Cooke and Repatriation Commission
[2001] AATA 629
•4 July 2001
DECISION AND REASONS FOR DECISION [2001] AATA 629
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W1999/21
VETERANS' APPEALS DIVISION )
Re COLIN MACK COOKE
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Associate Professor S D Hotop, Senior Member Brigadier R D F Lloyd, Member Dr D Weerasooriya, Member
Date4 July 2001
PlacePerth
Decision The Tribunal affirms the decision of the Veterans' Review Board dated 18 March 1992 in so far as that decision: determined that the applicant was not suffering from a psychiatric disease; refused the applicant's claim that a condition described as "nervous stress" was a war-caused injury or a war-caused disease within the meaning of s9 of the Veterans' Entitlements Act 1986 ("the Act"); and refused the applicant's claim for a disability pension under Part II of the Act in respect of "nervous stress".
...........(sgd S D Hotop)...........
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – disability pension – applicant served in Australian Army from 1946 to 1953 – applicant claimed that condition of "nervous stress" war-caused – whether applicant suffering from mental "disease" – whether applicant suffering from recognised psychiatric condition
Veterans' Entitlements Act 1986 ss 5D(1), 5D(2), 9(1), 13(1), 120(1), 120(4)
Meehan v Repatriation Commission [2001] FCA 597
Repatriation Commission v Cooke (1998) 90 FCR 307
REASONS FOR DECISION
4 July 2001 Associate Professor S D Hotop, Senior Member Brigadier R D F Lloyd, Member Dr D Weerasooriya, Member
This matter is again before the Tribunal following a remittal by the Full Court of the Federal Court of Australia. The Tribunal, in its last decision in this matter on 12 February 1998, decided that "the applicant's anxiety state and back condition are war-caused within the meaning of the Veterans' Entitlements Act 1986". An appeal from part of the Tribunal's decision by the respondent to the Full Court of the Federal Court of Australia was successful. The Full Court ordered, on 23 December 1998, that, inter alia:
"The matter of the applicant's claim relating to his psychiatric condition be remitted to the Administrative Appeals Tribunal for determination according to law".
(Repatriation Commission v Cooke (FC981717) (1998) 90 FCR 307)
At the re-hearing by the Tribunal, the applicant was represented by Mr R C Hammal, a lay advocate, and the respondent was represented by Dr J T Schoombee of counsel. The Tribunal had before it the following exhibits:
· applicant's statement of evidence, dated 19 May 1994, in Application for Review No W1992/122 (A1)
· applicant's statement of evidence, dated 30 October 1997, in Application for Review No W1997/167 (A2)
· report of Dr O Kay, Psychiatrist, dated 16 December 1993 (A3)
· report of Dr O Kay, dated 24 March 2000 (A4)
· letter from Ms M Sokolich, Australian Government Solicitor's office, to Dr Z Mustac, dated 12 April 1999 (R1)
· report of Dr Z Mustac, Consultant Psychiatrist, dated 25 May 1999 (R2)
· extract from Diagnostic and Statistical Manual of Mental Disorders (4th ed), pp 432-436 (R3)
· report of Dr P W Skerritt, Psychiatrist, dated 29 October 1997 (R4)
· report of Dr L D Terace, Consultant Psychiatrist, dated 3 June (sic) 1999 (R5)
· transcript of proceedings before the Tribunal on 10 November 1997 and 11 November 1997 in Application for Review No W1997/167 (R6)
· statement and documents lodged with the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 in Application for Review No W1992/122 (the "1992 T documents") (R7).
The applicant gave oral evidence. Dr Z Mustac, who was called as a witness by the respondent, also gave oral evidence.
The Present Issue
The issue which the Tribunal was asked by the parties at the re-hearing to determine as a preliminary matter was a limited one, namely, whether the applicant suffered from a psychiatric condition. The Tribunal has not been asked at this stage to consider and determine the issue of causation in relation to such a condition, if such a condition is found to exist. Whether the Tribunal will ultimately be required to determine that causation issue will, of course, depend on its determination in relation to the fundamental issue of the existence or non-existence of a psychiatric condition.
In Repatriation Commission v Cooke (above), the Full Federal Court held that the issue whether a disease (the subject of a claim by a veteran for a pension under Part II of the Veterans' Entitlements Act 1986 ("the Act")) exists is to be determined by the respondent (and, on appeal, by the Tribunal) "to its reasonable satisfaction" – that is, on the civil standard of proof – in accordance with s120(4) of the Act: see (1998) 90 FCR at 310, 312.
General BackgroundIt is common ground that the applicant, who was born on 3 August 1927, served in the Australian Army from 12 March 1946 until 20 April 1953 and that he was posted to Japan in January 1947 where he served until his discharge.
It is also common ground that on 15 June 1989 the applicant lodged with the respondent a claim for a disability pension under Part II of the Act in respect of various conditions from which he claimed he was suffering, including a condition which was described as "nervous stress" (1992 T documents, T3, p43). As regards the claimed condition of "nervous stress", the applicant's claim was refused by a delegate of the respondent on 19 December 1989 (1992 T documents, T2) and that refusal was affirmed by the Veterans' Review Board on 18 March 1992 (1992 T documents, T4).
The Applicant's EvidenceThe applicant's evidence before the Tribunal comprised 2 statements of evidence (Exhibits A1 and A2) and his oral evidence. The Tribunal will refer only to those parts of the applicant's evidence that relate to his claimed psychiatric condition.
The relevant contents of the applicant's statement of evidence dated 19 May 1994 (Exhibit A1) are as follows:
"…
37.On 28th May 1950, I was transferred to (sic) 3RAR to HQ BCOF Transit Section, Tokyo. There, my duties involved guard duty at the Commanding General's residence, attendance at funerals and Quartermaster duties.
…
43.During the period during which I served at HQ BCOF Tokyo, I served a bugler (sic) and I was required to attend various military functions such as funerals.
44.I recall that the conditions during these funerals were so severe that my feet would become numb. The boots I was contained(sic) iron/steel horseshoe on the toe and hobnails. As well as being uncomfortable these also conducted coldness. I felt continually cold.
45.When I was required to attend funerals of veterans who had died of wounds in hospital, I was psychologically effected (sic). These funerals were very frequent and stressful. I found the funerals disturbing, and I am often reminded of these. I recall that we were not allowed to find out the causes of what the veterans died of, and I often imagined myself in their position. I know however that many of the funerals involved people who had died of leukaemia as a result of radiation exposure in Japan.
46.Attendance at these funerals were (sic) often a day long affair. There was only one gun carriage to carry the coffin on, and it was a two hour ride from base to the British Service Cemetery. Accordingly the stress of the occasion was with me very frequently.
47.As a result of the stresses and conditions which I experienced in Japan, I continued to smoke at a higher rate than I had previously. As a result of my experiences in Japan, I became addicted to smoking. I could no longer quit the habit as I was able to previously.
48.I was discharged from the army in Japan in 1953."
The statement then outlined the applicant's subsequent occupational history in Japan (1953-55), Korea (1956-58), Japan (1958-65), Vietnam (1966-1974) and Australia (1974-1980), and continued:
"71. In 1980 I retired from my capacity as a salesman.
72. The reason for my retirement was principally due to:
72.1 Chronic Bronchitis;
72.2 Osteoarthritic problems; and
72.3 Anxiety Disorder73.As a result of the diseases claimed in paragraph 72 above, I was unable to continue my employment as a salesman. I was becoming severely short of breath and I was unable to cope with the stress of such a job on my respiratory system. As a result of my osteoarthritic problems, I was then and am currently, unable to undertake any long walking or similar physical activities, and it became extremely painful and uncomfortable upon any activity. With respect to my nervous disorder, I became nervous and stressed.
74.As a result of the factors outlined in paragraphs 72 and 73 above, I was forced to resign from my employment as a salesman in 1980 and for the same reasons, I have been unable to continue same.
75.I walk with pains in my feet and cramps in my calves. I cannot maintain body mobility to cover distances required in my previous employment. This was the case when I retired in 1980. Further I cannot prospect (sic) to meet people in order to obtain appointments and make presentations. This too was the case in 1980 when I was forced to retire and I was accordingly unable to support my family through the direct sales medium. At the time of my retirement and now, my ability to carry out a sales presentation is and was impaired as a result of my claimed diseases and injuries.
…".
The relevant contents of the applicant's statement of evidence dated 30 October 1997 (Exhibit A2) are as follows:
"…
21.Between July 1950 and 20 April 1953, I attended all but one of the funerals which originated from Camp Ebisu, the Australian camp in Tokyo, as the funeral party's official bugler. I also acted as bugler twice for Armistice Day services at the British Commonwealth Cemetery which is the same cemetery where all the burials took place. I recall that during this period I missed just one funeral.
22.I recall that I attended a considerable number of funerals. I cannot remember the specific number however, I have made enquiries with the Australian military authorities and I have obtained a list of Australians buried at Yokohama War Cemetery which I understand is what used to be called the British Commonwealth Cemetery. This list shows that there were 23 burials between 28 May 1950 and 20 April 1953. Such list is annexed to this Statement marked 'CMC.2'. Of the funerals during this period I only missed one. I notice from the list that on one occasion 3 and on another occasion 2 servicemen died on the same day. Whilst I no longer have any recollection of there being more than one casket at the funerals I attended, I assume there may have been more than one burial on these occasions. Apart from the funerals I attended whilst stationed in Tokyo, I recall that I attended one other funeral whilst serving in Japan. This was before I was posted to Tokyo, when as a band member in the full band, we attended a funeral for a lieutenant in the Signals Corp in Kure City, Hiroshima Prefecture. I was told by Corporal Les Fletcher, a fellow band member, that the deceased had died of leukemia.
23.I continue to have vivid flashbacks when I'm actually back at the British Commonwealth Cemetery or travelling in the funeral party to or from the cemetery. I find these flashbacks very distressing but I cannot avoid them.
24.On the day appointed for a funeral, the funeral party would form and be inspected by an NCO after which we would board a bus or truck for a slow journey, covering about 25-30 miles in two hours to the British Commonwealth Cemetery travelling at cortege speed, following the military police escort and the gun carriage bearing the deceased. During this journey I would sit and wonder who the deceased was, what his name was, what he was like, whether I knew him, whether he might have been from my old battalion RAR which had been posted to Korea, what he died from, whether it was sickness, wounded in action, etc.
25.The road was in poor condition. It was very bumpy with potholes and I would think of the body in the coffin on the gun carriage being thrown about and its state and I would think of whether the deceased had a wife and children, brothers and sisters, or whether he was a lone soldier with no one to mourn his passing, buried in a foreign land, or whether he had family who had lost their provider and who would look after them from now on. During the journey there was generally very little talking. The firing party and other mourners would remain silent.
26.After arriving at the cemetery the coffin would be unloaded from the gun carriage, prepared for internment in an open grave, the firing party, honour guard, mourners, guests, war graves member, padre, the cemetery staff and myself, would assemble. The service would begin. I recall that I was continually frustrated as I could not hear what the padre was saying in relation to the deceased's name, rank, unit, etc, or how he met his demise. The firing party would receive a command to fire a salute to the deceased, several volleys were fired and then there would be a signal from the parade sergeant major to me to sound the last post on the bugle. Following this the parade was dismissed to await boarding and transportation for the journey back to the camp at Ebisu. The return journey would take much the same time as the journey to the cemetery.
27.These long drawn out funerals were very distressing and I cannot wipe them from my memory. In a flash my memory takes me back to the burial cemetery with many thoughts. Was I burying friends, people I knew, people I have eaten with worked and soldiered with, camped with, or who were we burying?
28.I have never been able to forget these funerals and whilst I was proud of the concept of the funerals, they worried and distressed me and between funerals I would continue to worry as to when I would next be ordered to attend the next funeral.
29.I have no rhyme or reason why I should have flashbacks or memories of the funeral duties but I do know I have this complaint and in a particle of a second I am back at the place where these funerals had taken place, at the British Commonwealth War Cemetery, Japan. I hate the complaint but it is a complaint I cannot shake off. It is a sad fact ingrained into my mental facilities (sic) for the greater part of my life. So far as I can recall, I have had these memories ever since I started regularly attending the funerals at the British Commonwealth War Cemetery from the start of the Korean war.
30.On occasions, I also wake having dreamt of the funerals, these are the most constant feature of my dreams."
In his oral evidence-in-chief, the applicant elaborated on his written statements of evidence as regards his service in Japan. His oral evidence commenced as follows:
"MR HAMMAL: Can you just tell us briefly why you think your war-time experience contributed to your anxiety disorder?---It was the situation of these continual duties that I had, mainly funerals, military funerals of the people that died in BCKF and some of those that was brought over from Korea during the Korean War. I used to - after a while I used to get anxiety about when it was all going to end, you know? I - I was doing other duties besides this funeral duty of being the bugler. After the two or three funerals I started to worry about the whole thing, when the next one will be, when is it all going to end, you know? This went on for about 2-and-a-half years and each time I got to - to dislike the situation more and more. I used to dream a little bit about it. I - it was about a 5 hour procedure getting on the buses and going out, following the cortege, the gun carriage out to the cemetery at Hotigya and the Yokohama area. It would take about 2 hours to get there. The funeral would take about an hour and after it was all over we would bus home for another couple of hours and the anxiety that you would have wondering what was going to happen to these people's families, etcetera, and how they would get on - the missing family member, whether a husband or a son or something like that and I just couldn't get the whole situation out of my mind and I never really have been able to get the situation of funerals out of my mind, that duty. I sometimes, well pretty often when I hear about Japan or when I read about Japan or Japan on the news or something like that my mind immediately goes back to that cemetery, that military cemetery in Hotigiya or - going up the entrance into the cemetery and stopping where I carried out the duties of a bugler, last post which is on the left hand side of the cemetery, the first area. And I can never, never get it out of my mind, you know? It continually comes back to me. I've had other friends that were killed in Korea, they were stretcher bearers, I don't know for what reason, five members of the band that I were in were killed. They were all turned into stretcher bearers when the Korean War began and I firmly believe that they had to go out there but nobody took into consideration that the People's Republic of China and the People's Republic of Korea did not comply with the Geneva Convention of recognising a white flag when they go out to do whatever they do in the treaty or picking up bodies or whatever. But I always thought well, I would be burying my own friends and I - on guard at Ebisu Camp at the main gate there, the ambulance used to come in and go out picking up people, perhaps dead bodies or perhaps people that were being transferred from the American hospitals in Yokudo, Japan or Takaoka, Japan. And bringing them into the field hospital in Camp Ebisu. I don't know who they were or what they were, I only knew that we'd form up at 8 o'clock in the morning and take off and go down to the cemetery following the gun carriage or cortege and we didn't even know - I was too far away to sound the bugle from where the padre was in front of the grave site to know the man's name, whether they pronounced his name or not or anything like that I didn't know that, I knew nothing about them. And it was this sort of anxiety situation, you're there burying the comrade and you don't know who he was or - you know, where he was from or anything else at all about him. And this went on and on and on, for I suppose for about 25 or 24 funerals that I attended from about June 1950 when I was transferred to Tokyo. I had other duties, I was a guard on the commanding general's residence, camp guard, I worked in the quartermaster section, they needed people there and they wanted a volunteer. I volunteered for that and my whole business of working was taken up pretty much but I never knew when these funerals would come up, I was just told by the Sergeant Major that there's a funeral tomorrow, be ready and fall out with the guard, etcetera. I missed one and I got off the guard truck coming back and some guys from the field hospital says: where were you yesterday. I said: look, I'm getting off the guard truck, I've been on a 24 hour guard and nobody told me there was a funeral on, the Sergeant Major didn't let me know. Something happened, something forgot or something like that and that's how it was. Get back from these funerals and you'd sit down to a cold meal, the savings of what was left over and all that and I just got very stressed about the whole duty. I mean, it was a duty that you had to do. We all had to do it and no matter how unpleasant it got.
Mr Cooke, you mentioned that you had other duty beside the funeral service?---Yes.
When you would carry out the other duties did you feel anxious or stressed or anything, apart - I mean, from the same anxiety or stress you were having with the funerals?---Oh, yes, I always felt stress on a guard duty of 24 hours on and a period of 2 hours on and 4 hours off and all that and just standing there, standing there, particularly in the winter on a sort of a cobblestone thing and cold feet and God knows what. I - guard duty is not a pleasant duty and it's boring and stressful and everything else.
Why do you say stressful? I mean, what are you doing? You're on guard duty, the stress - - -?---You stand there at ease for 2 hours at a time. The General comes up - comes in. You get to attention and present arms and bring it down after he passes and you sit there - you stand there at ease, come to at ease and you stand there for the rest of the 2 hours. I mean, there's nothing to do - nothing - all you think about is your - these funerals and what you are going to do, you're going back to the camp and you get off duty instead of taking the 48 hours off like other people done, I was asked to volunteer to work in the quartermaster's store.
There was a lot of people coming over from Korea, a lot of drafts, New Zealanders, English, Canadians, Australians and all that and they all had different types of small arms. And these had to be taken off them and 'documentated' (sic) and put in the armoury so to speak. And there was other duties, whatever they needed for around the camp, take out furniture, furniture manufacturers, bringing clothing from the depot that came up from Kure and all that. And I never got the 48 hours off which I should have refused the quartermaster duty which I could have done on the basis that I'd done 24 hours guard duty and military regulations, I believe, demand that you have 48 hours off before you go on to another guard or something like that, you know.
So what you're saying is apart from the funeral duty there's other duties you carry out add on the stress you experienced from the funeral duty?---Yes, too much. Too much, too many duties to fill. And with the funeral duties that was - that was what it all set off, that was the main factor of the whole duties that I had while at Camp Ebisu, Tokyo.
What kind of symptoms do you experience, say for example, at funeral service? Before you sound the bugle, what kind of feeling you were going through?---Well, you - for me particularly I was at a pretty nervous, as I said before about the comrades, the people that we were burying. We knew nothing about them. I was too far away from the padre that was conducting the service. I wasn't in earshot to hear the service and who he was and etcetera and actually I didn't know what was going on about the man himself, the person we were burying and I've always been nervous about playing 'The Last Post', even when we pull the flag down at 5 o'clock in the evening, I'd done that for a couple of years or something like that but I was always tense and nervous about the situation of burying a man and I wanted to play it right, I didn't want to blow a bad note, so to speak. That's personal feelings that I had with the funerals. Going out, the 2 hour ride out there, you're thinking about the man, you're thinking about when it's all going to end and coming home you're thinking about the same thing, how the man's family's going to get on and who was he and all that. Once upon a time we knew when we were a full band in Kure where we buried a - put a man on a plane - on a train, a lieutenant who had leukaemia, we knew what he had, we knew he was a lieutenant, we knew something about him, you know? And another man that was at the Lee Hotel, we knew a little about him because I met him at the Kuana Lee Hotel when the general went out there for rest and recuperation he brought the whole band out to play a few evenings and that and this guy, I was sitting drinking in the canteen next to him. His nickname was Pongy but he died suddenly of leukaemia and we buried him at the Hotigiya Yokohama Military Cemetery. And that's the last information that we ever got about who we were burying and - you know, I didn't - there was some Air Force guys now that I found out I didn't even know that we were burying Air Force guys. I thought we were burying all Army guys and that, you know.
So you have a sense of feeling emptiness? When you do a funeral you don't know even what funeral you're doing it for and who for compared to the one that you know?---That's right. Right. Vague state of mind. It's tense - a tense situation that you go through. You can't hear what the padre is saying.
Yes, we heard all of that?---And then the guard of honour fires off a volley of rounds and it's a tense situation.
How many buglers were there?---There was only me.
Okay. So you can't sort of tell your supervisor to replace you or anything?---No, they all - they all became stretcher bears, were broken up. Some of them went back to Australia after their term expired. Most people in the band section, cornet sections and all that, and they're buglers, we had four or five cornet players and they could play anything on a bugle or on a cornet, sound the last post. But they were never there, there was only me to carry out this duty.
Did you tell anyone that you were feeling stress and anxiety before the funeral service, you told your supervisor or medical personnel over there?---No, I told nobody. And on a thing like that you can't say anything because - and many, many other things - situation in the Army you've got to grin and bear it, you know? If you complain or anything like that in those days you would considered (sic) a malingerer, you know. You've got to do - once you've been disciplined and come out of a training camp, you know discipline and all that, you get an order, you carry it out, that's all there is to it. And whether it's good or bad or unnatural you've got to do it.
What did you use to over-ride those anxieties, how did you cope? How did you forget about them?---Well, I used to take as much daily leave as I could possibly put in and get back to camp by lights out, walk around Tokyo and all that looking at different things, shops and - I really like to walk around Tokyo while I was in the Army. I liked to walk around anywhere while I was in the Army and wind down, you know? Wind your body down so you can sleep peacefully.
Talking about sleep, what appeared to you at your sleep now?---Well you dream about the funeral, you dream about the funeral that you went on, you know, and you'd come out of it; it wasn't a long dream or you'd come out of it when it was time to get up, but it was the repetitious situation of these funerals and they stick with you, they stick with you in your mind.
Any other things brought you up, the stressful events you experienced over there, anything trigger you off?---Well if you are in an infantry battalion and particularly in the occupation force of Japan, it's a show situation where everything has to be up to scratch, I mean your - your appearance; your webbing; your brass on your webbing and your brass instrument and everything about - your shaving, every - everything about your appearance had to be top notch because we were parading all over the place and particularly in the band; they played at every Embassy in the Tokyo area: the British; the Canadian; the Australian, you know, allied Embassies. Played at the Piccadilly Theatre for General MacArthur and - - -
You missed my question?---Did I?
Yes. I said: anything to trigger off your memory in your day-to-day life. What caused to trigger off to have those stressful events happening again? Anything?---Well as I just said - got through saying, the repetition of these funerals. I didn't know when the next one would be; I didn't know - - -
No, no, after the funerals, after you left Japan, your day-to-day life, do you have recollection or something happens that brought your memory back?---Well I - I served 6-and-a-half years there and I took a discharge there in Japan because I was romantically involved with a woman later on I married and I - I just - I just never - never have been able to get over these funerals. I'm sorry I can't answer your question like you want me to answer because I've practically forgot about what you - what you asked me - ask of me.
Is it possible if you watch TV and you see a military funeral, that caused you to be upset?
…
So was doing your day-to-day life - anything brought on for your recollection what happened in Japan?---Well any - any war movie, any war news or anything about the Army or armed forces; it doesn't matter what nation it is, it brings me back to - to the cemetery at Hotigiya, Japan, where I attended all these burials, I mean, it's - it's fixed there in my mind. I can't get rid of it, it always comes back. It's not like that I remember all the times or any times or a few times, not even a few times when I went out in Tokyo and went to the beer hall with a friend or something like that, you know, I don't remember those things; I don't remember the good times, I only remember the bad times, which was the service that I had on these military funerals.When those bad times appear in your life now, how do you feel?---I don't feel good about it at all; I feel miserable about it. I feel miserable about it because it's there and it won't go away.
And what symptom do you get out of it?---Oh, I get worrying symptom; I worry about why it won't go away. Sometimes I get headaches, but I can't - I can't see it is from the - from the funerals, I don't know, you know. It might be from something else.
…".
(Transcript, pp 11-17)
The applicant said that he had seen "six or seven" doctors about his condition and that, of those doctors, it was Dr O Kay who was "congenial" and made him feel "comfortable" and whom he "could speak to". He said that he had seen Dr Kay 3 or 4 times, on each occasion for about 45 minutes. As regards the other doctors – in particular the "Veterans' Affairs doctors" – the applicant said that they did not spend much time with him (about 15-20 minutes) and were not very considerate of his situation. He added that they were not "intensive enough" in their questions about his service in Japan and that, when he explained to them how the funerals affected him, they did not believe him.
In cross-examination the applicant acknowledged that he had never sought treatment for any psychiatric or anxiety problems from a psychologist or a psychiatrist. He explained that he "didn't know anything about psychiatrists" and he had "no idea that they could help [him]".
In re-examination the applicant said that he did not think - and in any event did not recall – that Dr Kay, whom he had seen 3 or 4 times, had ever suggested to him how to control his anxiety. Asked whether he had seen any counsellor for his stress and anxiety, he replied "No".
The Psychiatric EvidenceThe 1992 T documents contain a report on the applicant by Dr F Bell, Psychiatrist, dated 28 September 1989 (T3, pp85-86). In that report Dr Bell referred to the applicant as having a critical attitude towards Australia generally and concluded that, although his critical attitude could be viewed as extreme, it did not constitute a psychiatric disorder.
Dr O KayA report of Dr O Kay, Psychiatrist, dated 16 December 1993 was tendered in evidence by the applicant (Exhibit A3). That report states as follows:
"Mr Cooke is a 66 year old married, retired man who was referred to me by his General Practitioner, Dr. Alan Wright of South Lake, for a psychiatric assessment and opinion in regards to an appeal that Mr. Cooke has before the Administrative Appeals Tribunal relating to a claim for a number of conditions being war service related.
I have assessed Mr. Cooke on the following occasions, November 2nd and 23rd, December 9th and 16th, 1993 – the first appointment being for approximately one hour's duration and subsequent appointments being half an hour's duration each.
In addition, I viewed the medical records of Mr. Cooke, the psychiatric opinion of Dr. Bell, dated 28 September, 1989 and another psychiatric opinion of Dr. Mander, dated 16 September, 1993. In addition, I organised a formal neuropsychological assessment by Susan Scott, Senior Psychologist of the Health Department of W.A., and received a report from her dated 6 December, 1993 and finally, I organised a CAT scan of Mr. Cooke's head.
The history I obtained from Mr. Cooke is broadly in agreement with that documented by Dr. Mander but differs from that history in regards to his military service in Japan during the Korean War. In his capacity as a bugler he witnessed, by his description, a large number of military funerals and found these experiences distressing to the extent that he experienced symptoms consistent with an anxiety disorder.
It would appear that Mr. Cooke's anxiety symptoms have varied in severity and for a large part of his adult life and were in relative quiescence, but following his retirement and return to Australia, Mr. Cooke became concerned about his health and has once again been troubled by symptoms of an anxiety disorder.
Mr. Cooke has a number of physical problems, complains of a number of somewhat perplexing physical symptoms and he is currently consulting a Respiratory Physician, Dr. Michael Pritchard at the Mount Hospital, for his chest problems.
Before joining the Army Mr. Cooke smoked very occasionally but during his service started smoking more heavily. It is probable that he increased his smoking because of his anxiety symptoms and it is also possible that his smoking has contributed to some of his physical problems.
The C.T. scan performed of the 24 November, 1993 revealed no abnormalities and was reported as being a 'normal pre and post contrast C.T. scan of the brain'.
Mr. Cooke's neuropsychological assessment was abnormal and revealed a general intelligence in the normal range but with a significant scatter of sub-tests. Ms. Scott was unable to give a definite explanation for the results but made the statement to the effect that the results were not consistent with a dementia, such as Alzheimers' Disease. She expressed the opinion that some aspects of Mr. Cooke's presentation were consistent with an alcoholic picture, however, Mr. Cooke denies a history of alcohol abuse. Ms. Scott also noted that Mr. Cooke's presentation was consistent with a depressive disorder or of the consequences of sleep apnoea. In my opinion, the result of Mr. Cooke's neuropsychological testing is also compatible with an anxiety disorder.
In his report, Dr. Mander states that the most likely diagnosis is one of early pre-senile dementia of Alzheimers' type, however, this is not supported by either radiological or neuropsychological investigation. In his report, Dr. Bell made no diagnosis of a psychiatric disorder as such but rather noted certain aspects of Mr. Cooke's personality. I cannot support Dr. Mander's opinion as to Mr. Cooke's most likely diagnosis and in my opinion, Dr. Bell did not take sufficient account of Mr. Cooke's anxiety symptoms.
In my opinion, Mr. Cooke is suffering from a generalised anxiety disorder which was initially precipitated by his experiences whilst serving in the military in Japan. His anxiety disorder initially had some of the features of a Post Traumatic Stress Disorder but of insufficient severity to qualify him for the diagnosis of Post Traumatic Stress Disorder. Mr. Cooke's anxiety symptoms have followed a fluctuating course and more recently have been exacerbated by his retirement and return to Australia.
In my opinion, Mr. Cooke's anxiety symptoms are mild at present but would qualify him for an impairment rating of 5 points as per the Guide to the Assessment of Rates of Veterans' Pensions, Third Edition Revised. He has, however, significant physical problems, some of which may be argued (sic) back to his military service by reason of his anxiety disorder and related smoking."
Dr Kay gave oral evidence in the previous proceedings before the Tribunal on 10 November 1997 and that evidence is recorded on pp 58-76 of the transcript of those proceedings (Exhibit R6). Dr Kay confirmed that he saw the applicant on 4 occasions in 1993 and that he reviewed him on 7 November 1997. He also confirmed that it was his opinion that the applicant was suffering from a generalised anxiety disorder. He said that that diagnosis refers to a combination of physical and psychic symptoms. Dr Kay's evidence continued:
"The psychic symptoms are one of worry and apprehension and feeling on edge, and the physical symptoms vary between different people, but they are essentially manifest by symptoms of autonomic hyperarousal by which – common symptoms are sweating of the hands, racing of the pulse, pins and needles, unpleasant sensations in the abdomen, in the stomach, alteration to bowel habit, fatigue, weakness and so forth. And there's a continuum in severity of symptoms so at one end of the continuum you get relatively mild episodic anxiety symptoms. When they become more prevalent we apply the label generalised. When they have been there for a long time we apply the label chronic. At the other end of the continuum they merge imperceptibly into effective disorders. Depression.
And does Mr Cooke have and did he have back in 1993 the symptoms you have adverted?- - - Well, in my opinion it has been that he suffers from an anxiety disorder, a chronic generalised anxiety disorder.
And what were the symptoms that fitted this picture?- - - Worry, apprehension, excessive preoccupation with past events. Lot of physical symptoms, some of which were explicable by physical pathology, some of which were not. Pain, fatigue, sweatiness, feeling on edge. Alteration to bowel habit."
(Transcript, 10 November 1997, p60)
A brief report of Dr Kay, dated 24 March 2000, was also tendered in evidence by the applicant (Exhibit A4). That report states as follows:
"…I have met Colin [the applicant] a number of times over the past few years in relation to his continuing claim with the Department of Veterans' Affairs. I have gone on record in the past to say that, in my opinion, Colin does suffer from a diagnosable psychiatric condition, namely a Generalised Anxiety Disorder.
I reviewed Colin on 24th February 2000 and I still hold the opinion that he suffers from GAD, however, there other (sic) psychiatric opinions, most notably from Dr Paul Skerritt which contradict my opinion …
…".
Dr P W Skerritt
A report of Dr P W Skerritt, Psychiatrist, dated 29 October 1997, was tendered in evidence by the respondent (Exhibit R4). That report, which is addressed to the Australian Government Solicitor, states as follows:
"Further to your letter of 9 October 1997 I can inform you, at your request, that I have performed a psychiatric assessment on this 70 year old man who has been seen on 20 October 1997 and 22 October 1997. I understand that he is involved in a hearing in the Administrative Appeals Tribunal where there are disputes about physical symptoms and the possibility of a chronic anxiety state resulting from the stress of participating as a bugler in a number of funeral services during military service in Japan.
I note the opinion of my psychiatric colleague Dr Oleh Kay that Mr Cooke was suffering from a generalised anxiety disorder not amounting to post traumatic stress disorder with a relatively small degree of handicap indicated as 5 on the Guide to the Assessment of the Rates of Veterans Pensions. Our psychiatric colleague Dr A J Mander believed that no such diagnosis was present but raised the possibility of early influence on the brain from a condition such as Alzheimers' disease. This suggestion led to neuropsychological testing at the Neurosciences Unit, Health Department of Western Australia and reported by Ms Susan Scott on 6 December 1993. Several abnormalities were obtained some of which might have been consistent with Alzheimer's disease such as difficulties with the block design subtest, although others would have been consistent with damage to frontal lobes to the brain, such as poor performance on a maze learning test. Re-testing was suggested in approximately 12 months although this does not seem to have occurred.
Mr Cooke has several physical symptoms relating to his chest which are beyond my area of expertise. I reviewed his military history which was of joining the regular Army at the age of 18 and serving between 1946 and 1953. Much of this was in Japan where, to achieve some musical education, he volunteered for regimental band duties. This occupied 70 to 80% of his time, the remainder being general garrison duties.
He told me the story recorded elsewhere of a long drive to the military funerals where he would play the Last Post. This was done on a small knoll just out of sight of the funeral. He could not hear what was said and was not aware of the identity of the deceased. These were the results of deaths from illness in the occupation forces and later, evacuated casualties from Korea.
Mr Cooke asserted that this experience was stressful although did not find it so easy to describe the nature of the experience for him at the time. He described thoughts going through his mind along the lines 'who was this guy, was he married, why was he being buried in a foreign land?'. He described a lot of 'negative feelings go through your head' and generally disliked the duty. He said that it made him feel sad and it was not nice. The sad feeling would stay with him for a couple of days.
He could not describe much else in the way of particular symptoms at the time although vaguely alluded to his sleep not being very good. His military service was followed by an extended period in the East after his discharge where he was involved in business ventures, which by his accounts were quite successful. He told me of a number jobs (sic) in Australia, apparently less successful until he was unable to work.
His description of actual nervous symptoms was not difficult to achieve. He used the term 'hyperventilating' but could not describe this any more than saying he had a dry mouth. In general he found it much easier to give his suggested attribution of the symptoms than describe them in detail. His description of the experience of hyperventilation seemed to be much more like exertional dyspnoea. He described an 'air gulp' and chest pains which would occur in bed asleep and after a meal when sitting down. He described a general tiredness and circular pains around the region of the left breast. He did not note any change in heartbeat although he could hear it when lying in bed. He described 'stress pain' in the epigastrium and chronic constipation.
While some of these symptoms could be consistent with an anxiety disorder (or his apparently established pulmonary disease) he had great difficulty describing any subjective accompaniments to them. He was emphatic that he was neither scared or panicky but in some way 'I don't feel comfortable within myself'.
On inquiry about his spirits he asserted that he would not regard himself as any more down that any one else who had been through the conditions that he had. He thought that it was possible that he might cry when thinking about his military service or at a sad movie and might go out and blow his nose. He did not feel tearful without reasons such as this. He could not describe the quality of sadness that he experienced. He denied blaming himself for anything. There was no diurnal variation of mood. He denied worrying and asserted that he could 'discharge that kind of thing from your mind'.
He told me of sleep apnoea syndrome that had been diagnosed, although there is no detailed information about this in the documents at my disposal. He told me of some 15 to 20 minutes getting off to sleep, but this was not because of thoughts running through his mind. He generally likes to keep late hours not retiring until 1.30 to 2.00 am but said that his sleep is sound once off. He awakens about 9.00 am and says that he is not rested. On my inquiry about the symptoms of his sleep apnoea he quoted his wife to say that he used to snore but does not do so any more. He was a little evasive when I tried to elicit the history usually given by spouses in this condition of stopping breathing and starting again after a gasp. He was not at all sure what symptoms led to the referral for investigation and diagnosis of sleep apnoea.
The remainder of Mr Cooke's background was reviewed. He described a couple of medical illnesses and no past or family history of psychiatric disorder. It is difficult to assess somebody's personality so late in the piece in the midst of so many experiences and description of symptoms. He presented a quite rambling and discursive way of giving history and was slightly irritated when, as frequently happened, it was difficult to understand what he was describing. He regarded himself previously as a 'goer and mover' but not a particularly sociable person.
He told me that he was born in a country town in New South Wales where his parents separated when he was aged 8 to 10. His father was hardly home working as a pastoral worker and he was not aware of the reasons for the separation. He thought that his childhood was a good one nevertheless and he enjoyed swimming, fishing and hunting around his home at the junction of the Murray and Darling rivers. He told me that he left school at the age of 14 and pursued rural jobs until joining the army at the age of 18.
He was married twice. The first was at the age of 26 to a Japanese woman. This was a good relationship which was terminated because of infertility and meeting his second wife. The second marriage was in his mid thirties and continues. His second wife is Vietnamese. There are three sons and one daughter. Sexual function has declined.
It would appear that Mr Cooke has a variety of physical illnesses. I suppose it is a matter of opinion whether regularly attending funerals are stressful enough to provoke psychiatric illness. The experiences that he described and his reaction to them at the time would not justify a diagnosis of post traumatic stress disorder according to the criteria. Mr Cooke did not find it easy to describe psychiatric symptoms and in such circumstances it is necessary to be particularly careful that they are not missed. He described rather non specific distress at the time of the funerals and later. The description that he did give did not seem to me to be particularly more then one might expect anyone to experience in the circumstances.
A period of good health followed concluded by a number of physical illnesses recently. He described thoughts of the funerals coming back to him but could not describe any particular distress in association with these. A few symptoms consistent with the physical symptoms of anxiety were described, although I found it difficult to convince myself that they were separate from his several physical illnesses particularly relating to his respiratory function. He does not have an anxiety disorder in the direction of panic disorder or post traumatic stress disorder. Generalised anxiety disorder is something of a diagnosis of exclusion and is supposed to be particularly identified by the symptom of worry. This symptom was not present notably in Mr Cooke's account. He could not describe any particular practical handicap from the few nervous symptoms that he did have.
My conclusion was that he may have some anxiety symptoms but they are quite mild and do not seem to be generating a handicap in the conduct of his life.
I think that the diagnosis of early Alzheimer's disease is probably not correct in view of an apparent lack of deterioration of his organic brain function over a period of three years. The scattered abnormalities found on neuropsychological testing are not entirely inconsistent with a disorder such as Alzheimer's disease or indeed the effects of arteriosclerosis on brain function but they are not quite typical either. If clarification of this point was important from a legal point of view you could arrange a further testing at the Neurosciences Unit, although I doubt if it could be completed by the 11 November. Relatively mild anxiety symptoms or a general inefficiency of thought processes of constitutional cause could also contribute to the neuropsychological abnormalities as measured.
I did administer a quite simple standardised test of organic brain function, the Mini Mental State Examination. He scored 24 out of 30 where 23 or less indicated cognitive impairment. He lost points on the exact date, the name of the building in which my office is situated, remembering three simple objects after a few minutes and in a three stage set of instructions got one wrong.
My answers to your question under item 10 of page 2 of your letter are as follows:(A)Does Mr Cooke suffer from a diagnosable psychiatric condition?
If so, it is quite mild and does not seem to be contributing to his present handicap.
(B)If so, what is the appropriate diagnosis?
There may be some mild anxiety symptoms although I did not find this very convincing.
(C)In the light of what is known about Mr Cooke's history, what are the possible causes of Mr Cooke's psychiatric condition (if such condition exists)?
Mr Cooke does have some persisting somewhat unpleasant memories of his funeral experiences which he says cause him some distress. They do not seem to cause him any handicap.
(D)In your opinion, what is the cause of Mr Cooke's psychiatric condition (if such a condition exists)?
See (C).
(E)Is Dr Kay's opinion (that the conditions of Mr Cooke's Army service contributed to his psychiatric condition of generalised anxiety disorder) reasonable, in the sense that it is pointed to by the material and not remote or tenuous?
One might suggest that it is a little tenuous as his distress at the time was poorly described and did not seem to move into a diagnostic range. The symptoms associated with his memory of the association are not very well described and do not seem to be particularly associated with features of more than mild anxiety. One might conclude that he suffers a little distress when he thinks of unpleasant memories, but not necessarily into a diagnostic range and certainly not to provide a practical handicap.
(F)If you disagree with Dr Kay's opinion, could you please amplify the basis of your disagreement?
I do not think that I disagree with Dr Kay's opinion. Any disagreement might perhaps be in the degree of handicap generated by his symptoms.
(G)If Mr Cooke is suffering from a psychiatric condition, please assess its severity according to Chapter 4 of the Guide to the Assessment of Rates of Veterans' Pensions (enclosed).
I think that the category 'Nil' is probably more appropriate than the category 'Five'."
Dr Skerritt also gave oral evidence in the previous proceedings before the Tribunal on 11 November 1997 and that evidence is recorded on pp 155-162 of the transcript of those proceedings (Exhibit R6). Dr Skerritt confirmed that he had seen the applicant twice for the purpose of preparing his abovementioned report of 29 October 1997. Dr Skerritt's evidence-in-chief commenced as follows:
"May I ask you first whether you were able to make a diagnosis, from a psychiatric point of view, in relation to Mr Cooke? - - - I thought it was most likely that there wasn't a formal psychiatric diagnosis applicable.
Right. You will be aware, of course, that Dr Kay who gave evidence yesterday, has the view that one can make a formal diagnosis of generalised anxiety disorder? - - - Yes.
In your opinion, what diagnostic criteria would need to be present before such a diagnosis could be made? - - - Well, there is a set of criteria that are laid out in the Diagnostic and Statistical Manual of the American Psychiatric Association. I suppose it is perhaps appropriate to look at the general background as to what's behind that diagnosis. It is one of a range of anxiety disorders that are available in the manual. At the top of the range is a diagnosis known as panic disorder which is identified by panic attacks which Mr Cooke certainly didn't have. Panic attacks can be associated with avoidance of situations and of different sorts of phobias, for which there was no evidence either. Where symptoms of anxiety are particularly associated with traumatic events is the diagnosis of post-traumatic stress disorder and generalised anxiety disorder is something of a diagnosis of exclusion. It really only had its existence when all of those others were defined. The symptoms themselves are not particularly different from the others, in that they involve a range of physical symptoms that we call autonomic symptoms relating to the heart and breathing and stomach and so on. In the most recent edition of the Manual, particular emphasis was put on the diagnosis of generalised anxiety disorder which, I suppose it's fair to say, is a diagnosis looking for an identity in a way seeing it was originally a diagnosis of exclusion, where the symptom of worry was regarded as particularly important. And in the descriptive passages in the Manual, there is quite a degree of emphasis is given to that particular symptom. Now, in reaching any kind of psychiatric diagnosis with Mr Cooke, one would have to say that it was very difficult. He's not a very psychologically minded person and it was extraordinarily difficult to get him to describe any subjective psychiatric symptoms. As with many people who have that difficulty, questions would often be given an answer which wasn't really an answer to the question; and so, when asked to describe his subjective feeling, very frequently he would give his attribution of the feeling. That is to say, he would describe why he felt that way rather than to describe how he did feel. I really felt I had very little idea about his subjective feelings at all but the one thing that he emphatically denied was the symptom of worry. He said that he wasn't given to things going around and around in his head. It didn't keep him awake at night and that sort of thing. There were some symptoms that could have been autonomic symptoms of anxiety. They didn't across (sic) to me with the typical sort of descriptions that emphasised a severe form of anxiety that would limit people. For example, he used the word, 'hyperventilation' which, of course, would be a very classic physical symptom of anxiety; and yet on inquiring about the details of the experience of hyperventilation, it didn't really sound like the sort of hyperventilation that occurs in anxiety at all. It sounded a bit more perhaps like, in a medical sense, one calls exertional dyspnoea – that there was breathlessness on exertion, which isn't really hyperventilation."
(Transcript, 11 November 1997, pp 156-157)
Asked by the presiding member whether he was saying that where he parted company with Dr Kay "relates to the question of whether there is an identifiable psychiatric condition in the first place", Dr Skerritt replied:
"Yes, I think that would be right to say that."
(Transcript, 11 November 1997, p160)
Dr Z Mustac
Dr Z Mustac, Consultant Psychiatrist, was called as a witness by the respondent. Dr Mustac confirmed that he had prepared a report on the applicant, dated 25 May 1999, in response to a letter from the Australian Government Solicitor's office dated 12 April 1999. That letter, which was tendered in evidence (Exhibit R1), enclosed copies of the applicant's statements of evidence and the abovementioned reports of Dr Kay and Dr Skerritt and requested Dr Mustac, in his subsequent report, to address the following questions:
"1. Does Mr Cooke suffer from a diagnosable psychiatric condition?
2. If the answer to 1 is yes, what is the nature of that condition?
3.Assuming that the answer to 1 is yes, in the light of Mr Cooke's history, is it your opinion that Mr Cooke's war service contributed to his psychiatric condition. Please identify the aspects of Mr Cooke's history which point to that contribution.
4.I refer to Dr Kay's report dated 16 December 1993. Would you regard Dr Kay's opinion that the conditions of Mr Cooke's war service contributed to his psychiatric condition of generalised anxiety disorder as reasonable, in the sense that it is pointed to by the material and not remote or tenuous?
5.If, in your opinion, Mr Cooke is suffering from a diagnosable psychiatric condition, please provide your assessment in accordance with chapter 4 of the Guide to the Assessment of the Rates of Veterans' Pensions, a copy of which is enclosed."
Dr Mustac's report refers to his having seen the applicant on 5 May 1999 and continues:
"Attitude to the Interview
Mr Cooke related in a cooperative manner. He was willing to provide a detailed history in a spontaneous fashion.
Circumstances of the Interview
He attended for this interview alone. I offered him the opportunity if he wished to have the interview audiotaped and a copy of the audiotape provided to him. He accepted my offer.
Military Service & Subsequent Events
Mr Cooke again provided the history that he was involved in the Australian Army and was required to attend funerals at the Military Cemetery during his service in Tokyo, Japan.
I asked him if he thought he was mentally ill and he stated that he believed he was mentally ill because he suffers 'flashbacks'. He then described recalling his funeral service attendance. He asked me 'why should I be remembering these things'.
He states that these recollections occur to him at times such as when there is some news regarding Japan etc.Comment: Although he calls them flashbacks, they are not the intrusive recollections associated with Post Traumatic Stress Disorder but instead, would appear to the be (sic) recollections that individuals may have of past times in their life of unpleasant events. The fact that there is some reminder that stimulates him to recall these events further supports this view.
He states that he worried that some of the people whose funeral he was attending may have been members of the band who were serving as stretcher-bearers during the Korean War. He added that the North Koreans and Chinese did not accept the Geneva Convention.
He then recounted his work history, which included work in Japan, Korea and Vietnam. Throughout this period of time he appears not to have suffered from any form of mental illnessComment: I am somewhat surprised that Dr Skerritt (sic) made the diagnosis of Generalised Anxiety Disorder. In fact there is no evidence for Mr Cooke being anxious at any time.
His history of employment included work selling Life Insurance to US Servicemen during the Vietnam War. He tells me that he was not worried and that on one occasion, he travelled on a plane that was transporting killed servicemen in rubber body-bags."
The report then summarises the applicant's "emotional symptoms and signs" and past medical history and continues:
"Family and Social Situation
He lives with his wife, with whom he tells me he has a good relationship. They have had four children. As you are aware, this is his second marriage.
He tells me he has a good relationship with all the children.
He explained that his work involved a great deal of social contact over many years. He no longer wishes to have that degree of social contact and explained that spending time with his wife, going to the local shopping centre is enough for him.
Mental State Examination
Revealed a man of markedly obese appearance who maintained good eye contact.
His mood was stable throughout the interview.
His affect was consistent with the underlying content.
His concentration was intact.
He complained of difficulties in short-term memory but appeared to be able to recall our conversations correctly.
His judgement was intact."
The report then refers to the Diagnostic and Statistical Manual of Mental Disorders (4th ed) ("DSM-IV") and concludes:
"Conclusions
There is no evidence for Mr Cooke suffering from any mental illness at this time. There is also no evidence for his suffering from mental illness in the past.
I note that the diagnosis of Generalised Anxiety Disorder has been made but this is generally a life-long condition and Mr Cooke has certainly not suffered from it. In fact he is a confident and outspoken man who pursued a life-time in selling. This is the exact antithesis of somebody who is suffering from excessive nervousness over many years.
Specific Questions
Question 1 No, he is not suffering from any psychiatric condition.
Question 2 Not applicable.
Question 3 Not applicable.Question 4I do not think that Dr Kay's opinion is correct, either that he suffers from a Generalised Anxiety Disorder or that his war service has caused any other mental condition.
Question 5Not applicable.
…".
In his oral evidence Dr Mustac confirmed that the reference in his report to Dr Skerritt was incorrect and was intended to be a reference to Dr Kay.
Dr Mustac's oral evidence was lengthy and it is not necessary to summarise it in these reasons. Suffice it to say that Dr Mustac reiterated his opinion that the applicant does not suffer from a generalised anxiety disorder (as explained in DSM-IV) and that he has "no mental illness of any description", and he explained at length his reasons for forming that opinion. Dr Mustac also stated that the total period of time he spent with the applicant was between 1 and 2 hours.
Dr L D TeraceA report of Dr L D Terace, Consultant Psychiatrist, dated 3 June 1999, addressed to the applicant's former counsel, was tendered in evidence by the respondent (Exhibit R5). The Tribunal notes that that report was provided in response to a letter of request dated 24 June 1999 and refers to an interview with the applicant on 2 July 1999. The Tribunal infers, therefore, that the correct date of the report is probably 3 July 1999, and not 3 June 1999.
Dr Terace's report, which comprises 17 pages, states that it was prepared, not only on the basis of the abovementioned interview with the applicant, but also having regard to the abovementioned reports of Drs Kay, Skerritt and Mustac.
Dr Terace's report contains a comprehensive survey of the applicant's personal history, current medical conditions, and current psychological symptoms, psychological status and state of mind, summarises his findings on a mental state examination of the applicant, and expresses the following opinion:
"My findings on mental state examination, led me to conclude that:
1. They were consistent with the data derived from interview.
2.They were consistent with the evidence provided by Dr Paul Skerritt (report dated 29th October, 1997) and Dr Zelko Mustac (25th May, 1999).
3.I concluded that there is no current recognised psychiatric condition or disability.
…".(original emphasis)
The report then proceeds to review the earlier reports of Drs Kay, Skerritt and Mustac and comments:
"…
4.I reviewed all the relevant medical documentation provided by you for my perusal. I found the balance of evidence there also to support my conclusions, and specifically the reports of Drs Mustac, Skerritt in which evidence to support specific psychiatric disorder was not found. The reports of Drs Mustac and Skerritt specifically alluded to the range of physical disorders suffered by the claimant. I think that many of his symptoms can be explained by the physical symptoms of these physical or somatic disorders alone, without recourse to the notion of any psychiatric disorder.
5.I respectfully disagree with the opinion of Dr Kay that the claimant suffers from 'generalised anxiety disorder', or that his war service has caused any other mental condition."
Dr Terace's report concludes as follows:
"6.Therefore, on the balance of probabilities (given both my clinical findings and my review of the balance of opinion offered by other Psychiatrists), I did not find the presence of any recognised psychiatric condition or mental ailment or disorder currently, or since 1989."
The Relevant Legislative Provisions
Section 13(1) of the Act relevantly provides that, where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay pension by way of compensation to the veteran in accordance with the Act.
Section 9 of the Act relevantly provides:
"(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;
…".
Section 5D of the Act, which contains "injury/disease definitions", relevantly provides:
(1) In this Act, unless the contrary intention appears:
…
disease means:(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b) the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c)the aggravation of such an ailment, disorder, defect or morbid condition; or
(d) a temporary departure from:
(i) the normal physiological state; or
(ii) the accepted ranges of physiological or biochemical measures;that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).
…
injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a) a disease; or
(b) the aggravation of a physical or mental injury.
(2) In this Act, unless the contrary intention appears:
(a) a reference to the incapacity of a veteran from a war-caused injury or a war-caused disease ; or
(b) …;
is a reference to the effects of that injury or disease and not a reference to the injury or disease itself.
…".
Section 120 of the Act prescribes the standard of proof to be satisfied in the determination of whether, inter alia, an injury or disease, the subject of a pension claim under Part II which relates to "operational service", is a war-caused injury or a war-caused disease, as the case may be. Section 120 relevantly provides:
"(1) 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.
…
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
…".
As noted at the outset of these reasons (see paragraphs 3 and 4 above) the issue which is presently before the Tribunal – namely, whether the applicant has a psychiatric condition for the purpose of a claim for pension under Part II of the Act – is to be determined by the Tribunal "to its reasonable satisfaction" (that is, on the civil standard of proof) in accordance with s120(4) of the Act, and not on the "reverse criminal standard of proof" pursuant to s120(1) of the Act: Repatriation Commission v Cooke (above).
Submissions
Dr Schoombee (for the respondent) made oral submissions prior to the conclusion of the hearing. In essence he submitted that, having regard to the whole of the expert psychiatric evidence before it, the Tribunal could not be reasonably satisfied that the applicant was suffering from a mental ailment or disorder and, accordingly, as regards the applicant's mental status, there is no relevant "disease" (as defined in s5D(1) of the Act) for the purposes of ss 9 and 13 of the Act in this case. As regards the issue of whether the applicant was suffering from a psychiatric disorder, he submitted that the Tribunal should attach greater weight to the evidence and opinions of Drs Skerritt, Mustac and Terace, as compared to the evidence and opinion of Dr Kay.
Mr Hammal (for the applicant) requested the Tribunal's leave to file written submissions after the completion of the hearing. The Tribunal granted such leave and those submissions were duly received by the Tribunal. Those submissions focused on the diagnostic criteria for "Generalised Anxiety Disorder" set out in DSM-IV (pp435-436) and sought to demonstrate that the applicant satisfied those criteria by reference to his own evidence and the evidence of Dr Kay. Mr Hammal also sought to discredit the evidence and opinion of Dr Mustac by suggesting, inter alia, that Dr Mustac
had limited experience in dealing with veterans;
was inconsistent in his evidence; and
did not conduct a thorough detailed clinical examination of the applicant.
Mr Hammal submitted that, because Dr Kay had seen the applicant "on numerous occasions" and has had "extensive experience with veterans", the Tribunal should accept the evidence and opinion of Dr Kay that the applicant suffers from generalised anxiety disorder, in preference to the evidence and opinion of Dr Mustac.
The respondent, with the leave of the Tribunal, filed brief written submissions in reply to Mr Hammal's written submissions. It is not necessary, however, to refer to the content of those submissions in reply.
FindingsAs previously mentioned the sole issue which is presently before the Tribunal is whether the applicant has, during the relevant period, been suffering from a "disease", being a "mental ailment, disorder, defect or morbid condition" (as defined in s5D(1) of the Act), within the meaning, and for the purposes, of ss 9 and 13 of the Act. There is no suggestion in this case that the applicant has suffered an "injury", being a "mental injury" (as defined in s5D(1) of the Act), within the meaning, and for the purposes, of ss 9 and 13 of the Act.
The issue before the Tribunal is concerned only with the question of the existence or non-existence of a mental "disease"; it is not concerned with the question of the appropriate diagnosis of such disease or, in other words, the question of the existence or non-existence of a particular mental "disease": cf Meehan v Repatriation Commission [2001] FCA 597.
In determining the abovementioned issue to its reasonable satisfaction, as required by s120(4) of the Act, the Tribunal must, of course, have regard to the whole of the material before it but, given that that issue is essentially a medical issue, it is appropriate for the Tribunal to have particular regard to the medical – more specifically, the psychiatric – evidence before it.
There is, as is apparent from the outline of the psychiatric evidence in paragraphs 14-24 above, some conflict in that evidence. In the Tribunal's opinion, however, the weight of that evidence clearly supports a finding that the applicant has not suffered at any material time from a mental "disease" – that is, a "mental ailment, disorder, defect or morbid condition" – within the meaning, and for the purposes, of ss 9 and 13 of the Act.
That psychiatric evidence primarily comprises the reports and oral evidence of Drs Kay, Skerritt and Mustac, and the report of Dr Terace. The evidence of each of the abovementioned psychiatrists may be briefly summarised as follows:
Dr Kay – the applicant has at all material times suffered from a diagnosable psychiatric condition, namely, a generalised anxiety disorder;
Dr Mustac – the applicant was not suffering from any psychiatric condition;
Dr Terace – the applicant was not suffering from any recognised psychiatric condition or mental ailment or disorder currently, or since 1989;
Dr Skerritt (as clearly indicated in his oral evidence in the previous hearing before the Tribunal on 11 November 1997) – the applicant was not suffering from any diagnosable psychiatric condition.
The Tribunal also notes that it was the opinion of Dr Bell, in his report of 28 September 1989 (1992 T documents, pp 85-86), that the applicant was not suffering from a psychiatric disorder.
As regards the evidence and reports of the abovementioned psychiatrists, the Tribunal's assessment is as follows:
the reports of Drs Skerritt, Mustac and Terace are very comprehensive, thorough and well-reasoned;
the oral evidence of Drs Skerritt and Mustac was authoritative, unequivocal and persuasive;
the reports and oral evidence of Dr Kay were not especially thorough and did not provide convincing reasons in support of his opinion that the applicant suffers from a generalised anxiety disorder – in particular, the relevant diagnostic criteria set out in the then current edition of the Diagnostic and Statistical Manual of Mental Disorders were not comprehensively addressed by Dr Kay.
In the Tribunal's opinion there is no compelling reason why it should prefer the opinion of Dr Kay to the clear, unequivocal and well-reasoned opinions expressed by Drs Skerritt, Mustac and Terace. The Tribunal does not accept Mr Hammal's submission that Dr Mustac failed to conduct a thorough clinical examination of the applicant and was inconsistent in the evidence he gave to the Tribunal. On the contrary, the Tribunal's assessment is, as stated above, that Dr Mustac's report of 25 May 1999 is very comprehensive, thorough and well-reasoned and his oral evidence was authoritative, unequivocal and persuasive. The Tribunal does not regard the fact that Dr Kay has seen the applicant on several occasions and that (if it be a fact) he has had "extensive experience with veterans" as providing sufficient reasons for preferring Dr Kay's opinion to the contrary opinions of at least 3 other experienced and highly-qualified psychiatrists.
On the basis of the whole of the psychiatric evidence before it, the Tribunal cannot reasonably be satisfied on the balance of probabilities that the applicant has been or is suffering from any medically recognised or diagnosable psychiatric condition. Accordingly, the Tribunal finds that the applicant, during the relevant period, has not been suffering from a "disease", being a "mental ailment, disorder, defect or morbid condition" (as defined in s5D(1) of the Act), within the meaning, and for the purposes, of ss 9 and 13 of the Act. It necessarily follows that the applicant has not been suffering from a "war-caused injury" or a "war-caused disease" of a mental nature within the meaning, and for the purposes, of ss 9 and 13 of the Act. Accordingly, no issue of causation arises.
DecisionFor the above reasons the Tribunal affirms the decision of the Veterans' Review Board dated 18 March 1992 in so far as that decision
determined that the applicant was not suffering from a psychiatric disease;
refused the applicant's claim that a condition described as "nervous stress" was a war-caused injury or a war-caused disease within the meaning of s9 of the Act; and
refused the applicant's claim for a disability pension under Part II of the Act in respect of "nervous stress".
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Senior Member
Brigadier R D F Lloyd, Member
Dr D Weerasooriya, MemberSigned:
.................................(sgd S Railton)..................................
AssociateDate/s of Hearing 11 October 2000
Date of Decision 4 July 2001
Counsel for the Applicant Mr C Hammal
Solicitor for the Applicant
Counsel for the Respondent Dr J T Schoombee
Solicitor for the Respondent Australian Government Solicitor
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