Cliff and Repatriation Commission

[2005] AATA 387

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 387

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/957

VETERANS'  APPEALS  DIVISION		)
Re		GRAEME CLIFF

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date2 May 2005

PlaceSydney

Decision The decision under review is affirmed.

.......................................

Ms N Bell   Senior Member

VETERANS' AFFAIRS – Anxiety Disorder – Impotence - No Entitlement on basis that Applicant does not suffer from Psychiatric Disease and Impotence

Veterans' Entitlements Act 1986 – sections 5D and 120(4)

Repatriation Commission v Gosewinckel (1999) 59 ALD 690

Repatriation Commission v Cooke (1998) 90 FCR 307

Repatriation Commission v Budworth (2001) 116 FCR 200

REASONS FOR DECISION

2 May 2005 Ms N Bell, Senior Member

1.      Mr Cliff, who is 45 years old, served in the Royal Australian Navy from 24 August 1977 to 24 October 2002.  He had operational service from 20 November 1997 to 21 February 1998 on HMAS Tobruk in the Bougainville area and the balance of his service is eligible service.  He has a number of disabilities accepted under the Veterans’ Entitlements Act 1986 (“the Act”): bilateral sensorineural hearing loss, right inguinal hernia, T8/9 and T9/10 discs prolapse, bilateral plantar fasciitis and lumbar strain.

2.      His claims for asthma, adjustment disorder and impotence were rejected by the Repatriation Commission.  He pursues the last two conditions in this application.

issues

3.      Mr Cliff’s initial claim was for adjustment disorder, but he now contends that he suffers from anxiety disorder.  Mr Cliff also contends that his impotence stems from his psychiatric condition and is war-caused by virtue of that link.  The Repatriation Commission contends that he suffers from no psychiatric disease.  

4.      After considering the symptoms from which Mr Cliff suffers, I must first consider whether he suffers from any disease.  If I conclude that he does suffer from a disease, I must then consider whether there is a Statement of Principles relevant to the symptoms of that disease and, if so, whether it upholds Mr Cliff’s hypothesis of war-causation.

DOES MR CLIFF SUFFER FROM A DISEASE?

Mr Cliff’s Symptoms

5.      Mr Cliff told the Tribunal, in oral evidence, that he worries constantly about his back condition which arose out of incidents in 1982 and 1987, the pain in his groin area and the movement of staples used in his hernia operation.  He said he can feel the movement of the staples.  He also worries about keeping his latest job as a forklift driver because of his physical conditions.  He said his erectile problems stem from the pain in his back and groin.  He doesn’t socialise at all, largely because of the embarrassing problems that ensue with the opposite sex because of his back and groin pain during sexual intercourse.   Mr Cliff said he is able to have an erection but the pain in his back and groin makes it painful to thrust and thus difficult to maintain.

6.      Mr Cliff noted that he had two failed marriages but he considered that these were unrelated to any of his conditions.

7.      Mr Cliff said he does not sleep well because he is unable to get comfortable and his mind races.  His concentration is poor and he stopped reading anything but newspapers many years ago.  He said he has some “personality clashes” at work and gets restless and angry.  He said he drinks a six-pack of beer most nights and has gone on “bourbon benders”.

8.      Mr Cliff said he arrived at the tribunal on the day of the hearing at 7.00 am because he was anxious about being late and then became annoyed with himself for being so early.

9.      However, Mr Cliff also said he sleeps soundly on some nights and is not fatigued. He lives with his mother and sister and gets on “brilliantly” with them, although he does not share his deepest secrets with them.  He said he considers his job to be a “good one – no one hassles me”.  He said he is sometimes “ragged” about the pain killers he takes, but doesn’t care.  Prior to starting his job six weeks previously as a forklift driver, working part-time (seven days in the last two weeks), Mr Cliff worked in an abattoir.  He left the abattoir because the bending and pushing required was too hard on his back.  His current job suits him because it is not hard on his back and he is able to sit down.

10.     He spoke with enthusiasm about his shed, where he spends some four or five hours per day working at his hobby of restoring antique telephones, and described it as his “world”.

medical evidence

11.     Dr A Dinnen, Psychiatrist, reported on 13 November 2004 that Mr Cliff had slept poorly since the mid 1980’s and had drunk to excess since 1979, has been irritable for a long time, becomes “really sad” for a couple of days each month and has “no interests”.  He said:

“His symptoms are those of an anxiety disorder – sleep disturbance, impotence, depressive feelings, light headedness, excessive worry, together with lost {sic} of interest and reduction in social relationships.

I do agree with Dr Kenny however that whatever psychiatric diagnosis is affixed to his range of psychological symptoms and signs the illness is not of major proportion…

So far as the diagnosis of adjustment disorder is concerned, I am not comfortable with that as it implies a disproportionate psychological reaction to whatever situation gives rise to it. His anxiety about asbestos and his worry about his general health and limitation of ability it seems to me are not unreasonable. I would therefore prefer the diagnosis of anxiety disorder.

Opinion: I believe this patient does suffer from an anxiety disorder. I believe it is secondary to his spinal condition and to his exposure to asbestos. I believe it incorporates impotence and chronic excessive use of alcohol. I believe the impairment due to the anxiety disorder is mild, and would not, in its own right, prevent him from working.”

12.     Dr B Kenny, Consultant Psychiatrist, reported on 7 September 2003 that Mr Cliff is not sociable; his memory and concentration are poor; he is irritable; his confidence is low and that he sleeps poorly (from about 2am to 8am).  He also said he gets on well with his mother, owns his own house and enjoys restoring antiques.  He said he is loath to see Mr Cliff as having any psychiatric problem at all and said he had normal concerns in view of his need to reorganise his life after so many years in the Navy. He said:

“While I would prefer not to use a psychiatric label, I suppose we have no alternative but to use that all encompassing label Adjustment Disorder with some anxiety, some depressed mood – but to a mild degree…

I should also add that while I reluctantly use the label Adjustment Disorder, I am certainly not suggesting that it is permanent or stable.”

13.     Dr Kenny referred later in his report to Mr Cliff’s condition having “little clinical significance in itself” and to “minor emotional/psychiatric/psychological symptoms” being in response to his “persistent physical symptoms, uncertainties about his future and the need to reorganise his life now that he has left the Service – something which he clearly misses.”  Dr Kenny also concluded that Mr Cliff does not suffer from impotence.

14.     Dr Koller, Psychiatrist, reported on 20 February 2003 that Mr Cliff gets depressed and worries excessively, is irritable, has restless sleep, no interest in a social life and poor concentration.  Dr Koller diagnosed Adjustment Disorder related to Mr Cliff’s back condition and painful hernia operation.  He described the condition as chronic and recommended psychiatric treatment.

15.     Dr J Roberts, Consultant Forensic Psychiatrist, reported on 10 January 2005 and gave oral evidence to the Tribunal.  He considered Mr Cliff’s manner on examination was entirely normal and noted his employment and hobby of restoring antiques.  He considered there was no evidence of any significant anxiety and no justification for a diagnosis of Adjustment Disorder.  Dr Roberts disagreed with Dr Kenny’s diagnosis while noting that Dr Kenny was reluctant to make the diagnosis and considered it to be of “little moment”.

16.     Dr Roberts considered Dr Koller’s assessment to be fundamentally in error and that Mr Cliff’s activities since leaving the Navy show this to be correct.  He reported that Mr Cliff has possible cyclothymic traits but there is no evidence of a reactive state and no evidence of demonstrable anxiety.

17.     In oral evidence, Dr Roberts said Mr Cliff showed none of the usual physiological concomitants of anxiety such as chest discomfort, respiratory symptomatology (although I note that Mr Cliff suffers from asthma) or stomach upset.  He also said he has no panic attacks, obsession or compulsion and no significant evidence of dysfunction.

18.     Dr Roberts said that even if Mr Cliff has some difficulty sleeping or concentrating, these are not present to a significant degree and do not indicate a psychiatric disorder.  He considered that Mr Cliff’s concern about the pain in his back and groin is not disproportionate to his conditions.  He said, in a person with a disorder, he would expect to find symptoms of nervousness, tension or fidgeting to an extent that would range from restrictive to disabling.

19.     As to the restriction in Mr Cliff’s social life, Dr Roberts noted that Mr Cliff had two failed marriages, but that these are unrelated to his mood or anxiety, and that he has a very good relationship with his family.

20.     He noted that his back and groin pain still allows him to do physical work and pursue his hobby and that it is therefore not at the severe end of the spectrum.  He also noted that Mr Cliff has not had any ongoing psychiatric treatment and his psychiatric symptoms are therefore not clinically significant.

21.     Dr Roberts concluded that Mr Cliff worries as a normal man worries and does not cross the threshold of psychiatric illness.  He also concluded that Mr Cliff has no clinically significant signs of distress or impairment.

preliminary findings

22.     I accept the evidence of Mr Cliff that he suffers from some sleep disturbance, irritability and poor concentration.  I accept that he worries about his physical condition and that his back and groin pain interfere with his ability to have sexual intercourse.  I also accept his evidence that his physical limitations interfere with his social life.

23.     I also find, on the basis of Mr Cliff’s evidence, that he is not fatigued and that he gets on very well with his mother and sister.  I accept his evidence that he considers his current job to be a good one and that he spends some four or five hours a day working in his shed on his hobby of restoring antique telephones. 

does mr cliff have a (psychiatric) disease?

24.     I note the definition of “disease” in section 5D of the Act as being:

“any physical or mental ailment ,disorder, defect or morbid condition (whether of sudden onset or gradual development;”

25.     The words “disorder, defect or morbid condition” denote matters of some substantial departure from the normal structure and functioning of the human body or mind.  The word “ailment”, it could be argued, may denote something less.  The Macquarie Dictionary defines “ailment” as:

“n. a morbid affection of the body or mind; indisposition: a slight ailment”.

26.     The word “morbid” is, in term, defined as:

“adj. 1. suggesting an unhealthy mental state; unwholesomely gloomy, sensitive, extreme, etc. 2. affected by, proceeding from, or characteristic of disease. 3. pertaining to diseased parts: morbid anatomy.”

27. The Federal Court has held that the questions as to whether an Applicant is suffering from a disease and the diagnosis of that disease are to be determined to the Commission’s or the Tribunal’s reasonable satisfaction, that is, in accordance with section 120(4) of the Act (Repatriation Commission v Gosewinckel (1999) 59 ALD 690; Repatriation Commission v Cooke (1998) 90 FCR 307; Repatriation Commission v Budworth (2001) 116 FCR 200).

28.     I note also the decision of the Federal Court and Repatriation Commission v Gosewinckel (supra) where Weinberg J said at 703:

“It is clear that the AAT could not accept Dr Wahr’s opinion of generalised anxiety disorder without regard to the description of that disorder as set out in the SoP.  As the Full Court held in Sheldon v Repatriation Commission (1999) 85 FCR 587 at [6] the SoP requires that the disease in question be ‘manifested by certain behaviour which is symptomatic of disease, not merely at any level of behaviour of that kind, whether or not it is symptomatic of the disease’.”

29.     The Statement of Principles No.1 of 2000 concerning generalised anxiety disorder and anxiety disorder due to a general medical condition defines generalised anxiety disorder as:

“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 or staying asleep, or restless unsatisfying sleep; 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.”

30.     In relation to the diagnostic criteria in paragraph E above, there is no evidence that Mr Cliff’s anxiety, worry, or physical symptoms of sleep disturbance, poor concentration or irritability cause clinically significant distress or impairment in social, occupational, or other important areas of Mr Cliff’s functioning.  In particular, I note that Mr Cliff’s evidence was that his perceived impaired social functioning was due to his perceived impotence which, in turn, was due to his back and groin pain.

31.     In SoP No.1 of 2000 “anxiety due to a general medical condition” is defined as:

A. Prominent anxiety, panic attacks, obsessions or compulsions predominate in the clinical picture; and

B. There is evidence from the history, physical examination, or laboratory findings that the anxiety, panic attacks, obsessions or compulsions are the direct physiological consequence of a general medical condition; and

C. The anxiety, panic attacks, obsessions or compulsions are not better accounted for by another mental disorder; and

D. The anxiety, panic attacks, obsessions or compulsions do not occur exclusively during the course of a delirium; and

E. The anxiety, panic attacks, obsessions or compulsions cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.

32.     There is no evidence that Mr Cliff has suffered prominent anxiety, panic attacks, obsessions or compulsions which predominate in the clinical picture.

33.     I also turned my mind to the question of whether Mr Cliff may suffer from psychiatric disease other than anxiety disorder.  In particular I considered the diagnostic criteria for adjustment disorder in SoP No. 57 of 1996 which include: “marked distress that is in excess of what would be expected from exposure to the stressor” or “significant impairment in social or occupational (academic) functioning”. I do not consider that there is evidence of either of these criteria.  I note my comments above in relation to impairment in social or occupational functioning and I accept the opinion of Dr Roberts that Mr Cliff’s worry is not disproportionate to the physical medical conditions from which he suffers.

34.     I also turned my mind to the diagnostic criteria in SoP No.5 of 1999 concerning acute stress disorder, SoP No.128 of 1996 concerning bipolar disorder, SoP No.58 of 1998 concerning depressive disorder, SoP No.9 of 1999 concerning panic disorder, SoP No.143 of 1995 concerning personality disorder and SoP No.132 of 1996 concerning schizophrenia.  I find that the Applicant’s symptoms do not accord with the diagnostic criteria in any of these SoPs.  I also note that these SoPs are either derived from or reproduce, the diagnostic criteria set out in the American Diagnostic and Statistical Manual of Mental Disorders, DSM IV.

35.     I find persuasive the evidence of Dr Roberts and his opinion that Mr Cliff does not “cross the threshold” of psychiatric illness.  On the basis of the evidence before me I cannot be reasonably satisfied that Mr Cliff suffers from a psychiatric disease.

36.     It follows that an inquiry into war causation is unnecessary.

37.     As to Mr Cliff’s claimed impotence, even if I were reasonably satisfied that he suffers from that condition, notwithstanding the absence of medical evidence in support, I note that Mr Cliff relies on factor 5A of SoP No.98 of 1996: “Suffering from a specified psychiatric condition at the time of the clinical onset of impotence”.  Given my conclusion in relation to claimed anxiety disorder, and any other psychiatric condition, war-causation could not be established on this basis.  There is no other factor in the SoP that would apply to Mr Cliff’s circumstances.

decision

38.     The decision under review is affirmed.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member.

Signed:         .............[Linda Blue]...................................
  Associate

Date of Hearing  29 March 2005
Date of Decision  2 May 2005
Counsel for the Applicant         Mr Brian Winship
Counsel for the Respondent     Mr Nigel Bunn