Carroll and Repatriation Commission
[2004] AATA 836
•10 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 836
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/1237
VETERANS' APPEALS DIVISION
Re: JOHN ROBERT CARROLL
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: G.D. Friedman, Member
Date: 10 August 2004
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) G.D. Friedman
Member
VETERANS' AFFAIRS ‑ veterans’ entitlements - anxiety disorder - whether bilateral sensorineural hearing loss with tinnitus a major illness or injury - whether war-caused
Veterans' Entitlements Act 1986 ss 9, 120, 120(4)
Repatriation Commission v Deledio (1998) 83 FCR 82
Woodward v Repatriation Commission (2003) 75 ALD 420
REASONS FOR DECISION
10 August 2004 G.D. Friedman, Member
1. This is an application by John Robert Carroll (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 22 September 2003. The VRB affirmed the decision of a delegate of the Repatriation Commission (the respondent) dated 8 November 2002 that the applicant's anxiety disorder was not war‑caused.
2. At the hearing of this matter on 27 July 2004, Mr G. Chancellor of counsel represented the applicant and Mr K. Herman, an advocate with the Department of Veterans’ Affairs, represented the respondent.
3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T19), plus two exhibits (Exhibits A1 and A2) lodged by the applicant and three exhibits (Exhibits R1-R3) lodged by the respondent.
BACKGROUND
4. The applicant was born in Melbourne on 7 January 1944. He left school at the age of fifteen and was apprenticed as a shipwright with the Royal Australian Navy at Williamstown. After completing his apprenticeship in 1964 he worked on ship construction and repairs. In 1966 he was posted to HMAS Narimba in New South Wales where he acquired further skills in welding, plumbing and blacksmithing.
5. In 1967 the applicant joined HMAS Sydney where he served for six months, including three trips to Vietnam, before transferring to HMAS Yarra. In June 1967 the applicant worked as a technical advisor and surveyor at Albert Park Barracks. In 1972 he again served on HMAS Sydney. In 1973 he transferred to the Naval Reserve and worked at Albert Park Barracks until he resigned in 1978 with the rank of Lieutenant. In 1986 he re-joined the Naval Reserve as a Lieutenant Instructor and resigned his commission on 19 August 1988. Therefore, his dates of service were 6 February 1962 to 19 August 1988, including full-time service from 15 July 1966 to 13 March 1973, and from 7 December 1972 to 13 March 1973. For the purposes of the Veterans' Entitlements Act 1986 (the Act) the veteran’s periods of operational service were:
8 April 1967 to 22 April 1967 (HMAS Sydney)
28 April 1967 to 14 May 1967 (HMAS Sydney)
19 May 1967 to 14 June 1967 (HMAS Sydney)
22 December 1967 to 1 January 1968 (HMAS Yarra)
1 November 1972 to 30 November 1972 (HMAS Sydney)
6. Following his discharge, the applicant joined the Education Department as a student teacher and was trained as a trade instructor in carpentry and joinery at the Hawthorn Institute. He obtained a full-time teaching position at Moorabbin Technical College, and from 1982 to 1986 he taught graphic communication at Knox Technical School and completed a Bachelor of Education degree. In 1986 he re-joined the Naval Reserve as a Lieutenant Instructor. On 19 August 1988 he resigned his commission.
7. In 1989 the applicant completed a Master of Education degree, and in 1990 he ceased teaching on medical grounds. He then completed a Doctor of Philosophy degree in 1992 and a Doctor of Education degree in 2003.
8. On 12 April 2002 the applicant made a claim for disability pension for anxiety disorder and Dupuytren’s Contracture of both hands. On 8 November 2002 the respondent refused the claim. On 29 November 2002 the applicant sought review of this decision by the VRB. On 22 September 2003 the VRB found that Dupuytren’s Contracture of the right hand was war-caused but otherwise affirmed the decision. On 11 November 2003 the applicant lodged an application with the Tribunal for review of the decision of the VRB.
9. The respondent has accepted liability for bilateral sensorineural hearing loss with tinnitus, migraine headaches, duodenal ulcer and tinea.
10. The issue before the Tribunal is whether the applicant suffers from an anxiety disorder, and if so, whether his hearing loss with tinnitus is a major illness or injury.
EVIDENCE
11. In a written statement dated 5 November 2003 (Exhibit A1), the applicant said that he did not believe that his anxiety disorder was related to events that he witnessed during operational service, although he said that a stressful incident occurred on 4 and 5 November 1967 during his service on HMAS Yarra. He had been required to make boxes for the victims of an accident in which two British air crew died when their aircraft crashed into the sea off Sumatra (the aircraft incident). The applicant related the commencement of his anxiety disorder to this incident, and stated that he did his best to suppress the memories of the incident.
12. The applicant stated that he believed that his anxiety disorder had been aggravated markedly by the symptoms of hearing loss with tinnitus, from which he has suffered constantly since about 1972 and for which no treatment has been successful. He said that the symptoms have gradually worsened and have become acute for the last five years, bringing a corresponding worsening in his anxiety state. He said that he stopped teaching in 1987 and ceased work in 1990 because of the symptoms of his war-caused disabilities.
13. In oral evidence to the Tribunal the applicant said that teaching in a classroom environment became stressful because of his hearing loss and tinnitus, and he also suffered from sleeping difficulties and migraines. He told the Tribunal that he turned to mature-age study because it was a necessary distraction from the tinnitus. He noted that in recent times various types of noise have kept him awake at night, and the aircraft incident often comes into his mind. He said he sleeps only about two hours at a time, and that the tinnitus became worse when his father became ill and died in 2000.
14. The applicant explained that at times he becomes irritated with other people and avoids public transport. He described his work with navy veterans and with the HMAS Sydney Association. He said that he is writing a history of naval logistic support, and contributed to a publication about HMAS Sydney. He stated that his concentration is poor because of the constant noise in his head. He said that he contributes to household tasks, and assists his wife and children whenever possible, although he said that he cannot tolerate any noise, such as from crowds.
15. Under cross-examination the applicant agreed that he completed his two doctoral theses within a relatively short period, and has been accredited as an examiner for Master’s degree students. He said that he tries to keep himself busy and walks for exercise. He said that he has applied for a number of university lecturing and tutoring positions that he believes are within his capability, but he has been unsuccessful because of perceptions about his disabilities.
16. In a written report dated 3 March 2003 (T15, page 113) Professor B. Franz, ear, nose and throat surgeon, stated:
Regarding Mr John Carroll’s hearing loss and tinnitus I am indeed of the opinion that it is seriously disabling. We have tried several times to suppress his tinnitus and we have been unsuccessful...
The hearing loss is of a severe nature mainly affecting the high frequencies. This indeed is very difficult to rectify, as Mr Carroll requires a specific amplification in the high frequencies.
In oral evidence Professor Franz stated that the applicant’s condition has deteriorated slightly since 1997, and that for high frequency tinnitus hearing aids are not helpful. He described the extent of the applicant’s hearing loss as severe to profound. Under cross-examination Professor Franz said that the words seriously disabling described symptoms such as irritation and loss of sleep.
17. Mrs R. Carroll, the applicant’s wife, gave oral evidence that the applicant ceased teaching in about 1986 because he could no longer cope with the pressures of teaching caused by his hearing problems. She said that he hoped that by resuming tertiary study he would be able to obtain a different occupation that would not involve noise and stress. Mrs Carroll described her efforts, and the efforts of the children, to maintain a peaceful and quiet environment at home for the applicant to carry out research and to study, although she said that his lifestyle has become isolated.
18. Under cross-examination Mrs Carroll agreed that the applicant shares household tasks where possible, and said that he has been disappointed to have been unsuccessful in seeking employment despite his academic qualifications.
19. In a written report dated 21 April 2004 (Exhibit R2) Dr L. Walton, consultant psychiatrist, diagnosed an anxiety disorder, which he said is occurring as a reaction to tinnitus. He stated that as the applicant ceased working with the Education Department in 1990 because of tinnitus and stress-related conditions, the date of clinical onset may have been as early as the mid-1980s. Dr Walton said that the anxiety disorder seems to have been aggravated in 1999 by the applicant’s deteriorating hearing problems, and is likely to deteriorate further. Dr Walton concluded:
I am aware that Mr Carroll ceased teaching, very likely due to a combination of his tinnitus and anxiety. However, he has proved to be thoroughly capable continuing tertiary student, recently having completed a second Doctor of Philosophy degree, and he makes an ongoing contribution to a research organisation studying children’s learning difficulties, as well as conducting his own private research into military history. In my opinion Mr Carroll remains capable of working for in excess of 20 hours per week. His hearing problems, judging by the relative ease of conversation in a one-on-one situation without background noise, would not preclude Mr Carroll from undertaking individual student tuition and he would seem to be thoroughly adept at research endeavours.
20. In a written report dated 31 January 1986 (Exhibit A2) Dr D. Ashton, Government medical Officer, stated:
Mr Carroll has a significant hearing loss and, in my opinion, is permanently unfit for working in any trade area.
21. In a written report dated 8 November 2002 (T11, page 75) Dr I. Rossiter, Medical Officer for the Department of Veterans’ Affairs, assessed the applicant’s level of impairment for tinnitus under Table 7.1.11 of the Guide to the Assessment Rates for Veterans’ Pensions at 15 impairment points. This is the maximum rating under Table 7.1.11, and the criterion is:
Very severe tinnitus, present every day, causing distraction, loss of concentration and extreme discomfort, and regularly interfering with sleep.
In a written report dated 1 May 2002 (T6, page 41) Mr P. Altidis, audiologist, confirmed that description of the applicant’s symptoms.
CONSIDERATION OF THE ISSUES
22. 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;
…
23. The process of deciding whether the material before the Tribunal connects a disease, injury or death to war service, where s 120 and s 120A 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.
24. In paragraph 2(b) of SoP N° 1 of 2000 anxiety disorder is defined :
…as the anxiety spectrum disorders of generalised anxiety disorder, or anxiety disorder due to a general medical condition, or anxiety disorder not otherwise specified, attracting ICD-10-AM code F06.4, F41.1, F41.8 or F41.9. This definition excludes the other anxiety spectrum disorders: post traumatic stress disorder, acute stress disorder, phobia, obsessive-compulsive disorder, adjustment disorder with anxiety, panic disorder and agoraphobia.
25. The relevant factors are:
5(a)…
(iv)having a major illness or injury within the two years immediately before the clinical onset of anxiety disorder; or
(v) …
(vi)having a major illness or injury within the two years immediately before the clinical worsening of anxiety disorder
Paragraph 6 of the SoP states:
Paragraphs 5(a)(v) to 5(a)(vii) and 5(c) apply only to material contribution to, or aggravation of, anxiety disorder where the person’s anxiety disorder was suffered or contracted before or during (but not arising out of) the person’s relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.
Paragraph 8 of the SoP defines “major illness or injury” as a disease or injury that is life-threatening or seriously disabling. “Relevant service” means (a) operational service; or (b) peacekeeping service; or (c) hazardous service.
26. Mr Chancellor submitted that Dr Walton’s diagnosis of anxiety disorder should be accepted. He said that the material points to a hypothesis connecting the applicant’s service and anxiety disorder by way of his tinnitus and hearing loss. In relation to factor 5(a)(iv) Mr Chancellor said that clinical onset of anxiety disorder was the mid-1980s, as estimated by Dr Walton and confirmed by the applicant and his wife in evidence to the Tribunal when they described problems at work and at home during that period.
27. In respect of the words seriously disabling in the definition of major illness or injury in SoP N° 1 of 2000, Mr Chancellor submitted that in Woodward v Repatriation Commission (2003) 75 ALD 420 the Full Federal Court held that there was no error in the Tribunal looking at the ordinary meaning of the words in the absence of an authoritative and detailed exposition of the correct interpretation. He said that the Shorter Oxford Dictionary defines serious as:
…of grave or solemn disposition or intention; not light or superficial;…not jesting, trifling or playful;…of grave demeanour or aspect; weighty, important, grave; (of quantity or degree) considerable; attended with danger; giving cause for anxiety.
Mr Chancellor said that the same dictionary defines disable as:
…to render unable or incapable; to deprive of ability, physical or mental; to incapacitate…to render incapable of action or use by injury, etc. to cripple.
28. Mr Chancellor submitted that on the evidence of the applicant and his wife, the Tribunal should conclude that the hearing loss with tinnitus could be described as disabling because it contributed significantly to the applicant ceasing his employment as a teacher. He also referred to the totality of the evidence including Mrs Carroll’s evidence that the applicant avoids shopping trips, football and other crowds and social functions because of the effect of noise on his anxiety; the detrimental effect of tinnitus on his sleeping patterns; the need to keep the applicant apart from the rest of his household to maintain a quiet environment; the applicant’s general isolation and problems such as avoidance of travelling on public transport.
29. Mr Chancellor noted the opinion of Professor Franz that the applicant’s hearing loss and tinnitus were seriously disabling and the description of hearing loss as severe to profound. He also referred to the reports by Dr Rossiter and Mr Altidis. Mr Chancellor said that the applicant should be given credit for his academic achievements, but that these were a means of limiting the impact of hearing loss and tinnitus.
30. In relation to factor 5(a)(vi) Mr Chancellor referred to the clinical notes of Dr P. Tribe, the applicant’s treating general practitioner, dated 17 August 2000 (Exhibit R3), which noted that the applicant’s tinnitus had worsened, resulting in a worsening of his anxiety disorder and a referral to a psychiatrist. He submitted that the anxiety disorder was contracted before the applicant’s relevant service.
31. Mr Herman submitted that in relation to factor 5(a)(iv) the applicant’s hearing loss with tinnitus was not a major illness or injury as it was not life-threatening or disabling. He said that Professor Franz had used seriously disabling after the applicant showed a poor response to treatment for his high-frequency tinnitus. Mr Herman said that the description by Professor Franz was too narrow to comply with the requirements of the SoP. He also said that reference in the SoP to a major illness was wider than the effect on a person’s vocation. He agreed that the ordinary meaning of seriously disabling should be used in the absence of expert evidence. The ordinary meaning of disable in the Macquarie Dictionary is:
To make unable; weaken or destroy the capability of; cripple; incapacitate
The ordinary meaning of serious is:
Of grave or solemn disposition or character; thoughtful…of grave aspect…giving cause for apprehension; critical.
32. Mr Herman noted the applicant’s academic achievements over the last ten years and his appointment as an examiner for Master’s degree students. Mr Herman said that the applicant has kept himself active through his assistance to naval veterans, his research and publication activities, his involvement in family matters, and his efforts to find work. Mr Herman submitted that the applicant did not perceive himself as seriously disabled when his physical, emotional and occupational capabilities were taken as a whole.
33. In relation to factor 5(a)(vi) Mr Herman submitted that the evidence does not indicate the presence of anxiety disorder before or during eligible war service.
34. The Tribunal reached its decision taking into account the written and oral evidence and the submissions made at the hearing.
35. The Tribunal has considered each of the four steps in Deledio. In respect of the first step, the Tribunal finds, after taking into account all relevant matters that the material points to a hypothesis connecting the anxiety disorder with the circumstances of the particular service rendered by the veteran.
36. In respect of the second step, the Tribunal finds that SoP N° 1 of 2000 concerning anxiety disorder was in force and is relevant.
37. In respect of the third step, the Tribunal notes that, in his evidence, Professor Franz described the applicant’s hearing loss with tinnitus as seriously disabling, which raised the possibility that the applicant had a major illness or injury within the two years immediately before the clinical onset of anxiety disorder. Therefore, the Tribunal finds that 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, and the applicant satisfies the third step.
38. In respect of the fourth step, that is whether the Tribunal is satisfied beyond reasonable doubt that the evidence before it demonstrates that the hypothesis cannot be sustained, the Tribunal is called upon to make findings of fact. The Tribunal accepts that, in determining whether the applicant’s hearing loss with tinnitus is a major illness or injury, consideration must be given to the ordinary meaning of seriously disabling, which involves an assessment of the impact on occupational, emotional and physical factors. The Tribunal finds the applicant suffers from an anxiety disorder and is not able to return to teaching in a classroom environment. The Tribunal also agrees with Mr Chancellor that the applicant faces limitations in his daily life because of the need to avoid unnecessary noise and crowds, the problems faced in using public transport or visiting shopping centres, and ongoing sleeping problems.
39. However, the Tribunal finds that despite the applicant’s hearing loss with tinnitus he has demonstrated an ability to concentrate on his postgraduate studies that has enabled him to achieve outstanding results in relatively short periods. Since ceasing full-time employment he has contributed to the publication of a book and has engaged in research for a future publication, and has assisted naval veterans in entitlement matters as well as holding a voluntary position with the HMAS Sydney Association. He has assisted family members by, for example, making objects for use by his daughter in her employment and helping his wife with household tasks. He has been appointed as an examiner for postgraduate students. The Tribunal also notes that in giving evidence the applicant displayed an impressive ability to recall names and events that involved incidents that occurred around thirty years ago.
40. The Tribunal takes into account the comments by Professor Franz. However, the Tribunal notes the assessment by Dr Walton and the applicant’s evidence that he has lodged a number of applications for positions in academic institutions and would be capable of performing the duties of those positions. On balance and for these reasons, the Tribunal finds that the applicant does not have a disease or injury that is life‑threatening or seriously disabling.
41. On this basis the Tribunal is satisfied beyond reasonable doubt that the applicant does not have a major illness or injury as defined in the SoP. In the circumstances he is unable to satisfy factor 5(a)(iv) or 5(a)(vi) of SoP N° 1 of 2000. Consequently, the Tribunal is satisfied beyond reasonable doubt that the incapacity from anxiety disorder did not arise from a war-caused injury, the fourth step from Deledio is not satisfied, and the claim fails.
DECISION
42. The Tribunal affirms the decision under review.
I certify that the forty-two [42] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Member
(sgd) Catherine Thomas
Clerk
Date of hearing: 27 July 2004
Date of decision: 10 August 2004
Counsel for applicant: Mr G. Chancellor
Solicitor for applicant: Williams Winter
Advocate for respondent: Mr K. HermanSolicitor for respondent: Advocacy Section, Department of Veterans’ Affairs
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