Crane and Repatriation Commission
[2003] AATA 447
•16 May 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 447
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/1082
VETERANS' APPEALS DIVISION ) Re JOHN CAMPBELL CRANE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President Don Muller Date16 May 2003
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution determines that John Campbell Crane’s major depressive disorder and generalised anxiety disorder are war-caused with effect from 29 February 2000. The matter is remitted to the Respondent to re-assess any other claims made by the Applicant which may depend on the above outcome and to assess the rate of pension.
..............(Signed).................................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
VETERANS’ AFFAIRS – whether depression and generalised anxiety caused by fear of contracting asbestosis – whether connected to service
Veterans’ Entitlements Act 1986: s9(1)(b)
REASONS FOR DECISION
Deputy President Don Muller 1. This is an application by John Campbell Crane, the Applicant, for review of a decision to reject a claim for disability pension and medical treatment in relation to depression and generalised anxiety, pursuant to the provisions of the Veterans’ Entitlements Act 1986.
2. The Applicant claims that he suffered a severe psychosocial stressor when he watched a television documentary in 1990 about the incidence of asbestosis in ex-service personnel who had served aboard ships of the Royal Australian Navy. He suffered a further severe psychosocial stressor when he was later diagnosed with pleural plaques in 1995.
3. The Applicant was born on 17 January 1951.
4. The Applicant served in the Royal Australian Navy from 9 October 1966 to 31 December 1973. He completed three trips to Vietnam as a stoker on board the HMAS Sydney. Those trips were:
(a)20 December 1967 to 2 January 1968 (14 days)
(b)17 January 1968 to 16 February 1968 (30 days)
(c)27 March 1968 to 26 April 1968 (30 days)
He also had defence service for the purposes of the Act, from 7 December 1972 until discharge on 31 December 1973.
5. The Applicant tendered statements and gave oral evidence to the Tribunal. The Tribunal accepts the Applicant as an honest and reliable witness. Those parts of the Applicant’s evidence and statements which the Tribunal found to be particularly relevant were:
(a)“1. During 1967/68, I was an ordinary Stoker under training on board the H.M.A.S. Sydney. I completed three trips to Vietnam and my duties on board the Sydney, included mostly working down in the engine and boiler rooms, engineers stores etc. On two different occasions, whilst at sea on the way to Vietnam, I was directed to de-lag some steam pipes and clean away rubbish in order for some repairs to take place in the engine room, on that machinery. My recollection of my messdeck was that it was just forward of a boiler room and that asbestos lagged steam pipes ran through it where our hammocks were slung.
2. After completing a stoker’s course, I was posted to H.M.A.S. ANZAC for a period of about three years. During this time, whilst doing re-fits in Williamstown we were on many occasions instructed to de-lag machinery/pipes/pumps etc for complete overhauls, as this category fell under maintenance.
3. After leaving H.M.A.S. ANZAC I was posted to H.M.A.S. CEREBERUS, for a furnace bricklaying and lagging course.
4. On completion of this course, I was posted to H.M.A.S. KUTTABUL in Sydney. Other stokers and myself were formed into what was called, ‘The Fleet Maintenance Party’.. Our duties included working on ships that needed furnaces re-bricking or large lagging jobs.
5. After a five month period at H.M.A.S. KUTTABUL, I was posted back to H.M.A.S. ANZAC for two years, where I was termed as the ‘Ship’s Brickie’. Whilst at sea, I quite often stayed in a daywork position performing as a lagger, completing patchup jobs on repairs, making new asbestos pads etc. During one re-fit at Garden Island, I was ordered to select a team of four other stokers. We were to start work at 2200 Hrs de-lagging all three machinery spaces and then bagging all asbestos cloths, debris and rubbish etc and sweep the plates (Decks) clean. This work had to be completed before 0600 Hrs, prior to the civilian dockyard workers commencing duty in those machinery spaces.
At no stage were we given or directed to wear breathing apparatus.
I believe the Chief Stoker that ordered us to perform that night work so many years ago, was diagnosed in May 1999, with an asbestosis related disease and passed away in November 1999 from that disease.
6. I was posted to H.M.A.S. MELBOURNE from H.M.A.S. ANZAC, but worked in AV Fuels.
7. H.M.A.S. MELBOURNE to Lonsdale for Discharge.”
(b)In 1990, the Applicant was watching a television program, 60 Minutes. The segment which particularly took his interest was about the poor health from asbestos related chest disease of former naval personnel. In particular, the programme presented one of his former naval colleagues as suffering from severe asbestosis. The Applicant observed that his former colleague was in such a poor state that he was hardly recognisable. From that point onwards the Applicant has been seriously troubled about the possibility of him developing a similar condition.
(c)“1. In regards to the documentary in which I saw a shipmate of mine who had been affected by asbestos I found that the documentary had a profound effect on me and it was constantly on my mind after that. These thoughts were happening for approximately a year before I consulted a doctor and had X-rays.
2. I moved to Townsville and saw a Dr Vince, I informed him of the nature of my fears and concerns. I had a number of X-rays and in 1995, an X-ray was conducted which disclosed the presence of plural plaques.
3. From that time onwards I found it increasingly difficult to continue with my employment. My fears and concerns about asbestos related diseases were constantly on my mind. I found it difficult to concentrate, particularly about work matters. I tried to take up as much of my time as possible with work matters in an effort to fill my mind with work, but no matter how much time I took up, my concerns and fears about asbestos continued to play on my mind despite my attempts.
4. In the last year of my employment I was very angry and there were a number of incidences which occurred. One of which I recall where I threw another staff member up against a wall as a result of some very minor production problems. This was an incident which was out of character for me. I received counselling from my supervisor about this incident.
5. I recall a further incident when I stopped my vehicle outside of my workplace, another vehicle pulled up behind me and unbeknownst to me, for whatever reason, the person had made a gesture at me in a provocative way. I went up into the office where I was told by one of the other staff members that this person had gestured to me as I pulled up and came up the stairs. I was very angry at this so I went back down to where this person was and basically told the guy off. I was quite aggressive in the whole situation and I then returned to work. I was later advised by my boss that that person was attending one of the offices to see a lawyer in the building and that this lawyer had made a complaint to my boss about my behaviour.
6. From time to time I would go home during the day and I would drink alcohol during my lunch hour, I would also sleep.
7. I started having bowel problems and they were embarrassing situations which would result in incontinence. On one occasion I recall this happening when I visited a client at Harvey Norman – an electrical store. The situation was bad enough that I would often carry toilet paper in my vehicle. Because of my problems I found that I was having a significant amount of difficulty dealing with people in any sort of situation. I hated going to places where people were going to be.
8. I recall an incident where I was asked by my boss to attend a variety event in the Whitsunday Islands. My boss wanted me to take a number of clients to that event for entertainment purposes. I started to stress over this proposed event and for several days I was worried about it. I simply couldn’t get it off my mind until eventually I went to my boss and told him that I was simply unable to do it. I told him that I would not be able to function properly and that I thought that if I was forced to go there, then within a day I would probably jump off the boat.
9. I attended upon Dr Likely at about this time and told him about my concerns, my fears and my difficulties. He indicated to me that I should give up work, however I informed him that I still wanted to work.
10. Over the next 4-6 weeks I tried as hard as I could to carry out my duties. I found that I was arguing more and more with people. I was avoiding clients and wouldn’t see them. I wouldn’t go to visit them as it was one of my functions to do so and I became very anti-social. I said to my boss, Steve Mitchell, that I simply couldn’t go on anymore and that it was becoming more and more difficult.
11. I went to Dr Likely and advised him again of my situation. He indicated to me that I should give up work and wrote a letter to that effect. I then went to my boss and indicated to him that I was resigning. I understood from conversations with him that my performance had been a matter of concern to him and that ultimately, if I hadn’t resigned then I would have been fired.
12. I liked my job and I believe that I was good at it. I was one of only two people in the state to make sales in excess of $1 million in a year for Channel 7. I was being over $100,000 a year and indeed in my last year I earned approximately $111,000. Despite this I was simply unable to cope because of my worries and concerns about asbestos and asbestos related diseases. I was unable to function and I was unable to perform in my job the way I should have. I found that in the last two years I was concerned significantly about doing the wrong thing by a lot of people. I felt that I was letting everybody down or more likely that I would let people down in the future.”
6. Dr. Likely, psychiatrist, saw the Applicant in January 2000 and diagnosed major depressive disorder. He said:
“It was not until approximately 12 years ago however that he became aware of a discrete change in his mental health. This occurred when he saw a documentary on Channel 9 regarding the deleterious effects of asbestos on the health of former sailors, in particular with respect to the evolution of mesothelioma.”
7. On 5 May 2000, the Applicant had a further scan of his thorax. The report stated:
“C.T. THORAX:
TECHNIQUE:
High resolution scans were performed with 1 mm thick slices at 10 mm intervals. The patient was scanned in the prone position.
FINDINGS:
There is thickening of the pleura with small pleural plaques in relation to the posterolateral right chest wall and to a lesser extent the posterolateral left chest wall. A few tiny scattered pleural calcifications are noted. The appearances are compatible with asbestos related pleural disease.
The posterior subpleural regions of the lung fields appear within normal limits with no peribronchiolar fibrosis or septal thickening. No honeycombing or bronchiectasis visualised. The basal regions of both lung fields appear within normal limits. Posture related subpleural density is noted in the anterior subpleural region due to positioning in the prone position.
COMMENT:
ASBESTOS RELATED PLEURAL DISEASE WITH THICKENING, PLAQUES AND SMALL FOCI OF CALCIFICATION. NO PARENCHYMAL ABNORMALITY DEMONSTRATED OR EVIDENCE OF PARENCHYMAL ASBESTOSIS.”
8. The Applicant saw Dr. Likely again on 21 June 2000. The report of Dr. Likely on 21 June 2000 said:
“I reviewed Mr Crane on the 21st of June. I have previously seen him at the request of Military Compensation and subsequently again on the 10th of April. Please find enclosed a copy of my initial report to Military Compensation.
When I saw Mr Crane in April of this year, he was symptomatically unchanged and was continuing to experience significant symptoms of major depression, complicated by alcohol abuse. At that stage he was drinking 6-8 stubbies of full-strength beer, supplemented by occasional wine each day. His symptoms were not only distressing for him, but were impinging on his functioning both at work and in relationships. I note that his irritability and dysphoria have spilled over in the work setting on a number of occasions recently. In addition to this, recent radiological investigation has shown probable asbestos related pleural plaques, which have increased his symptoms of worry and anxiety.
When I saw him in April I had asked him to cease his Paroxetine and to replace it with Venlafaxine, however he found that this drug caused unacceptable somnolence and therefore ceased it after only a few days. He did notice however some improvement in his sense of wellbeing.
Mental state examination today showed an ongoing depressed mood, restricted affect and depressive cognitions. There were no self-harm ideas.”
9. In August 2000, the Department of Veterans’ Affairs asked Dr. David McEvoy, consultant Respiratory Physician, to review the case. Dr. McEvoy reported as follows:
“There is no doubt that John Crane had significant exposure to asbestos fibre dust throughout his naval service. This was probably least during his initial period of training aboard HMAS Sydney when he was an ordinary stoker in 1967 and 1968, and greatest after he had completed the naval furnace bricklaying and lagging course following which he performed lagging frequently at HMAS Kuttabul in Sydney, and subsequently for 2 years on HMAS Anzac where he was more or less permanently involved in jobs involving lagging. His statement describes a particularly heavy exposure to asbestos dust on refitting at Garden Island.
The history does not allow separation of the relative effects of periods of exposure to asbestos fibre dust as all periods enumerated were significant, and heavy enough to cause the formation of asbestos pleural plaques.
In relation to the specific question posed, I would consider that the exposure on board HMAS Sydney as an ordinary stoker provided regular but relatively light asbestos exposure whereas his subsequent period of employment in the Navy caused moderate to heavy asbestos exposure between 1968 and 1973.”
10. On 21 June 2002, the Applicant was examined by Dr. Roger K.A. Allen, Thoracic Physician. Dr. Allen reported on 5 July 2002 as follows (among other things):
“(iv) Radiological Investigations:
Chest radiographs of the 24th August 1995, 19th January 1998 and 28th January 1999 were all normal but by the 1st August 2000 there was a small pleural plaque visible in the right upper chest.
CT scan of the chest (21st May 2002) showed bilateral pleural plaques, some posterior pleural thickening but no difference in the CT scans between the 21st May 2002 and the 30th May 2002 (I cannot understand why these were done so close together). CT scan of the chest (16th January 2001) showed minor sub-pleural reticular shadows, which suggests early asbestosis, and I believe this was a better quality CT scan than the later ones. There was no evidence of emphysema and there were some pleural plaques bilaterally with small amounts of calcification.
5. Prognosis
With regards prognosis, it is also difficult to give you a very precise estimate of his general outlook due to the fairly short time period of observation by both me and Dr. Peter Buchanan. However as he has a moderate restrictive defect from a number of causes no doubt, and is only young (51 years), I believe it likely that his asbestos disease will contribute to a reduction of life expectancy by several years.
6.As he has been exposed to asbestos and also has some early features of asbestosis, he is at markedly increased risk of developing a bronchogenic carcinoma with a relative risk of at least four times that of the general population. With regards malignant mesothelioma he is at significant risk of developing this as well as benign asbestos-pleurisy and pleural pain. It is possible that his children have been exposed to asbestos too from his work clothes although I believe most of the time that these were washed by the Navy.”
11. The Respondent has accepted that the Applicant’s pleural plaques constitute a service related disability.
12. The Tribunal finds that:
(a)The Applicant suffers from a major depressive disorder and generalised anxiety.
(b)The Applicant’s psychiatric illness was caused by the stress of worry resulting from a combination of his duties during his naval service in which he was heavily exposed to asbestos dust and becoming aware, through a television programme in 1990, of the probability that he would eventually contract a very serious lung condition which could result in death or serious physical disability.
(c)The Applicant’s psychiatric condition was aggravated in 1995 and again in 2000 and 2002, when his fears about contracting an asbestos related lung condition began to show medical signs of coming true.
13. The factors which must exist before a depressive disorder or an anxiety disorder can be said to be connected to the circumstances of the Applicant’s relevant service are set out in the relevant Statement of Principles prepared by the Repatriation Medical Authority. Those applicable to the Applicant are:
No. 59 of 1998:
“5. The factors that must exist before it can be said that, on the balance of probabilities, depressive disorder is connected with the circumstances of a person’s relevant service are:
(a)experiencing a severe psychosocial stressor or stressors within the one year immediately before the clinical onset of depressive disorder; or
…
(e)experiencing a severe psychosocial stressor or stressors within the one year immediately before the clinical worsening of depressive disorder; or”
No. 58 of 1999
“5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder or death from depressive disorder with the circumstances of a person’s relevant service are:
…
(b)experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder; or
…
(f)experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical worsening of depressive disorder; or”
No. 1 of 2000
“Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service are:
(a)for generalised anxiety disorder or anxiety disorder not otherwise specified, only
….
(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
….
(v)experiencing a severe psychosocial stressor within the two years immediately before the clinical worsening of anxiety disorder; or”
14. The Tribunal finds that the Applicant’s fear of death or contracting a serious physical disability amounts to “experiencing a severe psychosocial stressor” within the meaning of that term in the relevant Statements of Principles.
15. The Tribunal further finds that the Applicant experienced the severe psychosocial stressor within one year of the onset of his psychiatric illness, indeed the stressor had an almost immediate effect. Furthermore, the Tribunal finds that the knowledge gained by the Applicant from 1995 onwards that his fears were being realised, also amounted to the experience of further psychosocial stressors, which had an almost immediate aggravating effect.
16. The only matter left for the Tribunal to consider is whether the severe psychosocial stressors were connected to his naval service. On one view it might be said that the Applicant’s intense concerns about his health were caused by his watching a television programme, which occurred long after he had ceased to serve in the Navy. On the other hand the Applicant claims that the television program alerted him to the danger he was in, solely because of his service in the Navy. If he had never been in the Navy, and had never been exposed to asbestos, he would not have had any concerns.
17. The Tribunal takes the view that the Applicant’s service in the Navy, during which time he was exposed to asbestos, made a major contribution to the creation of the severe psychosocial stressor. Without the naval service there would have been no stressor. The severe psychosocial stressor was connected to the Applicant’s naval service. It arose out of, or was attributable to his naval service.
18. Consequently, the Tribunal finds that the Applicant’s major depressive disorder and generalised anxiety disorder are war-caused with effect from 29 February 2000, pursuant to subsection 9(1)(b) of the Act.
“9 War-caused injuries or diseases
(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:
….
(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;”
19. The decision under review is set aside.
I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .......................................................................................
C. O’Donovan, AssociateDate/s of Hearing 27 November 2002
Date of Decision 16 May 2003
Counsel for the Applicant Mr. D. Honchin
Solicitor for the Applicant Purcell Taylor
Respondent Mr. J. Stoner, departmental advocate
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