Harrington and Military Rehabilitation and Compensation Commission
[2005] AATA 384
•29 April 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 384
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2002/1335
GENERAL ADMINISTRATIVE DIVISION ) Re James Harrington Applicant
And
Military Rehabilitation and Compensation Commission
Respondent
DECISION
Tribunal Senior Member Joan Dwyer
Ms Regina Perton, Member
Associate Professor John Maynard, MemberDate29 April 2005
PlaceMelbourne
Decision 1. The Tribunal varies the reviewable decision made 12 November 2002 to provide that the decision made 9 July 2002 is revoked.
2. The Tribunal orders pursuant to s 67(8) of the Safety, Rehabilitation and Compensation Act 1988 that the applicant’s costs of this proceeding be paid by the respondent.
[sgd] Joan Dwyer
Senior Member
WORKERS’ COMPENSATION – paranoid schizophrenia – determination made 4 May 1978 that Commonwealth liable to pay compensation in respect of aggravation of paranoid schizophrenia until a date to be determined – determination ceasing payment of compensation made 9 July 2002 – whether Tribunal has jurisdiction to consider whether applicant suffered an injury arising out of or in the course of his employment or due to the nature of his employment – reviewable decision did not expressly revoke primary determination of 4 May 1978 therefore Tribunal’s powers are confined to reviewing the reviewable determination – question for Tribunal is whether it is persuaded that by relevant date one of the entitling circumstances had ceased to exist – medical evidence not persuasive on that issue – reviewable decision varied to provide determination of 9 July 2002 revoked – decision under review varied.
PRACTICE AND PROCEDURE – concurrent medical evidence – Tribunal requesting document omitted from T‑documents.
Comcare v Moon (2002) 75 ALD 160
Commonwealth v Borg noted at (1994) 20 AAR 299 (15 November 1991)
Langley v Repatriation Commission (1993) 115 ALR 51
Power v Comcare (1998) 56 ALD 141
Repatriation Commission v O’Brien (1984) 58 ALR 119
Treloar v Australian Telecommunications Commission (1990) 97 ALR 321
Commonwealth Employees’ Compensation Act 1930, ss 4(1), 10(1)
Compensation (Commonwealth Government Employees) Act 1971
Military Rehabilitation and Compensation Commission Act 2004
Safety, Rehabilitation and Compensation Act 1988, ss 14, 19, 62, 124Veterans’ Entitlements Act 1988, s 31
REASONS FOR DECISION
29 April 2005 Senior Member Joan Dwyer
Ms Regina Perton, Member
Associate Professor John Maynard, Member
1. This is an application under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) for review of a reviewable decision made 12 November 2002 (T29), which affirmed a decision made 9 July 2002 (T26), that the Commonwealth was not liable to pay compensation to Mr Harrington in respect of paranoid schizophrenia, and that payments would cease from 9 July 2002. Compensation had been paid since 11 May 1978 pursuant to a determination made under the Commonwealth Employees’Compensation Act 1930 (“the 1930 Act”), which determined that Mr Harrington had sustained a personal injury “namely aggravation of a pre-existing condition of paranoid schizophrenia” in compensable circumstances, and that Mr Harrington was entitled to weekly payments of compensation “until a date to be determined by the Commissioner or his Delegate”. The reviewable decision of 12 November 2002 was based on a finding that the effect of Army service had ceased to contribute to the paranoid schizophrenia. Mr Harrington, by his representative, seeks reinstatement of his entitlement to compensation under the 1978 determination, from 9 July 2002.
2. The primary determination and the reviewable decision were made within the Department of Veterans’ Affairs (“the Department”) by Delegates under the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”). However, from 1 July 2004, the administration of all defence-related compensation claims was transferred to the Military Rehabilitation and Compensation Commission (“the MRCC”), established by the Military Rehabilitation and Compensation Commission Act 2004. The Act was amended to provide, in ss 140-159, for the transfer to the MRCC of the administration of existing defence-related compensation claims. Section 144(3) of the Act provides that the MRCC replaces Comcare as a party to relevant proceedings.
3. Mr Ferwerda of Counsel appeared for Mr Harrington, instructed by the State Trustees. Mr Lenczner of Counsel appeared for the MRCC. The Tribunal had before it the documents lodged (“the T‑Documents”) pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”), and the exhibits tendered during the hearing. One of the documents included in the T‑ documents was a report obtained by the Commonwealth Department of Health from Dr Freed, a psychiatrist, after the compensation claim was lodged. In the course of preparing its decision, the Tribunal noticed that Dr Freed’s report, as included in the T‑documents (T11, p31-2), was incomplete. The questionnaire filled in by Dr Freed, and referred to by him in his report of 13 December 1977 was missing. The Tribunal arranged for a letter to be sent on 6 April 2005 to the respondent, copy to the applicant, asking for the missing document.
4. On 20 April 2005, the Tribunal received a letter by facsimile from the respondent’s solicitors as follows:
We refer to your letter dated 6 April 2005.
Please find enclosed copies of the following:
1Questionnaire completed by Dr Freed and referred to in his report dated 13 December 1997 [sic]; and
2Explanatory statement referred to in the above questionnaire.
Unfortunately, the above documents were inadvertently omitted from the Tribunal documents prepared for the purposes of the application.
We would be pleased if the Tribunal would list the matter for telephone directions hearing to discuss the further documents and their relevance to the issues before the Tribunal.
Please do not hesitate to contact the writer if you have any queries.
The questionnaire and explanatory statement were added by the Tribunal to the T‑documents as T11 pp32(a), (b) and (c).
5. The Tribunal held a telephone directions hearing on Friday 22 April 2005 at which Mr Lenczner requested that the matter be reopened so that Dr Freed could be questioned. The reason given for that request was said to be that the opinions expressed by Dr Freed in the questionnaire were not supported by reasons. The Tribunal refused that request.
6. Because of his paranoid schizophrenia, Mr Harrington was not able to give evidence. His sister, Mrs Boland, gave evidence. Medical evidence was also given by four psychiatrists. It was intended that the medical evidence be given concurrently by all four medical witnesses, but there were time constraints which meant that not all the psychiatrists could hear all the evidence of the other psychiatrists. Dr Sale, who lives in Tasmania, gave evidence over the telephone.
7. Dr Ryan was Mr Harrington’s treating consultant psychiatrist at the Bendigo Psychiatric Centre from May 2002, when she commenced with the Bendigo Health Care Group, (“the Group”), until his care was transferred to another psychiatrist who joined the Group, and took over the care of some of the patients. Dr Ryan said she had only examined Mr Harrington twice, although she had his full clinical file. She explained that in a busy public psychiatric centre in a rural area, much of the clinical supervision of patients is performed by case managers, who provide a longitudinal history and discuss management issues with the treating consultant psychiatrist.
8. After she had completed her evidence, Dr Ryan asked if she could leave the hearing, rather than stay to hear the evidence of her psychiatric colleagues. She explained that she is one of the very few psychiatrists in a large community psychiatric service, and her attendance at the hearing “leaves a lot of teams without access to a psychiatrist”. The Tribunal recognised the greater need of those teams and excused Dr Ryan on the basis that we would continue her evidence by telephone if that became necessary.
9. Dr Epstein saw Mr Harrington, accompanied by his sister Mrs Boland, for the purpose of providing a medico-legal report and giving evidence. He was present at the Tribunal for the whole of the medical evidence. He wrote two reports (A2 &A3), the second after reading additional material, including the parties’ Statements of Facts and Contentions.
10. The respondent made the primary determination of 9 July 2002 after receiving a report dated 17 June 2002 from a psychiatrist, Dr Sale (T25). Although Dr Sale lives in Tasmania, he comes to Victoria to examine and assess applicants in compensation matters, in order to provide medico-legal reports for “Medico Legal Consultants of Australia”. Dr Sale, in his report (T25), expressed the opinion that Mr Harrington’s employment in the Army contributed “less than 10%” to the contraction or aggravation of his paranoid schizophrenia, and that it was no longer making a material contribution to the current condition. Dr Sale was on the telephone during the evidence of the other psychiatrists.
11. Professor Burrows had not seen Mr Harrington, but had read the T‑documents, the parties’ Statements of Facts and Contentions and the reports of the other three psychiatrists. He had been sent three folders of records of the Group including psychological records. He had not seen the statements of Mr Harrington’s sister, Mrs Boland, and his cousin, Mr Cleeve, before giving evidence, but he read them while giving evidence.
BACKGROUND FACTS
12. On 17 July 1968, Mr Harrington joined the Royal Australian Army (“the Army”) as a National Serviceman. His service was uneventful until January 1970. Mr Harrington passed all components of his basic training with marks of pass, skilled or efficient, except for “Standing… Applied Marksmanship” which he failed. However, his overall physical and military performance gradings were “good”.
13. Mr Harrington attended a trade course as a clerk from 27 October 1968 to 28 February 1969. His overall report was “A willing worker who found difficulty with some aspects of the course”.
14. Apparently Mr Harrington’s performance must have improved after he completed the clerk’s training course. He performed higher duties as a Corporal for two periods in 1969, the second was from 5 April to 27 May 1969. By September 1969, Mr Harrington had scraped through a course designed to qualify selected candidates in one of the subjects required for promotion to Corporal and Sergeant (T30, p133).
15. On 9 January 1970, Mr Harrington presented to an Army medical in Townsville. He presented again on 10, 13 and 16 January 1970. The clinical notes of those visits are not easy to decipher, but appear to state (T31, pp170-1):
10.1.70 V. shaky and wants to see Psychiatrist.
Valium mgs 10 given Tds [three times daily] 12 hrs prior to seeing him.
Now a bit less shaky.
Everyone talks about him.
Was like this before but not as bad.
Has dreams about people dying.
Not doing work properly.Wants to be by himself all the time.
P.D [provisional diagnosis] Schizophrenia
Dr Richards Largactil mgs 100 … 6hs
.
13.1.70 Much better.
Awaiting Dr Richards.
16.1.70 Florid Schizophrenia. For transport south.
IHT
Increase Largactil to 600 mg/d
Summary: Florid Schizophrenia with Paranoia
Assessed by Psychiatrist as unfit for Duty and unfit for Discharge. For transfer south and further Rx [treatment]
Now on Largactil mgs 600 / per day
16. On 17 January 1970, Mr Harrington was admitted to a psychiatric ward at the Royal Brisbane Hospital, where he remained for two weeks. He was diagnosed as suffering “Acute neurotic reaction with ideas of reference … condition likely to recur under stressful circumstances” (T31, p172).On discharge from the Royal Brisbane Hospital, Mr Harrington was transferred back to One Military Hospital, Yeronga. He was returned to his unit on 9 February 1970, “Fit only for very light duties” (T30, p141).
17. The earliest detailed medical reports are Dr Richards’ report of 15 January 1970 (T31, pp179-80) and Dr Carter’s summary of the admission to the Royal Brisbane Hospital dated 2 February 1970 (T31, pp181-2).
18. Dr Richards wrote (T31, pp179-80):
This 21 year old Signaller states that he had always been scared of going to Vietnam, of killing and being killed. He is sure that he talks in his sleep and that over the last six months his mates and associates know of his convictions “I think the chaps might get together and fix me up – I’ve heard them speaking about it – they say I’m mental and all that sort of thing”. He heard the woman Welfare Officer say to three female colleagues “He’s scared to go to Vietnam.” He can’t face people in the mess and wants to be out of the way – sent down to Southern Command Headquarters because “I know they are all talking about me in the Mess, and I can’t even eat with the others.” Even the conductor on a train some months ago gestured to a woman passenger implying by this “He talks in his sleep and he’s a nut.”
Harrington has always been a rather anxious, worrying fellow, but there is no history of prior breakdown and there is no family history of mental illness. He is an average drinker and may drink 10 or 12 beers one or two nights a week together with a weekend session. He had a reasonable home background and passed his Victorian Intermediate Certificate.
He suffers a florid Paranoid Schizophrenia which remains active despite 400 mgms. Largactil daily. He is not fit for duty and not fit for discharge at present, and requires urgent transport south with escort, to a suitable treatment unit. He will require E.C.T. and further phenothiazine therapy prior to discharge from the service.
19. Dr Carter wrote (T31, pp181-2):
1.The above patient was referred from the One Military Hospital with the diagnosis of acute paranoid schizophrenia. He was referred by Dr W Richards with the diagnosis to the One Military Hospital, Yeronga.
2.The history of the patient’s illness accompanying him from Townsville stated that this signaller had always been scared of going to Vietnam, of killing and being killed. He gave a history of talking in his sleep, and revealing this fear of going to Vietnam in his sleep, and as a consequence some of his mates and some of the domestic staff confronted him with this fear of his of going to Vietnam, and indicated to him that they thought he was weak. The patient interpreted this in the light that they must think that he was going mad because he was not reacting like the rest of the blokes. He therefore felt unworthy and would sit alone in the dining room.
3.No family history of psychiatric disorder.
4.Patient was born in Bendigo on 10/6/48. He states that he was always scared of the dark. He passed Intermediate and was an average student. He joined the Commonwealth Bank as an Exchange Clerk at 15 years and was working there until he joined the Army. He likes fishing also.
5.Patient had a motor vehicle accident about 4 years ago and was knocked out. He was out of hospital in 2 weeks.
6.On admission the patient was noted to be anxious, spontaneous and congruous. He had some insight into his disorder.
7.V.D.R.L. –ve Chest film – abnormal left first rib. Normal skull x-ray. B.Urea and S.Electrolytes – normal. Hb. and Smear – normal. Psychological Testing – equivocal.
8.Patient was initially treated with tabs. Largactil 100 mg. t.d.s. and did not settle. He was then changed to tabs. Valium 1 gid. on which he settled very well. He was discharged on tabs. Valium 5 mgms. 1 tds.
9.Acute neurotic reaction with ideas of reference.
10.Recurrences likely under stressful circumstances.
11.Transferred back to One Military Hospital, Yeronga.
20. Mr Harrington was discharged from the Army on 16 July 1970 at the end of his two year period of National Service. The discharge certificate makes no mention of any medical condition (T30, p134).
21. After discharge Mr Harrington had difficulty holding down a job, although prior to his enlistment he had worked for a bank for five years (T30, p150).
22. His sister, Mrs Boland, said in her statement (A4), that following discharge from the Army she found her brother to be a very different person. She said “He had become difficult to get along with. In some respects I became frightened of him. I had never felt that way before his enlistment” (A4).
23. There is no dispute about the fact that at the time of the hearing, and ever since his Army service, Mr Harrington has suffered from paranoid schizophrenia, which has totally incapacitated him for work.
24. On 27 September 1976, Mr Harrington lodged a claim for compensation in respect of his schizophrenia (T9, p28-29). In his accompanying letter, Mr Harrington wrote that he believed his National Service was responsible for his condition. He wrote that he was “in two minds whether or not the occupation of Vietnam was right”, and that he was scared of being transferred to Vietnam and being killed. He added, “I carried these thoughts and worries with me for eighteen months, until finally I broke down” (T10, p30).
25. The Commissioner requested a report from Dr Freed, a psychiatrist, who examined Mr Harrington on 13 December 1977. He provided a report of that date and also completed a questionnaire. The questionnaire and Dr Freed’s answers were as follows:
COMPENSATION (COMMONWEALTH GOVERNMENT EMPLOYEES) ACT 1971
Ex Sig. J.B. HARRINGTON
Examination and Report by Medical Referee (Psychiatrist)
1.From what condition did/does the employee suffer?
Paranoid schizophrenia.
2.On the balance of probability (as distinct from possibility), was/is the condition due to:-
(a)an incident of the employment and, if so, what was that incident?
Pressures and stress of Army Service in 1970 as perceived by the above-named.
(b)aggravation of a pre-existing condition by an incident of the employment and, if so, what was that incident?
Yes. Presumed antecedent personality disposition of schizoid type.
(c)the nature of the employment (see paragraph 2(a) of the explanatory statement attached)?
(d)aggravation, acceleration or recurrence of disease due to the nature of the employment (see paragraph 2(b) of the explanatory statement attached)?
Yes. In part.
(e)the natural progression of some pre-existing or underlying condition?
Yes.In part.
(f)some other factor and, if so, what was that factor?
3.If question 2(c) and 2(d) is answered in the affirmative, to what particular aspect of the employment is the condition attributed?
Army Service during the Vietnamese War perceived by the above-named as emotionally threatening.
4.(a) If causation or aggravation is conceded, were the effects of a permanent or temporary nature?
Permanent.
(b)If temporary, when would it be reasonable to assume that the effects of such temporary causation or aggravation ceased?
5. Is any and what form of treatment indicated?
The above-named is currently receiving treatment at Bendigo Psychiatric Centre.
6.What restrictions, if any, are imposed on the employee’s capacity for employment, as a result of his condition?
The above-named allegedly receives sickness benefits and is quite likely, in my opinion, to remain permanently unemployable. [emphasis added to answers by Dr Freed]
26. On 4 May 1978, a Delegate of the Commissioner for Employees’ Compensation (“the Commissioner”), under the 1971 Act, determined (T12, p33):
(1)On the evidence before me I find that the aggravation of a pre-existing condition of paranoid schizophrenia suffered by the said James Bernard HARRINGTON constituted a personal injury arising out of or in the course of his employment by the Commonwealth within the meaning of Section 10 of the Commonwealth Employees Compensation Act 1930 as amended.
(2)Now therefore, in pursuance of the provisions of the Compensation (Commonwealth Government Employees) Act 1971, as amended, including Sections 4(2) and 104(1) of that Act, I hereby determine:
(a)The said James Bernard HARRINGTON sustained personal injury namely aggravation of a pre-existing condition of paranoid schizophrenia in circumstances under which the Commonwealth would have been liable to pay compensation under the Commonwealth Compensation Act 1930, as amended, and the Commonwealth is therefore liable to pay compensation in respect of the injury in accordance with the provisions of the Compensation (Commonwealth Government Employees) Act 1971, as amended.
(3)In accordance with section 45(2) of the Compensation (Commonwealth Government Employees) Act 1971 as amended and section 104(8) of that Act, he is entitled to payment of compensation of $80 per week from 11 May 1978 until a date to be determined by the Commissioner or his Delegate.
27. Over the years from 1978 to 2002, further psychiatric reports were obtained by the Commissioner from treating psychiatrists, on 2 April 1992 (T14, p37), 21 November 1994 (T17, p42) and 21 February 1997 (T18, p43). Mr Harrington continued to be paid compensation under the determination of 11 May 1978, until the making of the primary determination on 9 July 2002, which was affirmed by the reviewable decision.
28. The primary determination and the reviewable decision were based on Dr Sale’s report. On 16 May 2002, a comprehensive case summary had been sent to Dr Sale. He was asked for a general opinion as to the origin and aggravation of schizophrenia and, in respect of Mr Harrington, an opinion as to whether or not “the effects of any aggravation due to Army service have (after some 32 years) been exhausted or overtaken by the natural course of the disease” (T23).
29. As already explained, Dr Sale interviewed and examined Mr Harrington and read the available records. He concluded (T25, p62):
I can see no connection between his mental illness and his military service.
In relation to stressful live events and their link with schizophrenia – research has established that major life events can precipitate schizophrenia in someone who is already predisposed to develop the illness at some stage. In other words, if a stressful event occurs that is seen as linked to the onset of schizophrenia, it is believed that this stressful event has brought the illness forward in time. Schizophrenia is not uncommon, affecting 1% of the population. The peak age of onset for males is 15-25 years. Therefore, by coincidence alone, a number of men will develop schizophrenia during military service.
In this particular man, there is in any event, no obvious major stressful event. While he appears to have been particularly concerned about Vietnam, some of his concerns were probably a reflection of a deteriorating mental state, e.g. he believed that a train official was signalling by gesturing two passengers about his problem. [emphasis added]
30. Despite Dr Sale’s conclusion that he could see no connection between Mr Harrington’s illness and his military service, the passage emphasised above does provide support for a connection between Mr Harrington’s mental illness and his compulsory National Service, if the National Service is accepted as a “stressful live event”. Similarly, Dr Sale’s conclusion that Army service contributed “less than 10%” to the contraction or aggravation or acceleration of the disease accepts that there was some contribution.
THE LEGAL ISSUES
31. Since Mr Harrington was first diagnosed with paranoid schizophrenia, there have been many changes to relevant compensation legislation. The claim was originally considered when the 1971 Act was in force, but in accordance with the 1930 Act, which was applicable because it was the relevant compensation legislation at the time the condition was first diagnosed.
32. Section 124(1), (1A) and (2) of the Act provide:
Application of Act to pre-existing injuries
(1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
(1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
(2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
…
(b) where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the injury, loss or damage was suffered; or
…
33. As at January 1970, the 1930 Act, in s 4(1), contained the following definition of the word “disease”:
“disease” includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development, and also the aggravation, acceleration or recurrence of a pre-existing disease.
34. Section 10(1) of the 1930 Act provided:
(1) Where –
(a) an employee is suffering from a disease and is thereby incapacitated for work; or
(b) the death of an employee is caused by a disease,
and the disease is due to the nature of the employment in which the employee was engaged by the Commonwealth, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with this Act as if the disease were a personal injury by accident arising out of or in the course of his employment.
35. Thus, under s 124 of the Act, Mr Harrington is not entitled to compensation if compensation was not payable under the 1930 Act. That Act provided that compensation was payable in respect of incapacity for work resulting from a “disease”, which term included “a mental ailment, disorder or morbid condition, whether of shaded or gradual development and also the aggravation, acceleration or recurrence of a disease”, where the “disease” was due to the nature of Commonwealth employment.
36. The determination of 4 May 1978 found liability in respect of the aggravation by Army service of Mr Harrington’s pre-existing paranoid schizophrenia, apparently on the basis of the opinion expressed in Dr Freed’s questionnaire.
37. Although Counsel placed little emphasis on the issue as to the relevance of the determination of 4 May 1978, it is relevant because it affects the way we approach the issues for determination. The continuing relevance of the determination of 4 May 1978 was not challenged in the respondent’s Statement of Facts and Contentions lodged on 4 August 2003. The respondent’s contentions were there set out as follows:
1.The applicant has not suffered from the previously accepted compensable condition, namely aggravation of a pre-existing condition of paranoid schizophrenia (“the condition”) from at least 9 July 2002.
2.Further and/or in the alternative, the employment contribution to the condition ceased from at least 9 July 2002.
3.The respondent is not liable to make weekly payments of compensation to the applicant beyond at least 9 July 2002.
4.The applicant has not reasonably required medical treatment as a result of the condition beyond at least 9 July 2002.
5.The respondent is not liable to make payments to the applicant in respect of medical treatment reasonably required as a result of the condition beyond at least 9 July 2002.
6.The respondent relies upon the opinions of Dr I Sale dated 17 June 2002 (T25).
38. However, on 16 July 2004 the respondent lodged an Amended Statement of Facts and Contentions which added a new Contention 1, as follows:
1.The applicant did not suffer an injury arising out of or in the course of his employment or an injury that was due to the nature of his employment.
2.Further and/or in the alternative, the applicant has not suffered from the previously accepted compensable condition, namely aggravation of a pre-existing condition of paranoid schizophrenia (“the condition”) from at least 9 July 2002.
3.Further and/or in the alternative, the employment contribution to the condition ceased from at least 9 July 2002.
4.The respondent is not liable to make weekly payments of compensation to the applicant as a result of the condition.
5.The respondent is not liable to make payments to the applicant in respect of medical treatment reasonably required as a result of the condition.
6.The respondent relies upon the opinions of Dr I Sale dated 17 June 2002 (T25) and Professor G Burrows dated 5 January 2004.
39. Mr Ferwerda, during the hearing, and not having had the benefit of the opinion expressed by Dr Freed in the questionnaire, identified various aspects of Mr Harrington’s employment which, he submitted, caused or aggravated the paranoid schizophrenia. He said (trans, p10):
[T]he nature of Mr Harrington's service as an army conscript is critical in this proceeding and it is submitted that the nature of that employment included such characteristics as it being an involuntary arrangement in that he was conscripted, the employment involved combat training and the employment involved, for a time at least, the prospect of Mr Harrington being sent into active combat service in Vietnam and of course the attendant prospect that he may have been involved in the killing of other persons or being killed himself.
It is the applicant's case in part that by its very nature Mr Harrington's employment would have had a tendency to cause, or aggravate, or accelerate the disease of paranoid schizophrenia, being a disease which was influenced by the stressors to which Mr Harrington was exposed in that employment.
40. In their closing submissions, Counsel referred to a number of authorities as to the effect of the determination of 4 May 1978. That matter must be resolved before we can identify the issues requiring determination.
41. The Full Court of the Federal Court in Commonwealth v Borg, delivered 15 November 1991, and noted at (1994) 20 AAR 299, explained the duty of the Tribunal where a determination had previously been made finding entitlement to compensation. His Honour Jenkinson J, with whom Sweeney J agreed, said at 307‑8:
The question as to what the function was which the delegate had to perform on 28 July 1988 may be answered in two ways. It might be said that he had to decide whether any of the circumstances upon the existence of which Mrs Borg’s entitlement to compensation at the weekly rate specified in the preceding determination no longer existed on 28 July 1988. Or it might be said that he had to decide whether on 28 July 1988 all the circumstances existed upon the existence of which Mrs Borg’s entitlement to weekly payments of compensation at that time depended. If the former question were the one to be asked he would not make the determination he did make unless he was persuaded that one of those circumstances had ceased to exist. If the latter, he would make the determination he did make unless he was persuaded that all those circumstances existed on 28 July 1988. In that way the identification of the correct question determines what in the case of a curial proceeding would be called the legal (not the evidential) burden of proof…..
I think that the Act required on its proper construction that the delegate should not make the determination he did make unless he was persuaded that one of the entitling circumstances had on or before 28 July 1988 ceased to exist. Section 42 relevantly provided that:
[w]here an injury to an employee results in the employee being totally incapacitated for work….compensation is payable to the employee, during the period of the incapacity, of an amount per week equal to”
an amount calculated in accordance with further provisions of the section. One of the entitling circumstances specified by the section is that the week in respect of which a payment is made should be within the period of incapacity”. Determinations made before 28 July 1988 had established Mrs Borg’s entitlement to payments in all respects except one. Those determinations had not established what the period of incapacity was: the end of the period had been left by the last determination made before 28 July 1988 to be thereafter determined by the Commissioner or his delegate. The expression “the period of the incapacity” is to be understood as meaning the period of that incapacity in which the postulated injury has resulted. In order to fix that period by determination in performance of the function conferred by s 20(1) the delegate must in my opinion be persuaded as to when the time was or will be on which the period has ended or will end. Unless persuaded of that he is not in my opinion authorised by the Act to make the determination he did make, which is a determination that the period of the incapacity in which the injury resulted has ended and that any incapacity existing at the time of the determination is not an incapacity in which the injury resulted. The function of the Tribunal on review is the same.
The same conclusion may be reached by an analogical application to the administrative determination made on 28 July 1988 of the reasoning in Phillips v Commonwealth (1964) 110 CLR 347 and in Commonwealth v Muratore (1987) 141 CLR 296 concerning the curial determinations there in question: cf Minister for Health v Thomson (1985) 8 FCR 213 at 223-224; Casarotto v Australian Postal Commission (1989) 10 AAR 191; Australian Postal Commission v Burgazoff (1989) 10 AAR 296; Australian Telecommunications Commission v Barker (1990) 12 AAR 490. [emphasis added]
42. The determination of 4 May 1978 was in similar form to the previous determination made in Borg. It found that Mr Harrington suffered from paranoid schizophrenia which was aggravated due to the nature of his employment in the Army. It found that the aggravation which, on all the evidence, commenced in January 1970, was continuing as at 4 May 1978 and that Mr Harrington “was entitled to payment of compensation from … until a date to be determined”. There is no question that Mr Harrington is still incapacitated for work as a result of his paranoid schizophrenia. Thus, according to the Full Court analysis in Borg, as explained by Jenkinson J, we must not determine that Mr Harrington has ceased to be entitled to compensation, unless we are persuaded that the aggravation due to the nature of Army service, which was continuing in 1978, had ceased to exist by 9 July 2002.
43. The decision of the Full Court in Borg, as Jenkinson J pointed out, was consistent with a line of High Court decisions on the issue. His Honour did not mention the decision in Repatriation Commission v O’Brien (1984) 58 ALR 119, which arose under veterans’ entitlements legislation, rather than under compensation legislation. However, we must consider that decision because of the emphasis given to it in Power v Comcare (1998) 56 ALD 141, on which Mr Lenczner relied.
44. The issue before the AAT in O’Brien had been whether Mr O’Brien’s hypertension was “attributable to service” on the basis that it was related to an anxiety neurosis, which had been accepted as service related by the Repatriation Board. The matter was referred to the AAT under the Repatriation Act 1920. The AAT held that neither the essential hypertension nor the anxiety neurosis were related to service, thus rejecting the finding of the Repatriation Board as to the anxiety neurosis. On appeal to the Federal Court the decision of the AAT on both issues was overturned. The majority in the High Court (Gibbs CJ, Wilson and DawsonJJ) held that the question of the connection between the anxiety neurosis and war service should not have been considered by the AAT, because the decision granting pension for that condition had never been challenged, and the question was not covered by the referral to the AAT of five decisions, each of which had rejected the claim to have hypertension accepted as service related.
45. Their Honours said in a joint judgment, at 123-4:
In the present case, the reference was confined to the five decisions of the Commission whereby on each occasion the respondent's claim for a war pension based on his essential hypertension was rejected. The decision of a Repatriation Board in November 1961 accepting the respondent's anxiety neurosis as due to war service has never been challenged by way of appeal. The same is true of the decision of a Board in 1970 which raised the assessment of his disability in respect of that neurosis from nil to 20 per cent. Whether or not the Commission considered it desirable to do so, in our opinion it was not open for these earlier decisions to be reviewed and reversed in the course of considering the respondent's claim based on his hypertension. Neither of these earlier decisions were embraced within the reference to the President of the AAT. The AAT therefore had no jurisdiction to review either of those decisions: Administrative Appeals Tribunal Act s 25.
We are confirmed in our acceptance of Mr Grieve's submission by the fact that the Commission makes no response to it by way of reply. Further confirmation is to be found in the statement made by the President of the Review Tribunal when referring the matter to the President of the AAT, a statement which he is obliged to make by s 107 vzzb (7). A paragraph of that statement reads as follows: “The first important principle of general application that arises in this case is whether, on the medical evidence available in this case concerning the relationship between the applicant's accepted disability of anxiety hysteria and the subsequent development of hypertension, the Repatriation Commission, on a review of the case where these elements are present, can be satisfied beyond reasonable doubt that there are insufficient grounds for granting the application”... It follows that the first of the two basic issues which the parties chose to contest in the AAT was misconceived. It was an issue which the AAT had no power to entertain. The real issue was the connection, if any, between the accepted disability of anxiety neurosis and the essential hypertension. It was not suggested by the respondent that there was any other basis on which he could claim his hypertension was attributable to his war service.
This misunderstanding of the matter in issue goes far to undermine the acceptability of the AAT's ultimate decision. If the AAT had accepted, as it was in law obliged to do, that the respondent's anxiety neurosis was attributable to or aggravated by his war service, it would then have been obliged to concentrate its attention on the question of a connection between that neurosis and the hypertension. As it was, having dismissed any relevant relation between the neurosis and his war service, the possibility of a connection between the neurosis and the hypertension became of no importance as a factor supporting the claim for a pension.
46. That would seem to be a strong indication that the issues decided by the 1978 determination are not before us in this matter, however, as Mr Lenczner pointed out the issue is not so straightforward. In Power, Sackville J considered a similar issue. He held that a decision-maker and the Tribunal on review, in determining whether Comcare had a continuing liability to pay compensation for a condition accepted as compensable, did have power to consider whether the condition had ever been causally related to employment. His Honour did not refer to the Full Court decision in Borg, but he did refer to O’Brien and to the Full Court decision of Langley v Repatriation Commission (1993) 115 ALR 51, which distinguishes O’Brien.
47. In Langley, the claim in issue was a claim for diabetes, allegedly brought on by pancreatitis, to be accepted as war-caused. The pancreatitis had been determined to be war-caused some years earlier. The majority of the Full Court (Lockhart and Beasley JJ) distinguished O’Brien and held that the AAT was required to consider all matters relevant to the determination of the application before it, and could analyse all necessary facts for itself. There was no prohibition on a decision-maker reconsidering all the issues when considering a fresh claim for a different condition which it was claimed had arisen by reason of an earlier condition. That process could not be described as re-opening the earlier determination, notwithstanding that part of the factual matrix accepted in the earlier determination as to pancreatitis was challenged in the later claim for diabetes. The majority held, in respect of the claim for diabetes, that there was no jurisdictional bar to the AAT examining the facts underlying the 1984 determination of the Commission that Mr Langley’s pancreatitis was war caused. The majority thus approved the approach which had been taken by the AAT. But the appeal from the AAT was allowed because the AAT had made errors of law in deciding that the applicant’s diabetes was not war caused.
48. In this matter, the Tribunal, by the respondent’s amended first contention, is asked to re-open the original determination of May 1978. No claim for a different condition is involved. Thus, the reasoning of the majority in Langley would not permit the Tribunal to entertain that contention.
49. Spender J agreed with the result in Langley, but, applying O’Brien’s case, held that the only matter for determination was the question of the connection between the appellant’s accepted pancreatitis and his diabetes. He agreed with the majority that there was no power in the Commission to reopen the earlier determination, except in the specific circumstances set out in s 31 of the relevant legislation. Spender J. expressed the opinion that “it would be corrosive of administrative efficiency in decision-making and would engender a sense of grievance in the public generally if an earlier determination might at any time subsequently be overruled simply because somebody reached a different view”. He was also concerned at the unfairness “if a long accepted disability could be challenged afresh, when the means of re-verification have withered” (at 71).
50. Spender J’s observations are particularly relevant to the facts of this matter. There are obvious difficulties about undertaking in 2005 a re-consideration of the question whether Mr Harrington’s paranoid schizophrenia had been aggravated due to the nature of his employment in the Army between July 1968 and January 1970. The medical records may be incomplete. The doctors who diagnosed and treated the paranoid schizophrenia in 1970 did not give evidence. Mr Harrington is now unable to give evidence, or to give a reliable history by reason of his illness.
51. In Power, a determination had been made by Comcare in 1990 that Mr Power’s coronary heart disease was accelerated by his employment. Compensation had been paid on that basis for 5 years until in 1995 a Comcare delegate, acting on Comcare’s own motion, determined that there was no further liability to pay compensation and a cease effects determination was made. The AAT affirmed the cease effects determination. Sackville J dismissed the appeal.
52. His Honour, Sackville J followed Langley to distinguish O’Brien’s case. His Honour held that the reconsideration decision-maker, for the purpose of determining whether Comcare had a continuing liability to pay compensation to Mr Power in respect of his coronary condition, had power to consider whether that condition had ever been causally related to his work. Sackville J held that the reconsideration decision maker had to analyse all the necessary facts for herself, to determine whether Comcare had a continuing liability, taking into account any fresh information and not being bound by any issue estoppel arising from the earlier determination. The AAT was in a similar position to the reconsideration decision maker.
53. By applying Langley to a case which did not involve a new claim for a different but related condition, but which considered a determination ceasing liability for a previously accepted condition, Sackville J extended the ruling of the majority. His Honour quoted, at 150, the observation of the majority in Langley that:
There is a fundamental difference between the consideration of a fresh claim for a pension in respect of incapacity from an injury or disease that is different from an injury or disease the subject of a prior determination of the Commission, though involving some facts and circumstances common to both the earlier determination and the later claim. Subject to specific statutory provisions enabling it to do so (see s 31 of the Act) the Commission cannot review the earlier determination: but it may consider afresh the facts which underpinned the earlier determination where it is necessary to do so, so that it may discharge its statutory function of determining the later claim. The later determination does not affect any entitlement of the veteran arising from the earlier determination. [emphasis added]
54. Sackville J, despite quoting the above passage, approved a re-opening of the earlier determination, which was, in effect, set aside from the date of the cease effects decision. He stated, at 153:
I appreciate that the present case is not one in which the applicant seeks a pension in respect of a disease different from that which was the subject of the earlier determination; cf Langley at FCR 201. But the decision under review by the AAT was not one which, as a jurisdictional matter, precluded the AAT from considering the evidence bearing on the association between the applicant's coronary condition and his employment.
55. His Honour, at 147, set out the submission on behalf of Comcare:
(1) Section 43(1) of the AAT Act empowers the AAT to exercise all the powers and discretions conferred on the decision-maker for the purposes of reviewing a decision. These include the wide powers of reconsideration conferred by s 62 of the SRC Act.
(2) The role of the AAT is to reach the correct and preferable decision on the material before it. There is a distinction to be drawn between decisions the AAT is permitted to review and evidence it can take into account in the course of reviewing a decision. It could be contrary to the principle of ``merits'’ review to inhibit the AAT in the manner suggested by the applicant.
(3) The AAT had recognised that it was required to address whether Comcare continued to be liable to the applicant after 9 March 1995. It did not purport to set aside the earlier decisions made by Comcare. They stood according to their terms. In addressing the correctness of the decision under review, the AAT was entitled to consider the evidence bearing on the relationship, if any, between the applicant's work-related stress and his coronary condition.
(4) Since it had been established that decisions of the AAT did not create an issue estoppel (Comcare v Grimes (1994) 50 FCR 60 at 64; 33 ALD 548; 121 ALR 485, per Wilcox J), it could hardly be the case that a determination by an original decision-maker could have the effect of an issue estoppel.
(5) Repatriation Commission v O'Brien was distinguishable.
56. Section 62(1) and 62(5) of the Act provide:
62 Reconsideration of determinations
(1) A determining authority may, on its own motion:
(a) reconsider a determination made by it; or
(b)cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;
whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.
…
(5)Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.
57. Sackville J stated at 152:
I should interpose that it was common ground that the decision of 22 March 1995 was not a reconsideration, pursuant to s 62(1) of the SRC Act, of either the 1990 or the 1993 determinations. In other words, both parties explicitly agreed that Comcare had not purported to exercise the power, conferred by s 62(1) of the SRC Act, to reconsider the earlier determinations on its own motion. I must confess to thinking that, although the delegate who decided to terminate the applicant's compensation for his coronary disease did not direct attention to the source of power for such a decision, the view adopted by the parties is not entirely self-evident, particularly having regard to the breadth of the power in s 62(1) and the absence of a temporal limitation on its exercise: De La Cruz v Australian Postal Commission (1997) 73 FCR 204 at 207–8 ; 143 ALR 193 (Emmett J). Nonetheless, both parties were adamant on this question and the case proceeded on the basis that the decision of 22 March 1995 was not made pursuant to the power of reconsideration conferred by s 62(1) of the SRC Act.
58. Thus, Sackville J did not rely on s 62(1) of the Act as a “specific statutory provision” to quote the words of the majority in Langley, allowing the determining authority to review an earlier determination. With respect, Sackville J misstated significant aspects of the majority decision in Langley when he said, at 153, “As the majority said in Langley, the reconsideration decision-maker had to analyse all the necessary facts for herself to determine whether Comcare had a continuing liability”. The decision in Langley does not concern the liability of Comcare. It is a decision under the Veterans’ Entitlements Act 1988 (“the VE Act”). Secondly, it was crucial to the decision of the majority that the decision under review did not concern “continuing liability” under a previously determined claim, but a new liability, in respect of another condition, as to which a fresh claim had been lodged.
59. The majority decision in Langley does not, accordingly, enable the Respondent to contend in this application that Mr Harrington did not suffer an injury that was due to the nature of his employment, as determined on 4 May 1978. The Respondent must rely on the decision of Sackville J to do so. However, there is a more recent Federal Court decision to the opposite effect, which, unfortunately does not refer to the decision of Sackville J in Power.
60. Mansfield J in Comcare v Moon (2002) 75 ALD 160 considered the same issue and held that the Tribunal did not have jurisdiction to consider whether Mr Moon had suffered a compensable injury in reviewing a decision as to the percentage of permanent impairment resulting from bilateral anterior compartment syndrome, which had been determined to be compensable. One issue argued by Comcare on the appeal was that the AAT on review should have revisited the original determination that Mr Moon sustained a work-related injury. His Honour said at paragraphs 27-28 and 31-32:
[27] In my view, the tribunal did not purport to revisit the decision of 12 April 1999 that the respondent suffered the condition, namely bilateral anterior compartment syndrome, on 21 June 1993 to which his military service had contributed in a material way. The tribunal needed to address in some detail the nature and extent of the compensatable injury to address the contentions of Comcare that Mr Moon had no permanent disability as a result of the condition, even though activity may have led to him experiencing pain. It was part of Comcare’s case that pain of itself, unless it led to some physical restriction during the activity, could not be a matter relevant to the existence of impairment under the SRC Act. The tribunal’s analysis of Dr Lugg’s evidence to understand the aetiology of the condition and its relationship to Mr Moon’s army service must be understood as being in that context.
[28] If the tribunal did address whether Mr Moon had in fact suffered a work-related injury by reason of the condition, in my view it was in error in doing so. If I am wrong about why the tribunal addressed the nature and extent of the injury, so that it did entertain the first argument of Comcare referred to in [21], I do not consider it was empowered to do so. It is entitled to review certain decisions under s 25 of the AAT Act and s 64 of the SRC Act. Both the decision of 12 April 1999 and the decision of 3 January 2001 were reviewable decisions. No application for review of the decision of 12 April 1999 was made by Mr Moon in accordance with s 29 of the AAT Act.
…
[31] Under s 43 of the Act, the tribunal’s review powers were in the circumstances plainly confined to reviewing the decision of 3 January 2001. The decision of 3 January 2001 did not decide whether Mr Moon had suffered the condition in circumstances making it compensatable under the SRC Act. It decided Mr Moon was not entitled to a lump sum payment for permanent impairment in respect of that compensatable injury under s 24 of the SRC Act. Indeed, the reasons of the decision-maker invited Mr Moon to request a reassessment of his entitlement to a payment under s 24 if the condition deteriorated. The decision by the Full Court (Wilcox, Branson and Tamberlin JJ) in Lees v Comcare (1999) 56 ALD 84 at 96, [57] and 94–5, [46]–[50] in my view indicates why, in the circumstances I have outlined, the tribunal was not empowered to review the decision of 12 April 1999 that Mr Moon had suffered the condition, and that it was compensable.
[32] Consequently, in my view, it was wrong to have put to the tribunal (as Comcare did) that the decision under review included the question whether Mr Moon’s condition was caused by or contributed to by his employment. If the tribunal purported to re-decide that issue, it was wrong in doing so. In that event, I would uphold the notice of contention of Mr Moon. But, as I have indicated above, I do not think the tribunal fell into that error even though invited to do so by Comcare.
61. In Mr Harrington’s case the reconsideration decision-maker did not determine that his paranoid schizophrenia had not been aggravated by his military service. The reviewable decision (T29) is in terms limited to a decision that the military service had ceased to affect the disease. The decision-maker referred to Treloar v Australian Telecommunications Commission (1990) 97 ALR 321 as an authority on the concept of a “continuing employment contribution to an injury” and quoted the following passage (T29, p70):
All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must in truth be part of the cause … The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.
62. The reconsideration decision-maker wrote (T29, p71):
In order to maintain an entitlement to compensation, you must establish, on the balance of probabilities, that the effect of your Army service is still contributing to your condition.
…
I find Dr Sale’s opinion quite persuasive that, on balance, the effect of the Army service has ceased to contribute to the paranoid schizophrenia. Further, in the absence of recent evidence contrary to Dr Sale’s opinion, I consider it reasonable to accept Dr Sale’s views.
63. The respondent thus did not in the reviewable decision of 12 November 2002 decide whether Mr Harrington had suffered an aggravation injury in compensable circumstances. It decided that the compensable aggravation had ceased by 9 July 2002. According to Mansfield J, the Tribunal in this review is not empowered to review the decision of 4 May 1978.
64. So far as we can see, the decisions of Sackville J in Power and Mansfield J in Moon cannot be reconciled. There are also difficulties about applying both those decisions.
65. Although Power purports to follow the majority in Langley, there are difficulties with that analysis. As set out in paragraph 53 of these reasons, Lockhart and Beazley JJ said at 58:
There is a fundamental difference between the consideration of a fresh claim for a pension in respect of incapacity from an injury or disease that is different from an injury or disease the subject of a prior determination of the Commission, though involving some facts and circumstances common to both the earlier determination and the later claim. Subject to specific statutory provisions enabling it to do so (see s 31 of the Act) the Commission cannot review the earlier determination: but it may consider afresh the facts which underpinned the earlier determination where it is necessary to do so, so that it may discharge its statutory function of determining the later claim. The later determination does not affect any entitlement of the veteran arising from the earlier determination. [emphasis added]
66. Their Honours referred to s 31 of the VE Act as providing an example of a specific statutory provision enabling the Commission to reopen an earlier determination. It is indeed very specific. It only allows a determination to be reopened if the time has not expired for seeking review by the Veterans’ Review Board (subss (1) and (2)), or if the Commission is satisfied that the decision was false (subs (4)), or in similar circumstances. It provides, so far as relevant:
Review by Commission
(1) Where:
(a) the time has not expired for making application to the Board under section 135 for a review of a decision of the Commission with respect to:
(i) a claim for a pension in accordance with section 14;
(ii) an application for an increased pension, or for a pension, in accordance with section 15; or
(iii) an application for attendant allowance under section 98; or
(b) an application has been duly made to the Board under section 135 for a review of such a decision of the Commission but has not been determined by the Board;
the Commission may, in its discretion, review that decision and, if it varies that decision, it may approve as the date as from which the variation shall operate a date not earlier than the earliest date as from which the decision as so varied could have operated if it had been made by the Board, in substitution for the original decision, upon a review of the original decision.
(2) Where application has been duly made, otherwise than by the Commission, to the Administrative Appeals Tribunal under section 175 for a review of:
(a) a decision of the Commission that has been affirmed by the Board; or
(b) a decision made by the Board in substitution for a decision of the Commission;
but the review has not been determined, the Commission may, in its discretion, review that decision and, with the consent of the applicant, vary that decision and, if it varies that decision, it may approve as the date as from which the variation shall operate a date not earlier than the earliest date as from which the decision as so varied could have operated if the variation had been made by the Administrative Appeals Tribunal upon a review of the decision.
(3) The Commission may, for the purpose only of correcting a manifest error, vary the date approved by the Board as the date as from which a decision of the Board made in substitution for a decision of the Commission is to operate.
(4) Where the Commission is satisfied that evidence before the Commission when it made a decision was false in a material particular, the Commission may, in its discretion, review the decision and, if it varies the decision, it may approve as the date as from which the variation shall operate a date, which may be a date before or after the commencement of the review, considered by the Commission to be appropriate in all the circumstances.
. . .
(6) Where the Commission is satisfied that:
(a) having regard to any matter that affects the payment of a pension or attendant allowance, being a matter that was not before the Commission, the Board or the Administrative Appeals Tribunal, as the case requires, when the decision to grant the pension or attendant allowance, or a decision to vary the rate of the pension or attendant allowance, was made;
(b) by reason of a refusal or failure of any person to comply with a provision of this Act;
(c) by reason of a refusal or failure of a veteran to comply with a notice served on the veteran under subsection (5A) or with a request made under paragraph 32(1)(c); or
(d) by reason of the circumstances referred to in a paragraph of section 24A being applicable to the veteran;
in a case to which paragraph (a), (b) or (c) applies, a pension or attendant allowance should be cancelled or suspended or is being paid at a higher rate than it should be or, in a case to which paragraph (d) applies, a pension is being paid at a higher rate than it should be, the Commission may, by determination in writing, cancel or suspend or decrease the rate of the pension or attendant allowance, or decrease the rate of the pension, as the case may be, with effect, subject to subsection (7), from the day on which the determination was made or such later day as is specified in the determination.
…
67. Sackville J appears to have considered that the very general words of s 14, 19, 62(5) and 69(a) of the Act provided a “specific statutory provision” similar in effect to s 31 of the VE Act. Mansfield J, without specifically referring to the decision in Langley, held that the general power to revoke a determination under s 62(5) of the Act must be specifically invoked, and cannot be exercised by the Tribunal on review of a determination which did not specifically revoke the earlier determination.
68. It appears to us, after considering the decisions of Borg, Langley, Power and Moon, that the decision of the Full Court in Borg is binding on us. It is directly in point as it deals with a compensation determination in very similar terms to that in issue in this matter. It is a decision of the Full Court of the Federal Court. Thus, as the reviewable decision before us did not revoke the primary determination of 4 May 1978, we do not have power to reopen the issues determined in May 1978 in this application. Our powers are confined to reviewing the decision of 12 November 2002. The question before us, as Jenkinson J said in Borg, is whether we are persuaded that by 9 July 2002, one of the entitling circumstances had ceased to exist.
MEDICAL ISSUES
69. We turn to consider the medical evidence as to whether we are persuaded that any aggravation of Mr Harrington’s paranoid schizophrenia due to the nature of his employment, had ceased to exist or contribute to his incapacity by 9 July 2002.
70. Dr Freed in his answers to the questionnaire described Mr Harrington as suffering paranoid schizophrenia which on the balance of probability was an aggravation of a “Presumed antecedent personality disposition of schizoid type” due to “Pressures and stress of Army Service in 1970 as perceived by [Mr Harrington]”. Dr Freed wrote that “Army Service during the Vietnamese War” was perceived by Mr Harrington as emotionally threatening and that the aggravation was permanent. He also wrote that Mr Harrington was likely to remain permanently unemployable.
71. Mr Lenczner submitted that there was no basis for Mr Harrington’s fear that he might be sent to Vietnam. We note that no reports in 1970 indicated that Mr Harrington’s fear about possibly being sent to Vietnam was misplaced. Lt Colonel Tait seems to have formed the view that Mr Harrington was malingering in order to get an assurance that he would not be sent to Vietnam. He did not suggest, as Dr Sale did in his evidence, which was clearly not expert medical evidence, that when Mr Harrington only had six months’ National Service left, he would not have been sent to Vietnam in any event (trans, p93). Nor did Dr Richards, to whom Army medical authorities referred Mr Harrington for psychiatric opinion, question the basis of Mr Harrington’s fear of going to Vietnam.
72. Thus there was contemporaneous evidence that Mr Harrington found his Army service stressful, particularly because of his fear about possibly being sent to Vietnam and because of his concern, if that did occur, about how he would cope with having to kill or being killed. He also feared that other soldiers were aware of his secret fears and concerns and were critical of him and “talking about me in the mess”.
73. Dr Freed considered that the pressures and stress of Army life as perceived by Mr Harrington aggravated a pre-existing condition and that the aggravation was permanent.
74. The determination accepting liability to pay compensation accepted Dr Freed’s opinion as expressed in his report and questionnaire of 13 December 1977, and also accepted that the aggravation was still continuing as at May 1978, eight years after Mr Harrington’s diagnosis.
75. The question for us now is whether that aggravation had ceased to play a part in Mr Harrington’s incapacity by 9 July 2002. Dr Ryan was Mr Harrington’s treating psychiatrist from May 2002. She was quite adamant that while she was seeing him, he was still concerned about his time in the Army. She said the theme each time she spoke with him was concern and recollections about his Army service. It was her opinion that the matters which aggravated Mr Harrington’s psychiatric condition during service, and as at 1978, still played a significant role in his symptomatology.
76. A question considered in the medical evidence given at the hearing was whether Mr Harrington was already suffering the prodromal phase of schizophrenia prior to entry into the Army. The respondent contended that if he was, the disease would have simply followed its normal course without any aggravation by military service. Dr Freed seems to have been of a different opinion. It is not appropriate for us to consider that line of reasoning, because we have held that we do not have jurisdiction to review the determination of 4 May 1978.
77. Dr Epstein in evidence agreed that schizophrenia is now understood to be a brain disease to which certain people have a genetic vulnerability. But he said the identical twin studies show that not all people with that genetic vulnerability develop schizophrenia.
78. Dr Epstein wrote in his report (A3):
It is clear that his Army service was not the sole cause of his condition as it is recognised that schizophrenia is a brain disease which is present throughout the world and occurs to a greater extent in families where there is another person with a schizophrenic illness such as that identical twins have a concordance rate ranging between 50 to 80 percent. In other words if one identical twin has a schizophrenia illness then it is likely that the other twin will also develop the same illness.
Nevertheless, it is impossible to be certain that this illness would have occurred even if he had not gone through military service. It is noteworthy that even though there is a high concordance rate between identical twins, anywhere between 30 to 50 percent of identical twins who have a twin with a schizophrenic illness do not themselves develop a schizophrenic illness. In other words genetics cannot be the whole of the explanation for the condition.
In my view, therefore, all that can be said is that it is more probable than not that his Army service was the trigger in the development of his schizophrenic illness which may not have occurred otherwise. Once his schizophrenic illness became manifested it has been present with exacerbations and remissions since then. To that extent the precipitating cause continues to be a factor in his condition.
79. Further, Dr Epstein referred to a paper, “Schizophrenia: Etiology and Course”, Walker et al, Annu Rev Psychol 2004, 55:401-30 at 409-10, which referred to studies that showed that the offspring of even a non-affected twin (where the other twin has developed schizophrenia) do have an elevated rate of schizophrenia. Dr Epstein, and the authors of the study, suggested that this indicates that not all genetically predisposed individuals do develop the illness.
80. Dr Epstein emphasised that, although statistical studies of individuals with schizophrenia are helpful in identifying risk factors, they do not tell the whole story about an individual. A rare case will not show up as a probability in a statistical study.
81. Dr Epstein said of Mr Harrington’s fears about killing or being killed if he were to be sent to Vietnam, as part of his Army service (trans, p135):
I think it played a very big part in his condition. I think that if he had not been vulnerable, he may have had an anxiety state, or a depressive disorder, or something. Because I think he was very troubled by this. But because he was vulnerable, this tipped him over the edge, and in a sense, it is like a rubber band. You can stretch it, let it go, stretch it, let it go, and it is still intact. But once it snaps, it is broken, and ain't going to be fixed. And that is what I think has happened with him.
82. Dr Epstein said that he did not agree with Dr Sale that probably 20-30 years after service Mr Harrington would be the same as if he hadn’t been in the Army. He said (trans, p157):
I don't agree … on the basis that it seems to me that almost from the time of his first psychotic episode he talked about this [concern about the military service] as being a very real fear for him.
…
And that this in my view could well have been the factor that tipped him over the edge. And once he is tipped over the edge he stays over the edge.
83. Mr Lenczner asked Dr Epstein why, if Mr Harrington was reluctant to openly discuss his fears about Vietnam with others in the Army, and was concerned about people hearing him express them while talking in his sleep, he “became so fulsome about it when he presented to the doctor in the psychotic stage” (trans, p161).
84. Dr Epstein explained (trans, pp161 and 162):
I think that was the only time when he was … unwell enough to let down his guard and say what was on his mind.
I think that the ordinary inhibitions obviously diminished and he was, I think - probably felt some sense of relief at unburdening himself of something that had been in conflict with how he wanted to see himself.
85. Professor Burrows, in his report and at the start of his evidence, expressed the view that Mr Harrington was already suffering paranoid ideation and at the prodromal phase of paranoid schizophrenia when he was at school, and that on the balance of probabilities, the condition would have developed anyway and there was no connection between the Army service and the continuing condition. He retracted the opinion about paranoid ideation at school, but still maintained that Mr Harrington probably was in the prodromal phase of the disease before his Army service. However, he agreed that there is at least a weak relationship between stress and schizophrenia and wrote that stressful events may “progress the illness in time”. He also said that stress contributes to the disease by affecting “the complex of symptoms” (trans, p58-9).
86. None of the psychiatrists claimed that there is now a clear understanding of what causes schizophrenia. Professor Burrows said (trans, p51):
I think the current view of people that work in the area of schizophrenia is that this is a genetically predetermined biological condition.
87. However, Professor Burrows accepted that there is no known family history of paranoid schizophrenia in Mr Harrington’s family, and that stress does play a role in the development of the disease. He said (trans, p58-9):
I think that people that are in the area at the moment think that stress is a contributing factor but not a causative factor.
MRS DWYER: What does it contribute to then?
DR BURROWS: Well, to the person's symptoms, the complex of the symptoms themselves, but not the onset of the illness.
MR FERWERDA: It can contribute to the timing of the onset, can't it?
DR BURROWS: Yes, if there was a major stress like if there was an earthquake or somebody was killed or something like that, a real major stress, it may have a contributing factor.
MR FERWERDA: Well, stress is a - or the level of stress is a fairly subjective thing, isn't it?
DR BURROWS: Yes, well, that is part of the dilemma of the word stress. . . . But it is when a person's ability to cope is adversely affected by something which most of us would see as fairly stressful.
88. Professor Burrows said that if Mr Harrington was under great stress during his Army service that “may be a factor in precipitating the illness, but he was born with the illness” (trans, p59). He added, as to stress of fearing he may be sent into a conflict situation (trans, p60):
I am not saying it isn’t a factor, but I am saying it is not a major factor.
89. Stressful life events are shown as risk factors for schizophrenia, in publications edited by Professor Burrows. The Table, attached to Professor Burrows’ report (R3), from the Handbook of Studies on Schizophrenia, edited by Professor Burrows and others, lists genetic factors as those with the highest approximate relative risk. None of them apply, on the evidence before us, in relation to Mr Harrington. Single status is specified as having a relative risk of 4 and stressful life events as having a relative risk of 2.7. The discussion under the Table emphasises the importance of biological factors, but says that studies of identical twins do “allow considerable room for the influence of environmental factors”.
90. Professor Burrows said that there are no studies of which he is aware which show a correlation between stress, say in Vietnam or as a result of a catastrophe, and schizophrenia. He said he saw no evidence that fear of military service had precipitated Mr Harrington’s schizophrenic illness. He said in conclusion, “I suspect and I can’t prove it, it is a hypothesis, that if this man hadn’t even gone to war [sic] he would have been as sick as he is today”.
91. That is the issue for the Tribunal. It is only if the medical evidence persuades the Tribunal on the balance of probabilities that Mr Harrington would be as sick today as he is now, even if had had not suffered the aggravation due to serving in the Army, that it would be correct to affirm the determination which ceased liability to pay compensation from 9 July 2002.
92. As to the role of stress, Dr Sale said (trans, p101):
I don't think stress can cause schizophrenia, but as I said earlier, I believe that stress can influence the timing of its onset and it might also influence its content. The shape of the illness, the colour of the illness, the sort of experiences that a person has in their illness.
93. Dr Sale acknowledged the difficulty in trying to “unravel” the facts of this matter today. Mr Ferwerda put to him that in making findings about Mr Harrington, his full circumstances were more relevant than statistical data and studies. Dr Sale replied (trans, p102-3):
Well, how else are you going to examine this question. If you look at this individual you are looking at events long, long ago and you are looking - you are taking information from a man who suffered a very serious mental disorder and that will make that passage of time even harder to unravel what actually occurred. In other words, his illness will have distorted, his recall of the relevant circumstances.
94. Dr Sale said he could not claim that Mr Harrington was genetically predisposed to developing paranoid schizophrenia, but he said he must have carried “some genetic predisposition to develop this illness”. He said he could not suggest any reason why Mr Harrington suffered the onset of the disease during service. He said it was because of the problems of looking back more than 30 years that he relied on general evidence about schizophrenia, rather than on history taken from Mr Harrington in 1970 (trans, p107).
95. Dr Sale said there is no way you can say whether Mr Harrington would be the same as he currently is, or different, in the sense of less affected by his schizophrenia, if had had not been in the Army.
96. All the psychiatrists agreed that it is impossible to find evidence that Mr Harrington would be the same today as he is now, even if he had never served in the Army. Further, they all agreed that stress can play some part in precipitating the disease or can contribute to the complex of symptoms.
97. The medical evidence on this issue is very vague, for two reasons. First, as Dr Sale said, because of the difficulty unravelling what happened, “a very long time ago” to a man who suffers from a very serious mental disorder which will have distorted his recall of relevant circumstances. Secondly, paranoid schizophrenia remains a disease about which there is little medical certainty. Medical knowledge recognises the importance of both genetic and environmental factors, but it is not known how they relate to each other.
98. On the evidence before us, we are not persuaded that the aggravation of Mr Harrington’s paranoid schizophrenia by his military service, which was accepted by the determination of 4 May 1978 as continuing as at 4 May 1978, had ceased to exist by 9 July 2002.
99. The decision under review will be varied to provide that the decision made 9 July 2002 will be revoked.
100. The Tribunal will order that pursuant to s67(8) of the Safety, Rehabilitation and Compensation Act 1988 the applicant’s costs of this proceeding be paid by the respondent.
I certify that the 100 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Joan Dwyer, Ms Regina Perton, Member & Associate Professor John Maynard, Member.
Signed:. Josephine McKay
AssociateDates of Hearing 28 and 29 October 2005
Date of Decision 29 April 2005
Counsel for the Applicant Mr J Ferwerda
Solicitor for the Applicant State Trustees
Counsel for the Respondent Mr J Lenczner
Solicitor for the Respondent Sparke Helmore
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