John Sparks and Repatriation Commission
[2016] AATA 793
•11 October 2016
Sparks and Repatriation Commission (Veterans’ entitlements) [2016] AATA 793 (11 October 2016)
Division
VETERANS' APPEALS DIVISION
File Number
2015/5305
Re
John Sparks
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President I R Molloy
Date 11 October 2016 Place Brisbane The decision of the Commission as varied by the Board is affirmed.
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Deputy President I R Molloy
Catchwords
VETERANS’ ENTITLEMENTS – pensions and benefits - whether condition defence-caused – whether bipolar disorder defence-caused injury or disease under the Act – whether within relevant period of clinical onset – decision of the Commission as varied by the Board affirmed.
Legislation
Veterans’ Entitlements Act 1986 (Cth)
Cases
Hardman v Repatriation Commission [2004] FCA 1174.
Kaluza v Repatriation Commission [2010] FCA 1244.
Lees v Repatriation Commission (2002) 125 FCR 331.
Repatriation Commission v Cooke [1998] FCA 1717.
Repatriation Commission v Deledio (1998) 83 FCR 82.
Repatriation Commission v Hill (2002) ALD 581.
Repatriation Commission v Cornelius [2002] FCA 750.
Youngnickel v Repatriation Commission [2004] FCA 1691.REASONS FOR DECISION
Deputy President I R Molloy
11 October 2016
On 11 June 2014 the Repatriation Commission (“the Commission”) refused Mr Sparks’ claim under the Veterans’ Entitlements Act 1986 (“the Act”) in respect of bipolar disorder on the ground no diagnosis was confirmed.
On 29 September 2015 the Veterans’ Review Board (“the Board”) varied that decision to include a diagnosis of bipolar disorder but otherwise affirmed the Commission’s decision. On 12 October 2015 Mr Sparks applied to the Tribunal for review of the Commission’s decision as varied.
ISSUES
The issues are whether Mr Sparks suffers from bipolar disorder being a defence-caused injury or disease coming within the Act.
FACTS
Mr Sparks was born on 19 January 1968. He was a member of the RAAF from 4 June 1985 to 16 February 1990. He was therefore seventeen when he joined. His service constitutes defence service for the purposes of the Act.
Mr Sparks gave oral evidence of experiencing three significant deaths in three months during his recruitment training in South Australia. These included a baby whose parents were friends of his parents, and with whom he stayed on weekends. He said he was not permitted to attend the funeral.
Mr Sparks gave evidence of bullying he experienced throughout his time in the service. He was first posted to Fairbairn, ACT, as an AC Cooks Assistant. His evidence was that he was subject to bullying and ridicule there from the section Warrant Officer.[1]
[1] Exhibit 1, T Documents, T 8, page 40, Statement by the veteran dated 14 March 2014.
In late 1986 Mr Sparks unsuccessfully applied to remuster as a cook. An assessment was that he was unco-operative at each of two interviews. Two of his superiors, including his Warrant Officer, were reported as describing him as a liability in the kitchen, irresponsible, immature and having a volatile temper such that they “were afraid he might do something stupid such as (eg throw knives) in the kitchen.”[2]
[2] Exhibit 1, T Documents, T 7, page 29, para 2, Service medical evidence: Psychology records dated 22 December 1986.
The records contain a number of reports of Mr Sparks describing him in terms such as immature, self-opinionated and headstrong.[3] There were aspects of the reports with which Mr Sparks disagreed or which he thought did not disclose the full picture.
[3] Exhibit 1, T Documents, T 7, page 36, para 2, Service medical evidence: Psychology records dated 14 Nov 1989.
He did not dispute that he had been involved in fights. However he rejected any notion that he might be given to throwing knives or violence of that nature. He did not dispute that he was correctly reported as saying, in 1989, he was having increasing difficulty tolerating the RAAF environment and was trying hard to conform but always messes it up.[4]
[4] Ibid para 4.
Mr Sparks had a hernia operation in February 1988. There were related problems for six or seven months which required him to take sick leave but remain on base. Further complications led to his having a testicle surgically removed in July 1989.[5]
[5] Exhibit 1, T Documents, T 4, page 12, Service medical documents dated 15 Feb 1999.
He said his condition was well-known on base. Mr Sparks said that in consequence he was subjected to what he variously described as light-hearted banter, ridicule, tormenting and taunts from other RAAF members. He said he did not react well to this conduct. He described his reaction in terms of gutted, bitter and paranoid.
In 1989 Mr Sparks was referred for psychological support. Records and medical notes at that time do not include any reference to the conduct of the other RAAF members.[6] In oral evidence Mr Sparks said the matter was mentioned but the notes are not a complete record of what he said.
[6] Exhibit 1, T Documents, T 7, page 26, Service medical evidence: Psychology records dated Sept 1989.
A psychological report, in November 1989, reported a marked deterioration in Mr Sparks’ level of functioning over the last fourteen months.[7] The report continued:
While he has always had some difficulty in controlling outbursts of anger, he (and others) are now concerned that he may become physically aggressive. He is convinced that he cannot control his emotions, therefore attempts at psychotherapy (cognitive behavioural strategies in particular) have been relatively unsuccessful. His is also convinced that only when he leaves the RAAF will he return to a comfortable level of functioning.[8]
[7] Exhibit 1, T Documents, T 7, page 37, Service medical evidence: Psychology records dated 14 Nov 1989.
[8] Ibid para 9.
The report strongly recommended Mr Sparks’ discharge from the RAAF. As I have said he was discharged in February 1990.
LAW
Under s 70(1)(b) of the Act pension is payable to a member of the Defence Forces who is incapacitated from a defence-caused injury or a defence-caused disease.
Section 70 (5) of the Act provides relevantly that an injury suffered or a disease contracted by a member of the Defence Forces shall be taken to be a defence-caused injury or disease, if:
(a)the … injury or disease, as the case may be, arose out of, or was attributable to, any defence service … of the member…
Under s 120(4) of the Act such matters are to be decided to the Commission’s (and now the Tribunal’s) reasonable satisfaction.
Section 120B(3) provides, relevantly:
(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, [or] a disease contracted by a person … was … defence-caused only if:
(a) the material before the Commission raises a connection between the injury, [or] disease … 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); ..
…that upholds the contention that the injury, [or] disease … of the person is, on the balance of probabilities, connected with that service.
The first requirement is to arrive at a diagnosis.[9] It was not disputed before the Tribunal that Mr Sparks was suffering from a condition of bipolar disorder. That diagnosis is sufficiently supported by the medical evidence. Dr James Wright, consulting psychiatrist, reported on a diagnosis in 2000.[10] In oral evidence he referred to the treatment Mr Sparks received in 1994, in particular the medication prescribed, as strongly suggesting a diagnosis at that time of bipolar.
[9] Repatriation Commission v Cooke [1998] FCA 1717.
[10] Exhibit 2, report of Dr James Wright, dated 15 April 2016.
It is then a matter of evaluating the claim in accordance with the process outlined by the Full Court of the Federal Court in Repatriation Commission v Deledio.[11]
[11] (1998) 83 FCR 82.
The first step is to determine whether there is an hypothesis connecting Mr Sparks’ condition with the circumstances of his service. The hypothesis is that Mr Sparks has bipolar disorder arising out of or attributable to his service in the RAAF.
The next step is to identify a relevant Statement of Principles (“SoP”). It is not disputed that SoP No 28 of 2009 relating to bipolar disorder is relevant. The next step is to determine whether the hypothesis raised is a reasonable one. Proof of facts is not in issue at this point. The Tribunal is not determining whether the material before it establishes the premises in question; rather it is to determine whether the material points to some fact or facts supporting the hypothesis. For the hypothesis to be reasonable it must be supported by material pointing to each element that the SoP makes essential.[12]
[12] Repatriation Commission v Hill (2002) ALD 581 at [57]; Hardman v Repatriation Commission [2004] FCA 1174 at [[39].
The SoP, in clause 5, provides that at least one of the factors set out in clause 6 of the SoP must be related to the relevant service. Here reliance was placed on clause 6(a)(iii) of the SoP as the factor that existed connecting Mr Sparks’ bipolar disorder with the circumstances of his service:
(iii)experiencing a category 2 stressor within six months before the clinical onset of bipolar disorder…
The category 2 stressors relied on, as defined in clause 9 of the SoP, were:
(a)being socially isolated and unable to maintain friendships or family relationships, due to physical location, language barriers, disability, or medical or psychiatric illness;
(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…
Mr Sparks chiefly relied on the evidence, written and oral, of his treating psychiatrist, Dr James Wright. Particular reliance was placed on Dr Wright’s most recent report dated 15 April 2016[13] in which he said:
[13] Exhibit 2, report of Dr James Wright, dated 15 April 2016.
As the diagnosis of Bipolar Disorder was not officially made during that period [of service] it is necessary to make some inferences from the material available.
…
Of particular note is the entry in the Psychological Records of the patient from the military, namely Point 9 "it is clear that there was a marked deterioration in the member's level of function over the last 14 months. While he always had some difficulty in controlling outbursts of anger he (and others) are now concerned that he may become physically aggressive.” It appears this observation was made in around 1989.
I note that the testicular surgery which resulted in the loss of a testicle occurred in 1988. It was after this surgery that Mr Sparks describes how he was bullied and teased for the loss of a testicle. I think it is quite probable that this loss and the subsequent mistreatment meted out to him may have been a sufficient stressor to exacerbate, bring out and intensify an already underlying tendency towards Bipolar Disorder.
Unfortunately there is often some difficulty in distinguishing some of the manifestations of Bipolar Disorder particularly Hypomania from Personality Disorder. It seems that the view of the people assessing him in the Military were [sic] that his problems were primarily personality related.
Given his subsequent development of Bipolar Disorder we have to be highly suspicious that manifestations of psychological disturbance that occurred earlier in his life may have been firstly, early signs, and then, secondly, unrecognised episodes, of what was subsequently diagnosed as Bipolar.
I will go over the issue of the Category 2 Stressor. It certainly seems that he was mistreated in the aftermath of his testicular surgery being certainly isolated, singled out for teasing and bullying but he was not adequately supported during this time which is particularly unfortunate give that he had been identified as someone with a vulnerable personality.
There appears to be some difficulty in firmly relating the onset of Bipolar within the six month period specified. As it relates to his surgery and subsequent mistreatment I think that this probably reflects some of the imprecision of observation which was occurring at that time. If the relevant parties were not looking for a diagnosis of Bipolar it is not surprising that they did not make this link between the surgery, the teasing and the apparent deterioration in his presentation.
Therefore we have to look at things on the basis of balance of probabilities. The fact is he did subsequently develop Bipolar Disorder. It is quite common for Bipolar Disorder to arise when the person is young in the teens or early twenties. It would not be surprising that someone with Mr Sparks [sic] propensity to develop Bipolar when placed in such a stressful situation as the RAAF, having to undergo potentially humiliating and sensitive surgery at such a young age and given that the treatment he received at the hands of his colleagues that these things would have been sufficient to trigger the onset of this condition.
On behalf of Mr Sparks it was contended the evidence of his taunting or harassment, especially following the loss of a testicle in mid-1989, was capable of satisfying the requirement of a category 2 stressor, within one or both of the above definitions in clause 9 of the SoP. Dr Wright appears to date the loss to 1988 but I do not think that detracts from the general thrust of his evidence on this issue. I am satisfied there is material to support this aspect of the SoP.
However a requirement under the SoP is the clinical onset of bipolar disorder within six months of a category 2 stressor. In Repatriation Commission v Cornelius[14], Branson J cited with approval the meaning of the concept of clinical onset in Robertson v Repatriation Commission (1998) 50 ALD 668. Her Honour agreed[15] a condition had its clinical onset:
“… 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 …”
[14] [2002] FCA 750.
[15] Ibid, [26].
In Lees v Repatriation Commission[16] the Full Court of the Federal Court said that all the symptoms or indicia required to make a diagnosis must be present within the time frame contemplated by the SoP.[17] The evidence may be from a medical expert who confirms that symptoms observed at some earlier time indicated the onset of the injury or disease at that time.[18]
[16] (2002) 125 FCR 331, 337, per Heerey, Moore & Kiefel JJ.
[17] See also Youngnickel v Repatriation Commission [2004] FCA 1691, [30]-[31].
[18] Kaluza v Repatriation Commission [2010] FCA 1244, [92].
Dr Wright’s report refers amongst other things to suspicions and difficulty of relating the onset or bipolar to the six months period. In his oral evidence he referred to the difficulty of looking back some thirty years ago. He said the features identified from the records were not text book symptoms of bipolar disorder. He said psychiatrists look for patterns. He said the records were suggestive of bipolar but he highlighted the difficulties of making that assessment.
There is evidence, as I have said, that Mr Sparks was diagnosed with bipolar disorder in 1994. That of course was some four years after his discharge. I think the evidence of Dr Wright concerning the earlier onset of clinical bipolar disorder is too tenuous.
I have had regard to all of the material. In my view the material does not point to the clinical onset of bipolar disorder within six months of Mr Sparks having a category 2 stressor within the SoP. Consequently the hypothesis cannot be described as reasonable. Therefore the claim must be refused.
CONCLUSION
The decision of the Commission as varied by the Board is affirmed.
I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President I R Molloy ..........................[Sgd]..............................................
Dated 11 October 2016.
Dates of hearing 13 June 2016 and 26 August 2016 Counsel for the Applicant C. Reid Solicitors for the Applicant Wallace Davies Solicitors Advocate for the Respondent B. Williams
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