Bernard Howes and Repatriation Commission
[2014] AATA 568
[2014] AATA 568
Division Veterans' Appeals Division File Number
2013/3650
Re
Bernard Howes
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Dr P McDermott RFD, Senior Member
Date 15 August 2014 Place Brisbane The Tribunal affirms the decision under review.
.........................[Sgd]...........................................
Dr P McDermott RFD, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS– Applicant served in Royal Australian Air Force – Applicant suffers from adjustment disorder – Whether adjustment disorder is defence-caused – Insufficient evidence to conclude applicant suffers from adjustment disorder – Whether applicant suffered category 2 stressor within the 3 months before clinical onset – No evidence of date of clinical onset provided – Decision under review affirmed.
LEGISLATION
Veterans’ Entitlement Act 1986 (Cth) ss 69, 120, 120B
CASES
Kaluza v Repatriation Commission [2011] FCAFC 97
Lees v Repatriation Commission (2002) 125 FCR 311
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Bawden [2012] FCAFC 176
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Warren (2007) 95 ALD 606
SECONDARY MATERIALS
Statement of Principles concerning adjustment disorder (Instrument number 38 of 2008)
Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
15 August 2014
INTRODUCTION
Mr Bernard Howes (“the applicant”) has made a claim under the Veterans’ Entitlement Act 1986 (Cth) (“the Act”) for an adjustment disorder condition which arose out of his service with the Royal Australian Air Force (RAAF). I give my reasons below as to why his claim should not be accepted.
SERVICE
The applicant served in the RAAF from 1972 until 1991. His period of service from
7 December 1972 until when he was discharged in 1991 qualifies as eligible defence service under s 69 of the Act.
BACKGROUND
The applicant in his additional statement dated 17 June 2014 refers to “the 30 months (from 1989-1991) when I was bullied, harassed and discriminated against by colleagues and senior officers”. The applicant also remarked:
During the final three years of my service with RAAF 1989-1991, I felt mentally and physically debilitated, as almost every week there would be some incident or example of hostile behaviour from those I worked with which left me with feelings of depression, helplessness, insecurity, lethargy, hopelessness and distress.
In 1991 the applicant left the service of the RAAF after he sought a voluntary discharge. He stated that following this:
I spent some time on the road in a motor home with my second wife and due to the stresses I had faced we eventually parted ways, and a new job again ended in dispute as I was subject to administrative unfairness in a work environment which again brought out many symptoms I had first experienced whilst employed at RAAF.
This job dispute occurred in 2006 when the applicant had a breakdown after a pay dispute with his employer. Dr Anderson stated that the applicant “broke down completely” on that occasion.
MEDICAL EVIDENCE
On 7 October 2010 Dr Bob Anderson, psychiatrist, wrote a report in which he opined that the applicant suffered from an adjustment disorder. In that report, Dr Anderson concluded: “he has all the features of Generalised Anxiety Disorder”. Dr Anderson added: “From my clinical notes, I am able to say that there were no stressors prior to
Mr Howe’s service, or since then, that have contributed to his emotional condition”.Recently, Dr Vogelpoel wrote a report on 27 May 2014 in which he remarked:
I consider that it is highly likely that Richard’s psychological and emotional difficulties and the symptoms of “adjustment disorder” (with which he was diagnosed in both 2006 and again in 2010) and which have recurred over the years, arose initially from circumstances, activities and treatment which Richard experienced in his work place and as a member of the RAAF but particularly during the period 1989-1991.
There is no evidence in any of the reports from 2006 and 2008 of the applicant being diagnosed with adjustment disorder.
In the clinical notes of Dr Anderson is a statement that the applicant “used to have an interest in diving but gave it up in 1991”. The applicant informed the Veterans’ Review Board that he underwent a “diving medical just before discharge…in about April ‘91” which he passed.
CONSIDERATION
The applicant has asked that this application be decided having regard to the documentary evidence that has been admitted. The applicant did not give any oral evidence in support of his application.
I am required to consider whether the applicant’s claimed adjustment disorder condition is related to his service.
Section 120(4) of the Act provides that in determining whether an injury or disease is defence-caused the respondent is to decide the matter to its “reasonable satisfaction”. In Repatriation Commission v Smith (1987) 15 FCR 327 at 335 the Federal Court of Australia held that the expression “reasonable satisfaction” refers to the civil standard of proof which is proof on the balance of probabilities. Section 120(6) of the Act provides that the applicant does not bear any onus of proof.
Section 120B(3) of the Act provides:
(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12);
…
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
The applicant and the respondent both accept that for the applicant to succeed in his claim, his contention that his adjustment disorder condition is defence-caused has to be upheld by the Statement of Principles concerning adjustment disorder (No 38 of 2008) (“SoP”).
The applicant relies upon the factor at cl 6(d) of the SoP which refers to “experiencing a category 2 stressor within the three months before the clinical onset of adjustment disorder”.
A “category 2 stressor” is relevantly defined in cl 9 of the SoP as follows:
"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 on-going distress, concern or worry:
...
(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;
The additional statement of the applicant is certainly evidence of on-going disharmony within the workplace from 1989 to 1991.
The first matter that I must consider is whether the applicant suffers from an adjustment disorder condition. In Repatriation Commission v Warren (2007) 95 ALD 606,
Kiefel J, at [25], remarked:
The requirement that the Tribunal be reasonably satisfied that the veteran suffers from the claimed disease will usually require medical opinion. A clinical diagnosis of a condition classified under DSM-IV would necessarily have regard to that manual and the criteria provided by it.
Kiefel J, at [13], also had regard to the fact that the introduction to DSM-IV entitled
“Use of Clinical Judgment” provides guidance on the proper use of the DSM-IV manual. The remarks of Kiefel J were recently cited in Repatriation Commission v Bawden [2012] FCAFC 176 at [44].On the state of the evidence before me I cannot make a finding that the applicant has an adjustment disorder condition. This is because the reports of Dr Anderson and
Dr Vogelpoel do not contain any reference to the criteria in the DSM-IV (now the
DSM-V) upon which their opinion is based.
Whilst there is insufficient evidence to enable me to make a finding that applicant has an adjustment disorder condition, I will discuss a central issue that would arise if I was to find (which is not the case) that the applicant had an adjustment disorder condition. That issue is whether the clinical onset of the condition was within 3 months of the claimed stressor.
The term “clinical onset” is not defined within the SoP. However, in Lees v Repatriation Commission (2002) 125 FCR 311 (“Lees”) , the Federal Court of Australia approved the statement of this Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668 at 670 where this Tribunal concluded:
there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.
In Kaluza v Repatriation Commission [2011] FCAFC 97 at [62] the Federal Court of Australia explained that the test in Lees did not require that all the required symptoms had to be displayed and treatment sought in order to determine clinical onset. The Federal Court of Australia clarified that the test is as follows:
there is clinical onset of a disease either when a person becomes aware of some feature or symptom which enables a doctor to say that a disease was present at that time, or when a finding is made on an investigation which is indicative to a doctor of the disease being present (emphasis added).
The case of the applicant is that his adjustment disorder condition was caused by his treatment in the RAAF between 1989 and 1991. Dr Anderson stated that the applicant suffered from a number of incidents including where he was not selected for promotion to a commissioned officer rank. Dr Anderson also remarked that since 1988 the applicant has suffered from both anxiety and depression. There are no medical reports from the years 1989 to 1991 which indicate that the applicant suffered from any psychiatric condition.
When the applicant completed his claim form on 31 March 2010, he declined to answer a question in the section relating to his claim for emotional problems that asked: “when did you first become aware of the signs and symptoms of the disability or aggravation of the disability? (approx. date if known)”. The applicant informed the Veterans’ Review Board that “the first time I had a clinical onset and actually had a medical diagnosis, was in 2006”. It is, of course, possible for the clinical onset of the condition to have occurred much earlier than 2006 provided that there is evidence of some feature or symptom which enables a doctor to say that a disease was present at that time.
After reviewing the evidence before me I conclude that there is no evidence of any feature or symptom which enables a doctor to say that the applicant had an adjustment disorder condition within 3 months of the claimed stressor. I have already mentioned that the applicant in his claim form declined to answer when he had first become aware of the symptoms. The applicant has also elected not to give any evidence in support of his application and has not given any oral evidence of his symptoms. The applicant in his additional statement does not give any evidence of any particulars of the necessary features or symptoms which would enable a doctor to form an opinion on when there was clinical onset of the claimed condition.
I mention that the report of Dr Anderson refers to the requirement in the factor at
cl 6(d) of the SoP that the applicant must have been “experiencing a category 2 stressor within the [three] months before the clinical onset of adjustment disorder”. However, that report Dr Anderson does not express any opinion as to the date of clinical onset of the claimed condition.CONCLUSION
I affirm the decision under review.
I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member ............................[Sgd].........................................
Associate
Dated 15 August 2014
Date of hearing 17 July 2014 Solicitors for the Applicant Ms Brenda Heather-Latu, Latu Lawyers Solicitors for the Respondent Mr Adrian Crowe, Department of Veterans' Affairs
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