HICKS and REPATRIATION COMMISSION

[2010] AATA 327

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 327

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3609

VETERANS' APPEALS  DIVISION		)
Re		SYLVIA HICKS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal M.D. Allen, Senior Member
Dr M.E.C. Thorpe, Member

Date5 May 2010

PlaceSydney

Decision The decision under review is AFFIRMED.

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

M. D. Allen, Presiding Member  

CATCHWORDS

VETERANS’ ENTITLEMENTS:  Widows claim.  Hypothesis that the deceased’s Ischaemic Heart Disease was caused by clinically significant depressive disorder.  Statement of Principles for Depressive Disorder not met.  As sub-hypothesis not reasonable, major hypothesis not reasonable.  Decision refusing claim AFFIRMED.

LEGISLATION

Veterans’ Entitlements Act 1986 Ss 6A, 120, 120A

CASES

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Bey (1997) 79 FCR 364

Repatriation Commission v Owens (1996) 70 ALJR 904

McKenna v Repatriation Commission (1999) 86 FCR 144

REASONS FOR DECISION

5 May 2010 M.D. Allen, Senior Member
Dr M.E.C. Thorpe, Member           

1.      By application made 7 August 2008, the Applicant sought review of a decision by the Respondent that the death of her late husband, Albert Edwin HICKS was not war-caused.

2.      The deceased died on 19 October 2006 and there was no dispute in these proceedings that the cause of the deceased’s death was a coronary occlusion as a result of his Ischaemic Heart Disease (“IHD”).

3. As the deceased had operational service as that term is defined in Section 6A of the Veterans’ Entitlements Act 1986 (“VEA”), the standard of proof in this matter is that mandated by subsections 120(1) and (3) VEA.

4. Subsections 120(1) and (3) VEA provide that the death of a Veteran shall be accepted as being war-caused, unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. The Tribunal will be deemed to be so satisfied if, after a consideration of the whole of the material before it, the Tribunal is of the opinion that the said material does not raise a reasonable hypothesis connecting the death of the Veteran with the circumstances of the service rendered by him. Pursuant to section 120A VEA a hypothesis will not be a “reasonable hypothesis” unless it conforms to a so called Statement of Principles (“SoP”) issued by the Repatriation Medical Authority (“RMA”).

5. Subsection 120(6) VEA provides that neither party to this review bears any onus of proof.

6. The method the Tribunal must adopt in applying the provisions of any SoP issued pursuant to section 120A to the standard of proof mandated by subsections 120(3) and (1) VEA was set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 @ viz:

(a)All the material which is before the decision maker must be considered and determined as to whether the material points to a reasonable hypothesis connecting the death with the particular service rendered.  No finding of fact arises at this stage.  If no hypothesis arises the application must fail. 

(b)If a hypothesis is raised by the material the decision maker must decide whether there is an applicable SoP in force.

(c)If an SoP is in force the decision maker must form an opinion whether the hypothesis raised is reasonable.  The hypothesis must satisfy the template or minimum factors set out in the SoP and relate to the Veteran’s service.  If the hypothesis does not satisfy the template it will be deemed not to be reasonable and the claim will fail.

(d)The decision maker must then apply section 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused.  Only at this stage of the process will the decision maker be required to find facts from the material before him/her.

7.      Nothing in Deledio supra purported to distinguish or overrule the previous Full Court judgement of Repatriation v Bey (1997) 79 FCR 364 where at paragraph 373 Northrop ACJ and Sundberg, Marshall and Merkel JJ stated “whether material raises a ‘reasonable hypothesis’ for the purposes of section 120(3) is a question of fact…” citing Repatriation Commission v Owens (1996) 70 ALJR 904.

8.      In this matter the hypothesis connecting the Veteran’s death with his war service is said to conform to Factor 6(O) in Instrument No 89 of 2007 being the SoP concerning IHD.  Factor 6(O) reads:

“having clinically significant depressive disorder for at least five years before the clinical onset of Ischaemic Heart Disease”.

9.      Professor O’Rourke, cardiologist, in his report of 25 August 2009, which was not disputed by the Applicant, stated that the clinical onset of the deceased’s IHD may have been in the late 1990s.

10.     Instrument No 89 of 2007 factor 6(O) refers to having a “clinically significant depressive disorder”.  The term “clinically significant” is defined in that SoP in the following terms, viz:

“Clinically significant means sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly) to a psychiatrist, counsellor or General Practitioner.”

11.     The hypothesis upon which the Applicant bases her claim depends upon a sub-hypothesis, namely that the deceased Veteran had a clinically significant depressive disorder which itself was war-caused.

12.     In McKenna v Repatriation Commission (1999) 86 FCR 144 the Full Court of the Federal Court held that where a hypothesis depends upon medical conditions to which separate SoP apply then the specific factors of each SoP must be met. Thus in this matter as the Applicant relies upon Factor 6(O) which requires a clinically significant depressive disorder and as Instrument No 27 of 2008 concerns depressive disorder then the so called sub-hypothesis, viz that the deceased’s depressive disorder was war-caused, must conform to that SoP.

13.     The relevant SoP in relation to depressive disorder is Instrument No 27 of 2008, defines ‘depressive disorder’ at clause 3(b) in the following terms viz:

“Depressive disorder means a group of psychiatric conditions which are manifested by a dysphoric mood.  The mood disturbance is prominent and persistent.  This definition is limited to major depressive episodes, recurrent major depressive disorder, dysthymic disorder, depressive disorder not otherwise specified, substance-induced mood disorder with depressive features, or mood disorder due to a general medical condition with depressive features or with major depressive-like episodes.”

Clause 3(b) then goes on to define the various psychiatric conditions with each definition setting out the various diagnostic criteria derived from Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV-TR”).

14.     Psychiatrist Dr Petroff in a one page report dated 21 August 2007 said:

“…It is possible that this man may have suffered from post traumatic stress disorder after his service in the Islands during WWII with the major feature being that of irritability.  A lot of Diggers in those times would never reveal their symptoms and of course nobody knew about PTSD.  However, the more likely scenario is that he suffered from episodes of major depressive disorder with the two major symptoms being present, that is of irritability and secondly of withdrawal.”

15.     Dr Petroff’s report does not state the basis upon which he came to his diagnosis.  He makes no attempt to discuss the diagnostic criteria for either PTSD or Major Depressive Disorder as set out in the DSM-IV-TR.  Neither does he refer to the relevant SoP regarding PTSD or depressive disorder.

16.     Instrument No 27 of 2008 states the diagnostic criteria for major depressive episode as:

“A.  Five (or more) of the following symptoms have been present during the same two-week period and represent a change from previous functioning; at least one of the symptoms is either (1) depressed mood or (2) loss of interest or pleasure. Symptoms that are clearly due to a general medical condition, or mood-incongruent delusions or hallucinations, should not be included.

(1) depressed mood most of the day, nearly every day, as indicated by either subjective report (e.g., feels sad or empty) or observation made by others (e.g., appears tearful). In children and adolescents, it can present as irritable mood;

(2) markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day (as indicated by either subjective account or observation made by others);

(3) significant weight loss when not dieting or weight gain (e.g., a change of more than five percent of body weight in a month), or decrease or increase in appetite nearly every day. In children, consider failure to make expected weight gains;

(4) insomnia or hypersomnia nearly every day;

(5) psychomotor agitation or retardation nearly every day (observable by others, not merely subjective feelings of restlessness or being slowed down);

(6) fatigue or loss of energy nearly every day;

(7) feelings of worthlessness or excessive or inappropriate guilt (which may be delusional) nearly every day (not merely self-reproach or guilt about being sick);

(8) diminished ability to think or concentrate, or indecisiveness, nearly every day (either by subjective account or as observed by others); or

(9) recurrent thoughts of death (not just fear of dying), recurrent suicidal ideation without a specific plan, or a suicide attempt or a specific plan for committing suicide.

B.  The symptoms do not meet criteria for a mixed episode.

C.  The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.

D.  The symptoms are not due to the direct physiological effects of a substance (e.g., a drug of abuse, a medication) or a general medical condition (e.g., hypothyroidism).

E.  The symptoms are not better accounted for by bereavement, i.e., after the loss of a loved one, the symptoms persist for longer than two months or are characterised by marked functional impairment, morbid preoccupation with worthlessness, suicidal ideation, psychotic symptoms, or psychomotor retardation.”

Whereas recurrent major depressive disorder is defined as meaning:

“Presence of two or more major depressive episodes, with an interval of at least two consecutive months in which criteria are not met for a major depressive episode.

A. The major depressive episodes are not better accounted for by schizoaffective disorder and are not superimposed on schizophrenia, schizophreniform disorder, delusional disorder, or psychotic disorder not otherwise specified.

B.  There has never been a manic episode, a mixed episode, or a hypomanic episode. This exclusion does not apply if all of the manic-like, mixed-like, or hypomanic-like episodes are substance-induced or treatment-induced or are due to the direct physiological effects of a general medical condition.”

17.     As stated above, the only diagnostic criteria referred to by Dr Petroff are that on occasions the deceased became extremely irritable and aggressive.

18.     The report of Dr Petroff can be further discounted as special pleading.  He begins his report by stating:

“Thanks for referring Sylvia Hicks.  This 85-year old widow has been advised by Legacy to retrospectively have her husband diagnosed with a psychiatric disorder to assist her to obtain a gold card.”

19.     Reports on the deceased’s psychiatric state were also prepared by psychiatrist Dr Dinnen.

20.     In his report of 2 February 2009, Dr Dinnen said of Dr Petroff’s report:

“The diagnosis of anxiety and/or depressive disorder made by Dr Petroff is vague to say the least.”

21.     Cross examined Dr Dinnen conceded that the deceased did not meet the diagnostic criteria for PTSD but stated that he came to a diagnosis of PTSD with associated depression “on clinical grounds”.

22.     Psychiatrist Dr Delaforce interviewed the Applicant for just over one hour.  In his report of 12 December 2008 he pointed out:

“the ‘two major symptoms’ of Major Depressive Disorder are not ‘irritability’ and ‘withdrawal’.  The 2 major features of Major Depressive Disorder are depressed mood and depressed interest or pleasure of a particular nature and severity as defined in the DSM-IV-TR diagnostic criteria for major depressive episodes.” 

Dr Delaforce found, on the material available to him, that he could not support a diagnosis of any lifetime mental disorder in the deceased.

23.     In her evidence to the Tribunal, the Applicant conceded that at her age she got confused.

24.     Examples of the Applicant’s apparent confusion are that she told Dr Delaforce that her late husband had unstable angry outbursts about every six months or so, increasing to three or four times a week after he retired.  The Applicant told the Veterans Review Board that her late husband would have outbursts of anger “about every three weeks or so”.  In evidence to the Tribunal she said her husband would have outbursts of anger “weekly”.

25.     As pointed out in the report of Dr Delaforce and in the Applicant’s own evidence, the deceased, far from avoiding memories of war service, was a member of his local RSL Club.  He did not avoid company in that he played golf, and later accompanied his wife to Bingo.  The deceased did eventually go to Anzac day marches when accompanied and encouraged by his brother.  He did not smoke or drink alcohol and he held a steady job in the NSW Railways until his retirement.  There are no records of his attending any medical practitioner complaining of anxiety or depression until very late in his life when beset by ill health.

26.     The deceased was reportedly prescribed the antidepressive Sertraline in 2006 (ie the year of his death).  At that time he had severe medical problems viz supranuclear palsy and IHD.  As Dr Delaforce pointed out at page 8 of his report:

“He may have at some time since 2004, the time of onset of his supranuclear palsy, and especially in 2006, had a mental disorder.  That would include a depressive disorder including a mood disorder due to a general medical condition, or an adjustment disorder with depressed mood related to his markedly declined medical health”.

27.     Accepting that the deceased did have angry outbursts and on at least one occasion was physically violent towards one of his children, although there is no evidence of physical violence towards his wife, the fact is that a man may exhibit such traits without necessarily suffering from any mental illness.

28.     We also find it significant that when the Applicant first applied to have her husband’s death accepted as war-caused she ascribed his demise to the consumption of tropical fruits including soursop.  No reference whatsoever was made to any suggested psychiatric illness.

29.     Dr Dinnen conceded that the deceased did not meet the diagnostic criteria for PTSD, either in the relevant SoP or in the DSM.

30.     The diagnostic criteria either in the DSM or in the SoP for Depressive Disorder have not been addressed at all by Dr Petroff.  Dr Dinnen conceded in his report of 2 February 2009:

“The account given by the widow of his behaviour after he returned from the war is barely sufficient to establish a psychiatric diagnosis”. 

He added later in his report:

“I do not have enough evidence to accept that the Statement of Principles for either depressive disorder or anxiety disorder would be satisfied according to a reasonable hypothesis”.

31.     The net result is that the deceased does not satisfy the diagnostic criteria sufficient to enable a diagnosis of either PTSD or depressive disorder to be made applying the diagnostic criteria for those diseases as set out in the relevant SoP.

32.     As the SoP for depressive disorder or for PTSD have not been met, no reasonable hypothesis exists connecting those conditions with the deceased’s service.

33.     That then leads to the result that as the sub-hypotheses have not been found to be reasonable the major hypothesis viz that the deceased’s IHD was caused by a clinically significant depressive disorder is itself not a reasonable hypothesis.

34.     As no reasonable hypothesis exists connecting the death of the deceased with his war service we are deemed to be satisfied beyond reasonable doubt that the death of the deceased was not war-caused and the decision under review is AFFIRMED.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M. D. Allen and Dr M. E. C. Thorpe, Member

Signed:         .................[sgd]........................................
  K. Lynch, Associate

Date of Hearing  7 April 2010
Date of Decision                   5 May 2010
Counsel for the Applicant                          J Siggins
Solicitor for the Applicant                           Kemp & Co Lawyers
Solicitor for the Respondent                      A Carter, Sparke Helmore
Representative for the Respondent:        Department of Veterans Affairs