Jensen and Repatriation Commission
[2006] AATA 979
•20 November 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 979
ADMINISTRATIVE APPEALS TRIBUNAL
No Q2005/692
VETERANS' APPEALS DIVISION Re RONALD JENSEN
Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr KS Levy, Senior Member
Brigadier G Maynard, MemberDate20 November 2006
PlaceCoolangatta
DecisionThe Tribunal affirms the decision under review, being the decision of the respondent dated 7 July 2004, as varied by the Veterans’ Review Board on 20 April 2005.
...................[Sgd]................
KS Levy
Senior Member
CATCHWORDS
VETERANS’ APPEALS – disability pension – Royal Australian Navy service – applicant involved in sinking of HMAS Waree – question of whether applicant suffered post-traumatic Stress Disorder or Generalised Anxiety Disorder – conditions held not to be war-caused – stressor held not to be severe – correct assessment at 90% of general rate - decision affirmed
Veterans’ Entitlements Act 1986 ss 6A(1), 7, 9, 13, 120, 120B
Statement of Principles Instrument No. 1 of 2000Repatriation Commission and Gosewinckel (1999) 59 ALD 690; [1999] FCA 1273
Benjamin and Repatriation Commission (2001) 70 ALD 622; (2001) 34 AAR 270; [2001] FCA 1879
Fogarty and Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363
Repatriation Commission and Hancock (2003) 37 AAR 383; [2003] FCA 711
Lees v Repatriation Commission [2002] FCAFC 398; (2002)125 FCR 331; (2002) 74 ALD 68; (2002) 36 AAR 484
Repatriation Commission and Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144
Repatriation Commission v Stares (1996) 66 FCR 594; (1996) 41 ALD 212; (1996) 23 AAR 117
Bushell v Repatriation Commission (1992) 175 CLR 408; (1992) 109 ALR 30; (1992) 66 ALJR 753; (1992) 29 ALD 1; (1992) 16 AAR 1
Byrnes v Repatriation Commission (1993) 177 CLR 564; (1993) 116 ALR 210; (1993) 67 ALJR 805; (1993) 30 ALD 1; (1993) 18 AAR 1 [1993] HCA 51
Repatriation Commission v Webb (1998) 51 ALD 575
Repatriation Commission v Hill [2002] FCAFC 192; (2002) 69 ALD 581
East v Repatriation Commission (1987) 16 FCR 517; (1987) 74 ALR 518; (1987) 12 ALD 389; (1987) 6 AAR 492
Repatriation Commission v Bey (1997) 79 FCR 364; (1997) 149 ALR 721; (1997) 47 ALD 481; (1997) 26 AAR 298
Gilbert v Repatriation Commission (1989) 86 ALR 713; (1989) 10 AAR 73
Repatriation Commission v Tuite (1993) 39 FCR 540; (1993) 29 ALD 609; (1993) 17 AAR 158
White v Repatriation Commission (2004) 39 AAR 67; [2004] FCA 633
Stoddart v Repatriation Commission (2003) 197 ALR 283; (2003) 74 ALD 366; [2003] FCA 334
REASONS FOR DECISION
20 November 2006 Dr KS Levy, Senior Member Brigadier G. Maynard, Member Introduction
1. The applicant, Ronald Jensen, has applied under section 29(1) of the Administrative Appeals Tribunal Act 1975 for a review of the decision under the Veterans’ Entitlements Act 1986 (“the Act”) –
·the decision of the Repatriation Commission of 7 July 2004 which determined that Anxiety disorder was not war-caused under the Act and continued pension at 60 percent of the general rate;
·as varied by the Veteran’s Review Board on the 20 April 2005, which affirmed the decision in relation to Anxiety Disorder and set aside the decision on assessment rate and substituted that pension be assessed at 90 percent of the general rate.
2. The present claim is based on the applicant’s contentions that the conditions of anxiety disorder satisfy the definitions and diagnostic criteria prescribed in Statements of Principles and that they are related to the applicant’s war service.
3. The applicant was represented by Mr R. Clutterbuck of counsel instructed by Ms C. Haney of Haney Lawyers. The respondent was represented by its advocate, Mr Malcolm Smith.
Background
4. The applicant is currently 85 years of age, his date of birth being 20 November, 1921.
5. Mr Jensen completed War Service under the Act during World War II with the Royal Australian Navy (RAN) from 28 October 1943 to 17 December 1946. This was operational service as defined in Section 6 of the Act.
6. As a result of the applicant’s defence service, he has the following conditions, accepted by the Department of Veterans’ Affairs as being service-related –
(i)Refractive error;
(ii)Migraines
(iii)Tension headaches
(iv)Bilateral acquired cataracts
(v)Bilateral sensori-neural hearing loss with tinnitus
(vi)Non-melanotic malignant neoplasm of the skin of the face
(vii)Solar Keratosis
(viii)Lumbar Spondylosis.
7. The applicant has also claimed the following conditions–
(i)Chronic conjunctivitis
(ii)Perforated appendix with pelvic abscess
(iii)Bilateral ectropion
(iv)Cervical spondylosis
(v)Small cell carcinoma with radical prostatectomy
(vi)Ischaemic heart disease
(vii)Malignant neoplasm of the prostate
(viii)Gastro-oesophageal disease
(ix)Osteoporosis (no incapacity found)
(x)Anxiety disorder (no incapacity found)
(xi)Breathlessness (no incapacity found).
These previous claims have been rejected as not being war-caused.
8. The applicant claims that he currently suffers from an anxiety condition, which he asserts is related to his military service.
Issues For Determination
9. The issues for determination in this case are:
(i)Whether Mr Jensen has an anxiety disorder within the meaning of section 9 of the Act?
(ii)Whether any accepted diagnoses of psychiatric conditions are war-caused within the meaning of section 9 of the Act?
(iii)Whether Mr Jensen’s pension is correctly assessed at 90 percent of the general rate?
Legislative Framework
10. The statutory provisions contained in the Act which are relevant in determining the applicant’s eligibility for pension in relation to these conditions are outlined below.
6A Operational service—world wars
(1) Subject to subsection (3), a person referred to in column 2 of an item in the following table is taken to have been rendering operational service during any period during which the person was rendering continuous full‑time service of a kind referred to in column 3 of that item.
…Item 1(d) continuous full‑time service rendered within Australia during World War 2 in such circumstances that the service should, in the opinion of the Commission, be treated as service in actual combat against the enemy
Section 7
Eligible war service
(1) Subject to subsection (2), for the purposes of this Act:
….
(c) a person who has rendered continuous full-time service (not being operational service) as a member of the Defence Force during World War 2, being service that commenced before 1 July 1947, shall be taken to have been rendering eligible war service while the person was so rendering continuous full-time service; and
Section 9
War-caused injuries or diseases
(1) Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c) the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d) the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
(e) the injury suffered, or disease contracted, by the veteran:
(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.
(2) For the purposes of this Act, where any incapacity of a veteran was, in the opinion of the Commission, due to an accident that would not have occurred, or due to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service:
(a) if that incapacity was due to an accident—that incapacity shall be deemed to have arisen out of the injury suffered by the veteran as a result of the accident and the injury so suffered shall be deemed to be a war-caused injury suffered by the veteran; or
(b) if the incapacity was due to a disease—the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a war-caused disease contracted by the veteran.
….
(5) Paragraph (1)(c) does not apply:
(a) to an accident that occurred while the veteran was travelling on a journey from the veteran's place of work in a case where the veteran had delayed commencing the journey for a substantial period after he or she ceased to perform duty at that place (otherwise than for a reason connected with the performance of the veteran's duties) unless, in the circumstances of the particular case, the nature of the risk of sustaining an injury, or contracting a disease, was not substantially changed, and the extent of that risk was not substantially increased, by that delay or by anything that happened during that delay;
(b) to an accident that occurred while the veteran was travelling on a journey, or a part of a journey, by a route that was not reasonably direct having regard to the means of transport used, unless:
(i) the journey, or that part of the journey, was made by that route for a reason connected with the performance of the veteran's duty; or
(ii) in the circumstances of the particular case, the nature of the risk of sustaining an injury, or contracting a disease, was not substantially changed, and the extent of the risk was not substantially increased, by reason that the journey, or that part of the journey, was made by that route; or
(c) to an accident that occurred while the veteran was travelling on a part of a journey made after a substantial interruption of the journey, being an interruption made for a reason unconnected with the performance of the veteran's duties, unless, in the circumstances of the particular case, the nature of the risk referred to in subparagraph (b)(ii) was not substantially changed, and the extent of that risk was not substantially increased, by reason of that interruption.
Section 13
Eligibility for pension
(1) Where:
(a) the death of a veteran was war-caused; or
(b) a veteran is incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c) in the case of the death of the veteran—pensions by way of compensation to the dependants of the veteran; or
(d) in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
Section 120
Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
(2) ….
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B…
120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
(b) a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
Note 1: Subsection 120(4) is relevant to these claims.
Note 2: For hazardous service and member of the Forces see subsection 5Q(1A).
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a) has determined a Statement of Principles under subsection 196B(3) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of Principles.
(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war‑caused or defence‑caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(3), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.
11. In respect of claims made on or after 1 June 1994, these are to be assessed in accordance with the Statements of Principles (SoPs) issued by the Repatriation Medical Authority under section 196B of the Act (see sections 120A and 120B of the Act). In this case, the following SoP has been issued for the relevant conditions claimed by the applicant –
§Instrument No 1 of 2000 – Anxiety Disorder
12. In respect of the applicant’s operational service, the standard of proof is that set out in sections 120(1) and 120(3). These sections require the Commission to determine that an injury or disease is war caused, unless they are satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. In respect of diagnosis (ie whether Mr Jensen suffers from an anxiety disorder) and any eligible defence service, the standard of proof is that of reasonable satisfaction (section 120(4)).
13. The relevant legal principles in relation to the standard of proof required under the Act is set out in Repatriation Commission and Gosewinckel (1999) 59 ALD 690 at 691:
“….The standard of proof for determining whether a veteran was suffering a morbid condition was the reasonable satisfaction standard in s 120(4), not the reasonable hypothesis standard in s 120(1) and (3). The reasonable hypothesis standard was to be used to decide whether an injury, disease or death of a veteran was war-caused. All other matters were to be dealt with by the reasonable satisfaction standard in s 120(4)….” [Emphasis added]
14. The standard of “reasonable satisfaction” as set out in section 120(4) has been held to be equivalent to the civil standard of proof - or satisfying the test on the balance of probabilities (Benjamin and Repatriation Commission (2001) 70 ALD 622; (2001) 34 AAR 270; [2001] FCA 1879; Fogarty and Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363).
15. The following documents were admitted into evidence –
Exhibit 1“T” Documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975
Exhibit 2A Statutory Declaration by Margaret Jensen dated 6 March 1986
Exhibit 3Statement by Mr Jensen dated 11 March 2006
Exhibit 4Report by Dr Katz dated 24 April 2006
Exhibit 5Statement of Dr Peter Mulholland dated 15 March 2006
16. Oral evidence was provided by the applicant in person. Telephone evidence was provided by Dr Katz, Dr Stratton and Dr Mulholland.
Evidence
§Ronald Jensen
17. The applicant described himself as an 84 old man who had served in the Royal Australian Navy during World War II. Specifically, he had served on a vessel which was transporting coal from Brisbane to Sydney. During a period of bad weather, the vessel took water into the boiler room. It was approximately 15 miles out from Yamba.
18. The applicant recalled that the crew of the ship was advised that the port at Yamba had been closed and that they could not take refuge there. In any event, the vessel foundered outside the bar and sunk. The applicant managed to swim clear of the boat and even though he had water in his lungs, he started swimming ashore. He had to swim approximately 1 to 1½ miles and fortunately, the tide was going in. When he got near the shore, he saw two other sailors who had also been on the ship. He met them on the beach and they then went into the sand hills for warmth. He recalled a man and a lady who then took them in a motor boat, where they were given clothing and shelter.
19. After the war, he left the Navy and went back to his trade of tool making. However his eyesight was becoming a problem and he could no longer do detailed work, particularly with micrometers. He then got a position as an engineer at a powerhouse - but had to do shift work. The applicant stated that he was anxious at that time and was not busy enough to mentally counteract some of the anxiety he experienced during the war, particularly from almost drowning in the incident claimed in this case. He mentions nightmares and that this had an effect on his life generally and particularly on his health. He mentioned that he is now a slightly built man, and he was not always like that. He recalled that he was fit and swam each day and did kayak work. He described himself as solidly built when he was young. He has never been able to regain weight since the war.
20. Over his working life, the applicant endeavoured to keep busy so that he did not dwell on his anxious state of mind. He told the Tribunal he had nightmares just after the ship sunk and that he still has them - perhaps every couple of weeks. In particular, he studied and obtained management positions for a substantial part of his career. He described being in management conferences and while he had difficulty in concentration because of his anxiety, he used distraction techniques to enable him to cope. For example, in a conference he would move and stand elsewhere in the room so that he could maintain concentration on the discussion around him.
21. The applicant also described a sleeping pattern where he wakes every two to three hours. He has had surgery for cancer and an incontinence problem in recent years. He has also had a double bypass heart operation. He described his anxiety as being reflected in comments by his wife, such as his gripping the steering wheel in a very tense manner.
22. The applicant stated that he retired at 71 years of age and since that time, has done maintenance at his home. He still drives between Southport and Coolangatta, and also to Brisbane.
23. Under cross-examination, the respondent’s advocate put to the applicant that his wife had originally stated the reason for the application was so that she could get a widow's pension. The applicant responded that the officer from the RSL had suggested that he should seek a consultation with Dr Katz. He conceded that he had never sought counselling or a consultation with a psychiatrist prior to that time.
24. Mr Jensen advised that he first saw Dr Rebgetz about chronic anxiety in about 1996. The respondent noted that Dr Rebgetz’s report about the development of Mr Jensen’s anxiety disorder states that the symptoms of anxiety were first noticed in 1991 (exhibit 1, folio 80: at question 1). It was put to the Tribunal that this information could only have been obtained from the applicant. In re-examination, it was mentioned that Mr Jensen had always been anxious and that the diagnosis was also made about the time of his cancer or bypass operation.
Dr Mulholland
25. Dr Mulholland is a psychiatrist who examined the applicant and provided a report dated 15 March 2006 (Exhibit 5). Dr Mulholland stated that he checked for generalised anxiety disorder and as noted in paragraph 11.10 of his report, the doctor did not form a view that the applicant had an anxiety of "clinical severity". In relation to that term, Dr Mulholland described that as being of distressing severity and/or a significant impairment in functioning which would usually require a person to seek treatment. He did not feel that this was causing any real problem for the applicant. He thought he had a mild sub-clinical anxiety, which he described as being in the realm of normal human experience.
26. When referred to paragraph 11.12 of his report, which stated "I could not obtain any clear history of anxiety or depression", Dr Mulholland recalled asking particularly about more recent times in the applicant’s life. He explored the nature of his cardio problem and did not detect any appreciable degree of anxiety or depression. He did not obtain a picture of any features of anxiety or depression of the 1950s, although he noted that Dr Katz did.
27. Dr Mulholland also considered whether the applicant satisfied a diagnosis of post-traumatic stress disorder (PTSD). He thought that the applicant displayed some features of PTSD about the re-experiencing of the boat's sinking, but did not find any other features to sustain such a diagnosis. He concluded that the total clinical features did not justify such a diagnosis.
28. In cross examination, counsel for the applicant put to Dr Mulholland that the anxiety the applicant described during his career included problems of concentration, sleep difficulties, and that he sometimes awoke irritable. It was also noted that he is a non smoker and non-drinker. Dr Mulholland agreed that the features of generalised anxiety disorder were "in that direction" but said that the applicant was a difficult historian and that he tended to provide the information that he wanted to, rather than answering questions which were asked of him. He agreed the applicant’s mind wandered a little but thought he was not too bad for a person in his mid-80s. Dr Mulholland concluded that it was possible that he may have a diagnosable condition, but that he was not convinced it passed the threshold for such a condition.
Dr Straton
29. Dr Straton saw the applicant in March 2004. He diagnosed him as having generalised anxiety disorder. Dr Straton formed the view that the applicant may have had some symptoms of a psychiatric disorder about six years following the war but he conceded that they had now subsided and that the applicant did not now fulfil the diagnostic criteria to be classified either as having generalised anxiety disorder or PTSD.
30. Dr Straton assessed the criteria to be satisfied in its systematic way, particularly in relation to PTSD. He said the applicant might have had anxiety but it was not clear to him that it had anything to do with his naval service. He informed the Tribunal that he dictated his letter in front of the applicant concerning his assessment.
Dr Katz
31. Dr Katz is a psychiatrist and saw the applicant on two occasions. He said the applicant was fatigued due to his bypass operation. He described muscle tension, and that his social interaction has been affected by his anxiety - although he coped with this to some degree by distracting himself. He did not describe any open conflict with his wife although he may have had some difficulty in interacting with others.
32. Dr Katz diagnosed Mr Jensen as currently having generalised anxiety disorder, which he felt the applicant was able to control when he was much younger. He thought the applicant was psychologically affected by the events of his war service and that longitudinally, his current anxiety could not be attributed to any other period.
Submissions
33. The applicant's counsel referred the Tribunal to folio 80 and to the proposal that the onset of anxiety disorder was in 1991. It was submitted that a reference to a report by psychiatrist Dr Craft in 1985 may have been relevant and that the matter should be adjourned until a copy of that report was obtained.
34. The respondent obtained a copy of the relevant report by Dr Craft dated 20 May 1985 and provided that to the Tribunal and to the applicant's legal representatives under cover of letter dated 24 August 2006. Dr Craft said that the applicant at that time was of average intelligence, fully oriented in time and place and that he was not depressed. He further concluded that he did not believe that the applicant's condition warranted any diagnosis, albeit that he might be "mildly anxious". No treatment was recommended. Dr Craft stated that "my opinion is that he certainly does have some degree of tension, especially in relation of stress today. It does not seem to warrant treatment, nor does he request this. It is extremely difficult after the lapse of time to relate his current degree of tension to his war-time experiences."
Consideration of the Issues
35. The Tribunal has reached a decision in this matter after taking account of all of the oral and documentary evidence, together with the statutory and case law relevant.
Diagnosis
36. In the current circumstances, it is the Tribunal’s role to make a determination regarding diagnosis, on the balance of probabilities (Benjamin and Repatriation Commission (2001) 70 ALD 622; (2001) 34 AAR 270; [2001] FCA 1879).
37. Dr Katz, psychiatrist, saw the applicant on two occasions and wrote two reports dated 18 January 2005 and 24 April 2006. He formed the view that the applicant does satisfy a diagnosis of generalised anxiety disorder. He does so on the basis that there is no other period in the applicant's life and no other circumstances to which his anxiety could be attributed.
38. Dr Michael Craft, psychiatrist, saw the applicant on 20th of May 1985 after he was referred by the Department of Veteran’s Affairs in Brisbane for assessment in connection with an application for pension, on the basis of personal tension. Dr Craft at that time, could not find any basis to make a diagnosis of any psychiatric disorder and emphasised that he did not require treatment and nor did the applicant seek treatment. He could not conclude that the applicant’s anxiety was related to his wartime service.
39. Dr Straton saw the applicant in March 2004 and while indicating there were probably symptoms of a psychiatric disorder six years after his discharge from the RAN, those symptoms were no longer present and the applicant did not fulfil the criteria for a diagnosis of either of generalised anxiety disorder or post-traumatic stress disorder. Dr Stratton's approach was analytical in comparing the applicant's condition with the diagnostic criteria specified (Exhibit 1, folios 52 to 56).
40. Dr Peter Mulholland saw the applicant on the 15th of March 2006 and described some mild features of post-traumatic stress disorder in relation to the sinking of HMAS Waree, but he did not believe that the applicant satisfied the criteria for any clinical psychiatric condition of either generalised anxiety disorder or PTSD.
41. In the circumstances, the Tribunal takes account of the severity of the circumstances described and the period of time which has elapsed since its occurrence during World War II. The Tribunal is also mindful of the degree of functionality which seems to be evident in the applicant's working and personal life since that time.
42. Taking account of that information, together with the fact that Dr Craft, Dr Straton and Dr Mulholland could not find any diagnosis of a psychiatric condition, the Tribunal regards those opinions as preferable to that of Dr Katz. Consequently, the Tribunal has concluded, on the balance of probabilities, that the applicant does not satisfy the requirements for post-traumatic stress disorder, and while he has some indicia of the criteria for generalised anxiety disorder, he does not satisfy, on the balance of probabilities, the requirements of the diagnosis of that condition either.
43. Nevertheless, the Tribunal has considered the legislative template provided for assessing claims of this nature, and in particular, has determined that the appropriate assessment would be whether the applicant has a generalised anxiety disorder.
Findings of Fact
44. The Tribunal finds that:
(i)The applicant has had a relatively functional life, with full employment in his trade in the engineering field immediately following World War II. He subsequently gained knowledge and experience in management positions until 1992, when he was 71 years of age.
(ii)The applicant and his wife have no children but have retired to the Gold Coast and enjoy a relatively pleasant lifestyle.
(iii)He was on board HMAS Waree when it capsized in October 1943, off Yamba in New South Wales. He swam about a mile and a half through heavy seas and reached shore. He took in some water on that swim ashore.
(iv)The applicant has some features of generalised anxiety disorder but does not satisfy the clinical criteria for such a diagnosis.
Is This Condition War-Caused?
What Kind of Injury has been Suffered by Mr Jensen?
45. Before examining whether the SoPs are satisfied, the Tribunal must first establish whether two pre-conditions are met –
(i) Was Mr Jensen a veteran?
(ii) Is the kind of injury or disease claimed by the applicant consistent with a SoP which has been issued? (Repatriation Commission and Hancock (2003) 37 AAR 383; [2003] FCA 711 per Selway J).
46. Mr Jensen has completed war service during the period of World War II and this was accepted by the respondent. He is therefore a “veteran”. The condition claimed is also a disease or injury, as defined within the meaning in section 5D(1) of the Act, and therefore the claim relates to a disease or injury for which a SoP has been issued. In the event that the applicant has the condition of Generalised Anxiety Disorder, the above pre-conditions set out in Hancock’s case have therefore been met.
47. To determine the assessment of Anxiety Disorder for this applicant and whether it is “war-caused”, four steps are required as set out by the Full Court of the Federal Court in Repatriation Commission and Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144. The relevant steps are:
“1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11)…….
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors, which the authority has determined to be the minimum, which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
48. In dealing with Step 1 of Deledio, there must be material which can establish an hypothesis connecting the applicant’s Anxiety with facts relating to his service. An hypothesis is a proposition which may seem logical, without acceptance of its truth, but it is to be regarded as a starting point for further enquiry. It is “…no more than a supposition of conjectural explanation of an ultimate fact”: Repatriation Commission v Stares (1996) 41 ALD 212 at 217.
49. The Tribunal must have regard to the requirement to make its determination “after consideration of all of the material”. This was first referred to in Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564. The Tribunal has also given cognisance to the term “consideration of all of the material” which was clarified in Repatriation Commission v Webb (1998) 51 ALD 575 as requiring consideration of each sequential part of the hypothesis and whether facts point to each part of the hypothesis being reasonable. If each part is reasonable, the overall hypothesis may be reasonable.
50. Based on medical evidence and the facts put forward by the applicant in relation to his life events since 1943, the Tribunal is satisfied that an hypothesis can be made connecting the applicant’s condition of Anxiety Disorder with the circumstances of his service.
51. In relation to Step 2 of Deledio, a SoP has been issued by the Repatriation Medical Authority for the condition of Anxiety Disorder. This is contained in Instrument No 1 of 2000 – Anxiety Disorder. The Tribunal finds that this step is also satisfied.
52. Step 3 of Deledio requires an assessment of whether the hypothesis raised in Step 1 is a reasonable one. The Explanatory Memorandum to the Act makes it clear that a reasonable hypothesis is not the existence of a mere possibility, but that the intention of the legislation is that a pension will be payable only where the evidence provides “….some positive inference in favour of a connection between the injury, disease or death and the veteran’s or member’s particular service” (at page 107).
53. The approach to be adopted in assessing this question was set out by the High Court in Byrnes and Repatriation Commission (1993) 177 CLR 564 at 571 as follows:
“The position may be summarised as follows:
(1)First, sub-s (3) of s 120 is applied: Do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with the war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable the claim fails. Proof of facts is not in issue at this point.
(2)If a reasonable hypothesis is established sub-s (1) of s 120 is applied. The claim will succeed unless:
(a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.” (Emphasis added)
54. In determining whether the hypothesis is reasonable, the material before the Tribunal must fit the template in the SoP for Anxiety Disorder. That is, the material before the Tribunal must demonstrate the elements of Anxiety Disorder as described in the definition in clause 8 and in the factors outlined in clause 5 of the SoP (Repatriation Commission v Hill [2002] FCAFC 192 at [67]; (2002) 29 ALD 581). In that case, a diagnosis of post traumatic stress disorder was involved and was not in dispute, and the Court there approached the assessment this way:
“The correct issue was, assuming [the applicant] suffered from PTSD as defined in cl 4 of the SoP, did the material raise or point to his “experiencing a stressor”, as defined, during his operational service?”
55. The approach set out in Hill’s case in assessing the reasonableness of the hypothesis has been followed by the Tribunal here, by assessing whether the evidence “points to” the applicant experiencing a “severe psychosocial stressor” as required by SoP No. 1 of 2000.
56. The third step in the Deledio process requires the Tribunal to make a relatively high level assessment of the applicant’s story and to determine whether it can be said to come within the bounds of the template set out in the SoP. Findings of fact are not made in the step 3 assessment. At this point, however, if the applicant’s story does not fit within the template of SoP Instrument No 1 of 2000, then the hypothesis will not be reasonable (see section 120(3)). In those circumstances, the claim would be unsuccessful.
57. To conclude that the applicant’s claim is reasonable in terms of Hill’s case, a hypothesis must reveal a credible proposition and one that is not too remote or too improbable. It must be “….more than a possibility, not fanciful or unreal, consistent with the known facts. It is a hypothesis pointed to by the facts, even though not proved on the balance of probabilities” (East v Repatriation Commission (1987) 16 FCR 517 at 533. An hypothesis therefore is merely a possibility, but to be a reasonable hypothesis, it must “….be pointed to or supported, and not merely left open as a possibility by the material before the decision maker” (Repatriation Commission v Bey (1997) 79 FCR 364).
58. In a practical sense, the evidence must “point to” or “support” the hypothesis and not merely be “left open” on the evidence as a possibility (Gilbert v Repatriation Commission (1989) 86 ALR 713). It must also show more than just a temporal connection with military service (Repatriation Commission v Tuite (1993) 39 FCR 540). The High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 affirmed this approach or the “points to” test. It said this test in section 120(3) will manifest a reasonable hypothesis in circumstances where “….there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc with the operational service”.
Is The SoP For Anxiety Disorder Fulfilled?
59. The relevant SoP for Anxiety Disorder is Instrument No 1 of 2000. The relevant provisions of the SoP are as follows:
Kind of injury, disease or death
2. (a) This Statement of Principles is about anxiety disorder and death
from anxiety disorder.
(b) For the purposes of this Statement of Principles, “anxiety
disorder” is defined as the anxiety spectrum disorders of
generalised anxiety disorder, or anxiety disorder due to a general
medical condition, or anxiety disorder not otherwise specified…Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be
related to any relevant service rendered by the person.Factors
5. The factors that must as a minimum exist before it can be said that a
reasonable hypothesis has been raised connecting anxiety disorder or
death from anxiety disorder with the circumstances of a person’s relevant service are:
(a) for generalised anxiety disorder or anxiety disorder not otherwise specified, only(i) being a prisoner of war before the clinical onset of anxiety disorder; or
(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety
(iii) having a clinically significant psychiatric condition within the two years immediately before the clinical onset of anxiety disorder; or
(iv) having a major illness or injury within the two years immediately before the clinical onset of anxiety disorder; or
(v) experiencing a severe psychosocial stressor within the two years immediately before the clinical worsening of anxiety disorder; or(vi) having a major illness or injury within the two years immediately before the clinical worsening of anxiety disorder; or
(vii) having a clinically significant psychiatric condition within the two years immediately before the clinical worsening of anxiety disorder; or
(b) for anxiety disorder due to a generalised medical condition only, having an endocrine, cardiovascular, respiratory, metabolic or neurological disorder, where the disorder is a direct physiological cause of the anxiety at the time of the clinical onset of the anxiety disorder; or
(c) inability to obtain appropriate clinical management for anxiety disorder.Other definitions
8. For the purposes of this Statement of Principles:
…
“clinically significant” means sufficient to warrant ongoing management by a psychiatrist, clinical psychologist or General Practitioner;
…
“generalised anxiety disorder” means a psychiatric disorder with the following features:
A. Excessive anxiety and worry (apprehensive expectation), which occur on more days than not for a continuous period of at least six months, about a number of events or activities; and
B. The person finds it difficult to control the worry; and
C. The anxiety and worry are associated with three or more of the
following six symptoms, with at least some symptoms present for more days than not during the previous six month period:(1). restlessness or feeling keyed up or on edge
(2). being easily fatigued
(3). difficulty concentrating or mind going blank
(4). irritability
(5). muscle tension
(6). difficulty falling or staying asleep, or restless unsatisfying sleep; and
D. The focus of the anxiety and worry is not confined to features of any other Axis I disorder; and
E. The anxiety, worry, or physical symptoms (as described in C. above) cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and
F. The anxiety and worry are not due to the direct physiological effects of a substance or a general medical condition and do not occur exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder;
…
“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;60. In relation to the term “clinical onset”, it has been held by the Full Court of the Federal Court in Lees and Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331 at [16] that there must be sufficient proximity between the manifestation of the disease and the applicant’s war service. That is, there must be a determination about the timing of the onset of the disease in relation to the stressors claimed. In assessing this link, there must be reference to anxiety after the event by way of nightmares and ongoing anxiety. There is reference to other conditions including fatigue and irritability as well as muscle tension, but these are not referred to specifically in relation to the applicant’s wartime experience. Indeed, the Tribunal accepts that the references in the medical reports to these conditions as well as reference to the applicant’s incontinence, cancer and bypass surgery are contributing factors to the applicant's current anxiety condition. However, even Dr Katz, who supports the applicant as having a generalised anxiety disorder, does not refer to or imply, that these factors are relevant to his wartime service. The chronology of the onset of the condition must be within two years of the precipitating event.
61. Based on the medical and other evidence, the Tribunal accepts the evidence of Dr Mulholland and Dr Straton as being preferable to the evidence of Dr Katz. The Tribunal therefore cannot be reasonably satisfied that the evidence demonstrates "clinical onset" within two years of the sinking of HMAS Waree. Consequently, the Tribunal finds that this step is not satisfied.
Did the Applicant Experience a “Severe Psychosocial Stressor” as Specified in Paragraph 5 and as Defined in Paragraph 8?
62. The applicant’s case to support that he suffered a “severe psychosocial stressor” is based on the capsize of HMAS Waree and his having to swim ashore for one to one and a half miles.
63. In determining whether the applicant experienced a “severe psychosocial stressor”, the Tribunal considered White v Repatriation Commission [2004] FCA 633 where Spender J said that “a severe psychosocial stressor” contains both objective and subjective elements. “An identifiable occurrence” was said to be objective and that the examples given in the SoP were examples of the kinds of “identifiable occurrence” intended by the definition.
64. The Tribunal is mindful that an actual threat is not necessary but that a subjective element is a relevant consideration as well as the event being judged objectively by a reasonable person in the position of the applicant (Stoddart v Repatriation Commission (2003) 74 ALD 366).
65. Based on the considerations set out in White v Repatriation Commission [2004] FCA 633, the examples listed as defining a “traumatic event” are not intended to be exhaustive but are threshold levels. In the circumstances outlined to the Tribunal, it accepts that the event described by the applicant would amount to a psychosocial stressor but that it was not a severe psychosocial stressor which could be the cause of ongoing anxiety for 62 years, from 1943 until 2006.
66. There is therefore a temporal connection between the “indefinable occurrence” and the applicant’s war service. However the Tribunal finds that subjectively, there is not a “severe” psychosocial stressor as it is not at the threshold as defined in the SoP.
67. The Tribunal finds that the circumstances could not objectively form a reasonable hypothesis, given the circumstances of employment, functional lifestyle and the medical evidence provided by three psychiatrists for the period 1985 to 2006. Even if there was at some time previously, a diagnosable clinical condition, the Tribunal has found as a matter of fact that it is not now in existence. Consequently, the applicant cannot satisfy Step 3 of the Deledio process.
68. The principal issue in Step 4 of Deledio is whether the evidence admitted factually before the Tribunal discharges the legal standard of proof required by the Act. The Tribunal considers that this step need not be further analysed given the conclusions reached for Step 3 in the previous paragraph, that the hypothesis is not a reasonable one.
69. In relation to whether pension is correctly assessed at ninety percent of the general rate, this Tribunal has not disturbed the finding of accepted conditions found by the Veteran’s Review Board. The Tribunal has therefore reviewed the lifestyle and impairment ratings of the evidence and again accepted the views of Dr Stratton in preference to those of Dr Katz. In this regard, the lifestyle and impairment ratings assessed under Table 23.1 would correctly provide an assessment of 90 percent of the general rate. The Tribunal therefore affirms that level of pension as being applicable from 24 November 2003.
70. On the basis of all of the evidence submitted, the Tribunal finds –
(i)that the applicant does not currently suffer from any psychiatric condition;
(ii)that the applicant’s claimed conditions were not war-caused within the meaning of the Act; and
(iii)that pension is correctly assessed at 90 percent of the general rate, on and from 24 November 2003.
Decision
71. The Tribunal affirms the decision under review, being the decision of the respondent dated 7 July 2004, as varied by the Veterans’ Review Board on 20 April 2005.
I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Senior Member and Brigadier G. Maynard, Member.
Signed: …………………………….
Legal Research Officer
Date/s of Hearing 23 August 2006
Date of final submissions 7 September 2006
Date of Decision 20 November 2006
Counsel for the Applicant Mr R Clutterbuck
Solicitor for the Applicant Ms C Haney of Haney Lawyers
For the Respondent Mr M Smith, Departmental Advocate
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