Brian French and Repatriation Commission
[2012] AATA 415
•4 July 2012
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2010/2023
Veterans' Appeals Division )
Re: Brian French
Applicant
And: Repatriation Commission
RespondentCORRIGENDUM
TRIBUNAL: Justice Kerr, President
DATE: 10 May 2016
PLACE: Sydney
In accordance with section 43AA of the Administrative Appeals Tribunal Act 1975, the decision dated 4 July 2012 is amended as follows:
The heading above paragraph 14 be deleted and replaced with “Does the material ‘point to’ a hypothesis connecting Mr French’s condition to service?”
In the last sentence in paragraph 27 delete the words “for 12 years”.
......................[sgd]..........................................
Justice Kerr, President.
French and Repatriation Commission [2012] AATA 415 (4 July 2012)
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2010/2023
Re
Brian French
APPLICANT
And
Repatriation Commission
RESPONDENT
Decision
Tribunal Senior Member A K Britton
Date 4 July 2012 Place Sydney The decision under review is affirmed.
...............................[sgd].........................................
Senior Member A K Britton
Catchwords
VETERANS' ENTITLEMENTS - veteran suffered generalised anxiety disorder - whether war caused - material did not point to clinical onset within relevant period under SoP - satisfied beyond reasonable doubt that veteran did not experience clinical onset within relevant period - condition not war caused - decision under review affirmed
Legislation
Veterans’ Entitlements Act 1986 (Cth) - ss 13, 120, 120(4), 120A
Cases
Repatriation Commission v Deledio (1998) 83 FCR 82; [1998] FCA 391
Hardman v Repatriation Commission [2005] FCAFC 83
Lees v Repatriation Commission (2002) 125 FCR 331; [2002] FCAFC 398
Re Robertson v Repatriation Commission (1998) 50 ALD 668
Re Bushell and Repatriation Commission (1992) 175 CLR 408; [1992] HCA 47
Re Byrnes and Repatriation Commission (1993) 177 CLR 564; [1993] HCA 51
Repatriation Commission v Cornelius [2002] FCA 750Repatriation Commission v Brady [2007] FCA 1087
REASONS FOR DECISION
Senior Member A K Britton
Mr Brian French served in the Royal Australian Navy from 4 January 1967 to 3 January 1979. He claims he now suffers from a “war-caused” psychiatric condition — “Generalised Anxiety Disorder”. Mr French seeks review of the decision made by the Repatriation Commission, affirmed on review by the Veterans’ Review Board, that this condition was not war-caused. The key issues to be determined in this review are whether, as claimed, Mr French suffers from a Generalised Anxiety Disorder and, if so, whether it was “war-caused”.
Does Mr French suffer from AN anxiety disorder?
The Commission’s original decision-maker found that Mr French suffered from an anxiety disorder. That decision was affirmed on internal review and by the Veterans’ Review Board. While Mr French does not challenge that conclusion, it forms part of the reviewable decision and therefore must be addressed. I must be reasonably satisfied that he suffers from the claimed condition (s 120(4) of the Veterans’ Entitlements Act 1986 (Cth) (the Act)).
Mr French contends that he suffers from a Generalised Anxiety Disorder (GAD) as defined by the Statement of Principles concerning Anxiety Disorder No.101 of 2007 (the SoP). The Commission disagrees. The SoP defines a GAD to mean:
… a psychiatric disorder (derived from DSM-IV-TR) with the following features:
A. Excessive anxiety and worry (apprehensive expectation), which occur on more days than not for a continuous period of at least six months, about a number of events or activities; and
B. The person finds it difficult to control the worry; and
C. The anxiety and worry are associated with three or more of the following six symptoms, with at least some symptoms present for more days than not during the previous six month period:
(1) restlessness or feeling keyed up or on edge
(2) being easily fatigued
(3) difficulty concentrating or mind going blank
(4) irritability
(5) muscle tension
(6) difficulty falling asleep or staying asleep; and
D. The focus of the anxiety and worry is not confined to features of any other Axis I disorder; and
E. The anxiety, worry, or physical symptoms (as described in C. above) cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and
F. The anxiety and worry are not due to the direct physiological effects of a substance or a general medical condition and do not occur exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder;
Mr French has been assessed by psychiatrists Drs Karl Koller and John Roberts. Each prepared reports for, and gave oral evidence in, these proceedings. Mr French has been under Dr Koller’s care since referred for assessment in July 2008. Dr Roberts examined Mr French at the request of the Commission on one occasion in April 2011.
Dr Koller believes that Mr French suffers from a GAD and meets the diagnostic criteria set out in the SoP. Dr Roberts on the other hand believes that Mr French meets some but not all of the criteria. The critical point of difference between the experts is whether Mr French satisfies Criteria A and B. While Dr Roberts agrees that Mr French suffers from excessive anxiety and worry, he believes that Mr French’s symptoms are neither persistent nor chronic. In Dr Roberts’s opinion, the comment made by Mr French during assessment — “If I’m left alone I am as happy as a pig in a mud hole” — revealed that there are times when Mr French is free of worry, an outcome in his opinion incompatible with a diagnosis of GAD. He contended that while a person who suffers from GAD might have good and bad days, at all times they would have a baseline of worry and anxiety. For these reasons, he concluded that Criterion A is not satisfied.
Dr Koller on the other hand was firm in his opinion that Mr French satisfies both Criterion A and B. He described Mr French as a “chronic worrier” who worries about all manner of things, from the trivial to the significant. On Dr Koller’s account he has observed the chronicity of Mr French’s condition throughout the four years he has been under his care. By way of example, he pointed to his interaction with Mr French in respect of these proceedings — where Mr French repeatedly checked and rechecked that, as agreed, he would be attending to give evidence. This example, Dr Koller contends, illustrates his patient’s obsessional tendencies and chronic anxiety. In his opinion the “pig in mud” comment relied on by Dr Roberts indicates nothing more than Mr French feels relatively safe in his home environment. According to Dr Koller’s account, throughout the period Mr French had been under his care, he suffered from “anticipatory anxiety” even when in his home environment.
For essentially the same reasons, the experts disagree about whether Mr French satisfies Criterion B — “difficulty controlling the worry”. Dr Roberts is of the opinion that the “pig in mud” comment indicated that Mr French was sometimes capable of controlling his worry and anxiety. Dr Koller, on the other hand, believes that even in his home environment, Mr French can become overwhelmed with feelings of anxiety and worry and is unable to control those feelings.
There is no argument that Mr French meets the diagnostic criteria of GAD apart from Criteria A and B. It is notoriously difficult to assess whether a person suffers from symptoms such as anxiety and worry, to the requisite degree of severity and frequency so as to satisfy a diagnosis of GAD, especially where, as in this case, the assessor is almost entirely reliant on the person’s self-report. While possible, as Dr Roberts believes, that there are significant periods where Mr French has been free of “excessive worry and anxiety”, I am satisfied that the condition is chronic. It is to be noted that Criterion A does not require the sufferer to experience “excessive anxiety and worry” at all times, rather “on more days than not for a continuous period of at least six months”. It seems to me that even on Dr Roberts’ analysis, Mr French satisfies that requirement. Furthermore I note that as conceded, the sole basis for Dr Roberts’ opinion is the “pig in mud” comment and that Dr Koller has had the immeasurable advantage of observing Mr French over an extended period of years. I am satisfied on the basis of Dr Koller’s evidence that Mr French fulfils Criterion B.
I find that Mr French suffers from GAD as defined by the SoP.
Was Mr French’s anxiety disorder war-caused?
The Commonwealth will be liable to pay a pension by way of compensation to Mr French in respect of his anxiety disorder if it is “war-caused” (s 13 of the Act). Mr French claims that his condition was the result of “operational service” rendered between:
·21 October to 12 November 1970
·15 February to 4 March 1971
·26 March to 8 April 1971
·13 May to 1 June 1971, and
·20 September to 16 October 1971
Therefore the “standard of proof” to be applied is as prescribed by ss 120 and 120A of the Act.
Section 120 provides:
Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from … disease of a veteran … , relates to the operational service rendered by the veteran, the Commission shall determine that the … disease was a war-caused disease …, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, … , related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) …
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) …;
as the case may be, if the Commission, 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 rendered by the person.
Note: This subsection is affected by section 120A.
Section 120A is headed “Reasonableness of hypothesis to be assessed by reference to Statement of Principles” and relevantly provides:
(3) For the purposes of subsection 120(3), a hypothesis connecting … a disease contracted by a person … with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11);
...
that upholds the hypothesis.
The approach to be taken when applying these provisions was authoritatively determined by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 (Deledio) and involves a four-step process:
(i) First, the decision-maker must consider whether all the material before it points to a hypothesis connecting the [disease] with the circumstances of the particular service rendered by the veteran.
(ii) Second, if the material raises such a hypothesis, the decision-maker must ascertain whether there is a Statement of Principles in force.
(iii) Third, if so, the decision-maker must consider whether the hypothesis is reasonable by determining whether it is consistent with the “template” found in the Statement of Principles.
(iv) Fourth, the decision-maker must then consider, under s 120(1), whether it is satisfied beyond reasonable doubt that the [disease] was not war-caused.
DOES THE MATERIAL “POINT TO” A HYPOTHESIS CONNECTING MR FRENCH’S DEATH TO SERVICE?
There is no argument that the first two steps of Deledio are met. The issue in dispute is whether Steps 3 and 4 are also satisfied.
Step 3 will be satisfied if the advanced hypothesis is consistent with the template found in the relevant Statement of Principles, in this case SoP No. 101 of 2007. Under that SoP, before it can be said that a reasonable hypothesis has been raised connecting the veteran’s GAD with the circumstances of their service, at least one of the factors listed in cl 6 must exist. Mr French relies upon cl 6(a)(i) and 6(a)(ii):
(ii) experiencing a category 1A stressor within the five years before the clinical onset of anxiety disorder; or
(ii) experiencing a category 1B stressor within the five years before the clinical onset of anxiety disorder; …
"A category 1A stressor" is defined to include the following severe traumatic event:
(a) experiencing a life-threatening event
"A category 1B stressor" is defined to include one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) …
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) …
Fact-finding at this stage is impermissible (Hardman v Repatriation Commission [2005] FCAFC 83). Nonetheless there must be “material” that “points to” each element of the SoP. In this case there must be material that points to:
(i) Mr French experiencing a Category 1A or 1B stressor (a stressor) during operational service, and
(ii) The clinical onset of GAD within five years of that experience.
Is there material which “points to” Mr French experiencing a category 1A or 1B stressor?
Mr French claims that the following incidents occurred while he was on operational service travelling by sea between Australia and South East Asia. He contends that each constitute a stressor.
Scare Charges Incident
Mr French testified that he was in the engine or boiler room below the water line on the HMAS Sydney when, he believes, scare charges were thrown from both upper decks and the guard boat. He claimed that he had not been forewarned or received training about scare charges and “wondered what the hell was going on”. He claimed that he was aware of the possibility that enemy divers might try and plant explosives on the ship and this together with the “motorboats circling the ship, with booms attached” caused him to be alarmed and fearful for his life.
Asian Worker Incident
Mr French claims that the Asian workers on board the HMAS Sydney were poorly treated. He claimed that he witnessed a brutal physical assault of an Asian worker at the hands of a sergeant. He said he felt sick and powerless. He did not know what became of the worker.
Man Overboard Incidents
Mr French recalls witnessing two “man overboard” incidents while on board the HMAS Sydney. In the first, the man over board, an Ordinary Seaman, was retrieved by a passing freighter. In the second, Mr French was involved in the recovery operation and was present when the seaman was brought back on board “obviously in a bad way”.
Conclusion
I am satisfied that there is material which “points to” each of these incidents as described. For present purposes I will assume but not decide that the scare charge incident constitutes a Category 1A stressor and the Asian Worker and the Man Overboard incidents, Category 1B stressors.
Is there material which points to clinical onset of GAD within five years of experiencing the stressor?
The meaning of the term “clinical onset” was considered by the Full Court in Lees v Repatriation Commission (2002) 125 FCR 331. Apparently endorsing the conclusion reached by the Tribunal in Re Robertson v Repatriation Commission (1998) 50 ALD 668, the Court held (at 336-7) that there is clinical onset of a disease, when:
·a person becomes aware of some features or symptoms which enable a doctor to say that the disease was present at that time; or
·a finding is made on investigation which is indicative to a doctor that the disease is present.
In Lees the Full Court held (at 337) that clinical onset will not be established if only some of the symptoms (or features) of GAD are present
In relation to SoP1, the definition of “generalised anxiety disorder” does not suggest that the disease exists if only some but not all of the symptoms (or features) are manifest. The exception to this statement is para C which provides that only three of the six specified symptoms are necessary for the disease to exist, though in the frequency and for the period identified. The purpose of the definition is to identify those symptoms (or features) which, if observed by a clinician, would warrant a conclusion that the patient suffered from generalised anxiety disorder. While it is true that Statements of Principles are directed to causation, the means of establishing the necessary link in SoP1 between disease and war service is to require that the symptoms (or features) of the disease are, in a case such as the present, revealed within two years of the veteran experiencing a severe psychosocial stressor (relevantly, during operational service). This is intended to establish sufficient proximity between the experiences during operational service and the manifestation of the disease to point to a causal link to sustain the hypothesis.
Mr French was unable to identify with precision when the claimed stressors occurred. For present purposes I will assume but not decide that each occurred sometime between the first and last day of operational service, i.e. 21 October 1970 to 16 October 1971. Adopting that approach, I must decide whether the material “points to” clinical onset of GAD within five years of that period, that is, 21 October 1970 to 16 October 1976 (the relevant period). In undertaking this task, I must have regard to “the whole of the material” (Re Bushell and Repatriation Commission (1992) 175 CLR 408 at 413; Re Byrnes and Repatriation Commission (1993) 177 CLR 564 (Byrnes) at 571).
There is no contemporaneous material that points to Mr French experiencing clinical onset within the relevant period. Nor is there anything to suggest that he reported, or was observed to suffer, any of the symptoms of GAD, at any time during the relevant period. When assessed by a naval psychologist in May 1976 he was recommended as suitable for transfer to the navy police where he served without incident for 12 years.
The absence of contemporaneous medical evidence is not fatal to Mr French’s case. A medical practitioner’s opinion that post-dates the date of clinical onset may in certain circumstances constitute “material” for the purpose of establishing the date of clinical onset. (See for example Lees where the Full Court held that a history of symptoms given to a psychiatrist after clinical onset constitutes “material” that the tribunal should have taken into account.)
Mr French contends that Dr Koller’s opinion constitutes “material” of clinical onset occurring within the relevant period. In a report dated 1 July 2008 prepared in the context of Mr French’s claim for GAD, Dr Koller did not record the history of the development of Mr French’s condition or offer an opinion about the date of clinical onset. In a supplementary report, dated 31 August 2011, Dr Koller wrote:
I understood you are at some loss of the dates of commencement of 1A and 1B stressor.
He served on Navy ships to Vietnam in 1970/71. Actual dates are not recalled by the Veteran simply the years.
I stated in my report that he experienced category 1A and 1B stressor within two years before the clinical onset of anxiety disorder.
In oral evidence, Dr Koller stated that having treated numerous veterans for anxiety-type conditions he was confident that stressors of the type described by Mr French were capable of causing GAD, particularly given his relative youth, inexperience and the stressful conditions of naval service. He conceded that he had not taken a history from Mr French and “very much doubted” that Mr French would be capable of providing such information.
While settled that an expert’s opinion can constitute “material” for the purpose of determining the timing of clinical onset, there must nonetheless be a proper basis for that opinion. Dr Koller’s opinion that clinical onset occurred within the relevant period was not based on any available information relating to Mr French but rather on the assumption that Mr French fitted what he believed to be a “general pattern” among veterans who have experienced similar stressors. In my respectful opinion, Dr Koller did not turn his mind to the particular facts of Mr French’s case and what led him to conclude that Mr French’s experience fitted the general pattern. Absent a proper foundation for his opinion, it could not be said to constitute “material”.
In determining whether there is material that points to the date of clinical onset the Tribunal is not confined to medical evidence and can have regard to, among other things, evidence given by the veteran. (Repatriation Commission v Cornelius [2002] FCA 750 at [26]; cf Repatriation Commission v Brady [2007] FCA 1087 at [36-7]).
Mr French’s evidence was to the effect that he never felt “quite the same” after his period of naval service. He said he found each of the stressors “deeply disturbing”. He stated that he strongly believed that his anxiety condition started on the first day he served on the HMAS Sydney. He testified that after “the incident” he did not talk to anyone about “his problems” and kept largely to himself. He said that apart from seeing a counsellor sometime in the late 1990s he did not seek treatment for his condition until he saw Dr Koller in 2008. While at pains to point out that after leaving the naval police in 1979, he regularly changed jobs, he conceded that he had been in gainful employment until the late 1990s.
The general account given by Mr French could not be said to point to material of him becoming aware of some features or symptoms which would enable a doctor to say that GAD was present at some point within the relevant period.
Summary
Before it can be said that a reasonable hypothesis has been raised connecting Mr French’s GAD with the circumstances of his service, there must be material that points to each element of the hypothesis, including Mr French experiencing clinical onset of GAD within the relevant period. Having scrutinised the material before me, I conclude it does not point to this element of the hypotheses. Accordingly the third step of Deledio is not met.
Satisfied beyond reasonable doubt that GAD was not war-caused?
In case I am wrong in finding that the material does not point to Mr French experiencing clinical onset within the relevant period, I will proceed to consider whether I can be satisfied beyond reasonable doubt that there is no sufficient ground for deciding that his GAD was not war-caused. In Byrnes (at 571) the High Court explained that by the operation of s 120(1), a claim will succeed unless:
(a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.
I must decide whether any of the facts on which Mr French’s hypothesis rests are disproved beyond reasonable doubt, or whether another fact or facts, inconsistent with the advanced hypothesis, is proved beyond reasonable doubt. Neither party bears an evidentiary onus (s 120(6) of the Act).
As noted, there is no contemporaneous evidence to support Mr French’s claim that he experienced the clinical onset of GAD within the relevant period. Taken at its highest, the evidence he gave in these proceedings would not support such a finding. The evidence of Mr French being assessed as suitable for employment with the naval police within the relevant period while not determinative, it is not corroborative of his claim of suffering clinical onset within this period. For the reasons as given, Dr Koller’s opinion does not assist Mr French on this point.
I am satisfied beyond reasonable doubt that Mr French did not experience clinical onset of GAD within the relevant period. Given this finding it is not necessary to decide whether any other elements of the advanced hypothesis have been disproved to the requite standard. It follows that that Mr French’s GAD was not war-caused.
Summary
For the reason as given I conclude that Mr French’s GAD was not war-caused and for that reason I affirm the decision under review.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton ................................[sgd]........................................
Associate to Senior Member A K Britton
Dated 4 July 2012
Date(s) of hearing 21 and 30 May 2012
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