De Smid and Repatriation Commission
[2005] AATA 133
•14 February 2005
DECISION AND REASONS FOR DECISION [2005] AATA 133
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/758
VETERANS APPEALS DIVISION )
Re ROBERT DE SMID Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms N Bell, Senior Member, Dr I Alexander, Member
Date 14 February 2005
PlaceSydney
Decision The decision under review is set aside and in substitution therefor the Tribunal decides:
a) Mr De Smid suffers from depressive disorder and alcohol abuse and those conditions are due to his service;
b) Mr De Smid is eligible to be paid a disability pension at the Intermediate rate;
c) The date of effect of this decision is 29 January 2002.
...........................................
Ms N Bell,
Senior Member (Presiding)
VETERANS’ AFFAIRS – Rate of Pension – Diagnosis of Conditions – Dates of Onset – Application of Statements of Principles - Whether Conditions are Related to Service – Continuing Ability to Work
Veterans Entitlements Act 1986
Lees v Repatriation Commission (2002) 36 AAR 484.
Re A’Bell and Repatriation Commission 1999 (58 ALD 721)
Repatriation Commission v Yates 1995 (38 ALD 80)
Re Heaps and Repatriation Commission (AAT N36/64, 29 July 1987)
White v Repatriation Commission [2004] FCA 633
Woodward v Repatriation Commission [2003] FCAFC 160
REASONS FOR DECISION
14 February 2005 Ms N Bell, Senior Member; Dr I Alexander, Member 1.Mr De Smid, born on 10 August 1948, joined the Royal Australian Navy in 1965, aged 17 years. He was discharged in 1985 and had operational service in Vietnam from 25 April 1966 to 6 May 1966 and from 25 May 1966 to 9 June 1966 on the HMAS Melbourne. He had eligible defence service from 7 December 1972 to 5 January 1985.
2.Mr De Smid has a number of disabilities that have been accepted by the Repatriation Commission as being due to his service: bilateral sensorineural hearing loss with tinnitus, chronic solar skin damage, lumbar spondylosis and thoracic spondylosis. This application concerns his claim under the Veterans’ Entitlements Act 1986 (“the Act”) for depression and alcohol abuse and/ or dependence.
3.The Repatriation Commission conceded that Mr De Smid suffers from depressive disorder and from alcohol abuse (although not alcohol dependence) but contended that neither of these conditions is due to either his operational service or his eligible service.
4.The first task for the Tribunal is to reach a conclusion, on the basis of reasonable satisfaction, as to the correct diagnosis of Mr De Smid’s conditions. We agree with the parties that he suffers from depressive disorder and alcohol abuse and we find accordingly. In this respect we had regard to the evidence of Drs Dinnen and Haik and Professor Mattick and to the diagnostic criteria in the Diagnostic Statistical Manual of Mental Disorders – Fourth Edition (“DSM – IV”). Some evidence was led in support of a diagnosis of alcohol dependence (Professor Mattick). However, we consider that Mr De Smid’s symptoms barely satisfy the diagnostic criteria for alcohol dependence but comfortably meet the criteria for alcohol abuse.
5.On the basis of these diagnoses, we must then consider the terms of any Statements of Principle (SoP) relevant to the conditions. In this case, the relevant SoPs are: for alcohol abuse and alcohol dependence, No. 76 of 1998 (for operational service) and No. 77 of 1998 (for eligible service) and, for depressive disorder, No. 58 of 1998 (for operational service) and No. 59 of 1998 (for eligible service). It is by reference to these Instruments that we must assess whether, in the case of operational service, Mr De Smid’s conditions are war caused to the standard of reasonable hypothesis (ss 120(1) and (3) and 120A of the Act) and, in the case of eligible service, his conditions are defence caused to the standard of reasonable satisfaction (ss 120(4) and 120B of the Act).
6.A number of the factors in each of these SoPs refer to the date of clinical onset of the relevant disease and require a particular temporal relationship between that onset and an event. It is therefore necessary for us to reach a conclusion as to the date of clinical onset of each of the diagnosed diseases and in doing so to have regard to the decision of the Full Federal Court in Lees v Repatriation Commission (2002) 36 AAR 484.
7.After reaching a conclusion as to the date of clinical onset of Mr De Smid’s alcohol abuse and depressive disorder, we must then consider whether there is conformity between the material before us and one or more factors of the relevant SoPs.
8.As to assessment of rate of pension, Mr De Smid has asked the Tribunal, in the event that we find both conditions to be due to his service, to consider whether he qualifies for either the Intermediate or Special rates of pension. In this respect, the Repatriation Commission has conceded that, if both conditions are found to be due to service, then Mr De Smid should be assessed at a rate of 100%. When asked by us whether they wished us to remit the matter for assessment, should we find only one of the conditions to be due to service, the parties agreed but Mr Dawson, Counsel for Mr De Smid, requested us to make some observations about Mr De Smid’s ability to work.
dates of clinical onset
9.A detailed and comprehensive history of alcohol use by Mr De Smid was taken by Professor Mattick and included in his report of 22 August 2003. The other medical evidence before the Tribunal, from Drs Dinnen and Haik, was considerably less detailed in this respect. For example, while Dr Dinnen was of the view that Mr De Smid’s depressive disorder had a clinical onset of 1979, he did not address the diagnostic criteria, or signs and symptoms, in detail in support of that view.
10.The diagnostic criteria for alcohol abuse contained in DSM – IV, and repeated in SoPs Nos. 76 and 77 of 1998, are:
Criteria for Substance Abuse
A. A maladaptive pattern of substance use leading to clinically significant impairment or distress, as manifested by one (or more) of the following,occurring within a 12-month period:
1. recurrent substance use resulting in a failure to fulfill major role obligations at work, school, or home (e.g., repeated absences or poor work performance related to substance use; substance-related absences, suspensions, or expulsions from school; neglect of children or household)
2. recurrent substance use in situations in which it is physically hazardous (e.g., driving an automobile or operating a machine when impaired by substance use)
3. recurrent substance-related legal problems (e.g., arrests for substance-related disorderly conduct)
4. continued substance use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the substance (e.g., arguments with spouse about consequences of intoxication, physical fights)
B. The symptoms have never met the criteria for Substance Dependence for this class of substance.
11.On the basis of the detailed history taken by Professor Mattick, and the evidence of Mrs De Smid, Mr De Smid satisfies the criteria in paragraph 1 (failure to fulfil obligations) and 4 (persistent or recurrent social or interpersonal problems) from 1973. He also had alcohol related legal problems, first in 1968 and then in 1971 or 1972. Given that the symptom in paragraph 3 must be recurrent, and within a twelve month period, he does not satisfy that criteria. It follows that the signs and symptoms of the disease were present from 1973 and that was the date of clinical onset. We are mindful that Professor Mattick, at some points in his report, suggests that Mr De Smid may have had clinical onset of alcohol abuse (or dependence) as early as the late 1960’s. However, he stated that it is most probable that its onset was in 1973. This also accords with our analysis of the development of signs and symptoms recorded by Professor Mattick against the diagnostic criteria in DSM – IV.
12.The diagnostic criteria for depressive disorder are, according to DSM – IV, and repeated in SoPs Nos. 58 and 59 of 1998:
Depressive Disorder – Recurrent
A. Presence of two or more Major depressive Episodes.
B The Major depressive Episodes are not better accounted for by Schizoaffective Disorder and are not superimposed on Schizophrenia, Schizophreniform Disorder, Delusional disorder, or psychotic Disorder not otherwise specified.
C. There has never been a Manic episode, a mixed Episode, or a Hypomanic Episode.
13.The DSM – IV diagnostic criteria for Major Depressive Episode are:
Criteria for Major Depressive Episode
A. Five (or more) of the following symptoms have been present during the same 2-week period and represent a change from previous functioning; at least one of the symptoms is either (1) depressed mood or (2) loss of interest or pleasure. Note: Do not include symptoms that are clearly due to a general medical condition, or mood-incongruent delusions or hallucinations.
1. depressed mood most of the day, nearly every day, as indicated by either subjective report (e.g., feels sad or empty) or observation made by others (e.g., appears tearful). Note: In children and adolescents, can be irritable mood.
2. markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day (as indicated by either subjective account or observation made by others)
3. significant weight loss when not dieting or weight gain (e.g., a change of more than 5% of body weight in a month), or decrease or increase in appetite nearly every day. Note: In children, consider failure to make expected weight gains.
4. insomnia or hypersomnia nearly every day
5. psychomotor agitation or retardation nearly every day (observable by others, not merely subjective feelings of restlessness or being slowed down)
6. fatigue or loss of energy nearly every day
7. feelings of worthlessness or excessive or inappropriate guilt (which may be delusional) nearly every day (not merely self-reproach or guilt about being sick)
8. diminished ability to think or concentrate, or indecisiveness, nearly every day (either by subjective account or as observed by others)
9. recurrent thoughts of death (not just fear of dying), recurrent suicidal ideation without a specific plan, or a suicide attempt or a specific plan for committing suicide
B. The symptoms do not meet criteria for a Mixed Episode (See linked section).
C. The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
D. The symptoms are not due to the direct physiological effects of a substance (e.g., a drug of abuse, a medication) or a general medical condition (e.g., hypothyroidism).
E. The symptoms are not better accounted for by Bereavement, i.e., after the loss of a loved one, the symptoms persist for longer than 2 months or are characterized by marked functional impairment, morbid preoccupation with worthlessness, suicidal ideation, psychotic symptoms, or psychomotor retardation.
14.The detailed history taken by Professor Mattick from Mr De Smid and Mrs De Smid shows a gradual onset of depressive disorder from approximately 1995 with 3 of the 5 required DSM – IV diagnostic criteria, or signs and symptoms, present from 1995 (depressed mood, diminished interest and hypersomnia) building up to include psychomotor agitation, diminished ability to concentrate, fatigue, suicidal ideation and others by approximately 2002. Given the requirement in DSM – IV for 5 of the listed criteria to be present in order to establish the diagnosis, and given the principles in Lees (supra), the clinical onset of depressive disorder was at some point between 1995 and 2002. We prefer the detailed analysis of signs and symptoms undertaken by Professor Mattick, and the resulting opinion as to date of clinical onset, to the opinion of Dr Dinnen.
the sop factors
alcohol abuse
15.In relation to alcohol abuse, SoP No. 76 of 1998 sets out the following factors that apply to operational service:
Factors
5. The factors that must as a minimum exist before it can be said that a
reasonable hypothesis has been raised connecting alcohol dependence or
alcohol abuse or death from alcohol dependence or alcohol abuse
with the circumstances of a person’s relevant service are:
(a) suffering from a psychiatric disorder at the time of the clinical
onset of alcohol dependence or alcohol abuse; or
(b) experiencing a severe stressor within the two years immediately
before the clinical onset of alcohol dependence or alcohol abuse;
or
(c) suffering from a psychiatric disorder at the time of the clinical
worsening of alcohol dependence or alcohol abuse; or
(d) experiencing a severe stressor within the two years immediately
before the clinical worsening of alcohol dependence or alcohol
abuse; or
(e) inability to obtain appropriate clinical management for alcohol
dependence or alcohol abuse.
Factors that apply only to material contribution or aggravation
6. Paragraphs 5(c) to 5(e) apply only to material contribution to, or
aggravation of, alcohol dependence or alcohol abuse where the person’s
alcohol dependence or alcohol abuse was suffered or contracted before or
during (but not arising out of) the person’s relevant service; paragraph
8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.
16.In relation to factors for eligible service, SoP No. 77 of 1998 is in identical terms except that in paragraphs b) and d) the period is one year.
17.Given our conclusions as to the date of clinical onset of Mr De Smid’s alcohol abuse (1973) and his depressive disorder (1995 - 2002), there is no scope for factors 5(a) or (c) to apply. In addition, there was no material before the Tribunal to suggest that Mr De Smid was unable to obtain appropriate clinical management of his condition as referred to in paragraph 5 (e). There remain, then, two factors to consider and both refer to a “severe stressor”.
18.Mr De Smid gave evidence of a number of stressors during his relevant periods of service. In short summary they were:
· Witnessing the crash of the Sea Venom in April 1966 (during operational service);
· Taking part in the cleanup of Darwin after Cyclone Tracy in December 1974/January 1975 (during eligible service); and
· Taking part in and being burnt in an advanced fire fighting course in March 1977 (during eligible service).
19.Of these events, assuming at present that they constitute “severe stressors” within the meaning of the SoPs, none precedes the clinical onset of Mr De Smid’s alcohol abuse by the required one or two years. Therefore factor 5 (b) in each of the relevant SoPs has no application. There remains factor 5 (d) which requires a severe stressor to have been experienced within the two years (or one year) immediately before the clinical worsening of alcohol abuse.
20.This raises the question of whether there was, at any point, clinical worsening of Mr De Smid’s alcohol abuse. Professor Mattick specifically said, in his report, there has been no clinical worsening of his alcohol “use” and that, rather, there has been an improvement. However, we note that Professor Mattick records that after his two weeks in Darwin commencing in December 1974, Mr De Smid went to Hawaii where his drinking increased to eight cans or more per night and he “got into strife ashore, being drunk and disorderly”. He also records that on his return he was drafted to HMAS Perth and began making a home brew of stronger beer, consuming four to five bottles per night and continued to drink in that fashion for “quite a number of years”. Mrs De Smid’s evidence was also that after each incident his drinking would increase.
21.There is no material before the Tribunal to the effect that Mr De Smid’s drinking increased following the burn incident in 1977 (apart from Mrs De Smid’s general statement that after each incident he would “hit the booze”). Professor Mattick’s detailed history of Mr De Smid’s alcohol use reports that his drinking settled somewhat from about 1978. However, Mr De Smid’s oral evidence to the Tribunal was that he continued to drink home brew throughout the seventies and eighties and “did stupid things” like driving when drunk (although not work vehicles) and stopping too close to a level crossing so that the train carriage hit the front of his car. Mrs De Smid’s evidence was that when she was with Mr De Smid on shore bases his drinking went up and down and that in leading up to his “breakdown” in 2002 he drank constantly.
22.Dr Dinnen described Mr De Smid’s drinking as ”intermittent heavy drinking” and appeared, in his reports of 29 August 2003 and 22 July 2004, to attach some significance to him having started “making his own grog at home in the 1970’s”.
23.The term “clinical worsening” was considered by Deputy President McMahon in the Tribunal’s decision in Re A’Bell and Repatriation Commission 1999 (58 ALD 721). The Deputy President noted, with regret, that, by avoiding the concept of “aggravation”, the SoP left open the question whether any clinical worsening prescribed by the SoP may be temporary or must be permanent. He observed, however, that the Instrument is subordinate to the terms of the legislation which provides for “aggravation”. He concluded that in order for it to be considered that the veteran’s condition (Hallux Valgus (bunions)) had been aggravated then more than a temporary worsening would have to have been caused. We note, however, that the Deputy President went on to conclude that it was the normal progression of the veteran’s congenital disease that produced the worsened condition rather than the veteran’s conditions of service.
24.In Repatriation Commission v Yates 1995 (38 ALD 80) Lindgren J discussed the Tribunal’s decision in Re Heaps and Repatriation Commission (AAT N36/64, 29 July 1987) and said:
“I would not be prepared to hold that only a literally "permanent"
aggravation of an injury or disease falls within para 70 (5) (d). Such a
proposition would have the odd result that an aggravation, once accepted as
being permanent, would be shown not to have been within para 70 (5) (d) at
all, if it subsequently transpired that the injury or disease, or at least the
defence-caused aggravation of it, ceased to exist. Indeed, the reference to
"recurrence" in the definition of "disease" in sub-s 5 (1) of the Act noted
earlier, at least suggests acceptance by the legislature of the fact that an
ailment, disorder, defect or morbid condition may be a disease although not of
a permanent nature. …Like the AAT in Heaps' case, I would expect, in the
absence of medical evidence to the contrary, that an aggravation of an
underlying disease would have a duration at least longer than the period of
worsening of symptoms caused by service, although it may not necessarily be
as long as the duration of the disease itself.” (at paragraph 44)
25.In this case the medical opinion of Dr Dinnen and Professor Mattick is that Mr De Smid’s alcohol abuse continues. Notwithstanding Professor Mattick’s opinion that there has been no clinical worsening of the condition, there is evidence of an increase in drinking and symptoms of alcohol abuse after the Cyclone Tracy period. We note, at this point, that the term “evidence” is appropriate in the context of the standard of proof required in relation to eligible service. There is also evidence of continued, but fluctuating, alcohol abuse and attendant problems in the years after Cyclone Tracy. The increase in drinking and related problems appears to have been consolidated with Mr De Smid commencing to make home brew, reported by Professor Mattick as a stronger beer, after his return from Hawaii. Given that this practice lasted, on Mr De Smid’s evidence, throughout the 1970’ and 1980’s, we consider the change after Cyclone Tracy to be more than a temporary worsening of symptoms (see A’Bell, supra) and, although it did not last as long as the duration of Mr De Smid’s alcohol abuse itself, it does amount to an aggravation of the underlying disease (see Yates, supra).
26.It follows that there was a clinical worsening of Mr De Smid’s alcohol abuse in the one year immediately following his experience of the aftermath of Cyclone Tracy.
27.Mr De Smid will only meet factor 5(d) of SoP No. 77 of 1998 if his experience of Cyclone Tracy was a severe stressor within the meaning of the SoP.
28.Mrs De Smid’s evidence in relation to Cyclone Tracy was:
“While on the Melbourne, Robert was recalled to the ship on Christmas Day 1974 and sailed very soon afterward to clean up Darwin. This he found very hard to handle as we had been there during 69 – 70 and Darwin had always had very fond memories for us. He couldn’t cope with the absolute devastation of the place. This is another memory that he has blocked as he doesn’t remember the phone calls to me in which he totally broke down and cried due to what he was seeing and doing during the effort to help and clean. He felt very guilty as to what he was feeling.”
29.Mr De Smid reported “intense distress” to Dr Dinnen over being present at the aftermath of the Cyclone and also reported this to Dr Haik as an experience which “knocked (him) around” and referred to “(t)he devastation, visually seeing how could this sort of thing happen. A fridge stuck in a water tank, and finding maggots in rotten food”. He reported to Professor Mattick that Cyclone Tracy was “quite upsetting” due to the devastation of Darwin, but he did not see any dead bodies. He said to Professor Mattick that he saw fridges full of rotting food, unopened presents, kids’ toys, “the total wipeout”. He also reported in similar terms to Dr Subhas, Consultant Psychiatrist
30.The term “experiencing a severe stressor” is defined in SoP No. 77 of 1998 as:
“experiencing a severe stressor” means, the person experienced,
witnessed or was confronted with, an event or events that involved actual
or threat of death or serious injury, or a threat to the person’s or other
people’s physical integrity, which event or events might evoke intense
fear, helplessness or horror;
In the setting of service in the Defence Forces, or other service where the
Veterans’ Entitlements Act applies, events that qualify as severe stressors
include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty
clearance, atrocities or abusive violence;
31.The state of the authorities on the meaning of the definitions of “stressors” that appear in the various SoPs was summarised by Spender J in White v Repatriation Commission [2004] FCA 633 as follows:
“The reference to “an identifiable occurrence” is objective. The examples given in the definition are of the kinds of “identifiable occurrence” that are contemplated. Counsel for the applicant, Mr Darin Honchin referred to Lees v Repatriation Commission [2002] AATA 98 at para 90, where the Tribunal stated that the examples given in the SoP are “examples of what is meant by ‘substantial distress’”. In my opinion, the ordinary language of the definition makes it clear that the examples given are of the “identifiable occurrences” contemplated, not of “substantial distress”. The examples are of “occurrences”, not emotions.
The reference to “experiencing” a severe psychosocial stressor has a subjective element: see, for example, Stoddart v Repatriation Commission (2003) 197 ALR 283 at 292 per Mansfield J, in relation to the phrase “experiencing a severe stressor” in the SoP concerning post traumatic stress disorder (affirmed on appeal in Repatriation Commission v Stoddart (2003) 38 AAR 176). An identifiable occurrence “that evokes feelings of substantial distress in an individual” also has a subjective element: see Woodward v Repatriation Commission (2003) 200 ALR 332 at 352 per Black CJ, Weinberg and Selway JJ, in relation to the phrase “experiencing a severe stressor”.
In my judgment, the definition of severe psychosocial stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned. Both aspects are relevant and necessary.” (paras 28-30)
32.We note also the view of the Full Court in Woodward v Repatriation Commission [2003] FCAFC 160 that the definition of "experiencing a severe stressor" has three elements - the person must have experienced, witnessed or have been confronted with an event that involved death. These elements may overlap and the definition may be satisfied if any one of them is present. It followed therefore, that a person may be "confronted with" an event that she or he has neither experienced nor witnessed. The Court provided the example set out in the second paragraph of the definition, of a member of the armed forces taking part in casualty clearance where the person may well have never experienced nor witnessed the events that caused the casualties.
33.We consider that being confronted with the aftermath of Cyclone Tracy, and the scale of the devastation arising from that disaster, satisfies the objective element of the definition and that Mr De Smid’s reaction to that event, as described in his, his wife’s and various medical evidence, satisfies the subjective element of the definition.
34.It follows, then, that Mr De Smid experienced a severe stressor, that he underwent a clinical worsening of his alcohol abuse within one year immediately following that stressor and that, accordingly, his alcohol abuse was aggravated by his service. It follows that his alcohol abuse is due to his service.
depressive disorder
35.In relation to depressive disorder, SoP No. 58 of 1998 sets out the following factors that apply to operational service:
Factors
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:
(a) being a prisoner of war before the clinical onset of depressive
disorder; or
(b) experiencing a severe psychosocial stressor or stressors within the
two years immediately before the clinical onset of depressive
disorder; or
(c) having a clinically significant psychiatric condition within the two
years immediately before the clinical onset of depressive disorder;
or
(d) having a major illness or injury within the two years immediately
before the clinical onset of depressive disorder; or
(e) suffering from chronic pain of at least six months duration at the
time of 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
(g) having a major illness or injury within the two years immediately
before the clinical worsening of depressive disorder; or
(h) having a clinically significant psychiatric condition within the two
years immediately before the clinical worsening of depressive
disorder; or
(j) suffering from chronic pain of at least six months duration at the
time of the clinical worsening of depressive disorder; or
(k) inability to obtain appropriate clinical management for depressive
disorder.
Factors that apply only to material contribution or aggravation
6. Paragraphs 5(f) to 5(k) apply only to material contribution to, or
aggravation of, depressive disorder where the person’s depressive disorder
was suffered or contracted before or during (but not arising out of) the
person’s relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or
70(5A)(d) of the Act refers.
36.In relation to factors for eligible service, SoP No. 59 of 1998 is in similar terms, except, relevantly, that in paragraphs b), c), e) and g) the period is one year.
37.There is no material before the Tribunal to suggest that factors 5(a), d), (e), (g), (j) or (k) of SoP No. 58 of 1998 or factors 5(c), (d), (f), (h) or (j) of SoP No. 59 of 1998 apply.
38.Given our conclusion as to the range of dates of clinical onset of Mr De Smid’s depressive disorder (1995 to 2002) and the dates of the stressors contended by him, there is no scope for factors 5(b) and (f) of SoP No. 59 of 1998 or factors 5(a) and (e) of SoP No. 59 of 1998 to apply.
39.There remain factors 5 (c) and h) of SoP No. 58 of 1998 and factors 5(b) and (g) of SoP No. 59 of 1998, which require, respectively, having a clinically significant psychiatric condition within the two years (or one year) immediately before the clinical onset or the clinical worsening of depressive disorder. The only psychiatric condition (defined in the SoPs as an Axis 1 disorder of mental health attracting a diagnosis under DSM – IV) suffered by Mr De Smid at the time of the clinical onset of his depressive disorder was his alcohol abuse. That psychiatric condition has been found by us to be caused by his eligible service rather than his operational service. It follows that SoP No. 58 of 1998, which applies to operational service, has no application.
40.The term “clinically significant” is defined in SoP No. 59 of 1998 as “sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or General Practitioner”.
41.Mr De Smid’s alcohol abuse was undiagnosed until relatively recently and so there is no evidence of ongoing management of the kind described in the SoP. However, it is only necessary that the condition “warrant” that management . We are satisfied, on the basis of Professor Mattick’s and Dr Dinnen’s evidence, that the condition has been at the required level of significance for many years including the period from 1994 to 2001, which precedes by one year the range of dates of clinical onset of Mr De Smid’s depressive disorder. It follows, then, that Mr De Smid had a clinically significant psychiatric condition (alcohol abuse) within one year immediately before the clinical onset of his depressive disorder. It further follows, given that his alcohol abuse was due to service, that he conforms with factor 5(b) of SoP No. 59 of 1998 and his depressive disorder is due to service.
assessment
42.Sections 23 and 24 of the Act set out the qualifications for payment of pension at the Intermediate rate and Special rate, respectively. The focus of the provisions is on the role played by a veteran’s war caused or service caused disabilities in the veteran’s cessation of paid work.
43.In order to qualify for payment at the Intermediate or Special rate Mr De Smid must show that his incapacity from his accepted conditions alone, is of “such a nature” as to make him incapable of working, in the case of Special rate, more than 8 hours per week, and in the case of Intermediate rate, more than on a part time basis or intermittently. He must also show that he is prevented, by that incapacity, from continuing to undertake remunerative work that he was undertaking and for that reason is suffering a loss of salary, earnings or wages.
44.There are other requirements in sections 23 and 24 but these are not in contest in this application. Failure to meet just one of the requirements will render Mr De Smid ineligible for payment at the Intermediate or Special rate.
45.The relevant issue in common to Mr De Smid’s eligibility for both rates of pension is the nature and effect of his incapacity from his accepted conditions. Given our earlier conclusions, Mr De Smid has the following accepted disabilities:
·Depressive disorder
·Alcohol abuse
·Lumbar spondylosis
·Thoracic spondylosis
·Bilateral sensorineural hearing loss
·Chronic solar skin damage
46.Dr Chase, Occupational Physician, in his report of 25 August 2004, considered that Mr De Smid could work up to 20 hours per week. He considered that his depressive disorder is the main barrier to his return to work. Dr Mattick considered that Mr De Smid is not precluded from undertaking any work and, in particular, said his alcohol consumption should not have prevented him from undertaking employment and does not prevent him from doing so now. He expressed doubt as to Mr De Smid’s motivation to work and suggested that his forgetfulness and general presentation may make remunerative employment difficult. Dr Dinnen stated, in his report of 29 August 2003, that Mr De Smid could work no more than 20 hours per week. In an assessment under the Guide to the Assessment of Rates of Veterans’ Pensions (“GARP”), Dr Schmidtman, in her report of 2 October 2003, assessed Mr De Smid’s occupational capacity as “no longer fit for work due to persistent symptoms including high arousal, poor concentration, poor short term memory, depression”.
47.Also in evidence was the Statement of Reasons for a determination, dated 20 April 2004 by a delegate of the Commission, that Mr De Smid is permanently incapacitated (for the purposes of an invalidity service pension). That Statement is a careful consideration of all of the available medical evidence, with the exception of Dr Dinnen’s and Dr Chase’s reports – both of which state that Mr De Smid could work for 20 hours per week. The delegate appears to have relied significantly on the opinion of Dr Schmidtman.
48.Mr De Smid’s evidence was that after poor performance and numerous errors in his job delivering roofing products, he decided to obtain casual work and worked for a water carting company for three days per week from September 2002 to December 2002. However, he began making errors again and his employment was terminated in February 2003 after having worked only 2 days in January and 3 days in February. He has not worked since then.
49.In light of Dr Dinnen’s and Dr Chase’s reports, and notwithstanding the conclusion reached by the delegate in relation to eligibility for an invalidity pension, we cannot be comfortably satisfied that Mr De Smid is incapable of working for more than 8 hours per week. That conclusion makes Mr De Smid ineligible for Special rate.
50.We consider, however, that, given Mr De Smid’s experience at his last two places of employment, 20 hours per week is somewhat ambitious. Eligibility for Intermediate rate requires a capacity for part time or intermittent work only. Those terms are, in effect, defined in section 23(2) as work for less than 50 per cent of the time ordinarily worked or for less than 20 hours per week. We consider that, notwithstanding the opinions of Drs Dinnen and Chase, while Mr De Smid is capable of some work of more than 8 hours per week, he would not be capable of undertaking 20 hours per week or to work for 50 per cent of the time ordinarily worked.
51.Further, there is no evidence to suggest that Mr De Smid is limited in his capacity to work by any matter other than his accepted conditions. We are also satisfied that Mr De Smid ceased to work full-time because of his accepted conditions and not for any other reason.
52.We also note that Mr De Smid is suffering a loss of earnings that is due to his incapacity from his accepted conditions.
53.It follows that Mr De Smid is eligible to be paid at the Intermediate rate.
decision
54.The decision under review is set aside and in substitution therefore the Tribunal decides:
a) Mr De Smid suffers from depressive disorder and alcohol abuse and those conditions are due to his service;
b) Mr De Smid is eligible to be paid a disability pension at the Intermediate rate;
c) The date of effect of this decision is 29 January 2002.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member (presiding) and Dr I Alexander, Member.
Signed: ...........[Linda Blue]................................
AssociateDates of Hearing 13 December 2004, 14 December 2004
Date of Decision 14 February 2005
Counsel for the Applicant Mr N Dawson
Solicitor for the Applicant Mr A Whyburn
Counsel for the Respondent Miss R Henderson
Solicitor for the Respondent Ms E Warner-Knight
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