Fogarty and Repatriation Commission
[2004] AATA 535
•27 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 535
ADMINISTRATIVE APPEALS TRIBUNAL) № V2003/45
} № V2003/833
VETERANS' APPEALS DIVISION) Re OLIVE FOGARTY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mrs J. Dwyer, Senior Member
Dr P. Fricker, Member
Mr W.G. McLean, Member
Date27 May 2004
PlaceMelbourne
Decision The Tribunal decides:
(i) The decision of the Repatriation Commission made 4 October 1995 and affirmed by the Veterans’ Review Board on 17 September 1998 in respect of ischaemic heart disease is affirmed.
(ii) The decision of the Repatriation Commission made 4 October 1995 and affirmed by the Veterans’ Review Board on 17 September 1998 in respect of generalised anxiety disorder is affirmed.
(iii) The decision of the Repatriation Commission made 12 March 1999 and affirmed by the Veterans’ Review Board on 9 October 2000 in respect of diverticular disease of the colon is affirmed.
[sgd] Mrs Joan Dwyer
Senior Member
VETERANS’ AFFAIRS – remittals from Federal Court – whether veteran’s ischaemic heart disease war-caused – hypothesis that ischaemic heart disease war-caused because of existence of war-caused hypertension prior to clinical onset – hypothesis that hypertension due to service-related alcohol consumption or anxiety factors not reasonable – ischaemic heart disease not war-caused – claim for anxiety disorder to be accepted as war-caused – whether veteran suffered from anxiety disorder at time he lodged claim – reference to DSMIV Diagnostic Criteria for Generalised Anxiety Disorder, Anxiety Disorder Not Otherwise Specified and Anxiety Disorder due to Medical Condition – finding that veteran not suffering anxiety disorder when he lodged claim – whether veteran’s diverticular disease of the colon war-caused – hypothesis raised not reasonable as not fitting template in relevant Statement of Principles – diverticular disease not war-caused – decisions under review affirmed.
Veterans’ Entitlements Act 1986 ss 119, 120A
Fogarty v Repatriation Commission [2003] FCAFC 136
Repatriation Commission v Deledio (1998) 49 ALD 193
Fogarty v Repatriation Commission [2002] FCA 1541
Repatriation Commission v McKenna (1998) 52 ALD 72
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Keeley (2000) 98 FCR 108
Lees v Repatriation Commission (2002) 36 AAR 484
Repatriation Commission v Cornelius [2002] FCA 750
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Gosewinckel (1999) 59 ALD 690Benjamin v Repatriation Commission (2001) 34 AAR 270 [2001] FCA 1879
REASONS FOR DECISION
27 May 2004 Mrs J. Dwyer, Senior Member
Dr P. Fricker, Member
Mr W.G. McLean, Member
1. This hearing concerned three remittals from the Federal Court. First, on 13 December 2002, Ryan J set aside so much of the decision of the Administrative Appeals Tribunal ("the Tribunal") made on 24 August 2000 as determined that Mr Fogarty’s ischaemic heart disease was not war‑caused, and remitted that issue to the Tribunal for re‑hearing. Secondly, by consent on 4 July 2003, Ryan J set aside the decision of the Tribunal made 2 October 2002, which affirmed a decision that Mr Fogarty’s diverticular disease was not war‑caused, and remitted that matter to the Tribunal for hearing. Thirdly, the Full Court of the Federal Court on 20 June 2003 set aside the decision of Ryan J, which had affirmed a decision of the Tribunal made on 24 August 2000, to the extent that it decided that Mr Fogarty’s generalised anxiety disorder was not war‑caused. The Full Court, Spender, Tamberlin and Kenny JJ,in substitution remitted the matter to the Tribunal for further hearing.
2. All three remittals were heard together. The Tribunal must decide whether ischaemic heart disease, diverticular disease of the colon and generalised anxiety disorder are war‑caused diseases under the Veterans’ Entitlements Act 1986 (“the Act”). Mr DeMarchi appeared for Mrs Fogarty, who has continued the applications started by her husband, since his death on 13 July 2001, pursuant to s 126 of the Act. The Tribunal had before it the documents (“the T‑documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 in both the 1998 and the 2000 hearings, and also the exhibits tendered during the hearing. For convenience, they are referred to as T1998 and T2000. Mrs Fogarty gave evidence as did her daughter, Mrs Hutchinson. Medical evidence for Mrs Fogarty was given by Dr Rosenbaum, a cardiologist, and Dr Strauss, a psychiatrist. Ms McMahon of Counsel appeared for the respondent. She called Dr Kenny, a psychiatrist, who gave evidence by telephone.
SERVICE HISTORY
3. Mr Fogarty served in the Royal Australian Navy (the “Navy”) from 30 September 1940 to 4 January 1946. He served in the West Pacific and thus the whole of his service is “operational service” as defined in s 6 of the Act.
APPLICATION OF RELEVANT LEGISLATION
4. The application of the relevant legislation was explained by the Full Court of the Federal Court in Fogarty v Repatriation Commission [2003] FCAFC 136 as follows:
16. Pursuant to s 13(1) of the Act, the Commonwealth is liable to pay a pension to a veteran where a veteran has become incapacitated from a war-caused injury or disease. The condition of "generalised anxiety disorder" claimed by the veteran in this case is a "disease" within the meaning of the Act: see s 5D(1). Section 9 of the Act sets out the circumstances in which a disease is taken to be war-caused. For present purposes, it suffices to note that s 9(1)(a) and (b) provide, in substance, that, for the purposes of the Act, a disease contracted by a veteran shall be taken to be a war-caused disease if the disease resulted from an occurrence that happened while the veteran was rendering operational service, or the disease arose out of, or was attributable to, the veteran's eligible war service.
17. Provision is made in s 120 of the Act for the standard of proof to be applied by the Commission, and on review by the Board or Tribunal, in connection with questions arising on a pension claim. The effect of s 120(4) is that the Commission, or the reviewing body, must decide whether a veteran suffers, or suffered, from a disease by reference to its "reasonable satisfaction". Subsection 120(1) and (3) further provide:
(1) Where a claim under Part II for a pension in respect of the incapacity from ... disease of a veteran ... relates to the operational service rendered by the veteran, the Commission shall determine ... that the disease was a war-caused disease ... unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
...
(3) In applying subsection (1) ... in respect of the incapacity of a person from ... disease ... related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
...
(b) that the disease was a war-caused disease ...;
...
... 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 ... disease ... with the circumstances of the particular service rendered by the person.
Sub-section 120(6) provides that nothing in the Act "shall be taken to impose ... any onus of proving any matter that is, or might be, relevant to the determination of the claim ...".
18. Because the veteran's claim was lodged after 1 June 1994, s 120A applies to his claim: see s 120A(1). Subsection 120A(3) relevantly provides that, for the purposes of s 120(3), a hypothesis connecting a disease contracted by a veteran with the circumstances of his particular service is reasonable only if there is in force a Statement of Principles (determined under sub-ss 196B(2) or (11)) that upholds the hypothesis. A Statement of Principles ("SoP") is made by the Repatriation Medical Authority under s 196B of the Act in respect of particular kinds of injury, disease or death.
5. It is now well established that, when deciding whether a claimed condition is a war‑caused condition, the Tribunal must first decide whether it is reasonably satisfied that the veteran suffers from the claimed condition. The Full Court said (at paragraphs 34 and 35):
34. …The authorities establish that, where there is an issue as to whether or not a veteran is suffering from a claimed injury or disease, then the Commission (and, on review, the Board or the Tribunal) must decide the issue to its reasonable satisfaction, as required by s 120(4) of the Act: see Benjamin v Repatriation Commission (2001) 70 ALD 622 ("Benjamin"), at 634 (Moore, Emmett and Allsop JJ); Repatriation Commission v Cooke (1998) 90 FCR 307, at 310-311 (French, Drummond and Carr JJ); Repatriation Commission v Budworth (2001) 116 FCR 200, at 204-205 (Ryan, Marshall and Conti JJ); Repatriation Commission v Hill (2002) 69 ALD 581 ("Hill"), at 598-599 (Black CJ, Drummond and Kenny JJ); and Repatriation Commission v Gosewinckel (1999) 59 ALD 690, at 700-702 per Weinberg J.
35 As the Full Court said in Benjamin, at 634:
Section 120(1) of the Act assumes the existence of a relevant injury or disease and provides a standard of proof for the determination of whether that injury or disease was war-caused. When the [C]ommission, or the [T]ribunal on review, is required to determine whether a veteran is suffering from a particular injury or disease, that issue must be decided to the reasonable satisfaction of the decision-maker, in accordance with s 120(4) of the Act: see Repatriation Commission v Budworth (2001) 116 FCR 200 at 204, [15]; 66 ALD 285 at 289.
Although the Tribunal is not bound by the rules of evidence, the Full Court held in Repatriation Commission v Smith (1987) 15 FCR 327, at 335, that the requirement in s 120(4) that the Tribunal must be "reasonably satisfied" imports the civil standard of proof.
6. If the Tribunal is reasonably satisfied that a veteran suffers from the claimed condition, then the Tribunal must apply the steps explained by the Full Court in Repatriation Commission v Deledio (1998) 49 ALD 193, at page 206:
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)…
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.
7. The Full Court in Fogarty, at paragraph 42, discussed the issue of deciding which is the applicable Statement of Principles ("SoP") when one SoP has been revoked and a new one substituted. The Full Court said on that issue, in respect of generalised anxiety disorder:
42. …When the Tribunal made its decision on 24 August 2000, the 2000 SoP was in force, and the earlier SoPs concerning generalised anxiety disorder (including the 1994 SoP) had been revoked. In Repatriation Commission v Gorton (2001) 110 FCR 321, the Full Court declined to overrule the decision in Repatriation Commission v Keeley (2000) 98 FCR 108. Keeley held that a claimant for a pension under the Act had an accrued right to have his claim determined by the Tribunal in accordance with the SoP in force at the time his claim was made, notwithstanding that the SoP had been revoked by the time the Tribunal came to make its decision. At the same time, the Full Court in Gorton held that the Tribunal was also "bound to apply the SoP current at the time of the hearing before it": see Gorton, at 334 per Allsop J (with whose reasons Emmett J agreed) and 331-2 per Heerey J. It follows that the Tribunal in this case was obliged to consider both the 1994 SoP and the 2000 SoP before reaching a decision adverse to the veteran. The Tribunal erred in law in failing to consider the 2000 SoP.
8. Another issue which arose in the Full Court was the course to be adopted, if the Tribunal should decide that a veteran does not display the symptoms of a claimed disease. Ryan J (Fogarty v Repatriation Commission [2002] FCA 1541) said, at paragraphs 14 and 16, of his decision of 13 December 2002:
14 The process of reasoning which a decision-maker is obliged to follow under the Act is not without difficulty. It has been, over time, the subject of considerable legislative amendment and comment by single Judges and Full Courts of this Court. It is now settled law that the essential task is to take, in order, the four steps formulated in Deledio. However, the reasoning in Deledio starts from the premise that the veteran is suffering, or at the time of his or her death was suffering, from a disease. Where it is not common ground as to what (if any) disease is or was suffered by the veteran a first, or preliminary, question must be answered to the reasonable satisfaction of the decision-maker. That is "From what collection of symptoms is or was the veteran suffering?"; Repatriation Commission v Cooke (1998) 90 FCR 307 at 310. While considering this preliminary question, medical labels, commonly understood terms for specific conditions and the elements of any SoP are irrelevant and should be disregarded. In Repatriation Commission v Hill [2002] FCAFC 192 ("Hill"), a case concerning Post Traumatic Stress Disorder ("PTSD"), it was not in dispute that the veteran suffered from PTSD and so the only question was whether it was war-caused. However, the Court in Hill made this observation at [63] about the statutory test to be applied in resolving the preliminary question of the existence of a disease;
"It should be borne in mind that the issue whether a particular disease exists is governed by s 120(4) of the Act, not ss 120(1) and (3). That is, the issue whether or not a disease exists is to be decided to the reasonable satisfaction of the Commission: see Repatriation Commission v Cooke at 20 and Gosewinckel at [49]."
…
16 Before anything else, the Tribunal must find to its "reasonable satisfaction" that a disease exists; Budworth [at [14 - 15] [Repatriation Commission v Budworth (2001) 116 FCR 200 at 20405]. It is not confined to considering only those diseases or conditions contended for by one or other party before it, and should not test the existence of a postulated disease by reference to any SoP while conducting this first inquiry; see Benjamin at [41] and [48]-[50] [Benjamin v Repatriation Commission (2001) 34 AAR 270 at 280‑282]. At this first stage it is necessary to determine whether the veteran has a "collection of relevant symptoms", and not the "nomenclature or ... traditional medical label" that may be used to describe them; Budworth at [19]. (After the symptoms from which a veteran suffers have been identified, it might be necessary to have regard, in a general and preliminary way, to various SoPs to determine into which of them the identified symptoms fit. That may occur in taking the second step described in Deledio which is discussed below.)
ISCHAEMIC HEART DISEASE
9. It is not in dispute that Mr Fogarty suffered from ischaemic heart disease. He underwent coronary artery by‑pass surgery on 22 March 1994 (R6 p14, 21 & 22).
10. As set out in the applicant’s Statement of Facts and Contentions, the hypothesis relied on in regard to ischaemic heart disease is that it was caused by long standing hypertension which had been present since the early post‑war years and which resulted from service‑related consumption of alcohol. Mr Fogarty said in his statement (A9) that hypertension was diagnosed around 1955.
11. As to Mr Fogarty’s alcohol consumption, Mr DeMarchi relied on statements made by Mr Fogarty (A8) and Mrs Fogarty (A10). He also relied on the evidence of Mrs Fogarty and her daughter, Mrs Hutchinson, and on histories set out in medical reports before the Tribunal. Ms McMahon did not accept that Mr Fogarty had a service‑related drinking habit or that he drank to excess. She relied on the evidence he had given at an earlier hearing before the Tribunal, as set out in the transcript of that hearing (R4), and on his statement (A8), and on medical records in the T‑documents, of Dr Yoga (T98, p73) and of another doctor, probably Dr Baker (T2000 p91).
12. Applying the steps laid down by the Full Court in Deledio, the first step is to consider all the material before the Tribunal to see whether it points to a hypothesis connecting ischaemic heart disease with Mr Fogarty’s service. Mr Fogarty gave evidence as to his drinking habit before the Tribunal constituted by Commodore Gibbs, Mr Argent and Associate Professor Maynard on 5 July 2000. The transcript of that hearing was taken into evidence (R4).
13. Mr Fogarty said that he did not drink alcohol at all before he joined the Navy, at age 18. He said that he was a competitive swimmer and hated the thought of alcohol (R4, p16). He said he was introduced to alcohol on the examination vessel SS Victoria. He said that, when they came ashore after a fortnight at sea, they would go to the hotel. He said that he did not drink alcohol on the first occasion. “I might have had a strong double sars [sarsaparilla] the first occasion but…I weened myself of that and got on the heavy alcohol” (R4, p16).
14. Mr Fogarty said that, after he started drinking, he did not drink at sea, but when he came to shore he would have several beers. He said he would usually drink five or six glasses, “it all depends how many in the school. You were never anxious to get back” (R4 p17). Mr Fogarty said that he married in 1945. He said in the early days, after his marriage, he could not afford to drink much alcohol. He said that, after he left the Navy in 1946, he used to meet friends at the hotel every Friday night and he would drink six to eight glasses of beer on those occasions, but he could not afford to drink more often.
15. Mr Fogarty said that, by 1957, he was drinking about six glasses of beer a day and more on weekends (R4 p19). At the weekend he drank on Saturday but not usually on Sundays, unless a mate came and they would have a bottle (R4 p25). He was working at the meatworks at that time. Mr Fogarty said that the parking spot for the meat works was at the hotel and so after work the majority of workers would go into the hotel. He said it was “a ritual”.
16. The transcript of the hearing in 2000 shows that Mr Fogarty agreed that he might have minimised the quantity he was drinking to some extent when giving histories of his drinking habit to doctors (R4 p19). Mr Fogarty acknowledged that, because his wife, at first, was not a drinker at all, she did get annoyed with him about his drinking and that caused some problems. He said, “she let me know that she did not approve in no uncertain manner” (R4 p19).
17. Mr Fogarty was asked to comment on the fact that Mrs Fogarty had said that he used to become argumentative and irritable when he was drinking, and that sometimes he had been looking for an argument. He said it depended on what went on at work, but he added, “alcohol does a lot of things it should not do” (R4 p19).
18. Mr Fogarty was asked what hazardous things he might have done as a result of drinking. He said that driving would be the most dangerous. He explained: “You could say I was drunk enough to think that I was sober enough to drive (R4 p19). Mr Fogarty said that he never drank during the working day except when he was at Trades Hall, when he might meet shop stewards and have a beer at the pub at midday. He said he “drank usually after hours and plenty of it” (R4 p23).
19. Mr Fogarty said that he had been told in no uncertain manner by doctors that the amount of drinking he was doing was not healthy for him. He said the last doctor was Mr Skillington who performed his by‑pass surgery. He said he, “put the fear of Christ in me and stopped me” (R4 p21). Mr Skillington performed the by‑pass surgery in March 1994. In answer to questions from the Tribunal at the hearing in 2000 (R4 p32) Mr Fogarty explained that, although he had said he gave up drinking in 1990, he did still have an occasional drink. He also said that, in later years, he had a whisky occasionally (R4 p33).
20. We consider that the evidence from Mr Fogarty at the hearing on 5 July 2000 is important evidence as to his alcohol consumption. However, it gives a different history as to the commencement of a drinking habit from that in a statement he made on 6 August 1999 (A8). Paragraphs 2 to 8 of that statement are as follows:
…
2.I joined the Navy when I was 18 years of age, and I was never a drinker prior to joining the Navy. When I was at Cape Otway Signal Station, when contractors were building a radar station, beer was brought in and this was the first time I was introduced to beer and, I became intoxicated for the first time. I was then about 18½ years of age.
3.Later on I was on the examination vessel, S.S. Victoria. We would identify and board ships outside the 3 mile limit, this was for a fortnight at a time at sea. We would then be transferred to the depot for further instructions or relieving duties and would have access to alcohol then. I would routinely drink about 8 beers approximately every second day.
4.After discharge, I would meet friends at the hotel every Friday night, and would drink 8 or more glasses of beer per night. I would drink more on social occasions. I wanted to drink more but I was newly married and could not afford it. But I would drink more when an opportunity arose.
5.I increased my drinking a few years later when in 1957 I was drinking 4 glasses of beer per day, and this is in my records. On some occasions I would increase this quantity to 6‑8 glasses of beer per day, and more on weekends and this pattern continued until 1988, when I was experiencing major health problems.
6.I was diagnosed by Dr Cass as having high blood pressure in the early 1960’s and have been on hypertensive medication since this time.
7.My current Doctor is Dr Lee, and he has been treating me since 1985, including treatment for “long‑standing hypertension”. The condition confirmed damage to the heart area due to “long‑standing hypertension” by Heart Specialist, Peter Skillington in official report of operation.
8.The conditions on board the minesweepers and destroyers were very stressful and horrendous, especially when I experienced kamikaze attacks whilst screening the Aircraft carrier “Formidable”, both ships were hit twice on separate occasions. I lost some friends during these attacks, although my ship experienced no direct hits, some were close. The stress was relieved by drinking alcohol with my mates when on leave.
21. Mrs Fogarty and her daughter, Mrs Hutchinson, both gave evidence at the hearing this year.
22. Mrs Fogarty said that her husband had a very successful career after service. He became a Member of State Parliament and was for some years the Deputy Speaker. His employment history and career in Parliament was given by Mrs Fogarty as follows:
1946 to 1948 – Apprentice Cabinet Maker with Myer
1948 to 1951 – Fencer
1951 to 1958 – Meat Worker and Shop Steward
1958 to 1973 – Union Official at Trades Hall
1973 to 1988 – State Member of Parliament for Sunshine, including periods as Shadow Minister for Agriculture, Deputy Speaker and Chairman of Committees.
23. The evidence of Mrs Fogarty and Mrs Hutchinson as to Mr Fogarty's alcohol consumption was of limited assistance, primarily because most of Mr Fogarty’s alcohol consumption was at hotels and thus did not take place in the presence of either Mrs Fogarty or Mrs Hutchinson. Further, as Mrs Fogarty said a number of times, she is now 81 and she was being asked to remember events that occurred approximately 60 years ago. She very frankly said that she was unable to give precise dates or precise estimates of the quantity of alcohol that her husband had drunk at different times.
24. Mrs Fogarty said that the family was in difficult financial circumstances when Mr Fogarty was discharged from the Navy until she went to work in approximately 1953. During that period, she was troubled by the fact that her husband was spending money on alcohol consumption, which, in her view, could have been better spent on other family expenditure. Mrs Fogarty said that that Mr Fogarty frequently went to the pub after work, particularly when he was working at the meat works, and when he was at Trades Hall, and that when he came home she could tell from his demeanour that he had been drinking. She said that sometimes he would be irritable and verbally aggressive when he came home. On occasions, when they came home from evening functions, Mrs Fogarty said her husband’s driving was erratic due to consumption of alcohol. Mrs Fogarty said that her husband went to the Spotswood Returned & Services League of Australia (the “RSL”) every Saturday morning from about 11:00 a.m. to 1:00 p.m. She said she had been told that he had once caused a fight at a RSL, probably due to his drinking. She said he also drank at home over the weekend, especially if friends came around.
25. Mrs Fogarty said that her husband never gave up drinking all together, but she agreed that he did reduce his alcohol consumption to a considerable extent after Mr Skillington advised him that he was obliged to do so in 1994. She said their marriage was better after he reduced his drinking. There had been unhappy times earlier.
26. Mrs Hutchinson said that she had very early memories, probably from about the age of five to six, of her father drinking quite a lot of beer. She also said that she remembered being left in the car by her father while he went to the pub for the “six o’clock swill” after he had taken her to the football on Saturday afternoons. She said that she remembered that her father’s drinking brought on aggression and that sometimes she and her mother and brother would wonder how her father would be when he came home, and whether he would be “cranky”. Mrs Hutchinson said that her father spanked both her and her brother, but that the brother suffered more than she did. However she said that she herself was scared of her father, if she thought she had done anything that could upset him.
27. Mrs Hutchinson said her father always drank beer when she was young, although in later life he occasionally drank wine and spirits. She said that she remembered him as a big drinker before she was married in 1973. She said that she regarded somebody as drinking a lot, or as being a big drinker, if he was affected by alcohol.
28. We had before us two reports from Dr Rosenbaum. Dr Rosenbaum’s first report of 8 April 1997 was written after seeing Mr Fogarty. In that report (T1998 p104) Dr Rosenbaum wrote:
The Veteran indicates that during war service he took alcohol whenever it was available, particularly in ports. Subsequently he settled to a life time habit of drinking approximately four units of alcohol per day.
We note that is the same estimate as Mr Fogarty gave to an unidentified doctor, probably, we were told, Dr Baker, in 1957 (T2000 p91) where the doctor has written “averages 4 glasses of beer each evening”. It is also consistent with the note made by Dr Yoga (T1998 p73).
29. That evidence points to Mr Fogarty having a drinking habit of at least four drinks a day from the time when he started working at the meat works in about 1951, and drinking more on Saturdays when he went to the RSL for a couple of hours in the morning, but less on Sundays, unless a mate came around. There is a record in 1957 that Mr Fogarty had gained 2½ stone in the last three years (T2000 p91). That is consistent with an increase in drinking over that time.
30. There is a question as to when hypertension was diagnosed and when treatment of hypertension commenced. Mr Fogarty (R4 p24) said that Dr Phillips diagnosed hypertension in the late 1950s or the mid to late 1950s. That is consistent with the report of Dr Phillips (1998 p99) dated 28 September 1995. Dr Phillips wrote that he had treated Mr Fogarty between 1953 and 1973. He wrote: “He also was treated over this period for mild essential hypertension which I considered was stress related”. Dr Phillips wrote that none of his treatments were then on record, and he was relying on his memory.
31. The T1998 documents also include a report from Dr Lee dated 23 September 1995 (p86). He wrote:
…
Mr Fogarty informs me that he has had a history of hypertension dating back to his early post war years. I have been his doctor for the last 10 years and can only confirm that he has had a problem with his blood pressure prior to him consulting me 10 years ago. If this information is correct it is my opinion that Mr Fogarty’s condition is war service related and falls within the rules as set out in the Statement of Principles concerning ischaemic heart disease. His hypertension could have originated from stress, strain, mental tension and cramped living conditions during active service.
Step one of Deledio
32. The hypothesis relied on by Mr De Marchi is that Mr Fogarty’s ischaemic heart disease was connected with the circumstances of his relevant service due to the presence of hypertension, which was itself connected with service, before the clinical onset of ischaemic heart disease. The hypothesis further asserted that the hypertension was connected with service because of Mr Fogarty’s consumption of alcohol which was a habit he first developed during service.
33. In applying the first step of Deledio there is material pointing to Mr Fogarty suffering from hypertension, on his evidence, from the mid to late 1950s. That is consistent with the reports of Dr Phillips and Dr Lee.
34. There is also material from Mr Fogarty stating that he did not drink alcohol before he enlisted in the Navy and that he started in the Navy, either while at Cape Otway Signal Station, when contractors brought in beer and he became intoxicated for the first time at age 18½, or while he was serving on the examination vessel S.S. Victoria. He said that, when the crew went ashore after a fortnight at sea, they would drink in a hotel or at the depot.
Step two
35. There are current SoPs in respect of both ischaemic heart disease (Instrument No 50 of 2003) and hypertension (Instrument No 35 of 2003 as amended by Instrument No 3 of 2004).
Step three
36. The Tribunal must therefore form the opinion whether the hypothesis raised is a reasonable one. It will be reasonable if the hypothesis fits, that is to say is consistent with the “templates” to be found in the SoPs. The hypothesis raised must contain one or more of the factors set out in the SoP, “…that must as a minimum exist” and “must be related to service rendered by a person” (as required by s 196B(2)(d) and (e) of the Act). As the Full Court said in Deledio
“…If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.”
37. SoP No 50 of 2003 concerning ischaemic heart disease does recognise hypertension as a factor which can raise a reasonable hypothesis connecting ischaemic heart disease with the circumstances of service. It contains factor 5(a) “the presence of hypertension before clinical onset of ischaemic heart disease”.
38. The decision of the Full Court of the Federal Court in Repatriation Commission v McKenna (1998) 52 ALD 72, establishes that, where a SoP includes as a factor the presence of a disease in respect of which there is a SoP, a hypothesis which relies on the presence of that disease is only reasonable if it contains one or more of the factors required to be present in that secondary SoP.
39. The SoP for hypertension (No 35 of 2003) contains factor 5(b) which, as at the date of hearing, taking into account the amendment made by Instrument No 3 of 2004 on 24 February 2004, read as follows:
(b)…consuming an average of at least 200 grams per week of alcohol for a continuous period of at least 6 months immediately before the clinical onset of hypertension, which cannot be decreased to less than an average of 200 grams per week of alcohol; or…
Clause 8, the definition clause, provides:
…
“alcohol” is measured by the alcohol consumption calculations utilising the Australian Standard of 10 grams of alcohol per standard alcoholic drink;
40. The factors in the SoP are more specific than the material before the Tribunal pointing to a hypothesis connecting Mr Fogarty’s ischaemic heart disease with alcohol consumption leading to hypertension. It is therefore necessary to consider whether there is material pointing to all the elements of the relevant factor or factors which the Repatriation Medical Authority has determined to be the minimum which must exist.
41. There is clear evidence of the presence of hypertension before the clinical onset of ischaemic heart disease. The reports referred to from Dr Phillips and Dr Lee, and the evidence of Mr Fogarty (R4), point to the presence of hypertension in the mid to late 1950s. Mr Fogarty was not diagnosed with ischaemic heart disease until 7 March 1994 (R6 p20).
42. There is also evidence pointing to Mr Fogarty having consumed an average of at least 200 grams per week of alcohol for a continuous period of six months prior to the mid to late 1950s. Mr Fogarty, in his evidence at the hearing in 2000 (R4), linked his regular drinking with his employment at the meat works which started in 1951 or 1952. He said (trans p25):
…?---Yes, well at the meat works after – the bus used to take – you’d take it from Newport Freezers down to the – well, the parking bay was the hotel.
Yes?---So you would go into the hotel. One or two might not, but the majority would go into the hotel.
So in that sense it was a social drink that you were having with - - -?---A ritual.
Mr Fogarty estimated the quantity he drank, while at the meat works, to be six beers a day (R4, p8). Mrs Fogarty also linked the meat works with the start of an increased drinking pattern. She said that drinking became a daily occurrence while Mr Fogarty was at the meat works.
43. The next aspect of factor 5(b) is whether there was evidence pointing to the fact that the level of alcohol consumption “cannot be decreased to less than an average of 200 grams per week of alcohol”.
44. Mrs Fogarty said that she argued with her husband about the extent of his consumption of alcohol. He agreed with that, when it was put to him at the hearing in 2000 (R4 p19), but there was no evidence of Mr Fogarty having ever tried to reduce his alcohol consumption until 1988 (A8 and R6), when he had major health problems and reduced his intake significantly, and then 1994, when he effectively stopped drinking alcohol, after Mr Skillington, “…put the fear of Christ in me and stopped me” (R4 p21).
45. Mr Fogarty agreed that his wife resented the amount of beer he drank. He agreed that his drinking caused some problems between him and his wife. He said, “…she let me know that she didn’t approve in no uncertain manner” (R4 p19). Mr De Marchi did ask Mr Fogarty at the hearing in 2000 whether he had tried to give up drinking. The transcript reads:
Did you ever try to stop your drinking altogether?---No.
Mr De Marchi then asked, “Would you have been able to stop your drinking if you had tried do you think? Mr Fogarty replied (R4 p21):
I like my grog. Put it that way. As in plain Australian language. Like, you know, I think the medico with the heart problem really put the fear of Christ in me and stopped me”.
Mr Fogarty said that he was aware that his drinking was having a social impact on his family, but he did not really appreciate it at the time.
46. Mr Fogarty explained that he never drank during the day time in working hours, his drinking was always after work, except when he might meet a shop steward and have a beer at the pub. Mr Fogarty said (R4 p29) that his consumption of alcohol did not cause any problems with his work as a parliamentarian. He explained:
No. You regulate that the same as you regulate your life. After the session was over you would go to the bar and have a beer. But my aim was to steer clear during the sessions.
47. We have concluded that there is no evidence that points to the fact that the amount Mr Fogarty was drinking before the clinical onset of his hypertension could not be decreased. The evidence is rather that he “…liked my grog”, and did not see himself as having any reason to decrease the amount he was drinking until a doctor told him to do so in 1988, when he did reduce his consumption, until 1994 when Mr Skillington told him to stop, and he effectively did so. There is evidence that he later started drinking a small amount of wine or whisky occasionally.
48. Because there is no evidence pointing to Mr Fogarty being unable to reduce the amount of alcohol he consumed per week to less than an average of 200 grams prior to the clinical onset of hypertension, we find that the hypothesis relying on alcohol consumption and hypertension to connect Mr Fogarty’s ischaemic heart disease with the circumstances of his services does not fit the template in the hypertension SoP No 35 of 2003. We are bound to find that a hypothesis is not reasonable unless it contains a factor set out in the relevant SoP.
49. We have some difficulty in understanding why service‑related alcohol consumption which meets a required level should only be accepted as raising a connection with hypertension if the veteran has been unable to decrease the level of consumption. It would seem to us that the alcohol consumption would have the same effect on hypertension whether it is a matter of choice or a matter of addiction or dependence. However, the Repatriation Medical Authority has decided otherwise. We are obliged, because of s 120A(3) of the Act, to find a hypothesis to be reasonable only if it is upheld by a relevant SoP.
50. Mr De Marchi did not seek to rely on any earlier SoP concerning hypertension. However, as Kenny J explained, in paragraph 42 of the reasons of the Full Court delivered on 20 June 2003 (as set out in paragraph 7 of these reasons), a claimant for pension has an accrued right to have a claim decided In accordance with the SoP in force at the time the claim was made (or first decided) (Repatriation Commission v Gorton (2001) 110 FCR 321 and Repatriation Commission v Keeley (2000) 98 FCR 108).
51. In this matter the claim to have ischaemic heart disease accepted as a war‑caused disease was made on 24 March 1995 and first decided by the Repatriation Commission on 4 October 1995. When the claim was lodged and when it was decided by the Repatriation Commission, the current SoP for hypertension was No 85 of 1995.
52. The relevant alcohol related factor in SoP No 83 of 1994 was factor 1(b), which was as follows:
(b)suffering from psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension; or …
The term "psychoactive substance abuse" is defined in that SoP as follows:
"psychoactive substance abuse or dependence" means a maladaptive pattern of use, as derived from DSM-IV, attracting ICD code 303 or 304, that is indicated by either:
(a)continued use of the substance despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance; or
(b)recurrent use of the substance when use is physically hazardous (for example, driving while intoxicated);
53. The evidence does not point to Mr Fogarty's alcohol consumption meeting the definition in the SoP of psychoactive substance abuse. There is no evidence of Mr Fogarty recognising or having knowledge that he had a persistent or recurrent social, occupational, psychological or physical problem that was caused or exacerbated by his use of alcohol. The evidence of Mrs Fogarty and Mrs Hutchinson does point to Mrs Fogarty not approving of Mr Fogarty's alcohol consumption, and seeing him as having a social problem within the family because of his alcohol consumption, which she thought excessive. There is no evidence pointing to Mr Fogarty seeing himself as having "a persistent social problem" due to his alcohol consumption. The evidence is that, in the 1950s, Mr Fogarty drank after work as was the custom among meat workers. He had no occupational, psychological or physical problems due to his use of alcohol prior to the determination of his hypertension.
54. In regard to paragraph (b) of the definition of psychoactive substance abuse, Mr Fogarty said that, looking back in 2000, he thought he had probably driven when he should not have done so. Mrs Fogarty also said that had happened on occasions. That evidence in our opinion falls short of pointing to a maladaptive pattern of use, indicated by recurrent use of alcohol when use is physically hazardous. We say that because there is no evidence pointing to Mr Fogarty being aware at the relevant time, i.e. in the 1950s, that he was driving when he should not have done so. There was not, in those days, the same concern about driving under the influence of alcohol. There is nothing to indicate that Mr Fogarty’s pattern of use of alcohol was maladaptive.
55. We find that the hypothesis linking hypertension with service‑related alcohol consumption does not meet the template in either of the relevant SoPs and is, therefore, not reasonable.
56. Mr De Marchi did, however, also rely on another hypothesis as to ischaemic heart disease. It was not set out in his Statement of Facts and Contentions, but was raised in his opening address. In the alternative to the hypothesis based on alcohol consumption and hypertension, Mr De Marchi relied on a hypothesis connecting anxiety and hypertension. That connection was raised by Dr Rosenbaum in his report (A1 p3) where he wrote:
4.It is likely that the high blood pressure has, in part, resulted from the anxiety and depression,…
57. Mr Fogarty was asked about anxiety in the 2000 hearing (R4 pp26‑27):
I just wanted to ask you just a few questions about the generalised anxiety disorder. To your knowledge have you ever been diagnosed with a psychiatric condition?---No.
Do you know if you have ever been diagnosed with having a generalised anxiety disorder?---Not diagnosed, no. But it’s been – I’ve been told. I’ve been told by men that should know, doctors. But I’ve never been diagnosed.
So they said to you that they considered you had generalised anxiety disorder?---Yes, yes.
When was that?---Mid to late 50s.
And who told you that?---Cass and Phillips.
Pardon me for asking this, were they psychiatrists or psychologists?---No, no, only GPs. I’ve been to others since that were psychiatrists.
When they told you that – how did they describe the condition, did they use the words generalised anxiety disorder or did they refer to it by another name, do you remember?---They didn’t tell me anything, they just examined me.
Right. Do you remember - - -?---I’m not a doctor I wouldn’t know, see.
I fully understand that. I am just wondering what gave you the impression, was it something that they said to you that made you think that they were of the opinion that you might have had some sort of anxiety condition or something of that nature?---Yes, Phillips and Cass told me straight out they thought I had a condition.
Did they prescribe any treatment when they told you that?---Only the little pills. And after 50 years I wouldn’t know what they were. But I’ve heard certain names that rang a bell but I wouldn’t put it on record in case it’s wrong. I’ve got a good idea what they are.
Were those pills in addition to the tablets you were taking for your hypertension or ‑ ‑ ‑?---They were the ones I’m referring to.
Right?---There was one for the hypertension and one for the other. And they were both small, one was an off‑white colour.
You said earlier that you seemed to be anxious about your health just after you came out of the Navy, is that a correct understanding?---Yes, yes, that was correct.
What made you think that you were anxious about your health, what did you feel?---I wasn’t feeling too good.
Were you worried?---No more than the average chap.
Did you find it difficult to adjust to civilian life after the Navy?---I would say every ex serviceman who had had five and a half years would find it very hard to adjust I suppose. The chaps in Changhi found it harder.
In your situation do you know – what was the difficulty for you in adjusting to civilian life?---Well, I went away as a boy, 18, just turned 18 and come back as a man. And I had to adjust to everything, to a normal civilian life again.
58. In re‑examination, Mr De Marchi asked Mr Fogarty about the pills (R4 p31):
You were asked about treatment, and you said that you were taking two small pills, one was white or two were white and then you reduced them and then there was another one which was an off‑white colour?---Yes, off‑white colour.
Do you recall – I think I read somewhere, Valium, do you recall Valium?---I was told – I didn’t mention it, but yes you must have it on record there. But I’m not over sure, but someone mentioned Valium, I said that’s it. And I don’t know what that was for, whether it was for blood pressure or the - - -
Well, you were asked about the changes that occurred to you, you said you went away as a boy you came back as a man?---Yes.
Are you able to pinpoint to any other dislocations that occurred whilst you were away that might have made you more anxious. Did you find the people different or was it hard to get back into civilian life?---Well, when you see – when you’re stuck on a signal station with nine others in isolation, you’re in an environment where you stick together sort of business, rely on each other. When you get on to a destroyer off the Japanese coast for six months or more, you rely on each there, completely on each other, and it creates an environment when you leave the ship – I used to love knowing when the Quick Match was down at Williamstown, after I left just so I could go down and see the boys. It was an environment that you were in trouble together and we stuck together and lived together.
59. Mr Fogarty had described his service as stressful, in the sense that he said the vessel he was on was under attack from Kamikaze aircraft, but he said as to the effect of that on him (R4 p15):
…you just went about your business, actually. You knew if the – you see the carrier planes go off, usually at dawn, and you wait for them to come back. But usually the chaps had a cockatoo somewhere and come back with them and told them where we were and quite often we were under attack from Kamikazes or you would have to go and pick your own pilots up. Your pilots were, you know, damaged, shot down. Duty destroyer would have to do that.
He also described the cramped conditions as "terrible", especially when he was on a minesweeper, off the Victorian coast.
60. Mr Fogarty also gave evidence at the 2000 hearing that he had symptoms of anxiety in 1946 which were mistaken for malaria by a Dr Rowe. He said (R4 p22):
…Are you able to tell the Tribunal whether you felt anxious at all following your service, as a result of your service?---Well that trouble started early ’46 and I went to a Dr Rowe. I tried to get the history from him but his records – well it is 50 years ago, you have got to – you would keep them. And I had flushes and vomiting and things like that. And he said “Look,” he said “I think you have got malaria”. I said “I couldn’t have” because when we were at Manus we anchored off in ….. harbour. I don’t think the mosquitos flew that far. And he said “I will send you to a bloke that is doing a study of it out at Brunswick”. And I just told the chap, I said “I can’t have malaria”. And Rowe, he said, you have got a nervous condition and then he sent me to a public hospital. I went there seven times in 1976 [sic]. I think it was. It might have been six or seven times, in 1946 and I know I had my nose drilled out in one occasion but Dr Rowe was the first indication that something was really – was wrong but, like, after five and a half years, you come to civil life again, there is the adjustment and everything like that had to take place.
What was your weight like during that period of time did it go up or down?---It went up. In 1957 I think the record there shows that my weight went up about three or four stone.
This sort of attack that you mentioned, can you describe it a little bit better to the Tribunal how did it sort of – how did it affect you?
COMM GIBBS: It is the one with Dr Rowe?---Yes. I think vomiting and things like that. As listed in the report there that I put in, there was that much sort of starting to go wrong, diarrhoea and things like that, all came in 1946.
MR DE MARCHI: What about – you mentioned that you were feeling tired, was that ‑ ‑ ‑?---Tiredness was the worst. Tiredness was the worst. That’s how they caught up with the heart attack too, or the heart condition.
Did you feel restless at all or irritable?---Yes, always restless.
61. We note that, in a document he prepared in March 1995 (T1998 p62), Mr Fogarty made comments about his service history. Under the heading “Not Listed”, he wrote:
First six months from discharge.
(1)Dr Rowe, Yarraville, early 1946 thought to be a malaria type complaint – nervous condition also referred to Eye and Ear Hospital by Dr Rowe.
Thus, there is evidence pointing to Mr Fogarty having a nervous condition in early 1946.
62. There is also medical evidence consistent with Mr Fogarty’s account of being told he had an anxiety disorder and being prescribed pills for it by Dr Cass and Dr Phillips. In his report of 28 September 1995, Dr Philllips wrote that, when he was treating Mr Fogarty between 1953 and 1973, he considered his mild essential hypertension was stress‑related.
63. DrCronin, a psychiatrist, examined Mr Fogarty and provided a report on 17 February 1997 (T1998 pp110‑112). He took the following history:
Mr Fogarty has suffered some anxiety since the war and says that in the 1950s he attended Dr Phillips who diagnosed him as having a stress related essential hypertension. He was also told that he had nervous dyspepsia. He used to be prescribed a nerve tablet but this made him too drowsy and he has just learnt to live with his nerves. When he is nervous he finds he becomes confused easily and does not concentrate well. He fiddles with his hair and keeps forgetting where he puts things. He has generally been a methodical man. He does not think his nerves have altered much since 1954.
64. Dr Cole, a psychiatrist, also examined Mr Fogarty. He provided two reports dated 23 November 1999 (A5) and 3 March 2000 (A6). In his first report (A5) he set out the following history:
Immediately after his discharge from the Navy he suffered from hot flushes and excessive tiredness. He was jumpy and easily startled. Although he felt worried all the time he learned to live with it. He was occasionally irritable but not depressed. He had no difficulty in concentrating and had a good memory. Until he retired he was Chairman of Committees in Parliament. He went to reunions but they talked only about the funny things. War films and documentaries did not worry him and he did not have flashbacks of his war time experiences. He had to sleep with a mask because of his sleep apnoea but did not suffer from nightmares although he had night sweats. His wife said that he was very restless but he did not call out in his sleep. The tiredness which was still troublesome was the main problem. At times he found it difficult to control his anxiety. He was more irritable than he used to be. He was restless and found it hard to settle.
It was Dr Cole’s opinion, in 1999, that the nervous disorder was mild and did not call for psychiatric treatment.
65. Mrs Fogarty gave evidence that at times when he came home from the pub Mr Fogarty was aggressive or irritable or bad tempered with the children. She said he was sometimes very bad tempered and on one occasion broke the handle of the refrigerator door in a temper. She said he once chopped down a fence a neighbour had erected which “caused trouble”. She said he was also very firm with their two children, especially their son. He “belted him” from about age 2.
66. Mrs Fogarty said her husband never had any psychiatric help or treatment but he did consult a doctor for nerves and anxiety. She mentioned Dr Phillips and Dr Rowe in that connection.
67. Mrs Hutchinson said that her father seemed to her to have a high level of anxiety. She said that he would get “red and angry”, but never violent, with her mother. She confirmed that her brother got a lot of beltings up to the age of 14 or 15.
Step one of deledio
68. Applying Step 1 from Deledio, there is material pointing to a connection between hypertension and anxiety (Dr Rosenbaum (A1) and Dr Phillips (T1998 p99)). There is also material pointing to Mr Fogarty suffering from a mild anxiety condition since his discharge from the Navy in 1946, and being treated for it by having pills prescribed in the mid-late 1950s.
Step two
69. Applying Step 2 from Deledio, as we have already said, there are SoPs for ischaemic heart disease and hypertension. The current SoP for hypertension is No 35 of 2003.
Step three
70. We must first consider whether the hypothesis raised contains one or more of the factors specified in the current hypertension SoP.
71. Factor 5(n) in that hypertension SoP is as follows:
(n)suffering from a clinically significant anxiety disorder for the six months immediately before the clinical onset of hypertension; or
Clause 4 provides that the relevant factor must be related to relevant service. The term "clinically significant anxiety disorder” is defined in clause 8 of the SoP as follows:
“clinically significant anxiety disorder” means any anxiety disorder attracting a diagnosis under DSM IV sufficient to warrant ongoing management by a psychiatrist, counsellor or General Practitioner;
72. There is material pointing to Mr Fogarty suffering "an anxiety disorder…sufficient to warrant ongoing management by a general practitioner" in the mid to late 1950s. He gave evidence that, after five and a half years of service, he found it very difficult to adjust to civilian life. He said he was told he had a nervous complaint at that time, but there is no evidence of any treatment for it in the 1940s. There is evidence of Mr Fogarty having ongoing management for an anxiety condition from the mid to late 1950’s, by prescription of medication for some time. There is also material pointing to the anxiety being related to relevant service as required by clause 4 of the SoP. That is the evidence of Mr Fogarty, and the evidence of Dr Cronin in his report of 17 February 1997, and of Dr Cole in his report of 23 November 1999.
73. There is evidence that the condition remained the same from discharge until the diagnosis of hypertension in the mid to late 1950s and thus would have been present during the 1950s, when hypertension was diagnosed. In fact, Dr Phillips seems to have considered that stress or anxiety was a factor causing hypertension which he wrote he “considered was stress related” (T1998 p99).
74. The next question is therefore whether we can find that the anxiety condition was related to service, applying the relevant SoP for anxiety disorder, as required by McKenna.
75. The current SoP for generalised anxiety disorder, No 1 of 2000, includes as factor 5(a)(ii):
5.…
(a)for generalised anxiety disorder or anxiety disorder not otherwise specified, only
(i)…
(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or …
The SoP defines "severe psychosocial stress" as follows:
“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), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
76. Mr Fogarty did not describe feelings of substantial distress in reaction to his operational service. He referred rather to his difficulty adjusting to civilian life after five and a half years of service life, when he changed from a boy to a man. He did not describe "substantial distress". That evidence does not meet the definition of a severe psychosocial stressor. Thus, the hypothesis does not meet the template in the relevant SoP, No 1 of 2000.
77. However, as with alcohol abuse, there is also an earlier SoP for anxiety disorder. That SoP, No 48 of 1994, was current when Mr Fogarty's claim in respect of ischaemic heart disease was lodged on 24 March 1995. Applying Gorton, Mrs Fogarty is entitled to rely on that earlier SoP if it is more beneficial to her.
78. SoP No 48 of 1994 contains factor 1(b) which must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised connecting generalised anxiety disorder with the circumstances of service. That factor is:
(b)experiencing a stressful event not more than two years before the clinical onset of generalised anxiety disorder;…
79. The term "stressful event" is defined in clause 4 as follows:
"stressful event" means an occurrence which evokes feelings of anxiety or stress.
80. There is evidence from Mr Fogarty pointing to his adjustment to civilian life after 5½ years at sea evoking feelings of anxiety and stress. That was in 1946. The next question is whether that source of anxiety is related to service, as required by clause 2 of SoP No 48 of 1994, which provides:
2. Subject to clause 3 (below) at least one of the factors set out in paragraphs
1(a) to 1(d) must be related to any service rendered by a person.
81. There is a question whether anxiety or stress which develops as a result of the changed situation in which a veteran finds himself after 5 ½ years of service is a stressful event related to service. Although in a sense it is an occurrence which has a relationship to service, it is our view that the relationship to service required by factor (b) of SoP No 48 of 1994 must relate to an event or occurrence during service, rather than to the effect of discharge from service.
82. Even if stress and anxiety as a result of difficulty adjusting to civilian life could be described as related to service, there would be a further difficulty in the matter. There is a requirement in factor (b) of SoP No 48 of 1994 that the stressful event be experienced "not more than two years before the clinical onset of generalised anxiety disorder".
83. The concept of "clinical onset" of a disease has been considered in a number of decisions. In Lees v Repatriation Commission (2002) 36 AAR 484, the Full Court of the Federal Court considered the concept of clinical onset of a generalised anxiety disorder. The Full Court referred to Repatriation Commission v Cornelius [2002] FCA 750 where Branson J adopted the approach of the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668, namely:
…there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present…
84. The Full Court also referred, with approval, to Repatriation Commission v Gosewinckel (1999) 59 ALD 690 where Weinberg J (at paragraphs 64, 67 and 68) said:
[64] The SoP requires the presence of a number of distinct symptoms, of which “clinically significant distress” and “restlessness or feeling keyed up or on edge” are only part. Unless the symptoms referred to in cl 4(a)(i), at least three of (a)(ii)(A)–(F), and (a)(v) are all present, and the case does not fit within (a)(iii) and (iv), (b) and (c), it cannot be said, consistently with the medical-scientific standard prescribed by the SoP, that generalised anxiety was present.
…
[67] The tribunal cannot use the evidence of an expert to contradict or provide an alternative to the requirements of the SoP. Section 120A, and the associated provisions in Pt XIA of the VE Act were introduced in order to take the determination of “purely medical … issues” out of the hands of bodies such as the tribunal: Explanatory Memorandum to Veterans’ Affairs (1994–95 Budget Measures) Legislation Amendment Bill 1994 at p 3. Evidence which contradicts an SoP, or which proposes that a reasonable hypothesis may be raised by some factor not identified in the SoP, cannot alter the operation of the SoP in relation to any matter to which it is applicable: see Deledio v Repatriation Commission, above, at 411–12. An hypothesis that fails to fit within the template will be deemed not to be “reasonable”, and the claim will fail.
[68] The hypothesis which the tribunal found to be reasonable, namely, that the veteran experienced the clinical onset of generalised anxiety disorder within 2 years of experiencing a stressful event (ie within 2 years of the conclusion of the war) was not upheld by the relevant SoP. The tribunal could not, therefore, have found that the hypothesis was reasonable, and was bound, on the material before it, to find that the veteran’s generalised anxiety disorder was not war-caused.
85. The Full Court in Lees rejected a submission on behalf of Mr Lees that, in relation to a disease of gradual onset such as generalised anxiety disorder, it would be sufficient if only one of the prescribed symptoms manifested itself within the specified two year period. The Full Court said that submission "overlooks the clear words of the applicable Statements of principles and the functions they perform in the legislative scheme".
86. The decisions of Weinberg J in Gosewinckel and of the Full Court in Lees are, of course, binding on us. Had that not been so, we would have thought there was much to be said for the view that there can be the clinical onset of a disease of gradual onset before there are symptoms satisfying all the diagnostic criteria which are set out in the definition in the SoPs. The definitions for psychiatric conditions in the SoPs are derived from DSM-IV. We have often heard evidence from psychiatrists that the DSM-IV diagnostic criteria are not strictly used by them for diagnosis in practice, and are used rather more for legal than for medical purposes. However, those considerations are not relevant to the issue before us. The Federal Court has said all the diagnostic criteria must be present for there to have been a clinical onset of generalised anxiety disorder.
87. There are two times when Mr Fogarty may, on his evidence, have been said by his treating doctors to have been suffering from generalised anxiety disorder. He said that, in 1946, he saw Dr Rowe about flushes and vomiting and was considered to have "a nervous condition" which was mistaken for malaria and for which he was referred to the Eye and Ear Hospital.
88. That occasion would have been within the required two years of discharge, if discharge satisfies the definition of a "stressful event", but the description of Mr Fogarty's symptoms lacks the necessary correlation with the symptoms set out in the definition in the SoP No 48 of 1994. In particular, Mr Fogarty did not describe the first requirements of criterion (a) and (a)(i):
(a)excessive anxiety and worry (apprehensive expectation), occurring more days than not for at least six months, about a number of events or activities (such as work or study), which:
(i)the person finds difficult to control;…
89. In the absence of evidence pointing to all the diagnostic criteria, we can not find that the clinical onset of anxiety disorder was in 1946. The other time when Mr Fogarty may have had a clinical onset of generalised anxiety disorder was in the mid to late 1950s. However that period is clearly not within two years specified in factor (b) of SoP No 48 of 1994.
90. We find that the hypothesis, relying on a connection between hypertension and generalised anxiety disorder, does not meet the template in either SoP No 1 of 2000 or SoP No 48 of 1994. Thus, the hypothesis is not reasonable.
91. There were two raised hypotheses linking hypertension with the circumstances of Mr Fogarty's service. The first relied on service‑related alcohol consumption. The second relied on an anxiety condition which was claimed to be related to service. We have found that neither of those hypotheses is reasonable in the sense of fitting the template in the SoP.
92. Returning to the SoP for ischaemic heart disease, we therefore find that the material before us does not point to the presence of hypertension related to service before the clinical onset of ischaemic heart disease in 1994. Thus, the claim in respect of ischaemic heart disease does not succeed.
GENERALISED ANXIETY DISORDER
93. As to the claim in respect of generalised anxiety disorder, there was an issue as to whether Mr Fogarty was suffering from generalised anxiety disorder when he lodged his claim for acceptance of that condition. We set out again what Kenny J said in the Full Court (at paragraphs 34 and 35) of her reasons, with which Spender and Tamberlin JJ agreed, when remitting the issue as to generalised anxiety disorder to this Tribunal:
34 If, as I accept, the Tribunal, in making the finding it did, was rejecting the existence of the disease (and, consequently, any supposed connection with service) then the Tribunal necessarily fell into error. As noted already, although the Board accepted the veteran's claim to suffer from a generalised anxiety disorder, the evidence before the Tribunal, especially that of Dr Kenny, very clearly raised doubt about the diagnosis of the disease. The authorities establish that, where there is an issue as to whether or not a veteran is suffering from a claimed injury or disease, then the Commission (and, on review, the Board or the Tribunal) must decide the issue to its reasonable satisfaction, as required by s 120(4) of the Act: see Benjamin v Repatriation Commission (2001) 70 ALD 622 ("Benjamin"), at 634 (Moore, Emmett and Allsop JJ); Repatriation Commission v Cooke (1998) 90 FCR 307, at 310-311 (French, Drummond and Carr JJ); Repatriation Commission v Budworth (2001) 116 FCR 200, at 204-205 (Ryan, Marshall and Conti JJ); Repatriation Commission v Hill (2002) 69 ALD 581 ("Hill"), at 598-599 (Black CJ, Drummond and Kenny JJ); and Repatriation Commission v Gosewinckel (1999) 59 ALD 690, at 700-702 per Weinberg J.
35 As the Full Court said in Benjamin, at 634:
Section 120(1) of the Act assumes the existence of a relevant injury or disease and provides a standard of proof for the determination of whether that injury or disease was war-caused. When the [C]ommission, or the [T]ribunal on review, is required to determine whether a veteran is suffering from a particular injury or disease, that issue must be decided to the reasonable satisfaction of the decision-maker, in accordance with s 120(4) of the Act: see Repatriation Commission v Budworth (2001) 116 FCR 200 at 204, [15]; 66 ALD 285 at 289.
Although the Tribunal is not bound by the rules of evidence, the Full Court held in Repatriation Commission v Smith (1987) 15 FCR 327, at 335, that the requirement in s 120(4) that the Tribunal must be "reasonably satisfied" imports the civil standard of proof.
94. Thus, this issue as to the existence of generalised anxiety disorder is not to be decided on the reverse standard of proof, but on the balance of probabilities. Further, the question is not whether Mr Fogarty had a generalised anxiety disorder at some stage after his discharge from the Navy in 1946, but whether he was suffering from one when he made, or is to be treated as having made, his claim for nervous complaint to be accepted as a war‑caused disease under the Act. That was accepted by the parties as being on 24 March 1995 (T2000 p52). We say that it was accepted as being on 24 March 1995, because, so far as we can see, there is no claim for nervous complaint on that claim form. The three disabilities claimed are:
1.Colonic Diverticultiis.
2.Scar Tissue Lung/Bronchial.
3.Heart.
95. The reason given in the claim form (T2000 p54), for stating that service caused the heart problem was “very stressed during the war”. It seems that the Repatriation Commission treated that as a claim for a fourth condition, namely "nervous complaint”. Somehow that step was not explained, and the Repatriation Commission, in its determination of 4 October 1995 (T1998 pp91‑96), commenced its decision as follows (p91):
Your claim
On 24 March 1995 the claim for “colonic diverticulosis, scar tissue lung, bronchial, heart, nervous complaint” was received at the Department of Veterans’ Affairs. The medical names for the claimed conditions are:
· Diverticular disease of the colon;
· Chronic bronchitis;
· Ischaemic heart disease;
· Nervous complaint.
96. The primary determination of 4 October 1995 (T1998 pp91‑96) rejected the claim characterised as for “nervous complaint” stating (p94):
Investigation of nervous complaint has shown that the condition is not present nor is any other medical condition that would answer the claim for this condition. The claim for nervous complaint is therefore refused.
97. So far as we can tell from the T1998 documents, the investigation was an examination by Dr Yoga, who wrote, on 11 July 1995, that there was no psychiatric incapacity. The form completed by Dr Yoga contains the following information (T1998 p75):
Nervous complaint – NIF [no incapacity found].
Sleeps at 10pm and wake up at 7am
No dreams
Gets on well with kids grandkidsConcerned about his medical complaints.
i)Few friends.
ii)Lives with wife – good (50yrs marriage).
iii)Retired
iv)TV
Reading
Swimming
98. The T1998 documents also include a report from Dr Lee, who was Mr Fogarty’s treating doctor in 1995 (T1998 pp86‑87). It does not state that he was then suffering from an anxiety disorder or other nervous complaints. It does say that it is very likely that the heart condition was due to “…the stress, strain and confined conditions in smoke filled quarters during war service” (T1998 p87).
99. Mr Fogarty sought review by the Veterans’ Review Board (the “VRB”) of the decision of the Repatriation Commission of 4 October 1995. His application sought review of:
Rejection of heart disease diverticular disease – nervous complaint.
100. The first medical practitioner to describe Mr Fogarty as suffering from anxiety and depression, in relation to the 1995 claim, seems to have been Dr Cronin on 17 February 1997. After setting out the history quoted in paragraph 60 of these reasons and some further history, Dr Cronin concluded (T1998 p111):
He says that his marriage is good although the children still cause a few problems. As you get older you cannot do the things you used to do, you lose your zoom and feel more depressed. He does not socialise as much in his retirement as mates die and he does not have the day to day work contacts. He loves swimming and goes nearly every day in summer.
After the war he worked as a cabinet maker before moving to the meat works then the union and then State Parliament for 15 years as the Member for Sunshine until 1988. He became Deputy Speaker of the House but says that he preferred working in Trades Hall because you were able to do more there.
Retirement has been difficult as they have had to look after his wife’s mother, deal with his own ill health and his wife’s ill health. He says he has had to accept things the way they are.
He presented as being a mildly anxious man who tapped his fingers on the arms of the chair, sighed and had a creased forehead. He was not depressed and his cognitive functioning was normal.
In my opinion, Mr Fogarty does have a Generalised Anxiety Disorder which, from his account, dates from the war and I think it is reasonable to accept that his wartime experiences would have been sufficient to cause the anxiety. As is often the case he has little documentation to support this but on clinical grounds it is a reasonable supposition. It has been a mild anxiety and it has not stopped him from achieving high levels of public service. There has probably been some increase in anxiety as his health has deteriorated. His sleep apnoea produces symptoms similar to anxiety and indeed he initially thought there was an increase in his anxiety rather than there being an additional problem. I do not think there is a relationship between his anxiety and his sleep apnoea.
Dr Cronin assessed Mr Fogarty as having an impairment rating of 5 under Chapter 4 of the then relevant Guide to the Assessment of Rates of Veterans’ Pensions (“GARP”), in respect of his generalised anxiety disorder.
101. On 7 September 1998, the VRB accepted the diagnosis of generalised anxiety disorder made by Dr Cronin but rejected the claim, on the basis that factor 1(b) of the applicable SoP required material pointing to the veteran experiencing a stressful event not more than two years before the onset of the condition. The VRB concluded, on the basis of Mr Fogarty’s evidence before it, that there was no evidence of the manifestation of the condition within two years of a stressful event. It pointed out that Mr Fogarty had not described any nervous symptoms on discharge. The VRB said (T1988 p14):
…The first time the veteran mentioned any condition that could be related to his claimed condition was that of nervous dyspepsia in 1957, some nine years after his discharge.
102. As is apparent from paragraph 34 of the reasons of the Full Court (quoted above), this Tribunal, in its decision of 24 August 2000, seems to have concluded that Mr Fogarty did not suffer from generalised anxiety disorder. The Tribunal said, (at paragraph 67):
67. While we accept that Mr Fogarty experienced stressful service in the Navy, we have, however, formed the opinion that he never developed a GAD as a result of any aspect of his service. Indeed, his own evidence makes it very clear that since his naval service, Mr Fogarty has enjoyed not only a long and happy family life but also a most successful and rewarding working life, particularly while at the Trades Hall and then later in politics.
103. Ryan J found that the Tribunal had erred in law in not taking the preliminary step of identifying the collection of symptoms of a disease from which Mr Fogarty may have suffered, and identifying the existence of and symptoms of mental disorder, and also in not considering the SoP for anxiety disorder currently in force at the time of the hearing. His Honour concluded that none of those errors were material in the result and thus affirmed the aspect of the Tribunal’s decision dealing with generalised anxiety disorder.
104. The Full Court held that the errors of law made by the Tribunal were material. Kenny J explained the importance of the preliminary step, namely that the Tribunal rule upon the veteran’s claim to be suffering from a generalised anxiety disorder in accordance with the standard mandated by s 120(4) of the Act, which, as her Honour said “imports the civil standard of proof”. Her Honour also found that there were errors of law made by the Tribunal in failing to have regard to Dr Sime’s report of 12 March 1999 (A7) and in failing to consider the SoP 1 of 2000 which was current at the time of the Tribunal hearing. Her Honour pointed out that it included in the definition of “anxiety disorder”, in clause 2(b), an additional form of anxiety disorder, “anxiety disorder not otherwise specified” which did not appear in the 1994 SoP considered by the Tribunal.
105. Kenny J said, at paragraph 44 of her reasons:
44 Although cl 5(a)(iv) of the 2000 SoP added little to the veteran's case, there is another feature of the 2000 SoP that may have been more favourable to him. The 2000 SoP expressly concerned "anxiety disorder" (as well as "death from anxiety disorder"). The term "anxiety disorder" was defined, in cl 2(b), as "the anxiety spectrum disorders of generalised anxiety disorder, or anxiety disorder due to a general medical condition, or anxiety disorder not otherwise specified, attracting ICD-10-AM code F06.4, F41.1, F41.8 or F41.9". Pursuant to cl 8, "generalised anxiety disorder" is defined in much the same terms as in the 1994 SoP, but the expression "anxiety disorder not otherwise specified" is new. This latter expression, which did not appear in the 1994 SoP, was defined in cl 8 of the 2000 SoP as "a psychiatric disorder with prominent anxiety ... that does not meet criteria for any specified anxiety disorder ... ". This definition raises the possibility that a claim may satisfy the description "anxiety disorder not otherwise specified" even though it does not satisfy the description of "a generalised anxiety disorder". In this case, the Tribunal's failure to consider this possibility may have materially affected its decision.
106. Applying the principles explained by the Full Court, we must first decide whether we are satisfied, on the balance of probabilities, that Mr Fogarty suffered from generalised anxiety disorder in March 1995, when he lodged the claim which has been treated as having included a claim for “nervous complaint”, which was amended to “generalised anxiety disorder”.
107. In Benjamin v Repatriation Commission (2001) 34 AAR 270, the Full Court explained that, although the SoPs must be used when deciding whether or not a disease is war‑caused, they are not relevant to the issue of diagnosis of a claimed condition. The Full Court said in Benjamin (at para 41):
41 The primary judge [Benjamin v Repatriation Commission (2001) 64 ALD 411] observed that, on all the evidence before the Tribunal, exposure to a traumatic event was the primary criterion required for the diagnosis of post traumatic stress disorder. The Tribunal made its diagnosis by reference to SoP 15 of 1994. His Honour correctly held that to be impermissible, as the scheme of the Act contemplates that SoPs be used to determine the standard of proof. SoPs are not relevant to the question of diagnosis. …
108. We therefore must consider the evidence as to whether or not Mr Fogarty was suffering from generalised anxiety disorder at the relevant time using the diagnostic criteria set out in the DSM-IV, which were taken into evidence (R7) and are as follows:
¢ Diagnostic criteria for 300.02 Generalized Anxiety Disorder
A. Excessive anxiety and worry (apprehensive expectation), occurring more days than not for at least 6 months, about a number of events or activities (such as work or school performance).
B. The person finds it difficult to control the worry.
C. The anxiety and worry are associated with three (or more) of the following six symptoms (with at least some symptoms present for more days than not for the past 6 months). …
(1) restlessness or feeling keyed up or on edge
(2) being easily fatigued
(3) difficulty concentrating or mind going blank
(4) irritability
(5) muscle tension
(6)sleep disturbance (difficulty falling or staying asleep, or restless
unsatisfying sleep)
D. The focus of the anxiety and worry is not confined to features of an Axis I disorder, e.g., the anxiety or worry is not about having a Panic Attack (as in Panic Disorder), being embarrassed in public (as in Social Phobia), being contaminated (as in Obsessive Compulsive Disorder), being away from home or close relatives (as in Separation Anxiety Disorder), gaining weight (as in Anorexia Nervosa), having multiple physical complaints (as in Somatization Disorder), or having a serious illness (as in Hypochondriasis), and the anxiety and worry do not occur exclusively during Posttraumatic Stress Disorder.
E. The anxiety, worry, or physical symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
F. The disturbance is not due to the direct physiological effects of a substance (e.g., a drug of abuse, a medication) or a general medical condition (e.g., hyperthyroidism) and does not occur exclusively during a Mood Disorder, a Psychotic Disorder, or a Pervasive Developmental Disorder.
109. As explained earlier, there was no material lodged with Mr Fogarty’s claim of 24 March 1994, stating that he had any anxiety disorder. Nor did Dr Yoga find any symptoms of an anxiety disorder.
110. Dr Cronin recorded as to the service dangers (T1998 p110‑113):
…Whilst it was difficult at the time these events do not upset him now and at reunions they talk about the good times rather than the bad. Seeing movies can trigger memories though. (p110)
…
Mr Fogarty has suffered some anxiety since the war and says that in the 1950s he attended Dr Phillips who diagnosed him as having a stress related essential hypertension. He was also told that he had nervous dyspepsia. He used to be prescribed a nerve tablet but this made him too drowsy and he has just learnt to live with his nerves. When he is nervous he finds he becomes confused easily and does not concentrate well. He fiddles with his hair and keeps forgetting where he puts things. He has generally been a methodical man. He does not think his nerves have altered much since 1954. [emphasis added]
111. Dr Sime’s report of 12 March 1998 (A7) stated:
Essentially I note that you wish me to advise on the question of whether there is a service linked generalised anxiety disorder. As I understand it the diagnosis has been accepted but not the connection between this and his naval service on the grounds that the onset of the generalised anxiety disorder did not occur within two years of the service experience of stress.
112. Dr Sime’s report, in our view, was coloured by that alleged acceptance of the diagnosis of an anxiety state. He referred to sleep problems and being very jumpy and concern about medical complaints and tiredness. However, he reported that the sleep problem which had caused anxiety had been dealt with by sleeping with a mask. Dr Sime wrote (A7 p4):
…Whilst he denied having nightmares or flashbacks to me he refers to night sweats and being very jumpy at times. He told me there were times when he had phases of anxiety when he could feel confused.
Dr Sime concluded, “…In my view there are clear indications of a generalised anxiety state present”.
113. Dr Cole provided a report after seeing Mr Fogarty on 5 November 1999 (A5). As set out in paragraph 63 above, he gave the following account of Mr Fogarty’s relevant symptoms from the history given to him:
Immediately after his discharge from the Navy he suffered from hot flushes and excessive tiredness. He was jumpy and easily startled. Although he felt worried all the time he learned to live with it. He was occasionally irritable but not depressed. He had no difficulty in concentrating and had a good memory. Until he retired he was Chairman of Committees in Parliament. He went to reunions but they talked only about the funny things. War films and documentaries did not worry him and he did not have flashbacks of his war time experiences. He had to sleep with a mask because of his sleep apnoea but did not suffer from nightmares although he had night sweats. His wife said that he was very restless but he did not call out in his sleep. The tiredness which was still troublesome was the main problem. At times he found it difficult to control his anxiety. He was more irritable than he used to be. He was restless and found it hard to settle. (p2)
114. Dr Cole observed (A5 p3):
He proved to be a good humoured man who was responsive in conversation. He was restless, kept fiddling with his hands and from time to time tapped his feet on the floor. He gave what appeared to be a straightforward account of himself and his problems.
115. Dr Cole concluded:
Mr. Fogarty is suffering from a chronic generalised anxiety disorder which was in evidence when he was discharged from the Navy and is to be attributed to his war service. In my opinion, he meets the requirements of the Statement of Principles for such a diagnosis. There was no suggestion that he might be exaggerating his symptoms, and, on the contrary, I think he is inclined to deny to himself the full extent of his anxieties. His nervous disorder is mild, does not call for psychiatric treatment and appears to have stabilised.
116. Dr Strauss also provided a report (A2), but as he never met Mr Fogarty and never assessed him, and relied entirely on documents and on an interview with Mrs Fogarty and Mrs Hutchinson, we regard his report as of very little assistance. His conclusion was that it was probable that Mr Fogarty had an anxiety disorder. We consider the reports of those who examined Mr Fogarty to be more relevant.
117. Ms McMahon called Dr Kenny. He had provided a report (R2) after examining Mr Fogarty on 21 July 1999. Dr Kenny wrote (p4):
…He thought had had nerve tablets in the late fifties when Dr Moss saw him and saw him as having a nervous problem, but he said that his sleep is impaired because of his sleep apnoea and he is tired as a result of that. He eats well and enjoys his food, gets on well with people, enjoys life, memory and concentration are good, he is not irritable, grumpy, sexual life has gone in recent year. He has never thought life is not worth living, has been a confident person and doesn’t see himself as having or needing psychiatric treatment at this stage.
118. Dr Kenny described Mr Fogarty at interview:
He was certainly not overtly distressed, depressed, anxious, no impairment or memory, concentration or cognition and he gave the impression of being a highly intelligent and astute man, without any overt psychiatric disturbance, in interview.
119. So far as relevant, Dr Kenny’s opinion was as follows (R2 pp5‑6):
I note that in the early fifties a doctor said that he seemed to have a problem with his nerves and he should be on medication permanently. He was unable to give me a good account of any nervous symptoms that he had at that stage, but said that he was somewhat restless.
But he hasn’t had any medication for many years now, hasn’t had any psychiatric treatment and he doesn’t really see himself as having psychiatric problems.
Now I note that he suffers from sleep apnoea, which he describes as meaning that he has trouble sleeping and he is tired as a result and that’s certainly consistent with a patient’s description of sleep apnoea.
Whether or not that’s caused by his Navy Service or not I can’t say.
I note Dr Sime’s view that there may have been a psychosomatic component to his symptoms in the early stages. I can only say that may or may not be true. But at this stage I simply could not see this man as having psychiatric disturbance of any kind.
He has the natural concerns about his overall health problems, but I say they are normal, natural, understandable, not beyond what we would expect for a man who has had his health problems and do not constitute a psychiatric disturbance.
I could not possibly see this man as having a generalised anxiety disorder. He is an intelligent well‑adjusted, mature man, without (in my view) any significant symptoms whatsoever of psychiatric disturbance.
When I put it this way, I am not minimising the stressors that he experienced during the Second World War and acknowledge that they could have produced a psychiatric disturbance in a somewhat more vulnerable person. But I say that they haven’t done so in this man and I would not be prepared to see him as having a psychiatric disturbance of any kind.
120. Dr Kenny gave evidence. He repeated that he did not see Mr Fogarty as having symptoms of generalised anxiety disorder at all. He said Mr Fogarty denied having any symptoms, although he did say that at one stage he had had restlessness and had been treated with medication. He said Mr Fogarty was fatigued, but that was not due to anxiety but to sleep apnoea. Dr Kenny said there was no clinically significant distress or impairment in social, occupational or other important areas. He said that, if Mr Fogarty had suffered from “prominent anxiety”, it would be manifest. He would have appeared tense or worried, restless, on edge and may have had palpitations, shortness of breath or have been sweaty. He said that, if Mr Fogarty had clinically significant symptoms of anxiety, he would have expected his general practitioner to observe them. Dr Kenny repeated that he had considered Mr Fogarty’s concern about his health, in July 1999, to be normal and appropriate.
121. In deciding whether we prefer Dr Kenny’s opinion to those contained in the reports of Dr Cronin, Dr Sime and Dr Cole, and the evidence of Dr Strauss, we have referred to the reports (T1998 p86) and clinical notes (R6) of Dr Lee, who was Mr Fogarty’s general practitioner from 1985. In his report of 23 September 1995, Dr Lee referred to stress, strain and confined conditions in smoke filled quarters during war service, but he made no mention of stress, strain or anxiety at any other time.
122. Because Dr Lee may have focussed his report only on the issue of ischaemic heart disease, Dr Fricker, a member of the Tribunal, looked through all his clinical notes (R6) to see if she could identify any references to symptoms of anxiety. As she said at the hearing, she could not.
123. In Dr Lee's notes (R6) there are notes of approximately 150 attendances between early 1988 and 22 March 1999. The list of active problems at R6 p11 is as follows:
-IHD
-Hypertension
-Sleep apnoea
-Nasal obstruction
-Asthma
There is no mention of anxiety. The records include references to tightness in the chest and to tiredness in February 1988. The tiredness continues to be frequently mentioned, but the evidence provides an explanation for that symptom, namely sleep apnoea. There is also a history of bronchitis and associated chest problems. There is no mention of anxiety or stress or of any symptoms of anxiety.
124. We note that Mrs Fogarty said in her evidence that, although there had been difficulties and unhappy times in the marriage, which could have been due to anxiety, in the early years after the war, and while Mr Fogarty was working, the marriage was better in the later period. She said this was because “…there wasn’t the drinking”. That had been reduced in 1988 and, except for an occasional glass of wine or whisky, stopped in 1994.
125. Mrs Fogarty said that she and Mr Fogarty led a quiet life after his retirement from Parliament, in 1988. She said he got on well with people. She then went on to say he was aggressive, fiery and outspoken and did have a couple of punch ups with people, but we find that was a reference to earlier times. Mrs Fogarty said that her husband enjoyed his life in his last years. She mentioned that he had been disappointed with politics because he was not made the Minister of Agriculture when the Victorian Labour Party was elected to government, even though he had been Shadow Minister for Agriculture.
126. Returning to the DSM-IV diagnostic criteria for generalised anxiety disorder, set out in paragraph 105 of these reasons, there is no evidence before us that, as at 1995, Mr Fogarty was suffering from the symptoms specified in criteria A or B. We do not find that, in 1995, he was suffering from excessive anxiety and worry occurring more days than not. Nor do we find that Mr Fogarty, at that time, had worry which he found it difficult to control. Nor do we find that criterion E was satisfied. There is no evidence that Mr Fogarty, in 1995, had "anxiety, worry or physical symptoms [which] cause[d] clinically significant distress or impairment in social, occupational, or other important areas of functioning".
127. We have concluded that we prefer Dr Kenny’s opinion to those of Dr Cronin, Dr Sime, Dr Cole and Dr Strauss. We find on the balance of probabilities that, although Mr Fogarty may have had an anxiety condition some time after service, perhaps in the 1950s, he no longer had an anxiety condition by 1995. We consider that Dr Cronin, Dr Sime and Dr Strauss confused the past history and the present history. We find that they gave too little weight to Mr Fogarty’s very successful and responsible career, and to the fact that, by the time they saw him, he had given up drinking, and his tiredness and sleep problems had been diagnosed as due to a cause other than anxiety. We find that, as Mr Fogarty told Dr Cronin, the events during the war no longer affected him in 1997, when he attended Dr Cronin.
128. We find that, if Mr Fogarty had been suffering from a generalised anxiety disorder during the period from 1988 onwards, there would be some mention of it in Dr Lee’s detailed clinical notes covering frequent visits more than 10 years.
129. We consider it is also relevant that, so far as we can see, Mr Fogarty himself did not actually lodge a claim for any nervous condition. His claim only referred to him being “very stressed during the war”, as a reason for claiming that service caused the disability due to his heart condition. Further, when Mr Fogarty saw Dr Yoga, he did not claim to have any symptoms of anxiety other than being concerned about his medical complaints (T1998 p75). Although anxiety is mentioned in Dr Yoga’s report about effort tolerance, that is anxiety about the effect of physical effort on his heart condition. As Mr Fogarty explained at the hearing in 2000 (R4 p23):
What about chopping wood or anything like that?---No, I wouldn’t – I wouldn’t attempt that.
You couldn’t do that?---Not with the – see I’ve been told by Skillington that my heart has been affected and – I suppose you have the record there, with the operation he just said that on a long term hypertension has damaged your heart. So I’m not going to chop wood knowing that.
130. The transcript of the hearing in 2000 (R4) shows that the evidence Mr Fogarty gave about symptoms of tiredness and restlessness and being argumentative was in the past tense (p22). That is in contrast to what he said about muscle tension. He said, "I've got muscle tension now" (R4 p23). He explained that he thought it was "wrapped up" with the sleep apnoea. He did not give a description of current symptoms of anxiety.
131. We find, on the balance of probabilities, that Mr Fogarty was not suffering from a generalised anxiety disorder in the period from 1995 until his death.
132. As Kenny J explained in the Full Court, we must also consider under the current SoP, whether he was suffering from an “anxiety disorder not otherwise specified”.
133. The diagnostic criteria for that condition in DSM-IV are as follows:
¢ 300.00 Anxiety Disorder Not Otherwise Specified
This category includes disorders with prominent anxiety or phobic avoidance that do not meet criteria for any specific Anxiety Disorder, Adjustment Disorder With Anxiety or Adjustment Disorder With Mixed Anxiety and Depressed Mood, Examples include
1.Mixed anxiety‑depressive disorder; clinically significant symptoms of anxiety and depression, but the criteria are not met for either a specific Mood Disorder or a specific Anxiety Disorder…
2.Clinically significant social phobic symptoms that are related to the social impact of having a general medical condition or mental disorder (e.g. Parkinson’s disease, dermatological conditions, Stuttering, Anorexia Nervosa, Body Dysmorphic Disorder)
3.Situations in which the clinician has concluded that an Anxiety Disorder is present but is unable to determine whether it is primary, due to a general medical condition, or substance induced [emphasis added]
134. There is no evidence of Mr Fogarty having any symptoms of “phobic avoidance”. We accept Dr Kenny’s evidence that, if Mr Fogarty had been suffering from a psychiatric disorder with “prominent anxiety”, it would have been manifest, and a regular treating general practitioner would have been expected to observe the symptoms. We find that, if Mr Fogarty had been suffering from “prominent anxiety” over the years 1998 to 1999, it would probably have been mentioned in Dr Lee’s clinical notes and in his report (T1998 p86). In the absence of any such mention, we find that Mr Fogarty did not suffer from anxiety disorder not otherwise specified in 1995.
135. The SoP No 1 of 2000 also covers “anxiety disorder due to a general medical condition”. There was no submission that Mr Fogarty suffered from that form of anxiety disorder, but applying the guidance given to the Tribunal by the Full Court in this matter we should also consider that anxiety disorder.
136. The diagnostic criteria in DSM-IV are as follows:
¢ Diagnostic criteria for 293.89 Anxiety Disorder Due to … [Indicate the General Medical Condition]
A. Prominent anxiety, Panic Attacks, or obsessions or compulsions pre‑dominate
in the clinical picture.
B. There is evidence from the history, physical examination, or laboratory findings that the disturbance is the direct physiological consequence of a general medical condition.
C. The disturbance is not better accounted for by another mental disorder (e.g. Adjustment Disorder With Anxiety in which the stressor is a serious general medical condition).
D. The disturbance does not occur exclusively during the course of a delirium.
E. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
Specify if:
With Generalized Anxiety: if excessive anxiety or worry about a number of events
or activities predominates in the clinical presentation
With Panic Attacks: if Panic Attacks (see p. 395) predominate in the clinical presentation
With Obsessive‑Compulsive Symptoms: if obsessions or compulsions predominate in the clinical presentation
Coding note:: Include the name of the general medical condition on Axis I, e.g. 293.89 Anxiety Disorder Due to Pheochromocytoma, With Generalized Anxiety, also code the general medical condition on Axis III (see Appendix G for codes).
137. There is evidence that Mr Fogarty experienced some anxiety about his physical health. Dr Cronin noted:
There has probably been some increase in anxiety as his health deteriorated.
Dr Sime wrote (A4 p4):
However, the main thrust, I think, of his generalised anxiety state is linked to the anxieties generated from his physical illness and probably particularly in relation to his chest problems which have been a continuing process since coming out of the Navy.
Dr Cole’s report concentrated on Mr Fogarty’s anxiety immediately after discharge from the Navy, and does not mention anxiety about his physical health.
138. Dr Strauss referred to the history given him by Mrs Fogarty and Mrs Hutchinson which related mainly to earlier times and drinking problems and sleep problems. He did refer Mr Fogarty’s physical heath problems but not to anxiety issues associated with those problems.
139. Dr Kenny wrote (R2 p6):
He has the natural concerns about his overall health problems, but I say they are normal, natural, understandable, not beyond what we would expect for a man who has had his health problems and do not constitute a psychiatric disturbance.
140. We accept Dr Kenny’s evidence and find that Mr Fogarty’s concern about his health problems did not constitute a psychiatric disturbance. We find further, as we have done earlier, that there is no evidence of “prominent anxiety” (criterion A) or of any anxiety “disturbance” being “the direct physiological consequence of a general medical condition” (criterion B). Criterion C was not addressed in the evidence. We find Criterion D was not satisfied.
141. We find that, from 1995 onwards, Mr Fogarty did not suffer from generalised anxiety disorder, or from anxiety disorder not otherwise specified, or from anxiety disorder due to a generalised medical condition. Thus, the decision in respect of anxiety disorder will be affirmed.
DIVERTICULAR DISEASE OF THE COLON
142. Mr Fogarty made a claim in respect of “colonic diverticulosis” on 24 March 1995 (T1998 p54). That claim was rejected by the Repatriation Commission on 4 October 1995 (T1998 pp91‑93) on the ground that there was no evidence pointing to any of the factors in the relevant SoP. That decision, amongst others, was the subject of an application for review by the VRB. At the hearing of that review on 7 September 1998, Mr Fogarty‘s RSL advocate sought leave to withdraw the application “in so far as it related to diverticular disease of the colon”. That leave was granted.
143. On 10 March 1999 Mr Fogarty made a further claim for diverticulitis (T2000 pp68‑78). The description of the disease was changed to “diverticular disease of the colon” by the Repatriation Commission on 12 March 1999. That claim was rejected on the ground that there was no material pointing to any of the factors in the relevant SoP.
144. On 4 October 2000 the VRB affirmed that rejection. The submission made on behalf of Mr Fogarty was that, during service, he had changed to a diet lower in dietary fibre, more than three months before the clinical worsening of diverticular disease of the colon. The VRB found that there was no medical evidence pointing to Mr Fogarty having diverticular disease of the colon during service.
145. A review by this Tribunal on 2 October 2003 affirmed that decision. An appeal from the decision of the Tribunal was allowed by consent and the matter was remitted to the Tribunal.
146. As to the preliminary issue, there was no dispute about the fact that Mr Fogarty did suffer from diverticular disease of the colon which was diagnosed by barium enema in 1982 (T1998 pp88‑99).
Step one of Deledio
147. The next issue is to consider all the material before the Tribunal, to determine whether it points to a hypothesis connecting diverticular disease of the colon with the circumstances of Mr Fogarty’s service.
148. Mr De Marchi relied on the reports of Mr Marshall of 13 February 2001 (A3) and 4 July 2001 (A4). In his report of 13 February 2001, Mr Marshall referred to a documented history of Mr Fogarty having an attack of what was regarded as gastroenteritis in 1944 while on service. At the time Mr Fogarty was admitted to Williamstown Naval Hospital suffering from diarrhoea, vomiting and abdominal pain which lasted for some four days. Mr Marshall then noted (A3):
After his discharge, he said that he had a lot of illness but this did not include abdominal problems but in February 1957 when he was 34 years old, his general practitioner (Dr G. Phillips) referred him to the Repatriation Hospital for investigation of morning nausea and vomiting which had lasted for some months. These symptoms were associated with abdominal pain in his left iliac fossa and I note from the report supplied by Dr. Phillips that he treated Mr. Fogarty, apart from a large number of respiratory complaints, for gastrointestinal disorders which he thought were probably gastroenteritis but in retrospect regards as having been caused by diverticulitis. These symptoms were confirmed by Dr. A.G. Capes in his report of 1996.
Mr. Fogarty still has exactly the same sort of pain in the same place in his left iliac fossa and a diagnosis was made in 1982 of diverticular which was confirmed in the year 2000 by colonoscopy. Given that the pain was the same as that which had troubled him in 1957, it seems reasonable to conclude that he was suffering from diverticular disease of the colon at least from 1957 onwards.
149. Mr Marshall set out his understanding that Mr Fogarty “as was customary in the Navy” subsisted almost entirely on solid tinned food and was at sea for months at a time. Mr Marshall commented, “This of course consists of a diet which is almost entirely deficient in fibre”.
150. Mr Marshall then explained in reference to the SoP to which he had been referred:
There is no mention in that Statement of Principles of any upper limit of time. In other words, it does not say that the diverticular disease must happen three months after changing to a diet low in dietary fibre. It does, however, state very sensibly that there must be a period of no less than three months and this is obviously appropriate because it would take at least that amount of time for diverticular disease to develop. It must be understood that diverticular disease is a progressive herniation of the mucous membrane of the large bowel through the bowel wall to form multiple small out‑pouchings. Like the development of an external abdominal hernia, this is a process which takes place because of increased pressure inside the bowel generated by a diet low in fibre and under no circumstances could it ever happen in anything less than several months. That is quite clearly the intent of the Statement of Principles.
On the other hand, the diverticular disease once the process of herniation had begun would inevitably worsen gradually over the years and it is perfectly reasonable to imagine that symptoms would not appear even after three months but might well be delayed for some years.
He concluded:
…I believe that Mr. Fogarty did have diverticular disease which developed as a result of his low fibre diet in the service, which did not become symptomatic or obvious until ten years later and only really started to give trouble in 1957.
151. Mr Marshall then wrote a second report (A4) in response to a letter from Mr De Marchi. He attempted to clarify the issue of the clinical onset of the diverticular disease of the colon. He wrote:
Thank you for your letter of 3rd July. It is of course impossible to be dogmatic about the exact time when Mr. Fogarty’s undoubted diverticular disease started. As I had said in my report of 13.2.2001, he had had several attacks of left iliac fossa pain and bowel symptoms and it therefore seemed to me that his diverticular disease started to give trouble in 1957. It would therefore seem unarguable that the process of development of these small pouches must have begun during his service at sea from 1940 to 1946. His general practitioner of course regarded him as having gastro‑intestinal disorders which with the benefit of hindsight he now believes were probably caused by his diverticular disease.
On the other hand, Mr. Fogarty had no problems immediately after the war and this might indicate that he had no diverticular disease but it seems to me that the most probable explanation is that he had small diverticula which had started to develop but took another ten years after his discharge to reach the point where he started to get attacks of inflammation (diverticular).
The short answer to your question about the onset of disease is therefore that I believe there is every reason to accept that Mr. Fogarty began to develop diverticular disease during his service between 1940 and 1946 but that it only became symptomatic ten years or so after his discharge. This view of course is supported by the fact that Mr. Fogarty’s bowel habit was “reasonably regular early in his service career but deteriorated over the course of 4‑6 years”.
152. We find that those reports are material pointing to the hypothesis that Mr Fogarty had a low fibre diet during service, which played a part in the development of small pouches in the membrane of the large bowel through the bowel wall, commencing during service, but not developing into symptomatic diverticular disease until 1957.
153. Dr Phillips report of 28 September 1995, relating to his treatment of Mr Fogarty between 1953 and 1973, contained the following passage (T1998 p99):
On several occasions he was treated for Gastro‑intestinal disorders which at the time I diagnosed as Gastritis and Gastroenteritis, in retrospect it may seem that Diverticulitis was an underlying cause of his illness.
154. The VRB, in its decision of 9 October 2000, summarised Mr Fogarty’s account of his diet at that hearing as follows (T2000 pix):
Mr Fogarty then spoke to the Board concerning his service. He said that in the 12 months at sea on HMAS Quickmatch during 1944/1945 the diet was “solid canned foods….”. Although he admitted that the rations would have included bread, “dog biscuits” (dietary biscuit), baked beans and tinned vegetables and fruit. He said that this was the worst period of his service as far as diet was concerned. Prior to that he had spent time at Gabo Island and the Cape Otway Light where the diet was poor. His remaining sea‑time was spent on mine sweeping and other duties in Bass Strait and operating out of Victoria. These sea‑duties were for about two weeks at a time and diet was not stated to be a problem during these periods.
155. The respondent relied on a report by Dr Francis dated 1 November 2001 (R1). In a lengthy report Dr Francis, who had treated Mr Fogarty for his diverticular disease of the colon in 1989, concluded:
(i)that from Mr Fogarty’s account to the VRB of his diet during service and from a report of Ms Lewis as to the diet of servicemen “there does not seem to have been any lack of fibre he quotes or that she describes”;
(ii)there was no “clinical worsening” of diverticular disease of the colon immediately after a period on the service diet.
156. Dr Francis also noted that the records as to the 1957 complaints (T2000 p91) do not contain a diagnosis of diverticulitis and no abnormality was detected at that time. He suggested that the investigations recommended and symptoms reported were not indicative of diverticulitis. Dr Francis said he could find no record other than the one in 1944 of Mr Fogarty having abdominal complaints during service. He said there was nothing to show any “worsening of bowel habit during service”.
157. Dr Francis wrote that the records of the symptoms during the hospital admission from 27 to 30 September 1944 were classical of gastroenteritis rather than diverticular disease “in particular, the rapid recovery”.
158. The material before the Tribunal does point to a hypothesis connecting diverticular disease with Mr Fogarty’s service. Mr Marshall hypothesised that a low fibre diet during service may have caused Mr Fogarty “to [begin] to develop diverticular disease during his service between 1940 and 1946, but that it only became symptomatic ten years or so after his discharge” (A4).
Step 2
159. The relevant SoP is agreed to be No 67 of 1994 as amended by No 87 of 1997 concerning diverticular disease of the colon.
Step 3
160. In order to consider whether Mr Marshall’s hypothesis fits the template in the SoP, it is necessary to consider whether it contains one or more of the service related factors recognised by the Repatriation Medical Authority as raising a reasonable hypothesis connecting diverticular disease of the colon with the circumstances of service. Clause 1 contains three factors but factor (a) requires that Mr Fogarty have been suffering from scleroderma which is not the case. Factor (b), which relates to diet, was amended from 8 October 1997 by Instrument No 87 of 1997. As the relevant claim was lodged after that date (T2000 p71), the amended form of factor (b) is applicable. It is as follows:
(b)changing to a diet at least 50% lower than usual in dietary fibre for that person, for a continuous period of at least 90 days immediately before the clinical worsening of diverticular disease of the colon; or;
Factor (c) is as follows:
(c)inability to obtain appropriate clinical management for diverticular disease of the colon.
161. The other relevant paragraphs of SoP No 67 of 1994 are paragraphs 2 and 3, which provide:
2.Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to (c) must be related to any service rendered by a person.
3.The factors set out in paragraphs 1(b) and (c) apply only where:
(a)the person’s diverticular disease of the colon was contracted prior to a period, or part of a period, of service to which the factor is related; and
(b)the relationship suggested between the diverticular disease of the colon and the particular service of a person is a relationship set out in paragraph 8(1)(e), 9(1)(e), 70(5)(d), or 70(5A)(d) of the Act.
162. The SoP in clause 4 provides the following definition of diverticular disease of the colon:
“diverticular disease of the colon” means the clinical consequences of a herniation or sac-like protusion of the colonic mucosa and the submucosa through the muscular coat of the colon, attracting ICD code 562.1;
163. We find that the hypothesis advanced by Mr Marshall does not fit the template in the SoP, because there is no evidence pointing to Mr Fogarty's diverticular disease of the colon being contracted prior to a period or part of a period of service.
164. Mr Marshall, in his first report (A3), wrote that the diverticular disease "…did not become symptomatic or obvious until 10 years [after service] and only really started to give trouble in 1957".
165. In his second report (A4), Mr Marshall wrote that there was every reason to accept that Mr Fogarty started to develop diverticular disease during service "but it only became symptomatic 10 years on so after his discharge". He also acknowledged that the fact that Mr Fogarty had no problems immediately after the war "might indicate that he had no diverticulitis". He added:
… but it seems to me that the most probable explanation is that he had small diverticula which had started to develop but took another ten years after his discharge to reach the point where he started to get attacks of inflammation (diverticulitis).
166. We have concluded that, bearing in mind the definition of diverticular disease of the colon in clause 4 of the SoP, and the decision of the Full Court in Lees, Mr Marshall's reports do not point to Mr Fogarty having "contracted" diverticular disease of the colon during his service or prior to a period or part of a period of his service. Mr Marshall did not suggest that the disease became symptomatic or had clinical consequences during service. He expressly stated that it only became symptomatic or obvious 10 years later. The definition in clause 4 of SoP No 67 of 1994 requires that there be clinical consequences in order for the disease to be present.
167. In Dr Francis' opinion, the 1957 symptoms were probably not symptoms of diverticular disease of the colon. It would seem that he would have regarded the onset of clinical consequences as probably occurring shortly before the barium enema in 1982.
168. As we have found that the hypothesis advanced on the basis of Mr Marshall's opinions fails to fit within the template in the SoP, it is not "reasonable" and the claim for diverticular disease of the colon to be accepted as a war‑caused disease must fail.
CONCLUSION
169. We will decide:
(i)The decision of the Repatriation Commission made 4 October 1995 and affirmed by the VRB on 17 September 1998 in respect of ischaemic heart disease is affirmed.
(ii)The decision of the Repatriation Commission made 4 October 1995 and affirmed by the VRB on 17 September 1998 in respect of generalised anxiety disorder is affirmed.
(iii)The decision of the Repatriation Commission made 12 March 1999 and affirmed by the VRB on 9 October 2000 in respect of diverticular disease of the colon is affirmed.
I certify that the 169 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs J. Dwyer, Senior Member, Mr Ermert, Member & Assoc Professor Maynard, Member.
Signed: ……………………………………………………………
AssociateDate/s of Hearing 30 March 2004, 31 March 2004 & 1 April 2004
Date of Decision 27 May 2004
Solicitor for the Applicant Mr De Marchi
Counsel for the Respondent Ms McMahon
Solicitor for the Respondent Australian Government Solicitor
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