Andrews and Repatriation Commission
[2008] AATA 983
•5 November 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 983
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. 2007/3970
VETERANS’ APPEALS DIVISION )
Re CLIFFORD ANDREWS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal
Dr J D Campbell, Member
Date5 November 2008
PlaceSydney
Decision The decision under review is set aside, insofar as it relates to the conditions of cervical spondylosis and major depressive disorder, and in substitution thereof the Tribunal determines that:
(a) The diagnosis of the two conditions are:
(i) Cervical spondylosis
(ii) Depressive disorder – major depressive episode
(b) Both conditions are war caused.
(c) The date of effect is 11 December 2004.
(d) Both conditions are remitted to the Repatriation Commission for assessment of the rate at which pension is to be paid.
...................[sgd]....................
Dr J D Campbell
Member
CATCHWORDS – VETERANS’ AFFAIRS – entitlements – cervical spondylosis – depressive disorder
Veterans’ Entitlement Act 1986, sections 9, 13, 14, 120, 120A
Benjamin v Repatriation Commission (2001) 34 AAR 270
Lees v Repatriation Commission 125 FCR 331
Repatriation Commission v Delidio (1998) 83 FCR 82
REASONS FOR DECISION
5 November 2008
Dr J D Campbell, Member
1. Mr Andrews is 62 years of age. Mr Andrews resigned from Crossingham’s Plumbing Service on 18 July 2001.
2. Mr Andrews served in the Royal Australian Navy from 8 March 1964 to 7 March 1973. Mr Andrews had operational service from 16 May 1967 to 8 June 1967 (HMAS Stuart) and from 14 September 1970 to 8 April 1971 (HMAS Perth). Mr Andrews rendered eligible defence service between 7 December 1972 and March 1973.
3. Mr Andrews lodged a claim for disability pension on 11 March 2005 in which he claimed the following disabilities as being war or defence caused:
·Right shoulder problems (rotator cuff syndrome)
·Emotional problems
·Prostate problems
·Eye problems
·Right ankle problems
·Neck and upper back problems
·Breathing problems
·Right wrist, right hand and right arm problem
·left knee problem
4. On 5 September 2006 the Repatriation Commission was satisfied that the claim encompassed the following medical diagnoses for the claimed conditions:
·Rotator cuff syndrome of the right shoulder
·Major depressive disorder
·Chronic prostatitis
·Left retinal arteriosclerosis
·Osteoarthrosis of the right ankle
·Cervical spondylosis
·Asthma
·Osteoarthrosis of the right elbow
·Internal derangement of the left knee
·Osteoarthrosis of the right hand
·Osteoarthrosis of the right wrist
·Osteoarthrosis of the left knee
The Repatriation Commission determined that none of the above listed conditions were related to service.
5. On 20 July 2007 the Veterans’ Review Board (VRB) set aside the decision of the Repatriation Commission in relation to the rotator cuff of the right shoulder, substituting in turn a decision that the condition was war caused, with the date of effect being 11 December 2004, with the matter being remitted for assessment of the rate (if any) at which pension is to be paid. The VRB affirmed the decision of the Repatriation Commission in relation to the other nominated conditions.
6. Mr Andrews in this matter seeks review of the VRB decision in relation to two conditions, namely:
·Cervical spondylosis
·Major depressive disorder
Issues
7. The relevant issues in this matter are:
·The correct diagnosis for Mr Andrews’ neck condition and his psychiatric condition.
·Whether the claimed conditions are war caused?
Evidence from Mr Andrews
8. Mr Andrews detailed a history of injury to his right shoulder and neck when thrown onto the corner of his right shoulder while practising judo on HMAS Perth in November 1970. Mr Andrews stated that the area of the right shoulder which was involved in the fall became tender and sore, and that he experienced a stiff and sore neck (particularly at base of neck). Mr Andrews stated that he had difficulties with neck movements and he had to turn his body to see. Mr Andrews described that his neck symptoms gradually improved over a period of three weeks to a level which continued to cause some discomfort – a level he still endures to this day. Mr Andrews noted that during the three week period heavy lifting, jackstay transfers, launching boats or throwing balls would make his neck symptoms worse.
9. Mr Andrews believed the injury occurred when HMAS Perth was on the gun line, and that he reported the incident and his symptoms a few days after the incident occurred. Mr Andrews believed that he was treated with aspirin, and that he was sent for an x-ray of his right shoulder at HMAS Terror some five to seven days after the incident. Mr Andrews stated that he has memories of pain associated with the incident and that he worked his way through the recovery period.
10. Mr Andrews was particular in stating that he had not worked since July 2001, although he noted that his memory was not so good. At that time he had been working four days a week as a plumber and one day a week for Juvenile Justice as a supervisor. Over a four month period Mr Andrews detailed how his neck and shoulder pain was getting worse when having to work above his head fitting sprinklers, when undertaking duties in an aged care residence in the six months leading up to his resignation in July 2001.
11. Mr Andrews detailed that when he stopped work in July 2001:
·The stopping of work resulted in a disruption of his whole social life, and that he was no longer able to contribute.
·The stopping of work resulted in a significant change of income – that he was no longer able to do what he wanted to do and that he was unable to help as much as he use to help.
·The stopping of work resulted in him becoming as “angry as buggery” and he became involved in both verbal and physical disputes.
12. Mr Andrews also detailed his employment history after leaving school, having completed his Intermediate Certificate at age fifteen. Such employments included:
1961-1963
¬ Apprentice boilermaker
1964-1973
¬ Navy
1973-1976
¬ Bricklayer’s labourer for six months
¬ Completed boilermaker’s apprenticeship
1976-1977
¬ Boilermaker and concrete constructions
1977-1987
¬ Youth worker – Dept of Youth and Community Services
¬ Plumbers’ trade course
¬ Plumbing activities over the last four to five years
1987
¬ Moved to Taree – unemployed for six months
1987-1993
¬ Plumbing – C J Hogan Plumbers
1993-2000
¬ Subcontract plumbing
2000-2001
¬ Subcontract plumbing (4 days)
¬ Juvenile Justice Officer (1 day)
13. Mr Andrews in further outlining his employment history stated that:
·When working as a youth worker at Gosford and when undertaking his studies to be a plumber and when after he qualified as a plumber, he would work 60 to 70 hours per week with no days lost through sickness.
·When undertaking plumbing work at Taree he would undertake 40-50 hours of physical work per week.
·On moving to Taree, he moved to a 45 acre property where he and his wife lived in a caravan while he built the house in which they now reside.
·He grew and sold pine Christmas trees on the Taree property (some 33,000) and from which he and his wife received income averaging $9,900 over a five year period (1997-2001).
14. Mr Andrews was particular in stating that he left work in July 2001 because of the pain in his neck and shoulder and that he has not worked since. Further, Mr Andrews stated that he had his right rotator cuff surgically repaired in 2004, with some initial improvement in symptoms but relapsing after a fishing episode – fishing and gardening being his main hobbies.
Evidence of Mrs Andrews
15. Mrs Andrews, in noting that she had been married to Mr Andrews for 41 years, described Mr Andrews as being a happy-go-lucky person who was always helping everybody and was good with children until about seven years ago. From that time onwards, with Mr Andrews spending more time at home, Mrs Andrews stated that over time Mr Andrews became angry, irritable and cranky – that he did not show a lot of interest in anything, that he appeared tired and that she observed that he was forgetful as well as being quick tempered with children. Mrs Andrews stated that the change she noted in her husband started when he commenced having difficulties coping with particular work activities. Mrs Andrews also noted that her husband did have much improvement after his right shoulder operation in 2004.
Considerations and Findings
16. In preliminary comment, I observe that some confusion arose as to when Mr Andrews commenced his plumbing business, as opposed to plumbing activities associated with his trade course while living on the Central Coast. Further, I observe that there was initially some confusion as to when Mr Andrews was undertaking his Juvenile Justice employment duties at Taree. While the confusions were sorted, I was left with two impressions, namely Mr Andrews was somewhat vague in addressing issues of when and what activities of work were undertaken at a particular period. My second impression was that post his naval service, Mr Andrews had worked hard and long hours in the work activities in which he was involved, often undertaking two work/education activities during the same period, namely youth welfare and plumbing course/plumber, plumbing work and building a house/growing pine trees.
17. A perusal of the various clinical material in this matter reveals that Mr Andrews has suffered with migraines for 30 plus years, left facial pain (intermittent), neck, shoulder and multiple orthopaedic problems, asthma, eye problems, prostate problems, renal colic and depressive symptomatology. For the purposes of this matter, I shall direct my attention to the diagnosis of neck symptomatology and the depressive symptomatology, with such diagnosis being made in terms of reasonable satisfaction (balance of probability). (Benjamin v Repatriation Commission (2001) 34 AAR 270 considered and applied).
Neck Symptomatology
18. I have detailed earlier in this decision Mr Andrews’ clinical history in relation to his neck and right shoulder injury in November 1970. Mr Andrews, I note, further stated that pain in his right shoulder and neck remained over the years, but at a level with which he was able to cope until the months leading up to him ceasing work in July 2001. A perusal of Dr Larkin’s clinical notes does not elucidate the problem to any greater degree, for there are very few reported complaints of neck pain reported.
19. Nevertheless, I note the history recorded by Dr Hopcroft, an orthopaedic surgeon, in his report of 2 February 1998 (T12, P114):
“I understand in practising judo aboard ship he had been dropped heavily onto his right shoulder and had quite marked pain into the shoulder and the right side of the neck following the incident with extensive swelling and bruising. …settled within … continued to have intermittent ache in the shoulder since that time …… in the last five years this has advanced … In fact he feels now that along with the problem with his shoulder joint and the right side of the neck, there is a feeling as though he is losing some power in the arm.”
I also note that in this report Dr Hopcroft noted some restriction in the range of movement of the cervical spine with tenderness over the transverse processes of the upper cervical vertebrae.
20. Dr Hopcroft also reported that he took x-rays of Mr Andrews’ cervical spine which he reported as showing a major C3/C4 intervertebral disc lesion with marked intervertebral foraminal encroachment bilaterally. Dr Hopcroft commented that he believed “that this could be significantly contributing to this man’s right shoulder pain, certainly his neck pain.” (T12 P115).
21. In a further report dated 21 May 2002 (T12 P112), Dr Hopcroft noted that Mr Andrews had marked restriction in range of movement of the cervical spine in all directions. Dr Hopcroft also noted the following radiological investigation reports:
A.CT scan cervical spine 9 October 2001
“CV 3-4 disc showed mild disc degeneration and narrowing and there is little gas within the disc. There is no apparent bulging or protruding disc, although there is some osteophytic formation posteriorly encroaching mildly on the spinal canal.”
“Osteoarthritis of the facet joints is observed throughout the cervical spine (P48 Exh R5).
B.MRI cervical spine 22 March 2002
“There are moderate widespread degenerative changes with disc space narrowing and loss of signal from the disc spaces. There is also some signal change in the vertebral end plates at C3/4 consistent with degenerative changes.” (T12 P110).
22. In a report dated 22 May 2006 (T16), Dr Hopcroft concluded that Mr Andrews was “suffering from increasing problems from markedly degenerate changes occurring at the C3/C4 and C6/C7 intervertebral disc space levels in his cervical spine along with osteoarthritic changes in his right shoulder, right elbow and right wrist.”
23. In a report dated 21 December 2007 (Exh R2) Dr Millons, a consultant orthopaedic surgeon, recorded a history of Mr Andrews when serving on HMAS Perth in late 1970, and while participating in judo exercises injured his right shoulder on an exposed cleat. He records Mr Andrews as stating that this caused a lot of bruising in the region, with pain in the shoulder and some pain in the neck continuing from that time, with increasing pain and stiffness in the right shoulder during the 1990s as he went about his work as a plumber.
24. Dr Millons concluded that Mr Andrews suffers from cervical spondylosis with x-rays taken in October 2001 indicating that such changes had been present for at least seven years before that time. Dr Millons noted that the neck problems have gradually bothered him as the years have progressed.
25. In a report dated 27 December 2007 (Exh A3) Professor Sambrook, a consultant rheumatologist, detailed a history provided by Mr Andrews of his right shoulder and the right side of his neck striking part of the steel cleats during a judo practise episode on HMAS Perth. Professor Sambrook records that Mr Andrews details a history of pain and some restriction of cervical spine movement within a few hours of the injury, with such symptoms remaining since that time.
26. Professor Sambrook after reviewing the clinical history, his examination findings and diagnostic radiological investigations, concluded that Mr Andrews suffers from cervical spondylosis.
27. Having considered the clinical evaluations undertaken by Drs Hopcroft and Millons and Professor Sambrook, I am satisfied on the balance of probabilities that the diagnosis of Mr Andrews’ neck symptomatology is cervical spondylosis.
Relationship to Service
28. In addressing the relationship of Mr Andrews’ cervical spondylosis to his service I note that the relevant Statement of Principles (SoP) is Instrument No. 33 of 2005.
29. I observe that the hypothesis formulated from the material before me is that Mr Andrews suffered an injury to his neck and right shoulder when he fell, with his neck and right shoulder impacting with a steel cleat when practising judo exercises on HMAS Perth in November 1970. The material further points to Mr Andrews suffering bruising to the affected neck and shoulder area, experiencing pain and swelling within a few hours together with difficulty in moving his neck. The material points to Mr Andrews persevering with his symptoms for a few days before reporting to sick bay in late November 1970, where he was seen by a doctor and referred for an x-ray of his right shoulder and given aspirin for the pain. Further, the material points to the x-ray of the right shoulder (mistakenly reported as left shoulder) having been performed at HMS Terror on 30 November 1970 (T3 P7). The material also points to both the acute shoulder and neck symptoms continuing for a three week period and thereafter lesser symptoms remaining, with a further increasing of symptoms (pain and stiffness) developing during the 1990s.
30. I do not consider that the hypothesis formulated from the material is either fanciful or speculative, and accordingly I move to consider whether or not a reasonable hypothesis has been raised.
31. Factor 6(g) of the SoP No. 33 of 2005 concerning cervical spondylosis provides:
having a trauma to the cervical spine before the clinical onset of cervical spondylosis.
32. Clause 9 of the SoP No. 33 of 2005 defines ‘trauma to the cervical spine’ in the following terms:
‘means a discrete injury, including G force-induced injury, to the cervical spine that causes the development within twenty-four hours of the injury being sustained, of symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the cervical spine. These symptoms and signs must last for a period of at least seven days following their onset; save for where medical intervention for the trauma to the cervical spine has occurred and that medical intervention includes either:
(a)immobilisation of the cervical sine by splinting, or similar external agent; or
(b)injection of corticosteroids or local anaesthetics into the cervical spine; or
(c)surgery to the cervical spine.’
33. In addressing the issue further, I observe that there is material pointing to and congruent with each element of experiencing a trauma to the cervical spine, with such material being found in the evidence of Mr Andrews and his statement to various specialists over a ten year period. Further, I observe that there is clinical material pointing to the trauma having occurred in November 1970, and material pointing to the clinical onset of cervical spondylosis in the 1990s.
34. In such circumstances I conclude that a reasonable hypothesis has been raised linking Mr Andrews’ cervical spondylosis to his operational service.
35. In addressing the fourth stage nominated in Repatriation Commission v Delidio (1998) 83 FCR 82, I must turn my attention to consider:
·Whether one or more facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
·The truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.
36. I am mindful that in this matter there is little written record of the judo injury in November 1970, nor is there any written record of Mr Andrews’ symptomatology at that time, or indeed any written record of continuing symptomatology relating to the shoulder and neck injury during service or post service until 1998. The only service record is that of 28 and 30 November 1970 relating to the x-ray of the right shoulder and difficulty with abduction of right arm. Dr Millons concluded in the light of such material that it was difficult to find that Mr Andrews suffered a discrete injury to his cervical spine. Both Dr Hopcroft and Professor Sambrook, together with Professor Ghabrial, a consultant orthopaedic surgery (T23) were of the opposite view. I also considered that the evidence given by Mr Andrews that he remained on duty, was not given restricted duties and worked his way through the problem and took aspirin for pain. In such circumstances, I am unable to conclude that the discrete injury to the cervical spine is disproved beyond reasonable doubt.
37. In the light of my findings, I conclude that Mr Andrews’ cervical spondylosis is a war caused injury.
Psychiatric Symptomatology
38. I have earlier detailed Mr Andrews’ psychiatric symptoms and in turn I have detailed Mrs Andrews’ observations of her husband’s psychiatric symptoms. I note that Mr Andrews was first seen by Dr Robertson, a consultant psychiatrist, in March 2002 in response to his claim for post traumatic stress disorder. In his report dated 12 March 2002 (Exh. R5 P30), Dr Robertson noted the following symptoms as being present since Mr Andrews’ retirement from work in July 2000 (1990 stated in error):
·Chronic headaches with blurred vision
·Chronic pain involving his right shoulder and cervical spine, together with poor sleep.
·Decrease in motivation, irritability and loss of interest in his usual activities.
·Significant pervasive inability to “get things moving”.
·Lacks drive or volition, together with impaired concentration and short term memory loss.
39. Dr Robertson considered that loss of employment ability has been the main precipitant of his mood symptoms. Dr Robertson considered that Mr Andrews was suffering from a major depressive disorder – single episode, with the mood disturbance related to current stressors, namely inability to work because of chronic pain arising from his right shoulder and neck condition.
40. Two further reports from Dr Robertson dated 10 April 2003 and 19 June 2003 nominate the benefits of continuing antidepressant medication and the re-emergence of depressive symptoms requiring a review of his antidepressant medication.
41. In a report dated 15 February 2005 (Exh A2), Associate Professor Quadrio, a consultant psychiatrist, detailed Mr Andrews’ symptoms as:
·Loss of identity arising from his inability to work, with loss of respect, as he had a lot of pride in his identify as a sailor and a worker.
·Difficulties with sleeping – couple of hours per night.
·Preoccupation with his difficulties, hard to stop thinking about them and feels depressed every day, has a sense of ‘futility’, and no sense of achievement in anything he does.
·Memory is not good, very forgetful and very bad on dates.
·Short tempered and irritable which is a big change in him.
·Cessation of work resulted in almost loss of sex life.
·Nervy and edgy and agitated at times.
·Does not see much in the future, “it looks black”. He is not suicidal but thinks about it and if something happens to his family, it might tip him over the edge.
·Thinking about his problems is consuming and takes up all his thoughts.
42. As a consequence of an interview with Mrs Andrews, Professor Quadrio detailed the following observations made by Mrs Andrews concerning her husband:
·He is very angry and irritable.
·A huge change in his personality over the last three to four years, namely:
§happy-go-lucky to angry and argumentative over little things;
§Really active to can’t be bothered, does not do much, no interest, does not enjoy anything.
·Unable to relax, morose, down in the dumps, nervy and edgy.
·Forgetful, unable to concentrate, does not seem to follow things or television.
·Lack of interest in sporting activities.
43. Professor Quadrio considered that Mr Andrews was suffering from a major depressive disorder, with characteristic features of:
·Pervasive depressed mood
·Loss of energy
·Loss of interest
·Loss of libido
·Loss of enjoyment
·Forgetfulness
·Poor concentration
·Irritability
·Impact of interpersonal relationships
44. Professor Quadrio noted that Mr Andrews had some pre-existing obsessional personality traits which have become magnified as a result of his increasing anxiety and depression. Professor Quadrio concluded that the onset of the depressive condition coincided with, and was the direct result, of Mr Andrews becoming unable to work because of physical limitations – this leading to feelings of uselessness and a loss of identity and evolving feelings of worthlessness.
45. In oral evidence Professor Quadrio affirmed her written opinion, and in particular her opinion that Mr Andrews was suffering from a major depressive disorder (major depressive episode) for which he had no had adequate therapy. Professor Quadrio also considered that Mr Andrews met the diagnostic criteria for adjustment disorder with depressed mood.
46. In a report dated 7 January 2008 (Exh R3) Dr Roberts, a consultant psychiatrist, detailed Mr Andrews’ mental health symptoms as follows:
·Short with his wife, angry with his wife and others who disagreed with him.
·Anger with and not coping with finishing work.
·That feeling depressed equated with having no direction and no real reason to stick with something that is not important.
·Does not feel that he is contributing, that he tendered towards tears; that he is unable to get going.
·Denies suicidal thoughts.
·Decline in energy and interests.
·Decline in mood over the course of the day.
·That Mr Andrews denied any problems with either memory or concentration.
·That there were no assertions of cognitive impairment, no psychological/psychiatric significance in his respiratory symptoms, such symptoms being related to an isolated physical episode.
47. Dr Roberts in looking for physiological concomitants of anxiety concluded that Mr Andrews’ degree of such symptomatology was consistent with anxiety of the mildest degree with there being no evidence of a reactive state. Dr Roberts also noted that when questioned, Mr Andrews would disagree with an opinion expressed by another person that he had a mental or nervous illness, disorder, condition or problem. Dr Roberts concluded that Mr Andrews is not suffering from a clinically depressive condition, but he is depressed by circumstances that he is not working and that he is experiencing financial worries. In summary opinion, Dr Roberts stated that he was unable to establish the presence of a psychiatric diagnosis and that Mr Andrews rejects the concept of having a mental or nervous illness.
48. In oral evidence Dr Roberts stated that he placed emphasis in reaching his written opinion of Mr Andrews denying that he was suffering from a mental illness. Further Dr Roberts relied on an assessment that Mr Andrews’ mental state was normal, with no evidence of cognitive impairment and very little symptomatology to support the presence of anxiety or a reactive state.
49. In addressing the issue of diagnosis I have considered the evidence given by Mr Andrews and Mrs Andrews in relation to his mental health symptomatology. Further, I have the clinical reports and evaluations made by the three psychiatrists in the matter, namely Dr Robertson, Professor Quadrio and Dr Roberts. I am satisfied on the balance of probabilities that the diagnosis of Mr Andrews’ psychiatric condition is a depressive disorder or, to be more precise in terms of the diagnostic criteria listed in DSM-IV-TR, a major depressive episode.
50. In reaching such a finding I am mindful that Mr Andrews’ mental health symptomatology commenced following his inability to work because of right shoulder pain and neck pain in 2001 – such events being clearly documented in the evidence before me. In addressing the diagnostic criteria for a major depressive episode nominated in DSM-IV-TR, I observe that there is much material indicating that since 2001 the following symptoms have been present:
·Depressed mood most of the day, nearly every day as indicated by Mr Andrews and observed by Mrs Andrews (irritable mood). Notation as a symptom by Professor Quadrio.
·Markedly diminished interest or pleasure in all or almost all activities most of the day, nearly every day (Mr Andrews’ account and Mrs Andrews’ observations) both to the Tribunal and to Professor Quadrio.
·Sleeping difficulties nearly every day (Professor Quadrio) (Dr Robertson – poor sleep).
·Observations made by Mrs Andrews that Mr Andrews had a loss of interest in anything, a symptom defined by Dr Robertson that Mr Andrews lacks drive or volition with a significant pervasive inability “to get things moving”, to further commentary made by Mrs Andrews and recorded by Professor Quadrio – “can’t be bothered, does not do much, no interest, does not enjoy anything”. Such symptomatology is demonstrative in part of psychomotor retardation.
·Fatigue or loss of energy nearly every day as evidenced by lacking drive (Dr Robertson), observation of Mrs Andrews (appeared tired), loss of energy (Professor Quadrio).
·Feelings of worthlessness – loss of identity, usefulness and evolving feelings of worthlessness (Professor Quadrio), an inability to contribute (Mr Andrews).
·Diminished ability to think or concentrate – evidence by Mr Andrews, observations by Mrs Andrews – impaired concentration and short term memory loss (Dr Robertson), memory is not good, very forgetful (Professor Quadrio).
51. I would also observe that such symptoms represent a change from previous functioning (evidence of Mr Andrews and observations made by Mrs Andrews). Further, the evidence of both Mr and Mrs Andrews clearly demonstrates the effects such symptoms have on their social (family and interpersonal interactions, as well as with others), his ability to work, as well as his libido.
52. In defining the diagnostic criteria as I have I am satisfied that the diagnostic criteria for major depressive episode are met in terms of DSM-IV-TR. In being so satisfied it is evident that I rely upon the opinions of Dr Robertson and Professor Quadrio, who define essentially a similar opinion. Further, I express reservation in relation to Dr Roberts’ opinion in that his report places a particular focus on physiological con-commitments of anxiety, the methodology of drug screening, an absence of any attempt to elicit material from Mrs Andrews, a reluctance to consider any evidentiary material arising during the process of the hearing and an apparent overt reliance upon Mr Andrews’ opinion of himself as to whether he had a mental illness – a situation seemingly incongruent with Mr Andrews’ claim for emotional problems and having been assessed and treated by Dr Robertson for a mental illness in the past. It is for these reasons that I prefer the opinions of Dr Robertson and Professor Quadrio.
Relationship to Service
53. Statement of Principles Instrument No. 27 of 2008 concerning Depressive Disorder defines in paragraph 3(b) that “depressive disorder” means a group of psychiatric conditions which are manifested by a dysphoric mood. The mood disturbance is prominent and persistent. This definition is limited to major depressive episode, recurrent major depressive disorder, dysthymic disorder, depressive disorder not otherwise specified, substance induced mood disorder with depressive features, or mood disorder due to a general medical condition with depressive features, or with major depressive-like episodes.
54. In considering the issue of diagnosis I addressed the criteria listed in DSM-IV-TR necessary for a diagnosis of major depressive episode. I remain satisfied that there is material pointing to such necessary diagnostic criteria.
55. I would observe that the hypothesis nominated in relation to this issue may be summarised as follows:
(a)Mr Andrews ceased work on account of the pain arising from his war caused conditions of right rotator cuff syndrome and cervical spondylosis, with his depressive disorder having arisen as a consequence of his leaving work.
(b)Mr Andrews suffered from pain arising from a number of arthritic conditions (non war caused) and from his war caused cervical spondylosis, and right rotator cuff syndrome for at least six months prior to leaving work in July 2001 and thereafter he suffered a depressive disorder.
56. Paragraph 6(a) of the SoP No. 27 of 2008 nominates the following factors relevant to further addressing the issues in this matter:
(vi)Experiencing a category 2 stressor within the one year before the clinical onset of depressive disorder.
(vii)Having a medical illness or injury which is life threatening or which results in serious physical or cognitive disability, within five years before the clinical onset of depressive disorder.
(viii)Having chronic pain of at least three months duration at the time of the clinical onset of depressive disorder.
57. Paragraph 9 of the same SoP No. 27 of 2008 defines:
(a)A category 2 stressor means one or more of the following negative life events, the effects of which are chronic in nature and cause the person to feel ongoing distress, concern or worry:
(a)…
(b)…
(c)having concerns in the work or school environment including on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful work loads, or experiencing bullying in the workplace or school environment.
(d)…
(e)having severe financial hardship including: loss of employment, long periods of unemployment, foreclosure on a property or bankruptcy.
(b)Chronic pain means continuous or almost continuous pain which may or may not be ameliorated by analgesic medication and which is of a level to cause interference with usual work or leisure activities or activities of daily living.
58. In addressing the first nominated hypothesis, namely the cessation of work hypothesis, I note that there is material pointing to Mr Andrews ceasing work in July 2001, because of pain in his neck and right shoulder preventing him from continuing to undertake the plumbing work he was then doing. I observe that the material points to the pain arising from a number of arthritic joints, as well as from the neck and right shoulder conditions, with there being particular material pointing to the contribution of the neck and right shoulder conditions to the overall pain quantum, and more specifically to the defining of the underlying cause as why Mr Andrews was unable to continue with his work activities leading to a cessation of his employment. Such material is pointed to by the evidence of Mr Andrews, his wife, his employer Mr Crossingham, Dr Hopcroft, Dr Larkin and further clinical opinions defined subsequent to the cessation of his employment. Such material I note also points to Mr Andrews experiencing a stressful workload during the last six months of his employment.
59. I would further observe that there is material pointing to Mr Andrews experiencing financial hardship as a consequence of his cessation of employment as stated by his reference to reduction in income ($1,200 to $400 a week) associated with feelings of uselessness, loss of identity and feelings of worthlessness (Dr Quadrio).
60. Further I observe that this is material pointing to the clinical onset at the time Dr Robertson made such a diagnosis in March 2002, with Dr Robertson pointing to the loss of employment as the main precipitant of his mood symptoms.
61. In summary assessment I consider that there is material pointing to Mr Andrews experiencing a category 2 stressor, in that he had concerns about his work environment in that he perceived a lack of control over tasks performed and stressful workloads, with the lack of control pointed to by his inherent inability to control the pain levels associated with the tasks he was required to undertake and particularly those involved in overhead activities. Further, I consider there is material pointing to Mr Andrews suffering a loss of employment with the material pointing to a severe reduction in financial income, which was of much concern to him.
62. In such circumstances I consider the material before me points to and is congruent with each element of the nominated factor (vi). As a consequence I conclude that a reasonable hypothesis is raised linking Mr Andrews’ depressive disorder with his service.
63. In addressing factor (viii) I observe that there is material pointing to Mr Andrews having a medical injury, but I am unable to discern from a consideration of all the material that there is material pointing to the injury being life threatening or which results in serious physical or cognitive disability. While the term life threatening connotes a threat of impending gloom or doom, I would consider the word ‘serious’ must be read within such a context when assessing the nature of the physical or cognitive disability. Accordingly the word ‘serious’ should be defined as a significant or important disability in a context of living life, and not necessarily in the more narrow context of employment. In this matter, while there is material pointing to the nature of the disability, the material is constructed in such a manner as to identifying only in general terms a consideration of the disability essentially in pursuit of effects on continuing employment in a range of specific physical pursuits.
64. In such circumstances I consider the material before in relation to factor (viii) does not point to and is not congruent with each element of the factor. I find that a reasonable hypothesis is not raised, as a consequence of addressing factor (viii).
65. Finally, I observe in relation to factor (ix) that there is material pointing to Mr Andrews experiencing chronic pain for a period at least three months prior to the clinical onset of depressive disorder. Such material is to be found in the evidence of Mr Andrews, his wife, his last employer, Dr Larkin’s report of 24 July 2001 and the reports of Dr Hopcroft from 1998 onwards, as well in the many clinical reports created in subsequent years. Further, I have already noted that there is material pointing to the clinical onset of depressive disorder in March 2002 (Dr Robertson’s report), with the material pointing to Mr Andrews’ pain symptomatology continuing after the cessation of work in July 2001, with some temporary amelioration post surgery in 2004 for repair of the right rotator cuff.
66. I consider that there is material before me that points to and is congruent with each element of factor (ix). I conclude that, as a consequence, a reasonable hypothesis is raised linking Mr Andrews’ depressive disorder with his service.
67. Finally, I turn my attention to whether one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt or whether the truth of a fact inconsistent with a factual aspect of the hypothesis is proved beyond reasonable doubt. Earlier in this decision I raised issues over which confusion existed. These related to employment activities post service, and times, dates and what activities were undertaken when. I am satisfied that Mr Andrews did not set out to cause confusion, and despite inconsistency existing in this regard in some of the clinical reports, I remain of the view that by virtue of his many activities post service there was ample scope for Mr Andrews defining an inaccurate composition of employment activities as to time and date, and the clinician either correctly and or incorrectly recording what he was told. On this issue I draw no negative inference.
68. A further issue raised related to Mr Andrews’ pain symptomatology over time, the absence of complaints recorded in his treating general practitioner’s clinical notes and the quantity and nature of any analgesia prescribed and/or taken by Mr Andrews. Again, without further detailed evidence and analysis of such I can take the matter no further for, in essence, the corollary portrayed by the evidence is that Mr Andrews was a particularly hard working individual post service, who had a chronic pain disorder to which he had adapted over time and which deteriorated as the underlying physical conditions giving rise to the pain progressed down their degenerative clinical pathway.
69. Finally, in addressing the issue of the initial shoulder and neck injury in November 1970 when Mr Andrews was serving on HMAS Perth I observe that Mr Andrews has told his story as he remembers it. I note that there is some corroborating material in relation to both evidence of the judo team and Mr Andrews seeking assessment of a right shoulder condition in late November 1970. I observe that the period between 1970 and 1998 is notable in that Mr Andrews worked hard and that there is no clinical record before me of difficulties with his right shoulder and neck during that period. I note that Mr Andrews stated that he continued to experience some pain in his neck and right shoulder during this period, but that he was able to live with it. I note there is no evidence before me which indicates or infers the opposite.
70. In the circumstances, I have considered any finding that a fact upon which the hypothesis is based can be disproved beyond reasonable doubt or the finding of a fact beyond reasonable doubt inconsistent with a fact constituting the hypothesis cannot be made.
71. I conclude by finding that Mr Andrews must succeed in his claim insofar as the two conditions which are before me.
Determination
72. The decision under review is set aside insofar as it relates to the conditions of cervical spondylosis and major depressive disorder and in substitution thereof determines that:
(a)The diagnosis of the two conditions are:
(i)Cervical spondylosis
(ii)Depressive disorder – major depressive episode
(b)Both conditions are war caused.
(c)The date of effect is 11 December 2004.
(d)Both conditions are remitted to the Repatriation Commission for assessment of the rate at which pension is to be paid.
I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member.
Signed: .................[sgd]...............................................................
AssociateDate of Hearing 23 and 24 September 2008
Date of Decision 5 November 2008
Counsel for the Applicant Mr C Colborne
Solicitor for the Applicant Legal Aid Commission of NSW
Counsel for the Respondent Mr G L PurcellAdvocate for the Respondent Department of Veterans’ Affairs
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