Hasted and Repatriation Commission
[2005] AATA 1055
•24 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1055
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/787
VETERANS' APPEALS DIVISION ) Re GARY HASTED Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr SC Fisher, Member Date24 October 2005
PlaceBrisbane
Decision (1) The Tribunal sets aside the decision under review and substitutes the decision that the Applicant's chronic dysthymic disorder is defence-caused within the meaning of the Veterans’ Entitlements Act 1986 with effect from 11 December 1998.
(2) The Tribunal remits the matter to the Respondent for assessment and implementation in accordance with these Reasons for Decision.
....................[Sgd]..........................
SC Fisher
Member
CATCHWORDS
VETERANS’ AFFAIRS - Veterans Entitlement Act – defence-caused injury – chronic pain from orthopaedic injury resulting in depressive disorder – stress anxiety disorder – adjustment disorder – chronic dysthymic disorder – decision set aside and remitted.
Veteran’s Entitlements Act 1986 s120, 196
Secretary, Department of Social Security v Murphy [1998] FCA 809.
Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248
Bantick and Secretary, Department of Family and Community Services [2003] AATA 472
Bramwell v Repatriation Commission (1998) 51 ALD 56
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598
Schmidt v Repatriation Commission [2004] FCA 1158
Smith v Repatriation Commission (1987) 74 ALR 537
Re Buckham and Repatriation Commission [2000] AATA 174
Kattenberg v Repatriation Commission (2002) 73 ALD 365
Haughey and Repatriation Commission [2005] AATA 189
Repatriation Commission v Deledio (1998) 83 FCR 82
Williamson and Repatriation Commission [2004] AATA 1185
Palmer and Repatriation Commission [2005] AATA 2
Starcevich v Repatriation Commission (1987) 18 FCR 221
Flentjar v Repatriation Commission [1997] FCA 1200
Peacock v Repatriation Commission [2004] FCA 1449
Banovich v Repatriation Commission (1986) 69 ALR 395
Ganley and Repatriation Commission [2005] AATA 427
March v E & MH Stramere Pty Ltd (1991) 171 CLR 506REASONS FOR DECISION
24 October 2005 Mr SC Fisher, Member Introduction and background
1. Mr Gary Hasted (the Applicant) served in the Royal Australian Air Force from 24 March 1972 to until 30 June 1993. The Applicant has a number of service-related medical conditions.
2. On 11 March 1999, the Applicant lodged with the Repatriation Commission (the Respondent) a formal claim for acceptance of liability for "stress anxiety disorder" (among other conditions). The Respondent treated this as a claim for an "adjustment disorder". On 29 March 2000, the Respondent refused the Applicant's claim for adjustment disorder. On 23 May 2000, the Applicant sought review of the 29 March 2000 rejection decision from the Veterans' Review Board. On 25 July 2001, the Veterans' Review Board affirmed the decision of the Respondent of 29 March 2000 in relation to the adjustment disorder. This chain of decisions led to the Applicant lodging an application for review with this Tribunal on 3 September 2001.
Jurisdiction
3. This appeal is governed by the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). The Tribunal has jurisdiction in this appeal by virtue of sections 174 - 176 of the Act. In these Reasons for Decision, references to statutory provisions are to provisions of the Act unless the context indicates otherwise.
The Role of the Tribunal
4. The role of the Tribunal is to review the merits of the decision before it: section 43 of the Administrative Appeals Tribunal Act 1975 and Secretary, Department of Social Security v Murphy [1998] FCA 809. The Tribunal is guided by the norm that it should reach the correct or preferable decision on the basis of the material before it: Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248 at [33]. The Tribunal is required to stand in the shoes of the original decision-maker and consider all evidence anew, bearing in mind statutory provisions and any significant legal precedent: Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 at [23]. The Tribunal proceeds de novo: Bramwell v Repatriation Commission (1998) 51 ALD 56 at 60 per Weinberg J. The Tribunal must base its decision upon the material that is logically probative of the existence of facts that emerge from the evidence before it: Collins v Minister for Immigration and Ethnic Affairs(1981) 36 ALR 598 at 601.
5. This Tribunal is not vested with a general discretion to circumvent, override, sidestep or supplant the otherwise very clear terms of legislation that determines income support entitlements such as veteran’s pension and related entitlements.
The Material Before the Tribunal
6.The following documentary evidence was before the Tribunal:
Exhibit 1 Statement of the Applicant dated 4 April 2002
Exhibit 2Statement of the Applicant dated 19 July 2002
Exhibit 3Statement of the Applicant dated 18 January 2004
Exhibit 4Statement of the Applicant (undated but signed)
Exhibit 5Letter of the Applicant to Gilshenan & Luton dated 21 September 2004
Exhibit 6Letter of the Applicant to Gilshenan & Luton dated 15 October 2004
Exhibit 7Statement of the Applicant dated 10 January 2005
Exhibit 8Psychiatric Report by Dr Peter Mulholland, Psychiatrist, dated 9 September 2003
Exhibit 9Medical report of Dr Vernon Madden of The Health Advantage Pty Ltd dated 15 June 2004
Exhibit 10Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (documents T1 – T6).
Exhibit 11Income-Tax Returns for the Fiscal Years 1994 -- 2001
Exhibit 12Medical report by Dr Greg Knight, Consultant Occupational Physician, Health for Industry, dated 15 March 2004.
Exhibit 13Email from Dr Greg Knight to Mr B Williams, DVA, of 7 March 2005
7. The Applicant was represented by Mr D O'Gorman of counsel, and was instructed by Gilshenan & Luton Lawyers. Exhibits 1 - 9 were lodged on behalf of the Applicant. Mr O'Gorman provided an outline of Submissions to the Tribunal.
8. The Respondent lodged documents T1 to T6 under section 37 of the Administrative Appeals Tribunal Act 1975. These documents were taken into evidence as Exhibit 10. Exhibits 10 – 13 were lodged on behalf of the Respondent.
9. The Respondent was represented by Mr B Williams a departmental advocate. The Respondent’s advocate provided a Statement of Facts and Contentions and an Outline of Submissions to the Tribunal.
10. The Tribunal considered carefully all of the documentary and oral evidence before it.
Evidence
11. Besides the Applicant (who gave evidence), Dr Vern Madden CIME gave evidence for the Applicant.
Evidence of the Applicant
12. The evidence in chief of the Applicant consisted of exhibits 1 -- 7 inclusive, together with the evidence of the Applicant in person to the Tribunal. The gist of the evidence of the Applicant for the purpose of the proceedings was as follows:
Summary of Exhibits 1 – 7
13. A summary of the evidence in chief of the Applicant as it appeared in exhibits 1 – 7 is given next:
A.The Applicant said that he has a lot of physical conditions that prevent him from carrying out any work. The Applicant said that after he acquired his farm after he retired from the army, his physical conditions from his air force service stop him from doing a lot of the tasks on the farm.
B.The Applicant said that that was not the reason he stopped working the farm.
C.The Applicant described his physical limitations that were worsening as time went on, to the point that he could not do basic farm work, such as putting in fence posts.
D.The Applicant described his attempts to get work since he stopped working the farm.
E.The Applicant said that with his aircraft technician and engineering trade background, it was impossible for him to get back to work on aircraft and on aircraft engines and that any labouring or farm work was not any good either. (Exhibit 1, page 3)
F.The Applicant said that his adjustment disorder never affected his work but it did affect his social interactions with people. The Applicant said he believed that his orthopaedic conditions impacted on and caused his adjustment disorder.
G.The Applicant said that some aspects of his military service, including the disappointment of the posting to Richmond did affect him. The Applicant said that he was disappointed by been passed over for promotion time and again, and that this depressed him.
H.The Applicant said that between the 1994 - 2000 fiscal years, he made a small profit on the farm. The Applicant said that the drought decreased his income and that it made his workload harder than it otherwise would be. The Applicant said that tasks such as having to supplement the feeding of cattle by hand was made difficult by the drought conditions, and that the physical side of this was hard because of his orthopaedic conditions.
I.The Applicant said that he was not running a hobby farm, even though he knew the farm was a small place and that it would never make a lot of money. The Applicant said that it was his intention to make the farm be successful.
J.The Applicant said that he began work as a Reservist in the air force in 1996.
K.The Applicant said that he did a lot of administrative work and paperwork, and that when he did do maintenance work on engines, the pain from his orthopaedic conditions prevented them from properly completing those tasks.
L.The Applicant described the effect that his medications had on him.
M.The Applicant said that he had a give up his Reservist work because of his disabilities. The Applicant said that he did not pursue renewal of a Reservist contract after it expired in August 2000 because it was apparent to him that he could not carry out his duties because of his disabilities.
- The Applicant said that he did attempt a Diploma of Accounting through TAFE, but he managed to complete only 4 out of the 16 subjects. As well, the Applicant said that he could have completed one subject per term/semester, but that DVA wanted him to do a normal full-time workload of four subjects per semester, which he could not manage because of his physical conditions. The Applicant said that the Commonwealth Rehabilitation Service advised him that it was not worth his while completing the course of such a slow rate, and that is one reason why he gave it up.
14. The oral evidence of the Applicant to the Tribunal confirmed, in essence, the evidence contained in Exhibits 1 – 7.
15. The cross-examination of the Applicant centred on the running of the farm and the tax returns prepared and filed by the Applicant relating to farm income, expenses and deductions.
Evidence of Dr Vern Madden
16. Dr Vern Madden gave evidence on behalf of the Applicant. Dr Madden's evidence in chief consisted of his medical report of 15 June 2004 (Exhibit 9, pages 2-3). Dr Madden's evidence to the Tribunal consisted as follows.
17. Dr Madden summarised the service-related disabilities of the Applicant in these terms:
“1. Lumbar spondylosis. Mr Hasted said he had not had an injury with regards this but it had occurred gradually in the late 1970’s. His current symptoms are that of constant pain from the low back. He rates this pain as the most severe of all the pains that he has. At the time of my interview he rated it as 8+ out of 10 and with an 8 to 10 variation over the last week. Generally with regards the pain as the day progresses the pain gets worse. It tends to be worse with activity, for example gardening and digging. His sitting tolerance is one to two hours and his standing tolerance is uncertain. He tells me that standing is primarily limited by pain in the left foot. His walking is again limited. He is uncertain how far. He finds his best position is reclining or lying down. There are days, however, when nothing he does eases the pain. His sleep is disturbed by back pain every night and he never has more than two hours sleep at a stretch with initial, middle and terminal insomnia. He states that the Endep and Panadeine Forte combination has been helpful but is not completely effective.
2. Lateral medial Meniscectomy right knee. Mr Hasted informed me that he hurt this during a physical education class where the knee was crushed in a type of scrum. He said that he has had three Arthroscopies and a cyst has been removed from the knee. Currently the knee feels slightly unstable but does not give way. There is intermittent pain “more than seldom and less than often”. The knee does not lock but it clicks. It does not swell.
3. Inversion injury – right ankle. Mr Hasted stated that this was an injury he sustained playing football in the Air Force. He finds the ankle weak and it does give way. It is not constantly painful and is helped by boots that have been provided by the Podiatrist for his left foot.
4. Subluxation right acromioclavicular joint. Mr Hasted informs me this was also a football injury sustained in the Air Force where he had dislocated his clavicle at the acromioclavicular joint. He notes decreased strength in the right shoulder and is unable to maintain his right hand above his head. It does not dislocate nor does it feel unstable. He notes the shoulder is numb if he sleeps on it.
5. Osteoarthritis of the tarsometatarsal joints of the 4th and 5th toes of the left foot. Mr Hasted informs me this was a work related injury from work using stands and carrying weights. Currently he suffers constant pain in the left foot and has had special boots made by a Podiatrist, Joyce Cooper which have been helpful in alleviating this. Heavy boots, however, have not totally alleviated his symptoms nor does the prescribed medication totally alleviate his symptoms.
6. Bilateral sensory hearing loss with tinnitus. Mr Hasted informed me his hearing was poor in a social setting particularly with extraneous noise.
7 Solar keratoses – These are treated by his General Practitioner and don’t cause any significant symptoms.
8. Non-service accepted disability. Psychiatric condition, with regards diagnosis the following have been provided by the various Specialists:
§Chronic dysthymic disorder – Dr Peter Mulholland
§Adjustment Disorder with depressed mood – Dr Douglas Scott
§Dysthymic disorder – Dr David Jenkins
§Mood disorder with mixed features of depression and anxiety – Dr Knight
§Although his report was not in the file, the report of Dr Ewing dated 16/07/2001 indicates that Consultant Psychiatrist, Dr Kingswell, in a report dated 07/05/2001 made a diagnosis of dysthymic disorder and pain disorder with psychological factors. Further in this report Dr Ewing states, “Whiles I agree that Mr Hasted suffers from a pain disorder ……………I consider the more appropriate diagnosis would be pain disorder associated with both psychological factors and a general medical condition, DSM-IV 307.89.
18.Dr Madden's assessment of the Applicant was as follows (Exhibit 9, page 4):
“ASSESSMENT: Mr Hasted has a number of significant orthopaedic conditions:
§Lumbar spondylosis
§Osteoarthritis left foot
§Right knee lateral and medical meniscectomy
§Right acromioclavicular joint osteoarthritis secondary to previous subluxation
Mr Hasted also has a less significant right ankle injury, which currently shows no objective abnormality on examination.
These orthopaedic conditions are, in sum, resulting in pain behaviour. Pain behaviour is a characteristic set of symptoms and signs.
Symptomatically the person complains of high levels of pain and this is accompanied by grimacing, exaggerated protective behaviours and on testing behaviour such as voluntary release, significant differences in the sitting and lying straight left raising, pain on axial compression of the spine and pain on false axial rotation of the spine. A person exhibiting these behaviours often is experiencing pain of a high level which is characteristically unrelieved by medication. Overall these behaviours in a person who is not malingering (I am of the opinion that Mr Hasted is not malingering) indicate a high level of unremitting pain.
In answer to your specific questions:
1. Would Mr Hasted’s extensive orthopaedic and psychiatric conditions collectively reduce his capacity to work in his given trades? Mr Hasted has two trades: engine fitting and farming. His conditions would prevent him from working in those trades.
2. Would Mr Hasted’s capacity to work be reduced in his given trades to eight hours per week or less? Yes, less than eight hours per week.
3. Would Mr Hasted’s capacity to work in his given trades be reduced by his ability to work greater than eight hours per week but less than twenty hours per week? Answered above. Mr Hasted’s capacity to work is less than eight hours per week.”
Evidence of Dr Peter Mulholland
19. Dr Peter Mulholland, Psychiatrist provided evidence by way of a medical report dated 9 September 2003 (Exhibit 8). Dr Mulholland was not required for cross-examination by the Respondent, which amounts to tacit acceptance of Dr Mulholland’s evidence. Dr Mulholland provided the following opinion in relation to the Applicant:
“15. OPINION
15.1 From a psychiatric aspect the main issue with this man is that he has a chronic dysthymic disorder. Previously a diagnosis of adjustment disorder with depressed mood would have been appropriate but as time has passed and he had continued to be depressed the preferred diagnosis is chronic dysthymic disorder which in former times would be called chronic reactive depression
15.2 The main reason for this man’s depression appears to be his being in chronic pain and the limitations that are imposed on his life.
15.3 His “failure” which he feels keenly in respect of the small farming venture has also aggravated his depression.
15.4 This depression would probably have lowered his ability to work to some extent but would not have lowered it to less than 20 hours per week and certainly would not have lowered it to less than 8 hours per week. In other words this depression is not and has not been the main reason why he has not been working.
15.5 His being depressed and previously having had an adjustment disorder would not have prevented him from carrying out his work as a farmer. The adjustment disorder would not have prevented him from working more than 8 hours per week during the relevant period.
15.6 The currently diagnosed dysthymic disorder would not prevent him form working for more than 8 hours per week in the fields of employment that he is suited for by virtue of training qualifications and experience.
15.7 It is noted that diagnoses of chronic pain disorder associated with psychological factors and/or pain disorder associated with both psychological factors and a general medical condition have been made. Whilst there is no doubt that this man does have chronica pain there is nothing to support the notion that he has a chronic pain disorder as conceptualised by psychiatrists.
15.8 The important issue in respect of chronic pain disorder as conceptualised by psychiatrists is that psychological factors have “the major role in its onset, severity, exacerbation, or maintenance of pain.” In this case while this man has well proven and non-argued severe features of multiple arthritic problems then it is not clinically indicated unless there is some overwhelming or extraordinary reason to introduce notions such as having a chronic pain disorder as conceptualised by psychiatrists.
15.9 This whole issue of chronic pain is bedevilled by imprecise terminology and has ended up being a profound nosological imbroglio. I note that psychologist Dr Jan Ewing expressed some views regarding the diagnosis of pain disorder as conceptualised by psychiatrists and I agree with her comments.
15.10 The important issue is that his chronic pain significantly contributes to and aggravates his emotional state. Inevitably there is probably some aggravation of his experience of chronic pain as a consequence of his troubled emotional state via this vicious circle mechanism in that inevitably his troubled emotional state does cause some aggravation of his experience of chronic pain. However that contribution is considered to be minor rather than major as is the requirement for a diagnosis of chronic pain disorder as conceptualised by psychiatrists...”
Evidence for the Respondent
20. The only witness called by the Respondent was Dr Greg Knight, Consultant Occupational Physician.
Evidence of Dr Greg Knight
21. The evidence in chief of Dr Knight consisted of his report dated 15 March 2004 (Exhibit 12). Relevant excerpts from this report are extracted next.
22. Dr Knight reported in these terms regarding the non service-accepted "adjustment disorder with depression":
“NON SERVICE-ACCEPTED ‘ADJUSTMENT DISORDER WITH DEPRESSION’
Mr Hasted attributed frustration, anger, lowered mood and social isolation with his ongoing orthopaedic complaints. He described several Psychiatric and psychological assessments with many different views, and confusion as to what this all meant.
Bearing in mind that Mr Hasted stated his orthopaedic conditions were his most problematic, and any psychological distress arose from them, the reiterated that since discharge from the Air Force on the 03/06/93 his only visits to Dr Keller were in relation to these problems and treatment of various sunspots.
Mr Hasted mentioned that a couple of years ago Dr Keller trialled him on non-steroidal anti-inflammatory Celebrex but this upset his stomach and cause nausea.
He subsequently saw a current affairs program on TV criticising anti-inflammatories and read the Celebrex product information sheet and was not impressed, so he wishes to avoid these in future. He also described a lifelong reluctance towards taking any medications, based on ideas that these might simply mask his underlying condition and accelerate deterioration.
He said he was trialled on analgesic Tramal but paradoxically this “hyped (him) up” especially if it was taken after 2 pm; he felt agitated and completely unable to sleep for a couple of days. In similar fashion he finds that Panadeine Forte gives him side-effects including itchy nose, tingling skin and hyping up. He said that he only uses Panadeine Forte as a last resort for pain these days. He might use 2 Panadeine Forte twice per week and have never used more than 4 per day but was told he could use up to 8. He said that on the occasions that he uses Panadeine Forte, he uses 1 Endep tablet at night to help settle him down to sleep.
Mr Hasted also mentioned using ‘shark cartilage’ at one stage without noticeable improvements in his symptoms but no side effects.”
23.Dr Knight's overall assessment was in these terms:
“ASSESSMENT
Upon review of my first report about Mr Hasted on 01/03/00, there appeared to be very little change except some improvement in his mood.
There was nothing in the Assessment section of the first report that I would just suggest requires substantial change at present. It seemed unfortunate that Mr Hasted expressed significant reluctance towards (but not entire rejection of) using orthodox medications.
A trial of regular, simple Panadol at appropriate dosage would seem worthwhile trying to me and likely to be a significant potential benefit with very low side-effects. But he might first require some re-orientation against entrenched mythologies by a selected Treating Practitioner who he might learn to trust before his could actually proceed.
With respect to your specific schedule of questions, I would now answer as follows:
1. Going from his clinical presentation now, and the description of the activities of daily living (irrespective of questions arising as to his golfing activities) I would classify him as partially incapacitated for work.
2. The particular conditions I would cite as contributing to this state include his problems with lower back, left foot, right shoulder, and to a much less extent his right knee, right ankle and sensorineural hearing loss with tinnitus. I do not feel confident in this particular case of supporting his ‘adjustment disorder with depressed mood’ and/or its relationship to his musculoskeletal complaints or other environmental factors, so I must leave that for further ascertainment by a Consultant Psychiatrist of your choice.
3. Unless it could be shown that Mr Hasted still played golf on a regular basis recently, then it would seem that his lower back complaint is his most problematic condition. This would reduce his capacity for heavy lifting or repetitive/awkward back-bending or twisting, although he reported 30-45 minutes stints on his ride-on mower and avoidance of simply analgesics like Panadol so far. This supports that his incapacity is only partial and his back symptoms more nuisance than disabling to a major extent.
4. Given that Mr Hasted has already been granted service-acceptance for the orthopaedic conditions as outlined, in my view it would follow that his incapacity is permanent. But he might still be amenable to further optimisation of treatment including Panadol or a trial of another non-steroidal anti-inflammatory, regular hydrotherapy-based exercises and/or swimming in warm water.
5. Not applicable.
6. Given Mr Hasted’s age and thus far reluctance towards further treatment or rehabilitation, as was my impression, I doubt whether his situation is likely to improve.
7. With reference to Mr Hasted’s educational/vocational profile, especially his 21 years service as an engine-fitter and Sergeant with about 10-12 reportees, I would expect his duties and skills involved not only “hands on” mechanical work but also significant clerical/administrative/supervisory work. From the musculoskeletal perspective I therefore think that he would be capable of performing 20 hours per week or more of such sedentary duties, noting his reported success in the Diploma of Accounting course despite reported discomfort. But I must leave the psychological aspect open to Psychiatric expertise in this particular case, as explained above.”
24. During cross-examination, the following exchange occurred between Dr Knight and Counsel for the Applicant. Dr Knight was questioned about the material on which he relied for background purposes in preparing his report dated 15 March 2004 (Exhibit 12). The opening paragraph of that report commenced: "This report follows assessment of Mr Hasted on Thursday, the 11 March 2004 with respect to your referral dated 24 February 2004 and extensive Tribunal documents, all of which I perused." Counsel questioned Dr Knight very closely about the documents on which he relied, and called on Dr Knight to produce his notes on which he relied for the purposes of making that report. Dr Knight was not able to do so, and this led to the adjournment of the hearing on 20 January 2005. This gave the opportunity for the Applicant to cause the Registry to issue a notice to produce documents directed towards Health For Industry, which duly happened.
25. On the resumed hearing on 28 June 2005, the cross-examination of Dr Knight continued. Cross-examination continued closely on exactly what records Dr Knight relied in order to prepare his 15 March 2004 report. The end point of this cross-examination was that Dr Knight said that the process by which he obtained the necessary background information and documentation was from the Respondent via Health for Industry. Dr Knight said that he thought that the bundle of documents he had reviewed in order to produce his report of 15 March 2004 was the same bundle produced to the Tribunal in response to the notice to produce documents. Cross-examination was also directed towards the fact that Dr Knight was under his former oath and that he had in the meantime discussed the case via e-mail with the Respondent in terms of an e-mail dated 7 March 2005 (Exhibit 13).
26. In terms of the cross-examination on substantive medical issues, Dr Knight expected that the Applicant could undertake significant clerical/administrative supervisory work, perhaps as a TAFE trainer or teacher. Dr Knight conceded that his opinions on page 5 of his report related to the Applicant's accepted disabilities but not any psychiatric disability because he was not qualified to express an opinion on the psychiatric disability of the Applicant.
Issues
27.The issues in this case are four-fold:
(a)Does the Applicant suffer from an adjustment disorder or depressive disorder?
(b)If the Applicant suffers from adjustment disorder, is this defence-caused and otherwise related to service?
(c)If the Applicant suffers from depressive disorder, is this defence-caused and otherwise related to service?
(d)Is the Applicant's incapacity from war-caused injury or war-caused disease (or both) is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week
Applicant’s Submissions
28. The outline of submissions provided to the Tribunal by Counsel for the Applicant made the following submissions.
SUBMISSIONS
29.This case involves both entitlement and assessment issues.
“Entitlement
14. The Applicant submits that he has a depressive disorder which satisfied factor 5(d) of Instrument Number 59 of 1998 (that is, the Statement of Principles concerning Depressive Disorder) in that:
(a)Dr Peter Mulholland, in his report of 9 September 2003, diagnoses a dysthymic disorder (exhibit 8 at paragraph 15.1);
(b)the presence of, inter alia, dysthymic disorder falls within the definition of depressive disorder as that condition is defined in paragraph 2(b) of the Statement of Principles concerning Depressive Disorder (that is, Instrument No. 59 of 1998);
(c)factor 5(d) of that Statement of Principles requires that veteran to suffer from chronic pain for at least six months at the time of the clinical onset of the depressive disorder;
(d)the term “chronic pain” is defined in paragraph 8 of the Statement of Principles as meaning “…continuous or almost continuous pain, which may or may not be ameliorated by analgesic medication and which is of a level to cause interference with usual work or leisure activities of daily living”;
(e)the Applicant gave evidence of suffering such pain, and that such pain is the result of his accepted disabilities (outlined in paragraph 5 above) and in particular, he gave evidence that he has almost constant pain, even when using medication, and that such pain interfered with his ability to work, carry out activities of dialing [sic] living (such as dressing, showering, general hygiene and preparing meals), and in leisure activities (no long [sic] being able to play golf or tennis or ride a bike as he has in the past);
(f)Dr Mulholland, in his report of 9 September 2003, also states that the “…main reason for this man’s depression appears to be his being in chronic pain and the limitations that are imposed upon his life” (exhibit 8 at paragraph 15.2).
15. Further support for this contention is provided by the reports of Dr J.A. Ewing dated 10 April 2001 (ff.86-91, especially at f.90) and 16 July 2001 (ff.96-100, especially at f.98), the report of Dr Douglas Scott dated 21 December 1999 (ff. 71-73, especially at f.72), the report of Dr P Keller dated 18 July 2000 (f.94) and the report of Dr R Alexander dated 2 February 1999 (f.32).
16. Additionally, Dr Jenkins in his report of 11 May 2000, opined that chronic pain has contributed to the diagnosed condition of dysthymic disorder.
17. Hence, the Applicant’s depressive disorder should be accepted as service related.
18. Should the Tribunal agree with this submission, the relevant date of effect is 11 December 1998 (that is, three months before the lodgement of the claim on 11 March 1999).
Assessment
19. It is, apparently, agreed between the parties that, should the Tribunal conclude that the Applicant’s depressive disorder is service related, his pension should be increased to 100% of the General Rate.
20. However, the Applicant further submits that he is entitled to the special rate pension.
21. The Applicant is now aged only 52 years (consequently he had not turned 65 years when the claim was made).
The Applicant’s degree of incapacity as a result of his war-caused injuries and diseases has already been determined at 80% of the General Rate.
22. The Applicant’s incapacity from both his war caused injuries and diseases, are of such a nature of themselves alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more that [sic] 8 hours work per week:
(a)Dr Vernon Madden states that the Applicant’s capacity to work in his given trade is less than eight hours work per week (exhibit 9);
(b)Dr Madden’s view on this matter is to be preferred to that of Dr Knight because in stating that he believes the Applicant is “capable of performing 20 hours per week or more of such sedentary duties”, Dr Knight does so from the musculoskeletal perspective and he specifically acknowledged that “…I must leave the psychological aspect open to psychiatric expertise” (paragraph 7 at page 5 of exhibit 12), while Dr Madden takes into account both the physical and psychiatric conclusion (exhibit 9 at page 5).
24. It is further submitted that it is impractical to include clerical duties as work the Applicant could realistically be expected to undertake:
(a)he has not done any clerical duties since he was aged 16 years (Applicant’s oral evidence);
(b)he has no qualifications for clerical duties (Applicant’s oral evidence);
(c)he would be required to leave his desk every half hour to relieve pain (oral evidence of Dr Maddern (sic));
(d)he would be unable to walk any distances (oral evidence of Dr Maddern (sic));
(e)if he carried out clerical duties in circumstances where he did not have sufficient qualifications or experience for such duties (which is the evidence of the Applicant), it is likely his depressive disorder would deteriorate (oral evidence of Dr Maddern (sic)).
25. It is submitted the Applicant has been prevented from undertaking remunerative work because of his war caused disabilities and that resulted in a loss of salary or wages or earnings on his own account.
26. The remunerative work he has been prevented from undertaking because of his accepted disabilities includes (a) work in the Air Force Reserve Service, (b) farm work as an employee, and (c) farm work on his own farm.
27. The Applicant was unable to continue his work in the Air Force Reserve Service (exhibit 5), and it follows that the Applicant thereby suffered a loss as a result of that inability to engage in that remunerative work.
28. The Applicant was unable to continue farm work for other persons such as his brother and father because of his accepted disabilities (Applicant’s oral evidence), and it follows that the Applicant thereby suffered a loss as a result of that inability to engage in that remunerative work.
29. The Applicant suffered a loss as a result of being unable to pursue his own farming venture:
§the Applicant invested seriously in this venture (exhibit 11 discloses serious investment in this venture);
§that venture was showing promise in that the “sales: net proceeds” increased steadily from $0.00 in the financial year to 30 June 1996 to $4,354.00 in the financial year to 30 June 2001 (exhibit 11 at pages 16, 21, 33, 45, 57 and 67);
§while the Applicant only intended to earn sufficient income from this venture that would have enabled him to pay his household bills, including rates, electricity, food and some education expenses (Applicant’s oral evidence and paragraph 25 of exhibit 3), that is sufficient because the “loss” need not be substantial and he need not be prevented from earning a living: Gauntlett v Repatriation Commissioner (1991) 32 FCR 73 per Pincus J at 76-77.
30. Hence, it is submitted that in these circumstances the Applicant is by reason of his war caused injuries and diseases, alone, prevented from continuing or undertaking the remunerative work that he was undertaking (particularly as a member of the Reserve Forces or his farm and as an assistant to a tractor grain harvester operator) and is by that reason thereof, he is suffering loss of wages earned which he would not be suffering if he were free of that incapacity.
31. Additionally, it is further submitted that he need not satisfy the “alone” test but merely needs to satisfy the “substantial” test:
(a)s.24(2)(b) and the comments of Spender J in Hall v Repatriation Commission (1994) 33 ALD 454 at 461-462;
(b the Applicant gave oral evidence of attempts to find work via the Commonwealth Rehabilitation Services (oral evidence of Applicant and exhibit 1 at paragraph 11).”
Respondent’s Submissions
30.The written submissions of the Respondent were as follows:
‘12. The Respondent notes the medical opinions raise diagnoses of Adjustment Disorder with Depressed Mood and Anxiety; and Chronic Dysthymic Disorder. The statement of principles for Adjustment Disorder, instrument number 58 of 1996 and Depressive Disorder , instrument number 59 of 1998 apply.’
Dr Mulholland (exhibit 8) at paragraph 15.1 diagnoses chronic dysthymic disorder and notes;
‘previously a diagnosis of adjustment disorder with depressed mood would have been appropriate but as time has passed and he had continued to be depressed the preferred diagnosis is chronic dysthymic disorder which in former times would be called chronic reactive depression.’
Dr Ewing (Exhibit 10: folio 90) notes ;
‘…Mr Hasted presented with a longstanding history of depressive symptoms associated with milder signs of anxiety. The history suggests initial onset of these symptoms in response to his transfer to Sydney, with subsequent exacerbation in response to a lack of promotion and martial [sic] breakdown…Superimposed on this picture has been increasing physical disability and chronic pain associated with several arthritic conditions, which are apparently related to service-related injuries. …In the past there has been some confusion regarding diagnosis, with dysthymic disorder, mood disorder and adjustment disorder all being suggested. ..All three are consistent with in their summaries of the history and the presenting complaints and symptoms… .Irrespective of the diagnostic label, it is clear that Mr Hasted has a strong history of chronic depressive symptoms, with associated social anxiety and withdrawal. As noted above, the history suggests that the onset of these symptoms was initially in response to his unwanted transfer, which he perceived as a betrayal by the airforce. As typical of an adjustment disorder, his symptoms improved when he returned to his former base but there was an exacerbation when he was not promoted as expected. This symptom picture appears to have been further entrenched and exacerbated by the development of chronic pain associated with service-related injuries, which prevented him from pursuing his life-long dream of farming following his retirement from the services.’
and folio 87;
‘he stated that he had a number of chronic medical conditions, which were relatively mild at the time of discharge but which rapidly deteriorated over the following 12 months, to the extent that he became unable to manage the physical demands of the farm. He considered the physical restrictions to be the major source of his presenting complaints of anxiety and depression.
The Applicant attended his RAAF reserve work from 1996 until 2000 completing between 35 and 97 days in the stores accounting and paperwork division and mechanical maintenance sections RAAF Amberley. There is no evidence that the employment ceased on account of the accepted disabilities or chronic pain symptoms. The Applicant provided paid assistance to his brother in contract harvesting until 2002, some 2 years beyond his duties with the RAAF reserve. The Applicant maintains independence in living activities to the present. The Applicant is capable of mowing with his ride-on mower for 30-45 minutes each few days (exhibit 12). The Applicant has stated he has ceased playing golf until September 2002 and golf practice range early 2003.
The Respondent notes there is support from specialist medical opinions in relation to chronic pain symptoms exacerbating psychological symptoms and submits the Tribunal may find that chronic pain symptoms are sufficient “to cause interference with usual work or leisure activities or activities of daily”. The definition in the statement of principles for depressive disorder, instrument number 59 of 1998 factors (e) or (j) met. Alternatively factors (a) or (b) for statement of principles for Adjustment Disorder – “receiving a diagnosis of a disabling medical condition such as a malignancy or chronic cardiorespiratory disorder” is met.’
SUBMISSIONS ON ASSESSMENT
13. Should the tribunal find the claimed condition is war-caused, the determination of the correct rate of pension remains.
14. The Applicant does satisfy section 24(1)(a) from the earliest date, 11 December 1998.
15. The Respondent contends the Applicant does not satisfy section 24(1)(b) of the Act on the basis of the specialist medical evidence. In respect of section 28 of the Act, the Tribunal is required to have regard to the vocational, trade and professional skills, qualifications and experience of the veteran.
16. The Applicant cites an employment history as follows:
(a)Prior to service, employed in the railways ticket office as a clerk for 12 months and farm machinery sales for 2 to 3 years; and
(b)aircraft maintenance in the RAAF, primarily the servicing of aircraft engines. His rank on discharge was Sergeant.; and
(c)RAAF reserve employment for the years 1996 to 1998. The Applicant was employed to assess the serviceability of aircraft parts held in unit stores for repair or alternatively identified for disposal. This required locating the parts in stores sections, identifying any servicing requirements, updating service specifications from the manufacturer, often by facsimile, and forwarding the part with specification sheet to the workshop; and
(d)RAAF reserve employment for the years 1998 to 2000 in aircraft maintenance workshop; and
(e)From 1993 to 2000 the Applicant was engaged in raising and selling cattle on his 40 acre property which included his residence from 1992. The yearly partnership returns show annual sales of between 0 and 7 cattle sold between 1995 and 1999. In 2000, the final year of operation, the Applicant sold 16 cattle. Sales ranged from $207 to $2365 in the years 1995 to 1999; and
(f)Assistance in contract grain harvesting business, including Ashcroft farming and his brother until 2002, it should be noted the Applicant suffered a head injury from farm machinery in 1999.
17. In respect of work capacity the following medical opinions are relevant;
(a)Dr Mulholland (exhibit 8) at paragraph 15.4 in relation to a diagnosis of chronic dysthymic disorder states, ‘this depression would probably have lowered his ability to work to some extent but would not have lowered it to less than 20 hours per week and certainly would not have lowered it to less than 8 hours per week. In other words his depression is not and has not been the main reason why he has not been working; and
(b)Dr Knight (exhibit 12) describes his educational/vocational profile reflected hands-on skills and significant clerical/administrative/ supervisory work, and “from a musculoskeletal perspective I therefore think that he would be capable of performing at least 20 hours per week or more of such sedentary duties ,noting his reported success in the Diploma of Accounting course despite reported discomfort”; and
(c)Dr Madden, (exhibit 9) stated the Applicant was prevented from engaging in his trades of engine repair and farming due to his accepted conditions. In oral evidence, the Dr accepted that clerical duties fell within the Applicant’s work experience. He noted the Applicant experienced symptoms of discomfort after 1 to 2 hours when seated but if the Applicant shifted from the seated position ie “took a break” then, in the Dr’s opinion, he would be capable of a further 1 hours work in the seated position before discomfort. The Dr agreed this could continue over a full work period without permanent effect on the symptoms; and
(d)Dr Ewing (exhibit 10; folio 99) stating “…in other words, on the basis of his response to specialist treatment over twelvemonths (sic), I consider his to be Totally and Permanently Disabled according to the Department’s definition”;
(e)The Applicant was evaluated by CRS in 2001 and assessed suitable for clerical/administrative work and then elected to enhance his skills by undertaking study in accounting.
18. The Respondent submits the Applicant has not satisfied section 24(1)(b) of the Act since the Applicant has ceased to engage in remunerative work, namely, his RAAF reserve in 2000 and/or grain harvesting from 1995 until 2002. The specialist medical opinions of Dr Mulholland and Dr Knight cite a capacity for work not reduced below 20 hours per week in the clerical/administrative field. Dr Madden accepted that with appropriate breaks the Applicant could undertake office/clerical work for a full working day without exacerbating symptoms. The Applicant has demonstrated competency in a warehouse/stores environment and could undertake such employment should it be available.
The Respondent submits the Applicant’s work history eg service Sergeant duties and RAAF reserve work includes such activities and the Applicant’s study the field of accounting indicates his willingness to undertake such work.
19. In respect of the cattle raising, the Respondent submits this activity does not represent remunerative work within the meaning of section 5Q(1) of the Act. The Tribunal should find the returns are not reflective of effort involved from the activity. The Tribunal should note the Applicant’s statement; “ I put all my time into that place” ( paragraph 18, exhibit 2), the magnitude of the operation “I only went to the bank and got a loan for the purpose of building a house on the property ” and “I never got a loan from the bank for the purpose of securing any form of overdraft purely for the cattle alone” (exhibit 4 paragraph 11 and 12) , the quantity of cattle held and sold on a yearly basis and the average sale price attained. The Respondent submits the attachments to taxation returns reflect the potential of the farming activity, that is, sales of 0-7/year. The Applicant, in oral evidence, noted the “nil sales” in 1996 and citing the production of yearlings required 2 years. Most sales were in year 2000, 16 cattle, reflecting the disposal of remaining cattle. From 1994 to 1999 numbers of cattle sold ranged from 0 to 9.
The tribunal is [sic] could find that activity is more within the meaning of a hobby, the potential to provide income was minimal. Hill and Repatriation Commission [2000] FCA 929.
20. The Respondent contends the Applicant has not satisfied section 24(1)(c) of the Act since the Applicant has not been prevented from undertaking remunerative work within the meaning of the Act namely due to war-cased disabilities alone. The Applicant has not suffered a loss of income as a result of war-caused incapacity.
31. In oral submissions, the advocate for the Respondent contended that the psychological condition of the Applicant had its genesis in a transfer away from Amberley Base and losses of promotion within the RAAF. The Respondent submitted that the Tribunal could find that either the chronic pain definition in the depressive disorder statement of principles was satisfied or, alternatively, factors A or B within the relevant standard of principles for adjustment disorder.”
Other Medical Evidence
32. In the T- documents (Exhibit 10), in a report dated 21 December 1999 Dr Douglas Scott, Consultant Psychiatrist, expressed the opinion that the Applicant was suffering from "adjustment disorder with depressed mood". In the same bundle of documents there is a subsequent psychiatric report, by Dr David G P Jenkins, Consultant Psychiatrist, dated 11 May 2000 in which Dr Jenkins diagnosed the Applicant is suffering from "dysthymic disorder" and expressed the opinion that the Applicant was incapable of properly and productively performing any kind of gainful occupation for more than eight hours per week. Similarly, there is a report dated 10 April 2001 from Dr JA Ewing, who after noting the different psychiatric/psychological diagnoses that had been made expressed the opinion that the appropriate diagnosis was "adjustment disorder with depressed mood or mixed anxiety and depression".
Discussion of the Medical Evidence
33. In terms of the psychiatric conditions of the Applicant, there are two competing diagnosis provided by specialist medical practitioners. Dr Mulholland (called by the Applicant and not cross-examined by the Respondent) opined that the Applicant suffers from chronic dysthymic disorder[1], which Dr Mulholland attributed to the chronic pain experienced by the Applicant and the subsequent limitations that this placed on his life. Dr Mulholland also considered that the relative lack of success the Applicant experienced in relation to his farm also aggravated his depression. Dr Mulholland said that the currently diagnosed chronic dysthymic disorder would not prevent the Applicant from working for more than 8 hours per week in the fields of employment that he is suited for by virtue of training, qualifications and experience. Dr Mulholland also said that the chronic dysthymic disorder of the Applicant would probably have lowered his ability to work to some extent but would not have lowered it to less than 20 hours per week and certainly would not have lowered it to less than 8 hours per week. In other words, the depression was not and has not been the main reason why the Applicant was not working.
[1] “Dysthymia” is a degree of depression not amounting to a severe psychosis: Robert M. Youngson, Collins Dictionary of Medicine (HarperCollins Publishers, Glasgow, 1999), p 188 (entry “Dysthymia”).
34. Dr Madden (also called by the Applicant) said that the orthopaedic and psychiatric conditions of the Applicant prevented him from pursuing the 2 occupations of engine fitting and farming and that the Applicant's capacity to work was reduced to less than eight hours per week. On balance, then, the evidence for the Applicant is fragmented on the issue of the nexus between injury/disease and work capacity, although the preponderance of evidence indicates that the Applicant is not capable of working more than eight hours per week. Expert psychiatric evidence of Dr Mulholland (accepted by the Respondent, naturally enough as it turned out) was to the effect that the Applicant could work more than eight hours per week. Expert non-psychiatric medical evidence (Dr Madden) was to the opposite effect. Dr Madden did, however, take into account both physical and psychiatric factors in reaching his conclusion. Dr Knight, Consultant Occupational Physician (called by the Respondent), expressed the opinion that from a musculoskeletal perspective, the Applicant could perform 20 hours or more of work per week in sedentary duties. The only medical evidence that considered both psychiatric and musculoskeletal domains was the evidence provided by Dr Madden, which was to the effect that the Applicant could not work for more than eight hours per week. From a whole-of-person approach, the evidence of Dr Madden is to be preferred to that of Dr Knight because both physical and psychological factors have been taken into account in forming an assessment of the work capacity of the Applicant.
35. The Tribunal did consider the forensic clash between Counsel for the Applicant and Dr Knight during the hearing. On reflection, this exchange did not really impact on the capacity of the Tribunal to accept the evidence of Dr Knight as contained in his 15 March 2004 report, and in particular Dr Knight's opinion that the Applicant was capable of working for 20 hours per week or more taking into account his orthopaedic and physical limitations. In cross-examination, as well as in his 15 March 2004 report, Dr Knight conceded that he was not a psychiatrist and that it was better for psychological assessments to be left to psychiatric expertise.
36. The medical psychiatric/psychological evidence recounted above is divided between a diagnosis of adjustment disorder (Dr Scott and Dr Ewing) and chronic dysthymic disorder (Dr Mulholland). Dr Mulholland (the most recent expert who examined the Applicant, albeit for medico-legal purposes and not as the treating psychiatrist of the Applicant) did note the earlier diagnosis of adjustment disorder with depressed mood, and went on to say that as time had passed and the Applicant continued to be depressed, the preferred diagnosis was chronic dysthymic disorder. The Tribunal noted that neither Dr Scott nor Dr Ewing was called for cross-examination, and that the only psychiatric expert from whom the Tribunal heard was Dr Mulholland. The Tribunal did not have the advantage of seeing Dr Scott or Dr Ewing in person, nor receiving the benefit of their expert opinions as to possible alternative diagnosis of chronic dysthymic disorder. The Tribunal is inclined to adopt a diagnosis of chronic dysthymic disorder because it is the most recent psychiatric diagnosis which has also been tested forensically in these proceedings.
Findings of Fact
37. Based upon the evidence before it, the Tribunal makes the following findings of fact:
A.Mr Gary Hasted (the Applicant) was born on 31 October 1952.
B.The Applicant rendered defence service from 7 December 1972 until 30 June 1993.
C.The Applicant began experiencing back, shoulder and knee problems since the late 1970s which depressed him at the time.
D.The Applicant has been in receipt of a disability pension assessed at 80% of the General Rate with effect from 11 December 1998.
E.On 11 March 1999, the Applicant lodged with the Repatriation Commission (the Respondent) a formal claim for acceptance of liability for "stress anxiety disorder" (among other conditions) when he was 47 years of age. The Respondent treated this as a claim for an "adjustment disorder".
F.On 29 March 2000, the Respondent refused the Applicant's claim for adjustment disorder.
G.On 23 May 2000, the Applicant sought review of the 29 March 2000 rejection decision from the Veterans' Review Board.
H.The Applicant stopped work on his farm because of his physical limitations and his pain from those physical conditions during the 1999 -- 2000 fiscal year.
I.On 25 July 2001, the Veterans' Review Board affirmed the decision of the Respondent of 29 March 2000 in relation to the adjustment disorder.
J.The Applicant lodged an application for review with this Tribunal on 3 September 2001.
K.The Applicant suffers from chronic dysthymic disorder.
Summary of The Legislative Scheme
38. In Schmidt v Repatriation Commission [2004] FCA 1158 at [5], Spender J accepted the following summary of certain key provisions of the Act, which this Tribunal gratefully adopts:
“[5] … Section 13 of the Act imposes upon the Commonwealth, liability to pay pensions to eligible persons. Section 14 deals with the making of claims for pensions and s 15 deals with making applications for increases in such pensions. Section 17 requires the Secretary of the Department of Veterans’ Affairs to investigate claims and applications. Section 19 gives to the Repatriation Commission the duty of determining claims and applications for pensions and to determine the rate at which the pension is payable.”
39. The standard of proof to be followed by the Tribunal in relation to the claim of the Applicant is governed by section 120(4), which states:
“120 Standard of proof
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re‑assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.”
40.The Note to section 120(4) provides a signpost to section 120B, which reads:
“120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
(b)a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
Note 1: Subsection 120(4) is relevant to these claims.
Note 2: For hazardous service and member of the Forces see subsection 5Q(1A).
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(3) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war‑caused or defence‑caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii)a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(3), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”
41. In following the pathway signified by sections 120(4) and 120B(3) with reference to the reasonable satisfaction of the decision-maker, Beaumont J of the Federal Court in Smith v Repatriation Commission (1987) 74 ALR 537 at 547 said that a decision-maker (including this Tribunal):
"... should have asked itself whether, on the facts of the case, it was persuaded on the civil standard. There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other (see Re Repatriation Commission and Delkou (1986) 9 ALD 358; Re Easton and Repatriation Commission (1987) 12 ALD 777 and; Re Repatriation Commission and Falkner (1987) 12 ALD 87.”
42. This particular passage and its mode of analysis were followed by this Tribunal in Re Buckham and Repatriation Commission [2000] AATA 174 at [55].
43. The Repatriation Medical Authority has devised Statements of Principles (“SoPs”) in respect of post traumatic stress disorder pursuant to section 196B(2) of the Act. Section 120A says the reasonableness of the hypotheses must be assessed against the relevant SoPs. A SoP is brought into existence in order to comply with section 196B: Kattenberg v Repatriation Commission (2002) 73 ALD 365 at [42]. There were no determinations of the Repatriation Commission under subsection 180A(2) that are relevant to this case, and the parties did not contend to that effect.
44. Section 196B(14) sets out the relationships to service contemplated by the SoP’s, whether the service is war service or defence service: see Haughey and Repatriation Commission [2005] AATA 189 at [35]. Section 196B(14) reads:
“196B Functions of authority
(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b)it arose out of, or was attributable to, that service; or
(c)it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey:
(i)to a place for the purpose of performing duty; or
(ii) away from a place of duty upon having ceased to perform duty; or
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
(e)in the case of a factor causing, or contributing to, an injury—it resulted from an accident that would not have occurred:
(i)but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or
(f)in the case of a factor causing, or contributing to, a disease—it would not have occurred:
(i)but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or
(g)in the case of a factor causing, or contributing to, the death of a person—it was due to an accident that would not have occurred, or to a disease that would not have been contracted:
(i)but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service.”
45. Relevant excerpts from section 24 of the Act as applicable to the circumstances of this case state:
“24 Special Rate of Pension“
(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i)the degree of incapacity of the veteran from war‑caused injury or war‑caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war‑caused injury or war‑caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war‑caused injury or war‑caused disease, or both, alone, 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; and
(d) section 25 does not apply to the veteran.
(2) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war‑caused injury or war‑caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war‑caused injury or war‑caused disease, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
(4) Subject to subsections (5) and (6), the rate at which pension is payable to a veteran to whom this section applies is $571.70 per fortnight.”
46. In relation to any part of the Applicant’s claim for any condition that is said to relate to defence service (as distinct from operational service), the Deledio “reasonable hypothesis” [from Repatriation Commission v Deledio (1998) 83 FCR 82] approach is not followed – instead the Tribunal must simply test the Applicant’s claim against the factors of the relevant SoP. For the Applicant to be successful, the Tribunal must accept his claim to a standard of reasonable satisfaction: see Williamson and Repatriation Commission [2004] AATA 1185. The Tribunal must be satisfied (to a standard of reasonable satisfaction) that the Applicant suffers from a medical condition. The Tribunal considered this aspect next.
Diagnosis
47. The first issue for the Tribunal is that of diagnosis. The question of whether a veteran suffers from a particular medical condition is decided to the reasonable satisfaction of the Tribunal: section 120(4). On the basis of the medical opinions before the Tribunal (discussed earlier in these Reasons for Decision), the Tribunal is satisfied on the civil standard of the balance of probabilities (as directed by Smith v Repatriation Commission (1987) 74 ALR 537 at 547) that the Applicant suffers from chronic dysthymic disorder. This finding, however, does not conclude the matter as there must exist the relevant connection between the Applicant's medical condition and his defence service.
Tribunal’s Reasons
48. To recapitulate, this is an application by the Applicant under section 15 of the Act for an increase in the rate of pension that he is receiving. Section 24 (reproduced in part above) sets out the conditions that must be satisfied if the Applicant is to qualify for a special rate of pension.
49. Where there is a SoP in force for a particular medical condition, the Tribunal must determine whether the material before it raises a connection between the Applicant's condition and his military service (in this case, defence service). The Tribunal has to decide whether the applicable SoP upholds the contention that the Applicant’s injury is, on the balance of probabilities, connected with the Applicant's service (section 120B(3)(b)). The relationship to service must be one of the relationships prescribed in section 196B(14): Haughey and Repatriation Commission [2005] AATA 189 at [63].
50. In coming to a decision, the Tribunal must form an opinion whether the contention raised by the Applicant fits within or is consistent with a factor set out in the SoP. If the contention fails to fit within the template, the claim will fail: Haughey and Repatriation Commission [2005] AATA 189 at [64].
51. Based on the evidence before it, the Tribunal is satisfied that the Applicant suffers from chronic dysthymic disorder. This leads to consideration of the contention of the Applicant that this medical condition from which he suffers fits within the SoP for depressive disorder (Instrument No 59 of 1998). Extracts from SoP No 59 of 1998 as they are relevant to this case are set out below.
“2(b) For the purposes of this Statement of Principles, “depressive disorder” is defined as:
(A)the presence of major depressive disorder, dysthymic disorder or depression not otherwise specified where:
(i)major depressive disorder is either a single episode or recurrent episode as defined in DSM-IV; and
(ii)dysthymic disorder, as defined in DSM-IV, is a chronic mood disturbance, of at least two years duration, involving depressed mood, or loss of interest or pleasure, with manifestation of the symptoms used to diagnose major depression such as neurovegative signs, social withdrawal, cognitive impairment and suicidal ideation; and
(iii)depression not otherwise specified, such as minor depressive disorder and recurrent brief depressive disorder, as defined in DSM-IV, includes disorders with depressive features that do not meet the DSM IV diagnostic criteria for other specific mood disorders,
attracting ICD-9-CM code 296.2, 296.3, 300.4 or 311.
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Other definitions
8. For the purposes of this Statement of Principles:
“chronic pain” means continuous or almost continuous pain, which may or may not be ameliorated by analgesic medication and which is of a level to cause interference with usual work or leisure activities or activities of daily living;”
52.The Applicant relied on factor 5(d) from SoP No 59 of 1998, which reads:
“Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, depressive disorder or death from depressive disorder is connected with the circumstances of a person’s relevant service are:
(d)suffering from chronic pain of at least six months duration at the time of the clinical onset of depressive disorder;”
53. Adapting what this Tribunal said in Palmer and Repatriation Commission [2005] AATA 2 at para [63]:
“Clause 4 of the SoP [No 59 of 1998] requires at least one of the clause 5 factors to be related to any relevant service rendered by the veteran.... The nexus (expressed in the words “be related to”) between the causative factor and relevant service required by clause 4 of [SoP No 59 of 1998] does not need to be temporal (although this is sufficient rather than necessary). Clause 4 does not specify the relationship between the causative factor and relevant service. Phrases in the nature of “in respect of” and “in relation to” are taken to be of the broadest import: see O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356 at 374 per Toohey and Gaudron JJ and at 376 per McHugh J. Although much depends on the particular context in which any two or more referents are said to be “related”, there is sufficient judicial warrant for reading the relationship between the causative factor and relevant service as being satisfied if there is a relationship, whether direct or indirect, between these two matters. Put another way, there must be some kind of connection between the two matters for the relationship to arise. The determination of this is a matter for the Tribunal or other decision-maker.”
54. Following Kattenberg v Repatriation Commission (2002) 73 ALD 365 at [42], it is proper to read into the language of the SoP the language of section 196B(14).
55. In Kattenberg v Repatriation Commission (2002) 73 ALD 365 at [9], the Federal Court said that section 196B(14) explains what is meant by the requirement to set out the factors that must be related to service rendered by a person. It does that by enumerating a number of alternate meanings of the phrase “related to service”. That is to say, it clarifies the circumstances in which the necessary causal relationship between a factor and service will be present. In this case, a factor that causes or contributes to a disease is related to service rendered by a person, relevantly, corresponds to paragraph (a) of section 196B(14). In this case, the Tribunal finds that the orthopaedic conditions of the Applicant arose out of, or was attributable to, the service of the Applicant within the meaning of section 196B(14)(b) (the Applicant has number of service-related orthopaedic conditions for which the Respondent has already accepted liability).
56. The Applicant relied on the following sequence of events to ground the liability of the Respondent for the chronic dysthymic disorder he suffers from:
(1) The Applicant has service-related orthopaedic conditions.
(2)These orthopaedic conditions result in chronic pain which is of a level as to cause interference with his usual work or leisure activities.
(3)This chronic pain subsisted for at least six months at the time of the clinical onset of his depression.
(4)This chronic pain was related to and arose out of his military service.
(5)Therefore, the Respondent (and this Tribunal on merits-based review) should accept liability for his depression.
57. The evidence of Dr Ewing (Exhibit 10) indicates that the depression of the Applicant began in probably 1982 but got worse after the Applicant was transferred back to RAAF Amberley Base in 1990. Accordingly, the depression of the Applicant arose during his military service before his discharge in 1993.
58. The Tribunal is satisfied that the chronic pain suffered by the Applicant arose out of his military service, and that this chronic pain precipitated or caused his depression, and that the depression manifested during his military service, particularly in the last three years before his discharge in 1993. Accordingly, the Tribunal is satisfied that the necessary relationship exists between the chronic pain of the Applicant and his military service for the purposes of factor 5(d) of SoP No 59 of 1998.
59. In view of this finding of the Tribunal, the next issue to consider is the application of section 24 as to whether or not the Applicant qualifies for a special rate of pension within the parameters of that provision. Thus far the evidence establishes the following elements of section 24. The Applicant applied for an increase of the rate of pension he is receiving (section 24(1)(aa)). The Applicant is under the age of 65 when he applied for a pension increase (section 24(1)(ab)). The Applicant already has a degree of incapacity that has been measured at above 70% (namely 80%) within section 21A (section 24(1)(a)(i)). The next issue is the application of section 24(1)(b).
60. Section 24(1)(b) requires that the Applicant be totally and permanently incapacitated, that is to say, his incapacity from war-caused injury or war-caused disease (or both) is of such a nature as, of itself alone, to render the Applicant incapable of undertaking remunerative work for periods aggregating more than eight hours per week. Furthermore, because of section 24(1)(c), by reason of his incapacity from war-caused injury or war-caused disease alone, the Applicant is prevented from continuing to undertake remunerative work that he was previously performing and has suffered loss of salary or wages, or earnings from self-employment, that the Applicant would not be suffering if he was free of that incapacity (section 24(2) elaborates upon section 24(1)(c)).
61. Taking section 24(1)(b) first, the evidence of the Applicant was that he could not work at all because of his chronic pain stemming from his service-related orthopaedic conditions. Dr Madden’s evidence to the Tribunal is that the Applicant is not able to work for more than 8 hours per week (the Tribunal accepted this evidence in preference to that from Dr Knight). Thus the Applicant satisfies section 24(1)(b).
62. As for section 24(1)(c), the inquiry is whether by reason of his incapacity from war-caused injury or war-caused disease alone, the Applicant is prevented from continuing to undertake remunerative work that he was previously performing and has suffered loss of salary or wages, or earnings from self-employment, that the Applicant would not be suffering if he was free of that incapacity. In addition, section 24(2) requires two other factors to be met. First, section 24(2)(a) stipulates that an incapacitated veteran is not taken to be suffering a loss of salary or wages, or of earnings from self-employment, if he has ceased to engage in remunerative work for reasons other than his incapacity, or for some other reason is incapacitated or prevented from engaging in remunerative work. Secondly, section 24(2)(b) stipulates that in the case of a veteran who is under the age of 65 (as the Applicant is) he satisfies the Respondent that he has been genuinely seeking to engage in remunerative work that he would be undertaking but for his incapacity, and that that incapacity is the substantial cause of the inability of the Applicant to obtain and engage that remunerative work.
63. Section 24(1)(c) was understood in these terms by Fox and Jenkinson JJ in Starcevich v Repatriation Commission(1987) 18 FCR 221; 14 ALD 160:
“Section 24(1)(c) when read with section 24(2) of the Veterans' Entitlements Act 1986 requires three conditions to be satisfied. The veteran must be prevented from continuing to undertake remunerative work that he or she was undertaking. This must be by reason alone of the veteran's war-caused injury or disease referred to in section 24(1)(b). This must also result in the veteran suffering a loss of salary or wages or earnings on his or her own account" (at 14 ALD 161).
64. In Flentjar v Repatriation Commission [1997] FCA 1200, (1997) 26 AAR 93; (1997) 48 ALD 1 at 2, Branson J (Beaumont and Merkel JJ agreeing) said that the proper approach for a primary or secondary decision maker concerned with the operation of section 24(1)(c) is to pose and proceed through the following questions:
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, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
65. Flentjar v Repatriation Commission was applied in Peacock v Repatriation Commission [2004] FCA 1449, among many other Federal Court and Tribunal decisions.[2] Flentjar v Repatriation Commission underscores the importance of decision makers entering into a proper, genuine and realistic consideration of the issue of what remunerative work the veteran would have undertaken but for the incapacity. Neither party referred the Tribunal to Flentjar v Repatriation Commission, but the Tribunal is satisfied that this decision is both applicable and relevant, and so the Tribunal proceeded to examine the four Flentjarquestions in these terms.
[2] Without being exhaustive, the Tribunal took note of Forbes v Repatriation Commission [2000] FCA 328, Hendy v Repatriation Commission [2002] FCA 602, Ganley and Repatriation Commission [2005] AATA 427 and Clarke and Repatriation Commission [2005] AATA 524.
66. As for the first Flentjarquestion, the relevant inquiry is what was "remunerative work that the veteran was undertaking" within the meaning of section 24(1)(c). According to Banovich v Repatriation Commission (1986) 69 ALR 395, this is to be read as a reference to the type of work which the veteran had previously undertaken and not to any particular job: see also Ganley and Repatriation Commission [2005] AATA 427 at [35]. In this case, the Applicant during his air force service performed work as an engine fitter. After his retirement, he performed farm work and clerical work as a Reservist.
67. Next, the second Flentjarquestion (which reflects section 24(1)(b): see Ganley and Repatriation Commission [2005] AATA 427 at [37]): is the Applicant, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work? In this case, the evidence is that both the orthopaedic and psychiatric conditions of the Applicant prevent him from continuing to undertake the work identified in the previous paragraph.
68. The Tribunal moved onto the third Flentjarquestion (which reflects the "alone" test in section 24(1)(c): see Ganley and Repatriation Commission [2005] AATA 427 at [38].) 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 Applicant from continuing to undertake that work? Section 24(1)(c) operates side-by-side with section 24(2)(a).
69. Taking element (i) first (which is section 24(2)(a)(i)), the evidence before the Tribunal did not disclose any other reasons that were causative of the Applicant ceasing to work his farm. In cross-examination, the Respondent attempted to elicit evidence that the Applicant had stopped working his farm because of drought and low income leading to unsustainability, therefore bringing into operation the severance of the causative element contained within section 24(1)(c) (as amplified by section 24(2)(a)(i)) as a type of novus actus interveniens. The Applicant did concede that drought affected the operations of his farm and that he did have periods of low income, especially when he first acquired the land and began to stock his cattle and build some of the infrastructure that was necessary to operate the farm. Nevertheless, the Tribunal was satisfied treating causation as a commonsense phenomenon (from March v E & MH Stramere Pty Ltd(1991) 171 CLR 506), that on the basis of the evidence before it (Exhibits 1, 2, and 3) that the Applicant was prevented by reason alone of his war-caused injury or disease (his depression which resulted from chronic pain from his orthopaedic conditions) prevented him from continuing to undertake remunerative work that he or she was undertaking (his Reservist work in the air force). True it is that the drought affected the working of the farm, and that the farm was never a highly profitable venture, but these two factors did not, as stated previously, break the chain of causation between the incapacity of the veteran and his loss of earnings on his own account.
70. Element (ii) (section 24(2)(a)(ii)), has an element of exclusion which has a different focal point from section 24(2)(a)(i). Section 24(2)(a)(ii) searches for the presence or absence of some other reason which prevents the veteran from engaging in remunerative work. In this case the same evidence considered in relation to section 24(2)(a)(i) above applies again, and yields the same result, namely that there was no other reason why the Applicant was prevented from engaging in remunerative work.
71. The Tribunal moved onto the fourth Flentjarquestion: 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, wages or earnings on his own account that he would not be suffering if he were free of that incapacity? The legislative basis for the fourth Flentjar question is section 24(1)(c), which operates also in tandem with section 24(2)(b), the latter also being an element of exclusion.
72. The Applicant did state in evidence that he did lose income from his Reservist work when he stopped that work because of his pain (Exhibits 1, 2, 3 and 4). The Tribunal accepted this evidence, which grounds the application of the loss of salary or wages or earnings on his or her own account element under section 24(1)(c). The Tribunal then went on to consider section 24(2) (as it must: see also Starcevich v Repatriation Commission (1987) 18 FCR 221; 14 ALD 160 at 161). Section 24(2) focuses the attention of the Tribunal on whether the Applicant (as an incapacitated veteran) did not suffer a loss of salary or wages, or of earnings from his own account, if either:
(i)the Applicant ceased to engage in remunerative work for reasons other than his incapacity, and
(ii)for some other reason the Applicant is incapacitated or prevented from engaging in remunerative work.
73. What separates these two provisions is that section 24(2)(a)(i) centres inquiry on the cessation of remunerative work for non-incapacity reasons, while section 24(2)(a)(ii) focuses on the anterior stage of a non-incapacity reason preventing the veteran from engaging in remunerative work. Section 24(2) operates as an element of exclusion, so that if either of the two major limbs contained in the provision (section 24(2)(a) and (b)) are applicable, then the Applicant cannot satisfy section 24(1)(c) and so does not ultimately qualify for a special rate of pension.
74. Section 24(2)(b) requires a veteran under the age of 65 years (the Applicant) to satisfy the Respondent (and on appeal, this Tribunal) that they have not been unable to engage in remunerative work that they (the Applicant) would, but for the incapacity, be continuing to seek to engage in remunerative work and that this incapacity is the substantial cause of his inability to obtain such remunerative work. The evidence before the Tribunal was to the effect that the Applicant had been engaged in Reservist work, but that he gave this up because of the pain from his orthopaedic conditions, which led to his depression. Moreover, the Applicant gave evidence (which the Tribunal accepted) that he did attempt to retrain himself by studying a Diploma of Accounting through TAFE, but that he was only able to complete 3 out of 16 subjects. The Tribunal accepted the evidence of the Applicant that the Commonwealth Rehabilitation Service told him that it was not worth his while to study towards and complete this course at a workload level of 25% instead of 100%. Section 24(2)(b) also requires the Applicant to demonstrate that he has been genuinely seeking to engage in remunerative work. The evidence of Dr Madden (which the Tribunal accepted) (Exhibit 9) was that the Applicant was not malingering. The Applicant gave evidence that but for his pain-induced depression as a result of his service-related orthopaedic conditions, he would have worked the farm as it had been his dream to do so after he retired from the Air Force. Accordingly, the Tribunal was satisfied that the Applicant had been genuinely seeking to engage in remunerative work through the pursuit of working the farm and attempting to re-skill himself through his accounting studies but that the main reason why this failed was because of his service-related medical conditions. This leads to the finding that the Tribunal is satisfied that the Applicant should be treated by reason of his incapacity as having been prevented from continuing to undertake remunerative work that he was previously undertaking, and this was by reason of his war-caused incapacity, so grounding the application of section 24(2)(b). The application of section 24(1)(c) in conjunction with section 24(2)(b) yields the following. The evidence of the Applicant, together with specialist medical evidence, which the Tribunal accepted allows the Tribunal to conclude that his service-related orthopaedic and psychiatric conditions are the sole causes preventing the Applicant from pursuing or undertaking remunerative work.
75. Section 24(1)(d) requires that section 25 not apply to the Applicant. Section 25 deals with temporary incapacity from war-caused injury or war-caused disease (or both) the evidence of Dr Knight was that the capacity of the Applicant was permanent, not temporary. The Tribunal was satisfied that section 25 does not apply to the Applicant.
76. The analysis of the Tribunal undertaken above leads to the conclusion that the Applicant satisfies the requirements of section 24(1) (together with its companion provisions), and so qualifies for the special rate of pension.
Tribunal’s Conclusion
77. Based upon the material before it, and for these Reasons, the Tribunal concludes that the correct or preferable decision is that the Applicant qualifies for the special rate of pension within section 24 of the Veterans' Entitlements Act 1986.
Tribunal’s Order
78. The Tribunal decides to set aside the decision under review and to substitute the decision that chronic dysthymic disorder is defence-caused within the meaning of the Veterans’ Entitlements Act 1986 with effect from 11 December 1998. The Tribunal remits the matter to the Respondent for assessment and implementation in accordance with these Reasons for Decision.
I certify that the 78 preceding paragraphs are a true copy of the reasons for the decision herein of Mr SC Fisher, Member
Signed: Denise Burton
Administrative Assistant
Dates of Hearing 19 and 20 January 2005 and 28 June 2005
Date of Decision 24 October 2005
For the Applicant Mr D O’Gorman
Gilshenan & Luton LawyersFor the Respondent Mr B Williams, Departmental Advocate
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