U.S. Air Force base at Ubon, in Thailand. This service was also originally regarded as non-operational, for the very good reason that Thailand was not a war zone, and no Australian flew missions into North Vietnam or occupied Laos. Once it was included, however, the claims started rolling in, because Ubon offered fine facilities for those who liked their beer to become alcoholics. The most dramatic event was the night a U.S. F4 Phantom exploded on takeoff. No Australian was involved in clearing out the charred bodies, but a number have had successful claims by alleging that they did. Others have claimed Viet Cong attacks, and ground missions into combat zones. Lies, all lies. In 1967 there arose a Ubon version of an urban legend about a Thai officer who came upon a sleeping sentry and promptly shot him. Most Australians who were in Ubon in 1967 have heard it, and five of them have claimed to have been present when it occurred. Curiously, they all gave different accounts of where, and under exactly what circumstances, it happened, but they were all apparently alone at the time, and mentioned it to no-one. But if any of you want to make use of such a story, beware! Unlike the exploding sampan legend, this is one lie both the Commission and the Tribunal are on to.
- My favourite is the sailor who missed his ship in Singapore, and spent the next two weeks travelling across Vietnam to rejoin it. On the way, he stayed with some American soldiers who, after drinking all night, invited him to come out on a “skirmish”. It turned out to be an absolutely horrifying expedition to collect arms and legs strewn around a recent battlefield. This implausible story was riddled with holes. Nevertheless, he may have gotten away with it, except for one thing. The same day he missed the boat, another sailor was put ashore on health grounds, and they rejoined the ship together, having travelled together. When he made up his story, it probably never occurred to him that the Department’s researcher would know about, let alone locate, the one man who could expose him.
Reading such stories, you may be inclined to fall into the trap most people in veterans’ administration fall into: losing a sense of perspective. Take the fourth example. If it took place as described, it would satisfy the definition of a “severe stressor”. It would certainly be very frightening. It would be understandable if he were badly shaken by the event. But, when all is said and done, it was, in fact, over and done with. Admittedly, he would have to return by the same route the next day, and he would be right to be anxious about that. But afterwards, it would be plain sailing home. He is not like a soldier who, having survived an enemy ambush, knows he will have to risk the same thing on the next patrol, and the next. Realistically, should we expect it to traumatise him for life?
The rationale of the whole veterans’ compensation industry says yes. The idea is to find one, and only one, episode which can be made to fit the definition of “severe stressor”, no matter how loosely, and you are home and hosed.
A friend of mine gave a speech about the worst day of her life, when she was robbed at gunpoint in the pharmacy she manages. The rest of the day was spent in the police station. The next day she came to work apparently unaffected, but at midday – the same time as the incident – she broke down into tears and accepted counselling. “I can tell you what the future holds for you,” I told her. “Twenty years from now, you will be a nervous wreck and an alcoholic, and be totally incapable of working. I know, because I have lots of clients in exactly the same situation.”
“Oh, no!” she scoffed, “you get over it pretty quickly.”
What They Get Away With
So, up to now you have read only about the outrageous claims being made. But what do they get away with? After all, you might assume, decision makers are not fools. Certainly, the Commission’s Delegates and the Board attempt to exercise common sense. The weak link is the Administrative Appeals Tribunal. Even here the position is unclear. Some members are more generous than others, so while one claim will be laughed out of court by one Tribunal, a similar one will be eagerly accepted by another. Also, even quite sensible Tribunal members have their off days. So we should not expect too much in the way of consistency, but the evidence is that the bar is set very low.
Below are just a few of the weak cases which have been accepted in recent years. When you read them, please remember what I said about putting things in perspective. These are just single episodes which have allegedly traumatised a person for life. All of these incidents were unpleasant, so please also remember that the test is not that the victim was apprehensive, scared, startled, shocked, disgusted, dismayed, or faced with existential issues about the human wastage of war. It is whether the event was so overwhelming that his coping mechanisms failed for all time.
- In 1970 a drunken soldier decided to celebrate Christmas by going to the sergeants’ mess and shooting three sergeants, two of them fatally. (The killer later had the temerity to claim his PTSD and depression as due to his imprisonment, but that is another story.) One soldier was in the latrine when the shots rang out, and hastened to the mess. No, it wasn’t his brief glimpse of the bodies that shattered his nerves and drove him to drink. It was the fact that a sergeant pointed his pistol at him and told him to go back to his tent, and reinforced the order by sticking the gun in his back.
- A diver in Vietnamese waters was suddenly startled when what he thought was a sea snake briefly darted at his mask.
- A sailor went ashore in Borneo and saw two human heads stuck on a pole, and immediately vomited. The Tribunal ruled that this was not a severe stressor. (The second time round, another Tribunal member refused to believe that it even happened.) However, when another sailor told of a British commando coming aboard with a severed human head in a bag, a more generous Tribunal member awarded him a pension. (And, as is often the case, the Tribunal did not include in its reasons for decisions the evidence for doubting it occurred on operational service.)
- Another sailor went on a bus trip with a group of soldiers in Vietnam. They were not attacked, but he was afraid they might be. That was good enough for the Tribunal.
- A soldier was driving through Vietnam when his vehicle got a flat tyre, and he had to stay behind and repair it in the dark.
- A cook in Malaya was assigned to guard duty a couple of times, and although the enemy never turned up, he was afraid they might, because he had heard stories about ambushes.
- An airman was barracked at Ubon close to the ammunition dump, and he was afraid of what might happen if it exploded.
- One night, a ship was anchored off the coast of Vietnam, with sentries every twenty feet on the look out for enemy swimmers. One of them saw something. Panic stricken, he blasted away at it. He blasted away again. Fortunately, it turned out to be only a sonar buoy, but the damage had been done. He now had PTSD and alcohol dependence.
- In Vung Tau harbour ships were considered to more secure. The weapons of the sentries were not loaded. This really worried one such sentry, so much so that he nearly jumped out of his skin when an officer tapped him on the shoulder. Now he has PTSD – and a pension.
- Finally, remember Mr M , at the start of Part 1, the young sailor who stood quaking on the beach, so nervous he could not speak coherently? The first Tribunal treated his appeal with the contempt it deserved. He then lodged a new claim, which went its course through the Delegate and the Board, and when it reached the Tribunal the second time, a normally sane member let it up.
One trusts that all these raiders of the public purse are very grateful to Justice Mansfield, who was responsible for the Stoddart decision.
Meanwhile, back in the real world, there are men who really did serve in the heat of battle, who faced the enemy close up, and looked death in the eye. Many of them have got back on with their lives. But others have never managed to get over it; they jump at shadows, and at night they wake up screaming. Many of them are on TPI pensions, because they can no longer cope with work, let alone the demons that haunt them. And what, pray tell, do they think of all these pathetic weaklings and cowards who are making themselves out to be just as victimised, and getting away with it?
Here are a few more questions you might reflect upon:
- It is clear that a great many psychiatrists diagnose PTSD on the flimsiest of grounds. So even if a man served in the front lines, and really did experience a “severe stressor” (or a “category 1A or 1B stressor”), how do we know that his diagnosis of PTSD is valid? Surely even combat troops can suffer from the same mental illnesses as the rest of us?
- With so many lies and distortions being uncovered, how many successful claims have been based on falsehoods which cannot be disproved? There are large gaps in the official records, so a cautious liar will allege the sort of thing which would not normally be recorded. (And, no, I do not intend to assist by explaining what such events might be.)
- Why do those members of the R.S.L., and other veterans’ organisations, who were themselves combat troops, continue to support the sort of claimants just described?
The answers, my friends, are blowing in the wind.
The whole issue is so confused by deceit, self-deception, and dubious psychiatric practices that it is impossible to resolve. Nevertheless, my overall impression, gained from long experience as both a Delegate and an Advocate, is that no more than half the successful psychiatric claims can be considered valid.
So what? you might ask. If pensions are granted to a lot of undeserving persons, isn’t that a reasonable price to pay, provided those broken and traumatised heroes get their deserts? The trouble is, we are not really helping the broken and traumatised heroes – as will be explained in the next chapter.
Addendum: I originally intended not to up-date this book with recent developments. However, I make an exception for the article by Dr Douglas McKenzie, for 30 years a member of the naval reserve, entitled "An holistic view of post-traumatic stress disorder" in pages 24- 26 of the Journal of Military and Veterans' Health (10 April 2010), in which he records typical instances of fraud and psychiatric credulity. In particular, he notes that whereas naval personnel have the lowest incidence of PTSD symptoms in the US, and the highest incidence in Australia.
The fact that the RAN contingent of the first Gulf War (16 Jan - 28 Feb 91) has over 20% of the personnel on mental disability pensions, mainly for PTSD, despite firing no weapons offensively, sustaining no battle damage and taking no battle casualties, is of serious concern.
