Gibson and Military Rehabilitation and Compensation Commission (Compensation)

[2017] AATA 776

Gibson and Military Rehabilitation and Compensation Commission (Compensation) [2017] AATA 776 (23 May 2017)

Division:                  VETERANS' APPEALS DIVISION

File Number(s):      2016/2547

Re:Samuel Gibson

APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal:Ms N Isenberg, Senior Member
Dr I Alexander, Member

Date:23 May 2017

Place:Sydney

The decision of the Veteran’s Review Board dated 3 February 2016, being the decision under review, is affirmed.

..............................[sgd]....................................

Ms N Isenberg, Senior Member

CATCHWORDS

COMPENSATION – military compensation – whether applicant’s mental illness caused by his service – depressive disorder – anxiety disorder – panic disorder – clinical onset – whether the applicant was diagnosed with mental illness – decision under review affirmed

LEGISLATION

Military and Rehabilitation and Compensation Act 2004 (Cth)

CASES

Kaluza v Repatriation Commission [2011] FCAFC 97

Lees v Repatriation Commission [2002] FCAFC 398; (2022) 125 FCR 331

Re Robertson and Repatriation Commission (1998) 50 ALD 668

SECONDARY MATERIALS

Statement of Principles concerning Anxiety Disorder No. 103 of 2014

Statement of Principles concerning Depressive Disorder No. 84 of 2015

Statement of Principles concerning Panic Disorder No. 69 of 2009

REASONS FOR DECISION

Ms N Isenberg, Senior Member
Dr I Alexander, Member

23 May 2017

Decision under Review

1. By application dated 28 October 2015, the applicant, Samuel Gibson, sought review of a decision of the Veterans’ Review Board ('VRB’) dated 3 February 2016, which affirmed a determination of the respondent dated 8 August 2014 that denied liability under the Military Rehabilitation and Compensation Act 2004 (‘the Act’) for ‘panic disorder and major depression’.

   Background to the claim

2. In a statement accompanying his claim form, the Applicant attributed the development of depression and anxiety to the deaths of three friends, chronic pain and treatment of his fistula condition (also the subject of the claim) and an incident in which he was ‘abused and ridiculed’ in front of other members for not being able to do as many push-ups as a female colleague. 

   Relevant legislation

3. Section 335(3) of the Act relevantly provides that the respondent (and therefore, the Tribunal in its place) is to decide the matter to its reasonable satisfaction. Section 339(3), which applies when a decision is being made to which s 335(3) applies, sets out the appropriate standard of proof for an injury or disease that relates to peacetime service, that standard may only be found to have been satisfied if:

   (a)There is a connection between the injury and some particular aspect of the Applicant's service;[1]

   (b)There is a SOP in force;[2] and

   (c)The material and the SOP upholds the contention that the injury or disease is, on the balance of probabilities, connected with that service.[3]

   [1] Military Rehabilitation and Compensation Act 2004, s 339(3)(a).

   [2] Military Rehabilitation and Compensation Act 2004, s 339(3)(b)(i).

   [3] Military Rehabilitation and Compensation Act 2004, s 339(3)(c)).

4. Section 341 of the Act provides that the current Statement of Principles (‘SOP’) as at the time of the decision must be applied by the Tribunal. Section 341(3) confirms that the Tribunal cannot apply any SOP that is no longer in force.

5. In relation to the three conditions diagnosed, the current SOPs, are as follows:

   ·Depressive disorder: No. 84 of 2015

   ·Anxiety disorder: No. 103 of 2014

   ·Panic disorder: No. 69 of 2009

6. The factor relied on by the applicant with respect to depressive disorder is:

   experiencing a category 2 stressor within the six months before the clinical onset of depressive disorder[4]

   where category 2 stressor is defined as:

   one of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry:

   (c) having concerns in the work or school environment including on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful work loads

   [4] Statement of Principles concerning Depressive Disorder (No. 84 of 2015), Repatriation Medical Authority, pp. 9(e)

7. Anxiety disorder contains the identical provision.

8. The factor relied upon by the applicant with respect to panic disorder is:

   having a clinically significant disorder of mental health from Specified List 1 at the time of the clinical onset of panic disorder[5]

   [5] Statement of Principles concerning Panic Disorder (No. 69 of 2009), Repatriation Medical Authority, pp. 6(e)

9. Depressive disorder and anxiety disorder are both on the Specified List.  Hence, the consideration of panic disorder turns on whether the applicant’s depressive disorder or anxiety disorder, are found to be related to his service.

   Issue

10. The issue before the Tribunal, broadly, is whether liability must be accepted pursuant to s 23(1) of the Act in respect of the Applicant’s claim for 'panic disorder [and] major depression’.

    The Applicant’s Contentions

11. The Applicant’s case was put on the basis that an incident occurred in August 2006 in which he was ridiculed.  His duties put him in proximity to those who had ridiculed him, and especially each time he attended physical training (PT), he was severely affected.  This continued until he left HMAS Cerberus.  He perceived a lack of support.  He suffered depressive disorder well within the 6 months of this event.

12. As to panic disorder, the Applicant contended that, according to his treating psychiatrist, Dr Parker, the condition was secondary to his depressive disorder, with a clinical onset in 2012.

    The Applicant’s evidence

13. The Applicant, who was born on 10 June 1987, enlisted in the RAAF on 31 January 2006.  He provided a statement dated 4 August 2016, upon which he elaborated in his evidence. 

14. He said he had passed all the Air Force medical, psychological and physical testing to become a Communications Electronics Technician, and was happy and looking forward to starting his career, as he had a long family history in the military.  He said he was happy and relaxed when he joined the RAAF.

15. Following his recruit training at RAAF Base Edinburgh, in March or April 2006, he was posted to HMAS Cerberus to undergo his technician training.  For some weeks he had no problems there.  However, in August 2006, during a PT session, when he was unable to complete as many push ups as one of the very fit females in the group, the Physical Training Instructor (PTI) ‘unleashed a tirade of abuse’, yelling at him that he was 'f… hopeless and useless' and 'what sort of a man are you?^”.  He said he felt severely embarrassed and humiliated at being the source of ridicule in front of all his course mates and felt scared of further abuse.  He said he felt physically sick for the rest of the day and was unable to sleep that night; his stomach was churning and he was unable to stop thinking about it.

16. This incident scared him and caused him to lose confidence, and made him fearful of PTls in general, but conceded the problem he experienced was with one PTI only.  On each day, when PT was scheduled after this incident (scheduled twice weekly), he dreaded the PT sessions and what might happen if it was conducted by that PTI.  During the sessions, he was constantly on edge, highly anxious for fear of further abuse.  He regularly had to go near the PTIs’ area and was scared that he might run into that PTI again and experience ‘something similar’.  He said he observed that PTI behave towards others in the same fashion. 

17. He said that, at that time, he was not aware he could have reported his concern to a doctor at the medical section.  In cross-examination he stated, at that time, he did not recognise it as ‘an issue’, and that he had ‘feelings’ which he did not identify as ‘symptoms’.  He did not discuss his concerns with anyone because he was embarrassed.  He was offered no support and was not aware that any support was available. 

18. Following this incident and the subsequent anxiety that he suffered, his performance on course suffered because he was distracted and apprehensive.  As a result, he was back-coursed to repeat some training, which, he claimed was due to his anxiety.  This was another blow to his confidence, and exacerbated his feelings of depression, loneliness and isolation, and caused him further distress.  He did speak to his family and was told to ‘chin up’.  He continued to speak to his family weekly. 

19. After completing his technician training, he was posted to 453 Squadron at RAAF Base Richmond in early June 2007.  In mid-June or early July, he learned that his best friend from his school days had committed suicide.  This was completely unexpected and came as a shock to him.  Two weeks later, almost to the day, his best friend from his technicians’ course was killed in a car accident.  This also shocked him and compounded his feelings of being alone and isolated.  He said he felt very unhappy, and having no previous experience of death, thought his response was normal.  He had trouble concentrating and did not want to socialise with others at work.

20. In early 2008, having recently been moved into the Air Traffic Control tower, he was ‘verbally attacked’ by one of the Air Traffic Control officers, affecting his confidence not only in dealing with common work related issues, but also caused him to suffer anxiety whenever he spoke to or communicated with higher ranking personnel, even Non Commissioned Officers with whom he had previously been comfortable.  When he was telling his parents about this incident and his resulting anxiety, he broke down in tears.  His father, who was an Air Force officer, wanted him to report it as bullying, but the Applicant stated that he was worried that it would cause more trouble if he did.  He claimed that he subsequently found out that this incident had caused a review at the unit of the policy and culture of how the different personnel interacted; this seemed to confirm that the officer had 'overstepped the mark'.  Since that incident, he felt unable to send an email to a higher rank without first getting someone to look over it; he thinks that became tedious for the people he worked with so he then felt reluctant to ask, but his stress forced him to, as he didn't want to take the chance that anything he had written might cause trouble.  He acknowledged that the work was stressful, however he did not complain.  He thought that by complaining he would have been considered ‘soft’.

21. His engagement broke down in early 2009 as his fiancée could not cope with his depressed state and reluctance to go anywhere or do anything.  He said she was ‘getting negative effects from his state of mind’.  After the engagement break down, he moved back onto the base into the single accommodation.  Because of the constant stress he felt at work, he became reclusive – avoiding workmates and not even attending the airmen’s mess for meals.  During this period, his insomnia worsened, which exacerbated his anxiety at work and this in turn affected his performance on the job. He became anxious whenever he had to go to work or perform testing of any type, whether trade testing, fitness testing, weapons testing or even annual medical checks which caused him great anxiety.  These were all normal parts of a career in the Air Force, however they often made him feel out of control and unable to cope with his life.

22. In June 2011, he experienced very bad pain which was later diagnosed as a perianal abscess with fistula.  He attended the medical centre at RMC Duntroon, where one of the nurses told him that many members were having similar problems. The nurse believed it was as a result of infected hair follicles or ingrown hairs caused by the wearing of Disruptive Pattern Camouflage Uniform (DPCU).  She stated that the increase in members reporting with this condition seemed to coincide with the introduction of wearing DPCU as daily working dress.  Over the course of the next two years, until approximately August 2013, his ongoing fistula condition caused him great and almost constant pain and bleeding, and the constant need for dressing changes.  He underwent seven separate surgeries for the condition, with a final operation in mid-2013 being successful.  Prior to that, the condition caused major anxiety, especially as the surgeon advised he might have to have a permanent colostomy bag attached.

23. The side effects of the painkillers he was taking also caused him to gain weight, and suffer constipation which in turn exacerbated the original condition.  This condition prevented him from participating in many activities at work, including PT, training exercises, weapons training etc.; the constant medical appointments and absences raised questions from his workmates that caused him extreme embarrassment and anxiety.  At times, the dressings on his buttocks would leak blood onto his uniform at work, which became a source of ridicule from his workmates, in addition to not being able to sit down for very long and being unable to walk properly because of the pain.

24. Up to approximately the end of 2011, he was often required to work as the only technician on duty in the Air Traffic Control tower, where problems with the radar feeds from Sydney International Airport and RAAF Base Williamtown, the Australian Defence Air Traffic System (data processing and display equipment), Tactical Air Navigation system, other navigation aids, and radio equipment problems had to be fixed quickly to ensure aviation safety was maintained.  He found the pressure to resolve equipment problems in very short timeframes was very stressful, and not knowing what problems might occur caused him great anxiety.  In addition, he was the only technician at Richmond qualified on the Pilot Monitoring Facility, regularly having to attend the Air Base Command Post to fix various faults with this system from improper use.  The command post was mostly staffed by officers and trying to explain to them that they had done something wrong dramatically increased his anxiety.  He suffered significantly with an inability to concentrate, and struggled to sleep.  He became more withdrawn to the point that he would get home from work and just want to go to bed.

25. In January 2012, he took up a new posting at RAAF Base Williamtown.  Soon after, in response to a circular which effectively advertised the chaplaincy service, he made an appointment with the Chaplain to seek help for his continuing feelings of misery, constant anxiety and overwhelming sadness.  The Chaplain, after hearing his concerns, replied with words to the effect: “That’s life – everyone has problems – you just have to put up with it and get on with life”.  The Chaplain also suggested that he could call a helpline, notwithstanding that he had explained to him that one of his problems was a terror of using telephones as a result of his time on call at RAAF Base Richmond.  He felt as if the Chaplain had not really listened to him and he felt that he was 'going crazy' however he didn't know why or how to stop it.  He thought the Chaplain's attitude delayed him seeking and getting treatment for his depression and anxiety.

26. On or about mid-2012, he started experiencing panic attacks.  At that time he was undergoing continuing surgery for his fistula.  He sweats profusely, his chest tightens and he has difficulty speaking. 

27. On or about August 2012, he attended a men’s health awareness day at RAAF Base Richmond.  In his evidence though, he thought he may have consulted the Chaplain after this session, and not previously.  During the session they were informed of symptoms of depression and anxiety which they should look out for in colleagues.  He recognised all of them in himself.  After this, he went to Medical Section at RAAF Base Williamtown and was diagnosed with severe anxiety and depression, and after being prescribed medication, he was referred to a psychologist and was provided time off work to assist with the healing of his fistula.  From September 2012 until around February 2013, he worked part time and full time intermittently, as a result of his conditions. 

28. On referral from the Medical Section he was referred to Dr Parker, consultant psychiatrist, who he continues to consult.  Initially, he saw her every 3 days, then once per fortnight, and now monthly.  In all, he estimated he had seen her 50-60 times.  In his evidence, he agreed with the history recorded by Dr Parker in her report dated 11 May 2015 that his first symptoms of depressed mood and anxiety commenced after the death of his two friends.  He was also referred to the history that Dr Parker had recorded that shortly before that time he was being ‘constantly judged’ as part of his course assessment and that he was bullied by a PTI in front of several female peers causing him significant shame and embarrassment.  

29. In February 2013, he was admitted to Warners Bay Private Hospital psychiatric clinic after a doctor from RAAF Williamtown became concerned about his extreme anxiety during a standard follow up appointment.  Between March and October 2013 he had time off work intermittently due to anxiety and in October 2013, he was again admitted to Warners Bay Private Hospital for extreme anxiety and depression.  During this hospitalisation, his medication was increased, and then changed entirely.

30. Up until April 2014, he worked part time as a result of his anxiety and depression. On 1 April 2014, following a serious anxiety attack at medical section at RAAF Williamtown, he was admitted to Toronto Private Hospital psychiatric clinic.  He had been in a de-facto relationship for about two years, and during this hospitalisation, he claimed that this relationship broke down as a result of his illness.  On release from hospital, he returned to his parents’ home to live.  During this period, he was constantly extremely worried about what would happen to him in the future.  In May 2014, he returned to work on a part-time basis, working three half days per week, gradually increasing, and by June 2014, increased to two full days and two half days per week.  He was suffering extreme anxiety both at work and at home where he worried about facing work situations.  Over this period, he found it very difficult at work, as there were constant questions and jokes made about his part time work and the amount of time he had off – about how lucky he was.  It was a constant struggle to mask his emotions and appear to act 'normally'.

31. Between approximately mid-2011 and July 2014, his weight increased from about 95 kg to 118 kg as a result of his medications and inability to exercise due to surgeries and associated recovery periods.  This weight gain made him feel even worse about himself.  The anxiety medication caused him to suffer from a dry mouth which required more medication. He would sweat profusely from his anxiety which would make him feel worse.  During the time that he had been working part time, he had tried to complete some on-line courses at home, however his inability to concentrate and his anxiety about tests, meant that he was unable to complete the assessments for modules of these courses even though they were self-paced and did not need any face-to-face contact.

32. At an appointment with Dr Parker on 30 July 2014, it was decided that he was not doing well enough to continue working.  On 6 August 2014, a Unit Welfare Board was conducted on the Applicant, and between a doctor, a psychologist, a mental health nurse and his unit Commanding Officer, it was again determined that he should not return to work and that a medical discharge would be progressed.  Although he wanted to stay in the Air Force; he had tried several times to return to work but was unable to overcome his anxiety and depression in the Air Force environment.  At this time, with a medical discharge becoming a reality, he felt that he had little control over what was happening to him. This outcome increased his anxiety as he was worried about his future, and he became more depressed as he believed that he had failed again.

1. He was medically discharged from the Air Force on the 7 March 2016.

2. He still avoids exercise and gyms and is fearful of others' perceptions of his performance, and/or failure, even when not being tested.  Since the incident, he suffers great anxiety whenever he has to do any physical training; even a simple walk with his parents brings on feelings of anxiety and stress.  Most of his treating doctors and psychologists recommend physical activity to help deal with his depression and anxiety, but these activities trigger his anxiety.

   Medical evidence 

   Service medical documents

3. The Applicant’s service medical documents contain references to stress from as early as June 2008.  In a Five Yearly Comprehensive Preventative Health Examination dated 26 June 2008, it was noted that the Applicant’s mental state was 'normal’.  It was stated that the Applicant ‘has moderate to high levels of stress at work & home, but is coping well with stress'.  At an Annual Health Assessment dated 19 May 2009, it was stated that the Applicant reported ‘low stress levels'.

4. An Outpatient Clinical Record dated 1 February 2011 recorded:

   anxiety issues

   oaround any assessments

   ·         PFT

   ·         Weapons

   ·         Medical

   ·         Course exams

   oOnly started in RAAF

   oNo clear precipitating factor

   oFather and sister also possibly anxious

   oKeen to fix problem

   oOffered [treatment] review but would be MEC301

   ·         Not keen

   oWill try relaxation techniques

5. The history in relation to the Applicant’s fistula was recorded in Outpatient Clinical Records dated 15 May 2011, 10 June 2011 and 31 January 2012.  On 2 August 2012, when the applicant presented for review of that condition, he was recorded as having ‘ongoing anxiety depression symptoms – anhedonia – poor concentration – poor sleep'.

6. Further Outpatient Clinical Records dated in September 2012 recorded the progress of his fistula.

7. An Outpatient Clinical Record dated 25 October 2012 noted that the applicant was ‘still very depressed’ and was ‘not sleeping well'.

8. More Outpatient Clinical Records in November 2012 record progress in relation to the fistula.

9. In his Annual Health Assessment dated 13 December 2012, it was stated that the applicant ‘presented with depression and anxiety...  He has been seeing psychologist.  He has improved significantly on Pristique.  He will be reviewed regularly and upgraded when stable.’

10. In January 2013, an Outpatient Clinical Record records further surgery.

11. At an Outpatient Clinical Record dated 4 February 2013, he reported depression symptoms for three years, 'triggers include “uncertain" situations at work, partner w/depression... He reported that he feels anxious most of the day.  He has felt suicidal without a clear intent on & off.'

12. An Outpatient Clinical Record dated 11 February 2013 stated that the Applicant ‘believes issues triggered by recruits & the uncertainty that type of environment created. Only noted major changes 3-4 years ago, started to feel anxious about answering phones, would avoid if possible, also started to withdraw from social circles. Still has major anxiety with phones and now also finds it difficult to carry out tasks such as shopping...Fleeting thoughts of suicide. Anxiety ++, worse @ work & in unknown situations. Tension @ home — living with partner’s parents while house being built’.

13. An Outpatient Clinical Record dated 19 February 2013 recorded that the Applicant presented for review.  His mental health issues were significant and the Applicant was taking convalescence leave to stay with family in Canberra.  The record stated ‘? infection anal fistula pain ++... .’  His pain medication was increased; he was prescribed Oxycontin.

14. An Outpatient Clinical Record dated 28 February 2013 stated that the Applicant presented for review with severe anxiety.  It was noted that the Applicant drove himself and ‘distracted himself from thoughts of driving into a tree with a podcast’.  He appeared exhausted, with severe anxiety and at the end of his coping strategies.  The applicant was hospitalised and an Outpatient Clinical Record dated 3 April 2013 stated that the applicant was to be discharged from Lakeside Hospital the same day.

15. An Operation Report dated 4 April 2013 stated that the Applicant underwent further surgery for his anal fistula.  An Outpatient Clinical Record dated 12 April 2013 recorded 'surgery went well – wound left re-packed. Pain is an issue, anxiety ++’.

16. An Outpatient Clinical Record dated 19 April 2013 recorded ‘progressing well, more insight into triggers for anxiety. Stress ++ related to home, now resolved. Looking forward to moving into house’.

17. An Outpatient Clinical Record dated 24 April 2013 recorded 'pain from fistula ++ today. House causing stress ++ →expenses.  Anxiety-no real change at the stage. Nausea ++’.

18. An Outpatient Clinical Record dated 15 May 2013 noted ‘some anxiety related to perception of others in unit...ran out of pain meds last week – ^ pain made it harder to cope. 

19. An Outpatient Clinical Record dated 30 May 2013 recorded ‘anxiety +++ & mood  ↓ today. Feels that meds aren’t working anymore. Work is not helping. Has had suicidal thoughts once of all pain meds – coping ok’.

20. An Outpatient Clinical Record dated 5 June 2013 recorded 'anxious +++, flat affect. Feels like nothing is working for him & nothing is worth it. Denies further suicidal thoughts but states he has been avoiding getting in the car. Denies plan/preparation. Feels ashamed that he is not getting better; feels that work is judging him.  Also ^ pain from surgical wound & small amount of pus on dressing. Bleeding ++ from proximal wound.'  The Applicant was sent for urgent review by Dr Parker.

21. An Outpatient Clinical Record dated 11 June 2013 recorded 'anxiety+++ symptoms even in prev. non- stressful situations. Despondent with lack of progress. ’ Dr Parker had recently raised his dose of Cymbalta, with no noticeable effects.

22. A Medical Classification Review Record dated 19 June 2013 stated that the Applicant had ‘unfortunately deteriorated since returning to work. His anxiety has increased, and he is finding hard to cope with low mood. He has had instances of suicidal ideation, which is new for LAC Gibson. He is also experiencing anxiety in situations that were previously well tolerated. He reports feeling that he is being judged at work, and is being perceived negatively by his colleagues for having so much time off work. His medication has been increased by Dr Parker, however no effect seen as yet. In view of the worsening features of his illness, it was decided to make LAC Gibson MEC J34 to provide him sufficient time for treatment to have an effect. ’

23. An Outpatient Clinical Record dated 24 June 2013 noted ‘significant anxiety assoc w/ work, worsening over 2-3 years. Good insight into bx but not really the triggers. Now non-effective until Sep 13‘.  The applicant was being admitted to Lakeside in a few days’ time.

24. An Operation Report dated 27 June 2013 stated that the Applicant underwent examination of his anal fistula and probing under general anaesthetic.

    Dr Cynthia Parker, consultant psychiatrist

25. Dr Parker in her first report, dated 14 February 2013, noted that the Applicant presented with:

    a two year history of increasing anxiety and depression, which probably first started in 2007 after he lost two friends to traumatic deaths. Since 2007, Samuel has had a background of depressed mood with increasing anxiety however over recent weeks, he has been feeling “over it".. .  At his posting at Richmond Samuel was working in Air Traffic Control tower where he would often have to fix issues with the Communications in the Air Traffic Control Tower. He said he constantly felt anxious about answering the phone, as he knew that the people in the tower would want the issue fixed “five minutes before it had broken". He said he always tried to “keep all bases covered”, which has worked welt in the past but this is becoming an increasing challenge. Samuel was then posted to Williamtown at the beginning of 2012 and, even in the Base radio job, he has felt anxious that he has to fix things as soon as possible. He feels that he is “walking into the unknown". He said he apparently does well at his job as he was ‘acting up’ in Maintenance Control section last year, but felt the weight of responsibility upon him.

26. In a Discharge Summary dated 3 April 2013, Dr Parker wrote that the applicant had been referred by a RAAF medical officer and stated:

    'escalation in anxiety.  This appears to be in the context of a number of stressors; he is currently undergoing repetitive surgery for an anal fistula after having an anal abscess last year… He has been building a house with his partner and there have been issues with this.  There have also been issues in the relationship with his partner.  He also continues to be anxious at work where he finds the environment disorganised. The above is in background of bullying at Rookies and at RAAF Base Richmond when he was working in the Air Traffic Control (ATC) Tower. He also appears to have developed a specific phobia to telephone calls, secondary the phone ringing when he was working in the tower where he had to manage crises in communications with ATC when he was working there for two (2) years.

27. In her report dated 2 May 2013, Dr Parker noted that the applicant 'continues to present as anxious with a limited ability and motivation to try and manage his symptoms at the moment.  He is very anxious about returning to work next week and scared about how he will cope’.

28. In a discharge summary completed by Dr Parker and dated 26 July 2013, she stated that the Applicant had been admitted for 28 days due to ‘medication resistance in the face of panic disorder’.  Dr Parker stated that the applicant remained highly anxious about any thoughts of returning to work.

29. In her report dated 4 September 2014, Dr Parker stated that the Applicant had had a relapse in his anxiety following the rejection of his claims by DVA.

30. Dr Parker provided a detailed medico-legal report dated 11 May 2015 in which she stated that the applicant first developed depressed mood and anxiety in 2007, upon experiencing the deaths of two close friends within a couple of weeks stating the following:

    ‘Just prior to the deaths, he was on a Trade Training course where his performance was constantly being judged and was bullied by a gym instructor in front of several female peers causing him significant shame and embarrassment. His depression and anxiety escalated over the next few years with a posting to Richmond, where he was frequently on-call by the Air Traffic Control Tower and needed to fix problems post-haste. In the situation, he was shamed in front of a corporal by an officer.’  Dr Parker noted the condition escalated again with the development of an anal fistula in 2011 and the requirement for numerous revision surgeries. 

    Dr Parker also noted difficulties in the applicant's de facto relationship.  Dr Parker confirmed a diagnosis of Major Depression and Panic Disorder.  She stated ‘the onset of Major Depression was in 2007 following the death of his friends... His depression was further exacerbated by his de facto relationship difficulties and the demise of his relationship. Subsequently, he was sensitised to Panic Disorder by his Major Depression, the bullying issues an CETECH Training and Richmond, then the serious physical threat of having a colostomy, ridicule by his peers and several years of chronic pain secondary to an anal fistula.  His Panic Disorder essentially occurred in the context of his depression, anal fistula and the pressure of work.  It reached Diagnostic Criteria after his anal fistula was diagnosed in 2011, but symptoms of panic were present from 2007. ’

    Dr Brett Ireland, Medical Officer

31. A letter was provided by Dr Ireland dated 11 May 2015 in which he noted that he had reviewed some relevant documents and was ‘advocating’ for the Applicant's claim.  The doctor stated that he felt the Applicant fulfilled the requirements in the SOP, as he had suffered a serious medical illness condition within the two years before the onset of depressive disorder and chronic pain of at least six months’ duration at the time of onset.  It is unknown the extent to which Dr Ireland may have treated the Applicant, and consequently little weight could be placed on his evidence, given his ‘advocacy’ on behalf of the Applicant.  Furthermore, it does not appear that he is a psychiatrist, and the evidence of Dr. Parker and Dr. Smith is to be preferred.  

    Dr Selwyn Smith, consultant psychiatrist

32. In a medico-legal report dated 28 September 2016, prepared at the Respondent’s request, Dr Smith considered that the applicant met the diagnostic criteria for Generalised Anxiety Disorder with Panic and Major Depressive Disorder and exhibited symptoms consistent with Panic Disorder.  Dr Smith stated:

    whilst I do agree with Dr Parker’s opinion regarding the diagnosis and the onset I respectfully disagree with her that his psychiatric disorders have been caused by his military service.  It is my opinion that the purported "bullying” by the gym instructor would not have resulted in the psychiatric disorders he currently displays.  It is more likely than not that the deaths of his close friends and the development of the anal fistula and subsequent sequelae were the substantial precipitants to his psychiatric disorders…

33. Dr Smith explained that the Applicant has cluster B and cluster C personality traits stating:

    'insofar as cluster B personality traits are concerned these refer to a display of dramatic or overly emotional or unpredictable thinking and behaviour... Cluster C traits refer to an individual who is anxious and fearful. They are often noted in individuals who are markedly avoidant and dependent, in [his] opinion these traits are dominant in Mr Gibson’s personality profile.’

34. In a supplementary report dated 3 March 2017, Dr Smith confirmed that he considered the date of clinical onset of Major Depressive Disorder and Generalised Anxiety Disorder with Panic to be 2007, following the deaths of the Applicant’s two friends.  In his evidence, however, Dr Smith resiled from 2007 as the date of clinical onset of the Applicant’s depressive disorder and generalised anxiety disorder, although he agreed the Applicant may have had some depressive symptoms in 2007.  He confirmed his view, however, that clinical onset was no earlier than the time of the Applicant’s friends’ deaths; even then it was more likely that at the time of his friends’ deaths, the Applicant suffered a transient and situational disorder.  He considered that the Applicant’s condition developed over time with the other chronic life events, including relationship issues and, in particular, the difficulties associated with the fistula including multiple surgeries, and the associated ‘shame and humiliation’.  He also thought there were some possible genetic pre-disposition to depression, given some relevant family history.  He did not think there was one specific cause. 

35. Furthermore, he did not consider the Applicant’s conduct to be consistent with ‘the narrative’ that it was the PT bullying that precipitated his condition. He continued to work, participated in football and other activities, and, significantly, did not mention his concerns despite multiple medical attendances.  Referring to the Applicant’s first report of his problems (albeit to the Chaplain) in 2012, he considered it unusual that someone would go for more than 5 years without seeking medical assistance; his family and friends would have been able to observe his condition and suggest medical intervention.  He considered that the Applicant’s approach to the Chaplain was more likely to be associated with his concern about his fistula issues. 

36. While Dr Smith acknowledged that Dr Parker is the Applicant’s treating doctor, he was critical of her assessment because she did not address the diagnostic criteria and had relied on the Applicant’s self-report, whereas he had evaluated all the available medical evidence. 

    CONSIDERATION

37. The Applicant contended on the basis of the opinion of Dr Parker that he suffers from Major Depressive Disorder and Panic Disorder.  Dr Smith agreed with the diagnosis of Major Depressive Disorder; however Dr Smith also diagnosed Generalised Anxiety Disorder.  We accept that the Applicant suffers either Major Depressive Disorder, or Generalised Anxiety Disorder, or possibly both, but ultimately, nothing turns on this difference in diagnosis.  Although Dr Smith observed symptoms consistent with Panic Disorder, he did not make that diagnosis.  For reasons discussed below, it is unnecessary for us to find if he suffers from Panic Disorder.

    When was the clinical onset of the Applicant’s depressive disorder/anxiety disorder?

38. The Full Court in Lees v Repatriation Commission[6]  held that there was a clinical onset of a disease either:

    ·when a person becomes aware of some feature or symptom which enables a doctor to say that the disease was present at that time; or

    ·when a finding is made on investigation which is indicative to a doctor that the disease is present.

    [6] [2002] FCAFC 398,13.

39. The definition in Lees[7] emphasised the need for medical evidence to a determination of the clinical onset.  Although it is for a doctor to say when the clinical onset occurred by the presence of features or symptoms, clinical onset is not necessarily when the patient first saw a doctor for medical treatment.[8] 

    [7] [2002] FCAFC 398,13.

    [8] Kaluza v Repatriation Commission[2011] FCAFC 97. 

40. In this case, from the Applicant’s service medical documents, it appears he first complained of anxiety issues in February 2011, however there were no details of the symptoms of which he complained.  The record specifically records no precipitating factor, and it appears the Applicant’s report to the Medical Officer was of anxiety in relation to various assessments which would be made in the course of his training. 

41. The Applicant told Dr Parker of having first felt ‘down’ in 2007 after the death of his friends.  He gave a history of symptoms ‘since then’ of being socially withdrawn, amotivated, anhedonic, dysphoric, had variable concentration, decreased confidence, was easily overwhelmed, felt hopeless and inadequate, had intermittent poor sleep and was anxious about getting close to people. 

42. He reported to Dr Parker that ‘just prior to the deaths’, he was bullied by the PTI, although in fact that occurred nearly 12 months beforehand.  He gave Dr Parker a history of the PTI incident and that at the thought of exercising, he would feel sweaty, tremulous, have palpations and hyperventilate, and would worry about how he would be perceived, making him more self-conscious. 

43. There was no diagnosis until 2013 when the Applicant first saw Dr Parker, some 6 years after the alleged stressor, and following a two-year history of increasing anxiety and depression, during which he had serious and debilitating health issues.  There is some inherent unreliability in an applicant giving a history of his symptoms which can enable a doctor to reliably diagnose the clinical onset of a condition back some years.  In any event, we did not consider that Dr Parker’s evidence explicitly put clinical onset at 2007, but rather connected it to the deaths of the Applicant’s friends as the precipitating events.  There was no evidence that that the applicant met the diagnostic criteria in 2007.  

44. Dr Parker considered that the clinical onset of depressive disorder was shortly after the deaths of the Applicant’s friends in 2007, although Dr Smith thought it was somewhat later.  Dr Parker stated the Applicant had a ‘...history of increasing anxiety and depression, which probably first started in 2007 after he lost two friends to traumatic deaths.’  We observe that Dr Parker did not see the Applicant until 2013, relied upon his self-report, and did not, in her report, address the diagnostic criteria, although she referred to it.  We did not have the benefit of hearing her oral evidence in amplification of her report.  The Applicant’s evidence was that the first of the deaths was in June or July 2007 and that the second was two weeks later.  Even if we were to prefer Dr Parker’s view that his condition probably first started in 2007 as the date of clinical onset of the condition, the incident relied on by the Applicant occurred at HMAS Cerberus in August 2006.  The claimed category 2 stressor was experienced nearly 12 months before the deaths.  Consequently, the date of clinical onset was not within six months of the claimed stressor, as required by the factor relied on. 

1. Having come to this view about clinical onset, it was unnecessary for us to consider if the incident relied on, amounted to a Category 2 stressor.

2. Accordingly, we are not reasonably satisfied that liability must be accepted pursuant to s 23(1) of the Act in respect of either the depressive disorder or anxiety disorder.

3. As to Panic Disorder, although Dr Parker considered there to have been symptoms of panic present from 2007, the clinical onset of panic disorder did not reach ‘Diagnostic Criteria [until] after his anal fistula was diagnosed in 2011.'  Dr Smith did not make a diagnosis of Panic Disorder.  Without making a finding as to diagnosis, because the condition relies on the acceptance of his depressive disorder or anxiety disorder as service-related, the Applicant’s claim in respect of that condition fails also. 

   DECISION

   The decision of the Veteran’s Review Board dated 3 February 2016, being the decision under review, is affirmed.

I certify that the preceding 79 (seventy -nine) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member, and Dr I Alexander, Member

.............................[sgd].....................................

Associate

Dated: 23 May 2017

Date(s) of hearing:	30 March 2017
Advocate for the Applicant:	Mr T Latimore, RSL Veterans' Centre
Solicitors for the Respondent:	Ms E Baggett, Moray & Agnew Lawyers