Ian Douglas and Repatriation Commission
[2014] AATA 407
[2014] AATA 407
Division VETERANS' APPEALS DIVISION File Number(s)
2012/5664; 2012/5701
Re
Ian Douglas
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 24 June 2014 Place Sydney The decision under review is affirmed.
...............................[sgd].........................................
Ms N Isenberg, Senior Member
Catchwords
VETERANS’ ENTITLEMENTS – eligible defence service –whether a depressive disorder was defence-caused – consideration of Statement of Principles –decision under review is affirmed.
Legislation
Veterans’ Entitlements Act 1986 (Cth): ss 70, 120(4), 120B, 196BCases
Kaluza v Repatriation Commission [2011] FCAFC 97
Lees v Repatriation Commission (2002) 125 FCR 331Re Robertson and Repatriation Commission (1998) 50 ALD 668
Secondary Materials
Statement of Principles concerning Depressive Disorder, No. 28 of 2008
REASONS FOR DECISION
Ms N Isenberg, Senior Member
The decision under review is the decision of the Repatriation Commission dated 8 October 2010 as affirmed by the Veterans’ Review Board (“the VRB”) on 26 November 2012 that refused Ian Douglas’ claim for the pension, on the basis that his depressive disorder was not related to his service.
BACKGROUND
Mr Douglas served in the Royal Australian Navy between 11 October 1969 and 7 May 1980. His eligible defence service was from 7 December 1972 to 7 May 1980. Although the applicant had 2 periods of operational service as defined in the Act, having regard to his contention, his operational service was not relevant to the matter I had to decide.
LEGISLATIVE BACKGROUND
Part IV of the Veterans’ Entitlements Act 1986 (“the VE Act”) deals with pensions for members of the Defence Force. Section 70(1) of the VE Act provides that, where a member is incapacitated from a defence-caused condition the Commonwealth is liable to pay pension by way of compensation. A condition is taken to be defence-caused if it arose out of, or was attributable to, the member’s defence service: s 70(5)(a) VE Act.
In respect of a claim for a defence-caused condition, all matters are to be decided to the Tribunal’s reasonable satisfaction: s 120(4) VE Act. I am required to decide matters to my reasonable satisfaction in accordance with any Statement of Principles (“SoP”) issued by the RMA: s 120B(3). The RMA issues SoP based on sound medical-scientific evidence setting out factors relating to service, at least one of which must exist, in order to establish a causal connection between the condition and service: s 196B(3).
The RMA has issued a SoP in relation to depressive disorder.
The applicant relied on factor 6(a)(v) of the SoP which provides as follows:
6. The factor 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 is:
(a) for major depressive episode, recurrent major depressive disorder, dysthymic disorder and depressive disorder not otherwise specified only,
…
(v) experiencing a category 2 stressor within the six months before the clinical onset of depressive disorder …
Category 2 stressor is defined in factor 9, relevantly, as:
"a category 2 stressor" means one or more of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry:
…
(c) having concerns in the work or school environment including: on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful work loads, or experiencing bullying in the workplace or school environment;
…
APPLICANT’S EVIDENCE
The applicant provided a statement in relation to an incident in 1976 upon which he relied as being the category 2 stressor (‘the Snipe incident’).
He wrote that HMAS Snipe had just berthed at its homebase, HMAS Waterhen, and the routine of connecting the shore fire main system had begun. He wrote:
I had connected the firehose to the shore supply then the Petty Officer In Charge told me to remain on the wharf and turn on the water when ordered to.
He then sent another sailor to shut down the ship's pumps.
Once the pumps were shut down he opened the valve restoring fire system. They then completed the other routine jobs, following which they were granted leave for the weekend.
When he returned to duty on Monday the crew was informed that the Tiller Flat had flooded and damaged the activated rudders as well as the ship's steering gear.
A few days after the incident, a crew member approached the applicant, laughing. He told the applicant that he was being charged over the flooding. The applicant was very worried and asked the ship's Coxswain if this was true. He was told that he had twenty minutes to see his Divisional Officer to arrange his defence. Instead, he decided to ask the Depot Engineer to defend him because his Divisional Officer was a Junior Navigator with little knowledge of the ship’s engineering systems. He explained to the Depot Engineer that the sailor who shut the pump down had not closed the suction valve, thereby allowing water to flood the suction system. They studied the diagrams of the ship's engineering system and the applicant pointed out that the ship's Chief Engineer had previously removed the non-return valve in the Tiller Flat, thereby allowing it to flood.
He believed he was charged because he was the only Able Seaman qualified to operate the pumps on the ship and the one least able to defend himself. He was to be the scapegoat to protect the Officers and Senior Sailors who were in charge.
Following his appearance before Snipe's Captain he was ‘admonished’ and lectured about his duty and responsibility.
He felt this incident resulted in the ruination of his Navy career. It led to feelings of worthlessness. These feelings, he said, culminated in his resignation from the Navy in May 1980. This was despite the fact that he had initially enlisted for at least twenty years.
He felt that, as the result of the Snipe incident, he ultimately needed to seek psychiatric help in order to function.
At the hearing, Mr Douglas gave broadly consistent evidence with the history he had given in his statement.
In 1970, at age 15, and whilst stationed on HMAS Leeuwin, he was subjected to bastardisation. He described it as common practice and stated that it did not really have a long term effect on him. Mr Douglas claimed that it was his experience in relation to the Snipe incident that gave rise to his depression. He felt that he had taken the blame. Although a charge of ‘negligence’ was dismissed, he was ‘admonished’. He said his record was noted and his next performance review was unsatisfactory, unlike his previous reviews. His subsequent reviews were again positive and he was promoted, but he believes his promotion was delayed because the admonishment was noted on his file.
He felt he received no support from the Navy. After the Snipe incident he felt worthless and a failure. He had to serve another year aboard Snipe. During that time, he felt isolated from the senior officers, especially those who themselves had been criticised over the incident. The other sailors also did not want to associate with him.
He said nothing to his wife and in fact did not mention the Snipe incident at all until the rejection of his claim, which had referred only to the bastardisation and his Vietnam experiences.
Mrs Douglas gave evidence that she knew something was wrong ‘from the outset’, but was unable to pinpoint what that was. Her husband changed from being outgoing and became moody. He became disinterested in his work, although she had thought he planned to make a lifetime career in the Navy. She blamed herself and believed that he thought his sea absences were too much for her, especially as she was holding down a full time job, running the house and studying. He put in his discharge papers without consulting her.
It was only when things came to a head in 2009, after a work dispute, that Mrs Douglas persuaded him to go to a psychiatrist. She had previously suggested it but he had refused. She mentioned his condition to Dr Allen, their GP, and her husband finally agreed to go to Dr Richardson, a psychiatrist. She only learned of the Snipe incident at about the time of the VRB application for review.
CONSIDERATION
The Respondent conceded that there is a diagnosis of depressive disorder.
I turn first to consider the clinical onset of the claimed condition. In attributing his condition to the Snipe incident, I must be satisfied on the balance of probabilities that the clinical onset was within 6 months of the claimed stressor. Although it may be expected that a serious event affecting the ship would have been documented, there was no objective evidence about the event before me. The Respondent did not dispute that the Snipe incident occurred.
The precise date of the Snipe incident is unclear, other than ‘1976’. The clinical onset therefore would need to be by mid-1977 at the latest.
There is no definition of the term “clinical onset” in the SoPs or in the VE Act. The meaning of “clinical onset” was considered by the Full Court of the Federal Court in Lees v Repatriation Commission (2002) 125 FCR 331. The court referred to the analysis of the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668 where the Tribunal concluded at 670 that:
“…there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.”
In Kaluza v Repatriation Commission [2011] FCAFC 97 the Full Court clarified the test in Lees stated at [62]:
This analysis does suggest that the Tribunal’s approach was that the test in Lees was that all the required symptoms had to be displayed and treatment sought in order to determine clinical onset (in [38]). However, that was not the approach taken in Lees where the Full Court (Heerey, Moore and Kiefel JJ) cited (at [13]) from the first instance judgment of Branson J in Lees where her Honour said:
... there is clinical onset of a disease either when a person becomes aware of some feature or symptom which enables a doctor to say that a disease was present at that time, or when a finding is made on an investigation which is indicative to a doctor of the disease being present ... (emphasis added)
The applicant relied on the evidence of Mrs Douglas that the applicant had been a very easy-going and extroverted young man who was very pleased with his Navy career. He was very talkative, at ease with people and very sociable. She said that towards the end of 1976 he became withdrawn and sullen, lost his motivation for work, and became anti-social. By 1977 or 1978 he had withdrawn from the various sporting activities about which he had previously been keen. The applicant’s evidence was of becoming very sensitive about perceived criticism. He felt lonely and abandoned.
The applicant did not consult any medical practitioner about his feelings of depression until Dr Allen, his GP of nine years, reported in October 2009 that the applicant said he had been depressed since mid-2008. The doctor’s clinical notes refer to the applicant’s then current problems in the workplace and subsequent loss of his job.
Dr Allen referred the applicant to Dr Richardson, consultant psychiatrist, noting the applicant’s 10- month history of major depression. The history the applicant gave to Dr Richardson was in relation to the bastardisation and there was no mention of the Snipe incident.
When Dr Richardson retired, the applicant’s care was taken over by Dr Ahmed, who provided a report to Dr Allen dated 30 August 2011. Dr Ahmed made no comment about the date of clinical onset. In a later report dated 21 December 2011 the doctor referred to the applicant’s bastardisation and experiences on HMAS Sydney during his operational service. He wrote that the applicant had been ‘relatively functional’ up until 2009 when he lost his job.
Dr Walker, consultant psychiatrist provided a report dated 19 July 2010 in which he wrote that the applicant reported feeling depressed since the mid-1970s but the applicant had attributed his condition to the bastardisation in 1970.
The applicant also referred to the medical report of Dr Brash, consultant psychiatrist dated 24 October 2012, obtained by the applicant’s advocate following the refusal of the applicant’s claim by the Respondent which had relied on the bastardisation and his Vietnam experiences. Dr Brash wrote that the applicant had reported symptoms of depression dating back at least 20 years, although the applicant probably did not recognise those symptoms as depression then. He wrote that the ‘origins’ of the applicant’s depression were during the applicant’s service and are related to the Snipe incident. Dr Brash is now the applicant’s treating psychiatrist.
On 7 May 2013 the applicant was examined at the request of the applicant’s advocate by Dr Dinnen, consultant psychiatrist. The applicant told him of his distrust of some other psychiatrists, notably Dr Richardson. He had not mentioned the Snipe incident previously because he had not wanted to be considered as an ‘incompetent fool’. The applicant reported that the Snipe incident had coloured his life. As a result he was unable to trust people because he had been sacrificed as a scapegoat for the flooding. He was ‘unhappy with himself’ after the Snipe incident but did not recognise what the unhappiness was about. He ‘fell apart’ after the problems at work in 2009. In conclusion the doctor wrote that the applicant suffers from chronic depressive illness which has been present for many years, and which ‘came to attention’ four years ago as a result of his workplace problems.
The applicant submitted that the reports of Dr Dinnen and Dr Brash were more reliable because the applicant had been more forthcoming than he had been with previous psychiatrists. I observe that, in psychiatric matters, any doctor must necessarily proceed on the basis of the history which is provided by the patient.
In his report dated 23 July 2013, obtained by the Respondent, Dr Smith, consultant psychiatrist, took a history that the applicant attributed his distrust to the Snipe incident but denied experiencing a depressive episode in response to it. He reported that when he experienced workplace difficulties about 5 years ago he was quite distressed and at that time developed a depressive episode, for which he sought counselling. Dr Smith considered that the applicant’s symptoms were precipitated by the events at work in 2009 and considered that to be the date of clinical onset of his depressive disorder.
Dr Dinnen and Dr Smith gave concurrent evidence at the hearing. Dr Smith conceded that the Snipe incident could have accounted for the applicant’s feelings of low self-esteem and poor self-confidence, but this did not equate with the diagnostic criteria for depressive disorder. For the purposes of the SoP an applicant is required to meet 5 of the diagnostic criteria set out in the SoP (which are derived from DSM IV-TR). Dr Dinnen considered that, within 6 months of the Snipe incident, the applicant met 4 of the diagnostic criteria. ‘Arguably’ he also met a fifth criterion, namely depressed mood most of the day, nearly every day, as indicated by self-reporting or the observation of others. This is the high point of the applicant’s case.
The test for clinical onset in Kaluza is disjunctive, namely that either the applicant became aware of some feature or symptom which enables a doctor to say that a disease was present at that time, or that a finding is made on an investigation which is indicative to a doctor of the disease being present. In this case, there was no diagnosis until 2009. I do not accept that, over 30 years after the Snipe incident, the applicant can give a history of his symptoms which can enable a doctor to reliably diagnose the condition retrospectively. In any event, I did not consider that Dr Brash’s evidence explicitly put clinical onset at 1977, but rather posited that the Snipe incident was the ‘origin’ of the applicant’s condition. Also, Dr Dinnen’s evidence did not unequivocally set clinical onset at that time either, noting only that it was ‘arguable’ that the applicant met sufficient of the diagnostic criteria at that time.
I accept that the applicant was shaken by his treatment following the Snipe incident and that it had a lifelong effect upon his ability to trust people, especially in the workplace. I accept that it was difficult to continue to work aboard Snipe in circumstances where he felt ostracised either because of his perceived negligence or because of an awareness that he had been ‘the fall guy’. He was badly let down and his chosen career was, in his view, irretrievably affected. He was, understandably, very disappointed.
The Applicant reported to some medical practitioners about his being subjected to bastardisation and his experiences in Vietnam, without making reference to the Snipe Incident. The applicant’s reticence to raise the Snipe incident until his claim was refused is not, in my view, adequately explained by his claimed failure to develop a rapport with various medical practitioners. Further, given the passage of over thirty years, the Applicant’s own account cannot reliably place the onset of sufficient symptoms for a diagnosis to be made within 6 months of the Snipe Incident. In addition, the evidence of his wife does not pinpoint the time of his change in mood, nor does it relate his change in mood to the Snipe incident. Indeed, as she was unaware of the Snipe incident until recent times, it would have been difficult for her to do so in any event. In such circumstances, I cannot be satisfied that the evidence supports a finding that the clinical onset of the applicant’s depressive disorder was within 6 months of the Snipe incident, which was said to have occurred in 1976.
The applicant’s advocate made an alternative submission that if I were to find that the clinical onset of the applicant’s major depression was only in recent times, then I should consider whether the applicant had some other clinically significant psychiatric condition within a year of the clinical onset of his major depression: factor 6(a)(vi). I do not consider the evidence supports such a finding.
CONCLUSION
Having come to this view about clinical onset it was unnecessary for me to consider if the Snipe incident amounted to a Category 2 stressor.
DECISION
For the above reasons, I affirm the decision under review.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Senior Member N Isenberg ...........................[sgd].............................................
Associate
Dated 24 June 2014
Date(s) of hearing 19 February, 24 April 2014 Date final submissions received 24 April 2014 Counsel for the Applicant Mr C Colborne Advocate for the Applicant T Latimore; Legal Aid Advocate for the Respondent T O'Reilly; Department of Veterans' Affairs
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