Guilford and Repatriation Commission
[2008] AATA 952
•24 October 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 952
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q200600891
VETERANS' APPEALS DIVISION ) & 2008/0865 Re PETER GUILFORD Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr K S Levy RFD, Senior Member Date24 October 2008
PlaceBrisbane
Decision The Tribunal determines:-
1. The decision in relation to the claims for anxiety and depression is affirmed.
2. The decision in relation to the claims for special rate of pension is affirmed.
...............[Sgd]........................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – special rate pension – applicant served with Royal Australian Navy – applicant suffers from peripheral neuropathy, anxiety disorder and depression – peripheral neuropathy accepted war caused condition – anxiety disorder not war caused – depression not war caused – whether applicant is entitled to special rate of pension – application of Flentjar principles – Tribunal must assess conditions at commencement of “assessment period” – applicant did not cease work solely because of war caused condition – decision under review affirmed.
Veterans’ Entitlements Act 1986 ss 9, 5B (1), 6-6F, 13(1), 24(1) (aab), 24(1) (b), 24(1) (c), 24(2A), 25, 120, 120(1), 120(3), 120A (3), 196B
Repatriation Commission v Deledio [1998] FCA 391; (1998) 49 ALD 193; (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 188 ALR 756; (2001) 66 ALD 271
Hardman v Repatriation Commission [2004] FCA 1174; (2004) 82 ALD 433
Repatriation Commission v Bey (1997) 149 ALR 721; (1997) 79 FCR 364
Repatriation Commission v Stares (1996) 41 ALD 212
Repatriation Commission v Hill [2002] FCAFC 192; (2002) 69 ALD 581
White v Repatriation Commission [2004] FCA 633; (2004) 39 AAR 67
East v Repatriation Commission (1987) 16 CR 517; (1987) 74 ALR 518
Bushell v Repatriation Commission (1992) 175 CLR 408; (1992) 109 ALR 30
Re Stonehouse and Repatriation Commission [2004] AATA 707
Banovich v Repatriation Commission (1986) 69 ALR 395
Flentjar and Repatriation Commissioner (1997) 48 ALD 1 at 425
Repatriation Commission v Butcher [2007] FCAFC 36; (2007) 94 ALD 364
Cavell and Repatriation Commission (1988) 9 AAR 534
Hall v Repatriation Commission (1994) 33 ALD 454
Fox v Repatriation Commission (1997) 45 ALD 317
Re Hornery and Repatriation Commission (1998) 52 ALD 317
Langley v Repatriation Commission (1993) 115 ALR 51
Repatriation Commission v O’Brien (1985) 155 CLR 422
Repatriation Commission v Strickland (1990) 22 ALD 10
Smith v Repatriation Commission [2004] FCA 743
Re Harris and Repatriation Commission (1998) 51 ALD 789
Forbes v Repatriation Commission (2000) 171 ALR 131
Repatriation Commission v Braund (1991) 23 ALD 591
Jones v Dunkel (1959) 101 CLR 298
Brandi v Mingot (1976) 12 ALR 551
Cubillo v Commonwealth of Australia (2000) 103 FCR 1
Briginshaw v Briginshaw (1938) 60 CLR 336
REASONS FOR DECISION
24 October 2008 Dr K S Levy RFD, Senior Member 1. The Applicant, Mr Peter Guilford, has made two separate applications to this Tribunal:
(a)Claims for recognition of the conditions of anxiety and depression as related to operational service.
(b)A claim to be recognised as a totally and permanently incapacitated veteran.
2. By a decision dated 8 February 2005, the Repatriation Commission accepted certain conditions as being service-related but rejected the Applicant’s claim for anxiety disorder and depression.
3. The Applicant appeals against the rejection of those two conditions. He was assessed as being entitled to disability support pension at 70% of the general rate with effect from 27 April 2005 and at 100% of the general rate with effect from 10 October 2007, under the Veterans’ Entitlements Act 1986 (“the Act”). The Applicant also seeks compensation for his conditions which he says, makes him totally and permanently incapacitated and which, he submits, is related to his service in the Australian Defence Force. That claim was rejected by the Veteran’s Review Board on 4 February 2008.
ISSUES
4. The Tribunal has to answer the following questions –
(a)Are the conditions of anxiety disorder and depression related to Mr Guilford’s operational service?; and
(b)Is Mr Guilford entitled to the special rate of pension because of his inability to work i.e. is he totally and permanently incapacitated under s 24 of the Act?
BACKGROUND
5. Mr Guilford served with the Royal Australian Navy (RAN) from 28 November 1964 until 1 May 1968. He was 20 years of age when he enlisted in the RAN and was employed as a cook. He served initially at HMAS Cerberus and subsequently on HMAS Sydney. Whilst posted to the latter ship, he performed operational service for approximately one month in Vietnamese waters from 27 May 1965 until 26 June 1965.
6. The Applicant was treated on a number of occasions throughout his naval service for skin conditions and which are reflected in his medical records as impetigo, eczema and in particular, dermatitis herpetiformis. The Applicant was given a number of medical treatments for these conditions, and subsequent to his operational service, he was prescribed Dapsone while in the RAN. He has continued with this treatment on a long-term basis.
7. Mr Guilford was ultimately discharged from the RAN as being permanently unfit for service and this was attributable to a “skin disease”. He was discharged on 1 May 1968.
8. The Applicant’s claim for recognition of his skin conditions was accepted as being related to service with effect 14 February 1992, where the condition of dermatitis herpetiformis was accepted. On 10 March 2004, the Applicant also made a claim for certain “behavioural problems”. These are related to the claims presently before the Tribunal. The consideration of those claims was determined on 8 February 2005 by a delegate of the Repatriation Commission where it was determined that anxiety disorder and depressive disorder were not service related.
EVIDENCE
9. Mr Guilford gave sworn evidence before the Tribunal. He described three incidents which he maintains are the etiology for his present mood disorders. These are:
(1)An acquaintance whom he knew from school days and who was a soldier on passage to South Vietnam, worked in the kitchen on HMAS Sydney with him undertaking kitchen duties. He subsequently heard this person had been killed by a grenade when in the back of a truck.
(2)US war planes which flew over a mountain close to Vung Tau Harbour while HMAS Sydney was berthed there, and flew low over the water and then near the ship where he was standing on the deck. The planes then moved to an elevated position when close to the ship. The Applicant thought his life was in danger as a result.
(3)The Applicant had stepped over various bags on the floor of the freezer on HMAS Sydney. On one occasion, he asked his superiors what was in the bags. He was told that bodies were in the bags. The Applicant says that he has been affected in an adverse psychological manner by that incident.
10. These incidents occurred during the one month period in 1965 when the Applicant served on HMAS Sydney on operational service. The incident involving the US planes occurred once while HMAS Sydney was berthed for 3 days in Vung Tau Harbour. The Applicant was in the sick bay of the ship for two of those days but was free to roam the ship during that period i.e. he was not performing duties but not confined to the sick bay.
11. The Applicant’s work history is that since leaving the Navy in 1968, he had worked as a storeman for a year but has mostly worked in the food and retailing industries. He has been in business on a number of occasions and last worked at the Reef Hotel where he was involved in unloading wines at the hotel and storing them. That work was mostly manual work.
12. The Applicant’s wife, Mrs Guilford, also gave sworn evidence corroborating, in particular, Mr Guilford’s condition of peripheral neuropathy. She described the effect of the neuropathy on her husband. She also indicated that for some years, he had not slept well and also suffered night sweats. She attributed this to his dermatitis condition. Mrs Guilford recalled her husband telling her that whilst he worked at the Reef Hotel, he used to hide at the back of the hotel so that he could sit down and have a break, particularly where there were no security cameras. She said he felt that work was getting too much for him.
MEDICAL EVIDENCE
13. Of recent years he has seen Dr Pamela McCombe for the condition of peripheral neuropathy. He has seen Dr McCombe since 2001 and has mostly consulted her every 12 months or so. She gave him a certificate in February 2005 that he should be off work for two years. On 6 August 2005, she subsequently certified that Mr Guilford was not fit to work at all because of his discomfort with his peripheral neuropathy.
14. In relation to peripheral neuropathy, Dr McCombe gave evidence by telephone that Mr Guilford’s condition was described by him as being one where his feet were cold and extended to just below the knees, as well as having the extremities of his feet and fingers being affected. Dr McCombe said his condition will gradually get worse although she did not think he would ultimately be wheelchair bound, which is a concern for Mr Guilford. She also stated that he had been on Dapsone for 40 years and that if he stops taking that medication, he would be likely to break out in dermatitis.
15. The condition of peripheral neuropathy was first diagnosed in 1999. It has since been accepted as a service-related condition. There is also an anxiety and perhaps depression suffered by the Applicant which has some link to the condition of peripheral neuropathy.
16. In relation to the Applicant’s dermatitis herpetaformis, this condition was diagnosed whilst the Applicant was in the RAN in 1965. It was clearly present when Mr Guilford was in the RAN and it is accepted that it existed whilst he was on operational service.
17. However, the Respondent has provided the opinion of Dr Siller, a dermatologist. Dr Siller’s report dated the 7 June 2007 states the clinical onset occurred in 1965 but that the precipitating factor for this condition is the exposure to gluten and is not specifically precipitated by heat, as is often the perception. Dr Siller maintains that research since the time that the Applicant served in the RAN has shown that exposure to gluten would be the main cause of the Applicant’s dermatitis but that it would have been an aggravating factor on a temporary basis only or while that exposure continued. In a report dated 15 June 2007, Dr Siller stated that even gluten exposure would not have made the condition of dermatitis herpetaformis either permanent or significantly worse for any period thereafter.
18. Mr Guilford has also been a patient of Dr Bob Anderson, Psychiatrist, who has provided evidence of Mr Guilford’s psychiatric condition. In relation to the claimed conditions of anxiety and depression, a report was provided by Dr Anderson, who diagnosed the Applicant as having generalised anxiety disorder and depression, and a partial post-traumatic stress disorder. His diagnosis was that the date of onset would have been shortly after the incident in Vung Tau Harbour. However, his opinion is based on two of the three incidents claimed in the evidence – the witnessing of the two low flying American aircraft which, the Applicant said, swerved to miss the ship; and the second incident was the experience of stepping over body bags in the freezer. Dr Anderson also concluded that the dermatitis condition also aggravated the Applicant’s anxiety disorder.
19. Dr Anderson considered that the anxiety condition deteriorated over the years partially as a result of the ineffectiveness of the dermatitis treatment and partially because of the onset of peripheral neuropathy. Dr Anderson said that the Applicant suffered from depression which had clinical onset in 1984.
20. Dr Anderson, in oral evidence, concluded that the alleged conditions of impotence, and anxiety, were both secondary to the Applicant’s condition of peripheral neuropathy.
21. In cross-examination, Dr Anderson mentioned that his report emphasised Mr Guilford’s anxiety condition but conceded that peripheral neuropathy was a big factor in Mr Guilford’s mood disorders. However, he conceded that he had made no mention of peripheral neuropathy in his report and said it was an “oversight”. In relation to the Applicant’s condition of depression, Dr Anderson agreed that at the time he saw the Applicant he had previously had a number of disastrous business ventures where he had lost a considerable amount of money. In relation to the severity of the psychiatric condition and its relationship to peripheral neuropathy and dermatitis, Dr Anderson agreed that 80 to 90% of the cause of the present anxiety condition could be attributed to peripheral neuropathy.
CONSIDERATION
22. In arriving at the correct or preferable decision, I have considered the whole of the material presented, including the factual evidence, the relevant statutory and case law and the submissions made on behalf of the parties.
23. I make the following findings of fact in relation to the evidence:
(1)Mr Guilford is currently 64 years of age.
(2)Mr Guilford served in the RAN from 28 November 1964 to 1 May 1968. At the end of that 3½ year period, Mr Guilford was discharged, which is considerably earlier than he would have been, had he served the full period of his engagement. He was discharged as being permanently unfit for naval service due to a “skin disease”.
(3)Whilst in the RAN, he had one period of four weeks of operational service in South Vietnam waters, from 27 May 1965 to 26 June 1965. He was employed as a cook on board HMAS Sydney at that time.
(4)During that period of operational service he spent three days in Vung Tau Harbour. Two of those three days were spent in the sick bay, although the Applicant was not confined to bed for that period.
(5)Mr Guilford was treated for a skin condition during his naval service which was described as impetigo, infected heat rash, endogenous eczema, chloracne and dermatitis herpetaformis.
(6)During his RAN service, he was treated with Dapsone as part of the medical treatment.
the statutory law and statement of principles
24. Section 9 of the Act provides that an injury suffered or a disease contracted by a veteran, will be taken to be a war-caused injury or disease where the injury or disease resulted from an occurrence that happened while the veteran was undertaking operational service. The term “operational service” is defined in s 6 - 6F of the Act. A person will be regarded as rendering operational service if he or she is allotted to an operational area (see s 6C). “An operational area” is defined in s 5B (1) which is linked to the detail contained in Schedule 2 of the Act. Item 8 of column 1 of that schedule provides that serving in Vietnam (Southern Zone) during the period which the Applicant served would be regarded as serving in an operational area for the purposes of operational service.
25. In addition to the above, s 13(1) of the Act provides that a veteran who becomes incapacitated from such an injury or disease will result in liability of the Commonwealth to pay a pension by way of compensation.
26. To determine whether the asserted conditions are “war-caused”, an assessment must be made and determined according to the standard of proof set out in s 120 of the Act.
27. Section 120 provides that where operational service is involved, the Tribunal (in the shoes of the Repatriation Commission) shall primarily, determine the injury or disease is “war-caused … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.”[1]
[1] s 120(1) of the Act.
28. The Tribunal will be satisfied that there is no sufficient ground for finding it is a war-caused injury or disease if, after considering the whole of the evidence, that there is no “reasonable hypothesis” connecting the injury or disease with the Applicant’s naval service: s 120(3) of the Act. A hypothesis will be a reasonable hypothesis if there is a relevant Statement of Principle (SoP) in existence under s 196B and the application of that SoP upholds the hypothesis: s 120A(3) of the Act.
Are the claims war-caused?
issue 1 – are the conditions of anxiety and depression related to operational service?
29. The conditions claimed by the Applicant are the subject of Statement of Principles (SoPs). The relevant SoPs are:
(1) Anxiety disorder
SoP No. 101 of 2007
SoP No. 1 of 2000(2) Depressive disorder
SoP No. 27 of 2008
SoP No. 17 of 2007
30. The latest SoP for the relevant conditions above will be assessed, and in the event that the Applicant does not satisfy the latest SoP, then the applicant’s right of consideration under the previous SoP will also be assessed.
31. Where a SoP exists, I am required to apply the test prescribed by s 120A(3) of the Act as amplified by the Federal Court in Repatriation Commission v Deledio[2] where the Court[3] outlined the test 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 a 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.”
[2] [1998] FCA 391; (1998) 49 ALD 193; (1998) 83 FCR 82.
[3] Repatriation Commission v Deledio (1998) 83 FCR 82 at 97.
32. In applying those steps set out in Deledio, I must consider all of the evidence presented, even if that evidence does not support on the face of it, the hypothesis[4].
[4] See Bull v Repatriation Commission (2001) 188 ALR 756; (2001) 66 ALD 271 at 277 per [21]; Hardman v Repatriation Commission [2004] FCA 1174; (2004) 82 ALD 433 at 445 per [39 to 41].
33. In relation to the analysis of the Deledio process, I answer the steps for the conditions of Anxiety and Depression as follows:
Anxiety
34. In relation to Step 1 of Deledio, material must exist which can establish an hypothesis which could connect the Applicant’s generalised anxiety disorder with facts relating to his service. There are facts presented which seem logical, without any regard to whether they might be accepted as being truthful, and which could be regarded as the starting point for inquiry. Therefore, an hypothesis is established. This means that it is no more than a "… conjectural explanation of an ultimate fact”[5]. I am therefore satisfied that an hypothesis could be fairly raised and therefore that Step 1 of Deledio is satisfied.
[5] Repatriation Commission v Stares (1996) 41 ALD 212 at 217.
35. In relation to Step 2, a SoP must exist for the condition of anxiety disorder. As referred to earlier, there are two SoPs in existence - the current SoP No. 101 of 2007 and the previous SoP, Instrument No. 1 of 2000. Therefore, Step 2 is satisfied.
36. In relation to Step 3, the material must be assessed on the basis of whether the hypothesis raised in Step 1 is reasonable. If a reasonable “hypothesis” is to be established, there must be more than a mere possibility and the hypothesis must be pointed to by the facts, even if not proved on the balance of probabilities[6]. On the other hand, the hypothesis would not be reasonable (and would therefore not point to the relevant connection with military service) if it was “obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous”[7].
[6] See Repatriation Commission v Bey (1997) 79 FCR 364; (1997) 149 ALR 721 at 723 per Northrop ACJ, Sundberg, Marshall and Merkell JJ.
[7] Bull v Repatriation Commission (supra) at 276 per [18].
37. In relation to the claim for anxiety disorder, I have considered the three incidents claimed by the Applicant. In terms of factor 6 of SoP No. 101 of 2007, I do not regard any of the three incidents raised as being of the same severity as the examples listed in the definition for a category 1A stressor (life threatening events). The incidents described and the short periods of time over which they occurred do not seem to me that they could be reasonably regarded as life-threatening events. Equally, they do not fall within a category 1B stressor which requires an eye witness account of a person being killed or critically injured; or viewing corpses or those who have been critically injured. An incident where planes flew close but was over within a very short time or merely being told that there were bodies in a bag, as the evidence has been presented, also do not fall within the definitions set out for a category 1B stressor.
38. I have then assessed the three incidents according to the definition of a category 2 stressor which involves a negative life event or events, which have resultant social isolation or an inability to maintain friendships or family relationships due to physical location, language, disability, medical or psychiatric illness. Such a stressor must have occurred within one year before the clinical onset of anxiety. Dr Anderson diagnosed Mr Guilford as having a clinical onset of anxiety in 1965 and indicated that it gradually worsened due to the ineffectiveness of the drug treatment. In addition, he has said in oral evidence that at least 80 to 90% of the Applicant’s anxiety and depression conditions are attributable to peripheral neuropathy and therefore the mood disorder is a secondary cause.
39. Considering the hypotheses as put by the Applicant over the brief period in Vung Tau Harbour and his life events described since that time, it seems difficult to accept that the subjective element in these circumstances could have such long term deleterious effect. Overall, the relationship of anxiety to the three incidents submitted by the Applicant alone, does not seem to me to meet the standard of the stressor definitions contained in the SoP. It does not reasonably point to the presence of the anxiety condition being related to operational service based on the hypotheses raised. Therefore Step 3 of Deledio is not satisfied under SoP Number 101 of 2007.
40. However, even though I do not regard them being satisfied under that SoP, there is a right for the Applicant to have his claims considered under the former SoP, Instrument No. 1 of 2000. There, the instrument requires that the Applicant experience a “severe psychosocial stressor” within two years before the clinical onset of anxiety. Such a stressor refers to a psychological tension which would cause a psychopathological condition and which would impede an effective integration with the external world in a social sense. It may affect ones outlook in dealing with others and lead to a degree of mistrust and lack of ability to relate intimately or socially with those in the world around them.
41. To be reasonable, the evidence must fit within the template of the relevant SoP[8]. I have adopted the approach utilised by the Court in Hill’s case in determining the reasonableness of the hypothesis.
[8] Repatriation Commission v Hill [2002] FCAFC 192 at [67]; (2002) 69 ALD 581 at 599-600.
42. But importantly, the claims must be assessed according to White v Repatriation Commission[9]. There, Spender J said there must be a subjective element, ie. as a veteran describes its effect on him or her. But also, there must be an objective assessment which would indicate that the event concerned was such as to be expected to evoke feelings of substantial distress in an objective bystander, as well as the subjective experiencing of that level of distress. In that case, his Honour determined that both the subjective and objective elements “… are relevant and necessary”[10].
[9] [2004] FCA 633; (2004) 39 AAR 67.
[10]Bull v Repatriation Commission (supra) per [29] to [30].
43. In relation to each of the incidents, even if one accepts that the subjective elements are satisfied, I cannot be satisfied about the objective assessments. In relation to the first incident, the Applicant said that the soldier concerned, who had gone to the same school as him, was an “acquaintance”. He did not know him well; the incident of the apparent demise of the soldier was a story which he had heard although he indicated in evidence he subsequently found out that the story was probably not true. In any event, he never followed up the matter to get some verification or otherwise in the decades that followed. In relation to the second incident, American planes flew close to the ship. The Applicant says he thought that they were going to hit the ship. The incident was over in a matter of seconds. There was no further evidence about it. In relation to the third event, he was told that there were bodies in the bags in the freezer, although he did not view the bodies. It seems because of his skin condition and the allocation of duties to him, he did not go into the freezer again on that trip.
44. Clearly, Step 3 of Deledio requires a macro level assessment of Mr Guilford’s story to determine whether it fits the template of the SoP. Within the context of the model adopted in Repatriation Commission v Hill (supra), the hypothesis must be a credible proposition and it must not be too remote or too improbable. It must be “more than a possibility, not fanciful or unreal, and consistent with the known facts. It is an hypothesis pointed to by the facts even though not proved on the balance of probabilities”[11].
[11]East v Repatriation Commission (1987) 16 CR 517 at 532 - 533; (1987) 74 ALR 518.
45. In making a determination about Step 3, findings of fact are not made. The determination must be made on the basis that the evidence “points to the hypothesis”. For the purposes of s 120(3), the material will support the hypothesis as being reasonable if “there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc with the operational service”[12].
[12]Bushell v Repatriation Commission (1992) 175 CLR 408; (1992) 109 ALR 30.
46. I take account of the decision of White v Repatriation Commission (supra). Counsel for the Applicant referred me also to Re Stonehouse and Repatriation Commission[13]. However, I note also in paragraph 19 of that decision the Tribunal said:
“A severe psychosocial stressor must be a stressor that is both severe and psychosocial in nature and cause the requisite level of distress to the individual. To satisfy the SoP the individual must have experienced an identifiable occurrence which has social factors that affected his or her mind or behaviour causing the requisite level of distress.”
[13][2004] AATA 707 per [18].
47. In the years since 1965, the Applicant had for 20 years thereafter, an apparent effective working life and business relationships. It is apparent that some of those business relationships were not successful from a financial perspective but it is not apparent that there was the degree of ineffective social relationships with others in the world, particularly within two years after the three events as defined by the Applicant. A modification of one’s behaviour, which might not be regarded as abnormal or pathological, would not satisfy the definition of “severe psychosocial stressor”. The occurrence must produce substantial distress in the person affected, with examples in the SoP indicating the level of distress which would result from experiences such as “… 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”. I have considered the three events according to the examples in the SoP and having regard to White v Repatriation Commission (supra) and the Applicant’s subjective description of the effect upon him. None of the three incidents submitted could be regarded objectively as having that degree of intensity similar to the examples and which might be expected to be the cause of the dysfunction or disability claimed over 40 years later.
48. Having considered the legal tests in both SoPs to be applied to the statutory provisions, and my conclusion outlined above about the facts involved, I find that the incidents submitted are not of the level of severity to determine that the anxiety condition has been caused by the events which occurred during operational service, having regard to both relevant SoPs. There is a temporal connection, however, the causal connection is not established, given the evidence of Dr Anderson and the independent assessment of the severity of the incidents compared with the requirements of the SoP.
Depression
49. I have considered the statutory and case law outlined above in my assessment of the claim for depression also. The SoPs involved are as follows:
·No. 27 of 2008 (and with a right of reconsideration of the matter under No. 17 of 2007 if the Applicant is unsuccessful under the later SoP).
50. Under SoP No. 27 of 2008, there must be shown to be clinical onset within five years of a Category 1A stressor or Category 1B stressor; or alternatively, onset of depression within one year of a Category 2 stressor.
51. I have already found that the incidents concerned do not satisfy the definitions of a Category 1A, 1B or Category 2 stressor. Nor do they satisfy the definition of “severe psychosocial stressor” in the former SoP. The causal relationship with depression is also not established therefore in relation to this condition. In any event, the diagnosis of depression was made to be effective from 1984, which is well outside the timeframes specified by the SoP. I have noted also the comments of Dr Siller. In addition, I note the comments of Dr Anderson who indicated that at the time he saw Mr Guilford, that this was somewhat contemporaneous with the Applicant having lost significant sums of money from his business investments. That would appear to have had a contributory effect. Considering the assessment of those claims as a whole, I find the claim for depression is not satisfied on the basis of any temporal or causative link to the three incidents raised as part of the period of operational service and as defined by the relevant SoPs.
issue two – is mr guilford entitled to the special rate of pension?
52. This claim refers to whether Mr Guilford satisfies s 24 of the Act. The purpose of that provision was explained in the second reading speech of the Acting Minister who introduced this legislation into the Federal Parliament in the Repatriation Legislation Amendment Bill 1985. There, the Acting Minister said that the legislation:
“… was designed for severely disabled veterans of a relatively young age who could never go back to work and could never hope to support themselves or their families or put away money for their old age. It was never intended that the TPI rate would become payable to a veteran who, having enjoyed a full working life after war-service, then retires from work possibly with whatever superannuation or other retirement benefits are available to the Australian workforce[14].
…
If a person has had the usual span of a working life or has retired voluntarily or has left employment for reasons other than accepted disabilities a TPI pension is not payable[15].”
[14] Repatriation Legislation Amendment Bill, 16 and 17 May 1985 at 2646.
[15] Repatriation Legislation Amendment Bill, 16 and 17 May 1985 at 2647.
53. In terms of the legislation, the case for the Applicant is –
(1)That the Applicant was under 65 years of age at the date of the application (s 24(1)(aab));
(2)That he has greater than 70% disability pension from war-caused injuries (s 24(1)(b));
(3)That he is prevented from continuing to undertake remunerative work that the Veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity (s 24(1)(c)); and
(4)That s 25 does not apply to the veteran (s 24(1) (d)).
54. It is not in dispute that Items 1, 2 and 4 above are satisfied in this case. Section 24(2A) does not apply as the veteran has not turned 65 years of age. The only question remaining is whether Mr Guilford satisfies s 24(1) (c) i.e. Item 3 in paragraph 53.
55. To satisfy s 24(1) (c), the provisions of s 24(2) must be applied. These are -
1.Section 24(2)(a) – this prevents a veteran from recovering under s 24(1)(c) if:
(1) he ceased work for reason other than his war-caused incapacity; or
(2)he is prevented from working for a reason other than his war-caused injury.
AND
(ii)Section 24(2) (b) – he has not been engaged in remunerative work but he has been genuinely seeking to engage in remunerative work and the incapacity is the substantial cause of inability to obtain remunerative work.
56. A question arises in relation to the above provisions as to whether there is a requirement to satisfy s 24(2) (a) and s 24(2) (b)? In relation to that question, there is some authority that both requirements are not required ie. the “and” is not to be read conjunctively[16]. I have adopted that as the correct interpretation and also as there is a general rule of statutory interpretation that where two provisions joined by “and” can be viewed as operating independently of each other, the “and” should be read as a hendiadys, or, in other words, not conjunctively. Therefore, in order to succeed, both 24(2) (a) and 24(2) (b) need not be satisfied.
[16] Re Hornery and Repatriation Commission (1998) 52 ALD 332.
57. The Applicant’s position is that the claim for the special rate of pension rests separately on the ‘alone’ test. That is, the special rate claim should be viewed as being independent of the claim for the psychiatric conditions. The Applicant however, says this independent claim for psychiatric condition supports the separate claim for special rate of pension.
58. The Respondent says the special rate claim should be viewed as being integral with the claimed conditions of a psychiatric nature. The Respondent’s position also is that if the conditions of anxiety and/or depression are upheld by the Tribunal, then the Respondent will concede that the assessment claim (special rate) must succeed, but not otherwise.
59. The evidence of Dr McCombe is that Mr Guilford ceased work because of his peripheral neuropathy. I note peripheral neuropathy is a condition accepted as being related to his war-service. It is contended for the Applicant that it is his neuropathy that has adversely affected his mental health, which was aggravated by psychosocial stressors the Applicant experienced during his operational service.
60. I have already found that the psychosocial stressors raised are not sufficient to satisfy the SoPs for anxiety or depression. But the fact that the neuropathy has been accepted as a war-caused condition and medical evidence is that Dapsone is the drug prescribed during his naval service and is related to the causality of peripheral neuropathy, the question arises as to whether the anxiety condition is merely incidental to peripheral neuropathy, or whether it is a separate condition which mitigates against satisfying the ‘alone’ test.
61. The statutory test for s 24(1) (c) is whether the Tribunal could be satisfied that the war-caused injuries alone prevent him from undertaking remunerative work and if so, whether he is also suffering a loss of salary or wages as a result.
62. The questions to be answered for the statutory test of s 24(1)(c) have been outlined by the Full Court of the Federal Court of Australia in Flentjar and Repatriation Commissioner[17]:
“(1)What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1) (c) of the Act?
(2)Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
(3)If the answer to question (2) is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
(4)If the answers to questions (2) and (3) are in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary or wages or earnings on his own account that he would not be suffering if he were free of that incapacity?”
[17](1997) 48 ALD 1 at 2.
63. In relation to question (1) in Flentjar’s case, the “remunerative work” which Mr Guilford had previously undertaken refers to work generally rather than specifically[18]. Given his age and range of employment, in my view, the kinds of “remunerative work” might be regarded as relevant are occupations involving work as a cook and other more general managerial and operational roles in the hospitality and retail industries.[19]
[18]Banovich v Repatriation Commission (1986) 69 ALR 395.
[19]Repatriation Commission v Butcher [2007] FCAFC 36; (2007) 94 ALD 364.
64. In relation to question (2) of Flentjar, I accept, based on the report of Dr McCombe, that Mr Guilford is no longer capable of continuing to undertake that work. I also accept her evidence that any future work he could do would have to be sedentary work.
65. In relation to question (3) of Flentjar, the relevant question here is: Is the Applicant prevented from continuing to undertake remunerative work only because of his accepted war-caused injuries? The Tribunal must look at the intention of the legislation but also look at the facts “with an eye to reality, and as a matter in respect of which common sense is the proper guide”[20].
[20]Cavell and Repatriation Commission (1988) 9 AAR 534 at 539.
66. Mr Guilford is currently under 65 years of age and was therefore also under 65 years at the time of his application. The ‘alone’ test in s 24(1) (c) is modified by s 24(2) (b) where he has not been engaged in remunerative work but can show he has been genuinely seeking to engage in remunerative work. But the fact that he has not been seeking work for the past three years is not critical. This is because the matters in s 24(2) (b) are not preconditions or essential conditions for entitlement, but are “ameliorating provisions”[21]. To require those who are permanently incapacitated to pursue work would not be realistic[22]. In such a case, the ‘alone’ test is to be reformulated as the “substantial cause” test. This means that the “war‑caused” injury must be shown to be either the main or “substantial cause” of the inability to obtain work or the “operative factor” which, more than any other, explains it[23]. That this is the approach intended by Parliament was confirmed in Re Hornery and Repatriation Commission[24].
[21] Re Harris and Repatriation Commission (1998) 51 ALD 789 at 790-792 per Spender J.
[22]Hall and Repatriation Commission (1994) 33 ALD 454 per Spender J.
[23]Fox v Repatriation Commission (1997) 45 ALD 317 at 319-320.
[24](1998) 52 ALD 317.
67. At the original hearing and at a resumed hearing, there was some argument put by the respondent that the recognition of the applicant’s Peripheral Neuropathy as being “war-caused” was accepted for different reasons or recognised on a different basis to the facts presented here. He said there is power to re-open the facts underlying the earlier condition where a previous decision is a building block to a later claim or condition[25]. There was a dissenting view by Spender J, in Langley relying on a principle established by the High Court in Repatriation Commission v O’Brien[26]. The applicant’s counsel submitted there was not a power to re-examine the decision in an earlier decision which granted pension for a “war-caused” injury or disease unless it is a new condition. Counsel argued there is no fresh condition here and no other condition “hangs off” peripheral neuropathy.
[25]Langley v Repatriation Commission (1993) 115 ALR 51 per Lockhart and Beazley JJ.
[26](1985) 155 CLR 422.
68. An examination of Langley’s case shows the majority judgement was based on a minority judgement of the High Court of Australia in O’Brien (supra). But the majority in Langley made it clear that a Court or Tribunal “...cannot review the earlier determination; but it may consider afresh the facts which underpinned the earlier determination…”[27] in order to determine a later claim for a different condition, albeit that it is based on the same facts as the earlier determination. For example, there could be a challenge and reversal of an earlier decision under s 31 of the Act, in clear or exceptional cases. But essentially, the findings of the Court in Langley is not fundamentally different from the principle espoused by the majority of the High Court in O’Brien, in that the facts of an earlier case can be looked at in determining a later claim for a different condition (that is, a new condition), but not to review the earlier determination artificially[28]. Their Honours did go on to comment “…it will be rare for the Commission to re-examine the facts that underpin that determination unless it perceives some clear error”. In my view, the issue here is not to determine a new condition for the purpose of s 24. The condition has been accepted. There is no evidence of a “clear error”. It is merely a question of whether the applicant now qualifies as being pensionable at the special rate because he is totally and permanently incapacitated due to war-caused injuries, and that he has not ceased work for a reason not connected with war-caused injuries (s 24(2)).
[27] Langley v Repatriation Commission (1993) 115 ALR 51 at 58.
[28] Lockhart and Beazley JJ at 58.
69. Based on the evidence, I proceed on the basis that the condition of peripheral neuropathy is war-caused and is the primary condition. I have taken account of the authorities relevant to s 24(2)(b), the evidence of Dr McCombe as well as the fact that the earlier Dapsone treatment prescribed while in the RAN has been a significant contributor to peripheral neuropathy. I find that a realistic view is that the peripheral neuropathy is a major cause of Mr Guilford ceasing work. There is evidence that the present anxiety and depression are secondary conditions to peripheral neuropathy, which in turn has its etiology in Dapsone, the drug treatment associated with the applicant’s skin disorders. That drug regime was prescribed whilst the applicant was in the RAN as a result of skin conditions which he had before, during and after operative service.
70. It is not enough to show that Mr Guilford was prevented from continuing to work because of war-caused injuries or disabilities. The critical question is whether, at the date of application for special pension, the applicant complied with the requirements of s 24(1) (c) of the Act[29]. This is because assessment of claims is undertaken based on “the assessment period” (s 19(5C) which commences on the date of application (s 19(9)).
[29] Repatriation Commission v Braund (1991) 23 ALD 591.
71. Do those conditions disentitle Mr Guilford to the special rate of pension because the alone test could not be satisfied? The central consideration here is the “alone” test in s 24. The Applicant’s case is that the Tribunal should find in his favour and the causation of the peripheral neuropathy (a war-caused condition) is sufficient even if the anxiety condition was also a factor and whether or not it was wholly or partially a non war-caused condition.
72. As was stated in Forbes v Repatriation Commission[30], the words in the first limb of s 24(1) (c) as to whether a veteran has been prevented from continuing to work, “… can only be answered by reference to all the circumstances in which the war-caused condition exists. The fact that a non war-caused condition is not alone causative of such preventive effect does not prevent it having that effect in combination with the war-caused condition.”
[30] Forbes v Repatriation Commission (2000) 171 ALR 131 at 138.
73. It was also said in that case that even where a war-caused condition is “by far and away the more dominant of the causes”, the presence of a non war-caused condition “… will deny to a veteran the qualification for the special rate of pension”, except for the operation of the ameliorating provisions in s 24(2) (b)[31]. Therefore, a disqualifying circumstance is not that a condition prevented the veteran from continuing to work but that it was not that condition alone which prevented the veteran from continuing to undertake remunerative work.
[31] Forbes v Repatriation Commission (2000) 171 ALR 131 at 138.
74. The Tribunal must as part of its task, resolve either conflicts in or apparent crossover of evidentiary effects in the medical evidence, as far as is reasonably possible. In such circumstances, I am also obliged to be mindful of s 119 of the Act and to act according to substantial justice and the substantial merits of the case: s 119(g) and s 119(h).
75. The evidence of Dr Anderson indicates that the psychiatric condition alone would have prevented Mr Guilford from working now “and, also, going back to when he ceased work in January 2005”. He then attributed the majority of the incapacity being due to peripheral neuropathy and in comparison to the psychiatric conditions, he said he would attribute them as “80/20 or 90/10” respectively. I accept that evidence in relation to the conditions of peripheral neuropathy and co-morbid mood disorders consequent upon the condition of peripheral neuropathy. That is, for the purpose of the ‘above’ test, I regard the psychiatric conditions as incidental to Peripheral Neuropathy and not separate conditions which would negate the ‘alone’ test being satisfied.
76. If that was all the evidence, then I would accept, without anything further, that the peripheral neuropathy was the substantial cause for all practical purposes. But there was something further – the Applicant gave evidence before the Veteran’s Review Board in February 2008 that his son was ill at the time he ceased working and that his son passed away some four (4) months later. The evidence there showed that his son’s condition “was another reason he gave up work”[32].
[32] Exhibit 2, T2, Folio 8 at paragraph 20.
77. Such a significant event clearly made an impact on Mr Guilford. That is understandable but the Applicant’s earlier evidence to the Repatriation Commission was not discussed at this Tribunal’s hearing. It was not raised by the Applicant or the Respondent. At the resumed hearing, the Applicant’s Counsel indicated she had received no instructions on this aspect of evidence.
78. The effect of this aspect of evidence is to impact on the weight of the other evidence submitted and accepted by the Tribunal. It is an application of the rule in Jones v Dunkel[33]. The rule is that the evidence left unexplained may, although there is no compulsion on the Tribunal, lead to an inference that the uncalled or un-ventilated evidence would not have assisted the applicant’s case[34].
[33] (1959) 101 CLR 298
[34] Brandi v Mingot (1976) 12 ALR 551 at 559-560.
79. The rule cannot permit an adverse inference where a witness not called or the evidence not given is remote from the parties to the action; or is privileged information. Other less direct or relevant reasons may also preclude an adverse inference being drawn such as, where a witness might merely give cumulative or confirmatory evidence, except where there may, for example, be an improper motive[35]. But the failure of either party to ask the applicant questions in relation to this aspect does not exonerate a failure by the other party, although competing inferences might arise[36].
[35] Cubillo v Commonwealth of Australia (2000) 103 FCR 1 at [360].
[36] Brandi v Mingot (1976) 12 ALR 551 at 560.
80. The evidence of which the applicant was neither examined in chief nor cross examined was provided by the applicant at the appeal before the Veteran’s Review Board. The only ‘gap’ in this evidence is that neither the applicant nor the respondent provided any evidence to assist in the Tribunal’s resolution of an inference which may arise adverse to the applicant[37].
[37] per Jones v Dunkel (supra).
81. It is central to the issue of the ‘alone’ test here and is directly relevant to the anxiety and depression which was contemporaneous with the peripheral neuropathy, but was unrelated to any war caused condition. The standard of proof required in respect of the special rate of pension must be to the reasonable satisfaction of the Tribunal. In civil matters, the probative value of the evidence required may vary according to the seriousness of the consequences. As was stated by Sir Owen Dixon, “The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal”[38].
[38] Briginshaw v Briginshaw (1938) 60 CLR 336.
82. Relevantly, Mr Guilford ceased work on medical grounds on 7 February 2005. His son was ill at that time and subsequently passed away in June 2005. He told the Veterans Review Board in February 2008 that that “...was another reason he gave up work. That was in addition to his peripheral neuropathy which also contributed to his ceasing work. Peripheral Neuropathy was related to operational service. Ceasing work because of his son’s death was not related to operational service. Having heard and considered all of the evidence as a whole, I find that the inference to be drawn is that this was another substantial cause for his ceasing work. Therefore, the ‘alone’ test is not ultimately satisfied owing to the presence of this additional significant factor (s 24(2) (a) (i)). Therefore, s 24(1) (c) is not satisfied.
83. Question (4) in Flentjar’s case deals with the second limb of s 24(1) (c). That requires me to determine whether the Applicant is suffering a loss of salary or wages as a result of his war-caused injuries alone that he would not have suffered other than for his war-caused incapacity. This is intended to be a practical assessment of whether the Applicant has incurred a real loss of remuneration. In the final analysis, I have found that Mr Guilford did not cease work because of war-caused injuries alone. As s 24(2) (a) (i) is satisfied, a veteran cannot satisfy the second limb of s 24(1) (c).
84. Consequently, given my findings in relation to questions 3 and 4 of Flentjar, the applicant does not qualify for the special rate of pension.
85. I therefore determine:-
1.The decision in relation to the claims for anxiety and depression is affirmed;
2.The decision in relation to the claims for special rate of pension is affirmed.
I certify that the 85 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy RFD, Senior Member
Signed: ..................[Sgd]..........................................................
Elizabeth Young, Research AssociateDate/s of Hearing 25 July 2008
Date of Decision 24 October 2008
Counsel for the Applicant Ms Carolyn Conway
Solicitor for the Applicant Mr John Cockburn
Solicitor for the Respondent Mr Jeff Kelly, Departmental Advocate
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