Debono and Repatriation Commission
[2004] AATA 580
•7 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 580
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1522
VETERANS’ APPEALS DIVISION ) Re Francis Paul Debono Applicant
And
Repatriation Commission
Respondent
DECISION
TribunalMs S M Bullock, Senior Member
Dr M E C Thorpe, Member
Date7 June 2004
PlaceSydney
Decision The decision under review is set aside pursuant to section 43 of the Administrative Appeals Tribunal 1975 and in substitution therefor the Tribunal decides that:
(i) Mr Debono has a defence-caused generalised anxiety disorder with effect from 11 June 2001;
(ii) The assessment of the rate of Disability Pension is remitted to the Repatriation Commission including the newly accepted condition of generalised anxiety disorder.
..............................................
Ms S M Bullock
Presiding Member
catchwords
VETERANS’ AFFAIRS – Entitlements – Disability Pension – Diagnosis – Generalised Anxiety Disorder – Barotrauma
Veterans’ Entitlements Act 1986 ss 119, 120, 120B
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Lees v Repatriation Commission [2002] FCAFC 398
Woodward v Repatriation Commission [2003] FCAFC 160
Stoddart vRepatriation Commission [2003] FCA 334
REASONS FOR DECISION
7 June 2004 Ms S M Bullock, Senior Member
Dr M E C Thorpe, Member1. Mr Francis Paul Debono, the Applicant, is seeking a review by the Administrative Appeals Tribunal (“the Tribunal”) of a decision made by the Veterans’ Review Board (“the Board”) on 29 August 2002 (T11) that, assuming Mr Debono suffers from anxiety disorder and panic disorder, these conditions are not defence-caused. Although reaching a different diagnosis to the Repatriation Commission, which dealt with the claimed condition of post traumatic stress disorder, and also determined the Applicant’s post traumatic stress disorder not to be defence-caused, the Board affirmed the Repatriation Commission’s decision (T2).
2. A Hearing was conducted in Sydney on 5 September 2003, resuming on 8 December 2003. Mr Debono provided evidence to the Tribunal as did Dr K Lovric, Consultant Psychiatrist. Mr Debono was represented by Mr R Davis, Advocate with the Returned and Services League of Australia. The Respondent, the Repatriation Commission, was represented by Mr M Ryan, Departmental Advocate. Documents were lodged and taken into evidence pursuant to section 37 of the AdministrativeAppeals Tribunal Act 1975 (“T Documents”, T1-T15). A number of exhibits were taken into evidence and are contained in Schedule 1, attached to this decision.
issues
3. The issues in this matter are:
i.Whether Mr Debono has a psychiatric condition, and if so, the correct diagnosis of any such condition(s);
ii.Whether the correctly diagnosed psychiatric condition, is defence-caused.
legislation
4. A determination in this matter requires consideration of the Veterans’ Entitlements Act 1986 (“the Act”).
5. As Mr Debono rendered eligible service within Australia, subsection 120 (4) of the Act applies. Thus, the Tribunal is required to make a determination to its reasonable satisfaction, as to whether or not, on the balance of probabilities, Mr Debono’s correctly diagnosed psychiatric condition is defence-caused. In making a determination as to the correct diagnosis of any psychiatric condition suffered by the Applicant, the Tribunal must also apply the same standard of proof. The Tribunal must also apply section 120B of the Act and make a determination to its reasonable satisfaction, in accordance with any Statements of Principles that the Repatriation Medical Authority has made, or any relevant determination or declaration under the Act to its reasonable satisfaction.
6. Section 119 reflects the administrative rather than judicial nature of decision-making under the Act and makes allowances for matters such as the passage of time, the unavailability of documentary evidence and the diminution of memory. Of specific relevance are subsections 119(1)(g), and (h) which state that the Repatriation Commission, or the Tribunal standing in its shoes:
“…
(g) shall act according to substantial justice and the substantial merits
of the case, without regard to legal form and technicalities; and
(h) without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to-
(i) the effects of the passage of time, including the effect of the
passage of time on the availability of witnesses; and
(ii) the absence of, or a deficiency in, relevant official records,
including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by sub-section 68 (1), was not reported to the appropriate authorities.”
Statement of Principles
7. The Statement of Principles considered relevant by the Tribunal is that concerning Generalised Anxiety Disorder, being Instrument Number 2 of 2000. Also of possible relevance are two other Statements of Principles namely, Instrument Number 58 of 1996, concerning Adjustment Disorder and Instrument Number 10 of 1999, as amended by Instrument Number 59 of 1999, concerning Panic Disorder.
background
8. Mr Debono’s date of birth is 2 January 1954. Mr Debono served in the Royal Australian Navy (“the Navy”) from 11 July 1970 until 22 July 1976. Under the Act, Mr Debono’s period of eligible service is from 7 December 1972 until 22 July 1976.
9. On 11 September 2001, Mr Debono lodged a claim for a Disability Pension for the conditions of post traumatic stress disorder, tinnitus and chronic cough. The Repatriation Commission, in its decision dated 12 December 2001, concluded that there was no medical condition present to answer the claim in relation to post traumatic stress disorder (T2). The Commission stated that gastro-oesophageal reflux disease was the correct diagnosis for Mr Debono’s claim and found that this condition was not related to service. Tinnitus had already been accepted as a service-related condition under the diagnosis of bilateral tinnitus.
10. Mr Debono is currently in receipt of a Disability Pension at 20 per cent of the General Rate.
evidence of mr francis paul Debono
11. Mr Debono stated that he joined the Navy aged approximately 16 years, commencing his training in Western Australia in HMAS Leeuwin (Exhibit A1). Mr Debono stated that at the age of 18, he was under a great deal of pressure in the Navy. Mr Debono’s father, a doctor, and his mother were very proud of him being in the Navy and so he wanted to remain there. Mr Debono stated that he experienced bullying during his training period in HMAS Leeuwin. He explained that he was not an aggressive person by nature, but was singled out by his colleagues, to fight with a fellow sailor. Mr Debono stated that he was pressured to fight this sailor because the others did not like him. Mr Debono stated that he punched the sailor in the head with the result that the sailor lost consciousness and was hospitalised. Mr Debono was very upset at what he had done, felt very guilty, and was afraid that if the man had died then Mr Debono would be charged with murder. Some years later, Mr Debono came across this sailor who he then learned suffered from epilepsy. Mr Debono again felt guilty about his involvement in the fight and was worried that he may have caused the epilepsy, although, Mr Debono did not ask the sailor whether this was the case. Mr Debono was charged and punished for his involvement in the fight. Mr Debono did not speak to any medical officer or other service personnel at the time in relation to his guilt or unhappiness at the situation.
12. Mr Debono next served in HMAS Duchess from 28 June 1971 until 7 May 1972 (Exhibit A1). He stated that he was happy serving in HMAS Duchess and was accepted by the crew. During this period, Mr Debono travelled to the Far East. He recalled an incident where he woke up at night to find a sailor fondling Mr Debono’s genitals. Mr Debono did not actually see the person and did not report the incident. Mr Debono was not sure if he had told Dr L G Lambeth, Consultant Psychiatrist, or Dr K Lovric, Consultant Psychiatrist, about this incident or of any victimisation. There were many assaults happening between the members of the crew, Mr Debono stated. He noted that homosexuality was not permitted. Mr Debono did not see any medical staff about the incidents, as it was not the “done thing”.
13. From 7 May 1972 to 18 October 1972, Mr Debono served in HMAS Cerberus, undertaking a five month engineering course (Exhibit A1). There was trouble during this period, Mr Debono recalled, with Chief Stoker O’Halleron blaming him for a fire extinguisher being thrown in a window near the Chief Stoker. Chief Stoker O’Halleron warned Mr Debono that if he was ever on the same ship as Mr Debono, he would have him working 24 hours-a-day in the bilges. Mr Debono returned to HMAS Duchess for approximately five months and then was drafted to HMAS Vendetta in 1973, in the Engineering Division. Chief Stoker O’Halleron was there at that time and, Mr Debono stated, made Mr Debono’s life very difficult. Mr Debono found himself working in the bilges in HMAS Vendetta. Also present on Mr Debono’s Mess Deck was a violent, aggressive man from Thursday Island. Mr Debono had been assigned a cabin on shore that also housed “this Thursday Islander”. Mr Debono described this man regularly coming back to the cabin of an evening drunk and being very violent and aggressive. Because of that man’s violent tendencies, Mr Debono would try and ensure that he went to bed after that sailor was asleep. On one occasion, the sailor was very drunk and aggressive and demanded Mr Debono perform oral sex. He did not tell anyone at the time that when Mr Debono refused to perform oral sex, the sailor forced Mr Debono to masturbate him. After that incident, Mr Debono was so afraid and shocked that he left the cabin and slept in a car that night (T8, p36). Mr Debono was woken up the next morning by a jogger who had observed blood on Mr Debono’s face. Mr Debono thinks this occurred in May or June 1973.
14. Mr Debono stated that he had informed his psychiatrist, Dr Lambeth about the incident with the sailor from Thursday Island in addition to discussing it with Dr Lovric and Dr G Vickery, Psychiatrist. Mr De Bono stated that he was shocked to find that Dr Vickery had not mentioned this incident in his report dated 6 November 2001 (T5), particularly as it was to Dr Vickery that Mr Debono first revealed this long held secret. It was after speaking to Dr Vickery about the sexual assault upon him by the sailor from Thursday Island, that Mr Debono then informed his wife of what had happened back in 1973. He had been married for 25 years before he told his wife about this matter. Mr Debono had not told the Petty Officer or Chief Petty Officer, any naval medical officer, the naval police or his parents about this incident and had carried that secret with him all that time and yet, Dr Vickery did not report it.
(iii) Mr Debono stated that when he received Dr Vickery’s report; he broke out into a rash. Mr Debono could not believe what was said and not said in the report, particularly the fact that the two incidents of sexual assault he suffered were not mentioned. Consequently, Mr Debono’s application to the Department of Veterans’ Affairs for a Disability Pension had little weight because of Dr Vickery’s report. In Mr Debono’s opinion, Dr Vickery trivialised his life, making out that Mr Debono was simply bored with life.
(iv) In 1974, Mr Debono recalled travelling to the Far East again. Chief Stoker O’Halleran gave him work during this period on the bilge pump. It was common for Mr Debono to be called names such as “Worm” or “Rot” during this time. The Chief Stoker would not acknowledge Mr Debono. When at sea, Mr DeDono had a further clash with the Chief Stoker and explained to the Tribunal that he then became suicidal. Mr Debono spoke to the Engineering Officer and was taken off the watch and given day duties. Mr Debono stated that he was provided with antidepressant medication by the Medical Officer and that he took that for the remainder of the voyage.
(v) Mr Debono acknowledged reports by the ship’s doctor in HMAS Vendetta, that on 19 July 1974 (T3, p12), it was recorded that Mr Debono had presented with “marked withdrawal symptoms and depression”. Dr P Gill, recorded on 31 July 1974 (T3, pp12, 13), that Mr Debono described the threats he received and his fears of provocation and victimisation. Dr Gill noted “possible diagnosis of Anxiety Depression in a sailor who is ambitious and has potential” (T3, p13). Mr Debono stated that he was prescribed antidepressants after that consultation with Dr Gill, although he acknowledged that there is no record in Dr Gill’s clinical notes of any medication being prescribed. Mr Debono noted that after seeing Dr Gill, he was posted to HMAS Melbourne where he was much happier. He stated that he had no anxiety when posted to HMAS Melbourne and set his goals on engineering.
15. From July 1973 to September 1973, Mr Debono served in HMAS Vendetta (Exhibit A3). Mr Debono stated that he wanted to be a ship’s diver. He was sent to HMAS Penguin at Balmoral for training (T4, p 23). Mr Debono recalled that he took a dive to a depth of 90 feet on the second day of training. When diving, on one occasion, Mr Debono could not clear his eyes and experienced incredible pain in his ears. Mr Debono was taken into an adjoining chamber for decompression. Unfortunately the hatch was not closed. Undergoing decompression, caused blood to start to extrude from Mr Debono’s nose, ears and mouth. The hatch was then closed properly and Mr Debono was then decompressed. Subsequently, Mr Debono had a hearing test as there was constant ringing in his ears. Mr Debono did not continue the diving course but rejoined his ship after that incident.
16. When his ship returned from the Far East, Mr Debono consulted Dr P Gill, a psychiatrist with the Navy. Mr Debono did not tell Dr Gill about the assault by the sailor from Thursday Island, as he wanted to keep this private not only from the Navy, but his family. He did tell Dr Gill of the difficulty with Mr O’Halleron and, it appears from Dr Gill’s notes, of other smaller incidents of abuse such as humiliation and name calling (T3, pp12, 13). After consulting Dr Gill there was no follow-up or treatment with any medical officer. Mr Debono was transferred however from HMAS Vendetta on 2 October 1974.
(vi) After the Navy, Mr Debono obtained a trade certificate and then worked for approximately 12 months at BHP in Newcastle as a labourer. Mr Debono explained to the Tribunal that he recalls having his first panic attack in 1976, at BHP, when he became dizzy and had a very odd sensation of losing reality.
(vii) Mr Debono described a flight to England in about 1977 and of the tremendous discomfort and pain he experienced in his ears. In this regard, Mr De Bono noted that when the plane was taking off, he experienced great pain in his ears, similar to that which he experienced in the decompression chamber in 1973. Mr Debono described a tortuous flight with great pain every time he took off and landed. There were a number of legs during this flight from Australia to England and hence, Mr Debono experienced great pain on numerous occasions. When in England, he was prescribed “Stemetil”. In Mr Debono’s earlier life, he had been able to fly with no difficulty. Back in Australia, Mr Debono was prescribed “Librium”, “Tryptanol” and “Serepax”.
17. Mr Debono commenced work at an aluminium smelter in 1978 and obtained his Boilermaker’s Certificate. Mr Debono then experienced further panic attacks. He stated that he became addicted to “Serepax” as he was taking this medication each time he had a panic attack. His General Practitioner at the time, Dr I Waller, advised him to cease taking the medication “Serepax”. Mr Debono also consulted a Clinical Psychologist. Between 1986 and 1990, Mr Debono worked at Stockton Hospital as a boiler attendant but he reached a point, he informed the Tribunal, where he could no longer go to work due to his panic attacks. Mrs Debono then became the “breadwinner”. Mr Debono stayed at home and looked after his three daughters. In 2000, Mr Debono attempted once more to work at Stockton Hospital but only lasted four months. He stated that he became suicidal, his panic attacks returned and it was a necessity for him to cease work, which he did on 10 January 2001.
(viii) Referring to the report by Dr K Lovric, Mr Debono opined that she made out that Mr Debono had no psychiatric problems. Mr Debono stated that he found Dr Lovric to be very aggressive towards him during the course of his interview with her. Mr Debono told her about the fight he had when first in the Navy, but did not recall whether he told Dr Lovric that he was remorseful about the fight. Dr Lovric had not mentioned the difficulty he experienced with flying in 1977 and Mr Debono was sure that he told Dr Lovric about that, earlier in his naval career.
18. Currently, Mr Debono generally experiences one panic attack per day. He was admitted to the Stockland Clinic between 1983 and 1984, and believes that he was addicted to “Serepax” between 1977 and 1985. The Tribunal notes that Dr Lovric reported that Mr Debono was also on outpatient at the Stockland Clinic in 1987 (Exhibit R3). Mr Debono told the Tribunal that since leaving the Navy in 1976, he consumes, on average, two cans of beer every night. During his naval career, Mr Debono recalled consuming a moderately high amount of alcohol, usually greater than four cans of beer per day. He stated that he was a quiet person. Mr Debono is of the view that he does not have an alcohol problem. He is not on any continuous medication for any psychiatric condition. He has tried various types of medication in the past for his anxiety but stated that it makes him “shaky” and that he felt “very strange”. The only medication that Mr Debono currently takes is “Losec”, which is for his gastro-oesophagael problem.
19. Mr Debono has received treatment from Dr L Lambeth, monthly for the past 16 months. Dr Lambeth has recommended that Mr Debono take certain medication, but Mr Debono has declined this suggestion, due to the way the medication makes him feel. Mr Debono stated that he feels he can confide in Dr Lambeth. Dr Lambeth manages Mr Debono’s anxiety with relaxation exercises and counselling.
20. Mr Debono stated that in relation to the Navy Medical Discharge which he signed on 28 April 1976, he had reported that he had no current disabilities and had not suffered from any disabilities during service, or aggravation of disabilities by service, simply because he wanted to get out of the Navy and felt he was under pressure to just sign the document (T3, p10, Q 7, 8, 9). Mr Debono was at HMAS Penguin during that time. On a Medical Examination Record dated 28 April 1976 (T3, p 11), Mr Debono was assessed as “Category One”, which means fit for service. Mr Debono wanted a voluntary discharge.
21. Mr Debono stated that when he is in confined spaces, he is fearful but did not tell anyone in the Navy because one is not given the opportunity to avoid confined spaces. Mr Debono noted that he had not mentioned his suicidal tendencies to Dr Lambeth during consultation with him. Mr Debono currently sleeps three hours per night. He tries to return to sleep, most often, unsuccessfully. Mr Debono is scared of the dark and associates this with the threat of the sailor from Thursday Island. Mr Debono sleeps with the light on.
evidence of dr k lovric, consultant psychiatrist
22. Dr Lovric provided a report dated 17 January 2003 (Exhibit R3) and also provided oral evidence to the Tribunal. Dr Lovric noted that she assessed Mr Debono on 17 January 2003 for approximately one hour. In her report, Dr Lovric opined that Mr Debono probably exaggerated some of his symptoms and certainly did not appear to be distressed or anxious during her examination of him. Dr Lovric noted that Mr Debono has been experiencing panic attacks every day continuing for a considerable period of time. She noted that panic attacks over such a sustained period are extremely uncommon. Dr Lovric also noted that Mr Debono is able to travel each day on buses on his own, drive, undertake household tasks, and attend markets, but is unable to sustain employment or leave the house after dark. It did not seem to Dr Lovric, that Mr Debono was suffering from a significant depression. She noted that there have been no appetite or weight changes in Mr Debono. Dr Lovric noted that Mr Debono has a sleep disturbance but that is largely because of tinnitus.
23. Dr Lovric opined that although the incidents described by Mr Debono could be considered anxiety provoking, panic disorder is generally not associated with any “triggering incidents” and is usually thought of as a constitutional condition which generally occurs from early adulthood and is not related to any particular psycho-social stressor. Furthermore, Dr Lovric noted that Mr Debono did not experience the panic disorder symptoms in any great proximity to the time in which he alleges the incidents occurred in 1973, with his first panic attack occurring in 1976.
24. Dr Lovric noted that Mr Debono has had a number of substance abuse problems consisting of alcohol and benzodiazepine abuse. It is highly likely, Dr Lovric suggested, that these abuse problems have contributed to the anxiety about which Mr Debono has complained for the last 12 years. Dr Lovric understood that Mr Debono had recently addressed his alcohol problem which has probably also contributed to the development of gastric ulcers. Mr Debono told Dr Lovric he had ceased all benzodiazepine use.
25. Dr Lovric explained that panic attacks can be treated with a combination of “serotonin re-uptake inhibitor” medication in the first instance along with cognitive behavioural therapy. Dr Lovric opined that Mr Debono had not had an adequate trial of cognitive behavioural therapy in the past and would probably benefit from this in the future.
26. Dr Lovric concluded in her report that Mr Debono is suffering from symptoms of panic disorder, if his account of the symptomatology is taken at face value. Panic disorder is not related to Mr Debono’s naval service, Dr Lovric further commented. Neither did Dr Lovric consider that Mr Debono is suffering from major anxiety disorder, major depressive disorder or post traumatic stress disorder. In terms of an assessment from Chapter Four of the “Guide to the Assessment of Rates of Veterans’ Pensions” (“the Guide”), Dr Lovric considered that Mr Debono’s panic disorder should be assessed with a rating of 17 points.
27. Dr Lovric believed that Mr Debono’s symptoms would satisfy the relevant Statement of Principles concerning Panic Disorder, in that he experiences both recurrent unexpected panic attacks and has probably experienced at least four panic attacks in four weeks. It seemed unlikely to Dr Lovric, however, that Mr Debono would satisfy the factor of the relevant Statement of Principles, in relation to experiencing a stressor, as she did not recognise the stressors that Mr Debono described, as those which would include threat of serious injury or death; engagement with the enemy or witnessing casualties; participation or observation of casualty clearance; atrocities; or, abusive violence. Furthermore, Dr Lovric wondered whether the period between the stressors of which Mr Debono complained and the development of panic symptoms was, in fact, within two years. Dr Lovric further concluded that Mr Debono is able, on a daily basis, to perform most of the activities of daily living as well as assist in household duties. Dr Lovric did not consider that Mr Debono’s psychiatric symptoms were so incapacitating as to prevent him from working. At Hearing, Dr Lovric stated that she did not consider that Mr Debono has generalised anxiety disorder. For such a diagnosis to be made, the person needs to experience an excessive amount of worry. Dr Lovric agreed that people with generalised anxiety disorder may experience panic attacks. She noted that from 1986, Mr Debono has suffered discrete episodes of panic disorder which lasted eight hours. Dr Lovric confirmed that the first panic attack occurred in 1976 at BHP, after Mr Debono’s naval career had come to an end.
28. Dr Lovric noted that when Mr Debono was in the Navy, he did not tell anyone about certain incidents, such as when he was threatened by the Thursday Island sailor, or about waking up to find another sailor fondling his genitals. He did not seek help until more recently by consulting Dr Lambeth. In relation to Dr Gill’s consultation with Mr Debono in 1974 while he was in the Navy, Dr Lovric opined that Dr Gill did not make a final diagnosis.
(ix) Dr Lovric did not consider that Mr Debono had a situation reaction, as noted by Dr Gill, which is an antiquated term for an adjustment disorder, Dr Lovric explained. Dr Lovric believed that Dr Gill did not think there was a psychiatric condition present. Just because Mr Debono experienced a difficult situation, that did not mean that he had an adjustment disorder or a psychiatric condition, Dr Lovric further opined. Mr Debono had discussed with Dr Lovric the incident with the sailor from Thursday Island, she stated, but did not discuss the incident with anyone else at the relevant time.
29. In terms of alcohol consumption, Dr Lovric’s handwritten notes indicated that Mr Debono told her that he consumed half a bottle of vodka each day as opposed to the quarter bottle of alcohol he had reported to the Tribunal. Dr Lovric had also recorded that Mr Debono drank 20 or 30 grams of alcohol per day whilst in the Navy. Dr Lovric stated that half a bottle of alcohol consumed per day is a dangerous amount and could lead to panic attacks.
(x) Dr Lovric believes that the distressing incidents described by Mr Debono, which occurred while he was in the Navy are true. She noted that she has examined a number of military people before. Mr Debono had informed Dr Lovric that he was suicidal, but she did not believe that he had told his general practitioner or Dr Gill of his suicidal feelings. Dr Lovric was surprised that Mr Debono told her that he spent his days in shopping centres, particularly given his condition of panic disorder. Dr Lovric stated that Mr Debono had not presented to her as a person exhibiting excessive worry or anxiety, as reported by Dr Lambeth. She stated that although her interview occurred only over one hour, it was possible to make a diagnosis during that time.
30. In considering the DSM-IV diagnostic criteria for generalised anxiety, firstly Dr Lovric stated that the level of Mr Debono’s worry does not equate to that of generalised anxiety disorder. In relation to Diagnostic Criteria C, Dr Lovric opined that Mr Debono does report difficulty with sleeping and feeling restless but this meant that he only satisfied two of the categories, when he needed to satisfy at least three categories. In relation to Diagnostic Criteria E, while Dr Lovric agreed that Mr Debono satisfies those criteria, she believed that it is as a result of panic disorder and not generalised anxiety disorder. Dr Lovric did not consider that Mr Debono would meet factors 5 (a); (i); (ii); (iii); (iv); and (v), in relation to the relevant Statement of Principles for Anxiety Disorder and also, did not consider the symptoms of anxiety developed within one year of any severe psycho-social stressor.
evidence of dr l g lambeth, consultant psychiatrist
31. The Tribunal had the benefit of a number of reports by Dr Lambeth: 11 July 2002 (T10); 4 March 2003 (Exhibit A3); 24 April 2003 (Exhibit A2). Dr Lambeth has been treating Mr Debono since May 2000 and has consultations with him regularly including on 30 May 2002; 4 July 2002; 6 August 2002; 4 September 2002; 2 October 2002; 30 October 2002; 20 November 2002; 26 February 2003 and 3 March 2003.
32. In his first report, Dr Lambeth noted several important incidents in Mr Debono’s naval career: the barotrauma to Mr Debono’s ears in 1973; being a victim of sexual molestation by another sailor in 1973; and, difficulties with the Chief Stoker. Dr Lambeth was of the view that Dr Gill did diagnose Mr Debono as suffering from anxiety and depression when referred to him in 1974. Dr Lambeth’s initial diagnosis was “panic disorder with a generalised anxiety disorder and strong depressive component”. Dr Lambeth saw the psychiatric conditions as being causally related to Mr Debono’s naval career. Furthermore, it is Dr Lambeth’s opinion that Mr Debono requires further treatment and as at 11 July 2002, the medication “Citaloprano” along with relaxation and slow breathing techniques and cognitive behavioural techniques which are aimed at improving his self image (T10).
33. On 4 March 2003, Dr Lambeth restated his opinion that Mr Debono suffers from generalised anxiety disorder and panic disorder related to incidents in the Navy of the barotrauma in 1973. Dr Lambeth also noted an incident when Mr Debono was 16 years old, as a naval recruit, when he was made to fight another sailor resulting in him punching his opponent in the head. Dr Lambeth noted that Mr Debono thought he may have killed the man and that he would be charged with murder. Dr Lambeth also noted that in HMAS Vendetta, Mr Debono was victimised by his instructor over an 18 month period because this instructor thought Mr Debono had attempted to assault him. Dr Lambeth also noted another incident when Mr Debono was 19 years old and was allocated quarters with a sailor from Thursday Island who was violent, aggressive and had demanded oral sex from Mr Debono. Upon refusal, Dr Lambeth noted that Mr Debono was forced to masturbate the sailor. Dr Lambeth noted that Mr Debono kept this to himself until he told Dr Vickery about the incident 2001.
34. Dr Lambeth noted further that Mr Debono was diagnosed with panic attacks in, he believed, 1977. To this end Dr Lambeth made reference to naval documents in 1974, which record symptoms of withdrawal; depression; insomnia; poor concentration; fearfulness and inability to sleep. Dr Gill at that time, in Dr Lambeth’s view, provisionally diagnosed anxiety and depression.
35. Dr Lambeth described Mr Debono as presenting as “anxious, fearful, and with an extraordinarily negative view of himself with the world”, during the whole of the time Dr Lambeth has been treating him. There is no doubt in Dr Lambeth’s mind that Mr Debono is anxious, with a strong depressive component, in spite of being treated at that time with 30mg of Citaloprano daily.
36. It is Dr Lambeth’s view that barotrauma is an extremely important incident in relation to the causation of anxiety, followed by the homosexual assault by the sailor from Thursday Island. Dr Lambeth commented that it is well known that amongst young people, homosexual assault causes extreme symptomatology. Once an attack of a homosexual nature occurs, a young person may decompensate into a very severe disorder, which is what Dr Lambeth opined has happened with Mr Debono. Dr Lambeth noted that he urged Mr Debono to apply for recognition by the Department of Veterans’ Affairs of his psychiatric disorders.
(xi) Dr Lambeth stated that the aim of his treatment for Mr Debono, is to help him reach a realistic and reasonable lifestyle where he is not too afraid in shopping centres and is able to mix with people. Dr Lambeth found it difficult to reconcile Dr Lovric’s opinion that Mr Debono would satisfy a diagnosis of panic disorder under DSM-IV, but then states that the Applicant was not suffering from panic disorder.
37. In relation to what constitutes a severe stressor, Dr Lambeth noted:
“It would seem to me that the operative principle should be the patient’s perception of a stressor. The question, in my opinion, is not whether I believe this was a severe stressor, but whether Mr De Bono believed it was a severe stressor. I, in fact, believe that there have been judgements made in the Administrative Appeals Tribunal, or at the Federal Court, which do take into consideration the patient’s perception, rather than applying a purely objective test.” (Exhibit A2)
evidence of dr g vickery, consultant psychiatrist
38. The Tribunal had two reports from Dr Vickery dated 6 November 2001 (T5), and 11 December 2001 (T7). Dr Vickery reported on the fight between Mr Debono and another sailor where that other sailor was concussed and Mr Debono worried about being charged with an offence. Mr Debono was also worried that he had caused the sailor’s epilepsy, which Mr Debono later found out about. Dr Vickery reported about Mr Debono waking up to find another sailor fondling his genitals. Dr Vickery further reported that Mr Debono was never beaten up in the Navy but had been involved in altercations.
39. Dr Vickery noted that prior to his discharge, Mr Debono was serving in HMAS Penguin, operating the decompression chamber. There were reports, Dr Vickery noted, of pain and dizziness when Mr Debono flew to England in 1977, and his fear at the time that he may have had a brain tumour. Dr Vickery noted that Mr Debono experienced anxiety and feelings of unreality in 1978, when he was taking a large amount of sedatives. Dr Vickery reported that Mr Debono withdrew from using benzodiazepine in about 1982.
40. Dr Vickery concluded that there was no evidence of clinical anxiety; major depressive disorder; paranoia; thought disorder; hallucinations; delusional thinking or cognitive impairment. There was no display, in Dr Vickery’s opinion, of clinically significant psycho-pathology, psychiatric impairment or sequelae resulting from Mr Debono’s naval service. Dr Vickery further opined that Mr Debono displayed strong obsessional personality traits. Such traits can contribute towards: withdrawal; difficulty in maintaining relationships; intolerance; irritability and, a general dissatisfaction with one’s life. It is also evident that these people maintain a grudge against perceived negative factors or influences in their life experience, which often results in the misattribution of blame in order to compensate for their own inadequacies or lack of achievement. Dr Vickery concluded that SSRI anti-depressant medication could be useful in the treatment of Mr Debono’s obsessiveness and his vulnerability to dysthymia is associated with a general dissatisfaction with his life, due to his inability to gain meaningful employment. Dr Vickery concluded that Mr Debono appeared to have adapted reasonably well to household chores which he fulfilled capably, without any sense of fulfilment.
consideration and findings
41. The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the submissions, the legislation and case law. We find that although there were some gaps and inconsistencies in Mr Debono’s evidence, we believe this can be explained because of the passing of time and the dimming of memories. Such a consideration is consistent with the intention provided in section 119 of the Act. On balance therefore, we find that Mr Debono’s evidence is accepted by the Tribunal, also noting that Dr Lovric and Dr Lambeth believed Mr Debono.
42. The task for the Tribunal in this matter is firstly to establish the diagnosis of mental condition claimed to be suffered by Mr Debono, pursuant to subsection 120 (4) of the Act. Any condition found to exist, must then be examined with the intention of determining whether or not there is a causal relationship between that correctly diagnosed condition and Mr Debono’s service. This task is again undertaken by the Tribunal, applying subsection 120 (4) of the Act.
43. There have been a number of suggestions made to the Tribunal as to what, if any, psychiatric condition Mr Debono may be suffering from. Thus, the material notes situational reaction (adjustment disorder), as noted by Dr P Gill in 1974. Dr Lovric opines that Mr Debono suffers from panic disorder, as does Dr Lambeth, however Dr Lambeth considers that Mr Debono also suffers from generalised anxiety disorder with strong depressive components.
44. The Tribunal is reasonably satisfied that a diagnosis of panic disorder can be made out based on the available evidence, as was confirmed by Dr Lovric’s and Dr Lambeth’s expert opinions. The evidence also suggests that the onset of this condition did not occur until Mr Debono had been discharged from the Navy and was working at BHP in 1976.
45. When considering the relevant Statement of Principles concerning Panic Disorder, Instrument Number 10 of 1999. as amended by Instrument Number 59 of 1999. Factor 5(a) of this Instrument, requires experiencing a severe stressor within two years immediately before the clinical onset of panic disorder. As Mr Davis conceded during the Hearing, there was no severe stressor experienced during the Navy within the two years immediately before the onset of panic disorder. We agree with this concession and the Respondent’s submission that although there is a condition of panic disorder, it is not causally related to Mr Debono’s naval service, as he does not meet the relevant Factor 5(a) in the Statement of Principles concerning Panic Disorder. The Tribunal’s finding on this point is confirmed, having referred to the principles concerning the onset of a condition laid down in Re Robertson andRepatriation Commission (1998) AATA 127; Repatriation Commission v Cornelius [2002] SCA 750; and Lees v Repatriation Commission [2002] FCAF 398. We find that while a condition of panic disorder is made out, given the onset of panic disorder in 1976, there is no severe stressor as defined which makes Factor Five (a) of the relevant Statement of Principles concerning panic disorder.
46. In relation to the diagnosis of adjustment disorder, the Tribunal agrees with Dr Lovric’s opinion in relation to Mr Debono’s situational reaction, as diagnosed by Dr Gill on 31 July 1974 (T3, p13). Dr Gill noted at that time that Mr Debono’s symptoms were of fearfulness, inability to sleep and symptoms on referral of “marked withdrawal symptoms and depression. He was lethargic, anorexic, insomniac and had marked decrease in concentration” (T3, p12). Dr Gill reported Mr Debono’s noting of numerous incidents of “small abuse”, humiliation and name calling. Dr Gill diagnosed a situational reaction in a passive-dependent personality. Dr Gill further noted a possibility of decreased efficiency, as well as possible anxiety and depression, and recommended that Mr Debono be drafted to another ship. It is the Tribunal’s view that whilst a diagnosis of adjustment disorder could be made out at that time, it was temporary, as is envisaged by the DSM-IV Diagnostic Criteria.
(xii) The Tribunal considers that the more significant psychiatric diagnosis, which must be examined, appears to be that of generalised anxiety disorder. The Tribunal looked to the Diagnostic Criteria from DSM-IV, which are mirrored in the relevant Statement of Principles, that being Instrument Number 2 of 2000, concerning Anxiety Disorder. For generalised anxiety disorder, the Tribunal is of the opinion that, on the accepted evidence of Mr Debono, that from about 1974, after experiencing the barotrauma in 1973, Mr Debono was suffering from anxiety and worry about events and activities on more days than not for at least six months (Criteria A). Mr Debono found and continues to find it difficult to control the worry (Criteria B) and in relation to Criteria C, Mr Debono is restless, keyed-up and finds it difficult to concentrate and sleep. It is the Tribunal’s view that the focus of Mr Debono’s anxiety and worry is not confined to the features of any other Axis I Disorder (Criteria D). It is also accepted that the anxiety and worry did cause clinically significant disruption to Mr Debono’s work, as well as his relationships and social functioning (Criteria E). While Dr Lovric considered that Mr Debono did meet Criteria E, it was her view that this was in relation to the possible diagnosis of panic disorder and not that of generalised anxiety disorder. In this instance, the Tribunal prefers the opinion of Dr Lambeth, Mr Debono’s treating psychiatrist, in combination with the evidence provided by Mr Debono as it provides a more comprehensive assessment of all of Mr Debono’s circumstances, particularly from the perspective of a long-standing treating Psychiatrist. Finally, it is found that the anxiety experienced by Mr Debono is not due to the direct physiological effects of substance abuse. While there is evidence of heavy alcohol consumption and previous benzodiazepine abuse, no firm diagnosis of alcohol abuse or dependence has been made apparent to the Tribunal. Thus the tribunal is reasonably satisfied that Mr Debono’s psychiatric condition is best described by a diagnosis of generalised anxiety disorder.
47. Furthermore, the Tribunal considers that the date of onset of generalised anxiety disorder by 1974, is confirmed when reference is made to Dr Gill’s report of 31 July 1974. While there is no firm diagnosis of anxiety at that time, Mr Debono is reported to be experiencing symptoms of generalised anxiety and by that stage, in a vulnerable individual, is also experiencing a situational reaction, which we consider to be part of the overall condition of anxiety disorder, as noted by Dr Lovric. Thus, pursuant to subsection 120 (4) of the Act, we are reasonably satisfied that by 1974, Mr Debono was suffering from a generalised anxiety disorder.
48. As the Tribunal is satisfied that Mr Debono suffers from a generalised anxiety disorder, it must now turn to the question of whether such a condition is, on the balance of probabilities, service-related. Factor 5(a)(i) of the relevant Statement of Principles concerning anxiety disorder requires that a person experience a severe psychosocial stressor within one year immediately before the clinical onset of anxiety disorder. “Severe psychosocial stressor” is defined as:
“
…an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, deep or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems, or legal problems;”
49. In 1973, Mr Debono was undertaking a diving course in HMAS Penguin at Balmoral. An incident occurred in which Mr Debono experienced a barotrauma. He was fearful for his life, had blood extruding from his ears and nose and described being terrified as a result. The Respondent contends that this exposure, while undoubtedly occurring, was not distressing in the psychological sense “but only in a physical and medical way [in that he Mr Debono experienced genuine physical injury with accompanying pain]”. That submission put by Mr Ryan, precisely fits the definition for a severe psychosocial stressor in that, in Mr Debono’s case, he experienced a serious injury and his perception of it was one of danger and fear. In Woodward v Repatriation Commission [2003] FCA FC 160, at paragraph 78, the full Federal Court noted that:
“
…it was accepted that for the purpose of the relevant SoPs the “experience” had to be based on an “event”. It is also accepted that a figment of the imagination, such as might arise through “paranoid ideation”, would not be sufficient to meet this requirement.”
50. The Tribunal notes that in Stoddart v Repatriation Commission [2003] FCA 334, Mansfield J was of the view that in relation to the experience of experiencing a severe stressor, in the context of Statements of Principles for post traumatic stress disorder and alcohol dependence and abuse, that such matters must be judged objectively. That being from the point of view of a reasonable person, in the position of an Applicant experiencing it, whether that event is capable of conveying and did convey the risk of death or serious injury. In other words, Mansfield J was noting that “experiencing” should be construed as at least having a partially subjective connotation.
51. We consider that the barotrauma was an objectively identifiable occurrence, which invoked subjective feelings on all of the evidence, of excessive distress in Mr Debono in that he perceived that he was seriously injured. He was experiencing blood extruding from his nose and ears, he was fearful for his physical wellbeing. That another sailor might not have had such a reaction is of no relevance in determining this matter, particularly as we note his attendance on Dr Gill later and Dr Gill’s assessment of anxiety and depression in a vulnerable dependent personality.
52. Earlier events or incidents in the Navy referred to by Mr Debono are not capable, in the matters before this Tribunal of indicating a service relationship, as they occurred prior to Mr Debono’s eligible service. Whilst it may be possible that previous events may have primed Mr Debono for his eventual reaction to the barotrauma, the Tribunal is not at liberty to speculate on the matter. It is sufficient, on the evidence before the Tribunal and in applying the relevant legislation, to conclude that there is a causal relationship between the barotrauma suffered in 1973 in service, and the onset of Mr Debono’s generalised anxiety disorder by 1974.
53. The Tribunal is satisfied accordingly, that pursuant to subsection 120 (4) of the Act, that Mr Debono has a condition of generalised anxiety disorder which had its onset by 1974 and arose out of a severe psychosocial stressor in 1973, of the barotrauma. Thus, Mr Debono has a defence-caused condition of generalised anxiety disorder with effect from 11 June 2001.
54. For all of the reasons set out above and in all of the circumstances, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is set aside and in substitution therefor the Tribunal decides that:
(i) Mr Debono has a defence-caused condition of generalised anxiety disorder with effect from 11 June 2001;
(ii) The assessment of Mr Debono’s Disability Pension is remitted to the Repatriation Commission including his newly accepted condition of generalised anxiety disorder.
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: Linda Blue.....................................................
AssociateDates of Hearing 5 September 2003 and 8 December 2003.
Date of Decision June 2004
Solicitor for the Applicant Mr R Davis, Advocate, Returned and Services League, Australia
Solicitor for the Respondent Mr M Ryan, Departmental Advocate.
schedule 1
Exhibit Number Description Date A1 “Table of Events” submitted by Francis Debono under cover of letter from the Returned Services League 3 September 2003 A2 Report by Dr L Lambeth, Consultant Psychiatrist 24 April 2003 A3 Report by Dr L Lambeth, Consultant Psychiatrist 4 March 2003 A4 Curriculum Vitae of Dr Lambeth, Consultant Psychiatrist undated A5 Trade Certificate concerning Francis Debono and Certificate of Service from Department of Defence 12 October 1976 R1 Employment Records of Mr Francis Debono from the Stockton Centre 11 October 2000 to 10 January 2001 R2 Copy of Clinical Notes of Dr C Eastham 15 July 2003 R3 Report by Dr K Lovric, Consultant Psychiatrist 17 January 2003 R4 Records from Department of Ageing, Disability and Home Care 3 September 2003 R5 Outpatient Record concerning Mr Debono 8 December 1970
0
2
0