Comino and Repatriation Commission

[2007] AATA 1071

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1071

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/435

VETERANS’ APPEALS DIVISION )

Re Leslie COMINO

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date                       20 February 2007

Place                     Brisbane

Decision

The Tribunal:

1.         affirms the decision under review in relation to diabetes mellitus;

2.        sets aside the decision under review in relation to anxiety disorder and irritable bowel syndrome and substitutes its decision:

(a)     that anxiety disorder and irritable bowel syndrome are war-caused in accordance with section 9 of the Act;

(b)     that pension is payable for associated incapacity from and including 13 February 2004; and

(c)     that the matter of assessment be remitted to the respondent.

………[Sgd]…….
  RG Kenny

Member

CATCHWORDS

VETERANS’ AFFAIRS – disability pension – operational service with Royal Australian Air Force – application of Statements of Principles – appropriate diagnosis of psychiatric and other conditions –– anxiety disorder and irritable bowel syndrome diagnosed – effects of death of cyclist in motor vehicle accident - severe psychosocial stressor – clinical onset of anxiety disorder within two years - reasonable hypothesis of relevant relationship to service raised – anxiety disorder war-caused – irritable bowel syndrome war-caused through relationship to pre-existing anxiety disorder

Administrative Appeals Tribunal Act 1975 I(Cth) s 37
Veterans’ Entitlements Act 1986 (Cth) ss 6A, 7, 9, 14, 120, 120A, 177

Repatriation Commission v Smith (1987) 15 FCR 327; (1987) 74 ALR 537; (1987) 12 ALD 798; (1987) 7 AAR 17
Benjamin v Repatriation Commission (2001) 70 ALD 622; (2001) 34 AAR 270; [2001] FCA 1879
Fogarty v Repatriation Commission (2003) 37 AAR 363; [2003] FCAFC 136
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Youngnickel v Repatriation Commission [2004] FCA 1691
Lees v Repatriation Commission (2002) 125 FCR 331; [2002] FCAFC 398; (2002) 74 ALD 68; (2002) 36 AAR 484
Hardman v Repatriation Commission [2004] FCA 1174; (2004) 82 ALD 433; (2004) 40 AAR 486

REASONS FOR DECISION

20 February 2007 Mr RG Kenny, Member

Background

1. Leslie Comino (the applicant) undertook a period of service with the Royal Australian Air Force (the RAAF) from 17 June 1945 until 15 October 1948. On 13 May 2004, he lodged with the Repatriation Commission (the respondent), in accordance with section 14 of the Veterans’ Entitlements Act 1986 (the Act), a claim for a disability pension for “anxiety and depressive state”, “irritable bowel syndrome” and “diabetic” which he contended were related to his RAAF service.  On 23 September 2004, the respondent accepted that Dr Comino suffered from anxiety disorder and irritable bowel syndrome but determined that those conditions were not related to his service.  It also determined that, in response to the claim for “diabetic”, there was no diagnosable condition such as diabetes mellitus present.  On 17 June 2005, the Veterans’ Review Board (the Board) affirmed the decision and Dr Comino now seeks review of the Board’s decision by the Administrative Appeals Tribunal (the Tribunal).

Hearing

1. At the hearing, Dr Comino was represented by Mr R Clutterbuck of counsel and the respondent was represented by Mr M Smith. The material tendered and taken into evidence included the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents).

Service and Standard of Proof

1. Dr Comino was born on 23 June 1920.  He qualified as a medical practitioner before enlisting in the RAAF.  He served in that capacity when he rendered eligible war service in the form of operational service, as provided for in sections 7 and 6A, respectively, of the Act.  He served as a member of British Commonwealth Occupation Forces (BCOF) in Japan from 8 September 1947 until 8 June 1948.

2. The standard of proof for determining diagnostic matters under the Act is provided for in subsection 120(4) thereof and this requires that such matters be determined to the Tribunal’s reasonable satisfaction: see Repatriation Commission v Smith (1987) 15 FCR 327 at 335; Benjamin v Repatriation Commission (2001) 70 ALD 622 at 634; and Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373. The standard of proof applicable to issues of causation for operational service is set out in subsection 120(1) of the Act which reads:

   Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

3. The application of that provision is affected by the terms of subsection 120(3) and section 120A of the Act which require that consideration be given to any relevant Statements of Principles that have been published by the Repatriation Medical Authority (RMA).  Under paragraph 9(1)(b) of the Act, a condition will be war-caused if it arose out of, or was attributable to, any eligible war service rendered. 

Submissions

1. Mr Clutterbuck contended that the appropriate diagnosis for Dr Comino’s psychiatric condition was anxiety disorder.  He submitted that this condition was directly related to either of two stressful experiences which occurred in Townsville and Japan, respectively.  The first of these was when travelling as a passenger in a vehicle which struck and killed a young female cyclist.  The second of these was when he assisted others to remove the dead body of an American airman after his and another aircraft had collided and fallen into the sea near the shore where he was working as a doctor in a hospital.  Alternatively, he submitted that Dr Comino’s anxiety disorder was related to the effects upon him of the conditions previously accepted as being war-caused.  These are cerebral ischaemia, bilateral sensori neural hearing loss with tinnitus, impotence, solar keratosis, localised osteoarthrosis of the right hip, chronic sinusitis, acquired cataracts in both eyes and deviated nasal septum. 

2. Mr Clutterbuck further contended that Dr Comino’s irritable bowel syndrome was causally associated with the psychiatric condition and was war-caused by that means. 

3. Mr Clutterbuck conceded that there was no basis for diabetes mellitus to be accepted as a service-related disability and requested that the Tribunal affirm the decision in relation to that matter. 

4. Mr Smith accepted the contention of Mr Clutterbuck in relation to diabetes mellitus.  For the psychiatric condition, he submitted that the correct diagnosis was adjustment disorder which developed in recent times due to Dr Comino’s concerns about his mortality and the consequences to members of his family.  He also submitted that, if anxiety disorder was the appropriate diagnosis, there was no triggering stressor and no clinical onset of the condition until well after the relevant time-frames which need to be met.  For irritable bowel syndrome, he submitted that the absence of a service-related psychiatric condition meant that the condition was not war-caused by that means. 

The Applicant

1. Dr Comino was a passenger in the front seat of a service motor vehicle when it struck a young female cyclist in Townsville.  Conditions were not conducive to clear vision and the cyclist was dressed in dark clothing.  She made contact with the windscreen of the vehicle and was killed.  Dr Comino escorted her body to the hospital.  He was shocked by the incident and said that it was very different from something he would experience in the practice of medicine because of his personal involvement.  The second incident occurred in Japan.  He was on duty in a hospital when he heard the sound of a mid-air collision between two aircraft.  He went outside but did not see the planes.  He was immediately taken to the site where one of them had crashed into the sea close to shore.  He was able to give assistance in removing the body of the dead airman from the plane and he accompanied it to the hospital.  Again, he was shocked by the incident.

Diagnosis of Conditions

1. Psychiatric evidence was provided in this matter by Dr Maxwell Katz and Dr Philip Morris.  Dr Katz provided reports dated the dated 13 May 2003, 26 November 2004 and 5 October 2005.  Dr Morris’ report was dated 13 September 2006. 

2. Dr Katz diagnosed anxiety disorder and expressed the opinion that it was related to the incidents described above in Dr Comino’s service.  He considered that these events were the underpinning of this condition with more recent focus being his and his wife’s health problems.  He considered that Dr Comino met all of the requirements to make the diagnosis of anxiety disorder.  He also considered that the diagnosis was able to be related to his symptoms as they impacted upon him in the years since the end of his service.  In reaching that conclusion, he placed reliance upon information provided to him in a consultation that he had with Dr Comino’s wife.  She met him in 1949 before they married in 1950.

3. In his latest report and in his evidence, Dr Katz referred to the six diagnostic criteria which are set out in the definition of “generalized anxiety disorder” in Instrument No. 1 of 2000, which is the Statement of Principles published by the RMA for that condition.  These are:

   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

4. He was of the opinion that all of these requirements were met by Dr Comino. 

5. Dr Morris referred to the two incidents which occurred to Dr Comino during his service.  He was told by Dr Comino that these had resulted in frequent nightmares about aircraft which persist but with decreasing frequency.  Dr Morris considered that he displayed some symptoms of post traumatic stress disorder since the war but that he did not have the full array of these sufficient to diagnose that condition.  Dr Morris did not consider that Dr Comino suffered from a long term psychiatric condition but was of the opinion that he had recently developed an adjustment disorder with anxiety because of his preoccupation with his own mortality and his inability to take care of his wife and his family. 

6. Whilst the report and evidence of Dr Morris were comprehensive, his opinion was based on a single consultation with Dr Comino.  In many cases, of course, that will be sufficient for a professional diagnosis to be made.  However, in this case, Dr Katz has had the advantage of seeing Dr Comino on three separate occasions and, significantly and unlike Dr Morris, had the advantage of having information provided directly to him by Mrs Comino.  This related back to 1949.  Dr Katz considered this to be important in his analysis of the presentation of symptoms, both currently and historically, in Dr Comino.  On the balance the probabilities, I am satisfied that the diagnosis entered by Dr Katz should be adopted as the psychiatric condition present in Dr Comino in response to his claim under the Act.

7. It is not disputed and I am reasonably satisfied that Dr Comino suffers from irritable bowel syndrome.  It follows that a determination must be made as to whether anxiety disorder and/or irritable bowel syndrome are war-caused in accordance with paragraph 9(1)(b) of the Act.  

8. I have noted the concession made by Mr Clutterbuck in relation to diabetes mellitus and accede to his request to affirm the decision under review in relation to that condition.

Principles of Causation

1. The Federal Court, in Repatriation Commission v Deledio (1998) 83 FCR 82 at 92, set out a four-step procedure for determining issues of causation in relation to operational service. The first of these requires that there be an hypothesis of connection between a claimed condition and service. I accept that the motor vehicle incident in Townsville and the body retrieval incident in Japan described above constitute hypotheses of a relationship between Dr Comino’s operational service and his anxiety disorder. I also accept that that there is an hypothesis of a relationship between Dr Comino’s anxiety disorder and his health problems in recent times. For irritable bowel syndrome, I accept that there is an hypothesis of a relationship with this and Dr Comino’s anxiety disorder.

2. The second of the four Deledio steps requires identification of the relevant Statement of Principles as published by the RMA.  As noted above, Instrument No. 1 of 2000 is the Statement of Principles published by the RMA for anxiety disorder.  In so far as relevant to this matter, the factors of causation and associated definitions read:

   5(a)(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder;

   5(a)(iv) having a major illness or injury within the two years immediately before the clinical onset of anxiety disorder;

   “severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;

   “major illness or injury” means a disease or injury that is life threatening or seriously disabling;

3. For irritable bowel syndrome, the Statement of Principles is Instrument No. 103 of 1996.  It lists the following relevant factor and associated definition:

   5(b) suffering a specified psychiatric condition within the six months immediately before the clinical onset of irritable bowel syndrome;

   “a specified psychiatric condition ” means:

   (a) a psychiatric condition with features of anxiety, including:

   (i) generalised anxiety disorder, ICD code 300.02; or

4. The third Deledio step does not involve the making of findings of fact but requires a consideration of each advanced hypothesis to determine whether it is reasonable.  This requirement will be met if the hypothesis fits, in the sense of being consistent with, the template provided by the relevant factor and associated definition in the Statement of Principles.  If an hypothesis is reasonable, it will then be necessary to consider the fourth of the Deledio steps. 

Reasonableness of Hypotheses

anxiety disorder: factor 5(a)(ii)

1. Dr Katz considered that each of the two incidents described by Dr Comino constituted a severe psychosocial stressor as that term is defined in the Statement of Principles.  Dr Morris considered that this was not the case with Dr Comino’s role in the recovery of the allied airman from the plane crash in Japan.  He noted that Dr Comino had reported that the body had not been dismembered or burnt.  Dr Morris considered that he was carrying out his duties as a medical practitioner at that time and that the event did not have the social dimension attaching to it which was necessary to constitute a psychosocial stressor.  However, he considered that the nature of the event involving the car accident was of a different character and he conceded that this could constitute a severe psychosocial stressor.  On that analysis, the material points to the requirements of the definition of experiencing a severe psychosocial stressor in the Statement of Principles.

2. In addition to the need for a severe psychosocial stressor, factor 5(a)(ii) in the Statement of Principles for anxiety disorder requires that there be material which points to the clinical onset of the condition within two years of experiencing the stressor.  The term “clinical onset” has not been defined by the RMA but the requirement will be met if symptoms have been described to a medical practitioner who is then able to state that the presence of those symptoms at a particular time indicates that the condition was present at that time: see Re Robertson and Repatriation Commission (1998) 50 ALD 668 at 670 and Repatriation Commission v Cornelius [2002] FCA 750. Also, all of the symptoms of the disease need to be shown within the two year period: see Lees v Repatriation Commission (2002) 125 FCR 331 and Youngnickel v Repatriation Commission [2004] FCA 1691. The consideration of clinical onset is not confined to the matters favourable to the applicant: see Hardman v Repatriation Commission[2004] FCA 1174. 

3. The evidence of Dr Katz is that the condition was present since the war.  He was able to identify the specific criteria which are required for an appropriate diagnosis to be made and was assisted in that endeavour by Mrs Comino’s background information. Dr Morris described a more recent presentation of symptoms.  Dr Katz’s opinion is not inconsistent with that because he also acknowledges an increased focus of symptoms relating to Dr Comino’s recent health concerns.  Dr Katz’s description points to the clinical onset of anxiety disorder within the time-frame required by the Statement of Principles.

anxiety disorder: factor 5(a)(iv)

1. As I have found that a reasonable hypothesis for anxiety disorder has been raised under factor 5(a)(ii), I have not considered the alternative hypothesis relied upon by Mr Clutterbuck.

irritable bowel syndrome: factor 5(b)

1. To raise a reasonable hypothesis under factor 5(b) of the Statement of Principles, there needs to be material which points to anxiety disorder as a pre-existing condition and this would need to be a war-caused condition.  On Dr Comino’s initial claim form, his treating doctor, Dr M Whillans, reported the onset of irritable bowel syndrome as being about 5 years before he was consulted in 2004.  It will be seen below that anxiety disorder will be determined to be a war-caused disability with initial presentation during Dr Comino’s service.  This means that the material points to the requirements of the factor in the Statement of Principles for irritable bowel syndrome as being met.

Deledio Step 4:  Are the conditions War-caused?

1. On the evidence before me, in particular that of Dr Katz, I cannot be satisfied beyond reasonable doubt that Dr Comino did not experience a severe psychosocial stressor when he was involved in the motor vehicle accident in Townsville.  The body of the young woman hit the windscreen directly in front of him.  Although he was a qualified medical practitioner at the time and, therefore, somewhat accustomed to dealing with personal injuries, his involvement in the incident was in a capacity other than that associated with his training and qualifications.  He described a sense of shock at the time and lingering effects which enabled Dr Katz to diagnose an ongoing anxiety disorder. 

1. Irritable bowel syndrome had its onset in Dr Comino in the 1990s.  Anxiety disorder is a specified psychiatric condition for the purposes of the Statement of Principles for irritable bowel syndrome and it predated the onset of irritable bowel syndrome. 

2. In those circumstances, I am not satisfied beyond reasonable doubt that anxiety disorder and irritable bowel syndrome are not war-caused conditions in accordance with paragraph 9(1)(b) of the Act.  It was agreed that the earliest date from which incapacity can be accepted is 13 February 2004 which is the date 3 months prior to the initial claim and set in accordance with subsection 177(3) of the Act. It was also agreed that the matter of assessment of the rate of pension be remitted to the respondent.

Decision

1. The Tribunal affirms the decision under review in relation to diabetes mellitus; sets aside the decision under review in relation to anxiety disorder and irritable bowel syndrome and substitutes its decision that anxiety disorder and irritable bowel syndrome are war-caused in accordance with paragraph 9(1)(b) of the Act; that pension is payable to Dr Comino for associated incapacity from and including 13 February 2004; and that the matter of assessment be remitted to the respondent.

I certify that the preceding 31 paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

Signed:         Fiona Kamst

Legal Research Officer

Date of Hearing  31 January 2007
Date of Decision  20 February 2007
Counsel for the Applicant  Mr R Clutterbuck
Solicitor for the Applicant  Haney Lawyers
Representative for the Respondent                      Mr M Smith