Deshon and Comcare - [2000] AATA 614

DECISION AND REASONS FOR DECISION [2000] AATA 614

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1998/1041

GENERAL ADMINISTRATIVE DIVISION          )
           Re      ROGER EDWARD DESHON
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member) Capt E T Keane OAM RAN Rtd (Member) Dr J M Lawrence AM (Member)

Date27 July 2000
PlaceBrisbane

Decision The decision under review is affirmed.

Decision No. (Sgd) K L Beddoe
Senior Member
CATCHWORDS
COMPENSATION : Incapacity payments – "contributed to in a material degree" – Anxiety Neurosis – Generalised Anxiety Disorder – Personality Disorder – Adjustment Disorder – Depression
Safety Rehabilitation and Compensation Act 1988 – s4, s14
Veterans' Entitlements Act 1986 – s24

REASONS FOR DECISION

Mr K L Beddoe (Senior Member)
Capt E T Keane OAM RAN Rtd (Member)
Dr J M Lawrence AM (Member)

The applicant seeks review of a decision of the respondent Comcare which affirmed a decision by which it was determined to cease further liability for compensation for incapacity due to the applicant suffering anxiety neurosis.
Section 14 of the Safety Rehabilitation and Compensation Act 1988 ("the Act") provides for payment of compensation for an injury suffered by an employee if the injury results in incapacity for work.
"Injury" is defined in section 4 of the Act to include a disease suffered by an employee. Disease is also defined in section 4 to mean any ailment suffered by an employee or the aggravation of any such ailment that was contributed to in a material degree by employment by the Commonwealth.
At the hearing Mr Harding appeared for the applicant and Miss Ford appeared for the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and further documents were tendered and marked as exhibits. Oral evidence was given by the applicant, Dr Hogan, Dr Chalk and Dr Byth.
The applicant lodged a claim for compensation in September 1993 in respect of "Nervous Breakdown (Service) and ongoing conditions" (T3). At the time he was 39 years of age. By determination dated 15 November 1995 (T26) the respondent accepted that the applicant suffered an acceleration of anxiety neurosis for which the Commonwealth was liable. By determination dated 27 July 1998 the respondent determined that liability had ceased (T37).
The applicant joined the Royal Australian Air Force (R.A.A.F.) in October 1976 after ceasing employment with the Queensland Police Force. In joining the R.A.A.F. the applicant was seeking to join the Police mustering but this request was refused. He was, however, led to believe that he would be considered for transfer to the R.A.A.F. Police in the future. He accepted an offer of recruitment to the R.A.A.F. Airfield Defence Guard. We accept that the applicant accepted this offer on his understanding that it could lead to a transfer to the R.A.A.F. Police.
However, the applicant failed the Airfield Defence Guard course and was suspended because of "insufficient practical ability" (Exhibit 4). The applicant then sought remuster as a Clerk but failed in this bid because of a lack of book-keeping knowledge (Exhibit 4). He was then remustered as a General Hand, a mustering with which the applicant was clearly unhappy (Exhibit A).
The applicant said that he was told that he would not get a transfer to the R.A.A.F. Police as long as a named squadron leader had any influence in relation to the R.A.A.F. Police. Whether there was any basis in fact for this allegation we do not know. We do know and find that the applicant was unsuccessful with subsequent applications to be remustered to the R.A.A.F. Police.
On 13 October 1981 the applicant accepted re-engagement in the R.A.A.F. for a further three years from 11 October 1982. He did so because the birth of a child was imminent and he was concerned to maintain employment.
By September 1982 the applicant's Commanding Officer had made an adverse performance report in relation to the applicant and recommended transfer to another squadron for further evaluation.
On 6 October 1982 the applicant applied for discharge from the R.A.A.F. with the intention of taking up employment with the Australian Federal Police. Discharge was refused.
The applicant was discharged from the R.A.A.F. on 30 June 1983 on the grounds that he was incompatible for service life ("ISL"). He resisted the order for discharge and sought to have the reason for discharge changed to a medical discharge. Both applications were refused.
Following discharge the applicant was unemployed but eventually obtained employment as a security officer and then as a hospital orderly. He made applications for employment with the Victoria Police and the Queensland Police Service. Those applications were unsuccessful. Following discharge from the R.A.A.F. the applicant seems to have done little in the workforce until he became a security officer at World Expo 1988. He eventually became a MSS security guard. He suffered a back injury while employed as a hospital orderly.
The applicant says that following his discharge from the R.A.A.F. his marriage broke down and he subsequently went through "severe family court problems regarding access and maintenance payments" (Exhibit A).
On 7 April 1990 the applicant completed a medical questionnaire in relation to his application to rejoin the Queensland Police Force (Exhibit 5). He acknowledged a number of medical conditions including the following conditions for which he provided the explanations set out against the conditions as follows:
(a) Elevated blood pressure (b) Nervousness (c) Depression } } said to be due to stress through } marital problems (under control); }
(d) Nervous condition (e) Anxiety (f) Stress or stress related disorders } } worries over children (access } arrangements etc.) and non } essential (not debt) financial matters }

While the applicant did not deny it, he was evasive when it was put to him that he attended for medical examination in February 1977 complaining of lack of energy, nervousness, nail biting and sleeping a lot. The clinical notes show that the applicant said he was asked to resign from the Queensland Police because he was "temperamentally unsuitable". The symptoms were said to have been present for two years. He was referred to Mr Bougers, Psychologist.
The material satisfies us that the applicant did not perform his duties in the R.A.A.F. to a satisfactory level of efficiency, a fact acknowledged by the applicant. The applicant says that his lack of efficiency was caused by his general anxiety. Whether that is an appropriate diagnosis is a matter for specialist opinion, but in observing and listening to the applicant giving his evidence we formed the impression that a significant contributing factor was the failure to obtain a posting in the R.A.A.F. Police, which in turn aggravated the earlier dissatisfaction with being asked to resign from the Queensland Police Service apparently because of his rigid authoritarian approach to law enforcement. That impression is corroborated, in our view, by the applicant lodging a redress of grievance with the Chief of the Air Force based on his proposition that his resignation from the Queensland Police was being held against him in the R.A.A.F. thereby preventing his transfer to the R.A.A.F. Police.
Having heard the applicant give his oral evidence we are satisfied that he was dissatisfied with the fact of being required to resign from the Queensland Police Force. This dissatisfaction was exacerbated by not obtaining a position with the R.A.A.F. Police. It is clear to us and we find that the applicant initially joined the R.A.A.F. with a view only to being mustered in the R.A.A.F. Police.
The Medical Evidence
While the applicant had a medical examination on recruitment to the R.A.A.F. which found he was "Class 1", he developed a medical history in 1977 and 1978 suggesting psychological distress (T4).
Document T5 is a copy of a psychological report dated 27 July 1978 by Mr Bougers, Senior Psychologist, we infer with the R.A.A.F. Mr Bougers said the applicant was experiencing a state of anxiety and depression which the applicant attributed to being asked to resign from the Queensland Police Force, with subsequent refusal of re-entry, and his fiancee breaking their engagement. Mr Bougers prescribed relaxation training.
In July 1978 a R.A.A.F. Medical Officer at Amberley had seen the applicant on successive days as an in-patient at the Amberley Base Medical Flight and diagnosed "Anxiety Neurosis". Hence the referral to the Psychologist.
In early 1982 the applicant was referred by the Senior Medical Officer, R.A.A.F. Fairbairn, to Dr Merrifield, a psychiatrist. Dr Merrifield reported "I see a pretty disturbed personality in a man in whom it obviously has been recognised in that (sic) this is so in the Service because he has been rejected repeatedly for Air Force Police duties;….".
A further report by a R.A.A.F. Psychologist dated 31 May 1982 said that the applicant showed a substantial degree of emotional instability, shyness, anxiety and tension with low tolerance of stress (T7). Counselling in personal behaviour at that time appears to have had little impact because the applicant was referred in August 1982 for further psychological assessment as to compatibility for service life (T8).
Further referral to a psychologist took place on 14 January 1983 (Exhibit E) where Mr Elliott noted that behaviour modification and assertiveness training could be helpful.
Interviews with R.A.A.F. Psychologists came to a head with the report by Dr Lowe which is undated (Exhibit F). That report recommended discharge due to incompatibility with service life.
Documents T9 to T12 include copies of reports by Dr White, Psychiatrist, dated respectively 1 December 1994, 22 May 1995, 14 January 1996, 15 January 1996 and 17 January 1996. Dr White diagnosed chronic generalised anxiety disorder with related mild chronic secondary depression. Dr White said that the issue of personality was significant with the psychological assessments made by the R.A.A.F. indicating a pattern of personality function sufficient to make a diagnosis of personality disorder (T9). He was of the opinion that there was generalised anxiety disorder, which had been present for a number of years from during R.A.A.F. service. For the purposes of the Veterans' Entitlements Act 1986, Dr White assessed the impairment at 45 being, we infer from Table 4.1.1. of GARP 4, an assessment of severe personality disfunction and depression. It seems that Dr White's report of 1 December 1994 was at least part of the basis for the Repatriation Commission granting the applicant a special rate disability pension. Dr White made it clear in his reports that he thought it more likely than not that the diagnosed condition had its beginning in the circumstances of the applicant's service with the R.A.A.F.
Document T14 is a report by the applicant's then general practitioner, Dr Vett, dated 13 November 1997. That report describes physical problems including a disc prolapse and cardio-vascular problems. Dr Vett refrains from expressing any view about the applicant's "mental condition" although he was invited to comment on the "episode of anxiety neurosis".
Exhibit B is a copy of a medico-legal report by Dr Hargreaves, Consultant Psychiatrist, dated 26 September 1999 and addressed to the applicant's solicitors. Dr Hargreaves sets out a history which is generally consistent with the evidence before us. He also reviewed the earlier medical opinions of Dr White, Dr Hogan and Dr Chalk.
Dr Hargreaves expresses his opinion as being that the applicant has chronic Generalised Anxiety Disorder which had its onset in 1977 and was contributed to by personality vulnerability and service stressors. He opines that military service was a contributing factor, with other non-military contributing factors, to the diagnosed condition. He also notes chronic episodes of depression. The report is however argumentative in some aspects as to the Commonwealth's liability.
Document T16 is a report addressed to the respondent by Dr Hogan, a psychiatrist, and dated 30 August 1998. Dr Hogan is the treating psychiatrist. He opines that the applicant's condition is not one of Adjustment Disorder and is correctly diagnosed as Generalised Anxiety Disorder. Dr Hogan found features of personality disfunction which may have contributed to the onset of the Anxiety Disorder. In his oral evidence Dr Hogan said that he sees the applicant on a regular basis, sometimes weekly, and was satisfied the applicant suffers Generalised Anxiety Disorder and major Depression. Dr Hogan was evasive in some of his answers in cross-examination and was unable to say what the triggers for the diagnosed condition were in this case. He said the condition was now a life long chronic condition with the risk of recurrent depression. He agreed the causes of the condition were multifactorial with ongoing sensitising events, such as marriage breakdown acrimony and hostility. He was unsure whether the diagnosis in T7 by Mr Elliott in 1982 was a diagnosis of a psychiatric condition saying it would depend upon the context.
Exhibit 7 is a medico-legal report by Dr Byth, Psychiatrist, addressed to the respondent's solicitor and dated 25 November 1999. Dr Byth sets out a history not inconsistent with the material before the Tribunal albeit that there are obvious errors with dates and a name. He found severe Personality Disorder with obsessive compulsive personality traits, Generalised Anxiety Disorder and Major Depressive Episode. He also opined that the applicant suffered a temporary period of anxiety and depression in 1977 related to his unhappiness with the type of work available to him in the R.A.A.F. and would have qualified for the diagnosis of Adjustment Disorder with anxious and depressed moods for a few months around this time. He considered on going symptoms after discharge from the R.A.A.F. were caused by the Personality Disorder and the applicant's difficulty in coping with marital and financial problems, the R.A.A.F. service no longer a material contributing factor. His Personality Disorder was not caused by the R.A.A.F. service and his current incapacity was not caused or aggravated by the R.A.A.F. service.
In so far as the applicant suffered an adjustment disorder in 1977 it arose as an interaction between the Personality Disorder and the military service and was in remission after 1977. In oral evidence Dr Byth said that the adjustment disorder was only temporary as is shown by the fact of signing on with the R.A.A.F. for a further term of service. He was willing to remain in the R.A.A.F. The Adjustment Disorder has been in remission because the circumstances causing it have been removed.
Documents T15 and T17 are copies of a medico-legal report dated 15 July 1998 and a supplementary report dated 8 October 1998 by Dr Chalk, Psychiatrist, and addressed to the respondent's delegate. Document T15 includes a copy of a report made by Dr Chalk to the Department of Veterans' Affairs dated 23 February 1998.
Dr Chalk found Generalised Anxiety Disorder with an underlying Personality Disorder. He was of the view that the R.A.A.F. employment had contributed to the condition but this was temporary in nature and in oral evidence Dr Chalk said this contribution was caused by the applicant's expectations not being realised and in particular his failure to obtain a position with the R.A.A.F. Police. Dr Chalk was of the opinion that the psychologist's report (Elliott) in 1982 (T7) was not consistent with there being an ongoing psychiatric condition.
Consideration
After considering the material before us we have come to the view that the applicant suffers a lifelong Personality Disorder which causes anxiety and depression in situations of adversity for the applicant.
We accept that the applicant entered the R.A.A.F. with a reasonable expectation that he would be able to gain entry to the R.A.A.F. Police. For reasons which are not clear to us that proved to be not the case. We do note however that the applicant was dissatisfied with his duties in the R.A.A.F. and that he had considerable problems with his efficiency. Therein may well be the explanation for failing to obtain a position with the R.A.A.F. Police. A further relevant factor is the applicant's failure to make the grade for the Airfield Defence Guard. We think these circumstances, when combined with the applicant's personality traits, were the cause of the onset of Generalised Anxiety and Depression.
We are satisfied however, that the condition was temporary in so far as it can be attributed to the above circumstances. It is difficult to understand, taking the applicant's explanation about family responsibilities into account, as to why the applicant applied to extend service beyond 1982 if he was still having problems with his rejection from the R.A.A.F. Police.
In our view Dr Byth is probably closest to the mark when he says there was a temporary Adjustment Disorder (or merely an aggravation of the pre-existing Personality Disorder) during service which abated when the applicant left the R.A.A.F. Any continuing Anxiety and Depression is more properly related to the subsequent problems arising from the failure of the applicant's marriage.
We have not overlooked the fact that the Repatriation Commission has determined in favour of the applicant under section 24 of the Veterans' Entitlements Act 1986. That means that the Commission must have been satisfied in 1998 that the applicant's claimed condition was attributable to his R.A.A.F. service.
The material before us does not satisfy us that it is more likely than not that the diagnosed conditions were contributed to by the R.A.A.F. service. We are satisfied that it is more likely than not that any aggravation of the Personality Disorder during service would have abated following discharge from service and non-service related circumstances are causative of the present condition.
It follows that we do not consider the decision of the Repatriation Commission is a correct decision when considered in the light of the material before us. That is, with respect, emphasised by the fact that the applicant's back injury clearly had nothing to do with his R.A.A.F. service but has apparently been accepted as service related. We are, of course, not concerned with the back condition in this matter.
Section 4(1) of the Act defines "injury" to include a disease (as defined) suffered by an employee but does not relevantly include a disease suffered by an employee as a result of failure to obtain a transfer in connection with his employment.
If we are wrong in our view that there is no causative link between the applicant's R.A.A.F. service and his diagnosed conditions we are satisfied, in the alternative, that the aggravation of the Personality Disorder during service can be fairly attributed to the failure to obtain transfer to the R.A.A.F. Police and/or the Airfield Defence Guard. On the basis of the applicant's own evidence the failure to obtain transfer to the R.A.A.F. Police seems to have been the trigger causing psychiatric problems during service resulting in a temporary condition caused by the Personality Disorder.
Because we are of the view that there is no causative link between the claimed condition and the relevant employment we do not need to consider whether section 29 of the Compensation (Commonwealth Government Employees) Act 1971 has any relevant effect, being satisfied that the employment is not a contributing factor to the claimed condition.
For these reasons we will affirm the decision to cease liability for compensation.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member), Capt E T Keane OAM RAN Rtd (Member), Dr J M Lawrence AM (Member)
Signed:
  T G Lowther
   Associate
Dates of Hearing  25 & 26 May 2000
Date of Decision  27 July 2000
Solicitors for the Applicant       Gilshenan & Luton
Counsel for the Respondent    Miss Ford
Solicitors for the Respondent Barker Gosling