Griffin and Repatriation Commission
[2004] AATA 513
•21 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 513
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V02/193
VETERANS' APPEALS DIVISION ) Re JOHN JAMES WILLIAM GRIFFIN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J Handley, Senior Member Date21 May 2004
PlaceMelbourne
Decision 1. The Tribunal sets aside the decisions under review with respect to hypertension and diabetes and in substitution it is decided those conditions are war-caused.
2. The decision with respect to hyperlipidaemia is affirmed.
3. The applicant is entitled to pension at the Special Rate.
(Sgd) J Handley
Senior Member
VETERANS’ ENTITLEMENTS – applicant has a number of accepted disabilities – in receipt of pension at 50% of general rate – application to connect other injuries to service – objective to qualify for special rate – examination of Statements of Principles – whether factors exist as a minimum – sub-hypothesis involving an accepted disability – limited period of operational service – generalised anxiety disorder – whether events in service occurred before or during period of operational service – whether clinical onset or clinical worsening – decision in part set aside – veteran entitled to special rate pension
Veterans’ Entitlements Act (Cth) s5B(2), s6C and s6D, s.24 and s24(1)(a), s120(1) and s120A
Gorton v Repatriation Commission [2001] FCA 286
McKenna v Repatriation Commission [1999] FCA 323
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Deledio (1998) 83 FCR 82
Benjamin v Repatriation Commission (2001) 70 ALD 622
Stoddart v Repatriation Commission [2003] FCA 334
Statement of Principles Instrument No.25 of 1999
Statement of Principles Instrument No.31 of 2001
Statement of Principles Instrument No.35 of 2003
Statement of Principles Instrument No.3 of 2004
Statement of Principles Instrument No.82 of 1999
Statement of Principles Instrument No.1 of 2000
Statement of Principles Instrument No.9 of 2001
Statement of Principles Instrument No.91 of 2001
REASONS FOR DECISION
21 May 2004
Mr J Handley, Senior Member
1. The applicant applies to review a decision of the Veterans’ Review Board (“VRB”) made on 29 January 2002. The VRB then decided to affirm a decision previously made by the respondent to refuse his application for acceptance of the conditions of hypertension, hyperlipidaemia and diabetes.
2. The hearing of the application commenced in Bendigo on 4 July 2003 and concluded in Melbourne on 16 September 2003. Mr De Marchi appeared on behalf of Mr Griffin and Mr Douglass appeared on behalf of the respondent in Bendigo and Mr Rudge in Melbourne. The applicant and his wife gave evidence. A number of documents were received into evidence and similarly will also be referred to in this decision.
3. Mr Griffin is presently 67 years of age having been born on 27 December 1936. He is currently in receipt of pension at 50% of the General rate by reason of the accepted condition of generalised anxiety disorder. He had previously made an application for acceptance of the condition of post traumatic stress disorder but withdrew that application when the respondent conceded generalised anxiety disorder as war-caused.
4. The applicant has a number of conditions which have been rejected by the respondent namely, osteoarthrosis of his left knee, sprain of right shoulder and arm, obesity, prostate cancer, diabetes, hyperlipidaemia and hypertension.
5. Mr De Marchi indicated at the commencement of the hearing, that the applicant would not pursue acceptance of the condition of hyperlipidaemia. The matter therefore proceeded only to have the conditions of hypertension and diabetes accepted as war-caused. Subject to those findings, Mr Griffin also sought pension at the Special rate. It was submitted by Mr De Marchi that the nexus between service and diabetes was by reason of cigarette smoking and the nexus between service and hypertension was by alcohol consumption.
6. Mr Griffin was a member of the Royal Australian Air Force (“RAAF”) between 12 December 1955 and 11 December 1972. He served at Butterworth between 9 July 1963 and 3 January 1966 and was engaged in operational service within the meaning of the Veterans’ Entitlements Act1986 (“the Act”) between 17 August 1964 and 3 January 1966 when in Malaysia. During the resumed hearing an issue emerged concerning the duration of the applicant’s operational service. Mr Rudge contended that the period of operational service was critical to these proceedings because a number of events in service which the applicant alleged gave rise to the rejected disabilities, occurred prior to the commencement of operational service. In those circumstances it was submitted that the Act could not apply to assist Mr Griffin. Consequently he was unable to assert that the conditions of diabetes and hypertension could be found to be war-caused within the meaning of the Act. He relied on the description of an operational area of service found at paragraph 7 in column 1 of Schedule 2 of the Act which defines the period of operational service in that geographical location between 17 August 1964 until 30 September 1967. By reason of the applicant having departed Malaysia on 3 January 1966 it followed, he submitted, that his period of operational service then concluded. However it was noted that the geographical area found at paragraph 5 in column 1 may have also included an area in which the applicant served. This was critical to these proceedings because it defined operational service for veterans in that geographical area as commencing on 1 August 1960 and concluding on 16 August 1964. If the veteran did serve in the geographical area found at paragraph 5 it expands the duration of his operational service and would permit him to take advantage of rights under the Act. This part of the review was adjourned to permit both parties to conduct investigations and lodge written submissions. Those submissions will be referred to later in these reasons.
7. It also became apparent during the resumption on 16 September 2003 that the applicant could achieve a finding of a degree of incapacity of at least 70% by reference to the accepted condition of generalised anxiety disorder alone. Whilst that would satisfy s24(1)(a) of the Act it would not necessarily permit consideration of Special rate entitlement unless there was a finding that either the condition of hypertension or diabetes were war-caused. Additionally, assessment of pension rate was not a matter capable of being reviewed. The only decision presently under review is the decision of the VRB which affirmed a decision previously made by the respondent with respect to refusal to accept hypertension, hyperlipidaemia and diabetes as war-caused. There was no decision under review with respect to the rate of pension entitlement. It followed therefore that consideration of any entitlement to Special Rate could only be considered if either or both of the conditions of hypertension or diabetes were found to be war-caused and were then assessed at a rate which would permit a finding of impairment of 70% thereby satisfying the first qualifying provision of s24(1) of the Act
John Griffin
8. Prior to the commencement of the hearing, Mr Griffin completed and lodged two proofs of evidence dated 21 September 2002 (which principally concerned his service duties and the association between service and smoking and drinking alcohol) and a statement dated 17 October 2002 concerning his employment history subsequent to the RAAF. The statement of 21 September 2002 is reproduced as follows:
I served in the Royal Australian Air Force from 12 December 1955, to 11 December 1972. My operational service was from 17 August 1964, to 3 January 1966 in Malaysia. I also rendered defence service from 7 December 1972 to 11 December 1972.
I commenced smoking prior to my operational service, initially smoking about 20 cigarettes per week, and then increasing my level of smoking to 20 cigarettes per day during my RAAF service.
During my operational service in Malaysia, I increased my level of smoking to around 60-70 cigarettes per day. This increase was a result of stress associated with my operational service.
I continued this level of smoking until 1995, when I stopped smoking.
When I entered the RAAF I weighed 86.3 kg. At discharge, my weight was 112.4kg, this being a 20% increase.
While in Malaysia, I was involved in general police duties, investigation, surveillance and security, which involved shift work and extremely long hours. During this time I rarely had the opportunity to eat at home, either eating in the mess or whatever fast food we could buy.
I commenced drinking alcohol following entry into the RAAF, however, my alcohol consumption had increased substantially during my operational service in Malaysia because of the stressful nature of my service there. I drank to excess to relieve the stresses involved with my service. I would drink on a daily basis and would often become intoxicated on a combination of beer and scotch.
I continued this level of drinking until 1981, when I had my first serious break down. I then was forced to modify my drinking habits due to the high level of medication I was taking.
Dated this 21 day of September 2002.
9. The statement of 17 October 2002 is reproduced as follows:
I John James William Griffin of 256 Murdoch Road Nanneela 3561 state
I left the R.A.A.F. on the 11th December 1972. That month I went work as a security consultant with Mr R. Stewart. I resigned after 3 months and returned to Adelaide due to marital problems. In April 1973 I was employed by Metropolitan Security Services Adelaide as a radio operator but after 2 months I was sacked after a conflict with the manager. From July to August 1973 I worked as a security guard for a group than went bankrupt. I then obtained a position as a salesman with Salisbury Motors in October 1973 and after a conflict with the manger, I left after 6 months.
In March 1974, I obtained a position as Residential Care Worker, with the Department of Community Services of South Australia. I worked at McNally Youth Training Centre and after my marriage failed, I left in 1977 and applied for a position with the then Commonwealth Police Force in Canberra. During my time at McNally I had numerous disputes with management and some of my colleagues.
While waiting for my application to be processed, I obtained a job at Belconnan Remand Centre in Canberra and stayed about 12 months.
I was accepted by the Commonwealth Police Force in 1978. It was amalgamated to for [sic] the Federal Police Force in 1979. I remarried in November 1980 and resigned in Feb. 1981, moving to Bendigo to be closer to my family.
I quickly found employment as a temporary clerk at Bendigo College of Advanced Education (now Latrobe University Bendigo Campus). In October 1981 I had a nervous breakdown and resigned. I did not work for the next three years due to this.
In 1984 I was well enough to obtain employment as a Youth Officer at Malmsbury Y.T.C. After continuing conflict with management and other workers at the centre I resigned in 1987.
I worked for a short time at the Huntly Piggery but found the work too physically demanding (high blood pressure).
For approx. 12 months I worked as a Housing Officer with Bendigo Urban Emergency Accommodation Resource Centre. I left after a dispute with the CEO.
I was re-employed by BCAE in 1989 and remained there for 21/2 years. During that time I was injured and was paid out. I also had problems with my supervisors during that time.
In 1991 I went farming and being unable to cope alone I went into partnership which failed in 1993 and ended with my filing for bankruptcy in 1994.
From that point on I could no longer work as I had a series of mental breakdowns and was unemployable.
17 October 2002.
10. Mr Griffin contended that he worked long arduous and stressful shifts when engaged as a policeman with the RAAF in Malaysia. He alleged improper behaviour by other RAAF police officers and his superiors including “cover-ups”. By reason of the nature of his service he said that he increased his consumption of cigarettes and alcohol.
11. In evidence Mr Griffin said that there were occasions where he “wasn’t believed” with respect to reports that he completed whilst he was a member of an intelligence gathering unit. He said there were occasions following submission by him of reports where he was advised that the contents (of those reports) were “crap and untrue”. The applicant said that he later learnt that his superiors were “standing over brothel and bar owners” and when he reported this knowledge to other superiors he was told to “shut his mouth, to tell no one”, otherwise he would be “sued” and he would be “court marshalled”.
12. Shortly after this “advice” Mr Griffin was transferred to general patrol duties around the Butterworth Base and on Penang Island. He said the effect of the advice that he had received and the nature of his duties caused him to increase consumption of cigarettes and to increase his consumption of alcohol. He said he reached the stage on a day-to-day basis where he was unable to cope without consuming excessive quantities of alcohol and he recalled that he was frequently drunk on duty. He said he was drinking beer, scotch, whisky, wine and tequila on a daily basis. His marriage during his service in Butterworth ended because he frequently returned to his married quarters in a drunken state and would argue with his wife. He also recalled that he was violent on many occasions with colleagues and on occasions assaulted other members of his squadron.
13. Mr Griffin said that diabetes had been diagnosed in 1966, but he did not learn of it until many years later when he participated in a re-engagement medical examination and was then notified by the examining doctor that diabetes had earlier been diagnosed. Mr Griffin said that he was smoking approximately 20 cigarettes per day prior to service but during service he was smoking between 60 – 70 cigarettes per day. He said he ceased smoking in 1995 and subsequently his “blood sugars” have improved.
14. Mr Griffin also agreed that he had consumed alcohol prior to service but increased it considerably during service in Malaysia and maintained a habit of consuming alcohol to excess after he was discharged. He said he reduced his alcohol consumption considerably in approximately 1981 when hypertension was diagnosed. (The medical evidence suggests the clinical onset of hypertension was in 1985 or 1986 – refer paragraph 76).
15. At the present time Mr Griffin said that he is anxious on most days and prefers his own company. He lives on a small property of three acres and is “happy to potter around”. He said he leaves his home on one occasion per fortnight when he travels with his wife for shopping. On those occasions he said that he is startled by noise. He described himself as being profoundly depressed and said that he “wished sometimes that I could die”. He said that he has been suicidal but his religious beliefs prevent him from committing suicide. He said because of his depression there were occasions that he prays that he will die.
16. But for his anxiety state, Mr Griffin said that he would be working. He said that he would be able to obtain contract or relief milking which he described was plentiful and well paid. He said that the other injuries which have not been accepted by the respondent would not interfere with working.
17. In cross-examination, Mr Griffin acknowledged that his weight at Butterworth was recorded in 1961 at 223 pounds and in 1966 when he was stationed at the Edinburgh base in South Australia at 218 pounds. He acknowledged that in those circumstances his weight had decreased. Additionally he noted that there was little variation in his blood pressure being 140/95 in 1961 and 150/85 in 1963. He said that he could not recall any discussions with doctors in service concerning his blood pressure.
18. Mr Griffin described his initial training with the RAAF as being engaged in “minor investigations at Sale in Victoria and at the Edinburgh Base in Adelaide”. He said he was later selected to participate in a security investigation course which involved field intelligence. He was transferred to Butterworth where he was initially engaged in field patrols and base security and later was engaged in patrol duties on Penang Island. He said that when he learnt of “improper practices” (refer earlier) and brought this knowledge to the attention of his superiors, he was transferred to general patrol duties.
19. Mr Griffin said that he was well respected by his peers when he was a member of the RAAF and “good reports” were written of him. He said that he was competent at solving problems and the local crime rate decreased considerably whilst he was in charge of a patrol unit. Nonetheless he said that he was drunk on a daily basis and consumed alcohol considerably during each day.
20. Mr Griffin agreed with suggestions put to him by Mr Douglass that his anxiety commenced early in service. He agreed with a comment made in a report of Dr Thompson (T6 page 32) that “mood swings, night-mares and sweats” did commence in 1962/1963. He also agreed with comments made by Dr Thompson in a claim for pension in January 1998 (T7 page 40) that the date of onset of post traumatic stress disorder and depression manifesting as anxiety, poor sleep, mood swings, night sweats, nightmares, increased alcohol and cigarette smoking commenced in 1963. However, Mr Griffin corrected an error found at page 62 where the onset of the signs of depression is recorded as having commenced in 1981. Mr Griffin said that he suffered a “mental breakdown” in 1981.
21. Despite his “breakdown” in 1981, Mr Griffin agreed that he was able to undertake employment at the Malmsbury Youth Training Centre in 1984 and in subsequent employment. He agreed that employment subsequent to 1981 was “stressful” however he said that work colleagues were “used to me losing it” and “senior staff were scared of me”.
22. Mr Griffin said that he has not worked since 1994 (refer statement earlier) and said that he previously had no difficulty obtaining employment. However he said he was unable to “last” in the employment that he did undertake. He said that he suffered his breakdown when employed at the Bendigo TAFE College in 1981 but could not recall, whether any, and if so, what event triggered it. He did not claim compensation and was treated by a general practitioner at Inglewood. He later suffered a knee injury and was incapacitated from employment at the Bendigo College of TAFE for about ten months but was able to undertake farm work later without interference from his knee injury.
23. With respect to his cigarette consumption in Malaysia, Mr Griffin said that during periods of communist insurgency, the RAAF Police Force doubled in size and he was frequently exposed to “heightened security alerts”. He said there were a number of occasions where there were break-ins of the Butterworth Base. He also reaffirmed that he drank considerable quantities of alcohol during service and said that subordinates within his unit were aware of his alcohol consumption. He said that he was engaged in a “close knit group and we looked after each other”. He said “we didn’t’ encourage others to come near us. We were nuts”. Mr Griffin said that he frequently drove a motor vehicle when he was drunk and when interviewing or arresting persons suspected of committing offences he would “lash out”. He said complaints were not made against him until 1969 when he was court marshalled and demoted.
24. Since 1994 Mr Griffin said that he has sought employment but has been unsuccessful. He said that he has suffered a number of “break downs” and disagreed with a comment made by Dr Thompson that he had retired in 1994. He said that from 1994 he has been unable to work.
25. In re-examination Mr Griffin said that he was been engaged in some part-time work since 1994. Initially he was engaged by a real estate agent fixing auction boards but ceased that employment following a dispute concerning salary. He later obtained part-time work processing duck eggs on two mornings per week for approximately five months but that employment ceased when the employer closed local operations and moved to Melbourne.
26. Mr Griffin agreed that at the time of making his application upon the respondent he was 64 years of age but was adamant that he would be working then and now but for his anxiety state.
Mary Francis Griffin
27. Mrs Griffin is the wife of the applicant. She said that she and her husband were married in 1980. She described his “main problem” as severe anxiety disorder.
28. With respect to her husband’s present lifestyle, she said that they live on a 3-acre property “out of town”. She said her husband “cannot live with neighbours around him or other people”. She said that he does not socialise and the only person he will willingly talk with is a parish priest whom he visits on Wednesdays. It is only on that occasion that he drives a motor vehicle. Mrs Griffin insists that he drives a car alone on those occasions to ensure that in the event of an emergency his ability to drive a motor vehicle has been maintained.
29. With respect to her husband’s ability to work, she said that he is unable to concentrate and has “zilch” motivation. She said that when he becomes upset it takes him a considerable amount of time to recover. She recalled an outburst of his anger at the hearing on the first day in Bendigo and said that he is “just coming out of it now”. She agreed with a lifestyle questionnaire completed on 1 May 2003 where he is described as having poor judgement, inappropriate behaviour, is reclusive and has no contact with other members of his family. She said that he is presently incapable of working but relief milking is readily available in the Rochester district where they live. She said that but for his anxiety disorder and his inability to concentrate, he would be able to work in modern dairies in the local region. She said that work is plentiful and the owners of the neighbouring property have approached her with offers to employ him. Nonetheless she said that he would be unable to work in a dairy because he suffers from claustrophobia, which she understood to be a consequence of his anxiety disorder.
30. Mrs Griffin said that her husband left the RAAF in 1972 and she first met him in 1974. At that time, they were both employed at a youth training centre. Later Mr Griffin became an employee of the Federal Police where she was also employed. She described her husband then as being “chaotic”. She said that he did not appreciate the nature of his behaviour which included frequently arguing with other persons including his superiors. She said he had an “explosive” temper.
31. But for his state of anxiety, Mrs Griffin firmly was of the opinion that her husband could presently be employed in the security industry. Despite his age she said that he had a high level of intelligence which was consistently rated as above average when he was a member of the Federal Police.
32. When her husband was transferred to Melbourne in the early 1980’s, she observed that his behaviour became irrational. She recalled that on one occasion there was a bomb scare at the workplace which involved someone having left a live bomb on the work premises. He collected the bomb and took it outside. He was regarded as being a “hero” but in fact she regarded his behaviour as being “stupid”.
33. In 1981 Mr Griffin left the Federal Police and he and Mrs Griffin moved to Bendigo in central Victoria. He obtained employment with the Bendigo College of TAFE where he suffered a “breakdown”. She said that her husband was not then coping with travel to work (they lived 50 kilometres from the workplace) nor with “academics”. He later obtained employment at the Malmsbury Youth Training Centre, but again he was unable to cope and was argumentative with a Superintendent. He subsequently left that employment.
34. Mrs Griffin recalled that when she first met her husband at the McNally Youth Training Centre he consumed alcohol heavily. She recalled that he did not drink during the day nor did he go to work in a drunken state, but at the end of each day he would drink heavily and was frequently intoxicated having consumed beer and scotch whisky. He eventually ceased drinking in 1981 after his breakdown. He was then consuming considerable quantities of prescribed mediation and he was thereafter unable to tolerate alcohol.
35. With respect to her husband’s smoking habit, Mrs Griffin said that she was unable to say whether he increased his consumption during service because she did not meet him until after he was discharged. Nonetheless by 1995 (when he ceased smoking) he was then smoking 60-70 cigarettes per day. At that stage he became bankrupt and was unable to afford cigarettes.
36. With respect to the other illnesses and injuries under review in these proceedings, Mrs Griffin said that her husband’s diabetes is well controlled with medication. She said that both of his knees have been replaced and he has enjoyed a good recovery. She said that he also consumes medication for his hypertension which is also well controlled.
37. She agreed with conclusions expressed by Dr Murphy, an occupational therapist in Bendigo who reported prior to the resumption of the proceedings, that her husband’s major problem was his anxiety state. She said that her husband’s knee injuries would not affect him in work. She reaffirmed that his anxiety was the major factor in his inability to work and was the substantial cause of his inability to seek and maintain employment. At the present time the only income received by her husband is age pension and 50% of the General rate of pension under the Act. But for his anxiety state Mrs Griffin believes that her husband would have been promoted to a senior position with a consequential salary. Despite his age of 64 at the date of claim, she regarded the local labour market as “good”. She said local dairy farmers were “screaming for relief milkers”. She described her husband as having “an affinity with animals” and he would have had no trouble obtaining work.
38. In cross-examination Mrs Griffin said that she is presently receiving an age pension having retired in 1998. She said she retired because she had no alternative other than to look after her husband on a full-time basis. She disagreed with a proposition put to her that at the age of 64 he would have been compulsorily retired from the Federal Police. She said that this would not have occurred because it would offend Commonwealth legislation discriminating against persons in the workforce by reason of their age.
39. With respect to her husband’s knee injuries she said that his right knee was replaced in September 1999 and his left knee replaced in October 2001. She agreed that he had suffered from the effects of arthritis prior to the surgery. Despite this she said that he would presently be able to work in a dairy and work on a dairy farm involving the driving of a four wheel all terrain vehicle. She said that most farmers in the district where they live have arthritis and are elderly and they are working. She agreed that her husband had previously suffered back pain with some sciatica but it had been managed by a physiotherapist who had prescribed a course of exercises. Mrs Griffin also said the Department of Veterans’ Affairs had supplied her husband with an exercise bike which he regularly uses to maintain spinal function.
40. Presently she said that her husband maintains their garden and most things around the house including lawn maintenance, growing vegetables and house maintenance. She said that his physical ailments do not interfere with his ability to work around the house.
41. With respect to her husband’s work history subsequent to leaving the Malmsbury Youth Training Centre, she said that he was involved in a venture between 1984 and 1988 attempting to market goat’s milk. She said between 1991 and 1994 (when he became bankrupt) he had attempted a venture involving duck farming and selling duck eggs. She said her husband had always “loved farming”.
Statements of Principles
42. A number of Statements of Principles (“SOP’) have been issued and have application to these proceedings. The relevance of them will also be discussed later but for the moment the applicable factors for each of the relevant SOP’s are recited as follows:
Hypertension
43. The claim made upon the respondent which was the initiator of these proceedings was made on 9 March 2001. The assessment period therefore commenced on that date. The review has not been completed and accordingly all SOP’s within the assessment period have relevance (refer Gorton v Repatriation Commission [2001] FCA 286).
44. Instrument No.25 of 1999 at factor 5(b) recorded the following:
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension or death from hypertension with the circumstances of a person’s relevant service are:
. . .
(b)suffering from alcohol dependence or alcohol abuse, involving consumption of an average of at least 200 grams per week of alcohol (contained within alcoholic drinks) at the time of the accurate determination of hypertension; or . . .
45. That Instrument was revoked on 24 May 2001 by Instrument No.31 of 2001. It had a similar factor to that which is appearing above except the words “accurate determination of hypertension” did not appear and in substitution the words “clinical onset of hypertension” were substituted.
46. Instrument No.31 of 2001 was revoked on 12 August 2003 (after the first day of hearing and before the second day of hearing) by Instrument No.35 of 2003. Factor 5(b) was significantly different and appears in the following terms:
. . .
(b)consuming an average of at least 200 grams per week of alcohol which cannot be decreased to less than an average of 200 grams per week, at the time of the clinical onset of hypertension; or . . .
47. On 24 February 2004 factor 5(b) was revoked by Instrument No.3 of 2004 and the following factor was substituted:
“(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 . . .”
48. Instrument No.35 of 2003 however assumes some significance in these proceedings because it introduced a new factor, namely 5(n), (which did not previously appear) and it is in the following terms:
(n)suffering from a clinically significant anxiety disorder for the six months immediately before the clinical onset of hypertension; or. . .
49. The expression “clinical significant anxiety disorder” is defined at paragraph 8 as:
“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;
Diabetes
50. The only applicable SOP with respect to diabetes within the assessment period is Instrument No.82 of 1999. The only applicable factor is 5(c) which is recorded in the following terms:
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting diabetes mellitus or death from diabetes mellitus with the circumstances of a person’s relevant service are:
(c)in relation to type 2 diabetes mellitus, smoking at least 10 pack years of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of diabetes mellitus, and where smoking has ceased, the clinical onset has occurred within 10 years of cessation; or . . .
51. Instrument No.82 of 1999 was amended by Instrument No.9 of 2001 and No.91 of 2001. These amendments have no application to this review.
Generalised Anxiety Disorder
52. Instrument No.1 of 2000 is the only SOP with respect to this condition within the assessment period.
53. The factors applicable under paragraph 5 are (ii), (iii), (v) and (vii) which are reproduced in the following terms:
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service are:
. . .
(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
(iii)having a clinically significant psychiatric condition within the two years immediately before the clinical onset of anxiety disorder; or
. . .
(v)experiencing a severe psychosocial stressor within the two years immediately before the clinical worsening of anxiety disorder; or
. . .
(vii)having a clinically significant psychiatric condition within the two years immediately before the clinical worsening of anxiety disorder; or . . .
54. The expression “severe psychosocial stressor” is defined at paragraph 8 in the following terms:
“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;
55. The words “clinically significant” are defined also at paragraph 8 in the following terms:
“clinically significant” means sufficient to warrant ongoing management by a psychiatrist, clinical psychologist or General Practitioner;
56. The words “psychiatric condition” are defined at paragraph 8 in the following terms:
“psychiatric condition” means any Axis 1 disorder of mental health that attracts a diagnosis under DSM-IV;
Submissions
Operational Service
57. The identification of the period of operational service was the subject of submissions on the second day of hearing and is of considerable significance in these proceedings.
58. The foundation for this analysis is on the basis that Mr Griffin was a member of the Royal Australian Air Force (“RAAF”) between 12 December 1955 and 11 December 1972. He was posted to Butterworth and served between 9 July 1963 and 3 January 1966. Having regard to the provisions of s6C, s6D and s5B(2) of the Act the only period of operational service as applies to Mr Griffin was between 17 August 1964 and 3 January 1966. There was no contest between the parties that only this period of service was “operational” for the purposes of this review. Having regard to s6C and Schedule 2 of the Act the conflict in Malaysia, Singapore and Brunei between 17 August 1964 and 14 September 1966 was the subject of an Instrument issued on 28 December 2000 by Rear Admiral Ritchie and it specifically applies to the “base squadron Butterworth RAAF” and “Headquarters Butterworth RAAF”. The date 3 January 1966 is only relevant to the extent that it was upon that date that Mr Griffin departed Butterworth. (I am satisfied, having read the submissions of Mr Rudge that the applicant did not serve in any other operational area – refer paragraph 6 earlier).
59. Although the applicant’s consumption of alcohol was the subject of considerable evidence on the first day of hearing, there was no serious reliance upon that evidence subsequently (and consequently the applicable factors under the SOP with respect to hypertension) because between the first and second day of hearing the SOP was amended to include a new factor with respect to “clinically significant anxiety disorder” (refer earlier). Despite the respondent having accepted on 9 December 2000 that the applicant does suffer from “generalised anxiety disorder” (for which pension at 50% of the General Rate has subsequently been paid) it was submitted that the events in service which gave rise to the anxiety disorder occurred before the commencement of the period of operational service as defined (refer above). Additionally it was put that the concession by the respondent that the applicant does suffer from generalised anxiety disorder does not permit him having to avoid meeting a sub-hypothesis in order to uphold the hypothesis of hypertension arising out of service. (Refer McKenna v Repatriation Commission [1999] FCA 323).
60. It was put by Mr Rudge on the second day of hearing that the stressful events of the applicant’s service occurred before the commencement of the defined period of operational service. He referred to the applicant’s evidence in Bendigo on the first day of hearing (refer paragraph 13 of written submissions dated 18 September 2003) where he understood the applicant to contend “that he experienced stressful circumstances in his Malaysian service” before the confrontation started, long before August, “indeed”, prior to Christmas 1963.
61. Mr Rudge did not appear on the first day of hearing and I assume for the purposes of the submission that he has made at paragraph 13 that he had access to notes made by the instructor to Mr Douglass who appeared on the first day of hearing in Bendigo. Those proceedings were not recorded. I do not have any note in identical or any terms resembling the terms referred to by Mr Rudge in his written submissions, namely “before the confrontation started” or “long before August” or “prior to Christmas 1963”. I acknowledge that Mr Rudge has had access to records where these expressions and words are recorded. I have checked my notes on three occasions and cannot find any notes which resemble the above expressions. However, stressful events, prior to the commencement of operational service, will not be fatal to this application, because for reasons which appear later, I am satisfied that Mr Griffin was also exposed to stressful events after 17 August 1964.
CONCLUSIONS AND REASONS FOR DECISION
62. In Repatriation Commission v Hancock [2003] FCA 711 Selway J adopted the legal principals pronounced in Repatriation Commission v Deledio (1998) 83 FCR 82 but added that there were “at least two extra steps before step 1 of the Deledio methodology” (refer paragraph 9). His Honour decided that it was necessary to make a finding that the applicant was a veteran and the second issue was to identify “the kind of injury” in order to ascertain whether a SOP existed (refer s120A(4) of the Act). His Honour decided that the “kind of injury” is to be determined on the balance of probabilities (refer also Benjamin v Repatriation Commission (2001) 70 ALD 622).
63. The “Deledio Methodology” referred to by His Honour is as follows:
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). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
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.'
64. For reasons which will emerge, Stages 1, 2 and 3 are satisfied. A number of hypotheses have been raised and SOP’s are “in force”. The hypotheses raised are reasonable because there is material which points to and is consistent with reasonableness of those hypotheses. They are also consistent with the respective templates found within the SOP’s. In reaching these conclusions, the factors exist as a minimum.
65. Stage 4 of Deledio is probably the most critical issue in these proceedings, but again, for reasons which will emerge, and applying the reverse onus of s120(1) of the Act, I am not satisfied that the respondent has demonstrated that the incapacity of the applicant did not arise from war-caused injuries.
66. The applicant in his statement of 21 September 2002 (refer paragraph 8 earlier) specifically identifies his period of operational service as between 17 August 1964 to 3 January 1966 and being “in Malaysia”. He specifically refers to an increase in his consumption of cigarettes “in Malaysia” which he said was the result of “stress associated with my operational service”. He also refers to his duties, his diet and his alcohol consumption “while in Malaysia”.
67. I am now satisfied, having reviewed my notes of the evidence in Bendigo and by reference to the statement of the applicant that the stressful events of service relied upon by him (for the purposes of these proceedings) occurred during the period of operational service. I acknowledge that Dr Gill in his report of 4 May 2001 (T11) has a history of the applicant being exposed to some stressful events “in early 1964” (page 69). However, at page 70 Dr Gill has taken a history specifically referring to the period August 1964 to January 1966 where he recorded that the applicant had told him “that around that time [he] started to experience increasing symptoms of stress [he] also drank heavily and became easily irritated”. Whilst Dr Gill concludes (page 73) that the applicant reported a history of “increasing stress and anxiety from the time of his service at Butterworth” he also reported that a history was taken of “a series of events which he perceived as being highly stressful and harassing” during service “in Malaysia” (page 74).
68. Mr Griffin had served out of Butterworth from 9 July 1963 until the commencement of operational service on 17 August 1964. Nonetheless I am satisfied by reference to the applicant’s statement where he connects the defined period of operational service to service in “Malaysia” and the history of Dr Gill of stressful events between August 1964 and January 1966 (where the applicant “around that time . . . started to experience increasing symptoms of stress . . .”) that on balance, stressful events in service, occurred after the date of the commencement of the period of operational service. I acknowledge that there would appear to be on the medical evidence some events which were stressful prior to 17 August 1964 but on balance, the “symptoms of stress” (refer page 70) occurred after August 1964. I am satisfied also that those symptoms occurred after August 1964 because there were continuing stressful events in service after that date. Those events have been recorded earlier and need not be repeated.
69. The remaining issue then is to determine whether any of the applicable factors under the SOP with respect to generalised anxiety disorder exist as a minimum.
70. The respondent has previously decided that the applicant does suffer a generalised anxiety disorder and that it was war-caused. I have no doubt that this diagnosis has been properly made. I observed and heard the applicant in evidence at Bendigo. I am also reassured about the accuracy of the diagnosis after reading the reports of Dr Gill, Dr Thompson and Mr Honey (T docs, p50-54).
71. I am of the view that he did experience “a severe psychosocial stressor” as defined. In making this finding I am aware of the decision of Mansfield J in Stoddart v Repatriation Commission [2003] FCA 334 and the discussion at paragraph 40 of the interpretation to be given to the word “experiencing”. I am satisfied that the events in service recounted by the applicant were subjectively of a type that did evoke “feelings of substantial distress”. The definition of “severe psychosocial stressor” includes a number of examples which purport to be severe psychosocial stressors. The events recorded should be understood to be no more than examples only. Having regard to events to which the applicant was exposed and his subjective response to those events, I am satisfied that the definition of “severe psychosocial stressor” has been achieved. I am also satisfied that the connection with service, by reference to the medical reports lodged and the information with the report of Mr J T Owens, which, subject to some exceptions, corroborated the applicant’s evidence (Exhibit 1). Mr Owens reports at pages 1 and 2:
The Malayan Emergency was declared officially ended on 31 July 1960 and life at Butterworth was peaceful and routine. By mid-1964 relations between Malaysia and Indonesia had deteriorated and a period of “Confrontation” existed until after Mr Griffin’s return to Australia. While Australian forces were not directly involved in action, there was a heightened state of alert and this may have resulted in longer working hours, particularly for the RAAF police.
The APM contacted stated that this may be what Mr Griffin refers to but doubts that such hours would have been as extensive and ongoing as Mr Griffin suggests. He does state that because he held the rank of Sergeant, and therefore held a supervisory position, it is likely that Mr Griffin would have been called to duty at unusual hours. Additionally, because he apparently undertook a variety of roles during his posting, he may have been on duty outside normal shift hours. A doctor from No 4 RAAF Hospital, Butterworth noted, in mid-1965, that Mr Griffin was “working odd hours”.
It is noted that the “APM” (who disputed the hours of duty of Mr Griffin) referred to by Mr Owens was not posted to Butterworth during the applicant’s posting. It is also worthy to note that during the relevant period of service, the applicant substantially increased his consumption of cigarettes and was frequently drunk. It is frequently heard in these proceedings that consumption of cigarettes and alcohol is thought to be either a relaxant or a diversion from the effects of stressful events.
72. Additionally – and noting particularly the history taken by Dr Thomson in her report of 16 February 1998 (T6 p32) I find that the applicant also satisfies factor 5(a)(v). Dr Thomson has a history of the applicant reporting “the onset of mood swings, nightmares and sweats starting in 1962/63”. Nightmares, sweats, mood swings, medications, drinking and smoking all continued excessively until his discharge from the service in December 1972”. At page 33 Dr Thomson has recorded that the “features of PTSD” were “first observed in 1963 during his service in Malaysia”.
73. I doubt with respect to Dr Thomson and the history given to her by Mr Griffin that the years “1962/63” and “1963” as appearing could have been remembered with such precision some 35 years later when Dr Thomson consulted with Mr Griffin in February 1998. Nonetheless, whilst acknowledging earlier in these reasons that there were stressful events in service, before August 1964, it is my view that Mr Griffin can obtain benefit under factor 5(a)(v). Upon the history given to Dr Thomson of symptoms in 1962/1963 and the history given to Dr Gill, the applicant, in fact did experience a severe psychosocial stressor within two years before the clinical worsening of anxiety disorder. I would find, for the purposes of this decision, that the worsening occurred during the period of operational service. In making this finding I am aware of the content of paragraph 6 of Instrument No.1 of 2000 and I would be satisfied that the operational service of Mr Griffin materially contributed to his anxiety disorder.
74. On balance therefore I am satisfied that Mr Griffin does satisfy Instrument No.1 of 2000 because either factors (ii) or (v) of paragraph 5(a) exist as a minimum. It should be added, in concluding this part, that the anxiety state is, in my view, “clinically significant” and is a “psychiatric condition” as defined.
75. The next link in the chain constituting the overall hypothesis is to consider whether Mr Griffin suffers from a “clinically significant anxiety disorder for the six months immediately before the clinical onset of hypertension”.
76. The diagnosis of anxiety disorder is not in issue and I am satisfied for the above reasons that the SOP with respect to anxiety disorder contains factors which exist as a minimum. I am satisfied for the purposes of Instrument No.35 of 2003 that Mr Griffin does suffer a “clinically significant anxiety disorder” as defined. The parties agreed on the second day of hearing that the clinical onset of hypertension was 1985 or 1986 (refer report of Dr Thomson at page 34). Because I am also satisfied that the applicant has suffered a “clinically significant anxiety disorder” since his operational service and until the present time without respite, he necessarily suffered from it for “the six months immediately before the clinical onset of hypertension”. I am therefore satisfied that factor 5(n) of Instrument No.35 of 2003 exists as a minimum.
Diabetes
77. Factor 5(c) will only exist as a minimum if the applicant had ten pack years of smoking cigarettes before the clinical onset of diabetes or if smoking had ceased, the clinical onset occurred within ten years of the cessation.
78. It is not in dispute that the clinical onset of diabetes was in 1996 (refer Dr Thomson at page 35). (There is nothing to support the contention of the applicant that he was found to be diabetic in 1966 but had not been informed, refer paragraph 13). There was no challenge to the evidence of Mr Griffin that he ceased smoking in 1995 (refer Statement of 21 September 2002) and had smoked cigarettes from at least, the early 1960’s. It follows therefore that Mr Griffin who was a heavy smoker did smoke for at least ten pack years being by definition an average of 20 cigarettes per day per year. The cessation of smoking necessarily occurred within ten years of the clinical onset of diabetes. I am satisfied for the reasons given earlier that the connection between service and cigarette consumption exists by reason of the stressful events in service. I am therefore satisfied that factor 5(c) of Instrument No.82 of 1999 exists as a minimum.
Special Rate Pension
79. During the second day of hearing, both Mr De Marchi and Mr Rudge agreed that if the applicant succeeded in this review his incapacity would be assessed at no less than 70%, thereby satisfying the first limb of s24 of the Act. A review of the applicable Tables within the Guide to the Assessment of Veterans’ Pensions” (“GARP”) satisfies me that the agreement reached is well made. There was no serious challenge to total incapacity (refer p2 and 3 of transcript). Despite the other injuries suffered by the applicant, the extent of his anxiety state is so overwhelming that the “alone” test (s24(1)(c)) of the Act is comfortably achieved. Additionally, there is no dispute that the applicant is incapable of working the periods aggregating 8 hours per day and the incapacity results in a loss of salary or wages and the incapacity is by reason of war-caused injuries – refer s24(2) of the Act. In reaching these conclusions, I take considerable note of the evidence of Mrs Griffin (refer earlier) and the contents of a report of Dr Murphy, an occupational physician who examined the applicant after the first day of hearing.
DECISION
80. In all of the circumstances, I am satisfied that the decisions under review with respect to hypertension and diabetes should be set aside and in substitution it is decided these conditions are war-caused. The decision with respect to hyperlipidaemia is affirmed. The applicant is entitled to pension at the Special Rate.
I certify that the 80 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: Holly Weston
AssociateDates of Hearing 4 July and 16 September 2003
Date of Decision 21 May 2004
Solicitor for the Applicant Mr D De Marchi
Departmental Advocate Mr R Douglass
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