Heydon and Repatriation Commission
[2008] AATA 791
•5 September 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 791
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2547
VETERANS' APPEALS DIVISION ) Re MICHAEL HEYDON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms N Bell, Senior Member
DR I Alexander, MemberDate 5 September 2008
PlaceSydney
Decision The decision under review is affirmed .....................SGD.........................
Ms N Bell, Senior Member
CATCHWORDS
Veterans’ Affairs – Veterans' entitlements - Disability Pension – Alcohol Abuse not related to Army service – Applicant does not suffer from Chronic Adjustment Disorder – either conditions not accepted as defence service caused injuries - decision under review affirmed.
Veterans’ Entitlement Act 1986 (Cth)
Statement of Principles Instrument No 18 of 2008
Statement of Principles Instrument No 38 of 2008
REASONS FOR DECISION
5 September 2008 Ms N Bell, Senior Member
DR I Alexander, Member1. Michael Heydon served in the Australian Army from 8 December 1971 to 12 March 2004 and had eligible defence service for that period.
2. In July 1983, when he was participating in an Army exercise, Mr Heydon stepped onto a ladder descending from the rear of a track light cargo vehicle and, because of a missing rung on the ladder, fell to the ground. He was hospitalised for six months after surgery to his right leg, having his leg in plaster for two months and then spending four months in rehabilitation.
3. Mr Heydon’s incapacity from his ligamentous injury to his right knee was accepted by the Repatriation Commission, together with bilateral sensorineural hearing loss with tinnitus, painful arc syndrome – right shoulder and fractured right wrist with osteoarthritis. He now seeks to have ‘Alcohol Abuse’ and ‘Chronic Adjustment Disorder’ accepted as defence caused injuries. He considers that both arise, directly or indirectly, from his right leg injury. The Repatriation Commission rejects these claims, first, on the basis that Mr Heydon does not suffer from either condition, and second that, even if he does, they are not connected with his Army service.
4. Questions of diagnosis in veterans’ entitlement applications must be considered on the balance of probabilities. Questions of defence causation must also be considered in accordance with this standard of proof, but, where a Statement of Principles (SoP) is in place, the connection posited must conform to a factor in the relevant SoP.
5. Mr Heydon contends that the SoPs relevant to his claims are No. 58 of 1996 concerning Adjustment Disorder, although we note that this was revoked by No. 38 of 2008, and No. 77 of 1998 concerning Alcohol Dependence or Alcohol Abuse, which we note was revoked by No. 18 of 2008 concerning Alcohol Dependence and Alcohol Abuse. We further note that the relevant diagnostic criteria in the current and revoked SoPs are identical.
issues
6. The issues to be considered are:
i) Whether Mr Heydon suffers from Adjustment Disorder or Alcohol Abuse or both; and
ii) If so, whether these conditions were caused by his Army service.
7. The second issue requires an examination of whether, on the balance of probabilities, the facts as found by us conform to a factor in the relevant SoPs. Questions arise as to the existence of the required kinds of stressors and dates of clinical onset of the conditions.
8. We have concluded, for the reasons that follow, that Mr Heydon does not suffer from the conditions of Adjustment Disorder and Alcohol Abuse. It is therefore not necessary to consider the issue of causation.
adjustment disorder
9. The diagnostic criteria for Adjustment Disorder in DSM-IV-TR are set out in SoP No. 38 of 2008 (identical to those set out in SoP No. 58 of 1996):
A.. The development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within 3 months of the onset of the stressor(s).
B. These symptoms or behaviours are clinically significant, as evidenced by either of the following:
(1) marked distress in excess of what is expected from exposure to the stressor; or
(2) significant impairment in social or occupational (academic) functioning.
C. The stress-related disturbance does not meet criteria for another specific Axis I disorder and is not merely an exacerbation of a pre-existing Axis I or Axis II disorder.
D. The symptoms do not represent bereavement.
E. Once the stressor (or its consequences) has terminated, the symptoms do not persist for more than an additional 6 months.
10. Mr Heydon described having fallen backwards from a vehicle and injuring his right leg, after which he climbed back into the vehicle with some difficulty, slept and woke up with severe swelling. He said that, when admitted to hospital, an orthopaedic surgeon said to him: “You’ll never walk again”. He described his response to that as one of determination to walk out of the hospital after his rehabilitation and said he worked hard and successfully to do so.
11. In a Medical Board Examination Record, his leg operation is summarised as follows:
“Repair torn anterior cruciate ligament and capsule. He has done very well on his rehabilitation program and now runs three Ks in excellent time. No anterior posterior laxity.”
12. Mr Heydon said he had some difficulties performing normal duties when he left the hospital and his fitness classifications at times reflected this. He also said he was successful in using his mind to overcome his physical limitations and described having become a “tech adviser” and using his mind to “overcome … problems that people that outranked me couldn’t do” (transcript, p. 30).
13. He also gave evidence that he had three administrative warnings during his service – two prior to his accident and one following it. Nevertheless, he progressed to the rank of Sergeant in the period following his accident.
14. In 2000, Mr Heydon was referred to, on a soldier summary record, as a “slug” and he said he was criticised for various things on a number of occasions, but he never lost his rank.
15. Mr Heydon described himself as a loner and said he had trouble working with other people, but he said: “I found I could more or less perform on my own” (transcript, p. 31).
16. Mr Heydon’s evidence was that he left the Army in 2005, when he reached compulsory retirement age of 55. He was not medically or otherwise discharged. He said he was “directed” by an advocate from the Integrated Services People Association of Australia to obtain a referral to the St John of God Hospital. He obtained a referral from his General Practitioner and attended the St John of God Hospital, on one day, to see Dr L. Schmidtman, Consultant Psychiatrist.
17. Dr Schmidtman, in her report dated 8 September 2005, diagnosed Chronic Adjustment Disorder” following Mr Heydon’s accident. She reported a history of Mr Heydon being anxious and fearful about walking in the dark, of feeling frustrated and alienated during his Army service due to his physical limitations, of feeling held back from promotion and of his fear of “being seen as a malingerer.” She reported dysphoric mood with high arousal, irritability and increasing social isolation. Her statement that: “He seems to have been able to manage to adjust to the sequelae of the accident and to continue his career in the Army until his age retirement in 2004” appears to contradict her diagnosis. She did not recommend medication and suggested only counselling.
18. In a short report dated 27 May 2008, Dr Brian White, Psychiatrist, diagnosed Chronic Adjustment Disorder related to the right knee injury and its continuing effects. He reported varying irritable mood, persistent anxiety, limited social life and a wariness of people.
19. Dr Anthony Hordern, Consultant Psychiatrist, in a report dated 6 October 2007, diagnosed Chronic Adjustment Disorder with mixed anxiety and depressed mood. However, he described the social contacts Mr Heydon has made in Gundagai, where he lives, and his pursuit of hobbies including painting and voluntary work, and his role as the Vice President of the Integrated Service People’s Association of Australia.
20. Dr Hordern appeared to base his diagnosis on what he described as an impairment of function experienced by Mr Heydon, identified by Dr Hordern as the “markedly adverse effect” of his disabilities on his Army career. Dr Hordern did not specify the ways in which this adverse effect on career had manifested. Later in his report, Dr Hordern speculated that Mr Heydon’s career in the Army was “much less successful than it probably would have been had the accident not occurred”, but referred to no particular indicator of this presumed lack of success.
21. Dr Hordern described Mr Heydon as not obviously tense or depressed, as talkative and in clear contact with reality and as pleasant and co-operative. He reported that he became distressed when he described injuring his right leg. We did not observe similar distress when Mr Heydon gave evidence of the accident before the Tribunal.
22. We note that none of the above Psychiatrists made reference to the diagnostic criteria for Adjustment Disorder and, in particular, made no reference to a “stressor”.
23. Dr John Roberts, Psychiatrist, reported in detail, in his report of 6 January 2008 and in oral evidence, on his examination of Mr Heydon. He said Mr Heydon told him he suffered from “PSD” but could not explain the nature of the disorder except to say it involved “stress” and said he had “flashbacks”. He described his questioning of Mr Heydon in order to establish whether he suffered from symptoms of anxiety and reported that Mr Heydon has not one clinical symptom of heightened anxiety of inappropriate degree and that no reactive state can be diagnosed in him. Dr Roberts said he found no psychosocial stressor had been experienced by Mr Heydon and that he found no significant distress or dysfunction.
24. Dr Roberts noted that Drs Schmidtman and White are clinicians and, acting in a clinical role, they can only proceed without question only on the history given to them by Mr Heydon. Dr Roberts noted the progress of Mr Heydon through his Army career without disciplinary action and without record of dysfunction, except for classifications arising from his leg injury. He also said that he could not explain, on reasonable psychiatric grounds, an Adjustment Disorder that persisted for more than 20 years following a reasonably minor stressor.
25. We prefer the opinion of Dr Roberts. The absence, with one minor exception, of disciplinary action against Mr Heydon or after his accident, his own description of his determination to rehabilitate himself despite the alleged prognosis of an orthopaedic surgeon, his own description of his ability to adjust to his physical limitations by “using his mind”, the history given to Dr Hordern of having made friends and performed voluntary work in his home town of Gundagai, his progression to and maintenance of the rank of Sergeant, and the absence of current symptoms of distress all point away from satisfaction of the diagnostic criteria for Adjustment Disorder. We are not satisfied that Mr Heydon suffered or suffers marked distress in excess of what is expected from exposure to the stressor of either the injury itself or the alleged prognosis, or that he suffered or suffers significant impairment in social or occupational (academic) functioning. Nor are we satisfied that Mr Heydon suffered any of these symptoms within three months of the stressor alleged by him.
26. On this basis we find that Mr Heydon does not suffer from Adjustment Disorder.
alcohol abuse
27. The diagnostic criteria for alcohol abuse in DSM-IV-TR are set out in SoP No. 18 of 2008 (identical to those set out in SoP No. 77 of 1998):
A. A maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period:
(1)Recurrent alcohol use resulting in a failure to fulfill major role obligations at work, school, or home (e.g., repeated absences or poor work performance related to alcohol use; alcohol-related absences, suspensions, or expulsions from school; neglect of children or household).
(2)Recurrent alcohol use in situations in which it is physically hazardous (e.g., driving an automobile or operating a machine when impaired by alcohol use).
(3)Recurrent alcohol-related legal problems (e.g., arrests for alcohol-related disorderly conduct).
(4)Continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the alcohol (e.g., arguments with spouse about consequences of intoxication, physical fights).
B. The symptoms have never met the criteria for alcohol dependence.
28. Mr Heydon’s evidence was that when he was discharged from hospital after his accident he began to self medicate with alcohol so as not to draw attention to himself by seeking pain medication. He said he feared being labelled as a “malingerer.” He said he began by drinking beer every day after he ceased duty and then, about six months after his discharge from hospital, he began to drink spirits and wine. He said that, apart from one occasion when, on parade, he was told he “smelled like a brewery”, he was never cautioned for drinking.
29. Mr Heydon’s attention was drawn to an extract from his Army medical record dated 17 June 1987 in which he was described as having vomiting, headaches and diarrhoea after drinking 12 pots of beer and eating a meat pie. This appeared to be the only record of excessive drinking by him during his Army service.
30. However, Mr Heydon reported to Dr Schmidtman that he drank up to 12 stubbies of beer most days while in the Army and that he now binge drinks up to “one flagon of port over two days on a regular basis”. He also insisted that he drank to great excess during his Army service but was able to mask it.
31. To Dr Roberts, Mr Heydon reported that he drank “six or seven beers or port on three days a week” but at its worst he would drink “a carton of beer two days per week” since the date of his injury. He did not mention to Dr Roberts any curtailing of this level of alcohol consumption.
32. To Dr Hordern, Mr Heydon reported that after his accident he “had started to drink more heavily - a carton of 24 beers several times a week”. He also said he had now curbed his intake of alcohol.
33. Mr Heydon confirmed this reporting in his oral evidence. He insisted that he was able to cover up this level of drinking and that it had no effect on his performance of his duties in the Army.
34. Mr Heydon was also referred to a Medical In-Confidence document completed and signed by him dated 8 October 2002 in which he stated that he never drank, had never had it suggested to him that he cut down his alcohol intake and that he has never been injured because of his drinking. Mr Heydon could offer no explanation for having completed the form in this way.
35. Mr Heydon told the Tribunal he had had no traffic accidents as a result of drinking and he had never been charged, in the Army or as a civilian, with any offence as a result of drinking. He said he has been breath tested many times but never found to be over the limit. Mr Heydon said he had never, because of his drinking, been unable to perform his duties.
36. Dr Schmidtman, in her report of 8 September 2005, said that Mr Heydon’s history is consistent with alcohol abuse “binge type currently”. However, she did not address any of the diagnostic criteria for alcohol abuse.
37. Dr White, in his report of 27 May 2008, said Mr Heydon has alcohol abuse associated with Adjustment Disorder which is, in turn, related to the continuing effects of his knee injury. However, Dr White did not address any of the diagnostic criteria of alcohol abuse.
38. Dr Hordern, in his report of 6 October 2007, said Mr Heydon suffers from Alcohol Abuse but made no reference to the diagnostic criteria.
39. In particular, none of the above psychiatrists made mention of any clinically significant impairment or distress, or alcohol related physical hazards, legal problems or interpersonal problems. Nor did Mr Heydon give evidence of such difficulties.
40. Dr Roberts, in his report of 6 January 2008, and in oral evidence, made no diagnosis of alcohol abuse. He considered the history given by Mr Heydon of significant alcohol abuse since 1983 to be untenable, given his promotion in the Army and his statement on 8 October 2002 to the effect that he did not drink at all. He also noted that Mr Heydon has never experienced blackouts, which are a common feature of excessive alcohol ingestion in the range asserted by Mr Heydon.
41. Dr Roberts also noted that Mr Heydon has never required an early morning drink to “steady himself down”. He also found it unlikely, if Mr Heydon’s history of alcohol consumption was accurate, that he had never been disciplined for alcohol related behaviour. He also doubted the alleged level of alcohol intake because there was no evidence of impaired function or of any of the other diagnostic criteria for alcohol abuse. He also said that if a person drinks at the rate alleged by Mr Heydon for more than two decades he is likely to suffer organic cerebral damage and there is no evidence of this in Mr Heydon’s case.
42. Again, we prefer the opinion of Dr Roberts which was, unlike the other psychiatrists’ opinions before us, provided with reference to the diagnostic criteria for alcohol abuse. Dr Roberts’ opinion was also given with an awareness of the significant inconsistencies in the various histories given and statements made by Mr Heydon.
43. We find, for these reasons, that Mr Heydon does not suffer from alcohol abuse.
decision
44. The decision under review is affirmed.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member
DR I Alexander, MemberSigned: ......................................SGD...............................................
Associate: Felicia DanieleDate/s of Hearing 10 June 2008
Date of Decision 5 September 2008
Solicitor for the Applicant Mr B Winship, Winship Legal Pty Ltd
Advocate for the Respondent Mr T O’Reilly, Department of Veterans’ Affairs
0
0
0