GEOFFREY STEVEN WEIR and REPATRIATION COMMISSION
[2009] AATA 902
•25 November 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 902
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/4179
VETERANS’ APPEALS DIVISION ) Re GEOFFREY STEVEN WEIR Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Dr S. H. Toh, Member
Date 25 November 2009
PlaceSydney
Decision The decision under review is affirmed. .....................[sgd].........................
M. D. Allen
Presiding Member
CATCHWORDS
VETERANS’ ENTITLEMENTS - did the Veteran meet the diagnostic criteria for an Adjustment Disorder - meaning of ‘marked distress’ - requirement for significant impairment – decision under review affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986 sections 6C, 120, 120A.
Statutory Instrument No.37 of 2008 entitled Adjustment Disorder.CASE LAW
Repatriation Commission v Gosewinkle (2001) 70 ALD 622
Lees v Repatriation Commission (2002) 36 AAR 484
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Deledio (1998) 83 FCR 82REASONS FOR DECISION
M D ALLEN 1. By application made the 8th Day of September 2008, the Applicant sought review of a decision by the Respondent rejecting his claim to have the disease of “Adjustment Disorder” recognised as having been war-caused.
2. It was not disputed that during his period of service in South Vietnam the Applicant injured his right knee and as a result the Applicant has the conditions of torn right lateral meniscus and osteoarthritis of the right knee accepted as being war-caused. The issue in this matter was whether chronic pain caused by the injuries to his right knee resulted in the Applicant suffering from an Adjustment Disorder.
3. As the injury which gave rise to the Applicant’s claim occurred whilst the Applicant was on operational service as that term is defined in section 6C of the Veterans’ Entitlements Act 1986 (“VEA”), the standard of proof in this matter is that mandated by Ss120(1) and (3) VEA.
4. Subsection 120(1) and (3) VEA provide that any disease suffered by a veteran and claimed to be war-caused shall be accepted as being so caused unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal will be deemed to be so satisfied if, after a consideration of all of the material before it, the Tribunal is of the opinion that the said material does not raise a reasonable hypothesis connecting the disease suffered by the applicant with the circumstances of the service rendered by him.
5. Pursuant to s120A VEA, a hypothesis will not be a “reasonable hypothesis” unless it conforms to a so called Statement of Principles (“SoP”) issued by the Repatriation Medical Authority.
6. Subsection 120(6) VEA provides that neither party to this review bears any onus of proof.
7. The manner in which the Tribunal must approach its task where an SoP exists was set forth by the full court of the Federal Court in Repatriation Commission v Delideo (1998) 83 FCR 82. The so called “Delideo principles” are now so well known as not to require recapitulation here.
8. As stated above, the real issue in this matter was whether the Applicant did in fact suffer from an Adjustment Disorder. As pointed out in Benjamin v Repatriation Commission (2001) 70 ALD 622, that question is to be decided to the Tribunal’s “reasonable satisfaction”.
9. In order to be satisfied that a disease exists, the Tribunal must apply all of the diagnostic criteria as set out in the applicable SoP, (if one exists). See Repatriation Commission v Gosewinkle (2000) 59 ALD 690 at 703; Lees v Repatriation Commission (2002) 36 AAR 484 at 489 para 16.
10. In this matter the SoP in existence at the time the Repatriation Commission made its original decision was instrument No.57 of 1996. That Instrument was succeeded by the current SoP being Statutory Instrument No.37 of 2008.
11. In our opinion the latter Instrument is more favourable to the Applicant’s case. Instrument No.57 of 1996 states as the relevant factor linking adjustment disorder with service as follows:
“5(a) experiencing an identifiable psychosocial stressor or stressors within the three months immediately before the clinical onset of adjustment disorder;”.
Psychosocial stressor(s) is defined in clause 7 of the said Instrument as:
“means an injury, disease or occurrence that evokes in an individual feelings of substantial anxiety or stress (for example being shot at, being involved in a motor vehicle accident, experiencing a failure or loss such as divorce; or receiving a diagnosis of a disabling medical condition such as a malignancy or chronic cardiorespiratory disorder”);
which refers to traumatic events.
12. Instrument No.37 of 2008 states as factors connecting adjustment disorder with service not only clause 6(a) or 6(b), as follows:
6(a) experiencing a category 1A stressor within the three months before the clinical onset of adjustment disorder; or
6(b) experiencing a category 1B stressor within the three months before the clinical onset of adjustment disorder;...
but significantly for the Applicant’s case, the following factor 6(h):
“6(h) having chronic pain of at least three months duration at the time of the clinical onset of adjustment disorder;”
which to our mind is specific and is the factor applicable to this Applicant.
13. In passing, we must state that we have difficulty reconciling factor 6(h) with the diagnostic criteria for Adjustment Disorder in that criterion 3A reads:
“the development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within 3 months of the onset of the stressor(s).”
Factor 6(h) in referring to chronic pain “of at least three months duration” quite properly allows for chronic pain extending over a period before the onset of an Adjustment Disorder, and allows for the stoic, yet diagnostic criterion 3A requires occurrence of the Anxiety Disorder within three months of the onset of the stressor(s). (Tribunal’s emphasis).
14. Chronic pain is defined in Instrument No.37 of 2008 as in the following terms:
“chronic pain” means continuous or almost continuous pain, which may or may not be ameliorated by analgesic medication and which is of a level to cause interference with usual work or leisure activities or activities of daily living;”
As we understand the Respondent’s case in this matter, it was not necessary to make a decision as to whether the Applicant does suffer chronic pain as a result of his right knee condition.
15. We are satisfied however that the Applicant has not suffered a category 1A or category 1B stressor as those terms are defined in Instrument No.37 of 2008, nor has he suffered what in Instrument No.57 of 1996 was described as a psychosocial stressor.
16. The applicant’s evidence was that although trained as a fitter he took up interstate truck driving as it provided more money. Dr Dinnen in his report of 7 May 2009 refers to the Applicant stating that as he was a loner interstate driving suited him.
17. The Applicant when younger used to referee Rugby League games in the Illawarra area. Gradually because of his sore knee he had to go down to lower grades and by the time he was forced to give away refereeing at age 42 because of his knee swelling and becoming painful he was refereeing under age games.
18. After ceasing refereeing his symptoms eased and the knee did not swell although pain continued. To ease the pain he took Celebrex.
19. According to the Applicant he continued to work as an interstate truck driver until the year 2000. He then ceased interstate truck driving because with his knee pain he found it too hard climbing onto the back of the truck and into the vehicle cabin.
20. Upon ceasing truck driving the Applicant obtained work as a security officer. He enjoyed this work and it involved sitting in a control room. Unfortunately he lost that job when the company who originally employed him was taken over and his duties changed to walking up and down fire stairs which duties, because of his knee pain, he was unable to perform.
21. Subsequently he obtained a job driving a utility and picking up and delivering newspapers. He is still employed in that job, albeit part time.
22. At the time he ceased work as a security officer, the Applicant made a claim upon the Respondent. In a lifestyle questionnaire completed in December 2004, the Applicant refers to depression but on being questioned he said that at that time he was depressed as a result of losing his job, although in cross examination he said that losing his job was upsetting “but I got over it”.
23. The Applicant stated that once a month or once a fortnight he wakes up feeling depressed. He then thinks “another pain filled day”, but then he would look at the pictures of his grandchildren and think of his future with them. He said that such moods commenced when he ceased interstate truck driving in 2000.
24. In cross examination the Applicant reiterated that his depressed moods had started when he had to give up interstate truck driving but when questioned he said he did not know what triggered his “down moods”.
25. Currently the Applicant is working 21 hours per week. He has not applied for a permanent position as if he did so he would be required to attend a medical examination which he would fail.
26. Questioned as to his alcohol consumption he said that he drinks alcohol four days a week, being six to eight stubbies of beer and some Scotch as it helps kill the pain in his knee.
27. The Applicant was referred to orthopaedic surgeon, Dr Rhys Gray by his General Practitioner (GP) in November 1996. On 25 June 2004 in a report to the Respondent, Dr Gray stated that the Applicant had at that time been able to handle his right knee arthritis by maintaining a high activity level. He opined that the Applicant was “moderately symptomatic” and would require a total knee replacement in the short to medium term.
28. On 27 January 2005 the Applicant was examined by Psychiatrist Dr Koller. Apparently that consultation was initiated by the Applicant’s advocate at the Illawarra Veterans’ Entitlements Services.
29. We were not assisted by Dr Koller’s report. He stated that the Applicant’s Adjustment Disorder had its onset during his period in South Vietnam; compare Dr Dinnen who opined that it had developed over the last 13 years. Dr Dinnen further added “The Veterans’ Review Board quite rightly did not accept that this condition developed in 1970 or 1971.” Dr Koller also stated that the Applicant drank every day, whereas the Applicant said he only drank alcohol on his days off. Dr Roberts, Psychiatrist, noted that the Applicant was very particular not to drink the nights before he drives.
30. Psychiatrist Dr Dinnen examined the Applicant on 21 April 2009. He made a diagnosis of an adjustment disorder. He opined that the stressor giving rise to the adjustment disorder was chronic pain.
31. Under the heading of “OPINION”, Dr Dinnen stated “The patient presents with some mild features of anxiety and depression which he describes as having developed in recent years.” He adds “The diagnosis of adjustment disorder as set out in DSM-IV-TR requires the development of emotional behavioural symptoms in response to an identifiable stressor, causing significant impairment in social or occupational functioning. …In this case the stressor is the chronic pain and disability of the right knee. …It should be noted however that the condition of itself is slight to mild and the patient is not greatly impaired by it…”.
32. We have difficult with this part of Dr Dinnen’s report. If the DSM requires significant impairment (Tribunal’s emphasis) in social or occupational functioning, it seems at odds with Dr Dinnen’s opinion that the condition is slight to mild and the patient is not greatly impaired by it.
33. During Examination in Chief, Dr Dinnen was taken to the diagnostic criterion 3B in Instrument No.37 of 2008, namely:
“These symptoms or behaviours are clinically significant, as evidenced by either of the following:
(1)marked distress in excess of what is expected from exposure to the stressor; or
(2) significant impairment in social or occupational (academic) functioning.”
Dr Dinnen opined that the Applicant described some symptoms of distress that warranted a diagnosis and that he did exhibit marked distress.
34. Dr Roberts, Psychiatrist, who was called by the Respondent, was of a different opinion. At his examination of the Applicant he found no evidence of marked distress.
35. Cross examined as to what he understood by marked distress, Dr Roberts equated the term to manifest distress, ie distress obvious to the observer.
36. In the history taken by Dr Roberts he noted that the Applicant told him he would get “downers” commenting he would wake up in the morning and not feel like doing anything, but then got up and got motivated. We note this history is very similar to the evidence of the Applicant to the Tribunal of being “down” before getting out of bed but revived by looking at pictures of his grandchildren.
37. Dr Roberts in his report noted that the Applicant stated that he had no personal domestic or marital problems and he related well to his wife and children. Dr Dinnen also obtained a history that the Applicant had no money or other worries and that when down his family generally would cause him to pick himself back up when they visit.
38. Both Dr Dinnen and Dr Roberts noted that whereas the Applicant regularly attended his GP, that GP had not prescribed any medication. Dr Roberts obtained a history that the GP had stated to the Applicant that if he was depressed he could do something for him. In a report dated 16 November 2007 that GP noted that no regular treatment had been sought or recommended and the Applicant gave no evidence of being on any medication for depression.
39. On balance we were more persuaded by the evidence of Dr Roberts. The Applicant has suffered as a result of his war-caused knee injury. In particular he has had to cease refereeing Rugby League matches earlier than otherwise would have been the case. He has had to cease a chosen employment in interstate truck driving and has lost a job because of incapacity due to his injury. However, there is nothing in the evidence of the Applicant or the medical reports to evidence that he is in marked distress or has significant impairment in social or occupational functioning.
40. As stated above, Dr Roberts was cross-examined as to what he regarded as marked distress. The Oxford English Dictionary Online 2009 gives as meaning to the word “marked” the following: “Emphasised, clearly defined or clearly noticeable, striking, evident” which to our minds, equates to Dr Roberts meaning of manifest.
41. Diagnostic factor 3B(2) requires “significant” impairment in social or occupational functioning. There is nothing in the evidence to show that the Applicant is experiencing significant impairment in social or occupational functioning and he has been able to retain employment.
42. In cross-examination of Dr Dinnen, consistent with his report, stated that he did not find significant impairment and although he referred in re-examination to marked distress, this must be qualified by his previous evidence that the Applicant had “some symptoms of distress”.
43. We are satisfied that Dr Robert’s is the correct opinion and that the Applicant does not suffer an Adjustment Disorder. In particular, we find that there is no evidence of marked distress or significant impairment such as to meet the diagnostic criteria in paragraph 3B of Instrument No.37 of 2008.
44. The decision under review is AFFIRMED.
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