Collins and Repatriation Commission
[2008] AATA 373
•7 May 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 373
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/704
VETERANS’ APPEALS DIVISION ) Re MICHAEL COLLINS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms Robin Hunt, Senior Member Date7 May 2008
PlaceSydney
Decision The decision under review that Mr Collins does not suffer defence-caused depressive disorder is affirmed.
...................[Sgd]...................
Ms Robin Hunt
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – claim for pension – defence service – claimed disabilities – depressive disorder – insufficient evidence of diagnosis of depressive disorder – no injury or disease attributable to service – decision affirmed.
Veterans’ Entitlements Act 1986 (Cth)
Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622; (2001) 34 AAR 270
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Gerzina v Repatriation Commission [2004] FCAFC 96
Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331;
(2002) 74 ALD 68
Repatriation Commission v Budworth [2001] FCA 1421; (2001) 116 FCR 200; (2001) 66 ALD 285
Repatriation Commission v Money [2008] FCA 118
Repatriation Commission v Smith (1987) 15 FCR 327; (1987) 74 ALR 537
Repatriation Commission v Stoddart [2003] FCAFC 300; (2003) 134 FCR 392;
(2003) 77 ALD 67
REASONS FOR DECISION
7 May 2008 Ms Robin Hunt, Senior Member summary
1. Mr Collins suffers from a psychiatric disorder and is seeking a services pension on the basis that his disorder is attributable to his period of defence service in the Royal Australian Air Force (‘RAAF’). The Veterans’ Review Board (‘the Board’) rejected Mr Collins’s claim, finding that he suffered no disorder attributable to service. After reviewing the evidence and submissions of the parties, I have concluded that the decision under review that Mr Collins does not suffer defence-caused depressive order is affirmed.
Decision under review
2. The decision under review is that of the Board made under the Veterans’ Entitlements Act 1986 (‘the Act’) on 23 March 2005. This decision affirmed that Mr Collins’s claim in respect of paranoid personality disorder and depressive disorder was rejected. The original decision maker and the Board accepted that Mr Collins did suffer paranoid personality disorder and depressive disorder but found these conditions were not related to his defence service.
issues
3. For the present review, Mr Collins proceeded with a claim for depressive disorder only. There are two issues for the review:
· Does Mr Collins suffer from depressive disorder; and
· If so, is his depressive disorder defence-caused?
4. The parties agreed at the tribunal hearing that certain Statements of Principles applied. At the time of Mr Collins’s claim, the Statement of Principles (‘SoP’) Instrument No. 59 of 1998 for depressive disorder applied. Then, by the time of the tribunal hearing, that instrument was replaced by Instrument No. 18 of 2007 for the same disorder. The applicant’s counsel argued that Mr Collins satisfied factor 6(e) of Instrument No. 18 of 2007. In addition, a new SoP, Instrument No. 28 of 2008, came into effect before the date of the tribunal’s decision. The applicant’s counsel clarified that, as factor 6(e) was imported verbatim into Instrument No. 28 of 2008 as factor 6(a)(v), the applicant made no new argument, there being no material difference arising whichever of the 2007 or 2008 SoPs applied.
consideration
5. The parties also agree that the applicant rendered eligible defence service as a member of the RAAF from 19 August 1980 to 24 November 1995. The standard of proof applicable, therefore, is reasonable satisfaction pursuant to sub-s 120(4) of the Act. Pursuant to s 120B of the Act, the standard of proof for fulfilling any relevant SoP is again reasonable satisfaction. The initial task is to determine the correct diagnosis of the applicant’s condition and then the date of clinical onset of any such condition.
Mr Collins’s background and evidence
6. Mr Collins made a written statement setting out that he was born in Yorkshire in 1948 and came to Australia on 1 April 1978. He said he worked in catering before enlisting in the RAAF in 1980, starting as a cook’s assistant. He set out that he had wanted to “re-muster” to the transport division but had to improve his Maths and English language skills before this could happen. He obtained permission to attend night classes at TAFE but then became unable to attend classes because his shift changed to evenings. His complaints were to no avail.
7. Mr Collins gave evidence that he tried to re-muster several times with no success and became stressed and depressed. He felt bullied by superiors in the catering section. In 1989, he transferred to Tindal, Darwin, in the Northern Territory. He was pleased with this change but alleged that he experienced racism and victimisation in the new posting. He gave further evidence that, while in Tindal in about 1995, he separated from his wife. He said his marriage had been in trouble when he asked for a posting to Darwin.
8. During the Tindal placement, an aboriginal catering assistant accused Mr Collins of making a racial remark and of failing to provide her with light duties. Mr Collins gave evidence to this effect and service records confirm that a Ms Patricia Kruger did make a complaint of this kind. Mr Collins complained at the hearing that he had been overworked and his requests for more staff to assist him in Darwin were ignored. He gave evidence that when he told Ms Kruger to go home because she was “no use”, he meant she should take a “sickie” but she took this as a criticism. He also mentioned an incident where he had said “they want to shoot them all” and he was taken to mean aborigines should be shot when he was referring to dogs. He admitted to hearing rumours at Tindal that he was racist.
9. Mr Collins denied that he was guilty of any racism or sexism towards Ms Kruger. He said he did his utmost at work but his relationship with his staff was poor. He said he found this situation stressful. He told the tribunal that he was ordered back to Richmond after what he described as “some confrontations” with his superiors. He said he also was threatened with the loss of his Corporal’s stripes. Feeling he was under surveillance all the time and not being given opportunities, he left the RAAF in 1995.
10. In his further oral evidence, when questioned about whether he thought he had personality disorder, Mr Collins said he did not have personality disorder but suffered victimisation and stress. He did not think he was aggressive although he confessed to knocking out a senior officer once and having other conflicts. He thought his problems were due to other people.
11. He did not recall receiving counselling about aggressive behaviour and gave further evidence that he did not recall incidents involving poor behaviour which were recorded on his service file. When his attention was drawn to records of his undergoing counselling on several occasions, he again said he never had a disorder and did not know why there was a lot of material about his behaviour on the respondent’s file. He denied that he used excessive foul language although he recalled that he was counselled about this. He thought the formal warning he received in June 1993 might have been because he was upset when he could not attend night school. Counsel for the respondent drew attention to several references in tribunal documents to warnings and counselling. Mr Collins told the tribunal that records about his being given warnings and counselling were wrong. He gave evidence that he only took part in “off the record” conversations about his staff.
12. Another grievance to which Mr Collins referred was his not getting a free flight to England courtesy of the service. He gave evidence that this was an entitlement to which personnel had access and said he thought it unfair that higher ranks had priority. He gave more evidence to the effect that he flew to see his mother when she was sick and dying and that he had to undertake a private flight. He said that officers got priority for such trips and he resented having to make his own arrangements. He also gave evidence to the effect that he was no longer a cook’s assistant when posted to Darwin but was performing higher duties. He said he was not paid the appropriate higher rate because he had been in trouble. He also gave evidence that he was told he was an alcoholic and advised to attend a course. He said he went to the course for a while but stopped because he thought he should not be there. He said he also had refused to attend a training session as he did not need to do push-ups.
13. The applicant agreed he had been charged or nearly charged on two occasions for being absent without leave (‘AWOL’) but offered an explanation for these absences which he thought was reasonable or indicated he should not have been recorded as AWOL. He spoke of an incident when he discovered a dead motor cyclist on the road and was charged by police before he could explain anything and said that the charge was later withdrawn. When leaving the force, he said he asked for a medal and was annoyed when he was told he would not receive one because of all the charges against him. He was not sure why he left but told the tribunal he had felt sick and depressed.
14. Mr Collins recalled seeing the psychiatrist, Dr G S Robinson, for a consultation arranged by the respondent. He said that he did not like the doctor and told him he tried to be happy. He agreed that he told Dr Robinson that his problems were due to other people and the RAAF. He told the tribunal he meant his problems were due to people who discriminated.
Diagnosis of Mr Collins’s condition
15. Mr Collins claims he has a psychiatric disorder attributable to his service. The respondent accepts that Mr Collins suffers from a psychiatric disorder but disputes the diagnosis of depressive disorder as well as the link to service. Medical opinions before me differ as to whether he has a psychiatric disorder and, if so, the precise diagnosis. Mr Collins has been described as suffering depressive disorder, major depression, and also personality disorder.
16. Mr Collins presses his claim on the basis that he suffers depressive disorder. He says that he experienced disharmony and perceived a lack of support in his workplace immediately before the onset of depressive disorder in 1994. In order to verify his claim, I have looked at service records dating from 1993 about Mr Collins’s problems.
17. The records show that Mr Collins requested a transfer on 2 July 1993, according to a copy of an application on file. In his written transfer request, Mr Collins cited poor working relations with superiors and severe personality clashes at “this base”.
18. Also in 1993, Mr Collins’s commanding officer, after a string of incidents, reports and a formal warning on 30 June 1993, recommended on 16 December 1993, that Mr Collins be reduced in rank. A psychological report was prepared by Dr D K S Tavender, on 5 December 1993, in which he noted that Mr Collins genuinely believed he was doing his best despite his shortcomings. Dr Tavender recommended that Mr Collins be reported as unsuitable in rank. A medical officer, R T Kurus, on 8 December 1993, reported “I have assessed CPL Collins and find no clinical evidence of psychiatric disease”.
19. C F Hay, a senior officer, prepared an unsuitability report on Mr Collins on 31 January 1994. Further medical evidence around this time includes a report of E Norris, base psychologist, who counselled Mr Collins in 1994. Mr Norris recorded Mr Collins’s marriage difficulties and involvement in a human rights case concerning allegations of racist treatment of his subordinate. Mr Norris’s overall impression was that Mr Collins did not have insight or capacity to understand the ramifications of his situation. He considered Mr Collins’s resources and capabilities extremely limited. Mr Norris concluded that Mr Collins would be unable to challenge himself or to implement changes to manage his situation more effectively. In the final sentence of his report, Mr Norris suggested that Mr Collins be encouraged to attend further counselling when he returned from a trip to the United Kingdom on 8 August 1994. Mr Norris also prepared a further report on Mr Collins on 30 March 1995.
20. After a consultation in 2002, a Dr G Vickery, in his report of 27 March 2002, found no evidence of clinically significant anxiety state, depressive disorder, thought disorder, hallucinations, delusional or cognitive impairment. He found no service- related sequelae and no paranoid disorder.
21. Dr L Lambeth, on 2 September 2004, also carried out a psychiatric assessment at the request of the Commonwealth and considered Mr Collins was suffering depression, not otherwise specified. He thought this was caused by underlying paranoid personality disorder. Dr Lambeth, in his report dated 6 September 2004, noted the complaint of depression but diagnosed Mr Collins with paranoid personality disorder and depression.
22. Dr Hansen, a psychiatrist, saw Mr Collins later in 1994. Dr Hansen, on 19 December 1994, observed that Mr Collins was “angry and frustrated – sleeps poorly …cranky and ill tempered…very angry and tense and also depressed”. He prescribed anti-depressant medication at this time. Dr Hansen noted as stresses, “finances, separation from wife & kids, where he lives – the fourth move is coming up”. Dr Hansen referred to the “human rights” case going on as well. This doctor thought a move to Williamstown would help Mr Collins’s “social position”. While he observed this might be an over-valued idea, he recommended the transfer on compassionate grounds.
23. Further medical records on the respondent’s file show that Mr Collins was referred to a substance abuse counsellor, C Boshammer, by Dr P B Krabman. A document headed “Refusal of Treatment at AREP” shows that Mr Collins, having been assessed on 11 January 1995 by C Boshammer, and after being informed that he required inpatient treatment for alcohol dependency, stated that he did not accept the diagnosis and refused treatment. Then, another record shows he was admitted to hospital on 30 January 1995 and discharged on 24 February 1995 after diagnosis of alcohol dependence and possible alcohol related brain damage.
24. Two consultant psychiatrists provided me with expert evidence at the hearing as well as furnishing written reports: Dr Robinson, mentioned above, and Dr A Dinnen. Dr Robinson saw Mr Collins for psychiatric assessment on 8, 14, and 21 November 2000 and formed the opinion that he had no psychiatric disorder. In this doctor’s opinion, Mr Collins at that time suffered a personality disorder. Dr Robinson saw Mr Collins again some years later for the present review and his 2007 report is discussed later in these reasons.
25. Dr Dinnen saw Mr Collins at the request of his solicitor in 2006 and produced a report on 30 November 2006. He produced a further report on 3 September 2007 although he examined Mr Collins only once. In his first report, Dr Dinnen expressed the opinion that Mr Collins’s personality pathology was mostly expressed through aggressive behaviour rather than paranoia. He thought the aggressive behaviour was more likely constitutional and the appropriate categorisation was personality disorder not otherwise specified in accordance with DSM-IV-TR.
26. Dr Dinnen thought that Mr Collins’s presentation in 1994/5 was well documented in the service records and accorded with the diagnosis of adjustment disorder with anxiety and depressed mood. The alternative diagnosis was depressive disorder (dysthymic). Dr Dinnen preferred the latter diagnosis and, in that regard, gave Dr Hansen’s report of December 1994 weight. Dr Hansen was a psychiatrist who saw Mr Collins in 1994 as noted above. However, Dr Dinnen did not conclude definitively whether or not depressive disorder existed in conformity with the SoP Instrument No. 59 of 1998. Dr Dinnen observed that this would depend on circumstances which occurred in the early 1990s and whether they were severe psychosocial stressors. He added that it seemed to him that, in a general sense, they were.
27. In his later report of 3 September 2007, Dr Dinnen set out some further records furnished to him about incidents involving Mr Collins during service and some additional medical reports. He noted that Dr Hansen certified Mr Collins as having an acute stress reaction and anxiety/depression. He also noted a report from a Warrant Officer/substance abuse counsellor in January and February 1995 and another from a psychologist in March 1995. He further noted a psychological evaluation and unsuitability report made in April 1994 and a psychologist’s report which was critical of Mr Collins’s performance in 1993 and observed that he failed to accept his shortcomings. Dr Dinnen also referred to the formal complaint of harassment by Ms Kruger in 1993. He further noted records of prosecutions in June 1986 for assault of a superior officer and other incidents. In the end, Dr Dinnen said these records just fleshed out matters he already had addressed. He concluded that none of this material caused him to alter his opinion in any way.
28. Dr Dinnen gave oral evidence to the tribunal of the depressive symptoms which he observed in Mr Collins. He said his opinion was that Mr Collins suffered dysthymic disorder and depressive disorder. He thought that depressive disorder must have been present in 1994 when Mr Collins saw a psychologist and marriage breakdown and work stress were contributing factors. The doctor gave his opinion that Mr Collins met the description in SoP Instrument No. 18 of 2007, paragraph 3(b), of dysthymic disorder quite clearly. Dr Dinnen gave further evidence of his opinion that Mr Collins fulfilled factor 6(e) of the 2007 SoP and that the investigation of racism would apply. He thought facing this serious legal issue and the marriage breakdown were contributing factors to Mr Collins’s disorder. Dr Dinnen disagreed with Dr Robinson that Mr Collins was paranoid.
29. Dr Robinson saw Mr Collins, at the request of the respondent, on a second occasion, on 29 January 2007. In his report dated 21 May 2007, Dr Robinson recalled his 2000 report, which he said he had prepared for another purpose on 20 November 2000. In the 2007 report, Dr Robinson recounted a history which was similar to that described by Mr Collins in his evidence to the tribunal. The history taken by Dr Dinnen was in some respects different. Dr Robinson remembered Mr Collins telling him in 2000 that he would be fine if he had a job but noted that he still had no job in 2007.
30. According to Dr Robinson, Mr Collins recalled how stressed he was in the mid-1990s, noting he had marital problems and went through divorce. Dr Robinson recorded that Mr Collins mentioned that the tax office wanted him to pay over $2,000 for child support. There was also reference to the death of his mother. The doctor recorded that Mr Collins spoke of “the aboriginal thing” happening at the same time. The history Dr Robinson took also mentioned that Mr Collins was angry that he did not get a free flight to England and that other people had priority over him.
31. Dr Robinson wrote that he did not consider that Mr Collins displayed symptoms of depression and diagnosed paranoid personality disorder. He further noted that Mr Collins told him, when he last saw him in January 2007, that he had felt better over the last two years.
32. When asked to comment on Dr Robinson’s reports, Dr Dinnen gave evidence that he considered the history that Dr Robinson took was not consistent with his or that taken by others. Dr Dinnen observed that if Dr Robinson could not find depressive symptoms then he could not be expected to find depression. However, Dr Dinnen noted that the history Mr Collins gave him 6 months earlier was different from that taken by Dr Robinson. After considering the opinions expressed by Dr Robinson and his references to earlier opinions of Drs Vickery and Lambeth, and taking into account the death of Mr Collins’s mother and events around 1992, Dr Dinnen agreed that Mr Collins may have a personality disorder but confirmed this was not his diagnosis. Dr Dinnen in his report dated 30 November 2006 also agreed that the applicant may suffer from a personality disorder. However, he believed it was a personality disorder not otherwise specified. He made it clear he preferred the diagnosis of depressive disorder and further opined that depressive disorder (dysthymic) would impact Mr Collins’s ability to perform his duties.
33. In forming a view, on balance, about Mr Collins’s psychiatric condition, in light of disagreement by the above experts, I also take into account contemporaneous records. I am mindful of the stressful situation Mr Collins endured when accused of racist treatment of his subordinate in Darwin. I note the associated charges ultimately were dropped but that this occurred after some time. Records of Dr Hansen in 1994, when Mr Collins claims he developed depressive disorder, do not indicate the development of a psychiatric disorder at this time but indicate some symptoms of depression were present. Display of symptoms of anxiety and depression are understandable at a time of stress when Mr Collins was subject to marriage breakdown and difficulties with his superiors’ assessment of his behaviour and performance. However, as Dr Robinson explained, symptoms of depression do not always amount to diagnosis of depression.
34. The records before me show that Mr Collins underwent some treatment for alcohol abuse while in the service but, as he told me, he discontinued this treatment. Several records made in 1993 and 1994, which I have referred to above, assess that Mr Collins genuinely believed he was doing his best despite his shortcomings. Several reports noted above refer to Mr Collins’s being unable to understand or accept his limitations and a psychologist notes that his resources and capabilities were extremely limited. Some reports recommend that he be made unsuitable in rank rather than being discharged. R T Kurus, on 8 December 1993, found no clinical evidence of psychiatric disease and Dr Hansen did not make a firm diagnosis.
35. I am required to determine if Mr Collins is suffering from a particular injury or disease to the standard of reasonable satisfaction in accordance with s 120(4) of the Act: see Repatriation Commission v Budworth [2001] FCA 1421; 116 (2001) FCR 200; (2001) 66 ALD 285 at paragraph [15] and Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622; (2001) 34 AAR 270. As well, the Full Court of the Federal Court of Australia has determined in Repatriation Commission v Smith (1987) 15 FCR 327 that the reasonable satisfaction standard required by s 120(4), is equivalent to the standard of proof applicable in civil actions. Also see Gerzina v Repatriation Commission [2004] FCAFC 96. I have considered Mr Collins’s complaints and compared his statements with medical evidence and service records before me in order to reach a finding. If I am satisfied that the documented symptoms suffered by Mr Collins constitute an injury or disease, the second question will be whether there is a SoP in force in respect of the disease.
36. On balance, taking into account the various medical opinions presented to me, I consider that Mr Collins does not suffer depressive disorder, depressive disorder (dysthymic) or dysthymic disorder. I prefer the opinion of Dr Robinson, who saw Mr Collins on two occasions, in 2000 and again in 2007. While Mr Collins has experienced many problems in his service life and in his personal life, there is little medical opinion other than that of Dr Dinnen’s to indicate the existence of depressive disorder or dysthymic disorder. Dr Dinnen told the tribunal he thought more weight should attach to Dr Hansen’s report in 1994, but I note Dr Hansen did not diagnose a disorder at that time. Dr Hansen simply noted stresses being experienced by Mr Collins and prescribed some anti-depressant medication but ultimately recommended transfer on compassionate grounds, which Mr Collins had requested, rather than determining that he suffered a psychiatric disorder. Further, Dr Robinson has pointed out that symptoms do not necessarily indicate the presence of a disease or disorder.
37. As I have already observed, only if I am satisfied that Mr Collins’s symptoms constitute an injury or disease, particularly depressive disorder, will the question arise about meeting the requirements of a SoP about a found condition. As I have found that Mr Collins does not suffer a psychiatric disorder, or more particularly, depressive disorder or dysthymic disorder, I need not examine whether there is any condition which comes within the SoPs raised by the parties. It follows that Mr Collins has not met the base requirements for the pension he seeks.
38. In addition, I note that s 70 of the Act determines eligibility for a pension under the Act. Subsection 70(1)(b) provides that where a person is incapacitated from a defence‑caused injury or a defence‑caused disease, the Commonwealth is, subject to the Act, liable to pay. However, sub-s 70(9) provides that the Commonwealth is not liable under this section in respect of the incapacity of a member of the services, from injury or disease, in a case where the injury was suffered, or the disease was contracted, by the member in circumstances which resulted from the member's serious default or wilful act or arose from a serious breach of discipline committed by the member.
39. While it is unnecessary for me to decide this point, having already found that Mr Collins does not suffer from the condition claimed, it may be that s 70(9) also operates to preclude any depressive disorder from being accepted as a defence-caused disease because Mr Collins’s perceived “ongoing disharmony and conflict with his peers and superiors” arose out of his “serious default”, “wilful act” or “serious breach of discipline”. In this connection, I note the various transgressions and warnings issued by Mr Collins’s superiors which led to his psychological assessment in the 1990s. The applicant was placed under a two year RAAF warning and a subsequent adverse report was issued concerning breach of discipline. I have not made a formal finding of “serious default”, “wilful act” or “serious breach of discipline” in view of my finding that Mr Collins does not suffer from the disorder on which his claim is based.
Conclusion
40. I have come to the conclusion that Mr Collins does not suffer a depressive disorder although he experienced difficulties with his superiors and staff and displayed some depressive symptoms while in the RAAF. It follows that his claim is unsuccessful. I will therefore affirm the decision under review that Mr Collins does not qualify for a pension on the grounds of defence-caused depressive disorder although I note that the Board accepted that Mr Collins did suffer depressive disorder and rejected his claim on the basis that it was not defence-caused. This result may have occurred because the Board did not have the benefit of the 2007 report furnished by Dr Robinson.
decision
41. The decision under review that Mr Collins does not suffer defence-caused depressive disorder is affirmed.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member
Signed: .........................[Sgd]...........................
AssociateDate of Hearing: 21 January 2008
Date of Decision: 7 May 2008
Counsel for the Applicant: Ms E WoodAdvocate for the Applicant: Ms A Toliopoulos, Legal Aid Commission – Veterans’ Advocacy Service
Advocate for the Respondent: Mr N Bunn, Department of Veterans’ Affairs
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