Drazinic and Military Rehabilitation and Compensation Commission (Compensation)

[2024] AATA 2706

Drazinic and Military Rehabilitation and Compensation Commission (Compensation) [2024] AATA 2706 (1 August 2024)

ReviewNumber:  2023/7279, 2023/7297, 2023/7296, 2023/7295, 2023/7294, 2023/7293, 2023/7292  

Division:                  VETERANS' APPEALS DIVISION

File Number(s):       , 2023/7279, 2023/72972023/7296, 2023/7295, 2023/7294, 2023/7293, 2023/7292

Re:Jakov Antun Drazinic

APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal:Senior Member George

Date:1 August 2024

Place:Adelaide

The decisions under review are affirmed.

.............[sgnd]...............................................

Senior Member George

CATCHWORDS

VETERANS – Australian Army – whether applicant sustained an injury – whether applicant entitled to compensation – panic disorder – adjustment disorder – anxiety disorder – chronic insomnia disorder – hip osteoarthritis – bilateral rotator cuff syndrome – lumbar spondylosis – decisions under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth)

REASONS FOR DECISION

Senior Member George

1 August 2024

1. Mr Jakov Antun Drazinic enlisted in the Army in July 1999 and was medically discharged in September 2000. A relevant claim for Major Depression with Anxiety with effect from 7 February 2000 has been accepted,[1] having previously been disallowed.[2] Mr Drazinic has made further claims for psychiatric and musculoskeletal conditions.

   [1] Exhibit J1, Applicant’s Bundle of Further Documents in addition to SOFIC, Determination of your Liability claim and Reasons for Decision (DRCA), 25 February 2020.

   [2] Exhibit J1, T-Documents, T41, Decision, pages 291-292.

2. By three decisions dated 27 September 2023, liability was denied under s 14 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) (“the DRCA”) for the following:

   Claimed psychiatric conditions

   (a)panic disorder;[3]

   (b)adjustment disorder;[4]

   (c)anxiety disorder;[5]

   (d)chronic insomnia disorder;[6]

   [3] Exhibit J1, T-Documents, T11, T34.

   [4] Exhibit J1, T-Documents, T8, T34.

   [5] Exhibit J1, T-Documents, T10, T34.

   [6] Exhibit J1, T-Documents, T9, T34.

   Claimed musculoskeletal conditions

   (e)hip osteoarthritis;[7]

   (f)bilateral rotator cuff syndrome;[8] and

   (g)lumbar spondylosis.[9]

   [7] Exhibit J1, T-Documents, T26, T35

   [8] Exhibit J1, T-Documents, T7, T33.

   [9] Exhibit J1, T-Documents, T6, T33.

3. Mr Drazinic has applied for a review of the refusal decisions.

4. The primary issue for the Tribunal to determine is whether Mr Drazinic has sustained an injury in accordance with ss 5A, 5B, 6 and 7 of the DRCA. Following from this, a question arises of whether Mr Drazinic is entitled to compensation under s 14 of the DRCA.

5. For the following reasons, the Tribunal has decided to affirm the decisions under review.

   MATERIAL FACTS

6. Mr Drazinic was married prior to joining the Army. He and his wife had four primary school aged children. He had previously held well-remunerated employment.[10]

   [10] Exhibit J1, T-Documents, T41, Unit Actions in Support of 1811554 GNR JA Drazinic, pages 270-271.

7. In his statement of 4 September 2019, Mr Drazinic wrote that he was discharged with a Comsuper payment and with mental health conditions. Mr Drazinic says that he left the Army requiring significant dental work and that he holds the Army responsible for destroying his family. Mr Drazinic says that he was not supported back into civilian life by the Army.

8. Mr Drazinic holds the Army responsible for his ongoing inability to work.[11] He says that his family has “lived a life of persecution, torture” since leaving the Army.[12] Mr Drazinic has made broad allegations of abuse, corruption, manipulation, falsification, and treason. Mr Drazinic has raised his concerns with the Prime Minister.

   [11] Exhibit J1, T-Documents, T5, Statement of 4 September 2019, pages 19-21.

   [12] Exhibit J1, Statutory Declaration dated 17 January 2023.

9. Mr Drazinic suffered various strains to his groin whilst undergoing recruit training at 1^st Recruit Training Battalion. Of particular note:

   (a)On 9 August 1999, during week three of recruit training, Mr Drazinic suffered a groin strain whilst running. The severity was assessed as moderate. Mr Drazinic was given physical training restrictions.[13]

   (b)On 31 August 1999, during week six of recruit training, Mr Drazinic received a slight groin strain whilst marching. The cause of injury was overexertion. The severity was assessed as mild. Mr Drazinic was given physical training restrictions for one day.[14]

   [13] Exhibit J1, T-Documents, T26, 1RTB Staff and Recruit Injury & Illness Report Proforma, page 224.

   [14] Exhibit J1, T-Documents, T40, 1RTB Staff and Recruit Injury & Illness Report Proforma page 251.

10. Mr Drazinic seems to have passed his recruit training in late 1999. However, by early 2000 he was constantly seeking medical support.

11. An Outpatient Clinical Record from 21 January 2000 recorded that Mr Drazinic suffered from “lethargy, anorexia, nausea, sweats, also emotionally strained due to personal issues at home”.[15] Three days later, Mr Drazinic’s outpatient record reads:

    Still much the same – insomnia worse. Attempted PT this [morning] did not have a good time – light headed.

    Looks Tired

    ? Emotionally stressed

    No PT this week

    [15] Exhibit J1, T-Documents, T41, Outpatient Clinical Record, page 252.

12. Mr Drazinic again presented with insomnia on 27 January 2000 and “Significant social stresses”.[16] On 7 February 2000, Mr Drazinic’s “severe family pressures” were attributed to his “symptoms of depression”. These symptoms were described as:

    Feels tired, run down, mood flat and depressed. Not sleeping – early morning wakening.

    Can’t go to work at this stage – never been like this before.[17]

    [16] Exhibit J1, Outpatient Clinical Record.

    [17] Exhibit J1, T-Documents, T41, Outpatient Clinical Record, page 265.

13. A Specialist Referral Report dated 6 March 2000 stated:

    Still depressed. There has been some improvement in his mood, but still has poor concentration, low motivation and energy, constantly worrying about wife’s welfare and her physical state. Not suicidal, too concerned for the family to do this.

    Apparently cannot have compassionate transfer paperwork processed until back at work! Is not currently well enough to go to work.

    Should continue, con leave for at least 2 weeks.

    Fell agitated, looks forward to nothing, sleeps 4 hours a night only.[18]

    [18] Exhibit J1, T-Documents, T41, Specialist Referral and Report, page 269.

14. By 7 March 2000 Mr Drazinic’s Army career had begun to end. An Outpatient Clinical Record reported “I really think he should leave the Army altogether – but I am not pushing him in that direction”. Those notes also have an annotation “Compo discussed”.[19]

    [19] Exhibit J1, T-Documents, T41, Continuation, page 283.

15. Days later, on 13 March 2000, a report signed by Mr Drazinic’s Commanding Officer at 131^st  Locating Battery read that Mr Drazinic required constant supervision and “He has not been on any field exercises due to his present situation”.[20] By this stage, Mr Drazinic had served a total of eight months in the Army.

    [20] Exhibit J1, T-Documents, T41, Report on a Case Referred for a Psychiatric or Psychological Examination, page 266.

16. On 21 March 2000, a Specialist Referral Report stated:

    Depressive symptoms persist.

    Multiple problems, family difficulties persist, he remains depressed, feels he can’t show his face at work.

    There is strong evidence that this man has personality unsuited for service. Compassionate posting has been refused, He is unable to commit to deployment or full time service due to family problems and personal factors.

    He should be dismissed from Army on this basis A.S.A.P [21]

    [21] Exhibit J1, T-Documents, T41, Outpatient Clinical Record, page 272.

17. A subsequent Specialist Referral Report dated 4 April 2000 stated that “Overall this man is too depressed to remain in service, depression is likely to persist whilst in the Army”. It recommended that Mr Drazinic should remain on convalescent leave until discharge.[22]

    [22] Exhibit J1, T-Documents, T41, Specialist Referral and Report, page 273.

18. A Specialist Referral Report dated 19 July 2000 recorded that Mr Drazinic had been under the care of a psychiatrist “since February 2000 with major deficiencies, illness. Discharged from the Army on this basis”.[23]

    [23] Exhibit J1, T-Documents, T41, Specialist Referral and Report, page 256.

19. Mr Drazinic has attributed his claimed psychiatric and musculoskeletal conditions to his Army service. He has claimed that his groin strain was reoccurring throughout his training and that he developed a limp.[24] Mr Drazinic has also claimed that his permanent gait and osteoarthritis in his hip and lower back was caused by a lack of treatment by the Army.[25]

    [24] Exhibit J1, T-Documents, T18, Claimant Report – Contention,  page 111.

    [25] Exhibit J1, T-Documents, T26, Initial Liability Claim, page 149.

20. Mr Drazinic has claimed that he conducted lifting and carrying from the date of his enlistment until September 2000, including carrying 65-kilogram packs.[26] Mr Drazinic claims that from June 1999 to September 2000 he was engaged in a full regime of Army training of firing, carrying and climbing on average five days a week for an average of eight hours a day.[27]

    [26] Exhibit J1, T-Documents, T18, Claimant Report – Contention, page 112.

    [27] Exhibit J1, T-Documents, T18, Claimant Report – Contention, pages 113-114.

21. Mr Drazinic has been treated by several medical doctors, including his general practitioner Dr McGree and psychiatrist Dr Jenkins. Mr Drazinic has also consulted a psychiatrist, Dr Menon, and orthopaedic surgeon, Dr Roche.

    Dr McGree

22. Dr McGree accepts that Mr Drazinic is suffering from the following disabilities: achilles tendinopathy and bursitis; chondromalacia patellae; cuts, stabs abrasions and lacerations, dislocations, fracture; internal derangement of the knee; intervertebral disc prolapse, sprain and strain; osteoarthritis, join instability; labral tear; lumbar spondylosis; shin splints; thoracic spondylosis; plantar pasciitis; rotator cuff syndrome; solar keratosis; non-melanotic malignant neoplasm of the skin; sensorineural hearing loss; tinnitus; and major depression with anxiety.[28]

    [28] Exhibit J1, T-Documents, T24, Accepted Disabilities, page 143; see also letter of 22 November 2019 in T7.

23. Dr McGree undertook an assessment dated 19 September 2019.[29] He fully attributed the cause of Mr Drazinic’s facet joint osteoarthritis of the cervical spine, lumbar spondylosis, and rotator cuff syndrome to carrying a rifle and pack and physical training in 2000.

    [29] Exhibit J1, T-Documents, T17, Assessments, pages 103-110.

24. An MRI scan of Mr Drazinic’s cervical spine and left and right shoulders 31 August 2018, as requested by Dr McGree, reported that no rotator cuff tear was identified. Mr Drazinic was found to have “Moderate to severe left C4/5 neural exit foraminal stenoisis” and “Mild to moderate spinal canal and neural exit foraminal stenoses”. [30]

    [30] Exhibit J1, Letter from Port Curtis Medical Centre to Dr Jabbour of 10 October 2023.

25. In a medical certificate dated 20 August 2021, Dr McGree stated the date of Mr Drazinic’s retirement due to permanent incapacity, invalidity, or disability was 7 February 2000.[31]

    [31] Exhibit J1, Letter from Port Curtis Medical Centre to Dr Jabbour of 10 October 2023.

26. An x-ray of Mr Drazinic’s hips on 12 July 2022, as requested by Dr McGree, found:

    Pelvic alignment is maintained. Both hip joints are enlocated. No fractures or dislocation. Articular margins and join spaces are preserved. Few phleboliths are seen projected over bilateral hemipelvises, Pubic symphysis and sacroiliac joints appear unremarkable.[32]

    [32] Exhibit J1, Section C: Medical certification.

27. Dr McGree does not state that Mr Drazinic is suffering from the following psychiatric conditions: panic disorder; adjustment disorder; anxiety disorder; or chronic insomnia disorder.

    Dr Jenkins

28. Dr Jenkins has diagnosed Mr Drazinic with major depression with anxiety, which has been permanent since 2000 and will not improve with treatment.[33] Dr Jenkins is of the opinion that Dr Drazinic’s major depression with anxiety has rendered him totally and permanently impaired.[34] This condition has meant that Mr Drazinic is “Unable to function in most settings without support; unable to communicate properly”.[35]

    [33] Exhibit J1, T-Documents, T5, Diagnostic Assessment, pages 22-32.

    [34] Exhibit J1, T-Documents, T23, Permanent Impairment Assessment Report, page 132

    [35] Exhibit J1, T-Documents, T23, Permanent Impairment Assessment Report, page 136.

29. In his medical history, Dr Jenkins lists the following conditions: achilles tendinopathy and bursitis; chondromalacia patellae, cuts, stabs abrasions and lacerations; internal derangement of the knee; intervertebral disc prolapse; osteoarthritis; and lumbar spondylosis.[36]

    [36] Exhibit J1, T-Documents, T5, Report of Dr Jenkins, page 17.

30. Dr Jenkins does not state that Mr Drazinic is suffering from the following psychiatric conditions: panic disorder; adjustment disorder; anxiety disorder; or chronic insomnia disorder.

    Dr Menon

31. The Tribunal has before it a report from Dr Menon dated 18 October 2022. That report includes an email from Mr Drazinic’s wife, which describes a decline in his mental health. It also makes allegations against the Department of Veterans’ Affairs. It is unnecessary to repeat Dr Menon’s report. It is sufficient to note his opinion that Mr Drazinic is suffering a moderate Major Depressive Disorder that is unlikely to improve.[37]

    [37] Exhibit J1, T-Documents, T29, Report of Dr Menon, page 170.

32. Mr Drazinic contends that Dr Menon was not provided with full documentation and that the report is false.[38]

    [38] Exhibit J1, Applicant’s Statement of Issues, Facts and Contentions.

33. Dr Menon does not state that Mr Drazinic is suffering from the following psychiatric conditions: panic disorder; adjustment disorder; anxiety disorder; or chronic insomnia disorder.

    Dr Roche

34. Dr Roche provided a report dated 29 October 2022. [39] Dr Roche wrote that Mr Drazinic suffered “minimal arthritis within the hip joints”. However, his “groin strains from 1999 have not led to any arthritis and the slight amount present is likely to be due to a congenital condition”.

    [39] Exhibit J1, Report of Dr Roche, T31, page 174-176.

35. Of Mr Drazinic’s cervical spondylosis, Dr Roche found that:

    An MRI scan from 31/08/2022 has shown minor disc degeneration at several levels most notably at C4/5 and C5/6, there is minor foraminal stenosis at these levels with the exception of the left C4/5 that is moderate to severe, This does not correlate to any clinical findings on examination consistent with nerve entrapment.

    These findings on MRI are consistent with age-related change and therefore on the balance of probabilities have not been caused by service in the ADF. There has been no aggravation or acceleration.

36. Of Mr Dravidic’s lumbar spondylosis, Dr Roche found that:

    It is my opinion on the balance of probabilities there is no causation between his service and his lumbar spine degeneration. However, it is my opinion the activities in the 14 months of ADF service have accelerated presentation of his lumbar symptoms in the percentage of 1-9% due to the excessive loads placed on his spine during this time.

37. Of Mr Drazinic’s bilateral shoulder pain, Dr Roche wrote:

    The level of symptoms are completely out of proportion to the physical findings.

    As symptoms began at least 7 years following the discharge from the ADF and the lack of any notable change that could be regarded as an injury it is my opinion on the balance of probabilities that there is no causation between his service and his shoulder symptoms. However it is my opinion the activities in the ADF have accelerated presentation of his shoulder symptoms in the percentage of 1-9%.

38. Dr Roche concluded that Mr Drazinic’s physical conditions were most effectively treated with psychological interventions rather than surgery.

    CONSIDERATION

    Psychiatric claims 2023/7294, 2023/7296, 2023/7297, and 2023/729

39. Mr Drazinic has a medical diagnosis of a major depressive disorder with anxiety, with an onset of February 2000.

40. There is no probative medical evidence before the Tribunal from Dr McGree, Dr Jenkins or Dr Menon to establish a diagnosis that Mr Drazinic suffers from a panic disorder, adjustment disorder, anxiety disorder, or chronic insomnia disorder within the meaning of the DSM-5.

41. The Tribunal is satisfied that Mr Drazinic has variously suffered symptoms of panic, anxiety, insomnia since 2000. However, a mere symptom is distinct from an injury or other ailment or disease. Indeed, the balance of the evidence indicates that all of Mr Drazinic’s psychiatric symptoms are attributable to his major depression with anxiety which has rendered him totally and permanently impaired.

42. Accordingly, the Tribunal is not satisfied that Mr Drazinic suffers from any of the following psychiatric conditions: panic disorder; adjustment disorder; anxiety disorder; or chronic insomnia disorder. It follows that Mr Drazinic is not entitled to compensation under s 14 of the DRCA for these conditions.

    Conclusion – Psychiatric claims

43. The claims 2023/7294 for panic disorder, 2023/7296 for adjustment disorder, 2023/7297 for anxiety disorder, and 2023/7295 chronic insomnia disorder must be refused and no compensation is payable.

    Musculoskeletal claims 2023/7279, 2023/7293, and 2023/7292

44. Placing significant weight on the report of Dr Roche, the Tribunal is satisfied that Mr Drazinic suffers from the following musculoskeletal conditions: hip osteoarthritis, bilateral rotator cuff syndrome, and lumbar spondylosis.

45. The clinical records before the Tribunal do not support Dr McGree’s assertion that the clinical onset of Mr Drazinic’s musculoskeletal conditions was the year 2000. Rather, for the purposes of s 7(4) of the DRCA, the Tribunal is reasonably satisfied that the date of onset is 19 September 2019 when Dr McGree conducted his assessment. Furthermore, the Tribunal is not satisfied that Mr Drazinic’s Army service contributed to his musculoskeletal conditions to any significant degree where subsections 5B(2)-(3) of the DRCA read:

    (2)  In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth, the following matters may be taken into account:

    (a)  the duration of the employment;

    (b)  the nature of, and particular tasks involved in, the employment;

    (c)  any predisposition of the employee to the ailment or aggravation;

    (d)  any activities of the employee not related to the employment;

    (e)  any other matters affecting the employee's health.

    This subsection does not limit the matters that may be taken into account.

    (3)  In this Act:

    "significant degree" means a degree that is substantially more than material.

46. Mr Drazinic served in the Army from July 1999 to September 2000. Following recruit training, Mr Drazinic spent significant periods under medical care on restricted duties and on leave. He did not engage in field activities at 131^st Locating Battery. The process to separate Mr Drazinic from the Army had begun by March 2000 after eight months of service.

47. The Tribunal is reasonably satisfied that at times during his training at 1^st Recruit Training Battalion that Mr Drazinic engaged in marching, running, firing, carrying and climbing. The Tribunal is also reasonably satisfied that Mr Drazinic suffered groin strain because of some of these activities. However, this groin strain was mild or moderate. The Tribunal is not reasonably satisfied that Mr Drazinic’s hip osteoarthritis is in any way related to his groin strain sustained during his brief Army service many years before clinical onset.

48. The Tribunal notes Dr Roche’s opinion that Mr Drazinic’s Army service accelerated the presentation of his shoulder symptoms and lumbar spondylosis by one to nine percent. The Tribunal regards the lower estimate of this range to be more accurate given that Mr Drazinic was under constant medical care from January 2000, he had significant periods of leave, and he was regularly on restricted duties.

1. Dr Roche’s opinion stands in stark contrast to Dr McGree’s full attribution of Mr Drazinic’s musculoskeletal conditions to carrying a rifle and pack and physical training; and presenting in 2000. Dr McGree’s reasoning is not obvious and the Tribunal places greater weight on Dr Roche’s opinion.

2. On the evidence before it, the Tribunal is not satisfied that Mr Drazinic’s short and restricted Army service contributed to his bilateral rotator cuff syndrome and lumbar spondylosis to a significant degree.

3. Accordingly, the Tribunal is not satisfied that whether Mr Drazinic has sustained a claimed musculoskeletal injury attributable to his Army service in accordance with ss 5A, 5B, 6 and 7 of the DRCA. It follows that Mr Drazinic is not entitled to compensation under s 14 of the DRCA for these claimed conditions.

   Conclusion – Musculoskeletal claims

4. The claims 2023/7279 for hip osteoarthritis, 2023/7293 for bilateral rotator cuff syndrome, and 2023/7292 for lumbar spondylosis must be refused and no compensation is payable.

   CONCLUSION

5. Mr Drazinic’s claims must be refused. No compensation is payable. The decisions under review must be affirmed.

   DECISION

6. The decisions under review are affirmed.

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member George

............................[Sgnd]...................................

Associate

Date of Decision:	1 August 2024
Date of Hearing:	4 June 2024
Representation for the Applicant:	Mrs Catherine Drazinic
Solicitor for the Respondent:	Mr Ben Dube Sparke Helmore