Dickson and Repatriation Commission

[2003] AATA 1341

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1341

ADMINISTRATIVE APPEALS TRIBUNAL  )

)            No N2002/1049

VETERANS’ APPEALS DIVISION		)
Re		Kenneth Edward Dickson

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal

Ms S M Bullock,     Senior Member                  

Dr M E C Thorpe,    Member

Date23 December 2003

PlaceSydney

Decision

The decision under review is set aside pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 and in substitution therefor, the Tribunal decides:

(i)     The conditions of generalised anxiety disorder and alcohol dependence are defence-caused and Disability Pension is payable with effect from and including 6 December 2000; and

(ii)   The assessment of Mr Dickson’s defence-caused conditions is remitted to the Respondent to be assessed up to-date.

...............................................

Ms SM Bullock

Presiding Member

CATCHWORDS

VETERANS’ AFFAIRS – Entitlement – Disability Pension – Defence Service – Reasonable Satisfaction – Generalised Anxiety Disorder – Alcohol Dependence

Veterans’ Entitlements Act 1986 (Cth) – ss 70, 120, 120B

REASONS FOR DECISION

23 December 2003

  Ms S M Bullock,     Senior Member                  

  Dr M E C Thorpe,    Member

1.Mr Dickson, the Applicant, made an application for review to the Administrative Appeals Tribunal (“the Tribunal”) about a decision made by the Veterans’ Review Board (“the Board”) on 2 May 2002 (T18). The Board decided that Mr Dickson’s anxiety disorder, irritable bowel syndrome and alcohol dependence were not defence-caused and the correct rate of Disability Pension was 50 per cent of the General Rate.  The Board’s decision agreed with an earlier decision made by the Repatriation Commission, the Respondent, on 24 August 2001 (T2).

2.The hearing was held before the Tribunal on 18 June 2003. Documents were lodged and taken into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“T Documents”, T1-T20) and exhibits listed in Schedule 1. Mr Dickson provided oral evidence. He was represented by Mr N Dawson of Counsel. The Respondent was represented by Mr N Bunn, Departmental Advocate.

Issues

3.At hearing, it was agreed by the parties that the diagnoses of Mr Dickson’s claimed conditions of alcohol dependence and generalised anxiety disorder were correct.  The Tribunal has carefully considered the material and finds that it is reasonably satisfied that the diagnoses of these conditions are correct.   Mr Dickson is not pursuing the application for review in respect of the condition of irritable bowel syndrome.   Accordingly, the issues in this matter are:

(i)Whether or not Mr Dickson’s generalised anxiety disorder is defence-caused;    and 

(ii)         Whether or not Mr Dickson’s alcohol dependence is defence-caused.

service

4.Mr Dickson served in the Australian Army (“the Army”) from 9 June 1961 until 8 March 1982 (T3, pp18-26).  Mr Dickson had eligible defence service from 7 December 1972 until 8 March 1982.  

legislation

5.The legislation which the Tribunal must apply when making a decision in this matter is the Veterans’ Entitlements Act 1986 (“the Act”). The standard of proof required to be applied in relation to Mr Dickson’s defence service is that of reasonable satisfaction as dealt with in subsection 120(4) of the Act. It is the same standard of proof which must be applied in this determination in relation to the correct diagnoses of any of Mr Dickson’s conditions.

6.The Tribunal is also required to apply the provisions of section 120B of the Act in reaching a determination and must make a decision to its reasonable satisfaction in accordance with any Statements of Principles made by the Repatriation Medical Authority or any other relevant declaration or determination made pursuant to the Act.

Statements of Principles

7.The parties agreed as to the relevant Statement of Principles and the Tribunal finds that the relevant Statements of Principles are:

·     Instrument Number 2 of 2000 concerning Anxiety Disorder.

·     Instrument Number 77 of 1998 concerning Alcohol Dependence or Alcohol Abuse.

Accepted Conditions

8.Mr Dickson has the following accepted conditions: lumbar spondylosis, accepted from 12 March 1998; bilateral sensorineural hearing loss, bilateral tinnitus and tinea, accepted from 6 December 2000.

Evidence of Mr Kenneth Edward Dickson

9.Mr Dickson told the Tribunal that he was born on 1 August 1942 in rural Queensland, completing primary school education and then working on a farm before joining the Army aged 19 years.  It was Mr Dickson’s intention to make his career in the Army and during the first ten years of service, Mr Dickson progressed from Private to Warrant Officer.  He described himself as “keen, eager and enthusiastic”.

10.In the Army in 1966, Mr Dickson had a “run in” with a Sergeant pointing out something that the Sergeant had missed.  Mr Dickson believed that the Sergeant resented this.  Another incident occurred, Mr Dickson noted, when on a bush exercise, the Sergeant conducted a foot inspection and, finding that Mr Dickson suffered from tinea, determined that he was unsuitable for tropical service.  Mr Dickson was then medically categorised as being suitable for service in non-tropical areas and this frustrated his desire to have overseas service.  Evidence to the Board indicated that it was Mr Dickson’s belief that it took him a long time to regain his medical category.  After 1966, Mr Dickson described his anxiety levels as increasing but not to the point where it stopped him doing his work.  He studied for promotion becoming a Warrant Officer in 1970.  Mr Dickson made a number of attempts to obtain an overseas posting.  He described a third attempt when he was at Kanungra on a pre-Vietnam course. When there was change of Federal Government in 1972 and Mr E G Whitlam, the then Prime Minister, commenced withdrawal of troops from Vietnam, Mr Dickson missed out on overseas service once again.  Mr Dickson stated that he was drinking more and more during that period of service.  

11.In 1977, on defence service, Mr Dickson injured his back when lifting a tent.  After the 1977 injury, Mr Dickson described his back as constantly causing pain and flaring up.  This bothered him and restricted his activities, he stated.

12.Mr Dickson retired from the Army in 1980, then worked from 1982 until 1984 as a storeman at Calvary Hospital.  He stated that he enjoyed working at Calvary Hospital. He described his anxiety at that time as “pretty good” and he kept his alcohol consumption under control. He worked from 1984 until 1997 as an Office Manager at the Calvary Hospital.  From 1997 until 28 April 2002, Mr Dickson worked as a medico-legal clerk at Calvary Hospital.

13.Mr Dickson stated that early on in his work at Calvary Hospital, he never missed work. During the 1990’s, Mr Dickson’s back condition progressively worsened and in 1994 and 1995 he described himself as being aggressive at work because of his back pain.  He stated that he took this out on other staff.  Mr Dickson was also drinking more and changed from consuming beer to drinking one 750ml bottle of port after work each day.  Mr Dickson stated that he never drank at work but would drink after work and on the weekends.  Mr Dickson described his concentration as being effected.  He did not report this.  Staff lodged a complaint about him for harassment and Mr Dickson described himself during this period as having “lost the plot”..  Mr Dickson took two or three weeks off work following that complaint.  He consulted his doctor about what had happened.

14.Mr Dickson last worked on 27 April 2002, from which date he was on leave.  At that time, his anxiety levels were high and he was continuing to be very aggressive.  Even though he worked alone, he was told by his work colleagues that he was “snappy”.  He initially thought that he would take a month off to settle himself down and consulted his General Practitioner.  He was then provided by his General Practitioner with successive medical certificates and either took sick or flex leave.  After eight months off work, Mr Dickson stated that he realised he could not return to work.  That was a difficult decision for him because he enjoyed working very much, often working additional hours each day. Working like this was a way of him dealing with his anxieties, like a form of “relaxation”, he stated.

15.In July 2002, Mr Dickson’s General Practitioner referred him to Dr G Speldewinde, Consultant in Rehabilitation, Pain and Musculoskeletal Medicine.  (Exhibit R3, p3). Treatment consisted of two or three injections to the back which Mr Dickson stated did not help.  He would consult with Dr Speldewinde approximately every six weeks and then every two months.  

16.At the present time, Mr Dickson said that he is coping with his back pain taking the medication “Panadeine Forte” on occasion but principally relying on “Panamax” 500 milligrams, four to eight tablets per day.  If Mr Dickson’s back is very painful, he will take two Panadeine Forte tablets.  On the day of the hearing, Mr Dickson took two Panamax tablets.  Mr Dickson had been prescribed antidepressants but felt that they made him put on weight.   He believed that he took antidepressant medication for approximately eight months, prescribed by Dr G Altman, Consultant Psychiatrist, with whom he has had three consultations and which, he stated, have assisted.   On the last occasion he consulted Dr Altman, Mr Dickson was told that he did not need to see Dr Altman again unless he felt the need. 

17.In the past four or five months, Mr Dickson has tried to reduce his alcohol consumption and now consumes half a bottle of port each day.  He enjoys bike riding and whereas he was taking eight Panamax tablets per day, he has now reduced that to between six to eight tablets.   Mr Dickson explained that while his back was very painful at work, it has now improved, principally because he is undertaking less activity and he is also drinking less alcohol.  Mr Dickson believes his anxiety is better away from work.   Furthermore, he would go to work with an aching back and working would take his mind off the back pain but in reality it did not help his condition. 

18.Since leaving work, Mr Dickson believes that he and his wife are communicating much better.  His still becomes agitated from time to time, but not as often or to the extent that he was experiencing at work.  Mrs Dickson had told him while he was working, that he should consult an expert about his anxiety.  Currently, Mr Dickson is not receiving treatment for his anxiety or alcohol conditions, apart from speaking with his General Practitioner from time to time.

19.Mr Dickson also has a right shoulder condition which causes him pain as reported by Dr M Porter, Sports Physician (Exhibit R4, p40).  This condition may have been caused by Mr Dickson shovelling wood chips at work. 

20.Over the past five years, Mr Dickson has not been able to garden or undertake general exercise because of his back condition.  When he goes shopping he must sit down but then he has to get up again.   Mr Dickson had been seated for approximately for one and half hours during the Tribunal proceedings.  He stated that he did not stand up because he was concerned that such action would be improper in the hearing setting.  If he walks greater than half a kilometre on the flat, Mr Dickson stated that he experiences back pain which is also experienced down into his right leg to the knee.  Mr Dickson tries to help his wife around the house. If making the beds, he must kneel down.  He stated that he can vacuum if required.  He is able also to drive a short distance, but has had to cancel holidays because of his inability to travel.  In this regard, Mr and Mrs Dickson used to drive to Port Macquarie but that is now too far. 

Medical Evidence

21.The following medical evidence provides a context for Mr Dickson’s physical and mental health.

Evidence of Dr A T Lark, Health Services Australia  medical Adviser

22.The Tribunal considered reports from Dr Lark dated 20 August 2002 (Exhibit  A4) and 5 May 2003 (Exhibit A3).  Both reports were requested by Mr Dickson’s employer as part of a fitness for duty review.   Dr Lark noted Mr Dickson having trouble with his back following an injury in the Army in 1977 and that Mr Dickson had required chiropractic treatment for his lower back since that time.  The back problem had been worsening over the last five or six years, that is, since 1996/1997.  In 2002, Mr Dickson reported suffering from constant pain with increases in pain when sitting with accompanying stiffness.  Sitting tolerance at that time was between ten to 30 minutes depending on the type of chair.  The back pain caused Mr Dickson sleep disturbance.  At that time of Dr Lark’s first examination on 19 August 2002, having been off work since April, he reported no improvement since leaving work. He found his back problem frustrating and he was irritable.  Dr Lark noted an arthritic problem affecting Mr Dickson’s left knee and that he had required an arthroscopy in 2001. 

23.Dr Lark opined that Mr Dickson has moderate to advanced lumbar spondylosis and facet joint osteoarthrosis.

24.At the time of the first examination, Dr Lark considered Mr Dickson was unfit for work at that time.  Following a further review on 5 May 2003, Dr Lark concluded that Mr Dickson had become permanently incapacitated for work including retraining as a result of moderate to advanced lumbar spondylosis and facia joint osteoarthrosis.  Dr Lark noted that Mr Dickson gave a full and coherent history and there was no indication of him exaggerating his problems. 

Evidence of Dr W Knox, Consultant Psychiatrist

25.The Tribunal considered a report of Dr Knox dated 6 November 2002 (Exhibit A2).  Dr Knox noted Mr Dickson’s history of being an anxious man during the 1960’s and 1970’s as a result of not being posted overseas with the Army.  Dr Knox noted that Mr Dickson has some obsessive traits causing him to worry. He is a conscientious man, worrying over small issues, suffering from poor concentration at work and irritability.  Dr Knox also noted a history of excessive drinking.  Dr Knox opined that after Mr Dixon left the Army, his anxiety was not as prominent. When Mr Dickson was on extended sick leave from Calvary Hospital, Dr Knox noted that Mr Dickson’s anxiety and pain levels decreased significantly.   Dr Knox also noted that Mr Dickson injured his back during service in 1977 with back pain as a disability which gradually has worsened over the years.  

26.In relation to alcohol consumption, Dr Knox noted a consumption of 750 millilitres of port per day (12 standard glasses) with that consumption having worsened in the last five years, that is from 1997.  Dr Knox opined that Mr Dickson has an alcohol dependence condition.  Dr Knox further opined that Mr Dickson’s back pain caused mild to moderately severe generalised anxiety disorder and this led him to increase his alcohol intake.  The generalised anxiety disorder also contributed to the alcohol use. 

27.Dr Knox concluded that considering the Statement of Principles concerning Anxiety Disorder, depending on whether Mr Dickson is found to have a new and distinct anxiety disorder at the time or a worsening of anxiety disorder, this has been brought on by a major illness in the form of lumbar spondylosis and associated pain within one year of the onset of anxiety disorder or its worsening.  Considering the Statement of Principles for Alcohol Dependence or Alcohol Abuse, Dr Knox concluded that Mr Dickson was suffering from a psychiatric disorder in the form of generalised anxiety disorder at the time of the worsening of Mr Dickson’s alcohol dependence.

Evidence of Dr M Duke, Consultant Psychiatrist

28.The Tribunal considered Dr Duke’s report dated 26 November 2002 (Exhibit R1).  Dr Duke opined that Mr Dickson has a congenital and hereditary high anxiety trait diagnosed as generalised anxiety disorder.  This is not caused by any particular incident and had its probable onset in Mr Dickson’s teenage years.  Dr Duke did not consider that Mr Dickson had suffered a major illness immediately before the clinical onset of anxiety disorder.    The anxiety disorder is permanent and assessed under Chapter 4 of the “Guide to the Assessment of Rates of Veterans’ Pensions” (“the Guide”), Dr Duke considered the appropriate rating is 16 points. 

29.Dr Duke opined that Mr Dickson has an alcohol dependence condition and that the generalised anxiety disorder predated this and was probably the cause of alcohol dependence. 

30.Mr Dickson’s work impacted on his psychiatric condition.   Dr Duke noted that Mr Dickson would become more anxious during his work and this led to an increase in alcohol consumption.  Dr Duke noted that Mr Dickson was a workaholic.  He had intended to remain at work until age 65 years.  Mr Dickson had told Dr Duke that his low back pain and lumbar spondylosis caused him to leave work earlier than he had anticipated, that is in April 2002.

Evidence of Dr G Speldewinde, Consultant in Rehabilitation, Pain and Musculoskeletal Medicine  

31.In a report of 8 August 2002, Dr Speldewinde noted 25 years of continuing but worsening left lower back pain which has been worse over the past six months, that is from February/March 2002 (Exhibit R3, p8).  In a report dated 18 October 2002 (Exhibit R3, p2), Dr Speldewinde noted an MRI scan of the lumbar spine which demonstrated age-related changes in the lumbar discs with features consistent with an annular tear of L5-S1 but of uncertain duration.  This may be sufficient to account for Mr Dickson’s persisting lumbar pain which is more right sided than left, although the annular tear is more to the left.   Dr Speldewinde advised Mr Dickson to keep active and to continue cycling, gentle home exercises, gardening and other self-paced activities.   “Prothiaden” at night was advised to help with the intensity of pain with it being “the worst ever” for the last six months, that is from April 2002.  Mr Dickson was advised to continue taking “Panadol” from two to six tablets per day with a supplement of “Tramal” for severe pain.

Evidence of Dr G Altman, Consultant Psychiatrist

32.In a report dated 3 July 2001 (T15), Dr Altman opined that Mr Dickson suffers from generalised anxiety disorder with associated alcohol abuse.  Mr Dickson suffers from excessive anxiety and a tendency to be overly worried about matters.   Dr Altman noted that Mr Dickson had been consuming one bottle of port per day for the past ten years.   Prior to 1966, he was consuming three or four beers once or twice per week.  From 1966, Mr Dickson alcohol’s consumption increased to six beers per day increasing to eight or nine beers per day for the next seven years. 

33.Dr Altman assessed Mr Dickson as having an impairment of 35 points from Chapter 4 of the Guide. 

34.Mr Dickson was referred to Dr Altman by Dr Cox for review on 10 April 2002 (Exhibit R2, p1).

Evidence of Dr R Cox, General Practitioner

35.Dr Cox ‘s clinical records were available to the Tribunal (Exhibit R4).  Dr Cox’s notes indicate a report from Dr M Tapper dated 30 December 1999, which indicates recurrent low back pain and a recent history of mild left sciatic nerve irritation (Exhibit R4, p67).  The clinical notes also contained references to a left knee arthroscopic menisectomy in 1986 and a right rotator cuff tendinopathy and degenerative joint disease in the right acromio-clavicular joint.

36.The clinical notes indicate entries such as:

·     In 1993, of past back pain (Exhibit R4, p87);

·     In 1995, of back injury in the Army and then back trouble ever since with episodes of low back pain (Exhibit R4, p87);

·     8 November 1995, stress at work (Exhibit R4, p86);

·     3 September 1996, stress at work (Exhibit R4, p84);

·     27 October 1998, sore back with improvement on 29 October 1998 (Exhibit R4, p79);

·     3 July 2001, letter from Dr Altman (Exhibit R4, p35) following referral on 13 March 2001 (Exhibit R2, p7);

·     16 July 2001, Mr Dickson agreed to take “Efexor”, an antidepressant (Exhibit R4, p74);

·     9 August 2001 and on 5 September 2001, when Mr Dickson was found to be less anxious and less irritable (Exhibit R4, p74);

·     12 October 2001, Mr Dickson was reporting a sore back (Exhibit R4, p73);

·     February 2002, Dr Cox reported Mr Dickson had a “run in” at work and he was stressed out (Exhibit R4, p91);

·     April 2002, Mr Dickson had low back pain and May 2002, the back pain is worse (Exhibit R4, p92);

·     July 2002, Dr Cox noted that Mr Dickson “Wants to see specialist re back” (Exhibit R4, p93) with referral to Dr Speldewinde on 5 July 2002 (Exhibit R3, p3).

Evidence of Dr P Cullen, Psychiatrist

37.Having examined Mr Dickson on 5 June 2001, Dr Cullen wrote in his report that Mr Dickson has alcohol dependence and an anxiety disorder.   He is chronically anxious with a life long habit of self-medication with alcohol.   More difficult to control his anxiety in later years, his usual method of containing tension has been by being a workaholic and having obsessive activity methods.  Dr Cullen assessed Mr Dickson from Chapter 4 from the Guide as having an impairment of 22 points (T11).

Consideration and Findings

38.The Tribunal is reasonably satisfied that Mr Dickson suffers from a generalised anxiety disorder as defined in the American Psychiatric Association’s “Diagnostic and Statistical Manual of Mental Disorders”, Fourth Edition (“DSM-IV”) and which also comes within the definition of generalised anxiety disorder contained in the relevant Statement of Principles, Instrument Number 2 of 2000 concerning Anxiety Disorder. The onset of this condition is difficult to determine, but it is considered to have been present certainly by the time of Mr Dickson’s enlistment in the Army but did not arise out of the Army service.  This finding is supported by the medical opinions of Dr Altman, Dr Cullen, Dr Knox and Dr Duke.  There is also agreement between the parties as to this diagnosis. The predominance of medical opinion is that Mr Dickson has had a life long tendency towards anxiety and that he had anxiety traits probably from adolescence and certainly manifesting themselves in terms of a diagnosable condition in the 1960’s or 1970’s and certainly by the time of his enlistment in the Army. 

39.The Tribunal is also reasonably satisfied that Mr Dickson suffers from alcohol dependence as defined in DSM-IV and again, as supported by the predominance of medical and psychiatric opinion and the agreement of the parties at hearing.  The Tribunal notes that Dr Altman has diagnosed alcohol abuse, but on consideration of the relevant diagnostic criteria and the preponderance of medical opinion, finds that the correct diagnosis is alcohol dependence.  The onset of alcohol dependence again is difficult to precisely determine but is considered to have been present by the time of Mr Dickson’s defence service but not arising out of that Army service.   Mr Dickson’s alcohol consumption increased to a hazardous level increasing since 1966, a period of non-eligible service and was entrenched by December 1972, when Mr Dickson commenced his defence service.  Dr Duke notes hazardous drinking by 1973 and that it continued until 1977 when the alcohol consumption eased off when Mr Dickson was posted to Canberra (Exhibit R1). Dr Duke considered the anxiety condition predated the alcohol dependence.  Furthermore, Dr Knox opined that Mr Dickson had a worsening of alcohol dependence as a result of his anxiety condition, the anxiety condition having worsened because of Mr Dickson’s lumbar spondylosis and pain (Exhibit A2).

40.It is not contested and the Tribunal finds that Mr Dickson had a back injury in 1977 and this was accepted as being a service-related condition.  The contention from the Applicant is that the generalised anxiety condition worsened because of a major illness which is the back condition.  In order to meet Factor 5(a)(v) of the relevant Statement of Principles concerning Anxiety Disorder, Mr Dickson’s circumstances must be such that his anxiety worsened within one year of the major illness which is contended to be the lumbar spondylosis.  Factor 5(a)(v) states:  

“(v) having a major illness or injury within one year immediately before the clinical worsening of anxiety disorder; …

“major illness or injury” means a disease or injury that is life-threatening or seriously disabling; ..…”

The contention furthermore is that the service-related back condition worsened causing the anxiety condition to worsen which then caused the worsening of Mr Dickson’s alcohol dependency. 

41.The Tribunal accepts the assessment of impairment from lumbar spondylosis from the medical impairment documents as indicating a 50 per cent loss of range of movement (T10, p93).  The Tribunal must consider what evidence there is of a worsening of the service-related lumbar spondylosis which then caused a worsening of Mr Dickson’s already existing generalised anxiety disorder within a period of one year of the worsening of that condition.

42.The employment records from Calvary Hospital show that Mr Dickson had more frequent and longer absences from work from 1990 onwards.  Mr Dawson submitted that this indicated the worsening of Mr Dickson’s back and anxiety conditions. There is evidence from Dr Knox that the back condition is moderately severe. Mr Dickson’s evidence, as supported by medical evidence, is that his back was getting worse in 1995. The Tribunal finds that Mr Dickson was referred to Dr Speldewinde in July 2002, because Mr Dickson could no longer cope with the pain from his back as recorded in Dr Cox’s notes.  Certainly, Dr Knox notes back pain in 1993, 1998 and worsening in 2002 as noted by the necessity of referring Mr Dickson to a specialist.  Dr Knox further opined and other evidence supports this opinion that Mr Dickson became frustrated and aggressive in the face of back pain and this reflected his anxiety condition increasingly present in recent years.

43.It is true, as Mr Bunn submitted, that there is evidence of the back condition intermittently causing problems from at least 1993 onwards.  On consideration of the evidence, there are however, notations in Dr Cox’s clinical notes for 2001 and 2002 of an increase in the reporting of back symptoms and also an increase in the reporting of anxiety or stress-related conditions and treatment.  The Tribunal also notes that from April 2002, Mr Dickson was on sick leave from his employer for a period of approximately eight months. From Dr Cox’s clinical notes and other medical evidence, there is reporting of worsening of the back condition during that time.  The picture presented in the documentary evidence thus fits with the history from Dr Speldewinde.  In February 2002, Mr Dickson is reported to be stressed at work.  The back condition has worsened as reported by Dr Speldewinde in February or March 2002 and April 2002 and Dr Speldewinde refers to a worsening of back pain in the previous six months prior to the referral to him which occurred in July 2002 (Exhibit R4, p66). 

44.Mr Dawson referred to the many notations in Dr Cox’s clinical notes concerning anxiety and to Dr Altman’s report.  By July 2001, Mr Dickson has been referred to Dr Altman by Dr Cox.  In this regard, the Tribunal notes that also in July 2001, Mr Dickson agreed to take the antidepressant medication “Efexor” and he is reported to be improved and less anxious during consultation on 9 August 2001 and also to be less irritable on 5 September 2001 (Exhibit R4, p74).   On 26 October 2001, Mr Dickson is suffering from tension headache (Exhibit R4, p54).  It is also recorded that on 12 October 2001, Mr Dickson’s back is sore (Exhibit R4, p73). Dr Cox’s notes further record in February 2002, that Mr Dickson is upset at work, cannot sleep, is anxious and Efexor is to be recommenced.  By March 2002, Dr Cox reports that Mr Dickson is less anxious, yet the anxiety is still sufficiently severe to warrant referral back to Dr Altman in April 2002 for review and the back condition is also worse (Exhibit R4, p92).  By 18 October 2002, Dr Speldewinde is looking after Mr Dickson’s back and has recommended Prothiaden to help him cope with the back pain. The Tribunal notes that the medical notations made by Dr Cox or doctors within that practice indicate a worsening of Mr Dickson’s back condition and furthermore, the notes are consistent with greater anxiety experienced as evidenced by referral to Dr Altman for review in April 2002.

45.As Mr Dawson submitted and the Tribunal accepts, there is an overlay between the worsening back symptoms and an increase or worsening in anxiety, both of which become more controlled on treatment, principally medication.  There may well be other factors such as work stress intervening in this clinical picture, but on the Tribunal’s understanding of the objective medical evidence, in addition to the evidence by Mr Dickson, there was a worsening of the back condition in late 2001, leading to increased back pain and which resulted in Mr Dickson taking eight months off work.  There is a reported increase in the anxiety symptoms requiring medication and referral for review to Dr Altman within a year of the reported worsening of Mr Dickson's back condition. The Tribunal finds that the worsening of the back condition and the worsening of the generalised anxiety condition are not just temporally connected but there is a causal relationship as supported by the majority of medical opinion.  The Tribunal is also reasonably satisfied that the medical and other evidence supports a worsening of generalised anxiety disorder beyond a temporary aggravation.

46.The Tribunal must also determine whether the back condition as experienced by Mr Dickson, is a major illness as defined in the Statement of Principles requiring it to be a life-threatening disease or injury or seriously disabling.  In the assessment of the back condition, it has been accepted that from Table 3.3.1 of the Guide, an assessment of 18 is considered appropriate (age-adjusted) which represents half of a loss of normal range of movement.  There is a rating of five points from Table 3.3.2 of the Guide which represents a functional loss sustained intermittently. Mr Dickson also suffers back pain at rest, that is, while sitting or lying down and the impairment rating is two points from Table 3.4.1 for resting joint pain.  Mr Dickson’s back condition was significantly disabling for him to be off work and on sick leave for approximately eight months from April 2002 and for Dr Lark, HSA Medical Adviser, to certify him on 20 August 2002, as being unfit for work at that time (Exhibit A4).  By May 2003, Dr Lark concluded that Mr Dickson was on “quite a bit in the way of medication and physical therapy” (Exhibit A3, p2) and had been taking Panamax, six to eight tablets per day, Panadol, Panadeine Forte at least once per week, also “Naprosyn” and “Glucosamine” and using the TENS machine for symptomatic relief.   Furthermore, Mr Dickson was receiving chiropractic treatment once per month and also physiotherapy and had two or three courses of injections from Dr Speldewinde.  Mr Dickson was also undertaking special exercise every day.  Such was the level of Mr Dickson’s pain, that there had been a discussion between Mr Dickson and Dr Speldewinde about the possibility of him taking narcotic medication as analgesia, but he was not keen to take up this treatment modality.   The back was again more painful since Christmas of 2002.  

47.Mr Dickson has described fluctuating in the back condition as is reflected in the medical notes, but there has been continuous and constant pain as recorded and accepted by Dr Lark.  Mr Bunn submitted that the intermittent nature of Mr Dickson’s back condition does not reflect a permanent worsening.  Furthermore, Mr Bunn noted that Mr Dickson rode a bike and as reported by Dr M Porter on 19 February 2001 (Exhibit R4, p41), was involved in shovelling wood chips. Mr Bunn contended that these were not the actions of a person with a worsened back condition.  While such an argument is superficially attractive, the Tribunal notes that Dr Speldewinde had recommended that Mr Dickson undertake bike riding in the context of his treatment of what Dr Speldewinde reported as a worsening back condition. Dr Porter was reporting on Mr Dickson’s right shoulder pain in the context of a diagnosis of rotator cuff tendinopathy and degenerative joint disease of the right acromio-clavicular joint. Clearly, Mr Dickson was undertaking activity which was contraindicated and Dr Porter noted that part of the causation of the right shoulder pain was Mr Dickson’s work duties of lifting. The Tribunal is not persuaded by the Respondent’s submission that there was no permanent worsening of Mr Dickson’s lumbar spondylosis in view of other evidence to the contrary.  The Tribunal also agrees with Dr Knox’s opinion that Mr Dickson was unable to return to work without a high risk of aggravating pain and anxiety.  The fact that Mr Dickson reports a lessening of symptoms away from work does not mean that his back has not permanently worsened, only that the removal of the activity of work lessens the stress, both physically and mentally.  If this were not the case, then Dr Lark would not have concluded as he did, but rather might have suggested lighter or different duties or retraining.

48.Dr Lark was of the view that there was no exaggeration in Mr Dickson’s reporting of his symptomatology.   On examination, Dr Lark noted a considerably reduced range of movement of the thoraco-lumbar spine and there were also restrictions to both legs.  The MRI scan indicated multi-level desiccated discs and posterior annular high signal intensity, rotation to the left and right was substantially reduced as was lateral flexion to the left and right.  There was little in the way of backwards extension of the thoraco-lumbar spine, Dr Lark reported.  Dr Lark examined Mr Dickson on two occasions.  As a result of Mr Dickson’s final examination, Dr Lark concluded that Mr Dickson had moderate to advanced lumbar spondylosis and facet joint osteoarthrosis and that he had become, since last examination, totally and permanently impaired for work including retraining by 5 May 2003, when he reported. 

61.        In the “Macquarie Concise Dictionary“, Third Edition, “serious” is defined, as relevant:

(1) of grave or solemn disposition or character; thoughtful;

(2) of grave aspect;

(3) being in earnest, not trifling ;….

(5) weighty or important; a serious matter;

(6) giving cause for apprehension; critical.

“Disabling” is defined in the “Macquarie Concise Dictionary”, as relevant:

(1) to make unable; weaken or destroy the capability of; cripple; incapacitate.

62.     Mr Dickson was certified as totally and permanently unfit for work by Dr Lark and by his General Practitioner, Dr Cox.   To be required to give up work because of a medical condition would, on the Tribunal’s understanding of such matters, constitute a seriously disabling condition.  It cannot be contemplated that a patient would not be considered to have a seriously disabling condition when he or she had been certified as totally and permanently medically unfit to work.

63. The Tribunal is reasonably satisfied that the clinical worsening of lumbar spondylosis, a major illness, caused the clinical worsening of Mr Dickson’s generalised anxiety disorder within one year of the worsening of that lumbar spondylosis. Thus, the Tribunal finds that Factor 5(a)(v) of Instrument Number 2 of 2000 is satisfied and a causal link is present between Mr Dickson’s service through the worsening of his service-related back condition and the worsening of the generalised anxiety disorder. Accordingly, generalised anxiety disorder is considered to be defence-caused. In reaching this finding, the Tribunal has considered paragraph 6 of the relevant Statement of Principals and notes that Mr Dickson satisfies subsection 70(5)(d) of the Act as is required, in that he suffered or contracted generalised anxiety disorder before his defence service, but not during defence service and the condition was contributed to in a material way by that service.

49.In relation to the condition of alcohol dependence, the contention is that Mr Dickson’s service-related generalised anxiety disorder worsened causing Mr Dickson’s alcohol dependence to worsen.  We have already found that alcohol dependence was established certainly by 1972.  The Tribunal has accepted that Mr Dickson has a defence-caused generalised anxiety disorder.  Considering Instrument Number 77 of 1998 concerning Alcohol Dependence or Alcohol Abuse, the relevant factor is Factor 5(c) which states:

“(c) suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse;

…

“psychiatric disorder” means any Axis 1 or 2 disorder of mental health attracting a diagnosis under DSM IV; …”

50.It is not a simple matter to establish worsening of alcohol dependence but the Tribunal notes that Dr Knox opines in November 2002, that there is a worsening of alcohol dependence as Mr Dickson was self-medicating with alcohol and this is borne out by Dr Cullen’s opinion. Dr Duke has opined that the anxiety condition predated the alcohol dependence and probably caused alcohol dependence and that in the 12 months predating his November 2002 report, there had been an escalation of Mr Dickson’s alcohol use (Exhibit R1, p3). It is difficult to be precise but the Tribunal notes that Mr Dickson’s circumstances and clinical presentation have been considered by medical experts and he has not been found to be prone to exaggeration. The Tribunal considers Mr Dickson to be a credible witness. The Tribunal on its observation of Mr Dickson and on consideration of the evidence, is reasonably satisfied that although there may not be conclusive evidence of clinical worsening of Mr Dickson’s alcohol dependence, there is sufficient in the medical evidence in combination with Mr Dickson’s evidence to persuade the Tribunal to its reasonable satisfaction that there was a worsening of the alcohol dependence contingent on Mr Dickson’s generalised anxiety disorder worsening as a result of the worsening of lumbar spondylosis. This worsening is considered by the Tribunal to be more than a temporary aggravation. This finding also takes into account the Respondent’s concession at the commencement of the hearing that if Mr Dickson was found to have a defence-caused generalised anxiety disorder, then he would necessarily be found to have an alcohol dependence condition related to service. Thus the Tribunal confirms its determination that alcohol dependence is service-related and that this finding is based on Mr Dickson’s satisfying Factor 5(c) of the relevant Statement of Principles. This finding takes into account consideration of paragraph 6 of the Statement of Principles and principally notes Mr Dickson’s circumstances meet subsection 70(5)(d) of the Act.

51.In conclusion, in reaching a decision in this matter, it has been difficult to intersect the chain of causation. This can often occur in veterans’ matters and is precisely why section 119 is in the Act to allow for vagaries of memory or incomplete records. Mr Dickson’s evidence is not doubted and his credibility is supported by medical opinion. As has been stated, the Tribunal is reasonably satisfied that all the evidence points to a clinical worsening of his lumbar spondylosis, sufficient to meet the relevant Statement of Principles concerning Anxiety Disorder and the relevant Statement of Principles concerning Alcohol Dependence.

52.In relation to the assessment of generalised anxiety disorder and alcohol dependence, the Tribunal remits this matter to the Respondent to assess all of Mr Dickson’s service-related conditions up to-date. 

53.Accordingly, for all of the reasons set out above pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor, decides:

(i) the conditions of generalised anxiety disorder and alcohol dependence are defence-caused with effect from and including 6 December 2000; and

(ii) the assessment of all of Mr Dickson’s service-related conditions is remitted to the Respondent for assessment up to-date.

I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member and Dr M E C Thorpe, Member

Signed:              .......................................................................................

Associate

Date of Hearing  18 June 2003

Date of Decision  23 December 2003

Representative for the Applicant                   Mr N Dawson of Counsel

Representative for the Respondent    Mr N Bunn, Departmental Advocate

SCHEDULE  1

List of Exhibits

Exhibit Number	Description	Date
A1	Statement of Kenneth Edward Dickson	Undated
A2	Report of Dr W Knox, Consultant Psychiatrist	6 November 2002
A3	Report of Dr A T Lark, Health Services Australia Medical Adviser	5 May 2003
A4	Report of Dr A T Lark, Health Services Australia Medical Adviser	20 August 2002
R1	Report of Dr M Duke, Consultant Psychiatrist	26 November 2002
R2	Medical Records from Dr G Altman, Consultant Psychiatrist	Various
R3	Medical Records from Dr G Speldewinde, Consultant in Rehabilitation, Pain and Musculoskeletal Medicine	Various
R4	Medical Records from Dr R Cox, General Practitioner	Various
R5	Employment Records from Calvary Health Care	Various