Jones and Repatriation Commission (Veterans’ entitlements)

[2015] AATA 812

Jones and Repatriation Commission (Veterans’ entitlements) [2015] AATA 812 (20 October 2015)

Division	VETERANS' APPEALS DIVISION
File Number	2014/6399
Re	Frederick Jones
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Senior Member A C Cotter
Date	20 October 2015
Place	Brisbane

The Tribunal affirms the decision under review.

.........................[Sgd]...............................................

Senior Member A C Cotter

CATCHWORDS

VETERANS’ ENTITLEMENTS – disability pension – depressive disorder – sleep apnoea - whether conditions connected to service – clinical onset outside period prescribed by statement of principles – connection of conditions to service not established – decision under review affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) ss 120, 120B

CASES

Re Greenough and Repatriation Commission (2002) 70 ALD 470

Repatriation Commission v Cornelius [2002] FCA 750

Re Robertson and Repatriation Commission (1998) 50 ALD 668

Youngnickel v Repatriation Commission [2004] FCA 1691

Repatriation Commission v Gosewinckel (1999) 59 ALD 690

Lees v Repatriation Commission (2002) 125 FCR 331

SECONDARY MATERIALS

Statement of Principles concerning Depressive Disorder No. 84 of 2015

Statement of Principles concerning Depressive Disorder No. 28 of 2008

Statement of Principles concerning Sleep Apnoea No.42 of 2013

REASONS FOR DECISION

Senior Member A C Cotter

20 October 2015

1. Mr Frederick Jones served in the Royal Australian Air Force for just over 20 years, rising to the rank of Sergeant.

2. Following his discharge in August 1991, he worked as a concrete cutter for two or three years before injuring his back at work. He had a laminectomy in 1995 and due to his physical limitations, did not return to that work. Because of his limited education and the restrictions associated with his back condition, he has poor employment prospects and has effectively not worked for 20 years.[1]

   [1] See Exhibit 1, T Documents, f B4 and f 36.

3. Although having been treated by his general practitioner for depression for some 20 years, Mr Jones first saw a psychiatrist, Dr Jonathan Hargreaves, in 2010. He confirmed a diagnosis of Major Depressive Disorder and thought that there was a convincing temporal and causal link between the victimisation that Mr Jones alleges to have experienced in the RAAF and the development of depression.[2]

   [2] Exhibit 1, T Documents, report of Dr Jonathan Hargreaves dated 11 February 2013, f 33.

4. Separately, Mr Jones was diagnosed as suffering from Sleep Apnoea, and was referred to a specialist in that area.[3]

   [3] See Exhibit 1, T Documents, letter from Dr John Corbett dated 15 June 2012, ff 6-7.

5. Mr Jones subsequently lodged a claim for a disability pension based on those two conditions.[4]  The Commission rejected the claim on the grounds that the conditions were not defence-caused.[5] The Veterans’ Review Board (“Board”) relevantly affirmed the decision as it related to those conditions.[6] Mr Jones has sought a review of the decision by this Tribunal.

   [4] Exhibit 1, T Documents, ff 9-18.

   [5] Exhibit 1, T documents, f 45-50.

   [6] Exhibit 1, T Documents, ff B-B10.

   ISSUES FOR THE TRIBUNAL

6. Mr Jones’ period of service from 7 December 1972 to 26 August 1991 is considered defence service under the Veterans’ Entitlements Act 1986 (Cth) (“Act”). Therefore, the principal issues that fall to be determined by me are whether the Major Depressive Disorder and the Sleep Apnoea are defence-caused, in that they arose out of, or were attributable to, Mr Jones’ defence service.[7]

   [7] See s 70(5) of the Act.

7. In dealing with such cases, the Commission (or the Tribunal in its place in this instance) is to decide the matter “to its reasonable satisfaction”.[8] The Act then goes on to relevantly provide that in so doing, the Commission (or Tribunal) is to be reasonably satisfied that the injury or disease was defence-caused only if the material before it raises a connection between the injury or disease and some particular service rendered by the person, and there is in force a Statement of Principles determined under the Act that upholds the contention that the injury or disease is, on the balance of probabilities, connected with that service.[9]

   [8] See s 120(4) of the Act.

   [9] See s 120B(3) of the Act.

8. Before considering whether each of the conditions was defence-caused, it is first necessary to outline the aspects of Mr Jones’ service on which his contentions are based.

   MR JONES’ CASE

   Mr Jones’ evidence

9. Over the time in which Mr Jones’ claim has been considered, first by the Commission, then by the Board and most recently by this Tribunal, he has provided a number of written responses and commentaries, which are largely repetitive. He also elaborated on a number of the events on which he relied in an unsworn statement at the hearing. Unfortunately, Mr Jones could not recollect the detail of some of the events and he was uncertain as to their timing and relative sequence. Considering that the events in question date back some 25 to 30 years, that is not surprising.

10. Mindful that he was then unrepresented,[10] and to ensure that there were no incidents which were overlooked, I summarised at the commencement of the hearing what I understood were the broad categories of Mr Jones’ allegations. He confirmed the summary to be accurate and that there were no other grounds on which he was relying. All relate to a period of time (between about 1985 and 1990) when he was stationed at Base Squadron Wagga (“BSW”) and was occupying the position as a Cook’s Assistant. They are: what is called the “knife” incident; what is called the “shooting” incident; a variety of matters that can be conveniently described together as workplace victimisation and bullying and workplace disharmony; whether he was obese at particular times; and whether during his time in catering, he was exposed to a variety of harmful substances and chemicals which were used for cleaning purposes. I set those out in more detail below.

    [10] Mr Jones was subsequently represented by an Advocate for the purpose of preparing a Statement of Facts and Contentions following the hearing.

    The knife incident

11. Mr Jones said that while at BSW he was threatened with a knife by one of the cooks, Leading Aircraftman Jock Lowe. In his statement at the hearing,[11] Mr Jones recalled that he was collecting money for some reason and approached Mr Lowe who was working at the time. Mr Lowe turned around with a knife in his hand and, pointing it at Mr Jones, told him to leave him alone. Mr Jones said he was shocked by the incident.

    [11] See transcript of hearing, page 38, line [25] to page 39, line [31].

12. Mr Jones was unable to say when this incident occurred, but it is identified in the Discharge Health Statement completed in June 1991. In that form, the examining Medical Officer noted that Mr Jones had problems with anxiety “4 yrs since allegedly threatened with a knife”.[12] In another document entitled Medical Examination Record-Serving Member, on the same date, a problem of anxiety is noted as existing for “several years, worse recently”. It contains a notation, “(since threatened 4½ yrs ago with a knife)”. In that context, atypical chest pain, numb fingers, and palpitations were noted. Two ECGs were apparently conducted, but no abnormality was detected.[13]

    [12] Exhibit 1, T Documents, f 4.

    [13] Exhibit 1, T Documents, f 4(a).

13. Although Mr Jones could not recall when this incident occurred, those two records place it as having occurred in about 1987.

    The shooting incident

14. This refers to an incident when Mr Jones witnessed a medical officer, Flight Lieutenant Andrews, being shot with a blank round at close range during a training exercise. The exercise was to train apprentices and Mr Jones and Mr Andrews were asked to role play. They were captured and tied up for questioning and treated like prisoners. At that time, an airman discharged a rifle loaded with blank rounds at very close range towards Mr Andrew’s chest, causing Mr Andrews to fall down. Mr Jones told the Board that he thought Mr Andrews had been badly injured, or even killed, but he was unable to offer assistance as he was tied up.[14] There was a large burn mark on Mr Andrews’ thick service jumper and there were sparks coming off him. He finally got up, but had welt marks on his chest. Mr Jones told me that he still has the ringing of the rifle in his ear.[15] He was told by an officer to keep quiet about the incident.

    [14] Exhibit 1, T Documents, f B2.

    [15] See transcript of hearing, page 40, line [12].

15. While Mr Jones could not remember at the hearing when this incident occurred, he told the Board it happened in 1987. That is consistent with other evidence he gave at the hearing before me. He recalled going to see Mr Andrews for a medical a couple of weeks after the incident and subsequently having a discussion about it with Flight Lieutenant Redlinger, during which the incident was also mentioned.[16] As the latter arrived at BSW in 1987, the shooting incident must have occurred no earlier than that year.

    [16] See transcript of hearing, page 40, lines [15] to [19].

    Victimisation and bullying; workplace disharmony

16. Mr Jones’ greatest concern appears to have been what he perceived as ongoing bullying and victimisation of him by a group of three officers (who were friends of each other) over a period of about three years from 1987 to 1990.

17. Mr Jones pinpointed the start of the victimisation as being when he demanded that one of the officers, Flight Lieutenant Lee, repay the balance of a loan Mr Jones had made to him. Mr Jones lent Mr Lee $4,000.00 to buy a car as he was unable to obtain a loan. Mr Lee was subsequently posted to Darwin and repaid the loan, apart from $100.00, before he left. Mr Jones wrote to him, demanding the balance and threatening to go to the Commanding Officer about it. Mr Lee finally paid the balance. However, since that time his friends, Flight Lieutenant Lowery and Flight Lieutenant Redlinger, made life difficult for Mr Jones.[17]

    [17] See transcript of hearing, pages 25, line [4] to page 27, line [9].

18. The next officer who caused Mr Jones problems was Flight Lieutenant Lowery, who was the Catering Officer. Mr Jones was concerned by ongoing pilfering at the base, with personnel making money on the side. He said that he wanted to report it directly to the Commanding Officer, but Mr Lowery prevented him from doing so. Following that, Mr Jones was harassed by him on different occasions. The examples he provided included an incident where Mr Lowery accused Mr Jones of drinking his beer at a function and an incident where he directed a threatening comment at him stating: “the person you meet when you haven’t got a shotgun”, or words to a similar effect.[18]

    [18] See transcript of hearing, pages 27, line [11] to page 28, line [24].

19. Mr Jones’ main complaint was directed at Flight Lieutenant Redlinger, who arrived at BSW in 1987 as a sergeant. He was subsequently promoted and replaced Mr Lowery as Catering Officer. Mr Redlinger gave Mr Jones a hard time from soon after his arrival at the base.

20. A variety of grievances were outlined against Mr Redlinger, such as Mr Redlinger bypassing the chain of command once he was Catering Officer, and issuing instructions directly to Mr Jones on the most trivial of matters, such as cleaning bread crumbs from the toaster.  He made comments to humiliate Mr Jones, such as accusing him of being drunk.

21. There was a large contingent of civilian public servants working at BSW. Mr Jones said that he was not trained to deal with them or supervise them. They caused a lot of trouble, with some of them coming to work late and leaving early. They were insubordinate, answered back and ignored instructions. The unions became involved. There were two trouble makers in particular, Mr McIntyre and Mr Hackett, whom Mr Redlinger disliked because the former had embarrassed the Commanding Officer by revealing that there were cockroaches in the kitchen. Mr Redlinger instructed Mr Jones to write them up, but Mr Jones objected because he thought they were being unfairly singled out in comparison with other civilian employees engaging in similar conduct.

22. Mr Jones also spoke of the physical threats he suffered from Mr Redlinger. On several occasions, he says that Mr Redlinger put his fist to Mr Jones’ face. The first occasion was when there was a break-in in the mess very early one morning. Mr Jones reported it immediately to his immediate superior but Mr Redlinger was not notified until later in the day. When he found out, he abused and threatened Mr Jones in front of another sergeant and a civilian contractor.[19] The second occasion was when Mr Jones and his fellow Cook’s Assistant, Sergeant Robert Martin, had been interviewed by a senior public servant from Canberra who was carrying out an investigation to lay charges against the civilian, Mr McIntyre. On learning this, Mr Redlinger approached Mr Jones, put his fist in Mr Jones’ face and asked why he had not said that Mr McIntyre should be sacked.[20] Mr Jones said there were several other similar occasions which he cannot remember.[21]  He pointed out, however, that Mr Redlinger apologised to him on three occasions, which he refused to accept.[22]  On one of those occasions, he told Mr Jones that they would “leave [him] alone now”.[23]

    [19] See transcript of hearing, page 30, line [22] to page 31, line [29].

    [20] See transcript of hearing, page 33, line [7] to page 33, line [28].

    [21] See transcript of hearing, page 34, lines [21] to [34].

    [22] See transcript of hearing, page 33, lines [1] to [2].

    [23] See transcript of hearing, page 37, lines [10] to [14].

23. Besides the harassment at work, Mr Jones said that his children were also subjected to abuse and were “shot at” by an officer’s child.  He was also harassed at home.

24. Both Mr Jones and Mr Martin received death threats at home, such that Mr Jones resorted to carrying a gun with him for protection. He blamed the threats on the unions.[24] Mr Redlinger was told of the threats but did nothing about it.[25]

    [24] See transcript of hearing, page 36, lines [1] to [16].

    [25] See Exhibit 1, T Documents, report of Dr Jonathan Hargreaves dated 11 February 2013, f 35.

25. Mr Jones also spoke of the occasion on which he was charged with assaulting a female subordinate in 1988. He denied the charge but was found guilty. A subsequent charge was then brought against him for giving false evidence in denying the assault. It was on that occasion he says that he almost committed suicide. He says he took sick leave at the time, but there is no record of that on his personnel file.  Mr Jones said that some four years of records were missing; he suggested that they had been taken as part of a cover up.[26]

    [26] Subsequent to the hearing, the Commission’s representative was able to locate a copy of Mr Jones’ central medical record, which I understand was provided to Mr Jones.

    Obesity

26. Mr Jones attributes his Sleep Apnoea to an increase in weight. His statement of 2 August 2012 says that he had been treated for depressive disorder for the previous two years.[27] That treatment involved him taking numerous medications which caused an increase in his weight, which in turn led to his Sleep Apnoea.

    [27] Exhibit 1, T Documents, f 8.

27. Mr Jones also said that he suffered heart problems in the 1980s, and he was said to have been obese then. He said that at the time he was also having sleep issues relating to his weight. He was placed on a fitness program and subsequently passed his medical.[28]

    [28] See transcript of hearing, page 40, lines [28] to [32] and Exhibit 1, T Documents, f 8.

28. In response to a question from me, he added that he experienced sleep problems as a result of the death threats that were made to him.[29]

    [29] See transcript of hearing, page 41, lines [14] to [16].

    Exposure to chemicals

29. Mr Jones also attributes his Sleep Apnoea to his exposure, over a long period, to a variety of harmful cleaning substances and chemicals which were regularly used in kitchens. He did not elaborate further as to specific chemicals and the effects which they had.[30]

    [30] See transcript of hearing, pages 41, line [39] to page 42, line [12].

    Mr Martin’s evidence

30. Mr Jones called Robert Martin to give evidence. He was the other Cook’s Assistant at BSW during the relevant period.

31. He said that in his years of service, he had only seen one training officer (meaning Mr Redlinger) spend considerable amounts of time in the dining room.  He explained that in smaller bases, it would be rare for an officer to spend much time in the dining room, as they would be mostly in the rations store. However, BSW was a larger and different style of base.[31] He said that Mr Redlinger tended to by-pass the kitchen and was more interested in the dining room because of the trouble that was being experienced there; he spent more time in the dining room than any other catering officer that Mr Martin had served under. Mr Martin said that Mr Redlinger would by-pass the chain of command and issue instructions directly to him and Mr Jones.[32] He agreed, however, that if an order were issued by Mr Redlinger, he would have obeyed it.[33]

    [31] See transcript of hearing, pages 44, line [46] to page 45, line [5] and page 47, lines [14] to [45].

    [32] See transcript of hearing, page 46, lines [6] to [11] and page 48, lines [5] to [22].

    [33] See transcript of hearing, page 48, lines [1] to [3].

32. Mr Martin was asked by the Commission’s representative whether he recalled if there were any probity issues in the catering area. He said the situation had developed where young apprentices had failed their cooking courses and became assistants in the dining room. They had attitude problems, lacked discipline and would not take orders.

33. Mr Martin elaborated on the troubles that were encountered in the dining room, and the apparent singling out of the civilians Mr McIntyre and Mr Hackett. He agreed with Mr Jones that they had to single those men out over others who were doing the same thing.  Mr Martin and Mr Jones were asked to write up Mr McIntyre and Mr Hackett in particular. Mr Martin gave evidence that if he had been so instructed, he would have followed those orders as he recalled that he never once disobeyed an order.[34] He gave the example of Mr McIntyre failing to turn up for work for three days without giving any notification. When he finally came to work on the fourth day, Mr McIntyre proceeded to write in his times for the preceding days. Mr Martin reported that anomaly to the Squadron Leader, who noted it. Another civilian did the same thing as Mr McIntyre and when Mr Martin again reported it to the Squadron Leader, he became angry; he was only interested in what Mr McIntyre and Mr Hackett did, not the other worker. He dismissed Mr Martin from his office. Mr Martin did not know what, if any, action was taken against the second worker.[35]

    [34] See transcript of hearing, page 51, lines [4] to [25].

    [35] See transcript of hearing, page 45, lines [7] to [25].

34. Mr Martin confirmed that he was a witness to two apologies which Mr Redlinger made to Mr Jones, although he did not know the substance of the apologies or the reasons for them.[36]

    [36] See transcript of hearing, page 46, lines [22] to [35] and page 48, lines [24] to [37].

35. The first occasion was about the time that Mr Martin and Mr Jones were being investigated by a public service tribunal for harassment of Mr McIntyre and Mr Hackett.[37] He said that he and Mr Jones were under direct orders to report any incidents concerning Mr McIntyre and Mr Hackett to Mr Redlinger because their behaviour and intimidation was causing discord in the dining room.  Mr Martin and Mr Jones were simply told to attend the investigation, but no one elaborated on why they were being called to give evidence; they were not given any RAAF legal representation. Nor were they ever de-briefed about the investigation.[38] As to the apology, all Mr Martin recalled was that Mr Redlinger approached him and another person and simply said that he had apologised to Mr Jones, without saying more. He took it that he was being used as a witness.[39]

    [37] I note this has a different complexion to the same hearing described by Mr Jones (see paragraph 22).

    [38] See transcript of hearing, page 48, line [39] to page 49, line [37].

    [39] See transcript of hearing, page 46, lines [22] to [30].

1. On the second occasion, Mr Martin again thought that he was being used as a witness. Again, he did not know the substance of, or reason for, the apology, but heard Mr Redlinger say to Mr Jones words to the effect of, “I will leave you alone now.”[40]

   [40] See transcript of hearing, page 46, lines [30] to [35].

2. Mr Martin also confirmed that during the relevant period, he had also received death threats at home. His wife and children were harassed and there were prowlers on his property.[41]

   [41] See transcript of hearing, page 45, lines [27] to [32].

   Mr Jones’ contentions

3. Mr Jones relies on the diagnosis of Major Depressive Disorder confirmed by Dr Hargreaves. He also relies on Dr Hargreaves’ opinion that the date of clinical onset of that condition was 1985.

4. It is submitted on behalf of Mr Jones that during his service, he suffered victimisation while posted at BSW.

5. That contention, he says, is upheld by the relevant Statement of Principles (“SoP”), being No. 84 of 2015 (Depressive Disorder). It is submitted on his behalf that the factor referred to in s 9(1)(e) of that SoP supports the hypothesis that he experienced a category 2 stressor within the six months before the clinical onset of the Major Depressive Disorder. That factor refers to a number of negative life events, the effects of which are chronic in nature and cause the person to feel ongoing distress, concern or worry. Specifically, paragraph (c) of the definition of category 2 stressors instances, among other things, experiencing bullying in the workplace. Mr Jones’ submissions refer to instances of bullying, but also make reference to other factors referred to in paragraph (c), such as perceived lack of support within the work environment, perceived lack of control over tasks and ongoing disharmony in the workplace. On that basis, it is submitted that the SoP supports his contention and that therefore, Major Depressive Disorder should be accepted as service related.

6. In his Statement of Facts and Contentions received after the hearing, Mr Jones withdrew his application in respect of Sleep Apnoea.[42]

   THE COMMISSION’S CASE

   [42] Applicant’s Statement of Facts and Contentions dated 4 September 2015, paragraph [18].

   The Commission’s Evidence

7. The Commission called Group Captain Christopher Stunden, the Commanding Officer of BSW from December 1986 to January 1990. In a statement he said that his “initial impression of the workplace at the base was that improvement was essential in respect of a wide range of worrying probity issues”. He said that the previous base management appeared to have overlooked aspects of workplace ethics, performance and behaviour that were “unacceptable to me both professionally and personally.”[43] In particular, he observed that there were serious personnel management issues within the Catering section which concerned him and that Mr Jones and Mr McIntyre “proved to be part of the problem.”[44] He expressed surprise at Mr Jones’ claim that he was bullied and harassed at the workplace, saying that it was his very clear recollection that Mr Jones was in fact “a perpetrator of worrying bullying and harassment in his workplace”.[45]

   [43] Exhibit 7, Statement of Christopher Monteath Stunden dated 19 May 2015, page 1.

   [44] Exhibit 7, Statement of Christopher Monteath Stunden dated 19 May 2015, page 5.

   [45] Exhibit 7, Statement of Christopher Monteath Stunden dated 19 May 2015, page 1.

8. Mr Stunden confirmed that that of the 300 personnel at the base, approximately 100 were Australian Public Servants (“APS”). When he arrived at the base, Mr Lowery was the Catering Officer. As a direct entry graduate officer with little Air Force experience, he was “a relative newcomer to supervising a complex workforce with a mix of (APS) and Air Force personnel”. He said that Mr Lowery was “very much part of the previous …management team” mentioned above.[46] 

   [46] Exhibit 7, Statement of Christopher Monteath Stunden dated 19 May 2015, page 5.

9. On the other hand, he described Mr Redlinger as “an experienced and extremely effective workplace supervisor” who had his “total confidence and support when he pursued remedies to very serious workplace matters.”[47] He acknowledged, however, that he did not witness Mr Redlinger’s day to day dealings with subordinates, as their offices were some distance apart.

   [47] Exhibit 7, Statement of Christopher Monteath Stunden dated 19 May 2015, page 5.

10. He recalled Mr McIntyre as a trouble maker and bully in the workplace. He was counselled about his workplace performance by Mr Redlinger but failed to adequately respond. He resigned before he was due to be terminated. Mr Stunden was confident that all correct processes were followed.[48]

    [48] Exhibit 7, Statement of Christopher Monteath Stunden dated 19 May 2015, page 4, paragraph [9].

11. As mentioned already, Mr Stunden recalled Mr Jones as a perpetrator of worrying bullying. He cited the disciplinary action brought against him in respect of an assault on a subordinate, for which he was found guilty. Mr Jones then faced a second charge of misinforming Mr Stunden when the incident was first notified. He recalled that Mr Redlinger had counselled Mr Jones about his treatment of subordinates.[49] Mr Stunden then explained the two parallel procedures which are available in such instances, namely under the Defence Force Disciplinary Act charge procedure, and the more complex administrative process based on annual performance reports, supported by counselling and if necessary, formal warnings followed by unsuitability reports or adverse reports (which largely mirrors the APS process).[50]

    [49] Exhibit 7, Statement of Christopher Monteath Stunden dated 19 May 2015, page 2, paragraph [3].

    [50] See transcript of hearing, pages 57, line [28] to page 58, line [35].

12. As to supervision, Mr Stunden did not think there were any significant differences between the military and civilian processes, although in the former, the supervisor could fall back on the Defence Force disciplinary procedures.[51]

    [51] See transcript of hearing, page 58, line [34] to line [47].

13. Mr Stunden agreed that BSW was somewhat different because of the high proportion of civilian personnel. However, there was an on-base APS staff manager, to whom uniform personnel could also have access. He confirmed that Mr McIntyre and Mr Hackett would have had access to that manager who filled a support role for civilians on base.[52]

    [52] See transcript of hearing, page 59, lines [13] to [38].

    The Commission’s Contentions

14. The Commission contends that neither the Major Depressive Disorder nor the Sleep Apnoea are defence-caused. It says that Mr Jones is unable to satisfy the relevant SoPs for the conditions because the material does not disclose that any factor in the respective instruments is satisfied.

15. It is said by the Commission that the date of clinical onset of the depressive disorder was in 1994, when Mr Jones first consulted his general practitioner, Dr McMahon, about it. Although Dr Hargreaves put the date of clinical onset in 1985, the Commission’s representative pointed to Mr Jones’ medical record on discharge, which mentioned that he suffered anxiety since the knife incident some four years earlier. However, there is no mention of either a depressive disorder or treatment of that condition. I was also referred to a letter by another doctor in 1988, presumably written in support of Mr Jones in the charge laid against him at that time. It suggested that his anxiety symptoms and sleeping problems were attributable to a significant change in lifestyle habits, rather than anything to do with his service. For those reasons, the Commission’s representative said that I should discount Dr Hargreaves’ view and consider that the date of clinical onset was in 1994.

16. With respect to the SoP for Major Depressive Disorder, it was contended that the knife incident was not a category 1A stressor, the shooting incident was not a category 1B stressor and that the workplace issues were not events within the meaning of a category 2 stressor.

17. As regards the SoP concerning Sleep Apnoea, the Commission submits that Mr Jones’ obesity (the factor relied upon) was attributable to his documented history of heavy alcohol consumption, which is unrelated to service. As such, it is denied that the Sleep Apnoea condition is defence-caused.

    CONSIDERATION

    The Legislative Framework

18. Before considering the issues in detail, it is timely to mention the key legislative provisions which are applicable in this matter.

19. Section 120(4) of the Veterans’ Entitlements Act 1986 (Cth) effectively provides that in making determinations or decisions in matters such as this under Part IV of the Act, the Commission is to decide the matter “to its reasonable satisfaction”. That provision is to be read with s 120B of the Act. In particular, s 120B(3) relevantly provides that in applying s 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered or disease contracted was defence-caused only if the material before the Commission raises a connection between the injury or disease and some particular service rendered by the person, and there is in force a SoP determined under subsection 196B(3) or (12) “that upholds the contention that the injury, disease… is, on the balance of probabilities, connected with that service.”

20. It is well settled that in applying s 120B(3), the Tribunal is first to consider the claim by reference to the SoP in force at the date of its decision. If the consideration is favourable to the applicant, that is the end of the matter. If, however, the consideration is not favourable to the applicant, the Tribunal is to consider the claim by reference to the SoP in force at the date of the Commission’s determination.[53]

    [53] See Re Greenough and Repatriation Commission (2002) 70 ALD 470 at [59].

21. In the present case, the current SoP concerning Sleep Apnoea is made under Instrument No. 42 of 2013. As regards Depressive Disorder, the current SoP came into force on 20 July 2015 by Instrument No. 84 of 2015. Prior to that, the SoP had been made under Instrument No. 28 of 2008 (as amended by Instrument No. 41 of 2010). I deal with the provisions of the respective SoPs in greater detail later.

22. Both the SoPs for Depressive Disorder and Sleep Apnoea relevantly use the time of clinical onset of the disease to establish a link between the period of service and the first appearance of the disease. There is “clinical onset” of a disease either when a person becomes aware of some feature or symptom to do with the disease which enables a doctor to say that the disease was present at the time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.[54] No finding of clinical onset is to be made unless all the symptoms of the disease can be shown within the relevant period.[55] Where clinical onset is an element of a factor in a SoP (as is the case here), all of the features of the disease as defined in the SoP must be present before it can be said that clinical onset has occurred.[56]

    [54] See Repatriation Commission v Cornelius [2002] FCA 750 at [26], approving Re Robertson and Repatriation Commission (1998) 50 ALD 668 at [670].

    [55] See Youngnickel v Repatriation Commission [2004] FCA 1691.

    [56] See Repatriation Commission v Gosewinckel (1999) 59 ALD 690 at [51] to [55] and Lees v Repatriation Commission (2002) 125 FCR 331.

23. Having outlined the relevant principles, I now turn to discuss each of the conditions and the relevant SoPs.

    Major Depressive Disorder

24. As mentioned earlier, Dr Hargreaves diagnosed Mr Jones as suffering from Major Depressive Disorder. That diagnosis not being questioned or challenged, I am satisfied by Dr Hargreaves’ evidence on that point and therefore accept that Mr Jones suffers from Major Depressive Disorder.

25. I have summarised in some detail Mr Jones’ evidence. The main contention on his behalf was that he suffered victimisation and bullying while posted at BSW and that caused his depressive disorder. There are also suggestions (although not specifically articulated in Mr Jones’ Statement of Facts and Contentions) that his disorder may be attributable to other factors, such as workplace disharmony, perceived lack of support within the work environment and perceived lack of control over tasks in the workplace, as well as the knife and shooting incidents I mentioned earlier. I deal with each of those matters below, to determine whether they raise a connection between the depressive disorder and Mr Jones’ defence service and if so, whether the relevant connection is upheld by the SoP. Before I do so, however, there is a question common to each of them which is convenient to deal with here, namely when was the clinical onset of the Major Depressive Disorder?

    Clinical Onset

26. Mr Jones told the Veterans’ Review Board that he first consulted his general practitioner, Dr Dennis McMahon of Mermaid Beach Medical Centre, for depression in 1994, and that Dr McMahon had treated him for that condition for the following 20 years. At the time of the Board hearing, he was seeing Dr McMahon every six weeks and was taking medication for his condition.[57]

    [57] See Exhibit 1, T Documents, ff B4, B6 and B7.

27. Notwithstanding that long history of depression, the first psychiatrist Mr Jones saw was Dr Hargreaves, in 2010.[58] In his report of 11 February 2013, Dr Hargreaves confirmed his diagnosis of Major Depressive Disorder and remarked that “there appears to be a convincing temporal and causal link between the alleged victimisation experiences and the development of depression.”[59]  He noted that there were no psychiatric problems prior to 1985 and that Mr Jones had suffered from depressed moods since that time and on one occasion, had been close to suicide. He said that Mr Jones saw RAAF doctors and had some treatment, including medication,[60] although he did not elaborate further. In particular, he did not point to, or address, the features and symptoms which together define Major Depressive Disorder under the SoP.

    [58] See Exhibit 1, T Documents, f 30.

    [59] See Exhibit 1, T Documents, f 33.

    [60] See Exhibit 1, T Documents, f 31.

28. The question I have to decide is whether, in the context of the SoP, the clinical onset of Mr Jones’ Major Depressive Disorder could be considered to have occurred earlier than when Drs McMahon and Hargreaves saw him, and started treating him for depression.  As mentioned already, clinical onset can occur long before treatment is sought, and is taken to have occurred when the person is aware of some feature or symptom that enables a doctor to say that the disease was present at that time.

29. In his claim form, Mr Jones said that he first became aware of the signs and symptoms of his psychological disorder in 1985, but he did not provide any detail in support of that assertion.[61] Given that lack of detail, it is necessary to review the material before the Tribunal to see if it reveals whether Mr Jones became aware of a feature or symptom that would enable a doctor to say that he suffered from Major Depressive Disorder as at 1985.

    [61] See Exhibit 1, T Documents, f 11.

30. As mentioned earlier, Mr Jones pinpointed the start of the victimisation against him as being when he demanded the balance of his loan from Mr Lee. His letter of demand was dated 7 August 1986,[62] so one would assume that the victimisation started some time after that date. Mr Lowery would have been the Catering Officer at the time, but from Mr Jones’ account, the instances involving him were isolated; the main complaint relates to Mr Redlinger who did not arrive at BSW until 1987.  It would therefore seem reasonable to assume that any features or symptoms of a depressive disorder would not have manifested themselves until after that alleged victimisation had been experienced for some time. In those circumstances, I have some difficulty in accepting Dr Hargreaves’ (and Mr Jones’) nomination of 1985 as the time of clinical onset.

    [62] Letter from Mr Jones to Catering Officer, RAAF Base, Darwin (Attachment to Applicant’s Statement of Facts and Contentions dated 4 September 2015).

31. The various Departmental files relating to Mr Jones reveal some references to anxiety, but go no further than that. Two medical notes from June 1991 talk of problems with anxiety dating back to the knife incident about four years earlier, but record that no abnormalities were detected. Similarly, a letter written by Dr K McMahon in June 1988 (presumably in support of Mr Jones for use in disciplinary proceedings he was then facing) noted that Mr Jones had, following recommendations, stopped smoking and significantly altered his diet. The combination of the two, it was said, would place Mr Jones “under significant psychological stress” which might result in “anxiety symptoms, including sleeping problems and emotional irritability”.[63] Again, that is the highest at which Mr Jones’ psychological issues are recorded in the files.

    [63] Exhibit 2, RAAF Personnel History, f 234.

32. It was about the time of the disciplinary action referred to in the preceding paragraph that Mr Jones contemplated suicide. There is no reference to that in the Departmental files, nor is there any reference to him having taken sick leave at the time.[64]

    [64] I note, however, the explanation provided in paragraphs 13 and 14 of the Applicant’s Statement of Facts and Contentions dated 4 September 2015.

33. Under the SoP, Major Depressive Disorder means a disorder of mental health meeting certain listed diagnostic criteria. They include that five or more of certain listed symptoms have been present during the same two-week period and represent a change from previous functioning. At least one of those symptoms must be either a depressed mood or the loss of interest or pleasure. Item (i) expands on the symptom of depressed mood by describing it as being “(d)epressed mood most of the day, nearly every day, as indicated by either subjective report (for example, feels sad, empty, hopeless) or observation made by others (for example, appears tearful)” (my emphasis). The symptom of loss of interest or pleasure talks of “(m)arkedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day (as indicated by either subjective account or observation)” (my emphasis). Some of the additional symptoms include: significant weight loss (when not dieting) or weight gain; insomnia or hypersomnia nearly every day; psychomotor agitation or retardation nearly every day (observable by others); fatigue or loss of energy nearly every day; feelings of worthlessness or inappropriate guilt nearly every day; diminished ability to think or concentrate, or indecisiveness, nearly every day; recurrent thoughts of death, recurrent suicidal ideation without a specific plan, or a suicide attempt or a specific plan for committing suicide. In addition, the definition requires the symptoms to cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.

34. While I do not doubt that Mr Jones felt anxious over several years and at one stage contemplated suicide, there is no evidence that his symptoms escalated to such a level and with the frequency described, let alone in at least one two-week period. Nor is there anything in Dr Hargreaves’ report which identifies the relevant symptoms on which he relied to form his view that clinical onset was in 1985. I therefore do not think there is sufficient evidence of Mr Jones’ symptoms during the period for me to be reasonably satisfied that they were present at that time.  Although there is no supporting evidence for his diagnosis at the time, I believe the earliest point of clinical onset of Major Depressive Disorder was when Dr McMahon apparently identified and started treating the condition in 1994.

    Victimisation/bullying and workplace disharmony

35. Although the stated contention is that Mr Jones suffered victimisation while posted at BSW,[65] his Statement of Facts and Contentions raises a number of workplace issues, ranging from victimisation, to disharmony within the workplace, through to issues concerning  perceived lack of support within the work environment and perceived lack of control over tasks in the workplace.[66] As they are generally related, I deal with them together.

    [65] Applicant’s Statement of Facts and Contentions dated 4 September 2015, paragraph [13].

    [66] Applicant’s Statement of Facts and Contentions dated 4 September 2015, paragraph [16].

1. As far as victimisation and bullying is concerned, the main perpetrator appears to have been, in Mr Jones’ eyes, Mr Redlinger.  Of the other two officers, Mr Lee’s role seems to have been limited to failing to pay the balance of his debt, while the incidents concerning Mr Lowery were relatively minor and isolated.

2. There are conflicting views about Mr Redlinger’s conduct at BSW.  Mr Jones believes he orchestrated a campaign of victimisation and bullying against him. However, the Commanding Officer at the time, Mr Stunden, in fact viewed Mr Jones as the perpetrator of “worrying bullying and harassment”, and someone who proved to be part of the serious personnel management problems within the Catering Unit when he arrived at BSW. In contrast, Mr Stunden said that Mr Redlinger was an experienced and extremely effective workplace supervisor who had his “total confidence and support when he pursued remedies to very serious workplace matters.”[67] That is not a conflict that is necessary for me to resolve for present purposes; nor is it one which is capable of resolution in the absence of some of the principal protagonists. Why I mention it is because it highlights the fact that certain conduct and behaviour may be genuinely perceived quite differently by those involved; what may be bullying or harassment to one, might be seen as effective workplace management and supervision by another.

   [67] Exhibit 7, Statement of Christopher Monteath Stunden dated 19 May 2015, page 5.

3. In alleging that Mr Redlinger victimised him, Mr Jones pointed to the fact that Mr Redlinger regularly bypassed the chain of command and dealt with him directly.  I do not agree that it necessarily follows that such direct communication amounts to victimisation or bullying. As the Catering Officer, Mr Redlinger had the authority to issue commands and orders to those under his control; Mr Martin acknowledged as much, saying that he would follow any orders given to him.

4. I am also conscious of the situation which Mr Redlinger apparently inherited when he was posted to BSW in 1987. Mr Stunden’s initial impression of the workplace at BSW was that improvement was essential in respect of ”a wide range of worrying probity issues”:

   My overall assessment was that the previous [BSW] management team appeared to overlook aspects of workplace ethics, performance and behaviour within the Unit that were unacceptable to me both professionally and personally.[68]

   [68] Exhibit 7, Statement of Christopher Monteath Stunden dated 19 May 2015, page 1.

5. Such a situation no doubt called for discipline, and firm control and supervision by the officer in charge of the Unit, Mr Redlinger.

6. Mr Jones also relied on the fact that Mr Redlinger apologised to him on three occasions, and that Mr Martin was a witness on two of those occasions. Unfortunately, Mr Martin was unable to say what the substance of the apology was. Without knowing the context, I am not satisfied that the making of an apology, of itself, amounts to a concession, or proof, of victimisation or bullying.

7. Based on the above considerations, I am not reasonably satisfied that Mr Jones was victimised or bullied by Mr Redlinger.

8. That said, it seems undeniable that the work environment at BSW was the source of much disharmony, with a variety of probity and disciplinary issues, perhaps exacerbated by the mixed RAAF and APS workforce. Although there were structures in place to handle such issues, it seems indisputable that, at least for a time, they were not working.  There is no doubt that type of environment would be the source of much stress for the workers involved. In Mr Jones’ case, it would be understandable that, rightly or wrongly, he had a perception of lack of support from his superiors and a perceived lack of control over his immediate responsibilities. In his eyes, he was not getting the support he required from his superiors and indeed, thought he was being micromanaged.

9. Although it was not specifically articulated as a contention in Mr Jones’ Statement of Facts and Contentions, I am reasonably satisfied that the material before me raises a connection between Mr Jones’ depressive disorder and the workplace disharmony and pressures he experienced at BSW.  The question arises as to whether that contention is supported by the SoP.

10. Section 9 of the SoP sets out the factors that must exist before it can be said, on the balance of probabilities, that depressive disorder is connected with the circumstances of the person’s relevant service. For present purposes, factor (1)(e) is relevant, being “experiencing a category 2 stressor within the six months before the clinical onset of depressive disorder.” Category 2 stressor is defined to mean one of a number of listed negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry. Of those factors, paragraph (c) is relevant here:

    (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;

11. Although, on its face, paragraph (c) could uphold the contention that Mr Jones’ depressive disorder was connected with his defence service, the difficulty I have is that Mr Jones would have experienced the relevant events (including the acts of victimisation and bullying alleged by Mr Jones and in respect of which I was not satisfied) some considerable time before clinical onset, and certainly, well before the six month period prescribed for a category 2 stressor under s 9(1)(e) of the SoP.  For that reason, I do not believe that the contention is in fact supported by the SoP.  

    Knife Incident

12. Mr Jones told the examining doctor in June 1991 that this incident, some four to four and a half years earlier, had caused him anxiety. While that might have been so, I think that “anxiety”, as such, falls short of being indicative of a major depressive disorder. Certainly, at the time of the pre-discharge medical examination, the disorder was not detected and in fact, the examining doctor noted that no abnormality was detected. Based on that material, I am not satisfied that it raises a connection between the depressive disorder and Mr Jones’ defence service.

13. Even if the material did give rise to such a connection, I do not believe that that contention would be upheld by the SoP.  A category 1A stressor means one of the following severe traumatic events:

    (a)experiencing a life-threatening event;

    (b)being subject to a serious physical attack or assault including rape and sexual molestation; or

    (c)being threatened with a weapon, being held captive, being kidnapped, or being tortured.

14. I am not satisfied that the knife incident, as recounted to me, amounted to a life-threatening event, or could be classified as one where Mr Jones was “threatened” with a weapon. Even if it could be so viewed, a category 1A stressor has to be experienced within two years before the clinical onset of the depressive disorder in order to satisfy the factor in s 9(1)(a) of the SoP.  Given my conclusion concerning clinical onset, it is clear that the knife incident occurred some seven to seven and a half years earlier. For that reason also, I do not consider that this contention is upheld by the SoP.

    Shooting Incident

15. Nor am I reasonably satisfied on the material before me that the shooting incident raises a connection between the depressive disorder and Mr Jones’ defence service.  While it was clearly upsetting to Mr Jones, the fact of the matter is that no one was killed, critically injured or maimed; no atrocities were inflicted. Both Mr Jones and Mr Andrews were participating voluntarily in an exercise; they would have expected, and knew, that role playing would be involved, but under controlled and supervised conditions. There is no relatively contemporaneous medical evidence which comments on the psychological impact it had on Mr Jones.

16. Even if a connection could be established, I do not consider that this contention would be upheld by the SoP. The relevant factor is in s 9(1)(b), which speaks of the person experiencing a category 1B stressor within the two years before the clinical onset of the depressive disorder.

17. Category 1B stressor is defined to mean one of the following severe traumatic events:

    (a)being an eyewitness to a person being killed or critically injured;

    (b)viewing corpses or critically injured casualties as an eyewitness;

    (c)being an eyewitness to atrocities inflicted on another person or persons;

    (d)killing or maiming a person; or

    (e)being an eyewitness to or participating in, the clearance of critically injured casualties.

18. As no one was killed, critically injured or maimed and no atrocities were inflicted as a result of the shooting incident, I do not believe that the SoP upholds the contention that the shooting incident and the depressive disorder are connected.

19. In any event, the incident occurred in about 1987, again some seven to seven and a half years before the clinical onset of the depressive disorder, and well before the two year period prescribed in s 9(1)(b) of the SoP.

    Summary

20. It follows from what I have said that I am not reasonably satisfied that Mr Jones’ depressive disorder is defence-caused. In particular, I do not consider that any of the possible contentions raised by the material are upheld by the current SoP (no. 84 of 2015). I have also considered the matter under the SoP which was in place at the time of the Commission’s decision (no. 28 of 2008), but do not believe it is materially different to the current SoP so far as the relevant factors are concerned.

    Sleep Apnoea

21. In his Statement of Facts and Contentions delivered after the hearing, Mr Jones withdrew his application in respect of Sleep Apnoea.[69] Nevertheless, for the sake of completeness, I make the following comments.

    [69] See Applicant’s Statement of Facts and Contentions dated 4 September 2015, paragraph [18].

22. Although Mr Jones said that he first became aware of this condition in 1985, he noted in his claim form that the medication which he takes for his depressive disorder caused him to become obese, and that in turn led to his Sleep Apnoea.[70] That is elaborated upon in his statement of 2 August 2012,[71] in which he stated that he had been having treatment for his depressive disorder for the preceding two years. That treatment involved him taking numerous medications which caused his weight to increase. The increase in weight in turn caused his sleeping issues which were diagnosed as Sleep Apnoea in 2012.

    [70] Exhibit 1, T Documents, f 12.

    [71] Exhibit 1, T Documents, f 8.

23. I therefore do not consider that the material before me raises any connection between Mr Jones’ defence service and his Sleep Apnoea. Similarly, I do not consider that the relevant SoP supports such a contention as the only applicable factor, obesity (referred to in s 6(a)(ii) of the SoP), was not connected to his defence service.

    CONCLUSION

24. To summarise, I am not reasonably satisfied that either Mr Jones’ Major Depressive Disorder or his Sleep Apnoea were defence related.

25. The reviewable decision is therefore affirmed.

I certify that the preceding 95 (ninety -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter

............................[Sgd]............................................

Associate

Dated 20 October 2015

Date of hearing	29 June 2015
Date final submissions received	4 September 2015
Applicant	In person
Solicitors for the Respondent	Department of Veterans' Affairs