Dowling and Repatriation Commission
[2011] AATA 200
•28 March 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 200
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2783
VETERANS' APPEALS DIVISION ) Re JENNIFER ANNE DOWLING Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member K Bean
Mr S J Ellis AM (Member)Date28 March 2011
PlaceAdelaide
Decision The decision under review is affirmed.
..............................................
K BEAN
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – Veterans' entitlements – Operational service – Claims for major depressive disorder and osteoarthritis – Deledio steps – Reasonable hypotheses raised – Application of SoPs – Nothing “pointing to” existence of relevant factors in each SoP – Conditions not “war-caused” – Decision under review affirmed.
Veterans’ Entitlements Act 1986 ss 6, 9, 13(1), 119, 120, 120A, 196A
Statement of Principles Instrument No 13 of 2010
Statement of Principles Instrument No 31 of 2005
Statement of Principles Instrument No 27 of 2008Statement of Principles Instrument No 58 of 1998
Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 66 ALD 271
Bushell v Repatriation Commission (1992) 175 CLR 408
Gorton v Repatriation Commission (2001) 63 ALD 723Lees v Repatriation Commission (2002) 125 FCR 331
REASONS FOR DECISION
28 March 2011 Senior Member K Bean
Mr S J Ellis AM (Member)introduction
1. The applicant, Ms Dowling, joined the Royal Australian Air Force (RAAF) in 1984 as a nursing officer. She was initially a reservist, but enlisted as a permanent member of the RAAF in March 1999. In July 2000 she was the senior nursing officer at RAAF Base Tindal in the Northern Territory when she was notified of a deployment to East Timor, commencing on 17 August 2000.
2. Whilst Ms Dowling was in East Timor, she appears to have been subjected to significant harassment by the Army personnel who made up the majority of personnel at the facility at which she was working, and appears not to have been treated with the respect or consideration due to her rank. From a physical perspective, she also suffered discomfort at the base of her right thumb which she associated with being required to disassemble, clean and reassemble a rifle regularly throughout her deployment. She had previously suffered similar problems with the base of her left thumb.
3. Following her return from Timor in February 2001, Ms Dowling unfortunately experienced a very difficult period in her life, being diagnosed with breast cancer in June 2001. She was also suffering from other difficulties at the same time, including knee pain, her son having schizophrenia and concern over her husband’s health. In 2004, she was diagnosed as suffering from major depression and on 20 June 2005, she lodged a claim for payment of disability pension in respect of a number of conditions including a depressive disorder and osteoarthritis/osteoarthrosis of the base of both thumbs.
4. On 28 July 2006, the Repatriation Commission (the Commission) determined that osteoarthrosis of Ms Dowling’s left and right hands was not related to her operational service[1]. The Commission also determined that her depressive disorder was not related to her operational service[2]. On 27 May 2010, the Veterans’ Review Board (the VRB) relevantly affirmed those decisions[3] and on 9 July 2010, Ms Dowling applied to this Tribunal for review of the decisions of the Commission as affirmed by the VRB[4].
[1] T3/26-27
[2] T3/29
[3] T5/37
[4] T1/1-3
the legal framework
5. Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
6. Section 9 of the Veterans’ Entitlements Act 1986 (VE Act) provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:
“9 War-caused injuries or diseases
(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; ...”
7. The expression “operational service” is defined in ss 6 to 6F of the VE Act. It was agreed between the parties that Ms Dowling rendered operational service in East Timor from 17 August 2000 to 15 December 2000 and from 29 December 2000 to 23 February 2001 and that she has not rendered any other service relevant to the VE Act.
8. Section 120 of the VE Act provides for the standard of proof applicable to the determination of whether Ms Dowling’s asserted conditions are war-caused. That section provides relevantly as follows:
“120 Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
...
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction
Note: This subsection is affected by section 120B.”
9. Section 120A of the VE Act provides relevantly that in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority has made a Statement of Principles (SoP) in respect of a particular kind of injury or disease, the reasonableness of an hypothesis connecting the relevant injury or disease with the veteran’s operational service is to be assessed by reference to that SoP.
10. Section 120A(3) provides relevantly:
“(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
...
that upholds the hypothesis.”
11. The application of ss 120(1) and (3) and 120A(3) of the VE Act was explained in Repatriation Commission v Deledio (1998) 83 FCR 82, where a Full Court of the Federal Court (Beaumont, Hill and O’Connor JJ) said at 97:
“1 The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2 If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3 If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4 The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
12. An hypothesis is a proposition made as a basis for reasoning, without assumption of its truth, or a supposition made as a starting point for further investigation from known facts: Bull v Repatriation Commission (2001) 66 ALD 271 at [17] and [38]. In Bushell v Repatriation Commission (1992) 175 CLR 408, Mason CJ, Deane and McHugh JJ said:
“The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts (“the raised facts”) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true.”
13. It is established on the authorities that if a veteran is unsuccessful under the current SoP, the Tribunal is also obliged to consider the veteran’s claim against an earlier SoP in force at the time they made their claim, as the veteran has an accrued right to have their claim assessed under that SoP[5].
[5] Gorton v Repatriation Commission (2001) 63 ALD 723
14. There are a number of SoPs which are applicable to determination of Ms Dowling’s claim. In relation to her thumb conditions, the current SoP in relation to osteoarthritis is Instrument No 13 of 2010, which relevantly provides as follows:
“Factors that must be related to service
5. Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting osteoarthritis or death from osteoarthritis with the circumstances of a person’s relevant service is:
…
(g) having trauma to the affected joint before the clinical onset of osteoarthritis in that joint;
…
Other definitions
9. For the purposes of this Statement of Principles:
…
"trauma to the affected joint" means a discrete event involving the application of significant physical force to or through the affected joint, that causes damage to the joint and the development, within 24 hours of the event occurring, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the joint. These symptoms and signs must last for a period of at least seven days following their onset; save for where medical intervention for the trauma to that joint has occurred and that medical intervention involves either:
(a) immobilisation of the joint or limb by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into that joint; or
(c) surgery to that joint.
…”
15. The previous SoP in relation to osteoarthritis, was Instrument No 31 of 2005[6], which relevantly provided as follows:
[6] This SoP took effect from 16 November 2005, and the SoP prior to that, Instrument No 81 of 2001,“Factors that must be related to service
5. Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting osteoarthrosis or death from osteoarthrosis with the circumstances of a person’s relevant service is:
…
(g) having a trauma to the affected joint before the clinical onset of osteoarthrosis in that joint;
…
Other definitions
9. For the purposes of this Statement of Principles:
…
“trauma to the affected joint” means a discrete joint injury that causes the development, within twenty-four hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the joint. These symptoms and signs must last for a period of at least seven days following their onset; save for where medical intervention for the trauma to that joint has occurred and that medical intervention involves either:
(a) immobilisation of the joint or limb by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into that joint; or
(c) surgery to that joint.
…”
16. In relation to the applicant’s depressive disorder, the current SoP is Instrument No 27 of 2008, which relevantly provides:
“Factors that must be related to service
5. Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder or death from depressive disorder with the circumstances of a person’s relevant service is:
(a) for major depressive episode, recurrent major depressive disorder, dysthymic disorder and depressive disorder not otherwise specified only,
…
(vi) experiencing a category 2 stressor within the one year before the clinical onset of depressive disorder;
…
Other definitions
9. For the purposes of this Statement of Principles:
…
"a category 2 stressor" means one or more of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry:
…
(c)having concerns in the work or school environment including: on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful work loads, or experiencing bullying in the workplace or school environment;
…”
17. The previous SoP in relation to depressive disorder was Instrument No 58 of 1998, which relevantly provided:
“Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder or death from depressive disorder with the circumstances of a person’s relevant service are:
…
(b) experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder;
…
Other definitions
8. For the purposes of this Statement of Principles:
…
“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
…”
issues
18. It is not disputed by the respondent and we are satisfied on the material before us that Ms Dowling does suffer from each of the relevant conditions, namely osteoarthritis of her left and right thumbs and a major depressive disorder. However, in order to decide whether Ms Dowling has an entitlement to a pension under the VE Act as a result of any of these conditions it remains for us to determine:
(a)whether, for the purposes of the VE Act, Ms Dowling’s conditions of osteoarthritis to the base of her left and/or right thumb are “war-caused”; and
(b)whether, for the purposes of the VE Act, Ms Dowling’s condition of major depressive disorder is “war-caused”.
We propose to address each of these issues in turn, having regard to the legal framework outlined above and the evidence and arguments before us.
whether ms dowling’s left and/or right thumb conditions are “war-caused”
19. As noted above, the relevant SoPs in relation to these conditions are Instrument No 13 of 2010 relating to osteoarthritis, the current SoP and, if the Tribunal finds it to be more beneficial to Ms Dowling, the previous SoP, Instrument No 31 of 2005[7].
[7] See Gorton v Repatriation Commission (2001) 63 ALD 723.
20. The only factor contained in the current SoP which is potentially applicable is factor 6(g), which requires “trauma to the affected joint” within the meaning of the SoP.
The evidence and arguments
21. Counsel appearing for Ms Dowling, Mr Swan, submitted that the material before us pointed to a series of small traumas to Ms Dowling’s left and right thumbs, satisfying the SoP.
22. In her amended statement[8] however, Ms Dowling did not refer to any specific trauma to either joint. In relation to her left hand, she referred to attending a two day Steyr rifle conversion course at RAAF Base Darwin in 1995 and said:
“The weapon was brand new and stiff to handle. We continually took the weapon apart and re-assembled it and it was a difficult adjustment from using the SLR. Within 24 hours of using the Steyr I had pain and discomfort in my left hand at the base of the thumb.”
[8] Exhibit 3
23. In relation to her right hand, she said in her statement:
“My right hand at the base of my thumb joint began to be painful in East Timor in 2000 where I disassembled, cleaned and re-assembled my Steyr rifle every day for 6 weeks then at least twice a week for the entire duration, which included another 4 months. I had consistent pain and stiffness in my right hand whilst using the Steyr rifle in East Timor.”
24. Mr Crowe, who appeared as the advocate for the Commission, carefully cross-examined Ms Dowling as to the precise nature of the mechanical action involved in using the Steyr rifle which she said had caused her osteoarthritis. He frankly indicated in the course of this cross-examination that he was attempting to elicit evidence which would support the application of the SoP. Despite his attempts however, Ms Dowling was not able to detail any part of the action involved in assembling, disassembling or otherwise using the Steyr rifle which caused “trauma” to either of her thumb joints. She said she recalled finding the actions involved awkward and difficult, but said she could not recall any part of the action of assembling or disassembling the rifle which put stress on the base of either thumb or required her to apply significant physical force to or through either the base of her right or left thumbs.
Consideration
25. Following the steps outlined in Deledio, we consider that Ms Dowling has raised an hypothesis connecting her thumb conditions with her service, and that there is an applicable SoP in force. However, as there is no evidence “pointing to” an essential element of the SoP, namely “a discrete event involving the application of significant physical force to or through the affected joint” we are not satisfied that the hypotheses put forward by Ms Dowling in relation to either thumb satisfies Instrument No 13 of 2010. As Instrument No 31 of 2005 is relevantly identical to No 13 of 2010, her hypotheses do not fit that SoP either. As her hypotheses do not fit either SoP, we have concluded that the hypotheses are not “reasonable” within the meaning of the VE Act. Her claim therefore fails at that stage and it is not necessary for us to consider the remaining Deledio steps.
26. We would also add that Ms Dowling’s hypothesis relating to her left thumb relies upon events in 1995 which did not occur during her operational service and therefore her claim in relation to her left thumb also fails for that reason.
whether ms dowling’s major depressive disorder is “war-caused”
The evidence and arguments
27. As alluded to above, the Commission conceded, we consider correctly, that Ms Dowling had suffered from a major depressive disorder and further that she had experienced at least one category 2 stressor within the meaning of Instrument No 27 of 2008, as a result of the harassment and mistreatment she suffered during her deployment in East Timor. In effect, the only element not conceded by the Commission was that the condition had its onset within 12 months of the category 2 stressor, as required by factor 6(a)(vi).
28. In relation to that issue, Mr Swan for Ms Dowling submitted that there was material pointing to the condition being in existence at the time of Ms Dowling’s debriefing by an Army Medical Officer, Captain Wallace, in East Timor on 17 February 2001, being within 12 months of the category 2 stressors which occurred during her deployment. In this regard, he relied upon Ms Dowling’s statement in which she said that at this psychological debriefing:
“I told Captain Wallace how stressful I had found the 6 months in Timor. I told her about the harassment I had experienced from the Army personnel which included the Army nurses, clerical staff and executive staff and how this distressed me.”[9]
[9] Exhibit 3, p 5
29. However, whilst there is a record of this debriefing occurring on 17 February 2001, the form in which the interview is recorded as having occurred contains no details of what was discussed and the box provided for the insertion of “additional comments” is blank[10]. Therefore there is no medical evidence before us at all as to Ms Dowling’s psychiatric state at that time.
[10] T8/67
30. Indeed the first evidence available in relation to her psychiatric state consists of a psychological report dated 16 October 2002 which records that she was significantly distressed and had been “under extremely high levels of stress for some time”. The report also refers to counselling undertaken with Ms Dowling[11].
[11] T8/68
31. The first record of Ms Dowling attending a psychiatrist is a report from Dr William Knox dated 14 December 2004, in which he confirms that she is:
“… presently depressed, likely on account of multiple stressor events including worry about a return of her breast cancer, recent infections including hepatitis and possibly pneumonia, concern over her husband’s prostate condition and a son with chronic schizophrenia”.[12]
[12] T13/75
32. However, Dr Knox does not comment in that report on when the condition is likely to have had its onset.
33. Another psychiatrist, Dr Ewer, has also seen Ms Dowling on a number of occasions and saw her for the first time on 31 January 2006. He has provided a report dated 13 January 2010[13] in which he relevantly stated:
“Assuming Ms Dowling’s account is correct, then it is likely that the aetiology of her Major Depression was multi-factorial. It is probable that her breast cancer and the associated treatment and her associated fears of the cancer returning were substantial contributing factors to her depression. If it is accepted that she was harassed in East Timor as she described then this was probably also a substantial cause of her becoming depressed. It is relevant to note that she had not been psychiatrically unwell prior to the harassment. It is relevant to note that it is Ms Dowling’s recollection that she became depressed subsequent to the harassment, although the picture is clouded because when I first saw her she told me she became depressed in the context of being diagnosed with breast cancer.”[14]
[13] T23/121
[14] T23/123
34. Unfortunately, Dr Ewer did not comment further on the date of onset of Ms Dowling’s condition. He has not commented on that issue in any of his other reports and nor was he called to give evidence at the hearing.
Consideration
35. It follows that we consider that Ms Dowling has put forward an hypothesis connecting her depressive disorder with her service, and that there is an applicable SoP in force. As to whether Ms Dowling’s hypothesis fits the SoP however, there is no material before us “pointing to” the onset of Ms Dowling’s major depressive disorder within 12 months of her experiencing a category 2 stressor as required by the SoP, even assuming that those stressors continued until the end of her deployment to East Timor. It is clear on the authorities that for clinical onset to be shown, the relevant symptoms or features of the particular disease are required to be present[15]. However, whilst it is clear on the material before us that Ms Dowling suffered from a major depressive disorder at least by December 2004, there is nothing “pointing to” its existence prior to that date. In these circumstances, Ms Dowling’s hypothesis as to the link between her service and her major depressive disorder does not fit the template of the SoP.
[15] See Lees v Repatriation Commission (2002) 125 FCR 331.
36. The previous SoP, Instrument No 58 of 1998, requires the clinical onset of a depressive disorder within two years of a “severe psychosocial stressor”. Having regard to the definition of that phrase in the SoP as set out above however, there is no material before us pointing to Ms Dowling having experienced a stressor of the kind there described. As there is also no medical evidence pointing to the onset of her condition within two years of the ending of her deployment, her hypothesis also does not fit that SoP.
37. As Ms Dowling’s hypothesis does not fit either SoP, we have concluded that the hypothesis is not “reasonable” within the meaning of the VE Act. Her claim in relation to this condition must therefore fail for that reason and it is also unnecessary for us to consider the remaining Deledio steps in relation to this condition.
conclusion
38. Although Ms Dowling has raised hypotheses connecting each of her claimed conditions with her service, we have concluded in each case that the hypothesis does not fit the template of the applicable SoP. In relation to Ms Dowling’s left thumb condition, the hypothesis advanced also does not connect that condition with her operational service. We have accordingly also concluded in each case that the hypothesis advanced is not “reasonable” and therefore the conditions are not “war-caused” within the meaning of the VE Act. Ms Dowling therefore has no entitlement to disability pension as a result of the conditions and we are obliged to affirm the decision under review.
39. Before leaving the matter, we should add that the material before us gave us no reason to doubt Ms Dowling’s claims that she was subjected to significant harassment and mistreatment in East Timor, by the Army personnel serving alongside her, and the respondent did not dispute this. Whilst, for the reasons we have given, we do not consider that this entitles Ms Dowling to a disability pension under the VE Act, it is nevertheless highly regrettable that Ms Dowling was subjected to such treatment by fellow Australian service personnel whilst serving her country overseas.
decision
40. The decision under review is affirmed.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean
And Mr S J Ellis AM (Member)Signed: ............J Coulthard..........................................
AssociateDate of Hearing 27 January 2011
Date of Decision 28 March 2011
Counsel for the Applicant Mr C Swan
Solicitor for the Applicant Swan LawyersAdvocate for the Respondent Mr A Crowe
DVA
was in relevantly identical terms.
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