Carmel Onorato v Repatriation Commission

[2011] AATA 535

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 535

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2625

VETERANS’ APPEALS DIVISION		)
Re		CARMEL ONORATO

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member
Dr I Alexander, Member

Date2 August 2011

PlaceSydney

Decision The Tribunal affirms the decision under review.

..................[sgd]............................

Ms G Ettinger
  Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Widow – kind of death – anxiety condition – whether war caused – decision under review affirmed

Veterans’ Entitlements Act 1986 (Cth) s 120

Statement of Principles concerning anxiety disorder No. 101 of 2007

Statement of Principles concerning hypertension No. 35 of 2003

Statement of Principles concerning ischaemic heart disease No. 89 of 2007

Benjamin v Repatriation Commission (2001) 70 ALD 622

Repatriation Commission v Cooke (1998) 90 FCR 307

REASONS FOR DECISION

2 August 2011	Ms G Ettinger, Senior Member Dr I Alexander, Member
SUMMARY

1.      Mrs Carmel Onorato has made a claim for a widows pension on the basis that her husband’s death was related to his war service. Both the Repatriation Commission and the Veterans’ Review Board found that Mr Joseph Onorato’s death was not related to service.

2.      We noted that Mr Onorato, served Australia on operational and eligible service between 21 January 1942 and 10 April 1946. He died on 2 August 2008 at the age of 90 years, having been born in Naples in 1918. He came to Australia in 1935.

3.      We noted there was no disagreement between the parties that Mr Onorato’s kind of death was due to ischaemic heart disease. When the claim was lodged at the Tribunal, Mrs Onorato’s representatives indicated that Mr Onorato had a service related smoking habit of over 20 years, and also suffered an anxiety disorder. However some days before the hearing, Mrs Onorato’s legal advisors wrote to inform the Tribunal that smoking was not being argued, and that Mrs Onorato would be relying on the anxiety disorder she claimed that her husband suffered in order to try and establish that his death was related to his war service. This was confirmed at the commencement of the hearing by Mr Feredoes of counsel, who represented the Applicant.

4. Before considering whether any condition Mr Onorato suffered was related to his war service, we had to first determine whether Mr Onorato suffered a diagnosable anxiety disorder. If so, then, we would be required to apply the relevant Statements of Principle (SOPs), and consider the tests in sections 120(1) and 120(3) of the Veterans’ Entitlements Act 1986 (the Act).

5. In applying section 120(4) of the Act, and considering the medical evidence before us, we were not satisfied that Mr Onorato suffered from a diagnosable anxiety disorder. Accordingly we were not able to take the matter further, and the application failed. Our reasons follow.

ISSUES BEFORE THE TRIBUNAL

6.      The issue the Tribunal had to determine was whether Mr Onorato suffered an anxiety disorder, and if so, whether it was war-caused.

7.      Mrs Onorato argued that the veteran’s anxiety disorder led to him suffering hypertension which caused his ischaemic heart disease. That would be relevant to us if we found that Mr Onorato suffered a diagnosable anxiety disorder.

8.      The parties agreed that Mr Onorato’s kind of death was due to ischaemic heart disease.

RELEVANT LEGISLATION

9.      The relevant legislation is the Veterans’ Entitlements Act 1986, in particular sections 120(1), 120(3), 120(4).

10.     The issue of whether a condition is war-caused is determined pursuant to section 9 of the Act which relevantly follows:

9 War-caused injuries or diseases

(1)Subject to this section and section 9A, 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;

…

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;

but not otherwise.

…

11. The standard of proof for diagnosis of Mr Onorato’s conditions is to the reasonable satisfaction of the Tribunal, pursuant to section 120(4) of the Act.

12. Because Mr Onorato has operational service, the standard of proof regarding whether his conditions, once diagnosed, are war-caused, is pursuant to the reasonable hypothesis, the application of the relevant SoPs, and sections 120(1) and 120(3) of the Act.

13.     The relevant SoPs in this matter are Instrument No. 101 of 2007 concerning anxiety disorder, Instrument No. 35 of 2003 concerning hypertension, and Instrument No. 89 of 2007 concerning ischaemic heart disease. All the abovenamed Instruments have been amended; however, the amendments are not material to the claim before us.

14.     The date of effect in this matter is agreed to be 3 August 2008.

WHAT CONDITIONS DID MR ONORATO SUFFER

15.     Mrs Onorato claims that her husband suffered ischaemic heart disease, anxiety disorder and hypertension, and although the decisions of the Repatriation Commission and the Veterans’ Review Board (the VRB), were largely based on smoking claims, the issue of smoking had been withdrawn before the commencement of the hearing before this Tribunal. At the hearing, anxiety disorder was argued as being war-caused, and hypertension arising as a result of the anxiety followed by ischaemic heart disease.

16.     Both parties agreed that the kind of death Mr Onorato suffered on 2 August 2008, was ischaemic heart disease. His death certificate states as Cause of Death and Duration of last illness:

(I)    (a) Respiratory arrest, minutes

(b) Inhalational pneumonia, days

(II)Renal failure secondary to hypertensive nephrosclerosis, Ischaemic heart disease, years.

17.     We have considered the evidence of Mrs Onorato; her son, Mr Ven Onorato; Professor Haber, consultant physician; Professor O’Rourke, cardiologist; and psychiatrists Drs Dinnen and Blows. The Applicant claims, based on the opinion of Dr Dinnen, that Mr Onorato suffered war-caused anxiety disorder not otherwise specified, which led to his hypertension and ischaemic heart disease.

Mr Onorato suffered hypertension and ischaemic heart disease

18.     The parties agreed that Mr Onorato suffered hypertension and ischaemic heart disease. We too were satisfied from the evidence that that was so. Our concern was, however, whether those conditions were war-caused.

19.     We noted that the first recorded raised blood pressure of 145/90 was on Mr Onorato’s discharge from the Army on 23 November 1946. Professor O’Rourke commented that the blood pressure reading of 145/90, was at that time, considered normal. As there was no follow-up, we did not consider that occasion to be the onset of hypertension.

20.     We noted that both Professors O’Rourke and Haber remarked, and Dr Crook reported on 8 May 2003, that the onset of the veteran’s hypertension was in 1970, (Exhibit R5).

21.     Professor O’Rourke noted that therapy was introduced, probably in the 1980s. He noted from the documentation that Mr Onorato was being treated for mild hypertension by 1989 and 1991, and subsequently, due to age and arterial stiffening.

22.     Professor O’Rourke noted comment on 25 May 2006 by Dr Eisenberg, to whom Mr Onorato had been referred for cardiac murmurs, that Mr Onorato was marvelously [sic] well for his 88 years. Professor O’Rourke opined that the clinical onset of Mr Onorato’s ischaemic heart disease was 27 April 2006, when the veteran was admitted to hospital with a diagnosis of subendocardial (NSTEMI) myocardial infarction.

23.     We accept from the evidence, in particular that of Professors O’Rourke and Haber that the clinical onset of Mr Onorato’s hypertension was 1970, and that the clinical onset of Mr Onorato’s ischaemic heart disease was 27 April 2006.

The Tribunal’s conclusions regarding Mr Onorato’s anxiety – onset

24.     Before we can decide whether Mr Onorato suffered an anxiety disorder due to his war service, we had to decide whether he suffered a clinically significant anxiety disorder, and if so determine the date of onset. In order to do so, we have considered the indicia in DSM-IV, and the evidence of the family, and the medical reports before us.

The definitions and descriptions

25.Clause 3 of Instrument No. 101 of 2007 includes the following:

Kind of injury, disease or death

…

(b)   For the purposes of this Statement of Principles, “anxiety disorder” means generalised anxiety disorder, anxiety disorder due to a general medical condition; or anxiety disorder not otherwise specified; and

…

“anxiety disorder not otherwise specified” means a psychiatric disorder (derived from DSM-IV-TR) with prominent anxiety or phobic avoidance that does not meet criteria for any specific anxiety disorder,  adjustment disorder with anxiety, or adjustment disorder with mixed anxiety and depressed mood.

This definition of anxiety disorder excludes the other anxiety spectrum disorders: posttraumatic stress disorder, acute stress disorder, phobia, obsessive-compulsive disorder, adjustment disorder with anxiety, panic disorder and agoraphobia.

The family’s evidence

26.     As noted above, Mrs Onorato’s evidence was that the memories of her husband’s war service haunted him, and it was as if they were trapped in his mind and he could not let them go. As corroborated by the evidence of Mr Ven Onorato and Dr Blows, and commented upon by Dr Dinnen, she said that the veteran was particularly affected by the memory of a Japanese captain who committed suicide while he was on guard duty. Mrs Onorato also said that her husband would sometimes sleep badly, and have nightmares. There was also consistent evidence regarding reports that Mr Onorato had been subject to racial slurs during service because he was Italian, and the effect that had on him, in particular the incident where a two stripper bombardier called him a dictator dago bastard.

The medical evidence

27.     We noted that Dr Blows who assessed Mr Onorato in 2003, when he was 85 years old, was the only psychiatrist to have done so. Dr Blows noted that Mr Onorato had no family history of anxiety or depression, drank alcohol moderately, and was a non-smoker.

28.     Dr Blows commented that Mr Onorato had a good marriage, four children, and a long and successful working life. We noted this consisted of being a craftsman cutting timber for De Havilland, an assembly line worker with General Motors Holden for five years, working in a fruit shop, and lastly working with a printing machine for tickets at a race course.

29.     We noted that Dr Blows recorded that Mr Onorato told him he found the military service interesting, and not an unpleasant experience except for guard duty where he had to escort Japanese, German and Italian prisoners, and found some of these to be frightening. On occasions he took POWs to Cowra prisoner-of-war camp, which he found to be an unnerving experience. Dr Blows recorded that: No incidents occurred however that was an actual danger to himself, and he was never fired upon.

30.     Dr Blows did however record Mr Onorato being horrified on discovering the Japanese officer who had committed suicide, and also feeling fearful on hearing screaming coming from the hospital while on Tower Guard Duty.

31.     Dr Blows also recorded that Mr Onorato became distressed and tearful recounting how a two stripper bombardier called him a dictator dago bastard.

32.     We noted Dr Blows stated in his findings:

My interview revealed the following symptoms that indicate an anxiety disorder.

Mr Onorato was suffering from time to time some recurrent bad dreams recalling the two detailed unpleasant incidents during his war service.

… he experiences some tremors and shakes.

There are moments of irritability with his wife.

He has mild half hourly periods of night time insomnia.

33.     Dr Blows referred to DSM-IV. He stated that: The symptoms suggest a generalised anxiety disorder, ie irritability, muscle tension (tremor) and sleep disturbance, which just meets the criteria of ‘C’ but there are no symptoms to met [sic] ‘A,B,D,E’ in the DSM criteria of generalised anxiety disorder. Dr Blows also said that he assessed for depression, and found no depression disorders.

34.     In conclusion Dr Blows stated that Mr Onorato suffered a minor level of anxiety. He has minimal disability as a result of that anxiety. … I considered all the various varieties of anxiety disorders. To the extent that he does suffer a degree of anxiety, I found that the symptoms are most likely to be a result of his war service as their origin is traced directly to the events he reported.

35.     In summary, Dr Blows opined that while Mr Onorato suffered a minor level of anxiety, he was not of the view that Mr Onorato suffered from any specific anxiety disorder. He did not suggest any follow-up or treatment, and there is no evidence before us that Mr Onorato had any follow-up.

36.     In coming to a decision regarding Mr Onorato’s anxiety, we are mindful of Mr Feredoes’ submission that Dr Blows did not have the witness statements of Mrs Onorato and Mr Ven Onorato now before the Tribunal. Their evidence appears to us to corroborate what Dr Blows recorded Mr Onorato telling him.

37.     We also considered Dr Dinnen’s evidence, and his report which was prepared on 13 January 2011. Dr Dinnen did not have the opportunity of speaking to Mr Onorato who had died in 2008, nor to Dr Blows. Instead, he gave his views of Dr Blows’ assessment of Mr Onorato. Dr Dinnen came to the conclusion that the veteran suffered from a mild chronic anxiety state, being anxiety state not otherwise specified, from the time of his war service.

38.     Dr Dinnen referred to the incident involving the Japanese officer which Mr Onorato had witnessed, and Dr Dinnen also referred to the report of the racial slur Mr Onorato reported to Dr Blows. He said that he found Dr Blows’ report very detailed, helpful and relevant to forming his own opinions.

39.     Dr Dinnen opined that Mr Onorato’s anxiety state arose out of the stressful incidents he experienced during service (being the incident with the Japanese officer and the racial slurs). Dr Dinnen noted that Mr Onorato had said to Dr Blows that this remained a traumatic memory.

40.     Dr Dinnen also addressed the application of various factors in the relevant SoPs. He considered that the clinical onset of Mr Onorato’s anxiety state was as a result of the stressors Mr Onorato had encountered during his operational service. Dr Dinnen stated that he agreed with Dr Blows’ observation that Mr Onorato’s symptoms are most likely to be a result of his war service as their origin is traced directly to the events that he reported.

41.     Dr Dinnen also referred to Mr Onorato’s Departmental H file, and notes of Dr Eisenberg. He opined that the appropriate diagnosis was anxiety state not otherwise specified, and that on balance, Mr Onorato suffered from a mild chronic anxiety state from the time of his war service, the onset being the incident of seeing the Japanese officer who had committed suicide.

42.     Dr Dinnen also opined that the tremors, shakes, and nightmares Mrs Onorato reported her husband experienced, were indicative of anxiety state not otherwise specified, and applying DSM IV, clinically significant. He said that these symptoms were not just symptoms generally found in elderly people who had no disorders.

43.     In commenting on Mrs Onorato’s evidence that she and her husband had a wonderful life, Dr Dinnen opined that a person is able to have a wonderful life even if they are suffering from a mild form of chronic anxiety disorder and/or other conditions. Dr Dinnen opined that the veteran’s anxiety state was clinically significant in that Mr Onorato would have benefitted from seeing a general practitioner in order to help him manage the disorder, for reassurance, or help with sleep problems. In his oral evidence, Dr Dinnen added that an inference could be drawn from Dr Blows’ report that Mr Onorato’s anxiety state was ongoing, and was not of recent onset, but was long standing.

THE TRIBUNAL’S CONSIDERATION

44.     We have considered the indicia in DSM-IV for generalised anxiety disorder, and noted Dr Blows’ conclusion that: The symptoms suggest a generalised anxiety disorder, ie irritability, muscle tension (tremor) and sleep disturbance, which just meets the criteria of ‘C’ but there are no symptoms to met [sic] ‘A,B,D,E’ in the DSM criteria of generalised anxiety disorder.

45.     We have reproduced the diagnostic criteria for generalised anxiety disorder below.

Diagnostic Criteria for 300.02 Generalized Anxiety Disorder

A.Excessive anxiety and worry (apprehensive expectation), occurring more days than not for at least 6 months, about a number of events or activities (such as work or school performance).

B.        The person finds it difficult to control the worry.

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 for the past 6 months). Note: Only one item is required in children.

(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)sleep disturbance (difficulty falling or staying asleep, or restless unsatisfying sleep)

D.The focus of the anxiety and worry is not confined to features of an Axis I disorder, e.g., the anxiety or worry is not about having a Panic Attack (as in Panic Disorder), being embarrassed in public (as in Social Phobia), being contaminated (as in Obsessive-Compulsive Disorder), being away from home or close relatives (as in Separation Anxiety Disorder), gaining weight (as in Anorexia Nervosa), having multiple physical complaints (as in Somatization Disorder), or having a serious illness (as in Hypochondriasis), and the anxiety and worry do not occur exclusively during Posttraumatic Stress Disorder.

E.The anxiety, worry, or physical symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.

F.The disturbance is not due to the direct physiological effects of a substance (e.g., a drug of abuse, a medication) or a general medical condition (e.g., hyperthyroidism) and does not occur exclusively during a Mood Disorder, a Psychotic Disorder, or a Pervasive Developmental Disorder.

46.     We are mindful of the indicia for generalised anxiety disorder in DSM-IV noted above. We have noted that whilst Mr Onorato’s reported restlessness, irritability, muscle tension and difficulties with sleep met the tests for paragraph ‘C’, as Dr Blows concluded, we had no evidence that the level of anxiety the veteran suffered met the tests in paragraphs ‘A’, ‘B’, ‘D’ or ‘E’.  In particular, we had no evidence that Mr Onorato suffered excessive anxiety and worry which he found difficult to control, or clinically significant distress or impairment in social, occupational or other important areas of functioning. On the contrary, the evidence before us was that notwithstanding distressing incidents during his service, Mr Onorato, when referred to Dr Blows, expressed surprised to be going to a psychiatrist for assessment. He led a happy life with his family, worked very hard in the various jobs in which he was employed, functioned very well, and enjoyed travel with his wife following his retirement.

47.     We are mindful also that Mr Onorato did not have any psychiatric treatment at any time, and that Dr Blows did not recommend any follow-up. We are satisfied to the requisite standard, and agree with Dr Blows’ assessment that Mr Onorato did not suffer generalised anxiety disorder because he did not meet all the relevant tests in the DSM-IV. We are mindful also that Dr Blows came to the conclusion that Mr Onorato suffers a minor level of anxiety and according to Dr Blows: He has minimal disability as a result of that anxiety. … I considered all the various varieties of anxiety disorders, (the Tribunal’s emphasis). We took that to mean that Dr Blows considered the relevance of all the various varieties of anxiety disorders.

48.     We then moved to consider Dr Dinnen’s diagnosis of anxiety disorder not otherwise specified, which in DSM-IV is as follows:

300.00 Anxiety Disorder Not Otherwise Specified

This category includes disorders with prominent anxiety or phobic avoidance that do not meet criteria for any specific Anxiety Disorder, Adjustment Disorder With Anxiety, or Adjustment Disorder With Mixed Anxiety and Depressed Mood. Examples include

1.Mixed anxiety-depressive disorder: clinically significant symptoms of anxiety and depression, but the criteria are not met for either a specific Mood Disorder or a specific Anxiety Disorder (See p.780 for suggested research criteria)

2.Clinically significant social phobic symptoms that are related to the social impact of having a general medical condition or mental disorder (e.g., Parkinson’s disease, dermatological conditions, Stuttering, Anorexia Nervosa, Body Dysmorphic Disorder)

3.Situations in which the disturbance is severe enough to warrant a diagnosis of an Anxiety Disorder but the individual fails to report enough symptoms for the full criteria for any specific Anxiety Disorder to have been met; for example, an individual who reports all of the features of Panic Disorder Without Agoraphobia except that the Panic Attacks are all limited-symptom attacks

4.Situations in which the clinician has concluded that an Anxiety Disorder is present but is unable to determine whether it is primary, due to a general medical condition, or substance induced

49.     Based on the evidence before us of Mr Onorato’s family, and Dr Blows, we are satisfied that whilst Mr Onorato may at times have suffered some symptoms of anxiety, he did not suffer a psychiatric disorder, nor prominent anxiety or phobic avoidance, which could meet the tests for anxiety disorder not otherwise specified.

50.     There is no evidence before us to satisfy us that Mr Onorato suffered prominent anxiety, and the evidence indicates he certainly did not suffer phobic avoidance, noting that he spoke freely to his wife and family about his service experiences.

51.     As we could not be satisfied to the requisite standard that Mr Onorato suffered generalised anxiety disorder or anxiety disorder not otherwise specified, we could not be satisfied that any anxiety Mr Onorato suffered was the cause of his hypertension or ischaemic heart disease. Accordingly, we were not satisfied pursuant to section 120(4) of the Act, that Mr Onorato suffered either generalised anxiety disorder or anxiety disorder not otherwise specified, (Benjamin v Repatriation Commission (2001) 70 ALD 622; Repatriation Commission v Cooke (1998) 90 FCR 307).

52. Accordingly we were unable to consider Mr Onorato in connection with the application of the SoPs (section 120A), and apply sections 120(1) and 120(3) of the Act. Mrs Onorato’s application must fail.

DECISION

53.     The Tribunal affirms the decision under review.

I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member, Dr I Alexander, Member

Signed:         ..............[sgd]..................................................................
  Associate

Date of Hearing  30 June 2011  
Date of Decision   2 August 2011
Counsel for the Applicant               Mr S Feredoes
Solicitor for the Applicant               Kemp & Co Lawyers
Respondent’s Representative       Mr T O’Reilly