Kane and Repatriation Commission
[2008] AATA 880
•3 October 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 880
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/806
VETERANS’ APPEALS DIVISION )
ReJOHN WILLIAM KANE
Applicant
AndREPATRIATION COMMISSION
Respondent
DECISION
TribunalDr J D Campbell, Member
Date3 October 2008
PlaceSydney
DecisionThe decision under review is set aside and in substitution thereof I determine that Mr Kane:
(a)Suffers from an anxiety disorder; and
(b)The anxiety disorder is a war-caused injury; and
(c)Assessment of incapacity arising from the anxiety disorder is remitted to the Respondent for such activity; and
(d)Date of effect is 26 February 2004.
..................[Sgd]..........................
Dr J D Campbell
Member
CATCHWORDS
VETERAN’S ENTITLEMENTS – claim for nerves – diagnosis of claimed condition – relationship to service – issue of clinical onset.
Benjamin v Repatriation Commission (2001) 34 AAR 270
Lees v Repatriation Commission [2002] FCAFC 398
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
3 October 2008
Dr J D Campbell, Member
summary
1. Mr Kane was born on 6 September 1939. He served in the Royal Australian Navy from 24 September 1956 to 5 September 1966. Mr Kane rendered 10 periods of operational service with the Far East Strategic Rescue during the period 21 January 1958 to 18 May 1963, while serving on the ships HMAS Voyager and HMAS Parramatta.
2. Mr Kane lodged a claim for nerves, hearing loss and bad back problems with the Repatriation Commission on 26 May 2004.
3. On 6 July 2005, in a determination made by the Repatriation Commission, Mr Kane’s conditions of thoracic and lumbar spondylosis were accepted as war-caused disabilities, with his disability pension assessed at 60 percent of the general rate, with date of effect being 26 February 2004.
4. In the same determination of 6 July 2005, the Repatriation Commission did not accept Mr Kane’s conditions of spina bifida occulta, anxiety disorder, alcohol dependence and thoracic kyphoscoliosis as war-caused disabilities, and that there was no medical condition present in relation to the claim for bilateral sensorineural hearing loss.
5. On 4 April 2006, the Veterans' Review Board (“VRB”) determined that the thoracic kyphoscoliosis and bilateral sensorineural hearing loss were war-caused disabilities, with date of effect being 26 February 2004. In relation to the conditions of anxiety disorder and alcohol dependence, the VRB affirmed the earlier decision of the Repatriation Commission of 6 July 2005 in respect of those two conditions. The VRB in the decision of 4 April 2006 noted its consent to withdrawal of the condition of spina bifida occulta by Mr Kane.
6. In such circumstances, I observe that in this matter as it now stands, the remaining review issue relates to Mr Kane’s claim for nerves and to which diagnostic labels of anxiety disorder and alcohol dependence have been affixed.
issues
7. The relevant issues in this matter are:
(a)What is (are) the diagnosis(es), if any of Mr Kane’s current mental health symptomatology; and
(b)Is such diagnosed condition/s war-caused.
mr kane's evidence
8. In a signed statement dated 12 June 2007 (Exhibit A2), Mr Kane provided the following details:
(a)That between 8 and 11 February 1958 HMAS Voyager was anchored at Pulau Tioman, an island off the Malaysian coast. During this period, Mr Kane stated that he was employed as a messman in the Chief Petty Officer’s mess. One of his duties was to empty food scraps from the mess into the offal chute on the quarter deck. While engaged in such activity Mr Kane stated that he saw a naked newborn baby floating past in the water. Mr Kane stated that he was quite shocked by this event and that he can still close his eyes and see the baby. Mr Kane stated that he spoke to a sailor on the quarter deck at the time, but he was not interested. He later spoke with some men in his mess deck, with his memory being that someone said, “have your beer issue and go to sleep and forget about it”.
(b)That HMAS Voyager arrived in Singapore in late January 1958; that he would have had a few days ashore before HMAS Voyager departed for work up exercises on 3 February 1958. Mr Kane stated that he did not drink alcohol at this time, but did commence drinking on the evening he observed the dead infant.
(c)That during February 1958, HMAS Voyager was involved in work up and gunnery exercises. Mr Kane stated that he was stationed in the gun direction sight, an open position located directly above and behind on either side of the bridge. Mr Kane stated that he was very worried and anxious during such activities, as a sailor had been killed on HMAS Tobruk, the ship that they relieved during one of such gunnery exercise.
9. I note that in his claim lodged on 26 May 2004 with the Repatriation Commission (T4), Mr Kane nominates his disability as nerves, the signs and symptoms of such include alcohol abuse, intermittent sleep patterns and memory loss. Mr Kane related such disability to bad memories of incidents involving bodies and a fatal injury to a sailor in the Singapore area when he was about 19 years of age.
10. Evidence was presented to the VRB (Exhibit R7) on Mr Kane’s behalf by an advocate involving, the dead infant incident and the incident where a Royal Navy sailor slipped and fell from a bridge into a monsoon canal splitting his head wide open, with Mr Kane believing the sailor to have died instantly, because his head was split open so badly. This latter incident was said to have occurred in the Singapore dockyard in 1959 or thereabouts.
11. In evidence before me, Mr Kane detailed the following:
(a)A history of his father being killed in World War II, with Mr Kane, at that time, living with his grandparents, and after the war with his mother and sister in Cronulla – an address at which he continues to reside. Completed intermediate certificate, leaving school at age 16. Mr Kane reported a normal school history, involving himself in swimming and rugby league.
(b)After leaving school, he worked as a process worker for 12 months before joining the Navy in September 1956.
(c)Underwent three months training at HMAS Cerberus and then was posted to HMAS Sydney where he remained until November 1957, at which time he was posted to HMAS Voyager. Mr Kane stated that in addition to his normal seamanship jobs, he was the chief’s messman and bosun’s mate.
(d)That he saw a dead baby in the water, when emptying food scraps down the offal chute, while HMAS Voyager was anchored at Pulau Tioman in February 1958. That he was pretty shocked by the incident and that he mentioned the incident to a sailor on the quarter deck and to a few sailors in his mess deck, who did not seem to show much concern.
(e)Mr Kane stated that he still thinks about the incident with the whole trip sort of changing his life as far as looking at things.
(f)That being a lookout on HMAS Voyager when closing up to action stations during a gunnery exercise would cause him apprehension and worry, as a star shell had killed a sailor on the ship they relieved, namely HMAS Tobruk.
(g)That prior to joining HMAS Voyager, he had lived a quiet sort of sheltered life, while when posted on HMAS Sydney he would go home on weekends on leave.
(h)That after he went to the Far East he used to worry a fair bit – that he started drinking on HMAS Voyager with the beer issues and drank when he went ashore – that he became very conscious of food and gets upset when he sees people wasting food.
(i)That the incident involving the fall of the Royal Navy sailor into the monsoon canal occurred when he was on HMAS Parramatta in 1963 or 64.
(j)That there was an incident where he was locked in the gun maintenance shop on HMAS Parramatta and there was a blackout. As a consequence, he is unable to handle the dark, and becomes clammy and feels like he is all tied up.
(k)That he was at HMAS Creswell on the night HMAS Voyager was cut in half and he was involved in caring for the survivors when they were brought in.
(l)That over the years, he notes that he gets very uptight, snaps easy, feels sick in the stomach when upset, and has sleepless nights thinking about things. Mr Kane noted that he has a habit of waking each night about two to three in the morning and worries about something from the past or what he has got to do.
(m)That he drinks each day, commencing about four in the afternoon, and consuming about six stubbies before dinner, and some days a scotch after dinner. On Fridays he attends at the RSL Club, where he may have eight or nine schooners.
(n)That both during his navy career and afterwards in his civilian work roles he has avoided taking responsibility. In so doing he has knocked back jobs.
(o)That after leaving the navy in 1966, he worked for a year in construction and since 1967, he worked as a shiftwork operator at Kurnell Oil Refinery, where he remained for 33 years until retiring in 2000.
(p)That he knocked back jobs at Kurnell (e.g., head operator’s job at the tank farm), because it would have caused him to worry more. Similarly, when serving as a leading seaman in the navy, Mr Kane stated he refused the opportunity to undertake a higher education test with a view to becoming an officer, because it involved more responsibility and more worries.
(q)That he and his wife of 43 years have some difficult moments once or twice a week, when he snaps in response to an activity or a request which he does not want to do.
(r)That the variation in time as to the occurrence of the canal incident from 1959 to 1963/64 was a consequence of his meeting Mr Hilan at the RSL Club on Anzac Day and the realisation that Mr Hilan only served with him on HMAS Parramatta, with Mr Hilan stating that he was present at the canal incident (Exhibit R5).
consideration and findings
12. I observe that Mr Kane is a man of few words and that essentially he became apprehensive and a worrier on his first trip to the Far East in 1958, while serving on HMAS Voyager. His apprehension and worry were in his view associated with his first absence from Australia, his observer's role in gunnery exercises because of his exposure and the death of a sailor from a star shell on HMAS Tobruk, this being the ship that HMAS Voyager was replacing on the Far Eastern fleet. Further, Mr Kane details further circumstances, namely observing the dead infant incident, the monsoon canal incident and the blackout in the gunnery maintenance shop, in which he had been locked, while serving on HMAS Parramatta.
13. I also observe that Mr Kane has experienced difficulty in nominating the dates on which the particular incidents occurred. In particular, he has changed the date or become more certain of a date on which a particular incident has occurred as relevant information has come to light. Such occurred with the date of the monsoon canal incident (from 1958 to 1963/64) and the observation of the dead infant incident to late February 1958.
14. Further, I note that Mr Kane’s story was challenged in relation to both the existence of a disposal chute and the use thereof on HMAS Voyager while at anchor at Pulau Tioman in February 1958. A careful examination of the material before me was undertaken. This included various statements from ex-sailors contained within Exhibits A3 and A4 and the conclusion arrived at by the historian in his second report of 5 October 2007 (Exhibit R6), where he states:
It appears reasonably certain that waste food scraps were disposed of down the offal chutes at remote anchorage, but not when the ships were anchored close to shore or to populated areas.
15. In summary, as regards the credit of Mr Kane, as a witness, I draw no negative inference from the difficulty he experienced in defining the date of the monsoon canal incident. As regards the remaining circumstances of that incident, in as far as they have been detailed, they have been corroborated by a fellow sailor, namely Mr Hilan. In circumstances where the core of the incidents remain relatively consistent, I find little evidence to support a finding that Mr Kane has evolved his evidence over time to better support his case. In overview, Mr Kane has, despite being sparse with details, remained relatively consistent in detailing the core facts of both the incidents and his circumstances over time. Further, I observe his denial of certain factual statements in Dr Keshava's report where it relates to the drinking of wine and recovery of bodies from HMAS Voyager consistent with a view that Mr Kane is a consistent relater of the core facts and circumstances that he has detailed in support of his case.
diagnosis
16. In deciding whether a veteran is suffering from a disease and what is the nature (diagnosis) of the disease, the applicable standard of proof is that of reasonable satisfaction (Benjamin v Repatriation Commission (2001) 70 ALD 622 considered and applied).
17. In addressing the issue of diagnosis, I note that the material to be considered includes the evidence of Mr Kane, and the opinions of three psychiatrists, namely Dr Keshava, Dr Dinnen and Dr Roberts, and one psychologist, Professor Mattick. I have detailed Mr Kane’s symptomatology as detailed to the Tribunal.
18. Dr Keshava assessed Mr Kane on one occasion on 29 June 2004. In his report dated 16 August 2004 (T10), Dr Keshava detailed Mr Kane’s symptoms as:
§“he is quick-tempered and always been fiery”.
§“Trivial things upset him and loses his temper with his wife and children and later becomes remorseful”.
§“He has difficulty relating with people and mainly keeps to himself … has only a couple of close friends”.
§“He gets ‘nervous in crowded places and generally avoids going to busy shopping centres and supermarkets”.
§“does not like being in crowds…He cannot stand in a queue…avoids peakhour traffic and generally drives everywhere he goes. He often gets annoyed and shouts at other drivers on the road”.
§“anxious and panicky in enclosed spaces”, having been locked in a ship’s compartment when the lights went off.
§Disturbed sleep – drinks alcohol to get to sleep – wakes 3 to 4am and finds it hard to go back to sleep.
§Intrusive thoughts and memories about his naval experiences (baby floating in the water, recovery of dead bodies which were covered in oil from HMAS Voyager incident).
§Never drank alcohol until Singapore. Amount of consumption gradually increased. Drinks six schooners of beer a day, now and alcohol never interfered with his job.
19. Dr Keshava considered Mr Kane to be suffering from a generalised anxiety disorder with alcohol dependence. Dr Keshava considered Mr Kane’s short-term memory to be impaired. Dr Keshava considered Mr Kane to have a Guide to the Assessment of Rates of Veterans’ Pensions (“GARP”) Impairment Rating of 24.
20. I would also note that particular statements in Dr Keshava’s report were acknowledged by Mr Kane as being incorrect. Such statements included issues relating to the HMAS Voyager sinking, the drinking of red wine and working as a gunnery instructor in a recruit school in Canberra.
21. In a report dated 6 November 2006 (Exhibit A5), Dr Dinnen noted that Mr Kane always had an anxiety problem and that it started on his first trip away on HMAS Voyager from February to September 1958. Dr Dinnen noted that Mr Kane was stressed by the following incidents:
(a)Concerned when keeping lookout during gunnery exercises that a star shell may lead to his demise as had happened to a sailor on HMAS Tobruk, the ship which HMAS Voyager relieved;
(b)His observation of a floating dead baby when emptying the waste refuse down the waste disposal chute, and on that night he had his first alcoholic drink (beer ration);
(c)The death of the English sailor, when he fell into the monsoon canal in Singapore dockyards; and
(d)Dealing with the survivors of the HMAS Voyager sinking in terms of assisting with their general care (ablution, accommodation).
22. Dr Dinnen detailed Mr Kane’s history, as regards alcohol consumption as starting following his tour of duty on HMAS Voyager in 1958 and continued to drink heavily when on leave. After leaving the navy, he would drink with his construction work colleagues on the way to and from work, consuming one to two schooners on the way and three to four schooners on the way home. Thereafter he would consume mostly six schooners a day, which has continued relatively unchanged through the years.
23. Dr Dinnen considered the criteria necessary for the diagnosis of a generalised anxiety disorder. He noted that Mr Kane had experienced excessive anxiety and worry (apprehensive expectation) on more days than not for a continuous period commencing with his time on HMAS Voyager in 1958, when he found little things upset him. Mr Kane confirmed that he experienced the sensation of butterflies in the stomach and becoming uptight when faced with doing something different, with such feelings commencing while serving on HMAS Voyager. Dr Dinnen noted that Mr Kane found it difficult to control the worry, that he felt tense, keyed up and on edge, of being more tired than was to be expected when working, that he often flew off the handle (irritability), that he had a sick feeling in his stomach associated with his anxiety and that he had a sleep disturbance, with the use of alcohol helping him get to sleep, but also aware that he wakes regularly later in the night.
24. Dr Dinnen in summary opinion concluded that Mr Kane presents clinically with the features of a generalised anxiety disorder. Dr Dinnen considered that the clinical onset of the disorder was during service in 1958, with Mr Kane having experienced a severe psychosocial stressor during service. Dr Dinnen in noting that there was no evidence of any cognitive impairment of the type associated with alcoholic brain damage and that Mr Kane’s use of alcohol was excessive and a co-morbid feature of his anxiety disorder, concluded that Mr Kane did not satisfy any of the factors outlined in the Statement of Principles (“SoP”) for Alcohol Abuse.
25. In a further report dated 24 January 2008 (Exhibit A6), Dr Dinnen, having reviewed the two reports from the historian, Mr O'Keefe, the two reports from Dr Roberts and the report from Professor Mattick, a consultant psychologist, of October 2006, affirmed the opinion that Mr Kane did satisfy the criteria for a diagnosis of generalised anxiety disorder, that both the baby death incident and the canal incident satisfy the definition of a severe psychosocial stressor, and that the clinical onset of the anxiety disorder was in 1958.
26. In oral evidence, Dr Dinnen confirmed his opinion that Mr Kane is suffering from a generalised anxiety disorder, and that his condition would be helped by counselling, but did not believe that it would make a major change to his condition. In answer to questions in cross-examination, Dr Dinnen concluded that Mr Kane’s different circumstances during his initial voyage to the Far East on HMAS Voyager would have also contributed to Mr Kane’s anxiety. Further, Dr Dinnen considered that the impairment rating arising from the anxiety condition was mild to moderate, but not slight. Dr Dinnen also considered that Mr Kane’s anxiety and worry and his associated drinking have caused impairment in a range of functions including employment, personal and social activities.
27. In relation to the categorisation of stressors under the current SoP Instrument No 101 of 2007, Dr Dinnen concluded that the dead baby incident satisfies a category 1B stressor (eyewitness to a person being killed, viewing a corpse), as does the monsoon canal incident. Further, Dr Dinnen considered that the main impact of Mr Kane’s excessive worry was to be less efficient, with his use of alcohol a reflection of his clinical distress. In further comment, Dr Dinnen considered that not wanting to accept responsibility was a way of minimising stress and anxiety and was used by Mr Kane to cope with his condition.
28. In a further report dated 23 June 2008 (Exhibit A10), Dr Dinnen, in response to the question, what condition was Mr Kane suffering from in 1958 if all the criteria for the diagnosis of generalised anxiety disorder were not present, he concluded that Mr Kane would have met the criteria for anxiety not otherwise specified.
29. In a report dated 6 October 2006 (Exhibit R2), Professor Mattick detailed Mr Kane’s employment history and consumption of alcohol history over time. In his analysis and opinion, Professor Mattick noted that Mr Kane commenced drinking on the evening, after he had noted the floating dead baby in the water in 1958 and that he commenced drinking regularly and being affected by drink when he went ashore over the ensuing months. Thereafter the quantity consumed gradually increased when he went ashore, drinking six or seven middies through most of his service career. During his post-service employment, Professor Mattick recorded Mr Kane as drinking six to eight standard drinks per day, a practise he has continued in his retirement.
30. Professor Mattick, having assessed Mr Kane’s alcohol consumption history and the clinical features, if any, thereof against the criteria listed for the diagnosis of alcohol abuse and alcohol dependence in the DSM-IV concluded that Mr Kane has never met the essential criteria for either diagnosis.
31. In a medical report dated 29 October 2006 (Exhibit R3), Dr Roberts, a consultant psychiatrist, noted that Mr Kane complained of being uptight a lot, that small things make him fly off the handle, and that he has been this way all his life. Dr Roberts detailed Mr Kane as stating that since retiring and that on going to bed he is preoccupied with thought of what went on during his navy service and that when he was working, his preoccupation was with thought of work matters. Mr Kane was also noted by Dr Roberts as complaining of being anxious and upset and not depressed, and had a sensation of butterflies in his stomach associated with attendance at the appointment.
32. Dr Roberts noted that Mr Kane did not like to drive in traffic, nor in the city – that he has a worry in regard to darkness, which he attributed to an incident in an armament store during his service days – that he stays away from crowds and movies and if a choice exists, would prefer to travel by rail as opposed to a car.
33. Dr Roberts, in assessing Mr Kane for physiological concomitants of anxiety, noted that Mr Kane had:
§Difficulty with memory, especially in relation to remembering telephone numbers, and that after a night of alcohol consumption he was unable to remember the next morning what he did the night before.
§No history of chest pain, tightness or discomfort, awareness of heartbeat, air hunger, stomach pain or indigestion, weight gain or loss, bowel and bladder problems or increased perspiration.
34. Dr Roberts concluded that there is no evidence of any symptom cluster that would suggest the presence of symptomatology of heightened anxiety of inappropriate degree, and no reactive state can be diagnosed.
35. In relation to an alcohol consumption history, Dr Roberts records a not dissimilar history to that noted by Professor Mattick. After reviewing particular documentation made available to him, Dr Roberts concluded that:
(a)He did not agree with Dr Keshava’s diagnosis of generalised anxiety disorder;
(b)A diagnosis of alcohol dependence is a matter for consideration but difficult to accept having regard to Mr Kane’s history;
(c)That there is no evidence of depression;
(d)That there was no point in time at which the onset of anxiety symptoms is specified;
(e)That the concept of the dead baby incident and the monsoon canal incident involving the British sailor could be argued to possibly being significant stressors, but there appears to be no relationship in terms of time of onset to the claimed conditions.
36. Dr Roberts assessed Mr Kane’s incapacity arising from defined mental health symptoms, but not diagnosed as a particular condition, as 7 in accordance with GARP.
37. In a supplementary report dated 28 March 2007 (Exhibit R4), Dr Roberts, after reviewing the report dated 1 March 2007 by Mr O'Keefe, a historian, commented that the material raised the question of whether the monsoon canal incident was as serious as suggested by Mr Kane and whether the baby incident occurred. In noting such, Dr Roberts again stated his opinion that there appears to be no relationship between the two incidents nominated and the alleged conditions of an alcohol condition or anxiety.
38. In oral evidence, Dr Roberts confirmed his summary opinion that he was unable to find any evidence to suggest that Mr Kane is suffering from a reactive condition productive of anxiety of inappropriate degree and that he did not consider that Mr Kane suffered from generalised anxiety disorder, although he did recognise the presence of some minor avoidance behaviour.
39. In affirming his earlier written opinion, Dr Roberts considered that Mr Kane had detailed minimal symptomatology – namely cognitive impairment which Dr Roberts believed may or may not be present and a history of Mr Kane feeling sick and anxious and worrying when having to attend appointments, such as a dental appointment. Further, Dr Roberts in noting Mr Kane’s excellent employment record concluded that such a record is very unusual for a person suffering from an anxiety condition. Dr Roberts also considered that a person electing not to assume a position of greater responsibility may be related to, but cannot be correlated with anxiety in that the decision not to accept is not indicative of psychopathology. Dr Roberts also considered Mr Kane’s sleep difficulties within normal limits and was unable to deduce any diagnostic condition from such.
40. Dr Roberts also disagreed with Dr Dinnen’s opinion that the clinical onset of an anxiety disorder was in 1958, contending that having a drink on the evening of the dead baby incident implied a diagnosis, and that there is no basis for asserting that because he has a drink he has a condition.
41. Dr Roberts stated that he had given an impairment rating not in relation to generalised anxiety disorder, but more so as regards the possibility of an alcohol ingestion disorder, of which he was sceptical.
42. Dr Roberts, despite nominating in his initial report symptoms consistent with Mr Kane experiencing anxiety, considered that such were only experienced in particular circumstances, but such symptomatology is not of sufficient severity to diagnose a generalised anxiety disorder. Dr Roberts, while acknowledging that Mr Kane may have a propensity to being a bit more anxious than the next person, did not believe that there is any evidence to suggest that Mr Kane suffers clinically significant distress or impairment in functioning in social, occupational or other important areas of functioning. Dr Roberts was particular in stating that any difficulties Mr Kane experienced in social situations was more to do with hearing and orthopaedic difficulties. Dr Roberts, when his attention was drawn to the diagnostic criteria for generalised anxiety disorder in DSM-IV-TR, was reluctant to accept that features of autonomic hyperarousal were not listed in such criteria, and that in the introductory comments to such criteria, there was no statement to the effect that such features were inevitably present. Dr Roberts, while noting that Mr Kane complained of butterflies in the stomach, and observed an increased pulse rate of 90 and moist hands at the end of the interview, acknowledged that such were present, but for a diagnosis to be made they must both be present and incapacitating, with the presence of such hyperarousal symptoms in Mr Kane’s case correlating to exposure to particular circumstances.
43. In final comment, Dr Roberts, having been made aware of the clinical history provided by Mr Kane during the hearing, acknowledged that Mr Kane did suffer some anxiety symptoms, but these are experienced under particular circumstances and not of sufficient severity to formulate a diagnosis.
44. Having detailed the evidence of Mr Kane and the expert opinions of Drs Keshava, Dinnen, Roberts and Professor Mattick, it is clear that the evidence before me in relation to Mr Kane’s alcohol consumption, does not meet the criteria for the diagnosis of either alcohol abuse or alcohol dependence. The criteria for such diagnoses pursuant to DSM-IV, are set out in Professor Mattick’s report and his assessment of Mr Kane’s history of alcohol consumption and sequelae are clearly detailed in his report. Dr Dinnen is of similar view, with Dr Roberts also expressing a similar view, with some very soft reservations. I note the view expressed by Dr Keshava in his report, but I am unable to place much weight on the opinion, as the supporting written material details a limited history of alcohol intake over time with no detail of such material in the form of an assessment against the nominated criteria in DSM-IV for the diagnosis of either alcohol abuse or dependence. In such circumstances, I conclude that Mr Kane is not suffering from either alcohol abuse or alcohol dependence at this time. In so finding, I rely upon the expert opinions of Drs Dinnen, Roberts and Professor Mattick.
45. In addressing the diagnosis, if any, of the anxiety symptoms that all the clinicians in this matter agree that Mr Kane does suffer, I observe that, in summary terms that Dr Roberts concludes that Mr Kane does suffer from anxiety symptoms, that such occurs in particular situations, but that such symptoms are not of sufficient severity to warrant a diagnosis, although they give rise to a degree of impairment. I note that Dr Roberts remained of this view in a further and final report of 11 July 2008 (Exhibit R9).
46. In turning to Dr Keshava’s report, I observe that there were clearly some inaccuracies in the nominated history of Mr Kane relating to the Voyager incident, the drinking of red wine and an aspect of his service history – all such matters being acknowledged by Mr Kane to be inaccurate. Nevertheless, Dr Keshava details the matters that he took into account when formulating his opinion that Mr Kane suffers from generalised anxiety disorder. I would note that the matters that Dr Keshava has taken into account are in general terms consistent with Mr Kane’s recital of his history during the hearing, which indeed was more expansive than that nominated by Dr Keshava.
47. Dr Dinnen concludes that Mr Kane suffers from generalised anxiety disorder. In reaching such a diagnosis, Dr Dinnen details the clinical symptoms nominated to him by Mr Kane and assesses them against the diagnostic criteria listed in DSM-IV for generalised anxiety disorder. On the clinical history provided to the Tribunal by Mr Kane, albeit with some difficulty in extraction, I am satisfied that the diagnostic condition experienced by Mr Kane at this time is generalised anxiety disorder. In so finding, I rely upon the clinical analysis and expert opinion of Dr Dinnen and to a lesser extent on the opinion of Dr Keshava. I also rely upon the opinion of Professor Mattick in so far as his analysis of the alcohol ingestion, and his recognition in his clinical history examination and opinion formulation of a level of symptomatology which is not consistent with a diagnosis of alcohol abuse or dependence.
48. Further, a thorough examination of Dr Roberts’ opinion revealed an approach to the clinical analysis was one particular to Dr Roberts – namely, physical evidence of autonomic hyperarousal must be present before a diagnosis of any anxiety disorder can be made. While the DSM-IV-TR in its introduction to the diagnostic criteria for anxiety disorders, details that many people with generalised anxiety disorder also experience somatic symptoms, it does not nominate that such are an inevitable association, nor does it nominate such as a necessary diagnostic criteria for anxiety disorder and in particular generalised anxiety disorder.
49. Further, it is evident that Dr Roberts’ focus on his particular approach, also appears to generate a focus on the manner in which he approaches the clinical assessment. In the matter to hand and for whatever reason Dr Roberts acknowledged that the clinical history provided by Mr Kane during the hearing was more extensive than Mr Kane had provided to him. Nevertheless when asked to address the more extensive history provided by Mr Kane, Dr Roberts was reticent in approaching the task, while eventually stating that the history provided during the hearing heralded a wider variety of symptoms giving rise to greater impairment.
50. It is this issue of impairment which gives rise to another area of confusion. Dr Roberts acknowledges that impairment does arise from some symptoms complained of by Mr Kane, but is unable, although in oral evidence agreeing that some symptoms complained of are in the nature of anxiety symptoms, to formulate a condition which gives rise to such impairments, suggesting at one stage that such may be concerned with alcohol ingestion, although being of the view that neither alcohol abuse or dependence is present.
51. In summary, I find that the diagnosis appropriate to Mr Kane’s current symptomatology is that of generalised anxiety disorder. In so finding, I rely upon the clinical history as detailed by Mr Kane, the clinical opinion of Dr Dinnen and in part the clinical opinion of Dr Keshava. I recognise that the final opinion of Dr Roberts is one in which he, while acknowledging that Mr Kane does suffer some anxiety symptoms, concludes that the clinical symptoms are not of sufficient imperative to constitute a diagnosable condition. I have expressed earlier the difficulties I have experienced in working through Dr Roberts’ opinion, and it is for those reasons I remain unpersuaded by his analysis.
relationship to service
52. I note the relevant the relevant SoP in this matter is Instrument No 101 of 2007 (“the Instrument”) concerning anxiety disorder. Paragraph 3(b) of the Instrument defines anxiety disorder as meaning generalised anxiety disorder, anxiety disorder due to a general medical condition or anxiety disorder not otherwise specified. Generalised anxiety disorder and anxiety disorder not otherwise specified are defined to mean respectively a psychiatric disorder with particular clinical (diagnostic) features.
53. In addressing the features (diagnostic criteria) nominated for generalised anxiety disorder, I have already detailed the material which pointed to each feature nominated in the definition of generalised anxiety disorder, when considering the issue of current diagnosis. I observe that the clinical features nominated in DSM-IV-TR and the Instrument are similar. I reiterate that such features are pointed to by Mr Kane in his evidence and the clinical analyses of Dr Dinnen and Dr Keshava.
54. In this matter, the hypothesis postulated on Mr Kane’s behalf is that Mr Kane experienced a category 1B stressor during the dead baby incident on HMAS Voyager in February 1958, and again in 1962/63 when serving on HMAS Parramatta (the monsoon canal incident involving the British sailor). As a consequence of experiencing such stressors, Mr Kane is said to have developed the clinical onset of an anxiety disorder within five years. Upon review of all the material before me, there is material pointing to each element of the hypothesis.
55. For Mr Kane’s current anxiety disorder to be related to his service there must be a factor that connects Mr Kane’s anxiety disorder (generalised anxiety disorder or anxiety disorder not otherwise specified) with the circumstances of his relevant service. In this matter reliance is placed upon factor 6(a)(iii) of the Instrument:
experiencing a category 1B stressor within the five years before the clinical onset of anxiety disorder …
56. A category 1B stressor is defined within paragraph 9 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.
57. For the hypothesis to be reasonable there must be upon review of all the material, material pointing to and congruent with each element of the factor, upon which reliance is placed. I have earlier addressed the issue of whether the material points to Mr Kane experiencing a category 1B stressor. Such material, which indicates Mr Kane observing a dead infant floating in the water when disposing of garbage on HMAS Voyager in February 1958 and observing what he believed to be the critical injury to a British sailor when he fell down a monsoon canal drain in Singapore dockyards in 1962, does point to Mr Kane experiencing a category 1B stressor.
58. In addressing the second element of the factor (clinical onset of anxiety disorder within five years), I note that the term clinical onset of anxiety disorder requires the presence of a number of distinct symptoms, consistent with the nominated diagnostic criteria for anxiety disorder to be present within the five year period, which would permit a clinician to make such a diagnosis (Lees v Repatriation Commission [2002] FCAFC 398 considered and applied).
59. In addressing the material in relation to Mr Kane’s symptoms over the five year period after experiencing his category 1B stressor in February 1958, I note that such material points to Mr Kane:
(a)Having excessive anxiety, worry and apprehension on most days and continuing over such events and activities as firing exercises and star shells; keeping lookout; people wasting food, which caused him to become upset; and over many trivial issues;
(b)Finding it difficult to control the extent of the worry;
(c)Feeling useless and keyed up;
(d)Becoming irritable with people;
(e)Experiencing butterflies in the stomach;
(f)Commencing drinking immediately after experiencing the stressor and he continued to increase his drinking over time to help settle his worries and help with his sleep;
(g)Receiving a letter from his mother in 1959 when returning to the Far East in which she was critical of his drinking habit;
(h)Not wishing to accept further responsibility in his work situations when he refused offer of education leading to a commission in 1962; and
(i)Developing a phobia against dark and enclosed spaces after being locked in an ammunitions storeroom.
60. I note that Dr Dinnen, in his opinion, was of the view that the clinical onset of Mr Kane’s anxiety disorder was in 1958 during his first tour of duty on HMAS Voyager. In so stating, Dr Dinnen considered that such a clinical onset related to generalised anxiety disorder, but in his final report concluded that if all the symptoms for generalised anxiety disorder were not present, then such symptoms which were present were consistent with the clinical onset of anxiety disorder not otherwise specified.
61. In the circumstances nominated, I observe that such material does point to the clinical onset of an anxiety disorder within five years of Mr Kane experiencing a category 1B stressor. I observe that it matters not whether the clinical onset related to generalised anxiety disorder or anxiety disorder not otherwise specified, for both by the definition contained within the SoP are classified as an anxiety disorder, with the diagnostic criteria for anxiety disorder not otherwise specified being defined within the Instrument as meaning:
…a psychiatric disorder…with prominent anxiety or phobic avoidance that does not meet criteria for any specific anxiety disorder …
62. After consideration of all the material, I observe that the material does point to each element of the hypothesis , and is congruent with each element of the factor in question. In such circumstances, I find that a reasonable hypothesis exists linking Mr Kane’s current anxiety disorder with his service.
63. In addressing the fourth and final Deledio step (Repatriation Commission v Deledio (1998) 83 FCR 82 considered and applied), I must be satisfied beyond reasonable doubt that any incapacity did not arise from a war-caused injury. To be so satisfied, one of the facts pertinent to the hypothesis must be disproved beyond reasonable doubt, or alternatively the existence of a fact beyond reasonable doubt must be inconsistent with one of the constituent facts of the hypothesis, thus disproving beyond reasonable doubt the hypothesis.
64. In addressing this task, I am mindful of the nature of the two stressors relied upon by Mr Kane. I note the two historical reports detailed in evidence, and the focus in the first report on whether or not HMAS Voyager had a waste chute and what was the custom and practice in relation to the use of such. I have considered all the material, and while there is no specific corroboration of the dead infant incident, there is corroboration by another sailor of the canal incident. As indicated earlier in these reasons, I did not draw any negative influences in relation to Mr Kane’s difficulty in remembering the timing of the canal incident. Further, in noting that the baby incident was not reported in the ship’s log HMAS Voyager, the only conclusion that can be drawn is that awareness of the incident was not brought to the attention of those responsible for the log. Whether this arose from whether the event did not occur or whether it was a consequence of Mr Kane’s limited communication to others is a matter in which Mr Kane’s story cannot be disproved beyond reasonable doubt.
65. A second issue which must again be addressed is that raised by Dr Roberts in his opinion, namely Mr Kane suffers from some anxiety symptoms, and suffers incapacity from such or other possible conditions, but the symptoms are not of sufficient severity to constitute an anxiety disorder. I have addressed the essence of this issue earlier when considering the diagnosis of Mr Kane’s current psychiatric condition. In so finding as I did on grounds of reasonable satisfaction, any further analysis would not be fruitful, as such a diagnostic outcome negates any influence Dr Roberts' opinion may have in finding a fact, which is beyond reasonable doubt inconsistent with a fact in the hypothesis thereby disproving the hypothesis beyond reasonable doubt.
66. In the light of such findings, I conclude that I am unable to be satisfied beyond reasonable doubt that Mr Kane’s incapacity did not arise from a war-caused injury.
67. In such circumstances, I find that Mr Kane does suffer from an anxiety disorder and that this is a war-caused injury. I also find that Mr Kane does have an incapacity arising from such an injury, as evidenced by the opinions of the three psychiatric specialists involved in this matter. The issue of the assessment of that incapacity is remitted to the Respondent for such assessment to be undertaken.
determination
68. The decision under review is set aside and in substitution thereof I determine that Mr Kane:
(a)Suffers from an anxiety disorder; and
(b)The anxiety disorder is a war-caused injury; and
(c)Assessment of incapacity arising from the anxiety disorder is remitted to the Respondent for such activity; and
(d)Date of effect is 26 February 2004.
I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed: ..................[Sgd].............................
Ms Radhika Prasad, AssociateDates of Hearing: 16 and 17 June 2008
Date of Decision: 3 October 2008
Solicitor for the Applicant: Mr Isolani, KCI Lawyers
Counsel for the Applicant: Mr Colborne
Appearance for the Respondent: Ms Wormall
0
3
0