Gaal and Defence Force Retirement and Death Benefits Authority
[2008] AATA 1146
•22 December 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1146
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2005/1093
| General Administrative Division | ) | ||
| Re | Gary Mark Wayne Gaal | ||
Applicant
| And | Defence Force Retirement and Death Benefits Authority |
Respondent
DECISION
| Tribunal | Senior Member M D Allen Dr. I Alexander, Member |
Date22 December 2008
PlaceSydney
| Decision | The Decision under review is set aside and this matter is remitted to the Respondent with the direction that the Applicant Gary Mark Wayne Gaal is to be classified as Class A for the purposes of pension under the Defence Force Retirement and Death Benefits Act 1973. |
....................[sgd]........................
M D Allen
Presiding Member
CATCHWORDS
Defence Force Retirement and Death Benefits: Was Applicants Bi Polar Disorder causally connected with his prescribed impairment at time of discharge from the Army – Decision set aside and Applicant reclassified as Class A
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LEGISLATION
Defence Force Retirement and Death Benefits Act 1973: ss34(1B)
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CASES
Re Levin and Defence Force Retirement and Death Benefits Authority (1997) 48 ALD 664
Victor v Chief of Naval Staff (1992) 115 ALR 716
REASONS FOR DECISION
| Senior Member M D Allen Dr. I Alexander, Member |
By application made the 25th day of August 2005, the Applicant sought review of a Decision by the Respondent that his incapacity classification for the purposes of the Defence Force Retirement and Death Benefits Act 1973 should be retained at Class B and that his prescribed impairment was “pes cavus with metatarsalgia and osteotomies of left metatarsals 2,3 and 4 and obesity”
In the Decision under review, the Respondent increased the Applicants degree of impairment from 30% to 50% but that determination was not disputed in these proceedings.
The issue before the Tribunal was whether the Applicant’s mental illness now diagnosed as Bi Polar Disorder (formally termed Manic-Depressive Psychosis) was causally connected with the impairment that caused his discharge from the Australia Regular Army.
Subsection 34(1B) of the DFRDB Act 1973 states:
“In subsection (1A), “prescribed physical or mental impairment”, in relation to a recipient member or a deceased member who was immediately before his or her death a recipient member, means:
(a)a physical or mental impairment of the member that was the cause, or one of the causes, of the invalidity or physical mental capacity by reason of which the member was retired, whether or not that impairment changed, for better or worse, since that retirement; or
(b)any other physical or mental impairment of the member causally connected with a physical or mental impairment referred to in paragraph (a).”
The term “causally connected with” was discussed by the Administrative Appeals Tribunal in Re Levin and DFR&DB Authority (1997) 48 ALD 664 at 682 namely:
“Whether one impairment has a causal connection with another impairment within the meaning s.53(1B)(b), the question must be whether one impairment can be said to [be] associated or linked with one another so that one can be said to be an effect or consequence of the other.”
In Re Levin supra the Tribunal relied upon a decision by the Defence Force Appeals
Tribunal, namely Victor v Chief of Naval Staff (1993) 115 ALR 716 (Northrop, Cox and Gallop JJ) where that Tribunal said of the word “cause”
“(it) refers to… antecedent conditions which bring about or produce in a positive sense a certain effect or consequence.”
In this matter the case for the Applicant is that his prescribed impairment brought about his discharge from the Army which in time had the consequence of his asymptomatic Bi Polar Disorder becoming symptomatic.
Although the Applicant gave evidence and was cross examined in these proceedings, we have doubts regarding the accuracy of his evidence. By this we do not mean to impugn the Applicant’s honesty but he has had a long period of mental illness with prescribed medication (not all of it entirely suitable) and Electroconvulsive Therapy. An example of where we doubt the Applicant is his evidence that he was the Captain of the Regimental Cricket Team. As pointed out by Dr. Jolly (who himself has service experience) and by our own knowledge, it is highly unlikely that a 20 year old Lance Corporal would be directing Officers and more senior Non Commissioned Officer’s what to do on a cricket field.
What is beyond dispute is that the Applicant enlisted in the Australia Regular Army in 1976 aged 17 direct from school. At that time he was physically fit and weighed 69.25kg. Prior to joining the Army he had been an active sportsman and very involved in the Scouting movement, being a Queen’s Scout.
After recruit training he was allocated to Artillery. The evidence is that his grandfather, father and uncle had been gunners and he was proud to be able to continue the family tradition.
In his affidavit, the Applicant stated that he was “destined” to go into the Army and that his sense of family and tradition were very important to him.
Certainly the Applicant did advance in his Army career. His records show that by 1979 he had achieved the appointment of Lance Bombardier and was a gun layer in A Battery 8/12 Medium Regiment. We do not doubt that he saw himself as being at the commencement of a successful career as a regular soldier.
Unfortunately the Applicant commenced to have problems with his feet. It is the Applicants claim that this arose due to his being issued with unsuitable footwear instead of the regular issue namely boots general purpose (Boots GP).
As a result of his non standard issue footwear the Applicant developed plantar warts. Later a consultant orthopaedic surgeon to the Army, Dr. Collins, performed firstly an osteotomy of the left foot to flatten the first metetarsal. Because of continuing problems, Dr. Collins performed osteotomies of the 2nd, 3rd and 4th metatarsals.
In a report dated 20 September 1979, Dr. Collins stated:
“ We have not helped this man. Both feet will continue to bother him because of metatarsalgia associated with pes cavus.
I can not envisage him even being able to resume military training.”
An earlier report by Dr. Collins dated 26 July 1979 noted that the Applicant was “very despondent because of continuing disability.”
Giving evidence as to this time, the Applicant said that initially when problems with his feet began he was transferred from the gun battery to headquarters battery and worked in the Regimental library and sports store. This was a difficult time as unlike being in the battery he would see perhaps one person a day. In addition he was required to wear thongs rather than normal footwear and this brought ridicule from the other members of the unit. In addition, his appointment as a Lance Corporal was revoked.
When informed by Dr. Collins that the second operation on his feet had been unsuccessful he became very despondent as he realised that this meant the end to his Army career and he was informed of this possibility by Dr. Collins.
Speaking of this time the Applicant said that he began to loose sleep and his concentration. His mind was racing and he could not turn it off. He used to be a voracious reader but found that he would read something but not remember it the next day. Previously he had a good memory but that was “not there any more”. One day he would be on top of the world and the next day depressed. He also, as it is apparent from his service records, began to put on weight to the extent that he became obese.
On 27 September 1979 the Applicant underwent a medical examination by a Medical Board who determined that he was unfit for further service. The cause of his unfitness for further service was stated to be “pes cavus with metatarsalgia and osteotomies of left metatarsals 2,3 and 4.” Discharge was effected on 14 November 1979.
Following his discharge the Applicant did not enter into any employment. In evidence he stated that he “just drove around”. Although he did say he got a job in a car park after Christmas, the evidence of his mother was that he was never actually employed but that he used to attend at the car park. Because the person in charge knew the Applicants father he was permitted to undertake some tasks there to keep him occupied. The Applicants mother said that at this stage he was quite manic.
An important aspect of this matter is the behaviour of the Applicant in the period after discharge namely from 14 November 1979 up to 4 May 1980 when he was admitted to the Macquarie Clinic with what was then diagnosed as an acute Schizophrenic reaction.
According to the Applicant, after discharge he returned to his parent’s home. He did state that he had it tough as his mother would not listen to him, saying “we’ve heard it all before, don’t go over it”.
The evidence from the Applicants mother is somewhat different. She noted that there was a change in her son after his last foot operation. He was despondent as he could not walk on his feet and stated that his life was finished and that he had been told he was medically unfit.
After discharge he just “roamed” in his Land Cruiser. Speaking of the period prior to his admission to hospital she said that she never had time to have a conversation with the Applicant and that it seemed he was trying to avoid her. In particular he would come to the house when she or her husband (the Applicant’s father) were not there. She was also informed by a neighbour that the Applicant was sleeping in his car on the neighbours lawn. She added that the Applicant “would not talk about things”.
Following discharge, the Applicant did renew acquaintance with an old school friend, Mr. Stiles. Mr. Stiles gave evidence. He said that he noticed a change in the Applicant after discharge from the Army, he had put on weight and was “different”. He added that the Applicant was “at a bit of a loss”.
Mr. Stiles gave evidence of a visit the Applicant made to him at Wagga where he was attending University. This took place shortly before the Applicant was admitted to hospital. Cross examined, Mr Stiles stated that at the time the Applicant was at Wagga in his company he did not observe any signs of his being delusional and that he “fitted in” with Mr Stiles and his friends.
However in his affidavit and regarding which the witness was not challenged. Mr Stiles said:
“17. I recall Gary being in Wagga for about a week sometime between February and May 1980. He seemed to be at a loss and was very unhappy. He appeared to be listless. Gary was always enthusiastic about what he was involved in. He now appeared to have no focus.
18. About the 22nd May 1980 I returned to Sydney for my brother Reg’s wedding. After arriving I was told by my mother that about 2 weeks earlier Gary had turned up at her house behaving very strangely. My mother has since died. I clearly recall my mother telling me that Gary had said I was involved with the moonies and my mother had feared for my health. Gary was gregarious and appeared to be out of it. My mother told me that Gary did not recall where he had been or gone after he had left me in Wagga. He had lost a day and half of his memory after returning from Wagga.”
A confounding issue in previous considerations of the Applicants case is that initially his condition was misdiagnosed. The original diagnosis of the Applicants condition was that of Schizophrenia. Later opinions, being that of Psychiatrists Dr’s Gupta, Timney, Jolly, Anderson and Haik state that the Applicant is suffering from Bi-Polar Disorder (previously termed Manic Depressive Psychosis).
The course of the Applicants illness is best summed up by a senior medical officer of the Department of Veterans Affairs which is at Document T 69 of the documents prepared for the Tribunal pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975. That document reads inter alia:
“In summary, the patient presented with acute schizophrenic reaction May 1980. This was a Schizoaffective Psychosis which has over the intervening years resolved in to the definitive state of Manic Depressive Psychosis. This has been the psychotic diagnosis from the outset of the disease in May 1980. However, as in many patients who present with mixed symptomatology no definite diagnosis was made until 1981, as the disease progressed.”
The Applicants history of depression whilst in the Army was challenged by reference to a Workers Compensation claim filled in by him on 5 September 1979. Suffice it to say that this claim was for his foot condition and the claim appears to have been made without any legal assistance. We do not place any weight on the fact depression is not mentioned in this initial claim.
During submissions Counsel for the Respondent submitted that the history given by the Applicant could not be accurate. While we have reservations regarding some of the Applicants evidence, we accept Dr. Anderson’s evidence that the Applicant’s memory for events which were of importance to him would be intact. This is corroborated by Dr. Pasha, Director of Psychiatric Services Kenmore Hospital where the Applicant has had numerous admissions. In a report to the Respondent dated 17 December 1996 he states:
“From his story he categorically believes that he got depressed whilst in the Army and his illness was precipitated by his bad feet and the illness worsened when he was discharged in 1979 from the Services.
It is my opinion that Gary is a pleasant, co operative and honest citizen that would not manufacture a story. Even when manic or depressed, his grandiose beliefs are mostly about his life in the Army. He has a good and consistent memory for the events that led to his getting depressed…”
Both Dr’s Anderson and Jolly are of the opinion that the Applicants Bi Polar Disorder was made symptomatic by his discharge from the Army
In his report of 29 July 2006, Dr. Anderson states inter alia:
“Most Psychiatrists will allow that environmental determinants will have an impact on the genesis of bipolar disorder or on the causation of a particular relapse. A period of five to six months between environmental event and diagnosis is not so lengthy that most Psychiatrists would discard the possible connection. This degree of time lapse is certainly allowed by the DVA Statement of Principles for Bipolar Disorder.
Dr. Anderson continued:
“It is quiet conceivable that he truly was depressed and would have been so diagnosed by a qualified Psychiatrist if seen at the time. He indicates that he had trouble getting out of bed, remained at home, remained inactive and had trouble sleeping. He gives to me a reasonable account of depressive symptoms prior to his discharge from the army and the pronounced weight gain would be a further indication of depression as well as inactivity at that time.”
In conclusion Dr. Anderson stated:
“It may be that his bipolar disorder would have arisen regardless of whether he ever entered the army. This is a proposition ,that can never be tested. It is conceivable that he has the genetic basis for bipolar disorder and that he has such a severe loading for it that adverse environmental events such as the loss of a much wanted career would not have an appreciable impact as to the onset of psychiatric condition. But I think it more likely that the loss of career did have an impact upon him and was a significant contributing factor with regard to the onset of psychiatric disorder.”
In evidence Dr. Anderson stated that the Applicants foot injury leading to the loss of his career was a major stressor. Even if the Applicant had not lost his career there were other features of the injury that were a major stressor, namely loss of physical integrity which had changed his self perception and his identity. His weight gain – which led to him being claimed as obese – was also symptomatic of depression.
Cross examined, Dr. Anderson stated that the sudden and unanticipated, what he termed a “blue sky” onset of Bi Polar Disorder is uncommon. Most commonly there is an explanation for the onset of the disease.
Dr. Jolly has seen the Applicant on three occasions, the first in 1988. He is firmly of the opinion that stressors can make an asymptomatic Bi Polar Disorder symptomatic and this is what happened in the Applicants case.
In the opinion of Dr. Jolly a sense of alienation resulting from the Applicants foot injury led to depression. This depression continued post discharge until he finally decompensated. During this period any avoiding of his parents arose out of the Applicant feeling demeaned by his discharge from the Army.
Cross examined, Dr Jolly rejected any suggestion that the trigger for the Applicants Bi Polar Disorder was not his loss of career and physical integrity but his relationship with his parents.
In support of its contention that the Applicants Bi Polar Disorder was constitutional (ie genetic) the Respondent called Dr. Haik.
Both in his reports and oral evidence, Dr. Haik opined that the Applicants Bi Polar Disorder arose de-novo in May 1980. He rejected the opinions of Dr’s Jolly and Anderson and did point out that the Applicants sister had also been diagnosed as suffering a Bi Polar Disorder, thus evidencing a genetic propensity.
Dr. Anderson was also questioned regarding a genetic propensity and pointed out that there was a less than 50% chance of a sibling developing Bi Polar Disorder. If not for the depression associated with being operated upon unsuccessfully and then being discharged from the Army the Applicant may have remained asymptomatic throughout his life.
Dr. Haik appears to have based his opinion largely on an assumption that there was no evidence of impaired mental functioning in the 6 months between the Applicants discharge and his acute psychotic decompensation. Questioned as to what he meant by “impaired mental dysfunction”, Dr. Haik’s evidence was somewhat confusing but he appeared to suggest that there was no evidence that Mr. Gaal had suffered any of the same symptoms prior to his acute deterioration as during that particular time.
As we understand Dr. Haik’s evidence the Applicants condition occurred suddenly on the day he was admitted to hospital with no previous symptoms of any kind. On consideration of the evidence before us, in particular the medical evidence, this proposition could be best described as unusual.
Although Dr. Haik conceded that a severe stressor could precipitate the onset of a Bi Polar Disorder, he considered that in the Applicants case discharge was not a sufficient stressor and even if it had been it was too far removed in time. He specifically rejected the statement in the Department of Veteran Affairs Statement of Principles concerning Bi Polar Disorder (Instrument No. 26 of 2008) that on a balance of probabilities a stressor 6 months prior could be causative of Bi Polar Disorder. (The SoP was put to Dr. Haik as an opinion that represented “sound medical-scientific” and is applicable to persons claiming under the Military Rehabilitation and Compensation Act 2004).
As to Dr. Haik’s suggestion that the Applicants relationship with his mother could have been a sufficient stressor apart from being in our opinion risible his explanation was unclear and apparently based on proximity in time.
We also found totally unconvincing Dr. Haik’s attempted explanation for his opinion that if the Applicants Bi Polar Disorder had been precipitated by a stressor it would have been much less severe.
What was clear from Dr. Haik’s evidence is that whereas he conceded stress could precipitate the onset of Bi Polar Disorder, he had not taken full account of the evidence as to the Applicants feelings prior to discharge and his behaviour after discharge. At times when pressed regarding this concession and the Applicants history, Dr Haik appeared to generalise rather than evaluate the evidence in the context of the Applicants circumstances. All in all we found his evidence less persuasive than that of Dr’s. Anderson and Jolly.
At the instigation of the Tribunal the files of the Department of Veteran Affairs were subpoenaed in these proceedings. We agree with the Respondents submissions that acceptance of liability by that Department under the Veteran’s Entitlements Act 1986 does not bear upon the question currently before this Tribunal. However, in the subpoenaed files is a medical report from Dr. Galea which reads:
“ I saw the above gentleman on his first admission to Macquarie Clinic on 4/5/80. As a matter of fact, I wrote out the Schedule on that admission. There was no doubt that he was going through an acute psychotic breakdown with the history that was given to me at the time of admission. His mental state deterioration had been going on for some 3 months. I do not know the cause for this breakdown and I suggest that perhaps perusing his file would be of more assistance to you.”
This report totally refutes Dr. Haik’s suggestion that the Applicants symptoms occurred suddenly on the day he was admitted to hospital with no previous signs or symptoms.
We find that we are persuaded by the opinions of Dr’s Anderson and Jolly as to the cause of the Applicants Bi Polar Disorder. We also find their opinions are supported in the Statement of Principles regarding Bi Polar Disorder although the SoP regime has played no part in these proceedings except to provide some corroboration for views expressed.
We find that the Applicant began to experience symptoms of a reactive depression while in the Army following the unsuccessful surgery upon his left foot. This then led to discharge from the Army which caused the destruction of his career plans and a further loss of self esteem and placed further stress upon him.
The net result was that an asymptomatic bi polar disorder was made symptomatic. It may well be the Applicant had a genetic propensity towards bi polar disorder but as explained by Dr. Anderson it was by no means inevitable he would suffer from the condition.
Taking all the material before us into account we find that the Applicants prescribed impairment which led to his discharge from the Australia Regular Army namely “pes cavus with metatarsalgia and osteotomies of left metatarsals 2,3 and 4” was an antecedent condition which brought about in a positive sense his bi polar disorder.
The Decision under review is set aside and this matter is remitted to the Respondent with the direction that the Applicant is to be classified as Class A for the purposes of pension under the Defence Forces Retirement and Death Benefits Act 1973.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr. I Alexander
Signed:
M.Corcoran.............[sgd]...........................................................
Associate
Date/s of Hearing 3rd and 4th November 2008
Date of Decision 22 December 2008
Counsel for the Applicant Mr. J. Klarica
Solicitor for the Applicant John M Fitzgerald and Associates
Counsel for the Respondent Mr. A. Dillon
Solicitor for the Respondent Australian Government Solicitors
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