Holland and Repatriation Commission
[2002] AATA 372
•21 May 2002
DECISION AND REASONS FOR DECISION [2002] AATA 372
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q00/935
GENERAL ADMINISTRATIVE DIVISION )
Re BRIAN EDWARD HOLLAND
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr D W Muller, Senior Member
Date21 May 2002
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution decides that: 1. Brian Edward Holland's Depressive Disorder is defence caused within the meaning of that term in the Veterans' Entitlements Act 1986, with effect from the earliest date allowable under the Act. 2. The matter is remitted to the Respondent for assessment.
..................(Sgnd)...................
Senior Member
CATCHWORDS
VETERANS – depressive illness – severe psycho-social stressor in the workplace – major depressive episodes
Veterans' Entitlements Act 1986
REASONS FOR DECISION
21 May 2002 Mr D W Muller, Senior Member
This is an application by Brian Edward Holland to review a decision of the Repatriation Commission dated 2 July 1997, as affirmed by the Veterans' Review Board on 5 July 2000, that Mr Holland's depressive disorder was not service related.
The applicant served in the Australian Army from 7 January 1974 to 25 May 1996. This service contributes "defence service" for the purposes of the Veterans' Entitlements Act 1986.
The events with which this review are concerned began in January 1994. By that time, Mr Holland had reached the rank of Warrant Officer. He was stationed at a Field Workshop in suburban Brisbane. Mr Holland was in charge of all of the other Army personnel in the workshop, except his immediate superior officer, who held the rank of Captain. In the years prior to 1994, the Field Workshop had operated efficiently and had been a pleasant place in which to work. All of that changed in January 1994, when Captain S took over. Captain S had severe personality problems, poor management skills and a sadistic, bullying nature. It is Mr Holland's case that his treatment at the hands of Captain S caused him to suffer major depressive episodes from which he has never recovered.
It is the Respondent's case that the bullying of Mr Holland by Captain S did not amount to a "severe psycho-social stressor" and did not cause his depressive disorder. The Respondent suggests that it was a disordered private life, which led to Mr Holland's psychiatric illness.
Mr Holland gave evidence before the Tribunal, and he was cross-examined. His evidence was not challenged nor was it contradicted by any evidence or statement of any description. Mr Holland's evidence was corroborated by two other former Army NCOs who worked with him at the Field Workshop during the years in question. They were also cross-examined. Their evidence was not challenged nor was it contradicted.
The Tribunal accepts Mr Holland as an honest and reliable witness, and finds as follows:
(a) Mr Holland was born on 22 September 1957.
(b) He enlisted in the Australian Army on 7 January 1974.
(c) He married Sue on 21 December 1985.
(d) Sue gave birth to their son Daniel on 24 April 1988.
(e) Mr Holland and Sue separated in June 1990.
(f) Mr Holland and Sue were divorced in April 1992.
(g) The divorce was reasonably harmonious. Matters such as division of property and joint custody of Daniel were settled amicably.
(h) In 1992, Mr Holland met, and subsequently began living with Julianne. They bought a house with shared resources, with Mr Holland contributing the major amount.
Mr Holland began working at the Field Workshop during 1992. In 1992 and 1993, relations between the Army personnel who worked there were good. Their spouses and families socialised together. Life was very pleasant for them. Julianne got on well with Daniel and Mr Holland was able to see his son on a regular basis.
(j) The whole atmosphere changed dramatically with the arrival of Captain S in January 1994. The shortcomings and excesses of Captain S in early 1994 were numerous. A few of the more extraordinary will suffice for these purposes:
(i)Captain S wrongly and maliciously accused Mr Holland of stealing petrol from the Army. The accusation was eventually shown to be false. Nevertheless, Mr Holland was extremely distressed by the affair. His career and his Army retirement pension had been placed in jeopardy.
(ii)Captain S repeatedly represented to his superiors that Mr Holland and his fellow NCOs were incompetent fools.
(iii)Captain S set deadlines, which were impossible to meet.
(iv)On one occasion Mr Holland told Captain S and the others that he intended to arrive at work the following day at 4.30am so that he could use the computer (the Field Workshop only had one computer). When Mr Holland arrived the next day at 4.30am, Captain S was already at work, using the computer. Captain S was using the computer for his personal purposes and he would not let Mr Holland use the computer till 7.30am.
(v)Captain S forced Mr Holland to work overtime without days off in lieu. During one period, Mr Holland worked 11 weekends straight.
(vi)Mr Holland's former wife Sue informed him that she intended, probably in 1996, to shift with Daniel to Sydney. Mr Holland began to enquire about any vacancies, which might be coming up in Sydney within the next two years. Captain S arranged for Mr Holland to be immediately transferred to Townsville. After a protest from Mr Holland was upheld, the transfer to Townsville was cancelled.
(vii)Captain S continually threatened to derail Mr Holland's career.
(k) The pressures being applied to Mr Holland by Captain S had a very bad effect on him. He became withdrawn and anti-social. He became angry and aggressive at home with Julianne. The long periods at work and the continuous weekends away from home were not helping his domestic situation with Julianne.
(l) Julianne left Mr Holland on 8 May 1994.
(m) On 9 May 1994, Mr Holland experienced a major depressive episode.
(n) Mr Holland initially recovered to some extent but he had a further and more serious depressive episode in July 1994, when he was hospitalised.
(o) Mr Holland was regarded by Dr Chalk, psychiatrist appointed by the Army, as being suicidal in August 1994.
Mr Holland has been treated by Dr Rees, psychiatrist, since 18 July 1996. It is the opinion of Dr Rees, from having interviewed Mr Holland, and having read the statements of former co-workers and their wives and partners, that the atmosphere in the work-place was sufficiently hostile and vicious to amount to a severe psycho-social stressor sufficient of itself alone to bring on a major depressive episode. Dr Rees is also of the opinion that the work pressures had a serious impact on Mr Holland's relationship with Julianne and that the eventual breakdown of the relationship was also a significant factor in the causation of the major depressive episodes. Dr Rees also pointed out that Mr Holland had no previous history of psychiatric problems until Captain S arrived on the scene in 1994. There is a significant temporal connection.
Dr Rees also gave evidence that Mr Holland's depressive illness has not responded well to treatment. He is still not well. He has had numerous recurrent episodes. He has been hospitalised since leaving the Army in 1996. He has had to stop running a lawn mowing business. Dr Rees told the Tribunal that the notion that a patient will automatically get well after the removal of the stresssor is not now accepted by most psychiatrists. He said that experience has shown that some patients do not recover, or do not respond to treatment. Mr Holland is one of them.
The Tribunal finds that Mr Holland was subject to severe psycho-social stressors in the workplace at the Field Workshop and that they were extremely significant in his ultimate development of a depressive illness.
10. The Tribunal also finds that Mr Holland experienced at least two major depressive episodes in 1994 and he has continued to have recurrent episodes, including further hospitalisation.
11. The decision under review is set aside and in substitution the Tribunal decides that the Applicant's depressive illness is defence-caused.
12. The date of effect is that date which is the earliest allowed for by the Act.
I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Mr D W Muller, Senior Member
Signed: .............................................................................
AssociateMatter Heard on the Papers
Date of Decision 21 May 2002
Counsel for the Applicant Mr Harding
Solicitor for the Applicant Gilshenan and Luton
Counsel for the Respondent Mr Morison
Solicitor for the Respondent Department of Veterans' Affairs
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