Brennan and Repatriation Commission
[2003] AATA 1046
•16 October 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1046
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/893
VETERANS' APPEALS DIVISION
Re: GREGORY ARTHUR BRENNAN
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: G.D. Friedman, Member
Date: 16 October 2003
Place: Melbourne
Decision: The Tribunal affirms the decision under review.
(sgd) G.D. Friedman
Member
VETERANS' AFFAIRS ‑ veterans’ entitlements ‑ anxiety disorder ‑ whether depressive illness ‑ back pain ‑ whether war‑caused
Veterans’ Entitlements Act 1986 s9, 120, 120A
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Hill (2003) 69 ALD 581
Woodward v Repatriation Commission [2003] FCAFC 160
REASONS FOR DECISION
16 October 2003 G.D. Friedman, Member
1. This is an application by Gregory Arthur Brennan (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 3 July 2002. The VRB affirmed a decision of the Repatriation Commission (the respondent) dated 24 July 2001 to refuse the applicant's claim for pension for anxiety and depression because no diagnosable condition could be established. On 24 July 2001 the respondent accepted the applicant's localised osteoarthrosis of the right knee as war‑caused and assessed pension at 60 per cent of the general rate.
2. At the hearing of this matter on 3 October 2003, Mr D. De Marchi, solicitor, represented the applicant and Mr K. Rudge, an advocate with the Department of Veterans' Affairs, represented the respondent.
3. The Tribunal received into evidence the documents filed under s37 of the Administrative Appeals Tribunal Act 1975 (T1‑T17), together with three exhibits (A1‑A3) tendered by the applicant and six exhibits (R1‑R6) tendered by the respondent.
BACKGROUND
4. The applicant was born on 13 March 1918. He completed first year of secondary school and worked in a number of labouring jobs before joining the militia in 1939. On 1 October 1941 he enlisted in the Australian Army and served in New Guinea and postings in Australia until his discharge on 8 January 1946. His service constitutes operational service for the purpose of s9 of the Veterans' Entitlements Act 1986 (the Act).
5. After his discharge the applicant worked as a postman and then a tiptruck owner/driver for two or three years. He then spent eighteen months managing a hotel in New South Wales, before returning to Melbourne, where he worked for Australia Post for thirty years, until his retirement in 1983.
6. On 25 June 2001 the applicant made an application to the respondent for pension and medical treatment for anxiety disorder & depression related to my accepted back condition, in relation to lumbar spondylosis (disc degeneration) that had been accepted on 28 April 1998 as being war‑caused. Following the decision of the VRB the applicant lodged an application with the Tribunal on 22 August 2002 for review of the decision.
EVIDENCE
7. In oral evidence the applicant said that he served in the artillery and was a Bombardier in the 9th Field Regiment. He explained that during service in New South Wales, before a posting to New Guinea, he was required to lift cables and ride a motorcycle over rough terrain, and he fell off the motorcycle several times in about 1944 or 1945.. The applicant stated that as a result he developed lower back pain which continued after his discharge. He said that he has suffered pain in his back on and off for years, and sometimes feels a twinge, so he needs to be careful when bending or twisting. In about 1947 he suffered further back pain when travelling in a truck.
8. The applicant told the Tribunal that he has never had back surgery, and had been able to play golf until about four years ago. He still drives a motor car, and makes one or two trips to Sydney each year. He stated that he is often irritable and when he was employed by Australia Post he had considerable time off work because of anxiety about his back, his wife’s physical condition, his knee and his future generally. The applicant said that his back has been the major physical problem, and he has not discussed his anxiety with doctors.
9. In a written report dated 21 October 1998 (Exhibit R3) Dr T. Gidley, consultant psychiatrist, stated:
…
The veteran describes some symptoms of anxiety, however these are insufficient to warrant the diagnosis of a psychiatric disorder.
10. In a written report dated 18 July 2001 (T10) Dr N. Rose, consultant psychiatrist, stated:
…
There is no evidence that this man has ever suffered from an anxiety disorder or depression. …Given Mr Brennan’s assertion that he has always coped with his backache, it is hard to say that his previous alcohol abuse was related to service. I can only conclude that there has never been a service-related psychiatric condition. He does not require treatment for a service-related psychiatric condition.
11. In a written report dated 26 October 1999 (T15) Dr I. Parkin, consultant psychiatrist, stated:
…There is a clear anxiety disorder present which has been treated on occasions by general practitioners. However does not reach the criteria for generalised anxiety disorder and it is more that this fellow has become irritable and stroppy rather than a worrier… It is not an adjustment disorder nor it is a personality disorder... The best DSM-IV fit for this however is probably anxiety disorder not otherwise specified. He comes closer to a generalised anxiety disorder in diagnosis but his disorder is much more of irritability than of pure worry…
12. In a written report dated 7 June 2000 (Exhibit R1) Dr B. Kenny, consultant psychiatrist, referred to a number of anxieties raised by the applicant and stated:
…
But I am not convinced that this mild anxiety disorder is caused by his war service. What he seemed to find most stressful was being involved with trainees and one other incident where he had to stand guard over a vehicle that had crashed during the night, killing a service person.
…
So on balance I accept that he has a very mild anxiety disorder…
…
This man’s presentation really puts him on the boundary between normal "symptomatology" and a mild anxiety disorder.
13. In a further written report dated 19 September 2003 (Exhibit R2) Dr Kenny stated:
…
Well I think he suffers from a mild Generalised Anxiety Disorder as I mentioned in my prior report and I think that’s constitutional and a function of the obsessional aspects of his personality structure.
Dr Kenny stated that the applicant did not meet the requirements of any definition of depressive disorder.
14. In a written report dated 11 December 2002 (Exhibit A2) Dr E. Cole, consultant psychiatrist, stated:
…
His back still ached. The pain might trouble him every second or third day and last for a few hours. He was still worried over it as he was afraid it might get worse. A doctor had warned him to be careful how he bent over as he could be a cripple for life, with the result that he was very careful what he did. He gave up golf three years ago for that reason.
He was worried over his wife and was afraid she might fall…
He was irritable. However, he seldom felt depressed and did not feel that life was not worth living…
Dr Cole concluded that the applicant continues to suffer from an anxiety disorder due to a general medical condition, and that his main concern seemed to be his back injury.
15. In a further written report dated 2 June 2003 (Exhibit A1) Dr Cole stated:
…
In my reports I expressed the opinion that Mr. Brennan suffers from an anxiety disorder due to a general medical condition. I note, however, that the Statement of Principles for an anxiety disorder due to a general medical condition requires “Having an endocrine, cardiovascular, respiratory, metabolic or neurological disorder, where the disorder is a direct physiological cause of the anxiety at the time of the clinical onset of the anxiety disorder”.. This would appear to exclude a back injury…
On the question of a depressive disorder, Dr Cole stated:
…
In his consultations with me Mr. Brennan described symptoms of depression as well as anxiety, although I thought that the anxiety symptoms were more conspicuous and that a diagnosis of an anxiety disorder was more appropriate than that of a depressive disorder. However, I do not think that one can ignore the depressive component and he told me at the time of his first examination that he occasionally became depressed and that when his back was bad he felt that life was not worth living… Certain of his other symptoms including difficulty in concentrating, occasional indecision and sleep disturbance are met with depressive disorders as well as in anxiety disorders.
16. Dr Cole concluded that the applicant’s condition would meet the requirements of the definition of depressive disorder not otherwise specified, although he noted that the definition required as a disposing factor a seriously disabling injury, which he conceded was outside his field. In oral evidence Dr Cole stated that he did not believe that the applicant’s back injury was life‑threatening or seriously disabling, either physically or psychologically.
17. In a written report dated 5 February 2003 (Exhibit A3) Mr B. Dooley, orthopaedic surgeon, referred to the applicant’s back ache and the knee injury that he sustained in a rugby match during service, and stated:
…
The prognosis for both conditions is good.
No specific treatment is required for his lumbar spondylosis, as it causes minimal trouble.
No specific treatment is required for his right knee condition…
His age also contributes to his developing fatigue and in restricting his mobility.
CONSIDERATION OF THE ISSUES
18. Section 9(1) of the Act provides:
9(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
19. The process of deciding whether the material before the Tribunal raises a reasonable hypothesis connecting a disease, injury or death to war service where s120 and s120A of the Act apply was laid down by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 as a four‑step process:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP [Statement of Principles] determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
20. In Statement of Principle (SoP) N° 1 of 2000, concerning anxiety disorder, the relevant factors are:
5.(a)…
(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
…
(iv)having a major illness or injury within the two years immediately before the clinical worsening of anxiety disorder…
In paragraph 8 of SoP N° 1 of 2000, major illness or injury is defined as a disease or injury that is life‑threatening or seriously disabling. Severe psychosocial stressor is defined as an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.
21. In SoP N° 58 of 1998, concerning depressive disorder, the relevant factors are:
5…
(b) experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder;
…
(d) having a major illness or injury within the two years immediately before the clinical onset of depressive disorder;
…
(e) suffering from chronic pain of at least six months duration at the time of the clinical onset of depressive disorder…
In paragraph 8 of SoP N° 58 of 1998, chronic pain is defined as 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. Major illness or injury is defined as a serious illness or injury that is life‑threatening, or seriously disabling. Severe psychosocial stressor is defined in similar terms as in the SoP for anxiety disorder.
22. Mr De Marchi submitted that the evidence was clear that the applicant suffered from an anxiety disorder. He also said that a diagnosis must be determined on the balance of probabilities (Repatriation Commission v Hancock [2003] FCA 711) and that the Tribunal should accept the evidence from Dr Cole that the applicant also suffered from a depressive disorder.
23. Mr De Marchi submitted that the material points to hypotheses connecting the conditions of anxiety disorder and depressive disorder with the circumstances of the particular service rendered by the applicant, and that the hypotheses fit within the template and are reasonable. In respect of the back condition he said that the applicant had raised with at least two psychiatrists the question: Is it worthwhile going on? Mr De Marchi submitted that this demonstrates that the injury was life‑threatening. He said that the applicant had suffered almost continuous pain, which had interfered with his work and leisure over many years, and that this constituted chronic pain. Mr De Marchi noted that several medical practitioners had referred to worry expressed by the applicant over the death of his brother in a bombing raid during the war. Mr De Marchi submitted that this constituted a psychosocial stressor as defined in Woodward v Repatriation Commission [2003] FCAFC 160, and said that the Full Federal Court noted that a stressor does not require physical presence or an event to be witnessed.
24. Mr Rudge conceded that the diagnosis of mild generalised anxiety disorder was satisfied, but that the weight of evidence was that the applicant does not suffer from depressive disorder. He submitted that the evidence about the applicant’s brother related to the brother’s service only, and not to the applicant's service. He said that there was no credible evidence that the applicant’s lumbar spondylosis or anxiety arising from the back condition were life‑threatening or sufficiently disabling to constitute major illness or injury within the two years immediately before the clinical onset of either anxiety disorder or depressive disorder as defined in the SoPs.
25. Mr Rudge noted the applicant’s evidence that he played golf until after he was 80 years old, and that he suffered back pain on and off. Mr Rudge submitted that this does not constitute chronic pain as defined in the SoP.
26. The Tribunal reached its decision taking into account the written and oral evidence and the submissions made at hearing.
27. In considering the evidence concerning diagnosis in respect of a depressive disorder the Tribunal notes that Dr Cole is the only psychiatrist to suggest that the applicant suffered from this condition. The Tribunal notes that Dr Cole reached this conclusion in his report dated 2 June 2003 after conceding in earlier reports that the applicant suffered from an anxiety disorder due to a general medical condition but would have difficulty in satisfying the relevant factor in the SoP because of the circumstances of his back injury. The Tribunal prefers the evidence of Dr Kenny and finds on the balance of probabilities that the applicant does not suffer from a depressive disorder.
28. In respect of anxiety disorder the Tribunal accepts the overwhelming psychiatric evidence that the applicant is suffering from a generalised anxiety disorder.
29. Step 3 in Deledio requires that an opinion be formed as to whether the hypothesis is reasonable. That is, whether there is material supporting or pointing to the hypothesis connecting the applicant’s injury or disease with the circumstances of the service rendered by him. If the hypothesis is consistent with the template in the relevant SoP, then it will be reasonable.
30. In respect of factor 5(a)(ii) of SoP N° 1 of 2000, in relation to experiencing a severe psychological stressor, the Tribunal takes into account that in reports by medical practitioners the applicant’s anxiety and worry were concerned primarily with his back pain and his concerns for his wife’s health and his future well‑being. In his oral evidence the applicant did not refer to the death of his brother as a cause of particular anxiety, although there was a brief mention in Dr Kenny’s report dated 7 June 2000 that the applicant said that he sometimes worried about his wartime experiences such as the loss of his brother. The Tribunal does not consider that any of these experiences comes within the definition of severe psychological stressor, and there were no other identifiable occurrences that would satisfy the definition.
31. In respect of factor 5(a)(iv) of the SoP, in relation to having a major illness or injury, the Tribunal notes the evidence from Mr Dooley that the applicant’s back injury causes minimal trouble and that no specific treatment is required for this or the applicant's right knee. The Tribunal also takes into account the applicant’s oral evidence that he played golf until four years ago, and that his back pain occurs on and off and did not prevent him from undertaking full‑time employment before retiring at the age of 65 years. Therefore the back condition does not fit within the definition of major illness or injury.. Similarly, there is no evidence that the anxiety experienced by the applicant could be described as life‑threatening or seriously disabling, that would bring the condition within the definition.
32. In Repatriation Commission v Hill (2003) 69 ALD 581 the Full Federal Court stated at 596:
…
If an essential element of a hypothesis is not raised (or pointed to) by the material before the decision-maker, then the hypothesis is not raised by that material: cf East at FCR 533…
Overall, there is no material or evidence pointing to the applicant meeting the relevant factors in the SoP. Therefore, the hypotheses are deemed not to be reasonable hypotheses, as they are not consistent with the template. As a result, the claim must fail.
DECISION
33. The Tribunal affirms the decision under review.
I certify that the thirty-three [33] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Member
(sgd) Olympia Sarrinikolaou
Clerk
Date of hearing: 3 October 2003
Date of decision: 15 October 2003
Advocate for applicant: Mr D. De Marchi
Solicitor for applicant: De Marchi & Associates
Advocate for respondent: Mr K. Rudge
Solicitor for respondent: Advocacy Section, Department of Veterans’ Affairs
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