Adam and Repatriation Commission

[2007] AATA 1084

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1084

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/47

VETERANS' APPEALS DIVISION		)
Re		Neville Adam

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal Ms N Bell, Senior Member
Dr M Thorpe, Member

Date26 February 2007  

PlaceSydney

Decision The decision under review is affirmed

….............................................

Ms N Bell

Senior Member

DISABILITY PENSION – operational service – generalised anxiety disorder – impotence – severe psychosocial stressors – whether disease is the subject of the statement of principles – the reasonableness of this hypothesis – no psychiatric illness found – the decision under review is affirmed

Veterans Entitlements Act 1986

Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Budworth (2001) 116 FCR 200

REASONS FOR DECISION

Ms N Bell, Senior Member
Dr M Thorpe, Member        

1.      Mr Adam, now 82, served in the Royal Australian Air Force from 23 February 1943 to 15 October 1945.  There is no dispute that his service was operational service within the meaning of the Veterans Entitlements Act 1986 (the Act).

2.      In his claim for disability pension Mr Adam contends that he suffers from generalised anxiety disorder and impotence.  He says his anxiety disorder arose out of his experience of air attacks and air raids on Wakde Island and Noemfoor Island in 1944, which, he argues, amount to severe psychosocial stressors within the meaning of the Statement of Principles (SoPs) concerning generalised anxiety disorder.  Mr Adam says his impotence is a consequence of his generalised anxiety disorder and is related to his service on that basis.

3.      The Repatriation Commission contends that Mr Adam does not suffer from any psychiatric disease, and, even if he does, he did not experience a severe psychosocial stressor during his service.  The Commission contends that neither generalised anxiety disorder, if it exists, nor, as a consequence, impotence are service related.

issues

4.      The first issue for us to determine is whether Mr Adam suffers from a disease, and in particular, a psychiatric disease.  If so, we must then determine whether that disease is the subject of any of the SoPs determined by the Repatriation Medical Authority and which, when conformed to, establish the reasonableness of a hypothesis.  It will then remain for us to consider whether there is any basis on which it can be established, beyond reasonable doubt, that the hypothesis is not reasonable.

does mr adam suffer from a psychiatric disease?

5.      Mr Adam said that when he returned from service he felt “somewhat tense” and found it more difficult to concentrate than when he enlisted.   He said his attitude was to just get on with life.   He said he also had some difficulty getting to sleep and that at some stage every week he would just lie there for two to three hours wanting to go to sleep.  This continued, he said, until he raised it, in general conversation, with his general practitioner who prescribed Deptran.

6.      Mr Adam said he recalls being examined by a doctor for the AMP Society when he sought to purchase life insurance in 1946.  Mr Adam said the doctor told him, in conversation, that Mr Adam’s nerves were “not in a good state” and that Mr Adam should have the fact noted on his military records.  He does not recall any comment being made about the premium to be paid or about any condition being placed on the policy.

7.      Mr Adam agreed that he has had a successful career, rising in seniority to a Senior Executive position in which he was responsible for more than 400 people.  He said there were stresses associated with that work.

8.      In cross examination, Mr Adam said he does not have “any real problems in life” but said that does not mean he has no stress.  He agreed, however, that he is on an even keel emotionally.  He described himself as a person who mixes well with people and has a good circle of friends.  He described his role as President of a touring group, organising three or four day trips and extended five day tours per year.  He said he gets on well with his cousin and his cousin’s wife whom he sees once or twice per week.

9.      Mr Adam said he sees Dr Karl Koller, Psychiatrist, twice per year, the initial appointment having been arranged in 2005 by Mr Casey, an advocate from the RSL.

10.     Dr Koller, in his report dated 27 January 2005, said Mr Adam complained of anxious worry, occasional irritability, feeling tense, forgetfulness and poor concentration when reading, difficulty getting to sleep if he has something on his mind, and impotence which Mr Adam considers is due to his age.  On the basis of these symptoms, and on the prescription of Deptran by Mr Adam’s general practitioner, Dr Koller diagnosed generalised anxiety disorder.  He did so with no stated reference to the diagnostic criteria in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV).

11.     Dr Anthony Hordern, Psychiatrist, provided a report and gave oral evidence.  In his report he described Mr Adam as “not obviously tense or depressed”.  Dr Hordern reported that Mr Adam said he had “fought his feelings of anxiety that had started when he served in the RAAF and which had persisted after his discharge from Service”.  Mr Adam had recounted to Dr Hordern the incident with the AMP insurance doctor.  Dr Hordern also reported that Mr Adam said he had controlled his “tension, anxiety and depression” by applying himself to his demanding work.  He described Mr Adam’s interests over the years, and particularly when his physical health was better, as including golf, tennis, bowls, reading historical works and outdoor activities generally.  He noted he has regular contact with his cousin and that cousin’s family, eats out once or twice per week and is President of the touring group.  He also reported Mr Adam said he had not been moody, was on an even keel emotionally, had lots of drive and had been a good mixer.

12.     In spite of this history, Dr Hordern diagnosed Mr Adam as suffering from chronic generalised anxiety disorder and made no reference to the diagnostic criteria in his report.

13.     In oral evidence, Dr Hordern said he had made his diagnosis “on the basis of 50 years as a psychiatrist”.  He said he was satisfied the condition he diagnosed had its clinical onset in 1944.  However, in cross examination he also agreed that being apprehensive and worried does not amount to satisfaction of the diagnostic criteria for generalised anxiety disorder.  He said he did not have the diagnostic criteria with him when he made his diagnosis.  He agreed that, in the “Emotional and Behavioural Medical Impairment Worksheet” he had completed and attached to his report, he had assessed Mr Adam as experiencing no or minimal functional effects from the anxiety disorder he had diagnosed.

14.     Dr Patrick Morris, Psychiatrist, provided two reports and gave oral evidence.   Dr Morris reported similar activities and involvements as did Dr Hordern and also noted that Mr Adam is a member of the Masonic and RSL clubs.  He said Mr Adam told him he is sleeping well, now that he is taking Deptran, and his appetite is good. He was more worried when he was working and he does not worry much now.  Dr Morris said Mr Adam told him he has no major problems in his life and he did not report any irritability, muscle tension or problems with fatigue or concentration.  Dr Morris described Mr Adam’s mood as normal and said his affect was appropriate and reactive.

15.     Dr Morris concluded that Mr Adams has no psychiatric diagnosis according to DSM-IV criteria or the definitions of psychiatric conditions in the relevant SoPs.  He said he reached that opinion on the basis that Mr Adam gave no history of either depressive or anxiety symptoms that would warrant a psychiatric diagnosis.  He said that, in particular, he did not complain of excessive anxiety and worry or find it difficult to control such worry.  Nor did he complain of associated symptoms of restlessness, being easily fatigued, difficulty concentrating, irritability, muscle tension or sleep disturbance.

16.     On the basis of Mr Adam’s evidence and that of the medical witnesses, we find that Mr Adam has suffered from difficulty getting to sleep but taking Deptran has eased this problem.  We also find that he has some worry and stress but it is less than it was before he ceased work and it does not interfere with his ability to socialise, maintain friendships and family relationships and act as President of a touring group.  There is no evidence of him experiencing excessive worry and any worry he has does not interfere with his functioning.

17.     We note the definition of “disease” in section 5D of the Act as:

“any physical or mental ailment ,disorder, defect or morbid condition (whether of sudden onset or gradual development;”

18.     The words “disorder, defect or morbid condition” denote substantial departure from the normal structure and functioning of the human body or mind.  The word “ailment”, it could be argued, may denote something less.  The Macquarie Dictionary defines “ailment” as:

“n. a morbid affection of the body or mind; indisposition: a slight ailment”.

19.     The word “morbid” is, in turn, defined as:

“adj. 1. suggesting an unhealthy mental state; unwholesomely gloomy, sensitive, extreme, etc. 2. affected by, proceeding from, or characteristic of disease. 3. pertaining to diseased parts: morbid anatomy.”

20.     The Federal Court has held that the questions as to whether an Applicant is suffering from a disease and the diagnosis of that disease are to be determined to the Commission’s or the Tribunal’s reasonable satisfaction, that is, in accordance with section 120(4) of the Act (Repatriation Commission v Gosewinckel[1]; Repatriation Commission v Cooke[2]; Repatriation Commission v Budworth[3].

[1] (1999) 59 ALD 690

[2] (1998) 90 FCR 307

[3] (2001) 116 FCR 200

21.     We note also the decision of the Federal Court in Repatriation Commission v Gosewinckel (supra) where Weinberg J said at 703:

“It is clear that the AAT could not accept Dr Wahr’s opinion of generalised anxiety disorder without regard to the description of that disorder as set out in the SoP.  As the Full Court held in Sheldon v Repatriation Commission (1999) 85 FCR 587 at [6] the SoP requires that the disease in question be ‘manifested by certain behaviour which is symptomatic of disease, not merely at any level of behaviour of that kind, whether or not it is symptomatic of the disease’.”

22.     The Statement of Principles No.1 of 2000 concerning generalised anxiety disorder and anxiety disorder due to a general medical condition defines generalised anxiety disorder as:

“A. Excessive anxiety and worry (apprehensive expectation), which occur on more days than not for a continuous period of at least six months, about a number of events or activities; and

B. The person finds it difficult to control the worry; and

C. The anxiety and worry are associated with three or more of the following six symptoms, with at least some symptoms present for more days than not during the previous six month period:

(1). Restlessness or feeling keyed up or on edge

(2). Being easily fatigued

(3). Difficulty concentrating or mind going blank

(4). Irritability

(5). Muscle tension

(6). Difficulty falling or staying asleep, or restless unsatisfying sleep; and

D. The focus of the anxiety and worry is not confined to features of any other Axis I disorder; and

E. The anxiety, worry, or physical symptoms (as described in C. above) cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and

F. The anxiety and worry are not due to the direct physiological effects of a substance or a general medical condition and do not occur exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder.”

23.     In relation to the diagnostic criteria in paragraph E above, there is no evidence that Mr Adam’s worry causes clinically significant distress or impairment in social, occupational, or other important areas of his functioning.   We were asked by Mr Winship to infer that, because Mr Adam has never married, he has been prevented by his worry (or his anxiety) from forming a lasting relationship.  No evidence was led from Mr Adam about this, none of the medical witnesses gave evidence on or of it and there is no basis on which we could make such an inference.

24.     We also turned our minds to the question of whether Mr Adam may suffer from a psychiatric disease other than anxiety disorder.  We considered the diagnostic criteria in SoP No. 57 of 1996 concerning adjustment disorder, SoP No.5 of 1999 concerning acute stress disorder, SoP No.128 of 1996 concerning bipolar disorder, SoP No.58 of 1998 concerning depressive disorder, SoP No.9 of 1999 concerning panic disorder, SoP No.143 of 1995 concerning personality disorder and SoP No.132 of 1996 concerning schizophrenia.  We find that Mr Adam’s few symptoms do not accord with the diagnostic criteria in any of these SoPs.  We also note that these SoPs are either derived from, or reproduce, the diagnostic criteria set out in the DSM IV.

25.     We find persuasive the evidence of Dr Morris and his opinion that Mr Adam does not suffer from a psychiatric illness.  On the basis of the evidence before us we cannot be reasonably satisfied that Mr Adam suffers from a psychiatric disease.

26.     It follows that an inquiry into war causation is unnecessary.

27.     As to Mr Adam’s claimed impotence, even if we were reasonably satisfied that he suffers from that condition, we note that he relies on factor 5a of SoP No.98 of 1996: “suffering from a specified psychiatric condition at the time of the clinical onset of impotence” (or its later incarnation).  Given our conclusion in relation to claimed anxiety disorder, and any other psychiatric condition, war causation could not be established on this basis.  There is no other factor in the SoP that would apply to Mr Adam’s circumstances.

decision

28.     The decision under review is affirmed.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member and Dr M Thorpe, Member.

Signed ...... [ Sanjiv Shah ]……
  Associate

Dates of Hearing  12 January 2007
Date of Decision  26 February 2007

Solicitor for the Applicant          Brian Winship
Solicitor for the Respondent    Tim O'Reilly