Ah Gee and Repatriation Commission
[2010] AATA 1008
•15 December 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 1008
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/4201
VETERANS' APPEALS DIVISION ) Re HAYDN AH GEE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member K S Levy RFD and
Dr G J Maynard, Brigadier (Rtd), MemberDate15 December 2010
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.............[Sgd].................................
Senior Member
CATCHWORDS
VETERANS AFFAIRS – veterans’ entitlements - claim for Generalised Anxiety Disorder arising from a previously accepted condition – claim for alcohol dependence arising from Generalised Anxiety Disorder - causation – decision under review affirmed
Veterans entitlements Act 1986 (Cth) ss 9, 70, 119, 120, 120A, 120B
Evidence Act 1995 (Cth) ss 55, 103, 106Bull v Repatriation Commission (2001) 66 ALD 271
Bushell and Repatriation Commission (1992) 175 CLR 408
East v Repatriation Commission (1987) 16 FCR 517
Hunter v Repatriation Commission (2010) FCA 145
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Mann and Repatriation Commission [2008] AATA 163
Nicholls v The Queen; Coates v The Queen (2005) 219 CLR 196
Parrotte and Repatriation Commission [2004] AATA 536
Re Ahrenfeld and Repatriation Commission (1992) 28 ALD 921
Re Lee and Repatriation Commission (1986) 11 ALD 56
Re Myors and Repatriation Commission (1998) 53 ALD 253
Re Norton and Repatriation Commission [2010] AATA 298
Re Robinson and Repatriation Commission (1998) 50 ALD 668
Re Sharkey and Repatriation Commission (1988) 15 ALD 782
Repatriation Commission v Bendy (1989) 18 ALD 144
Repatriation Commission v Cornelius (2002) 69 ALD 250
Repatriation Commission and Deledio (1998) 83 FCR 82
Repatriation Commission and Milenz [2007] FCA 50
Repatriation Commission v Warren [2008] FCFCA 64
Roncevich v Repatriation Commission (2005) 222 CLR 115Stoddart and Repatriation Commission (2003) FCA 334
REASONS FOR DECISION
15 December 2010 Dr K S Levy RFD, Senior Member Dr G J Maynard, Brigadier (Rtd), Member
INTRODUCTION
1. The applicant, Haydn Ah Gee, served in the Royal Australian Navy (“RAN”) from 10 July 1966 to 25 January 1974. In this period, he served for varying periods on HMAS Melbourne (a training ship), HMAS Sydney and HMAS Derwent (a destroyer). He also served at HMAS Melville in Darwin. In this period, he had operational service on HMAS Derwent in South Vietnamese waters from 10 February 1969 to 18 February 1969 (a nine day period); and had eligible defence service as prescribed by the Veterans’ Entitlements Act 1986 (“the Act”) for the period 7 December 1972 until his discharge on 25 January 1974.
2. Mr Ah Gee applied for recognition of the condition of ‘pleural plaques’ as being defence-caused. The Repatriation Commission granted this application with effect 27 February 2003. He subsequently sought to have recognised a disability for post-traumatic stress disorder and alcohol abuse. That claim was rejected by the Repatriation Commission on 23 November 2006 and on review was rejected by the Veterans’ Review Board (“VRB”) on 5 August 2008.
3.He now appeals that decision to this Tribunal.
4.As part of the original claim, Mr Ah Gee claimed:
(1)He was exposed to a stressor whilst on operational service and which resulted in a psychiatric condition; and
(2)He has developed a psychiatric condition of anxiety disorder because of his accepted condition of pleural plaques. He says the pleural plaques condition developed during his eligible defence service as a direct consequence of exposure to asbestos.
5. The first claim based on operational service has now been abandoned by Mr Ah Gee. The appeal against the VRB decision is on the basis that he now has an anxiety condition diagnosed by a psychiatrist and says that this has developed because of his concern for his future health and his inability to get mortgage insurance or life insurance as a result. The applicant’s case is that this anxiety all stems from the accepted condition of pleural plaques.
ISSUES FOR DETERMINATION
The issues to be determined by the Tribunal are:
(1)Has the applicant a diagnosis of an anxiety disorder as arising expressly from his contraction of the accepted condition of pleural plaques?
(2)Has the applicant suffered alcohol abuse or alcohol dependence as a consequence of suffering an anxiety disorder? and
(3)If the answer to question 2 is yes, does the condition of alcohol abuse or alcohol dependence arise as a consequence of the accepted condition of pleural plaques?
EVIDENCE
The applicant
6. The applicant gave oral evidence of his being enlisted in the RAN and being posted to the engineering branch. He was initially employed as a young sailor in training and had duties to clean the engine room and boiler room. He said he was familiar with the presence of asbestos from that earliest time of his service. He then worked on HMAS Sydney and said that there was a “refit” during that period which involved him having to cut thousands of holes in asbestos. He also then undertook a stoker’s course for four months and also remained at the naval school undertaking extra duty for a further three months.
7. He then served on HMAS Derwent. This destroyer class ship undertook duties such as escorting HMAS Sydney into Vung Tau. At age 19, he recalled an incident which was the basis of his original claim for post-traumatic stress disorder and which is no longer being pursued. Mr Ah Gee explained that he had started drinking at age 16 and could go into hotels in uniform. As a result, he drank heavily even from that age.
8. He gave evidence that there was asbestos around many parts of naval vessels and gave evidence that he could see particles in the air at times.
9. He then spent a period of four months undertaking a refit of HMAS Melbourne. He was then posted to HMAS Melville in Darwin where he was employed maintaining patrol boats. Some days he had to work for eight hours a day whilst other days he had little or no productive work. He described working in the engine room and that there was often little ventilation where he worked and apart from ear plugs, he maintained that he was never given any protective equipment or clothing in this work.
10. He was discharged from the RAN in 1974 and undertook earthmoving work. He worked for the Sydney Water Board putting in pipes for sewer mains. His task involved driving a backhoe and said no maintenance was involved as the Board had its own maintenance staff. He then undertook work as a civil contractor for a couple of years driving a backhoe and again said that he undertook no maintenance work nor did he undertake demolition work. He referred to having his own business, where he had been digging up old pipes with the possibility of coming in contact with asbestos. He stated he had no knowledge that he had come into contact with asbestos at that stage of his employment. He subsequently did work in Sydney and later on the Gold Coast mainly doing work such as putting in house footings.
11. In relation to the condition of pleural plaques, he gave evidence that he saw a doctor before 2000 and said that he had been told that there could be a one in ten chance that his pleural plaques could get worse. He said he had known people in the Navy who had died and some had lost part of their lungs. He had concerns about his condition, particularly because he had a mortgage for $500,000 and he could not get mortgage insurance. He said he was concerned that if he died, his wife would not be able to service the debt. Mr Ah Gee told the Tribunal that his drinking then increased. He said he previously just had a beer after work but now he had full strength stubbies at night and also had a bottle of red wine.
12. In April 2009, he was also diagnosed with prostrate cancer. He felt his stress was also increased as a result of that diagnosis and again said there could be one in ten chance of it causing his death.
13. The applicant was cross-examined by Mr Hanson. He was referred to the Writeway Report about an incident which he previously claimed was a traumatic incident involving a sailor falling overboard. Mr Ah Gee told the Tribunal he was in the engine room at the time, that the incident would have lasted at least 30 minutes and he felt traumatised as a result. Mr Hanson pointed to the official report of proceedings of the ship where the incident was recorded which showed that a young sailor who was cleaning the upper deck lost his balance and fell overboard. The report shows that the sailor was immediately kept in sight, the ship reversed and the sailor recovered in approximately four minutes[1]. There was then a broadcast to the ship and it resumed its journey. Mr Ah Gee said that he recalled it being a 30 minute incident and that he did not hear a broadcast as he was in the engine room.
[1] Exhibit 9
14. Mr Hanson also referred the applicant to the second Writeway Report which states that RAN documents revealed that there was an awareness about the presence of asbestos and a danger of disturbing asbestos. There is reference to information from the Defence Asbestos Litigation Cell of the Department of Defence in 1971 and in particular that some discretion should be used about the use of protective equipment (paragraph 6). There is also reference to an instruction that respirators were to be used when working on maintenance of asbestos materials. The Writeway Report nevertheless acknowledges that protective measures such as undertaking refits at night when there were fewer naval personnel present did not remove the hazard or risk entirely[2]. Mr Ah Gee said in the early 1970s he could recall no discussion about protective equipment.
[2] Paragraphs 7 and 8 of exhibit 10
15. He was referred to the report of Dr Thompson of 12 October 2006. Dr Thompson is a consultant respiratory and sleep physician and he reported on Mr Ah Gee’s lung conditions. It was put to him by Mr Hanson that he had never been told that there was a decrease in lung function. Mr Ah Gee said he could not recall. He said that he just knew that he suffered when he got to the top of a flight of stairs. He reiterated that there was a one in ten chance that his condition could change. He was asked whether he had heard the term “benign” and responded that he had heard the term but it had not been explained to him.
16. He was referred to his marriage breakup in the 1990s but denied that caused anxiety for him as well. He was further referred to the report by Dr Law, a psychiatrist, in December 2000 where there is no reference to pleural plaques being discussed with Dr Law. The applicant said he was sent to Dr Law by Vietnam Veterans’ Association and was dismissive of the doctor’s opinion and said he did not go back to him because he was “not impressed”. He referred to Dr Law as a “Vietnamese refugee”.
17. In relation to his drinking, he told the Tribunal that after the prostate diagnosis, he did not work for nine or ten months. He also indicated after the diagnosis of pleural plaques he started drinking more, particularly on Friday nights. However, he stated that he never had a hangover and therefore was always capable of operating backhoe machinery. However, he qualified that by saying that there had been incidents where the level of his drinking meant that he did not go to work the next day.
MEDICAL EVIDENCE
Pleural Plaque Evidence
Sydney Imaging Group
18. A report dated 29 January 2001 was filed and was prepared by Dr P Hunter. In that report, it was noted there was a normal chest x-ray and concluded “soft mainly left-sided pleural plaque was confirmed. These changes may be asbestos related”.
Dr Moses
19. Dr John Moses is a consultant physician and provided a report dated 8 February 2001[3]. This report described a normal chest x-ray and evidence of asbestos exposure. Dr Moses stated clearly that this was “not asbestosis” and was “not compensable”.
Associate Professor David McKenzie
[3] Folio 24 of the T-documents
20. The report by Professor McKenzie is dated 13 February 2003[4]. Professor McKenzie is a consultant respiratory physician. He reported that Mr Ah Gee “has benign asbestos related pleural disease” but that there was no evidence of significant impairment, although he commented that there would have been sufficient exposure while Mr Ah Gee was in the navy to account for the radiography appearances in the evidence which he examined.
Dr Michael Thompson
[4] Folio’s 104-105 of the T-documents
21. Dr Thompson is a consultant respiratory and sleep physician and provided a report dated 12 October 2006[5]. He reported minor pleural plaques were present based on a repeat chest x-ray from the same date but said that this was not causing any significant functional impairment and was not associated with underlying interstitial disease.
[5] Folio’s 160-161 of the T-documents
Psychiatric Evidence
22. In addition to the medical evidence above, there is substantial psychiatric evidence also which is considered later under “Consideration”.
CONSIDERATION
23. The Tribunal has had a large volume of documentary evidence to consider as well as the oral evidence of Mr Ah Gee, Dr Ziukelis and Dr McColl. We have given detailed consideration to all of the evidence and to the relevant legal requirements.
24. We have also taken into account the submissions of the parties and note a lengthy period for receipt of the applicant’s final submissions.
25. The medical evidence of pleural plaques as well as the evidence of psychiatric conditions (alcohol abuse or alcohol dependence and Generalised Anxiety Disorder) extends back at least a decade. The condition of pleural plaques should be put into perspective at the outset as it is an accepted condition which Mr Ah Gee relies upon as a precursor to the current claims made for an anxiety condition and an alcohol related condition.
26. The medical evidence of pleural plaques reflects the presence of deposits in the applicant’s lungs and demonstrates that Mr Ah Gee has had contact with asbestos in the past. The evidence however shows that the deposits are “benign”[6] (Associate Professor McKenzie) or “minor”[7] (Dr Thompson). This is so despite its acceptance as a service related condition. The applicant stated he was told there was a one in ten chance of pleural plaque developing into a more serious condition but there is no evidence to date that the above probability has changed since the radiography of almost ten years ago. It is that primary condition which, it is said, is the origin of the anxiety condition and which, as a consequence, has aggravated the alcohol related problem.
[6] Folio 105 of the T-documents
[7] Folio 161 of the T-documents
What diagnosis should be accepted for the claimed conditions?
27. There are five psychiatrists’ reports over the last ten years (approximately) included in the written evidence. Those reports in chronological sequence reveal:
Dr Law
28. Dr Law is a psychiatrist who provided a report dated 18 December 2000[8]. There was no mention in that report that Mr Ah Gee had indicated any concern about pleural plaques to Dr Law. His conclusion in light of all of the medical history was that there was no evidence of any psychiatric disorder at that date.
Dr John Pickering
[8] Folio 15 of the T-documents
29. Dr Pickering, psychiatrist, presented a report dated 6 April 2004[9]. In relation to the applicant’s concern about asbestos, Dr Pickering reported that Mr Ah Gee had reasonable concerns about asbestos but “worry was not a major part of his life” and that “worry does not occupy a lot of his time”[10].
[9] Folio’s 26-33 of the T-documents
[10] Folio 27 of the T-documents
30. Following the extensive medical history taken, Dr Pickering diagnosed Mr Ah Gee as having Adult Attention Deficit and Hyperactivity Disorder (ADHD), a continuation of a condition he has had from childhood. Dr Pickering described poor concentration, little interest in reading and poor attention span. He went on to say that Mr Ah Gee is “easily annoyed, over-sensitive to criticism, impatient and short‑tempered”[11]. He diagnosed him as also having mild to moderate alcohol dependence[12]. In terms of causation, Dr Pickering said that the ADHD condition was constitutional but that was a “predisposing cause rather than a substantial cause”[13]. Dr Pickering considered Mr Ah Gee’s lifestyle revolved around drinking and that most of his drinking companions were people he had known in the Navy[14].
Dr Maxwell Katz
[11] Folio 28 of the T-documents
[12] Folio 30 of the T-documents
[13] Folio 31 of the T-documents
[14] Ibid
31. Dr Katz, psychiatrist, presented a report dated 2 June 2006. It is a six page report and he concluded that there was no evidence of a psychological or emotional disturbance which satisfied any criteria under the DSMIV. He reported therefore that there was no nervous condition in Mr Ah Gee which is attributable to his operational service or his eligible defence service from the RAN.
Dr Joseph Ziukelis
32. Dr Ziukelis is a psychiatrist and presented a report dated 17 March 2008[15]. Mr Ah Gee described to Dr Ziukelis a frightening experience where he was locked in the engine room of a ship “for a considerable period of time” while on operational service. This seems to refer to the incident which is no longer being pursued by the applicant. However, Dr Ziukelis noted that Mr Ah Gee told him he had once been diagnosed with ADHD but no treatment or review as ever undertaken. Dr Ziukelis noted Mr Ah Gee had a “disinclination to elaborate or pursue detail”[16], which had been also referred to by other psychiatrists.
[15] Folio’s 220 to 224.
[16] Folio 223 of the T-documents
33. Dr Ziukelis noted that Mr Ah Gee’s sensory, cognitive and intellectual functioning appeared unimpaired. He also observed that Mr Ah Gee’s “perception, thinking and experience had no abnormal or psychotic quality”[17]. However, unlike other psychiatrists, he noted that Mr Ah Gee worried constantly about his future and “believed the pleural plaques were not likely to remain benign and feared development of malignancy … he described an almost constant state of worry and preoccupation that some relief was obtained only by drinking”[18]. Dr Ziukelis diagnosed Mr Ah Gee as having Generalised Anxiety Disorder and alcohol dependence. He amplified this diagnosis in his subsequent report of 23 March 2009.
Dr Alison McColl
[17] Ibid
[18] Ibid
34. Dr McColl, psychiatrist, prescribed a report dated 22 September 2009. After her consultation, she reported that Mr Ah Gee was now totally unable to control his worries and occupied his day by going out of a morning, watching television in the afternoon and drinking at night and occasionally going to the RSL Club on a Friday night. She reported his mood as being laconic which was consistent with previous psychiatric reports. She thought the clinical onset was about 10 years earlier (i.e. about 1999) which was prior to the diagnosis of pleural plaques. She noted anxiety increased about 2005 when Mr Ah Gee and his wife decided to buy investment properties, against which their house was provided as security. She said the anxiety was then further aggravated when the applicant was diagnosed with prostate cancer in April 2009.
35. Her conclusion was that he had an anxiety disorder and alcohol dependence. Dr McColl opined that the alcohol dependence probably developed when Mr Ah Gee was a teenager. The general anxiety disorder may have been present at a sub clinical level for some years but became more pronounced in about 2005. She said his conditions now affect his motivation for work.
Evaluation of the evidence
36. There is a trend in this specialist evidence pointing to no clinical psychiatric condition for the period 2000 to 2008. Interestingly, a detailed diagnosis of attention deficit hyperactivity disorder is made by Dr Pickering in 2004. The applicant told Dr Ziukelis of that diagnosis but there was no review of treatment following that assessment. That is undoubtedly because Dr Pickering’s report was commissioned by the Department of Veterans’ Affairs and he was obviously not seeing Mr Ah Gee as a treating doctor but rather as an independent consultant psychiatrist who was advising the Department of Veterans’ Affairs. However, the last two reports – those by Dr Ziukelis on 17 March 2008 and the report by Dr McColl of 22 September 2009 did diagnose Generalised Anxiety Disorder and alcohol dependence.
37. The presentation of the applicant to the last two psychiatrists appear to be sufficient to establish both of these diagnoses. None of the other three psychiatrists in a period of almost nine years were satisfied that he had any psychiatric condition.
38. The report by Dr Pickering is illuminating as to the background to Mr Ah Gee’s psychological functioning. While there seems to be similarities in the description by these doctors of Mr Ah Gee’s personality and presentation, there were clearly some inconsistencies in presentation. It may also be as described by Dr McColl that there may have been Generalised Anxiety Disorder at a sub-clinical level but that it had only become pronounced “four year ago”[19], which coincides with the applicant and his wife purchasing investment properties and his later realisation that he could not get insurance.
[19] Exhibit 11
39. There are a variety of psychiatric opinions as to the diagnoses in this case. As will be apparent later, we consider that so many professionally trained and experienced psychiatrists would not come to such markedly different conclusions by chance. We are of the view that these variations are due to the variable “working hypothesis” which the applicant has presented to these doctors. In those circumstances specifically, the Tribunal must determine whether the diagnosed conditions satisfy the relevant Statement of Principles (“SoPs”). In Repatriation Commission v Warren[20] the majority of the Full Court considered the diagnosed condition had to satisfy the description or definition of the disease within the SoP. In this case, there was no psychiatric condition found by Dr Law or Dr Katz. Dr Pickering diagnosed adult ADHD, but did not diagnose Generalised Anxiety Disorder, although he did find there was a mild to moderate alcohol dependence.
[20] [2008] FCFCA 64
40. Dr Ziukelis and Dr McColl each found Generalised Anxiety Disorder and alcohol dependence existed as at the dates of their reports. To be admissible as expert evidence, those reports must demonstrate the area of expertise; the Doctor’s specified training as an expert; the opinion must be ‘wholly or substantially’ based on the expert knowledge; the facts observed or assumed must be identified and admissibly proved by the expert; it must be shown that the facts upon which the opinion relies are properly founded; and the opinion must show what scientific basis exists to justify either conclusions (Heydon JA in Makita (Australia) Pty Ltd v Sprowles)[21]. Heydon JA also said that if these factors are not explicitly shown to be based on the expert’s specialised knowledge, they are “strictly speaking[22]” not admissible or at best, will be of minimal weight.
[21] (2001) 52 NSWLR 705 at 743
[22] Ibid
41. Dr Ziukelis’ report of 17 March 2008 does not provide any reasoning about how the applicant fits the criteria within the definition of alcohol dependence. However, in his report of 23 March 2009, he elaborates and provides sufficient link to satisfy the requirements of the SoP. Therefore, the report of 17 March 2008 is of diminished weight and reliance should be placed to his report of 23 March 2009.
42. Based on the trend of those reports we find that Mr Ah Gee now has the conditions of Generalised Anxiety Disorder and alcohol dependence.
Clinical onset
43. Clinical onset is generally accepted to occur when a person can articulate some feature or symptom of a disease or condition that enables a doctor to say the disease was present at that time[23].
[23] Re Robertson and Repatriation Commission (1998) 50 ALD 668; Repatriation Commission v Cornelius (2002) 69 ALD 250
44. Where a case can be made for clinical worsening of a condition, the symptoms must not become worse on a temporary basis. The symptoms must also be clinically present during service for there to have been an aggravation or worsening of a condition[24]. There is no evidence of any clinical presentation during service of either condition, and in particular, of any anxiety condition. An alcohol problem can be inferred from his earlier service from some of the applicant’s evidence, which is unchallenged.
[24] Parrotte and Repatriation Commission [2004] AATA 536
45. If a condition existed and there was a “clinical worsening”, the medical scientific standard in the relevant SoP must be satisfied and not some other standard such as a lay standard[25]. If there is to be a clinical worsening, there must be a worsening of the disease as defined in the SoP. The definitions of alcohol dependence and alcohol abuse are contained in paragraphs 2 and 3 respectively of SoP 76 of 1998 and SoP 1 of 2009. None of those paragraphs are referred to in any of the medical reports or elsewhere in the evidence.
[25] Repatriation Commission and Milenz [2007] FCA 50
46. We conclude therefore that the onset of Generalised Anxiety Disorder became manifest in 2005 as originally diagnosed by Dr Ziukelis and as rationalised by Dr McColl in 2009. In respect of alcohol dependence, Dr Pickering in his report of 6 April 2004, said that the applicant is suffering from what he described as “in all probability a mild to moderate Alcohol Dependence with Physiological Dependence”[26]. That seems to be a somewhat tentative conclusion. However, we find that the earliest date of onset of alcohol dependence is 23 March 2009 as found by Dr Ziukelis in his admissible report of that date.
[26] Folio 31 of the T-documents
47. The question is now whether either of these conditions is also linked to Mr Ah Gee’s naval service. Despite what appeared to be the Tribunal’s (and it seems from written submissions, the respondent’s) understanding of the claim pertaining to operational service, written submissions by Counsel for the applicant clearly imply submission on the basis for the claims to be attributable to operational service and/or eligible defence service. No response to that amplification is made in the respondent’s submissions. Despite a lengthy and extended period granted to the applicant’s Counsel’s reply to the respondent’s submissions, no answer was finally made. To ensure all apparent claims by the applicant are considered we will therefore consider the evidence under both these criteria.
The Legal Requirements
48. The relevant statutory provisions which govern the Tribunal’s consideration of the issues are primarily contained in s 120 of the Act. Section 120(1) requires that the Tribunal must determine a disease to be war caused unless it is satisfied beyond a reasonable doubt that there is no sufficient ground for making that determination. The standard of proof in making that determination is that of “beyond reasonable doubt” and then, only where the Tribunal “after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the…disease…with the circumstances of the particular service”[27]. All other matters, including claims based on eligible defence service, are to be satisfied to the Tribunal’s reasonable satisfaction[28]; the latter standard of proof is generally regarded as that equivalent to the civil standard of “the balance of probabilities”.
[27] Section 120(3) Veterans’ Entitlements Act 1986 (Cth)
[28] Section 120(4) Veterans’ Entitlements Act 1986 (Cth)
49. Determinations under s 120 of the Act are in this case amplified by the provisions in s 120A and s 120B which provides that the assessment must be based on factors set out in relevant SoP’s. In this case the relevant SoP’s are:
Generalised Anxiety Disorder
SoP No.101 of 2007 – Anxiety Disorder – Operational Service
SoP No.102 of 2007 – Anxiety Disorder - Eligible Defence Service
(SoP No. 101 and 102 of 2007 have been amended by SoP No. 42 and 43 of 2010. These amendments are not relevant for our present purposes.)
SoP No.1 of 2000 – Anxiety Disorder – Operational Service
SoP No.2 of 2000 – Anxiety Disorder – Eligible Defence Service
Alcohol Dependence or Alcohol Abuse
SoP No.76 of 1998 – Operational Service
SoP No.77 of 1998 – Eligible Defence Service
SoP No. 1 of 2009 – Operational Service
SoP No. 2 of 2009 – Eligible Defence Service
50. The relevant SoPs require a minimum of at least one criteria to be met before a reasonable hypothesis can be said to exist in relation to a claim for operational service or to satisfy the reasonable satisfaction test in relation to determination of diagnosis and clinical onset as well as a claim for eligible defence service. For the anxiety condition (SoP No. 101 of 2007), it must be shown that the person has ”a medical illness or injury which is life threatening or which results in serious physical or cognitive disability, within the five years’ before [either] the clinical onset of anxiety disorder”[29] or “clinical worsening of anxiety disorder”[30]. The same requirements are set out in SoP No. 102 of 2007 for eligible defence service with the exception that the time period to be satisfied is two years and not five years. Regarding SoP No. 1 and 2 of 2000, the former SoPs where the applicant has an accrued right to have his claim reconsidered if he is unsuccessful under the current SoPs, the same criteria exist with the exception that the time periods are two years for operational service and one year for eligible defence service.
[29] Factor 6(a)(vii) of SoP 101 of 2007
[30] Factor 6(c)(vi) of SoP 101 of 2007
51. For alcohol abuse or alcohol dependence, it is only clinical worsening which is of specific focus in this case. In the current SoP, the relevant factor to consider is whether the person has a “clinically significant psychiatric condition at the time of the clinical worsening of alcohol dependence”[31] In respect of the former SoP with regard to the applicant’s accrued rights, the person must be “suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence”[32].
[31] Factor 6(g) - SoP No. 1 of 2009; Factor 6(f) – SoP No. 2 of 2009
[32] Factor 5(c) – SoP No. 76 of 1998; Factor 5(c) – SoP No. 77 of 1998
52. In considering a claim under operational service, as previously mentioned, s 120(3) of the Act specifies a reasonable hypothesis as the standard of proof. The onus of proof is on the respondent under that subsection. The Full Federal Court in Repatriation Commission and Deledio[33] has previously set out four steps to determine whether the standard of proof is satisfied. These are:
1.A hypothesis must be formulated which can be said to establish the causal link between the veteran’s eligible war service and the disease for the which the claim is made;
2.It must be ascertained whether a SoP, authorised by the Repatriation Medical Authority is in existence;
3.Based on the criteria to be established, it must be determined whether the hypothesis is reasonable. This involves no fact finding. A hypothesis may be reasonable even though it fits the template of the SoP but may be against the weight of informed opinion[34]. On the other hand, a hypothesis would not be reasonable if it was “contrary to proved scientific facts or to the known phenomena of nature[35]” or “obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous”[36]; and
4.If the material shows it is “more than a possibility” and “points to”[37] a reasonable hypothesis, then s 120 (1) must be applied and the claim must succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact which is inconsistent with the hypothesis is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis. Step 4 does involve an assessment of facts.
[33] (1998) 83 FCR 82
[34] Bushell and Repatriation Commission (1992) 175 CLR 408
[35] Bull v Repatriation Commission (2001) 66 ALD 271 at 279
[36] East v Repatriation Commission (1987) 16 FCR 517 at 533
[37] Ibid at 523 and 534
Generalised Anxiety Disorder
53. In assessing whether this claim has a link to operational service, the decision to the Veterans’ Review Board now under review has been withdrawn. The condition of pleural plaques already accepted by the Repatriation Commission, was accepted on the basis that it occurred during eligible defence service. No other evidence has been presented which either specifically or by implication identifies any hypothesis linking operational service with the accepted condition of pleural plaques and the claim for Generalised Anxiety Disorder. Therefore Step 1 is not satisfied. If it had been then SoP No. 101 of 2007 would then have been applicable. However there is effectively no hypothesis raised. Therefore, despite a relevant SoP having been issued (Step 2), Step 3 cannot be satisfied and a claim under either SoP No. 101 of 2007 and SoP No. 1 of 2000 is not substantiated.
54. However, considerable evidence has been presented in relation to a claim for anxiety disorder associated with eligible defence service. The elements of the SoP’s for Generalised Anxiety Disorder show there must be a “medical illness”[38]. It is undeniable that Mr Ah Gee satisfies this element. It must also be “life threatening”[39]. In this regard the applicant refers to his belief that his life will be shortened as a result of the diagnosis of pleural plaques. This claim is made notwithstanding his evidence that he was told that he had only a one in ten chance of the disease deteriorating. Indeed, he has medical reports showing that he was advised that it was not a serious risk at the time of the medical reports tendered before this Tribunal. The last tests were in 2003 and the applicant has not provided any later evidence. The report more recently by Dr McColl indicates quite specifically that Mr Ah Gee was told that he was not at risk. The evidence as a whole shows that he does not have asbestosis and that the detection of pleural plaques is a marker with a low probability of having a serious affect on his health[40].
[38] Factor 6(a)(vii) of SoP 101 of 2007
[39] Ibid
[40] See for example the report by Associate Professor McKenzie folio’s 104-105 of the T-documents
55. As a comparative measure, the respondent has submitted that the Administrative Appeals Tribunal recently determined in another case that in the absence of any physical threat, incidents would not be “life threatening”[41] (even though living or working proximately to allied rockets passing overhead or close to a helipad). That decision referred also to the Federal Court decision in Hunter v Repatriation Commission[42] which held that a category 1A or 1B stressor required the claimant to become “face to face with some species of peril” (at [22]). It seems to us that these authorities and the ordinary meaning of “life threatening” requires an approximate and clear risk of a person’s life being terminated prematurely. The term “life threatening” is defined as “very serious; very dangerous or serious with a possibility of death as an outcome”[43]. This term was recently considered in Mann and Repatriation Commission[44] where Senior Member Carstairs said the term should have an objective and a subjective component. Therefore, similarly to the Federal Court consideration of these terms in Stoddart and Repatriation Commission[45], that a requirement that referred to actual threat of death or serious injury could be satisfied because of the consideration of the subjective component, this may not necessarily involve an actual threat of death or serious injury. However, in that case it was also said that that does not extend to “idiosyncratic and personal perceptions of events which judged objectively[46]” do not satisfy the SoP.
[41] Re Norton and Repatriation Commission [2010] AATA 298
[42] (2010) FCA 145
[43] Encarta Dictionary English (UK)
[44] [2008] AATA 163
[45] (2003) FCA 334
[46] Ibid at [50]
56. The medical evidence here does not reveal a distinct and serious risk of a shortening of Mr Ah Gee’s life. Indeed, the evidence of Associate Professor McKenzie is quite categorical and makes it clear that any risk to shortening of life is not one which presently exists and the likelihood of deterioration is quite remote based on the current evidence.
57. The applicant rests his case in relation to this element on his “belief” that his life will be adversely affected by pleural plaques and that that diagnosis has triggered Generalised Anxiety Disorder. Accepting that as a subjective element, we do not accept that objectively, the element of “life threatening” is established on the balance of probabilities, based on the medical evidence and the number of medical opinions and length of time the applicant has had since the diagnosis.
58. Another element requires that there must be a “serious physical or cognitive disability”[47]. The applicant has pleural plaques. It is a physical condition but there is no evidence of him being disabled physically. The medical evidence is sufficient to justify that conclusion. It is therefore not a serious physical condition. Mr Ah Gee has Generalised Anxiety Disorder which is a psychiatric disability. That must be distinguished from a cognitive disability. A disability of cognition relates to activities of thinking, conceiving, reasoning, and so forth. The medical evidence does not point to a cognitive disorder (quite distinct from other emotional aspects.) There is however the evidence of Dr Pickering which refers a condition of adult attention deficit hyperactivity disorder. He said this has existed since childhood and has carried over into the applicant’s adult life. He referred to symptoms such as a poor attention span and that he reads very little; he also said that the applicant was “easily annoyed, over‑sensitive to criticism, impatient and short tempered”[48]. This constellation of symptoms seems to refer to the strengths and weaknesses of the applicant’s cognitive abilities, but does not indicate a cognitive disability. We therefore do not think that there is evidence of a serious physical or cognitive disability.
[47] Factor 6(a)(vii) of SoP 101 of 2007; factor 6(a)(vi) of SoP 102 of 2007
[48] Folio 28 of the T-documents
59. The SoP also requires that the medical illness must have occurred within two years of the clinical onset of Generalised Anxiety Disorder. If there is a clinical worsening of Generalised Anxiety Disorder, there must have been a diagnosis of that condition prior to the medical illness. Neither the time frame nor an accepted previous diagnosis has been established.
60. The assessment of claims for operational service requires the disease to be contracted while the person is rendering eligible service (s 9(1)(b))[49]; or while rendering eligible defence service[50]. For the purposes of s 9(1)(b), there must be a causal connection between the disease and the operational service and this must be more than de minimus[51]. There Davies JA said where contributory causes are involved, the matter should be viewed “in a practical, commonsense way”[52]. There must also be a pre-existing disease. Where the claim is based on a clinical worsening of a condition, an “aggravation” in s 9(1)(e)[53] cannot result from a predisposition[54].
[49] Veterans’ Entitlements Act 1986 (Cth)
[50] Section s 70(5) Veterans’ Entitlements Act 1986 (Cth)
[51] Repatriation Commission v Bendy (1989) 18 ALD 144
[52] Ibid at 151
[53] Veterans’ Entitlements Act 1986 (Cth)
[54] ReLee and Repatriation Commission (1986) 11 ALD 56
61. For eligible defence service under s 70(5)[55], similar considerations are applicable. The causal connection will arise out of or be attributable to defence service where the person is on duty or undertaking relevantly related service activities. These will have a legitimate connection to service activities, such as preparation for duty or attending activities which are culturally specific to rank or a particular arm of the defence force[56]. In that case also, it was said there must be sufficient proximity between the disease and service this may be regarded as an alternative to the “but for” test. In Roncevich, the High Court said the wording in s 70(5) ascribes a broader meaning to “defence caused” and a causal link alone or a causal connection is capable of satisfying a test of attributability without any qualification conveyed by such terms as “sole, dominant, direct or proximate”[57].
[55] Veterans’ Entitlements Act 1986 (Cth)
[56] Roncevich v Repatriation Commission (2005) 222 CLR 115
[57] Ibid at [27]
62. A connection to service must, however, be more than a temporal one. For example in Re Myors and Repatriation Commission (1998)[58], a claimed connection between passive smoking and later ischaemic heart disease was rejected. Where there is inadequate evidence because of the length of time between service or because of the difficulties of keeping records during a conflict, s 119(1)(h)[59] allows some latitude to a decision maker. The Administrative Appeals Tribunal has found that the action “was not directed to resolving conflicts of medical evidence in favour of applicants. It could be availed of when assistance was required in proving the facts. It was not available to ensure a benign medical interpretation of those facts”[60]. The Tribunal is required to consider all of the facts before it and determine whether the facts available are sufficient to prove the claim, being mindful of any difficulties mentioned in s 119 of the Act[61].
[58] 53 ALD 253
[59] Veterans’ Entitlements Act 1986 (Cth)
[60] Re Ahrenfeld and Repatriation Commission (1992) 28 ALD 921 at 922-923
[61] Re Sharkey and Repatriation Commission (1988)15 ALD 782
63. In addition to elements of the SoP not being satisfied, the connection with service is not apparent apart from Mr Ah Gee’s presentation to psychiatrists recently. The pattern of the psychiatric evidence is not, for the most part, supportive of Mr Ah Gee’s claim. The difficulty with the evidence is the stark inconsistency in the versions of events which the applicant has provided to the various psychiatrists. The early emphasis by the applicant is that the likelihood of life shortening as a result of the diagnosis of pleural plaques has caused the Generalised Anxiety Disorder and as a secondary or consequential issue, alcohol dependence was worsened. Mr Ah Gee conceded, at least to Dr McColl more recently, that “he was told it was unlikely he would die of this”[62]. The applicant has more recently and succinctly said because of the condition of his mortgage, his concerned that if he were to die, his wife might not be able to pay the mortgage and that she would be homeless. There is an apparent oversimplification and one gets the impression of a degree of mendacity in this proposition as he has explained to some psychiatrists that he has investment properties over which, “they used the equity in their own home to do this”[63]. It is true that he could not get mortgage insurance, but without providing further evidence, it is apparent that the debts relate to investment properties and it is the balance outstanding or net debt which has to be paid and the investment properties if sold, would be available to pay that if necessary. While there is a mortgage over the residential home, the extreme assertion that his wife would be on the street is highly improbable.
[62] Page 4 of Dr McColl’s report of 22 September 2009 exhibit 11
[63] Ibid
64. There are also other inconsistencies in facts given to psychiatrists over the last ten years (approximately). This raises an issue of credibility, particularly as to the linking of the conditions of Generalised Anxiety Disorder and clinical worsening of alcohol dependence to his original naval service. These are:
1.In some cases, the doctors report that Mr Ah Gee claimed to have a de facto relationship with his first partner from which there were children. In other cases he has told the doctors he was married. We do not place any great emphasis on this differential language but it is an inconsistency nevertheless.
2.He reported to Dr McColl that he stopped smoking in about 1998[64]. That occurred shortly before the pleural plaques diagnosis in about 2001. He told Dr McColl last year he used cannabis “on a relatively regular basis which he also stopped when he stopped smoking”[65]. The evidence that he used illicit drugs of any type or frequency has never previously been declared. We regard this as a recent invention and a more serious inconsistency.
3.Dr McColl has reported his drinking quota has increased to three to four stubbies a day and up to 12 schooners on the weekend and on two to three nights per week he will also have a bottle of red wine. This is similar to the drinking pattern revealed to Dr Pickering in 2004 and Dr Katz in 2006.
4.He has told doctors he had been diagnosed with prostate cancer. However, the applicant’s Counsel points out in his most recent written submissions that there has not been such a diagnosis[66].
[64] Page 6 of exhibit 11 (report by Dr McColl); Folio 15 of the T-documents (report by Dr Law)
[65] Page 6 of exhibit 11
[66] Paragraph 16 of the applicants written submissions
65. This raises the question as to whether there is a question of credibility only as a collateral issue or whether its credibility relevant to the issues in dispute. We find these matters go to the substance of the facts which must be determined. It is therefore admissible under s 103 of the Evidence Act 1995 (Cth) as having substantial probative value. Therefore under s 55 of the Evidence Act the evidence is relevant as, if accepted, it “could rationally affect (directly or indirectly) the assessment of probability of the existence of a fact in issue”. The applicant’s general demeanour at the Tribunal hearing was similar to that described by psychiatrists. The variability in the evidence is also sufficiently pervasive in the context of the whole of the evidence such that we regard Mr Ah Gee as having a serious credibility gap.
66. The credibility can also be assessed under s 106(2)(c) of the Evidence Act 1995 (Cth), particularly when the applicant has made prior inconsistent statements. The key question is whether the “witness’s state of mind is such to cause the witness to lie about the principal factual issues[67]”. Given that the applicant’s evidence has been repeated over ten years to different psychiatrists and our assessment of the applicant as a witness, we find that his credibility is seriously undermined. The inconsistencies are numerous, are not minor and were reflected in his evidence and also in his general demeanour.
[67] Nicholls v The Queen; Coates v The Queen (2005) 219 CLR 196 at 298
67. We have not considered this issue lightly. Indeed we have considered the evidence of Dr Pickering in 2004 when he said the diagnosis of ADHD “is a significantly important diagnosis”. Whether this may have affected the inconsistency in evidence is highly unlikely but the conclusions of most of the psychiatrists that there is no significant psychiatric impairment in cognition and no evidence of psychotic condition, we are satisfied that the inconsistencies are stark and made consciously.
68. Having considered all of the SoP criteria and the weight of all of the evidence in light of the applicant’s credibility, we find that the condition of Generalised Anxiety Disorder is not related to eligible defence service.
Alcohol dependence
69. The SoP for alcohol use or alcohol dependence requires that, relevantly, there must be a connection between the clinical worsening of a previous alcohol dependence condition and the suffering of Generalised Anxiety Disorder. The test is the same for a claim under either operational service or eligible defence service (even though the standard of proof is different). There is slightly different wording in the current SoP which requires the psychiatric condition to be “clinically significant”[68]. The SoP which existed for the purpose of assessing the accrued right requires a “psychiatric disorder”[69]. For present purposes, those slight differences are not material.
[68] SoP 1 of 2009
[69] SoP 76 of 1998
70. “Clinical worsening” is not a defined term but is referred to in the qualification in paragraph 7 (of the 2009 SoP) and in paragraph 6 (of 1998 SoP). These require that the relevant factor will be satisfied only where there is “a material contribution to or aggravation of, alcohol dependence…where…alcohol dependence…was suffered or contracted before or during (but not arising out of) the persons relevant service…”.
71. In relation to alcohol dependence, the applicant merely submits, “it remains open to the Tribunal to give consideration to accepting the alcohol abuse/dependency in the circumstances of this case, given the extent to which Mr Ah Gee’s diagnosis of pleural plaques has impacted upon him and caused him to suffer a psychological disorder”[70]. The respondent says of the pattern of consumption, that “a largely unchanged maladaptive pattern of alcohol use occurred sometime before any service related anxiety arising or worsening as a result of the diagnosis of pleural plaques”[71]. The requisite connection which bespeaks of “a change in behaviour referable to service or to coping with the experience of service”[72] is therefore absent.
[70] Paragraph 32 of the applicants written submissions
[71] Paragraph 55 of the respondents written submissions
[72] Bull v Repatriation Commission (2001) 66 ALD 271 at 283
72. We have considered the evidence as a whole with respect to alcohol dependence. We have also been mindful of the credibility issues raised above when considering Generalised Anxiety Disorder and which are applicable here also. We are well satisfied that the applicant has alcohol dependence. The evidence of a worsening of the condition on the balance of probabilities is not established.
73. In similar terms to the claim for Generalised Anxiety Disorder, we find a hypothesis may be raised but no reasonable hypothesis for any claim based on operational service (Step 3 of Deledio process). As we have found, the evidence shows the onset of alcohol dependence was on 23 March 2009, and its occurrence transpired while there was a psychiatric disorder of Generalised Anxiety Disorder. But this connection is a consequential issue from the condition of Generalised Anxiety Disorder, which itself has been found not to be attributable to operational service or eligible defence service. The factors relating a condition to service, as outlined previously, do not show a causal connection between this condition and service which is more than de minimus and is also affected by credibility of the applicant and a lack of support by a number of psychiatrists, over the past 10 years, apart from the most recent reports. These latest reports are in part based on some differences in clinical history given to previous psychiatrists together with an assumption that the applicant had a diagnosis of prostrate cancer which has now been denied by his Counsel in his final written submissions.
74. We therefore find the evidence in relation to both Generalised Anxiety Disorder and alcohol dependence is not satisfied.
I certify that the 74 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K S Levy RFD, and Dr G J Maynard, Brigadier (Rtd), Member
Signed: ...................[Sgd]..........................................................
Alex Seagar, AssociateDate/s of Hearing 16 June 2010
Date of Decision 15 December 2010
Counsel for the Applicant Mr Russ Clutterbuck
Solicitor for the Applicant Haney Lawyers
Solicitor for the Respondent Mr Martin Hanson
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