GTSQ and Military Rehabilitation and Compensation Commission (Compensation)

[2016] AATA 35

GTSQ and Military Rehabilitation and Compensation Commission (Compensation) [2016] AATA 35 (29 January 2016)

Division	VETERANS' APPEALS DIVISION
File Number	2013/6689
Re	GTSQ
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

DECISION

Tribunal	Deputy President J W Constance
Date	29 January 2016
Place	Sydney

The reviewable decision made by the Military Rehabilitation and Compensation Commission on 6 November 2013, that the Commission is not liable to the Applicant for a claimed psychological injury in accordance with subsection 23(1) of the Military Rehabilitation and Compensation Act, is affirmed.

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

J W Constance
Deputy President

CATCHWORDS

VETERANS AFFAIRS - entitlements - psychological injury - whether the Commission must accept liability for disease contracted - whether disease is a service disease - whether Applicant made wilful and false representation that he did not previously suffer from the disease -  decision affirmed

LEGISLATION

Military Rehabilitation and Compensation Act 2004 (Cth) ss 6, 23(1), 27, 34(1), 319, 335, 338, 339

CASES

Comcare Australia v Porter (1996) 70 FCR 139

Iannella v French (1968) 119 CLR 84

REASONS FOR DECISION

Deputy President J W Constance
29 January 2016

INTRODUCTION

1. The Applicant enlisted in the Australian Army in 2003.  In early 2007 he was deployed in East Timor for six weeks as part of Operation Astute.  He was discharged from the Army in 2008.

2. On 19 September 2012 the Applicant made a claim for compensation[1] for a psychological injury, claimed to be a service injury.  The claim was made pursuant to section 23 of the Military Rehabilitation and Compensation Act 2004 (Cth).

   [1] Exhibit R1 p.181.

3. By a determination made 5 February 2013 the Commission rejected the claim.  On 6 November 2013 this determination was affirmed following a review by the Commission.  The Applicant has applied to the Tribunal to review the Commission’s decision.

4. For the reasons which follow the decision under review will be affirmed.

   BACKGROUND MATERIAL BEFORE THE TRIBUNAL

5. The Applicant says that his psychological condition was caused, or alternatively, aggravated by, several incidents which he says occurred during his deployment in East Timor between 12 February 2007 and 25 March 2007.

6. The Applicant described the first incident as a “riot”.  Whilst travelling between barracks his transport was blocked by a burning vehicle.  He and his two companions were then attacked by about two hundred people throwing rocks and sticks.  The Applicant was ordered to cock his weapon.  He was fearful for his life and that he may have to shoot someone in order to escape.  The Applicant and those with him were able to escape without physical injury.

7. The Applicant described the second incident as an “ambush”.  He was driving with another soldier between barracks when members of a local gang endeavoured to surround their vehicle with large rocks so that they could not escape.  Again they escaped without physical injury.

8. A third incident occurred when the Applicant was required to destroy a live hand grenade. As he was searching for the weapon in grass and bushes he almost trod on it.  He felt stressed and shocked as it would have exploded had he made contact.  As he took steps to detonate the grenade the Applicant feared he may die as it could have exploded at any time.

9. On another occasion the Applicant was travelling with another soldier who was also a friend.  His friend came close to being decapitated by a wire stretched across the road; the wire skimmed the top of his friend’s helmet.  On the same day the Applicant was required to remove live ammunition from the bodies of three dead Timorese rebel soldiers.

10. The Applicant also claims to have suffered an injury to his right shoulder when he was lifting boxes of ammunition and that this injury has caused a pain disorder which in turn has contributed to the development of his depressive illness.

11. The Applicant claims he suffers from post-traumatic stress disorder or, alternatively, from a chronic major depressive illness or an aggravation of that illness.  He says that each of these conditions was a result of his service in East Timor.

    THE LEGISLATIVE SCHEME FOR THE PAYMENT OF COMPENSATION

12. Subsection 23(1) of the Act sets out the circumstances in which the Commission must accept liability for an injury sustained, or a disease contracted, by a person. It provides:

    (1) The Commission must accept liability for an injury sustained, or a disease contracted, by a person if:

    (a)the person’s injury or disease is a service injury or disease under section 27; and

    (b)the Commission is not prevented from accepting liability for the injury or disease by Part 4; and

    (c)a claim for acceptance of liability for the injury or disease has been made under section 319.

13. Service injury and service disease are defined in section 27.  Relevant to this application it provides:

    For the purposes of this Act, an injury sustained, or a disease contracted, by a person is a service injury or a service disease if one or more of the following apply:

    (a)the injury or disease resulted from an occurrence that happened while the person was a member rendering defence service;

    (b)the injury or disease arose out of, or was attributable to, any defence service rendered by the person while a member;

    …

    (d)the injury or disease:

    (i)     was sustained or contracted while the person was a member rendering defence service, but did not arise out of that service; or

    (ii)    was sustained or contracted before the commencement of a period of defence service rendered by the person while a member, but not while the person was rendering defence service;

    and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service rendered by the person while a member after he or she sustained the injury or contracted the disease;

14. Defence service is defined in section 6.

15. The method of making a claim is provided for by section 319.

16. Section 335 sets out the standard of proof to be applied in deciding whether an injury is a service injury or a disease is a service disease

17. When it is claimed that an injury or a disease relates to war-like or non-warlike service, the claim is to be determined by reference to any applicable Statement of Principles:  sections 338 and 339.

    ISSUES FOR DETERMINATION

18. The first step in deciding whether the Commission must accept liability for an injury sustained, or a disease contracted, by a claimant is to decide whether the claimant has in fact sustained the injury, or contracted the disease, claimed.  The issue is to be decided on the balance of probabilities.

19. Once this issue is decided the three conditions set out in paragraphs (a), (b) and (c) of subsection 23(1) must be satisfied before liability can be accepted. In this case it is not in dispute that a claim has been properly made. However, it is in dispute whether any of the claimed diseases is a service disease and, in the case of the claimed depressive condition and/or its aggravation, whether liability can be accepted by reason of the provisions of Part 4 of the Act.

20. As a result of the conclusion I have reached in relation to these issues it is not necessary to decide whether any of the diseases claimed by the Applicant is a service disease.

    CONSIDERATION OF THE ISSUES

    Issue 1:  Does the Applicant suffer from post-traumatic stress disorder and/or a chronic major depressive illness?

    The evidence of Dr Rose, Consultant Psychiatrist

21. In September 2013 Dr Rose examined the Applicant at the request of his solicitors.  He provided reports dated 3 September 2013[2], 17 September 2013[3] and 31 July 2014.[4]

    [2] Exhibit R1 p.257.

    [3] Exhibit R1 p.265.

    [4] Exhibit A3.

22. In September 2013 Dr Rose reported that, in his opinion, there was no doubt that the Applicant had developed a post-traumatic stress disorder. He based his opinion on the history given by the Applicant that he was subject to two negative events in East Timor – the injury whilst lifting the ammunition box and “the exposure to horror and violence in East Timor and in particular the episode in the Landrover in which he believed that he was being asked by his Sergeant to shoot children.” [5]

    [5] Exhibit R1 p.262.

23. Dr Rose also diagnosed the Applicant as suffering from alcohol abuse and severe pain, but not from “a diagnosable chronic pain syndrome/disorder of any psychiatric type” nor from a personality disorder.[6]

    [6] Exhibit R1 p.265.

    Records of Hunter Valley Mental Health Service [7]

    [7] Exhibit A2.

24. In June and July 2008 the Applicant attended the Service on a number of occasions.

25. On 20 June 2008 and 23 June 2008 two different Registered Mental Health Nurses noted the Applicant as suffering from post-traumatic stress disorder.

26. On 7 July 2008 the Applicant attended Dr Salaria.  On 9 July 2008 Dr Salaria reported to the Applicant's General Practitioner, Dr Sheather, that his impression was the Applicant suffered from a Borderline Personality Disorder with depressive symptoms.[8]  Further he reported that the Applicant was in a crisis of a relationship breakup and was suffering a lot of psychosocial stress involving recent surgery and loss of his job, family and house.

    [8] Exhibit A2 p.23.

    Report of Dr Iyer, Consultant Psychiatrist [9]

    [9] Exhibit R7.

27. The Applicant consulted Dr Iyer in April 2013 on referral from his General Practitioner.

28. Dr Iyer reported that the Applicant suffered from chronic pain syndrome and secondary depressive symptoms.

    Report of Mr Spencer, Psychologist[10]

    [10] Exhibit R10.

29. The Applicant began seeing Mr Spencer in September 2011. In a report dated 29 January 2013 Mr Spencer stated that the Applicant had reported “a lengthy history of interpersonal difficulties (dating back to his early childhood at home and his early years at school)”.

    Evidence of Dr Vickery, Consultant Psychiatrist & Pain Management Consultant

30. Dr Vickery assessed the Applicant in November 2012 at the request of the Department of Veterans’ Affairs.  He provided reports dated 10 December 2012[11], 25 June 2014[12], 15 July 2015[13] and 17 July 2015[14] and gave evidence.

    [11] Exhibit R1 p.221.

    [12] Exhibit R4.

    [13] Exhibit R5.

    [14] Exhibit R6.

31. In the opinion of Dr Vickery, the Applicant does not suffer from post-traumatic stress disorder as there is no objective evidence of his having met the diagnostic criteria for this condition. During the interview the Applicant did not mention any symptoms consistent with the condition nor did he refer to the events which he claims occurred in East Timor.

32. Dr Vickery disagreed with Dr Rose’s diagnosis as Dr Rose had not considered the Applicant's recorded drug use, longstanding anger issues, his prior need for counselling in 2004 and the significant personal issue associated with his ex-wife.

33. Prior to issuing his report of 17 July 2015 Dr Vickery considered the records of the Hunter Valley Mental Health Service[15].  In that report he expressed the opinion that the Applicant was suffering from depressive disorder and a personality disorder with the clinical onset of both conditions being when the Applicant was a young adult, before he joined the Army.

    [15] Exhibit A2.

    Evidence of Dr Smith, Consultant Psychiatrist

34. Dr Smith examined the Applicant in December 2014 at the request of the Commission.  He provided reports dated 5 January 2015[16] and 14 July 2015[17] and gave evidence.

    [16] Exhibit R2.

    [17] Exhibit R3.

35. Dr Smith diagnosed the Applicant as having a Major Depressive Disorder in association with a Paranoid Personality Disorder. In his opinion the Applicant has a longstanding personality disorder that predates his military service.[18]

    [18] Exhibit R3 p.4.

36. In his report of 5 January 2015[19] Dr Smith stated, in part:

    I have noted that [ the Applicant] has not provided a reliable and consistent history. The history that he has provided has varied with different examiners. He was most emphatic in stating to me that he was well treated during his developmental years. He was emphatic in stating that there was no family history of emotional disorder. He also denied utilisation of cannabis or other drugs of addiction prior to joining the army. This was contrary to the documentation reviewed.

    [The Applicant] underwent a number of assessments during his time in the military. He was seen by Dr Stones. No mention of a Post-traumatic Stress Disorder nor significant distressing and traumatic events related to the incidents outlined in his statement was documented within the consultation notes he held with Dr Stones and other clinical examiners. It is significant to note that only Dr Rose has diagnosed [ the Applicant] with a Post-traumatic Stress Disorder.

    My opinion accords closely with that of Dr Vickery that there was no basis for the diagnosis of a Post-traumatic Stress Disorder. Certainly at the time of my examination there was no clear and convincing symptomology elicited that was consistent with a Post-traumatic Stress Disorder.

    ……

    [The Applicant] did display symptoms consistent with a Major Depressive Disorder. By his own account his mood has been persistently depressed, sad and unhappy. He has withdrawn socially. He described a marked diminished interest and pleasure in his activities. He has lost weight. His sleep patterns have been interrupted. He reported impairments in concentration. He has experienced suicidal ideation. He has threatened self-harm. I note that suicidal statements have been linked to interpersonal conflicts particularly with his former wife from whom he has separated.

    [19] Exhibit R2 p.14.

37. When he gave evidence, Dr Smith was asked whether it was possible that the Applicant suffered late onset post-traumatic stress disorder. Dr Smith said that such a diagnosis is quite controversial and that in the Applicant’s particular case he did not consider there was any clear and convincing evidence that there had been delayed onset. Usually, post-traumatic stress disorder comes on almost contemporaneously with the traumatic event that a person is exposed to. Events in East Timor may have caused transient symptomology that would be expected in response to anxiety-provoking circumstances. However, the Applicant was not overwhelmed and his interpersonal, social and occupational functioning was not impaired as a result of any such incidents.

38. In relation to the diagnosis of major depressive disorder, Dr Smith said that it was reasonable to conclude that if a general practitioner prescribed antidepressants to a 14-year-old, the general practitioner must have been concerned in regard to the depth of the depression suffered. In addition there were other significant indices which appeared from the documentation, including a very difficult childhood and dysfunctional family, which on the balance of probabilities would have resulted in the Applicant developing a depressive disorder.

    Discussion

39. Having considered the evidence and the opinions of the medical practitioners, I am satisfied on the balance of probabilities that the Applicant suffers from a major depressive disorder.  I am not satisfied that he suffers from, or has ever suffered from, post-traumatic stress disorder. In reaching this conclusion I have preferred the diagnoses made by Dr Smith and Dr Vickery to that by Dr Rose.

40. Both Dr Smith and Dr Vickery considered in detail the documentation of the previous treatment of the Applicant, particularly the records of the Hunter Valley Mental Health Service. Taking into account these records I am satisfied that the Applicant is an unreliable historian, both as to his various medical conditions and as to the treatment he has received. 

41. I am satisfied also that the Applicant did not give an accurate history to Dr Rose and that this probably influenced the diagnosis made by him.  On many occasions when he was giving evidence, the Applicant denied having given the doctors examining him for the purpose of these proceedings the history attributed to him in their reports.  In my view it is extremely unlikely that the doctors made the errors in their reporting that the Applicant claims.  This conclusion is supported by the records of the Hunter Valley Mental Health Service which indicate that what the Applicant told that Service was consistent with the histories later recorded by the Doctors.

42. As I am not satisfied that the Applicant suffers from, or has suffered from post-traumatic stress disorder, there is no need to consider this condition further.

    Issue 2:  Does Part 4 of Chapter 2 of the Act prevent the Commission from accepting liability for the major depressive disorder, or for an aggravation of that condition, suffered by the Applicant?

43. As I have decided that the answer to this question is “yes” it is unnecessary to decide whether this disease is a service disease.  In my view subsection 23(1) does not require that there be a decision as to whether a claimed disease is a service disease before consideration can be given to the requirements of paragraph (b) of subsection 23(1). Similarly, it would not be necessary to decide whether subparagraphs (a) and (b) of subsection 23(1) had been satisfied before deciding that a claim had not been made under section 319 if, in fact, such a situation arose.

    The relevant provisions of Part 4 of Chapter 2 of the Act

44. Subsection 34(1) provides:

    (1)  The Commission must not accept liability for an injury sustained, or a disease contracted, by a person, if the person made a wilful and false representation, in connection with his or her defence service or proposed defence service, that he or she did not suffer, or had not previously suffered, from that injury or disease.

    Evidence

    Medical History Questionnaire completed by the Applicant on 19 December 2002

45. On 19 December 2002, prior to his enlistment in the Army and as part of the recruitment process, the Applicant completed and signed a Medical History Questionnaire.[20]  In that questionnaire he answered detailed questions as to his past medical history.

    [20] Exhibit R1 p290-296.

46. The Applicant answered “no”  to each of the following:

    HAVE YOU EVER HAD OR ARE YOU NOW SUFFERING FROM ANY OF THE FOLLOWING:

    ……

    49. Depression

    50. Anxiety

    51. Suspected or diagnosed psychological illness

    52. Suspected or diagnosed psychiatric illness

    ……[21]

    [21] At p.292.

    Clinical notes of Dr Hawkes, General Practitioner [22]

    [22] Exhibit R9.

47. Dr Hawkes was the Applicant’s General Practitioner prior to his enlistment.  Dr Hawkes’ clinical notes of his attendances upon the Applicant from 31 August 1998 until 11 November 1999 are:

    Monday August 31 1998   15:48:01
    Dr Patrick Hawkes
    Warts ++ Refer Skin
    6/12 Tired malaise H/A Insomnia anergia
    Diagnosis:
    Anxiety Depression
    Actions
    Pathology requested: FBE, UEC/LFTs, ESR, TSH

    Friday September 4 1998 09:41:37
    Dr Patrick Hawkes
    Path NAD
    Has apt, Dermatology re warts. R/V 5/7
    Diagnosis:
    DEPRESSION
    Actions:
    Prescriptions printed:
    CIPRAMIL TABLET 20mg 1 mane

    Monday September 7 1998 16:28:22
    Dr Patrick Hawkes
    A bit hyped up but no major S/E on Cipramil
    Review:
    2/52

    Monday September 21 1998 15:59:01
    Dr Patrick Hawkes
    Depression improving, Ctd Cipramil,
    Coughing a little at present, sl sniffles. PH ?Mild asthma Use Respolin Autohaler prn r/v prn.
    Multiple warts h/n Dr Cooper. Actions:
    Prescriptions printed:
    CIPRAMIL TABLET 20mg 1 mane

    Thursday June 24 1999 10:23:37
    Dr. Patrick Hawkes
    Cough, Sniffles, no regular Respolin but does get SOB at sport only.
    Examination:
    Chest-OK, Throat ok, TMs ok
    Regular Respolin
    Diagnosis:
    URTI – Mild asthma
    Actions:
    Prescriptions printed:
    RESPOLIN AUTOHALER 100mcg/dose 1-2 q.4.h.

    Tuesday July 6 1999 09:54:11
    Dr. Patrick Hawkes
    Seen w pain in knees earlier in year, has apt w dr Morton, saw mum today who req referral.
    Diagnosis:
    Sore knees
    Actions:
    Letter written to Dr John Morton.

    Thursday November 11 1999 15:13:38
    Dr Patrick Hawkes
    Unwell 2/52 w croupy cough, blocked nose, and H/A PH asthma
    Examination:
    Chest-OK, Throat ok, TMs ok
    Diagnosis:
    Asthma/Bronchitis
    Actions:
    Prescriptions printed:
    PULMICORT 200mcg TURBUHALER 200mcg/inhal’n 2-3 b.d.
    RULIDE TABLET 300mg 1 daily
    CIPRAMIL TABLET 20mg ceased 2/12 ago and has been ok since[23].

    [23] Exhibit R9.

    Clinical notes of Hunter Valley Mental Health Service

1. On 9 July 2008, Dr Salaria, who treated the Applicant at the Service, advised the Applicant's General Practitioner that the Applicant “reports ADT [anti-depressive therapy] at age 14 years, CIPRAMIL, nil effect.” [24]

   [24] Exhibit A2 p.21.

   Report of Dr Rose

2. On 3 September 2013 Dr Rose reported that “ [the Applicant] denies having had any psychiatric symptoms or problems before deployment in East Timor.” [25]

   [25] Exhibit R1 p.261.

   The Applicant's evidence

3. The Applicant denied that, at the time he completed the Medical History Questionnaire in 2002, he was aware that he had been diagnosed with, and treated for, anxiety and depression previously. He does not recall taking Cipramil. He said that Dr Hawkes was treating him for warts and that any medication he took was related to that condition.

4. Further the Applicant said that he had no recollection of giving the Hunter Valley Mental Health Service a history of receiving anti-depressive therapy and of being treated with Cipramil.

5. In relation to the report of Dr Rose, the following exchange took place between the Applicant and Counsel for the Commission:

   Counsel:    Similarly when you saw Dr Rose for your solicitors in September 2013, you told him didn’t you that you categorically denied having had anxiety or depression prior to your deployment in East Timor?

   The Applicant:    To my knowledge I never had it.  I was pretty happy.  I was going well in my career.

   Counsel:    Again, I suggest to you that you were well aware that you weren’t telling him the truth when you told him that?

   The Applicant:     I was telling the truth. [26]

   [26] Transcript 22/7/15 p25-26.

   Discussion

6. A finding that a person made a “wilful and false representation” is a serious finding with serious consequences for a claimant under the Act.  Obviously it is a finding not to be made lightly.

7. In Comcare Australia v Porter[27] the Federal Court considered the words “wilful and false representation” which appear in a similar provision in the Safety, Rehabilitation and Compensation Act 1988 (Cth).[28]  Jenkinson J. said:

   Barwick C.J. observed in Iannella v. French…:

   "It is thus appropriate to consider the meaning and application of the word 'wilful' in the specification of an offence. The Chief Justice of South Australia, having examined the case law, has repeated the view that the cases show that the word 'wilful' is not a word of fixed meaning. But of this I cannot myself feel absolutely certain. I am inclined to think that in the description of a criminal offence its connotation is fairly constant: but that its denotation varies with the verbal context and the subject matter of the statutory provision. In my opinion, 'wilful' connotes intention and knowledge: the problem is to determine in the particular circumstances what is to be intended and what known. The answer, as I have said, must vary with the nature of the act proscribed and the context of the statutory provision creating the offence. Further, the word intention itself obscures a difficulty. Thus it is said on some occasions to be satisfied by mere volition to do the specific act in question. But in truth, in my opinion, the word contains in its connotation elements of purpose. It is not merely that the mind goes with the act but that the mind intends by the act to achieve something. Of course, in some statutory circumstances, the mere doing without consequence or without purpose is forbidden, in which event the conscious doing of the act may suffice to make its performance intentional and in these circumstances wilful."

   That passage, although directed to the interpretation of a criminal statute, is in my opinion apposite in reference to s.7(7). The verbal context supplied by the phrase "false representation" exposes the legislature's attention to the conceptions and language of the common law, which distinguishes clearly between the objective falsity of a representation, signified by the word "false", and the representor's knowledge of the falsity, commonly signified in civil proceedings by the word "fraudulent". (Halsbury (4th ed) vol. 31, paras. 1044, 1059, 1063-1065; The Queen v. Aspinall (1876) 2 Q.B.D. 48 at 56-57). The clause "if the employee has ...... made a ...... false representation" may be expected, therefore, to signify knowledge on the part of the employee that the representation specified was being made by him and an intention on his part that it be made, as well as signifying the objective falsity, the incorrectness, of the representation, but no more. The addition of "wilful" in that verbal context excites the expectation that what the whole clause in the sub- section requires is that, in addition to what the words previously extracted from the clause signify, the employee should have no belief that the representation is true. The subject matter of s.7(7) confirms the conclusion, tentatively reached upon a consideration of the verbal context, that the clause requires that the representation be made without any belief that it is true. There is no reason to suppose, upon a consideration of the whole Act, that the legislature would intend to attach to an innocent misrepresentation about the existence of a disease - a subject notoriously liable to human misapprehension - the dire consequence of exclusion of the representor from the benefits otherwise available under the Act in respect of the disease and its aggravation. [29]

   [27] (1996) 70 FCR 139.

   [28] Subsection 7(7).

   [29] At pp.149-150.

8. In this application I am satisfied that the Applicant did make a representation that was both “wilful” and “false”.

9. It is important that the representation said to have been made is clearly identified. In his responses to the Medical History Questionnaire made on 19 December 2002 the Applicant made the representation that he had never had depression.  The question which gave rise to this response was clear.

10. On the basis of the clinical notes of Dr Hawkes[30] I am satisfied that the Applicant suffered from clinically diagnosed depression from 31 August 1998 for about 12 months.  During this period Dr Hawkes prescribed Cipramil for the treatment of the Applicant's condition.

    [30] Exhibit R9.

11. I am satisfied therefore that the representation made by the Applicant in the Medical History Questionnaire was false.

12. The more difficult question is whether the Applicant's representation was “wilful”. After careful consideration of the evidence I am satisfied that it was. I have reached this conclusion on the basis that I am satisfied that he made it knowing it was false and with the intent of assisting his achieving his aim of being enlisted as a member of the Australian Army.

13. The Applicant was almost 16 years old when he consulted Dr Hawkes on 31 August 1998.  He complained of “tired malaise …. insomnia anergia [lack of mental energy]”   over six months. The Applicant was referred to a dermatologist in respect of his warts, but returned to see Dr Hawkes four days later (having had blood tests carried out) and was prescribed Cipramil.

14. The Applicant again attended Dr Hawkes on 4 September 1998 when his mental condition and the side-effects of Cipramil were discussed. An improvement in the Applicant's depression was noted on 21 September 1998.

15. It is unlikely that these consultations took place without the Applicant realising, as he now suggests, that Dr Hawkes was treating him for a condition other than warts.

16. Counsel for the Commission acknowledged the possibility that the diagnosis of depression was discussed with the Applicant's parents and not with him.  In view of the history taken at each consultation this is unlikely. Further, Dr Hawkes recorded the presence of the Applicant's mother at the consultation on 6 July 1999; there is no such record during the earlier consultations.

17. The Applicant gave evidence that when he was examined by Dr Rose in September 2013 he was unaware of the diagnosis made by Dr Hawkes.  I do not accept this evidence.  The records of the Hunter Valley Mental Health Service indicate that in 2008 the Applicant reported that he had anti-depressive therapy at age 14 (sic) and that it had no effect.  There is no evidence to suggest that this information was obtained from anyone other than the Applicant. When the Hunter Valley Mental Health Service produced its records to the Tribunal on summons they did not contain any information from Dr Hawkes.  Further the notes of Dr Hawkes do not suggest that the treatment given was of no effect.

18. The Applicant's manner of answering questions concerning his knowledge of the diagnosis suggested to me that he was not being frank in his answers.  He did not suggest that he was told of the diagnosis later in life – he continued to deny that he was aware that he had  suffered depression until the issue was raised in these proceedings

    CONCLUSION

19. The reviewable decision made by the Military Rehabilitation and Compensation Commission on 6 November 2013, that the Commission is not liable to the Applicant for a claimed psychological injury in accordance with subsection 23(1) of the Military Rehabilitation and Compensation Act, will be affirmed.

I certify that the preceding 66 (sixty -six) paragraphs are a true copy of the reasons for the decision herein of

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

Associate

Dated 29 January 2016

Dates of hearing	22-23 July 2015; 30 October 2015
Date final submissions received	30 October 2015
Counsel for the Applicant	G Niven
Solicitors for the Applicant	Slater & Gordon Lawyers
Counsel for the Respondent	B Kelly
Solicitors for the Respondent	Moray & Agnew Lawyers