Ian Watt and Repatriation Commission
[2012] AATA 272
•8 May 2012
[2012] AATA 272
Division VETERANS' APPEALS DIVISION File Number(s)
2011/1515
Re
Ian Watt
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President PE Hack SC
Date 8 May 2012 Place Brisbane The decision is affirmed.
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Deputy President PE Hack SC
Catchwords
VETRANS AFFAIRS – veterans’ entitlement – adjustment disorder caused by chronic pain – pain attributable to service – adjustment disorder not attributed to back pain – no connection between the injury and service rendered – decision affirmed.
Legislation
Veterans’ Entitlements Act 1986 (Cth) ss 70(1), 70(5)(a), 119(1)(h), 120(4), 120B(3)
Secondary Materials
Statement of Principles concerning Adjustment Disorder No. 38 of 2008 Cl. 6(h)
REASONS FOR DECISION
Deputy President PE Hack SC
8 May 2012
Introduction
Mr Ian Watt served in the Royal Australian Navy for 20 years from July 1964. He now suffers from adjustment disorder, which he attributes to his naval service. His case is that the adjustment disorder was caused by chronic pain brought about by lumbar spondylosis, itself attributable to his service. The Repatriation Commission rejected his claim for a pension for the condition and its decision was affirmed by the Veterans’ Review Board.
Mr Watt seeks a review of the decision. For the reasons that follow the claim was correctly rejected. The decision will be affirmed.
The legislative scheme
By virtue of s 70(1) of the Veterans’ Entitlements Act 1986 (Cth) (the VEA) the Commonwealth is liable to pay a pension, by way of compensation, to a member of the Forces (which Mr Watt undoubtedly was) who is incapacitated from a defence-caused injury or defence-caused disease. And, by virtue of s 70(5)(a) of the VEA, the injury or disease is to be taken to be a defence-caused injury or a defence-caused disease if the injury or disease arose out of, or was attributable to, any defence service of the member. In determining whether Mr Watt’s injury or disease arose out of, or was attributable to, his defence service I am obliged by s 120(4) of the VEA to determine matters to my reasonable satisfaction.
Moreover, that state of reasonable satisfaction is to be assessed by reference to the applicable Statement of Principles, in this case that concerning adjustment disorder, No 38 of 2008. The effect of s 120B(3) of the VEA is that, in applying the “reasonable satisfaction” standard of proof, I am to be reasonably satisfied that an injury suffered or disease contracted was defence-caused only if the material before me raises a connection between the injury or disease and some particular service rendered by Mr Watt and the Statement of Principles upholds the contention that the injury or disease is, on the balance of probabilities, connected with that service.
The factor from the Statement of Principles that is relied on is that in clause 6(h) “having chronic pain of at least three months duration at the time of the clinical onset of adjustment disorder”. The expression “chronic pain” is defined in the Statement of Principles to mean,
continuous or almost continuous pain, which may or may not be ameliorated by analgesic medicine and which is of a level to cause interference with usual work or leisure activities or activities of daily living.
Reference should also be made to s 119(1)(h) of the VEA which obliges me to take into account the difficulties of ascertaining the existence of matters of fact attributable to the passage of time and any deficiency in official records.
Factual background
Reference needs now to be made to some further matters of fact. Much of what follows is taken from contemporaneous documents. I do not understand it to be in issue. Mr Watt joined the Navy in July 1964, shortly prior to his 16th birthday. The following year he was involved in a diving mishap which caused some injury to his spine. By 1983 Mr Watt held the rank of Chief Petty Officer and was employed in the marine engineering field. In that role, he said, he was required to lift and bend and generally put his back under pressure.
There is a record from 23 May 1983[1] of Mr Watt complaining of back pain whilst stationed aboard HMAS Tobruk. The entry records,
Complains of low back pain, chronic condition for some years. Has difficulty lifting, also complains of acute pain (R) lower rib area – no known injury. Pain present for 4 months.
Subsequent x-rays showed osteophytic lipping at the L3-4 and L4-5 levels with no narrowing of any of the discs. (There is an earlier note[2] of an attendance which, on one interpretation of the handwriting, might contain a reference to back pain however I do not read it as a reference to the low back pain later referred to. It does not, in any event, matter.)
[1] Exhibit 1, page 20C.
[2] Exhibit 1, page 20A-B.
The next reference of importance is of 2 June 1983[3] when Mr Watt presented with what was tentatively diagnosed as anxiety. The note reads
[3] Exhibit 1, page 20.
Feels depressed, run down, can’t sleep. Headaches at night. No problems at home, they are all work related.”
He was referred to a medical officer and admitted to a military hospital as an inpatient between 3 June 1983 and 6 June 1983. What I take to be a discharge summary[4] records,
[4] Exhibit 1, page 19.
Presents with a history of work related difficulties for past 12 months – Maximal past 6 months.
All began when he applied for long service leave and was refused on that and subsequent occasions. Since then he has been disenchanted with his job. Hates going to work. Personality clash with immediate superior.
This is spilling over into his family life – becoming irritable [sic], lacking energy and interest, reduced appetite and sleep disturbance.
No alcohol abuse.
No prior psychiatric history.
On interview he was not psychotic or obviously depressed. Related well.
Commenced on Tabs Protriptyline 10 – 30 mg/day. Discharged 6 June on above medication.
Full duty.
Follow up – Only if necessary.
Mr Watt says that at this time he was owed almost 12 months leave which he had been unable to take. He raised that with his local member of parliament who, as it happened, was the Minister for Defence. The decision refusing him leave was reversed following the Minister’s intervention and in about July 1983 Mr Watt commenced leave which continued until the following year when his discharge from the Navy after 20 years’ service took effect. Mr Watt’s medical statement[5], completed in August 1983 in anticipation of discharge, notes a spinal injury in January 1965 and the low back pain in May 1983. They are the only recorded “disabilities” that have any possible connection to Mr Watt’s back condition. The hospital admission in June 1983 is noted as being from “work stress”. Under the heading of “present disabilities” reference was made to back ache occurring after heavy weights were lifted. The medical examination record[6] notes osteoarthritis at L3-4 and L4-5 but is otherwise silent on any other back condition.
[5] Exhibit 1, page 14.
[6] Exhibit 1, page 15.
For about a year after discharge in July 1984 Mr Watt worked for a variety of employers on short-term contracts in marine engineering or similar. Thereafter he started up a tourism business which involved providing buses and drivers for inbound tourists. His role was essentially managerial, undertaken from home; he did little actual driving. During this time Mr Watt remained with the Naval Reserve. It would appear that he undertook medical examinations in connection with that service on a periodic basis. In December 1987 Mr Watt’s spine was noted as normal[7]. The same notation was made in February 1990[8]. At that time Mr Watt completed a questionnaire which answered “no” to the question “Have you had any persistent back pain?”
[7] Exhibit 1, page 20E.
[8] Exhibit 1, page 20G.
In December 1999 Mr Watt saw Dr Bruce Hall, a neurosurgeon, having been referred by his general practitioner for investigation of back pain. Dr Hall’s recorded history[9] is as follows:
He is a 51 year old self employed bus driver who runs and manages his own bus business. He has been doing this for about 12 years. He says that over time he has become aware of back problems. He describes this as being mostly a stiff sore lower back. It is usually manageable but about two years ago he had a very severe bout of pain resulting in him having a few weeks off work and slowly mobilising. Since then he has avoided activities which put stress and strain through his lower spine.
He has been able to get by most of the time and then in September he had a recurrence of the severe back pain. This was associated with some pelvic tilt and difficulty mobilising. He had three weeks of doing nothing then gradually got going again with physiotherapy, [illegible] manipulation and rest. He now finds he is able to get around pretty much pain free unless he goes driving his bus. After an hour or so of this and working the clutch, he has a recurrence of the pain and is unable to do much more. He is finding that any physical activities greatly exacerbate his symptoms. …
An MRI of Mr Watt’s spine showed marked degenerate L4-5 disc and a far lateral disc prolapse stretching the L4 nerve root. The L5 - S1 disc was also mildly degenerate.
[9] Exhibit 4.
Mr Watt says that he was unable to continue with the bus business and that thereafter until he turned 60 in 2008 he received the proceeds of an income protection insurance policy.
In January 2003 Mr Watt made a claim for a pension for post-traumatic stress disorder. The Commission concluded that the condition was one of adjustment disorder but that it was not service–related. The Commission’s decision was affirmed by the Veterans’ Review Board and by the Tribunal[10]. The Tribunal was not satisfied that Mr Watt suffered from any diagnosable psychiatric condition[11].
[10] See [2007] AATA 1536.
[11] At [42].
Mr Watt lodged a further claim, for “mental & emotional problems” and for alcohol abuse, with the Commission in April 2010. The Commission determined that those claims were properly described as claims for adjustment disorder and alcohol dependence. The Commission decided on 20 October 2010 that neither condition was related to service. That decision was affirmed by the Veterans’ Review Board on 7 April 2011. These proceedings were commenced shortly thereafter.
Finally it needs to be noted that the Commission has accepted that Mr Watt suffers from lumbar spondylosis and that that condition is defence-caused.
The parties’ cases
Mr Harding, counsel for Mr Watt, put the case on the basis of these propositions,
·that the medical evidence demonstrates that Mr Watt was suffering from an adjustment disorder in June 1983 (and continues to suffer from it);
·that in June 1983 Mr Watt had been experiencing chronic pain (as defined in the Statement of Principles) for at least three months;
·that the chronic pain was, at least in part, responsible for the development of the adjustment disorder;
·that the chronic pain was attributable to the now accepted condition of lumbar spondylosis.
The result, it was said, was that Clause 6(h) of the Statement of Principles was satisfied and that I ought be reasonably satisfied that the adjustment disorder was defence-caused. The claim, insofar as it related to alcohol abuse or dependence, was expressly abandoned.
Mr Kelly, who appeared for the Commission, submitted that I could not be reasonably satisfied that the adjustment disorder had anything to do with lumbar spondylosis; the contemporaneous medical evidence, he submitted, did not support the proposition that back pain played any role in the June 1983 hospital admission.
The medical evidence
Mr Watt has been treated by Dr Christopher Danesi, a consultant psychiatrist, since February 2010. In his report of 3 August 2010[12] Dr Danesi expressed the opinion that Mr Watt suffers from an adjustment disorder with anxiety and depression which he considered to be ongoing since the time of Mr Watt’s back pain “10 years ago”. In its context, that must be a reference to the occasion in late 1999 of Mr Watt’s attendance on Dr Hall. Dr Danesi referred, as well, to a previous adjustment disorder with anxious and depressed mood “as noted in his military [sic] record in 06. 1983”. He said[13]:
I considered the development of adjustment disorder with anxiety and depression occurred while Mr Ian Watt was in the Navy. He has a variety of stressors. He felt over worked, unable to take a holiday, unable to reunite with his wife when she was in labour, feeling pressure when under investigation, he considered he had done his best but design faults or failure to carry through appropriate refit caused incidents rather than his actions, being involved in a riot, talking down to others who had serious violent potential. Added to this he had then had ongoing back pain which has been the main current stressor for the ongoing disorder.
[12] Exhibit 1, pages 100-107.
[13] Exhibit 1, page 106.
In November 2011 Mr Watt was seen by Dr Bradley Ng, also a consultant psychiatrist, at the request of the Commission. Dr Ng concluded that there had been no evidence of adjustment disorder when he saw Mr Watt. He did note, however, that,
…Mr Watt has recurring episodes of Adjustment Disorder with Depressed Mood and Anxiety. The causes of his Adjustment Disorder are likely to be multi-factorial. His episode documented in 1983 whilst he was in the Royal Australian Navy appeared to have social and personal causes as well as employment stressors as the cause of his Adjustment Disorder. Subsequent episodes of Adjustment Disorder may have [been caused by][[14]]his back pain.
[14] Dr Ng corrected an obvious grammatical error in his written report in the course of his oral evidence.
Mr Watt’s evidence
Mr Watt did not impress me as a person with an accurate recollection of events; he has plainly reconstructed the events in a manner that suits the case he now presents. His evidence was, in many respects, demonstrably exaggerated. Dr Ng’s evidence, unchallenged by Mr Harding on this point, was that he had seen Mr Watt over a period of one hour and 45 minutes. Mr Watt claimed that the interview had only lasted 20 minutes and that Dr Ng had not been interested to hear what Mr Watt had to say. He claimed that during a recent overseas trip he had sought frequent medical attention for his back yet he told Dr Ng that he had had “no trouble, no medical assistance”[15]. I accept Dr Ng’s account of the conversation and reject that of Mr Watt.
[15] Dr Ng’s contemporaneous note of the conversation.
But beyond that the evidence that Mr Watt now gives about the state of his back in 1983 is quite inconsistent with the medical records of the time. He says now that in 1983 he began suffering increased symptomology consisting of,
a. pain in legs plus general;[[16]]
b. aching in my lower back;
c. difficulty sitting;
d. episodes of problems with bowel movements.
Except for the problems with bowel movements these symptoms were daily and were affecting me constantly.
It was after a number of months – I cannot now be specific about the period – that I began noticing that my mental state was different and it wasn’t just being in pain. I was feeling anxious, low and depressed.
I found I was unable to attend to the heavier aspects of my naval duties because of my back and was discharged …
…
At this period of time I also had to stop all sporting activities because of back pain. My principal activities were jogging, cricket, tennis (which I played at least once a week), squash (which was also once a week).
The medical records of the time give no support to the account that Mr Watt now gives. I find it inconceivable that Mr Watt could have symptoms of the nature now claimed without there being some greater note in the medical records of the time than that appearing on 23 May 1983. The same is true of the subsequent records, in particular Mr Watt’s own document, denying a history of persistent back pain in February 1990 and the history given to Dr Hall in December 1999.
[16] Mr Watt was unable to explain what he intended to convey by the comment “with general”.
It is evident that Mr Watt is bitter about what he regards as wrongful treatment at the hands of the Commission; that emerged clearly in his consultation with Dr Ng and in the course of his evidence. I need not determine whether that bitterness has affected Mr Watt’s recollection of events from 1983. It is enough to say that I find myself unable to accept his evidence, where it is controversial, except where it is corroborated by some other independent or contemporaneous evidence.
Consideration
The medical evidence leaves me well short of persuaded that any adjustment disorder from which Mr Watt may now suffer is to be regarded as being related causally or otherwise to the adjustment disorder identified in June 1983. However, the matter was not argued by the Commission on that basis and I propose to accept that it is the same condition that has fluctuated, with remission and re-emergence since 1983.
Both Dr Danesi and Dr Ng are of the opinion that the hospital admission in June 1983 evidences an episode of adjustment disorder. No earlier evidence of clinical onset is pointed to or is otherwise evident. That being so, the first question is whether I can be reasonably satisfied that Mr Watt was having chronic pain of at least three months duration at that time. I cannot be so satisfied.
The clinical note of 23 May 1983 demonstrates that Mr Watt complained of low back pain that had affected him for some years but there is no evidence (beyond that of Mr Watt which I do not accept) that the pain complained of was of sufficient severity to satisfy the description of chronic pain in the Statement of Principles. There is no note that the pain had caused interference with his usual work or leisure activities beyond the reference to “difficulty lifting”.
Moreover I am not satisfied that the adjustment disorder can be attributed to back pain. The discharge summary of 6 June 1983 makes no reference to it. Dr Danesi attributes the onset of adjustment disorder to other causes, with the back pain a subsequent stressor. It is significant that the matters referred to in the discharge summary are the matters that Dr Danesi referred to as stressors and that none of them were related to back pain. It is, as well, significant, that in the years whilst Mr Watt was in the naval reserve he self-reported no back problems and that when he sought medical attention for his back in 1999 it was associated with a diagnosis of disc prolapse.
I am then not satisfied that Mr Watt’s adjustment disorder in June 1983 was related to any back pain then being experienced by Mr Watt and thus not satisfied that the adjustment disorder arose out of, or was attributable to, his defence service. I would then affirm the decision under review.
I certify that the preceding 28 (twenty eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC.
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Associate
Dated 8 May 2012
Date(s) of hearing 23 April 2012 Counsel for the Applicant Mr A Harding Solicitors for the Applicant Cockburn Legal & Consulting Advocate for the Respondent Mr J Kelly
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