Bromfield and Military Rehabilitation and Compensation Commission
[2012] AATA 864
•10 December 2012
[2012] AATA 864
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2008/5796
Re
David Bruce Bromfield
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal The Hon R J Groom AO (Deputy President)
Date 10 December 2012 Place Hobart The decision under review is affirmed.
[Sgd Hon R J Groom AO]
Deputy President
CATCHWORDS
Compensation - army service - in January 1999 liability accepted for "episode of mild depression" - determination made in January 2008 ceasing liability for that condition - whether episodes of depression continued after January 2008 - whether those episodes of depression were contributed to in a material degree by employment in the Army - episodes of depression did continue after January 2008 - the applicant's army service did not contribute to those episodes of depression - decision under review affirmed
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 ss 4(1), 14 (1)
REASONS FOR DECISION
The Hon R J Groom AO (Deputy President)
INTRODUCTION
This is a review of a decision by the respondent ceasing payment of compensation to Mr Bromfield for “episode of mild depression” which he contends was contributed to by his service in the Australian Army.
BACKGROUND
Mr Bromfield enlisted in the Australian Army on the 13 July 1992. He was discharged as medically unfit on the 1 March 1999.
He initially undertook training at the Royal Military College Duntroon in Canberra. During the course of that training he sustained an aggravation of pre-existing injuries to his knees. Army doctors prescribed Naprosyn, an anti-inflammatory medication. Its purpose was to alleviate the symptoms of the knee conditions.
In his medical report of the 7 October 1998 (T5) Dr Langdale-Smith expressed the opinion that as a result of taking Naprosyn Mr Bromfield had suffered idiopathic oedema.
In a claim for compensation dated 11 September 1998 (T4) Mr Bromfield sought compensation for “mild depression” and “oedema” as well as some other conditions which are not relevant to this application.
It was explained to the Tribunal by Mr Skinner, the advocate for the applicant, that the mild depression is alleged to be a direct consequence of Mr Bromfield suffering idiopathic oedema.
In a determination dated 7 January 1999 (T8) liability was accepted for “episode of mild depression” and “temporary exacerbation of idiopathic oedema”.
The respondent later obtained a medical report from Dr Ian Sale, a consultant psychiatrist, dated 29 April 2003 (T19). In that report Dr Sale expressed the opinion that Mr Bromfield was not suffering from any psychiatric condition.
In a report dated the 8 April 2003 (T18) Dr Geoffrey Kirkland, consultant physician, concluded that “on the balance of probabilities it is unlikely that the use of anti-inflammatories contributed to the problems now of his cyclical oedema”. (Tribunal’s emphasis).
By letter dated 28 May 2003 a delegate of the respondent advised Mr Bromfield that the Commission intended ceasing liability. After a lengthy delay a determination was made on the 18 January 2008 ceasing liability for both “the episode of mild depression” and “temporary exacerbation of idiopathic oedema”.
The delegate of the Commission, in a letter dated 18 January 2008 informed Mr Bromfield, as follows :
“Based on the medical evidence outlined in the report of Dr Langdale-Smith dated the 7 October 1998, the report of Dr Kirkland dated the 8 April 2003 and the report from Dr Sale of the 29 April 2003 I find that as at today the available evidence indicates that you do not currently suffer from the effects of a compensable injury which you were first treated on the 7 October 1998”. (T documents page 451).
At the hearing on the 22 November 2012 Mr Skinner informed the Tribunal that the applicant was no longer seeking a review of the decision relating to idiopathic oedema and was now confining his review application to Mr Bromfield’s condition of depression.
THE LEGISLATION
It is not in dispute in these proceedings that at all relevant times the applicant was an “employee” within the meaning of the Safety Rehabilitation and Compensation Act 1988 (“The Act”).
Under the Act the employer is liable to pay compensation in respect of a “injury” suffered by an employee. If an injury results in “…death, incapacity for work or impairment…” (see section 14 (1)).
“Injury” includes “a disease suffered by an employee” (see s. 4 (1) of the Act).
As the contention is that Mr Bromfield’s depression was contributed to by his service in the Australian Army between 1992 and 1999 the relevant definition of disease (which has been varied from time to time) is as follows :
S.4(1) “Disease means :
Any ailment suffered by an employee; or
The aggravation of any such ailment;
an ailment or aggravation which was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation”.
“Ailment” is defined in s.4 (1) of the Act as follows :
“Ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
THE ISSUES
(a)Whether the episode of mild depression for which liability was accepted on the 7 January 1999 had ceased prior to 18 January 2008.
(b)If Mr Bromfield continued to suffer depression after the 18 January 2008 whether that condition “…was contributed to in a material degree by …..” Mr Bromfield’s employment in the Australian Army.
HAD THE APPLICANT’S DEPRESSIVE CONDITION CEASED BY THE 18 JANUARY 2008?
There is evidence before the Tribunal that Mr Bromfield has suffered some episodes of depression since the 18 January 2008.
Dr Reid, a psychiatrist, first consulted Mr Bromfield on the 19 December 2008. He said in his letter of the 29 January 2009 that :
“His history was consistent with major depression and I prescribed the antidepressant Moclobemide”. (See attachment 31 to the applicant’s proof of evidence).
Dr Reid expressed the opinion in his later medical report of December 2 2010(A2) that Mr Bromfield continues to suffer episodes of “major depression” and that it was “possible” that he was suffering major depression on the 18 January 2008 (Page 3 of the report).
Dr Sale saw Mr Bromfield on the 9 April 2009 and provided a detailed report to the respondent’s solicitors dated 16 April 2009 (R7).
In that report Dr Sale concluded:
“… I considered him worried and at times feeling depressed about his medical problems, but I did not see these to be disproportionate or suggestive of an actual psychiatric condition”. (Page 4 of the report)
Although unable to find any evidence of any then existing depression Dr Sale (at pages 5 and 6 of his report) said:
“At this particular time I was unable to find any evidence of depression. However, I note that he was referred to a psychiatrist relatively recently, anti-depressants were prescribed, and Mr Bromfield acknowledges a significant improvement. Therefore the evidence favours that he is subject to periods of depression. I am not able to see how that is causally linked to military service”.
The Tribunal finds, on the evidence, that since 18 January 2008 Mr Bromfield has continued to suffer some episodes of depression including, from to time periods of “major depression”.
HAS THE APPLICANT’S PAST ARMY SERVICE CONTRIBUTED, IN A MATERIAL DEGREE, TO HIS CONTINUING EPISODES OF DEPRESSION?
At the hearing Mr Skinner sought to further explain the alleged link between Mr Bromfield’s army service and his continuing episodes of depression. He said, in effect, that the anti-inflammatory medication prescribed to him during his army service by army doctors had exacerbated his idiopathic oedema. Mr Bromfield was so concerned by the various symptoms of the idiopathic oedema that it then caused him to also suffer from depression.
The basis of the applicant’s claim of a link between his army service and the ongoing depression is therefore the contention that the anti-inflammatory medication taken during his service has contributed to his post 18 January 2008 depression.
When asked whether the episode of mild depression was “contributed to or aggravated” by Mr Bromfield’s army service Dr Reid, the applicant’s treating psychiatrist, said in his report of 2 December 2010:
“It is my understanding that his oedema was linked to his army service by way of anti-inflammatories for the treatment of his knee condition”.
Dr Langdale-Smith in a report dated 7 October 1998 (T5) explained that the idiopathic oedema was “induced or exacerbated by treatment with a non-steroidal anti-inflammatory agent (Naprosyn) from late 1996-mid 1997”. When asked whether the employment related aspects would “continue indefinitely or are they temporary in nature” Dr Langdale-Smith stated that they were:
"Temporary – must avoid using anti-inflammatory drugs”.
In a report dated 8 April 2003 (T18) Dr Kirkland said the suggestion that the use of anti-inflammatories during his military service had contributed to a worsening of his oedema “long term” was “improbable”. He said he believed Mr Bromfield’s army service “would only contribute to a temporary exacerbation” of his condition.
Dr Kirkland said in his later report of 15 May 2009 that Mr Bromfield “… did suffer an exacerbation of his idiopathic oedema during his army service”. He went on to say (at page 8) “I would not expect that to last more than several months. That temporary exacerbation of idiopathic oedema was not continuing as of January 2008”.
Dr Greenaway, consultant endocrinologist, diagnosed “Pseudo-Cushing’s syndrome secondary to depression”. (Report of 13 November 2009). He said in his report of 6 December 2010 as follows:
“The fact that Mr Bromfield’s hypertension has persisted after discontinuation of a limited use of non-steroidal anti-inflammatory agents leads me to believe that there is no direct relationship between his use of these agents and the symptoms and signs of his condition(s)”.
Dr Reid’s use of the words “it is my understanding” suggests that he was relying on the views of others in linking Mr Bromfield’s army service to his oedema. Both Dr Kirkland and Dr Langdale-Smith have expressed clear views that the effect of the anti-inflammatory medication on his oedema would be temporary. Dr Kirkland said in his view the effect would not last more than several months. He was definite in his opinion and that it would not be continuing in January 2008.
Dr Greenway doubted that there was any direct relationship between Mr Bromfield’s use of non-steroidal anti-inflammatory agents and the symptoms of his conditions.
Mr Bromfield completed his military service on 1 March 1999. He was taking the anti-inflammatory medication probably from late 1996 until approximately the middle of 1997. The basis of the claim is that the medication was still contributing to his oedema and depression more than 10 years later namely in 2008 and beyond.
The Tribunal finds on the material before it that any exacerbation of his idiopathic oedema, or however the relevant symptoms are correctly diagnosed and described, was temporary and ceased within a period of months after that medication was taken.
It further finds that the episodes of depression suffered by Mr Bromfield after the 18 January 2008 were not contributed to by his army service to any degree “either directly or indirectly” as stated by Dr Sale.
The Tribunal is also satisfied on the evidence before it that the effect of the anti-inflammatory medication on Mr Bromfield’s condition of idiopathic oedema, which as has been stated lasted for only a period of months, had no causal link whatsoever with the episodes of depression suffered on or after the 18 January 2008.
CONCLUSION
The Tribunal concludes on the balance of probabilities that Mr Bromfield’s service in the Australian Army did not contribute in a material degree, to the episodes of depression suffered by him on or after the 18 January 2008.
DECISION
The decision under review is affirmed.
I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom AO (Deputy President)
[Sgd]
Administrative Assistant
Dated 10 December 2012
Date of Hearing 22 & 23 November 2012
Date of Decision 10 December 2012
Advocate for the Applicant Mr D Skinner, Returned Services League
Counsel for the Respondent Mr C Hobbs
Solicitor for the Respondent Mr D Wilson, Australian Government Solicitor
Key Legal Topics
Areas of Law
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Compensation Law
Legal Concepts
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Compensatory Damages
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Unconscionable Conduct
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Causation
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