KHOUREY and MILITARY REHABILITATION AND COMPENSATION COMMISSION
[2010] AATA 302
•28 April 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 302
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2540
VETERANS DIVISION ) Re ZACHARY KHOUREY Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Senior Member A K Britton
Dr M E C Thorpe, MemberDate28 April 2010
PlaceSydney
Decision The reviewable decision made 8 April 2008 is set aside and in place of that decision the Tribunal decides:
(i) The Commission is liable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of an injury, being a disease, namely “adjustment disorder with anxiety and depressed mood”.
(ii) The Commission is not liable for the aggravation of that injury which occurred on or about June 2002.
.......................[SGD].......................
Senior Member
CATCHWORDS
WORKERS COMPENSATION – Military compensation – disease – psychological condition – material contribution of military service to onset of psychological condition – subsequent aggravation of condition – “excluded causes” to of employment-related injury – reasonable disciplinary action contributed to aggravation of condition
Safety, Rehabilitation and Compensation Act 1989 — ss 5, 7(6), 14
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Hart v Comcare (2005) 145 FCR 29
Casarotto v Australian Postal Commission [1989] FCA 116
Comcare v Sahu-Khan (2007) 156 FCR 536REASONS FOR DECISION
Senior Member A K Britton
Dr M E C Thorpe, Member1. Mr Zachary Khourey enlisted in the Australian Army at the age of 19. On his account, he soon realised that this was a “big mistake”. He felt trapped and anxious at the prospect of being forced to serve his four year term of service. He claims that he developed a psychiatric condition that persists to this day, which he attributes to his employment with the Army — specifically, his inability to cope with military life coupled with his subsequent mistreatment while enlisted. He now seeks review of a decision made by the Military Rehabilitation and Compensation Commission, the respondent in these proceedings, denying liability for his alleged psychological condition.
2. The Commission contends that Mr Khourey does not suffer from a psychological condition. In the alternative, it contends that any condition was caused by the Army’s refusal to accede to his request for an early discharge, and/or disciplinary against taken against him for being absent without leave. It contends that both are excluded causes of injury under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act), and therefore, it bears no liability for Mr Khourey’s condition.
Legislative Scheme
3. By virtue of s 14 of the Act, the Commission is liable to pay compensation in accordance with that Act in respect of any “injury” suffered by Mr Khourey if it results in impairment or incapacity for work.
4. As Mr Khourey’s alleged “injury” occurred before 5 April 2007, the provisions of the Act concerning the definition of “injury” as it stood before amendments made in 2007 apply: Item 42, Schedule 1 of the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007.
5. The expression “injury” was defined at the time as meaning:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease ) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) ...
but does not include any such disease , injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
6. “Disease” was defined to mean:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
7. “Ailment” was defined as:
… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Background
8. Mr Khourey enlisted on 19 June 2001. He was discharged on 6 September 2002 on the ground of “Not suited to be a soldier”. He had attained the rank of Gunner. On 3 August 2001, after a period of initial training, he was posted to the School of Artillery at Puckapunyal in South Australia for Initial Employment Training. On 17 October 2001 he was posted to the 16th Air Defence Regiment in Woodside, South Australia (16 AD). During that posting he was charged with, and convicted of, two counts of being absent without leave.
9. Mr Khourey claims that shortly after arriving at Puckapunyal, he began to believe that his decision to sign a four year contract to serve in the Army had been a “big mistake” and suddenly felt “trapped, imprisoned and cut off from the outside world”. He claimed he felt “very agitated and distressed” and panicked at the prospect of serving out the full term.
10. On his account, he finally “got up the courage” to speak to his troop sergeant who arranged an interview with the Commanding Officer. He claimed his CO was dismissive of his request and accused him of wanting to “lay on the beach and bludge”. He testified that after this meeting his feelings increased “exponentially” and that he became “extremely depressed, anxious and experienced feelings of desperation”. Fellow soldier, Mr Geoffrey Grimmet, testified that after that meeting Mr Khourey looked as if “someone had died”. He recalled being afraid that Mr Khourey was going to hurt himself.
11. According to Mr Khourey, it became apparent to him the day after that meeting that his request for an early discharge was widely known, and he was marked by his colleagues as a “shirker”. He said he felt “absolutely terrible…almost physically sick with anxiousness and worry”, and could not sleep.
12. He believed that when he arrived at 16 AD the following month, his request for discharge was common knowledge. He said that he felt he was an outsider —a “marked soldier” — from the start, and believed that other soldiers were reluctant to associate with him. He said that he felt “mentally crippled” when he realised he was required to live on base for a year.
13. Mr Khourey was summoned to attend a meeting with troop commander, Major (then Lieutenant) Richard Simpson, shortly after arriving at the 16 AD. According to Mr Khourey, Major Simpson demanded that he withdraw his request for early discharge and castigated him for making the request. Mr Khourey said he acquiesced because he felt threatened and intimidated. In these proceedings, Major Simpson denied rebuking Mr Khourey. He said he had requested a meeting to find out why Mr Khourey wanted a discharge and to see if he required support. He said Mr Khourey appeared frustrated but “not excessively so” when he was informed he was contractually committed to the Army for several years.
14. Mr Khourey returned home for two weeks over Christmas. He claimed that he felt miserable despite being glad to be away from the Army, and became severely depressed towards the end of his leave. He claimed that on his return he tried to “blend in” and do his job but felt sick with anxiety, depressed, scared all the time, lonely and isolated.
15. During Easter 2002, Mr Khourey again visited his family despite not having been granted leave. He returned late and was eventually charged with being absent without leave. Shortly after his return, Mr Khourey was charged with a further offence, "Unauthorised Discharge [of a firearm]" following an incident during a training exercise. He saw this as evidence of victimisation. The charge was eventually dropped.
16. According to Mr Khourey, he felt overwhelmed by feelings of “depression, entrapment, anxiety and fear” at this juncture. He felt he could no longer endure Army life and was considering suicide. On 15 April 2002, he went AWOL a second time. He handed himself in five weeks later, on his account because of concern for his family. He said an Army chaplain who he contacted while AWOL assured him that he would be granted an early discharge if he handed himself in.
17. On his return to his barracks, Mr Khourey claimed he was ordered to commence three days of guard duty and became extremely distressed. He sought assistance from Army psychologist, Ms Janine Donaldson, who intervened on his behalf and brokered a compromise. Major Simpson claimed that Mr Khourey had not been put on guard duty but rather restricted to the guard house so he could be observed as he was considered a “flight risk”.
18. Mr Khourey was ultimately convicted and sentenced to 28 days imprisonment in the Defence Force Corrective Establishment (DFCE) in Holsworthy, Sydney. He said he was shocked to learn during his trial that there was no hope of an early discharge. He claimed that en route to Holsworthy he had a panic attack and collapsed.
19. According to Mr Khourey, the staff at the military prison made his life hell by tormenting and humiliating him once it became known that he was an “AWOL case”. He said his time in prison was “horrible and depressing”.
20. When he returned to his barracks at 16 AD in June, Mr Khourey was interviewed by the Regimental Sergeant Major and said he wanted to get out of the Army, " more then ever". He claimed from that point he was extremely isolated and was forced to eat alone. He also claimed that he given storeroom duties and not allowed to participate in sporting events. On his account, he was at his “lowest point” at this time — he wanted to kill himself and was a “total mental wreck”.
21. From late June onwards, Mr Khourey was seen regularly by Ms Donaldson. She recommended that he be granted an early discharge on the grounds that he was unable to adapt to Army life. The Army acted on that recommendation and discharged Mr Khourey on 6 September 2002.
Issues for determination
22. Whether the Commission is liable under s 14 of the Act for Mr Khourey‘s alleged injury turns on four main issues:
(i)Does or did, Mr Khourey suffer from “a disease” or an “aggravation” of a disease?
(ii) If so, was the disease or aggravation of the disease, contributed to in a material degree by his employment with the Army?
(iii) If so, was the disease or aggravation of the disease, a result of reasonable disciplinary action taken against Mr Khourey or his failure to obtain a benefit?
(iv)If not, did the disease or aggravation of the disease, result in incapacity for work or impairment?
does or did Mr Khourey suffer from “a disease”?
23. Mr Khourey contends that since his time in the Army he has suffered from a disease in the form of a psychiatric condition. In support, he points to the opinions of Drs Anthony Dinnen and Graham Altman. The Commission contends that there is no reliable evidence that Mr Khourey has suffered from a psychiatric condition. It relies on the opinion of Dr Yvonne Skinner in support of this contention.
24. The resolution of this issue requires us to examine in some detail Mr Khourey’s medical history and his account of his time in the Army.
Medical history prior to discharge
25. There is no known history of Mr Khourey suffering from any psychiatric or psychological problems prior to enlistment. In November 1999, after extensive psychological testing, the Army assessed him as a sound applicant but noted that he might present an “adjustment risk on maturity”. He was again assessed as suitable to serve shortly after enlistment.
26. In a record dated 25 January 2002, Ms Donaldson recorded that she had been contacted by a colleague, Robyn Whaley, requesting “follow up” for Mr Khourey. Ms Whaley told Ms Donaldson that Mr Khourey had attended counselling at Puckapunyal, and that although he had shown some improvement in his condition there were ongoing concerns about his suicidal ideation. Ms Whaley had been unable to contact Mr Khourey before his transfer to the 16 AD and was concerned to ensure that he had “appropriate support”. She reported that when she eventually contacted Mr Khourey he told her that he “did not need any help and was coping fine at 16 AD…refused any further help or support”. No records of Mr Khourey receiving counselling at Puckapunyal have been produced. Mr Khourey denies receiving counselling. Nonetheless, on the basis of Ms Whaley’s report and Mr Khourey’s report to Ms Donaldson three months later (see below), it seems to us more likely than not that he did receive counselling while at Puckapunyal but can simply no longer recall this.
27. Apart from Ms Donaldson’s note, no record has been produced of concern being expressed for Mr Khourey’s mental health, until his return from absence without leave in May 2002. On his return he was referred to Ms Donaldson on his return for “assessment and assistance”. She recorded on 22 May 2002 that Mr Khourey presented as “agitated but generally appropriate in presentation and manner”. She recorded a history of Mr Khourey being unhappy since joining the Army; of seeing a psychologist at Puckapunyal and having his request for discharge refused; of attempting to continue to serve but finding the environment at 16 AD very difficult to adjust to; of feeling pressure building up over the past six months until he feared he would “smash someone” or tell someone in authority to “fuck off”; and of feeling “ostracised, victimised, isolated trapped and unhappy” on return from being AWOL.
28. Ms Donaldson assessed Mr Khourey using, amongst other things, the Personality Assessment Inventory (PAI), a self-report test used to assess several matters including psychopathology. She found Mr Khourey’s results on testing to be invalid and thought that the most likely explanation for this was because he had “read too much into” the questions and thereby distorted the results. Ms Donaldson also tested Mr Khourey using the Beck Depression Inventory (BDI), a test used to measure the severity of depression. His score on this test indicated “extremely severe depression”. Ms Donaldson concluded that Mr Khourey was currently experiencing a “high level of depressive symptomatology”, which had probably been building up over the past few months.
29. In a report dated 24 May 2002, Ms Donaldson wrote that psychometric assessment indicated Mr Khourey was suffering a severe level of depression and elevated stress, which in her opinion was directly related to his distress with Army life. She recommended that he be discharged and receive psychological support. In her opinion, it was unlikely he would ever adjust to military service.
30. Ms Donaldson met again with Mr Khourey shortly after his release from the DFCE. She reported that he “found it as expected and kept out of trouble”. Mr Khourey told her he was coping “for now” but felt “switched off, no emotion”. She also recorded that he was interacting normally with friends but was cautious about trusting some people in his regiment. She wrote that he was “fairly well adjusted” but was concerned he might do something drastic if his application for discharge failed. She noted that he had been seeing friends where possible and an improvement in his depressive symptomatology.
31. When Ms Donaldson next saw Mr Khourey on 15 July, she recorded that he was “still rational, reasonable presentation, although mood starting to decline but “only just” maintaining psychological equilibrium. On 2 August she recorded that he presented with a “noticeably flattened effect”. She also noted that he had been taking illicit drugs: “getting out of it” most weekends, using marijuana every night to sleep, and taking Ecstasy and sometimes methamphetamines on weekends. In her view, while he maintained a level of functioning at work, his heavy drug use was being used to mask depressive symptoms that had become increasingly marked since his return to the 16 AD. In a report made the same day, Ms Donaldson wrote that Mr Khourey had not, as he had hoped, received a notice to show cause [a preliminary step in the discharge process], and his emotional state had been “significantly affected” as a result. She also noted that his presentation had deteriorated markedly since his time at DFCE. She wrote that Mr Khourey’s emotional state was likely to continue to deteriorate the longer he remained in the Army and recommended that he be discharged as soon as possible. When she saw Mr Khourey ten days later, he had been issued a notice to show cause. Ms Donaldson recorded that he “felt apprehensive but optimistic” and wanted to be off drugs by the time he was discharged.
32. Ms Donaldson saw Mr Khourey for the last time on 2 September 2002, four days before his discharge. She recorded that he was well prepared and intended to return to University, and reported no illicit drug use but some drinking with friends. In her view, no further psychological intervention was required, but she advised him to see a civilian psychologist if required.
History following discharge
33. Mr Khourey testified that he had been chronically depressed and lacked self esteem and motivation since leaving the Army. On his account, before enlistment he had been popular and had a number of girlfriends, but now finds it difficult to trust people and to initiate or maintain personal relationships.
34. In the eight years since leaving the Army, Mr Khourey has worked on an intermittent basis for a total of about five to six months. He has not worked since 2007. The only study he has undertaken in this period was a two year, part-time photography course. He testified that after the course he had not pursued his interest in photography because he did not feel up to it.
35. Mr Khourey has been on anti-depressant medication since 2008. His condition is currently managed by his GP.
36. In 2004 Mr Khourey became involved in a program run by Wesley Uniting Employment. After an initial psychological assessment he received counselling over a period of 100 weeks. In a letter dated 30 March 2007 Wesley counsellor Jodie Johnson, whose qualifications are unknown, stated that Mr Khourey exhibited “high levels of anxiety, depression and suffers from extremely low self esteem”. Mr Khourey saw psychiatrist, Dr Altman over six sessions in 2007. He has been receiving counselling from a Centrelink psychologist since 2009, and had undertaken approximately a dozen sessions at the time of the hearing of this matter.
37. In cross-examination, Mr Khourey conceded that he did not seek medical help for his psychiatric condition until about five years after he left the Army. On his account, the reason for this was his hope that it would “all go away”, and because he had been receiving counselling through Wesley.
medical opinion
38. Mr Khourey has been assessed by three psychiatrists — Drs Dinnen, Altman and Skinner. Reports prepared by each were tendered in these proceedings. Dr Skinner also gave oral evidence. Drs Dinnen and Altman believe that Mr Khourey has been suffering from a psychiatric condition since his time in the Army. Dr Skinner does not share that view. Dr Dinnen thought that when he examined Mr Khourey he “clearly satisfied” the criteria for a depressive (dysthymic) disorder and that the diagnosis of a generalised anxiety disorder was also warranted. In his opinion the diagnosis of “best fit” was “chronic adjustment disorder with anxiety and depressed mood”. Dr Altman, on the other hand, thought the condition more severe, and stated that in his opinion Mr Khourey suffered from “generalised anxiety disorder with an associated major depression”.
39. Dr Skinner believes it is not possible to make a “confident diagnosis” given Mr Khourey’s history of substance abuse. To put her opinion in context, it is necessary to examine that history in some detail.
40. It will be recalled that in August 2002, Ms Donaldson recorded that Mr Khourey was “getting out of it” most weekends; using marijuana daily; and taking Ecstasy and sometimes methamphetamines. In these proceedings, Mr Khourey admitted to drinking heavily and taking Ecstasy (on about six occasions) around this time but denied ever using marijuana or methamphetamines. He was unable to offer an explanation to account for the discrepancy between these claims and the history taken by Ms Donaldson.
41. From what is before us it is difficult to determine precisely where the truth lies. We propose to proceed on the basis that the account given to Ms Donaldson was broadly truthful in its revelations that Mr Khourey had been using reasonably significant quantities of illicit substances for some period around the time of her interview with him. While it is possible that Mr Khourey fabricated that account to gain the support of Ms Donaldson for his application for discharge, he must have known that there was a possibility that this revelation could lead to further punishment by the Army if it was disclosed by her. Furthermore, it is a matter of common knowledge that some people use illicit substances as a form of self-medication. If Mr Khourey’s account of feelings of anxiety and depression is accepted, as we believe it must be, the use of drugs to get “high”, temporarily alleviating distress was a plausible response to his situation.
42. There are also discrepancies between Mr Khourey’s evidence and the histories taken by some of the practitioners who have assessed him. Dr Skinner recorded that Mr Khourey denied ever using illicit drugs and “does not drink alcohol”. Dr Altman recorded “no history of drug abuse” and that Mr Khourey had been drinking a bottle of spirits every couple of months since discharge. It seems to us that the most likely explanation for these discrepancies is that Mr Khourey failed to give a completely truthful account of his drug history to Drs Altman and Skinner.
43. Why he chose to do this was not fully explored or explained at the hearing. We infer that Mr Khourey probably considered that it would be disadvantageous to admit to a drug history because that admission might be used by those assessing him to discount his history of anxiety and depression or a current diagnosis of anxiety and depression. The inconsistency in his various accounts, of course, makes an assessment of his credibility more difficult than it might otherwise have been. In our view, however, it ultimately does not render implausible the findings of the doctors who examined him and found him to be suffering from psychiatric illness.
44. The Commission also contends that Mr Khourey failed to disclose his drug history to Dr Dinnen. While possible, this is not immediately apparent from the face of the two reports prepared by Dr Dinnen and tendered in these proceedings. The statement under the heading “Current Symptoms” — “there is no substance abuse” [emphasis added] — is in our view a reference to the present, as the tense used and context suggests, and not, as the Commission suggests, a reference to the past (see report of Dr Dinnen, 7 November 2008, p 4).
45. But in any event, even if Dr Dinnen was told of the history and took it into account, the question raised by Dr Skinner’s evidence is whether his diagnosis is rendered unreliable because of it. Dr Skinner is of the opinion that in any case where there is any history of material substance abuse, including alcohol, it is not possible to make a reliable diagnosis of a psychiatric condition. As Drs Altman and Dinnen were not required for questioning, they have not had the opportunity to comment on that proposition. It can be inferred, however, that they do not fully endorse that view, as each provided a diagnosis despite being aware of Mr Khourey’s drinking history.
46. In our view, Dr Skinner’s opinion — that there can be no reliable diagnosis of a psychiatric condition where there is a history of substance abuse — should not be accepted in this case. We accept that the difficulties of a complete or comprehensive diagnosis may be exacerbated in cases where there is a history of substance abuse, but it is a matter of common knowledge that drug misuse and mental illness of various kinds are frequent co-morbidities. We consider that it is matter of common knowledge that alcohol and drugs are used both recreationally and as self-medication by some people suffering anxiety and depression. Where there is a history of drug misuse, the diagnostic difficulty, as we perceive it, may be in determining whether a patient suffers from an illness characterised by anxiety or depression or some associated mental illness alone, or from co-morbidities. This may, in turn, raise “chicken-and-egg” causal issues but, for reasons to which we now move, we judge that to be a sterile debate in this particular case.
47. Dr Skinner thought Dr Dinnen’s opinion — that Mr Khourey now suffers from dysthymia, a chronic low grade form of depression — “a possibility” but was not prepared to endorse it, primarily because she was unable to exclude the possibility that Mr Khourey might be continuing to indulge in substance abuse. However, her hunch is not supported by the evidence. In these proceedings, Mr Khourey claimed that since leaving the Army he uses alcohol occasionally and denied any illicit drug use, apart from taking Ecstasy on two occasions. There is nothing in any medical or other record produced in these proceedings to contradict that claim. While Mr Khourey is clearly not an independent witness and — as noted — we have found his evidence to be unreliable in part, in our view Dr Skinner’s assumption that he might be continuing to indulge in substance abuse is unsafe.
48. For the reasons that follow we think it more probable than not that Mr Khourey has suffered from some form of psychiatric condition since his time in the Army. First, his condition was considered serious enough to warrant counselling, both during his time at Puckapunyal and after from May 2002.
49. Second, Mr Khourey’s consistent history of feeling “depressed”, “horrible” “sick with anxiety”, “depressed”, “scared all the time”, “lonely” and “isolated” while in the Army. This is in marked contrast to the eager recruit whom the Army had assessed as “promising”. While in January 2002 he told Ms Whaley that he “was coping”, his account given in these proceedings about his mental state around that time, taken together with his decision to abscond shortly after this, suggests otherwise.
50. Third, the consistent history given of poor self esteem, lack of motivation, long term sleeplessness and reduced social and work functioning since leaving the Army.
51. Fourth, the assessment made while in the Army of “severe depression and anxiety”. Dr Skinner has raised a number of criticisms about the methodology employed in that assessment. Against this, Ms Donaldson had the immeasurable advantage of a first hand clinical assessment over an extended period as well as knowledge of the history of substance abuse.
52. Fifth, the consensus of opinion among the many professionals who have been involved in Mr Khourey’s care at various times over the past nine years is that he suffers from some form of psychiatric condition. His behaviour in the Army appears to be consistent with that which might be expected of a person who had developed depression and anxiety after being recruited. It suggests lack of motivation, sadness and apathy or low mood. As this low mood appears to have lasted an extended period, and, at least for much of that time, does not appear to have been the direct physiological effect of drug use, we think that consensus is correct.
53. Sixth, the weight of medical opinion is that he has suffered from a psychiatric condition since his time in the Army.
54. Dr Skinner was, perhaps understandably, cautious in relation to the correct diagnosis of Mr Khourey’s condition, given the rather inconsistent histories he gave to examining doctors. It would have been preferable for Drs Dinnen and Altman to have been cross-examined, both in fairness to them and, more particularly, because their opinions concerning the viability of the diagnosis would be been more helpful if they had had opportunity to deal with all the evidence of Mr Khourey’s history. Notwithstanding this, however, we prefer their firm opinions that Mr Khourey was suffering from depression and anxiety because those opinions are more consistent with the weight of evidence than is Dr Skinner’s non-committal position which, in fact, does not in any significant way contradict their views.
55. While, as Counsel for Mr Khourey suggests, it may be that the respective diagnoses reached by Drs Altman and Dinnen are nothing more than different labels used to describe the same symptoms, it seems to us that that employed by Dr Dinnen — an adjustment disorder with anxiety and depressed mood — is the “best fit”.
Was Mr Khourey’s condition contributed to in a material degree by his employment with the Army and /or an excluded cause?
56. To constitute “an injury” within the meaning of the Act, Mr Khourey’s condition, must be “contributed to in a material degree” by his employment. In Comcare v Sahu-Khan (2007) 156 FCR 536, Finn J said at 542 that this requires a “threshold evaluation” — namely, an evaluation of all relevant contributing factors to the condition for the purpose of asking whether the employee’s employment did or did not contribute materially to the subject disease. Even if established that Mr Khourey’s condition was “contributed to in a material degree” by his employment with the Army, it will not constitute “an injury” if it was the result of reasonable disciplinary action taken against Mr Khourey or of his failure to obtain a benefit in connection with his employment (the excluded causes): see definition of “injury” in s 4 of the Act. The injury will “result from” an excluded cause if that cause was one of several which led to the development or aggravation of the injury: Hart v Comcare (2005) 145 FCR 29.
57. For the reasons that follow, we are satisfied that Mr Khourey’s employment materially contributed to his condition. The more difficult question is whether an excluded cause also materially contributed to his condition. To answer that question it is first necessary to identify when the condition developed.
Onset of condition
58. It seems to us more probable than not that Mr Khourey’s condition developed sometime during his time at Puckapunyal. That finding is consistent with Mr Khourey's evidence of experiencing heightened feelings of stress and anxiety during that period; the complaint evidence given by Mr Grimmett, and, importantly, the evidence that he had received counseling at Puckapunyal and reported suicidal ideation. The more difficult task is pinpointing the date of onset. The sole contemporary record, Ms Donaldson's record of her phone conversation with Ms Whaley, provides no clue as to when during his time at Puckapunyal, Mr Khourey sought counseling or reported suicidal thoughts.
59. The Commission contends that the onset of the condition, which is not conceded, occurred sometime after the 19 September meeting between Mr Khourey and his CO — about six weeks after his arrival at Puckapunyal. While Mr Khourey does not dispute that the condition worsened after that meeting, he contends that it had developed before that meeting.
60. Mr Khourey testified that he had been experiencing symptoms of distress and anxiety before his meeting with his CO. In cross-examination, he denied that his problems only started after that meeting or that his feelings of being "trapped" had been manageable up to that time. Those claims are broadly consistent with Mr Grimmett's account that shortly after settling into their new rooms, Mr Khourey confided in him that enlistment had been one of the “biggest mistakes” of his life. On his account, Mr Khourey was "clearly upset, traumatised and panicking" at the thought of spending the next four years in the Army. He testified that "shortly after this" Mr Khourey started having sleeping difficulties and "quickly became more and more stressed and anxious with Army life". Mr Khourey's claim of becoming distressed soon after arrival is also consistent with the history he gave to Ms Donaldson and the remarks made by his lawyer in proceedings before the military tribunal in June 2002.
61. In Dr Dinnen’s opinion, clinical onset occurred from the time of Mr Khourey‘s arrival at Puckapunyal. He recorded that "after a few weeks at Puckapunyal" Mr Khourey started to feel worse and developed an "overwhelming feeling of wanting to get out" and "feeling a bit anxious and nauseated...and not sleeping well".
62. The Commission contends that taken at its highest, Mr Khourey's evidence would not support a finding that his condition had reached the stage of a "clinical disorder" by the time of the meeting. It points to the evidence given by Dr Skinner that a diagnosis of an adjustment disorder under DSM-IV (the American Psychiatric Association, “Diagnostic and Statistical Manual of Mental Disorders, (4th ed) — a manual accepted in Australia as an authoritative psychiatric text) requires among other things, symptoms or behaviours of "marked distress" and significant impairment in social or occupational functioning. It also points to Dr Skinner's opinion that Mr Khourey's description of symptoms before the meeting was not suggestive of a condition that had reached the stage of a clinical disorder and "might have been a normal reaction for a young person who...realises he made a mistake".
63. A reading of DSM-IV indicates that Dr Skinner might have been mistaken in her view that the diagnostic criteria for an adjustment disorder require both marked distress and significant impairment in functioning. It provides (at page 683):
Diagnostic criteria for Adjustment Disorder
A. The development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within 3 months of the onset of the stressor(s).
B. These symptoms or behaviours are clinically significant as evidenced by either of the following:
(1)marked distress that is in excess of what would be expected from exposure to the stressor
(2)significant impairment in social or occupational (academic) functioning.
…
64. It is notoriously difficult to identify the date of onset of a psychiatric condition especially where, in a case such as this, there are no reliable contemporaneous records and significant time has passed. As the Commission points out, it is not enough that Mr Khourey establish that he was merely unhappy or disillusioned with Army life. There must be evidence of marked distress. The task of deciding whether a person’s distress is “marked” or “within the normal range”, is not an easy one. Minds will no doubt differ as to whether that line has been crossed. We find ourselves unable to agree with Dr Skinner’s opinion that Mr Khourey’s reaction was “within the normal range”. Mr Grimmett's observation of him having problems sleeping, being in a heightened emotional state, and quickly becoming increasingly stressed, taken together with Mr Khourey's own account, suggests it was one of marked distress. While the evidence of reduced social or occupational functioning prior to the meeting is somewhat equivocal, for the reasons given this does not exclude a diagnosis of an adjustment disorder.
65. While there can be no doubt that Mr Khourey's condition progressively worsened after the meeting with his CO, we are satisfied on balance that it had developed sometime before that meeting but after his arrival at Puckapunyal.
Causation
66. We find that Mr Khourey’s employment materially contributed to the development of his condition for these reasons. First, there is no evidence of any history of psychiatric illness or any events or occurrences outside the Army that might have contributed to Mr Khourey‘s condition, “adjustment disorder with anxiety and depressed mood”. Second, the weight of medical opinion is that Mr Khourey’s employment materially contributed to the development of his condition. Dr Skinner is alone among the experts to suggest that another cause — namely substance abuse — might explain its development. Third, that finding is consistent with the evidence given by Mr Khourey in these proceedings together with that he gave to Drs Dinnen, Altman and Skinner. Fourth, there is no evidence and — nor was it suggested — that any excluded cause played any role in the development of Mr Khourey‘s condition, “adjustment disorder with anxiety and depressed mood”.
67. We are therefore satisfied that Mr Khourey suffered an injury within the meaning of the Act, in the form of a disease, namely “adjustment disorder with anxiety and depressed mood”.
Did the injury “result in” incapacity for work or impairment?
68. Section 14 of the Act requires that the subject injury “result in” incapacity for work or impairment. It is therefore necessary to determine whether Mr Khourey’s injury — namely, adjustment disorder with anxiety and depressed mood — “resulted in” incapacity for work or impairment. It was argued for the Commission that there is no evidence of any incapacity or impairment or, indeed, of any treatment until the aggravation of his condition.
69. The term “impairment” is defined to mean “the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function”. In our view, Mr Khourey’s condition — “adjustment disorder with anxiety and depressed mood” — clearly “resulted in” damage to, or malfunction of, his mental (or psychological) system or mental function. We are satisfied that that impairment would not have occurred but for Mr Khourey’s condition: s 7(6)(a). We are also satisfied that this impairment had occurred before Mr Khourey’s meeting with his CO. Whether that malfunction or damage was permanent or necessitated treatment is irrelevant for the purpose of s 14 of the Act. While these issues will be relevant to a determination of liability under other sections of the Act (eg. ss 15 or 24), they are not relevant to the determination of the existence of a compensable injury.
70. As we are satisfied that the subject injury “resulted in” impairment, it is not necessary to determine whether it also “resulted in” incapacity for work.
Was there an aggravation of the injury?
71. It is uncontroversial that there was a significant worsening of Mr Khourey’s condition over the course of his time with the Army. It is necessary to consider whether this constituted an “aggravation” within the meaning of the Act and, if so, whether it was the “result of” an excluded cause.
72. The Act defines “disease” to include the “aggravation of any … ailment [suffered by the employee] … that was contributed to in a material degree by the employee’s employment with the Commonwealth”. “Aggravation” is defined to mean “acceleration” or “recurrence”.
73. In Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626, the High Court considered an analogous definition found in New South Wales legislation. It concluded that the common connotation of aggravation and acceleration was the condition had been made “more grave, more grievous or more serious in its effects upon the patient”: at 639. In Casarotto v Australian Postal Commission [1989] FCA 116, Hill J concluded that “aggravation” connotes a disease becoming more severe, while “acceleration” connotes the hastening of the normal underlying disease. An aggravation may therefore occur where the underlying pathology — or, in the case of a psychological injury, the underlying psychopathology — deteriorates or the pace of degeneration is increased.
74. Dr Dinnen believes that Mr Khourey’s psychiatric disorder progressively worsened after onset as a result of the cumulative impact of events that occurred during his time in the Army. In his view, it started off as an acute adjustment disorder but became chronic after about six months.
75. Mr Khourey testified that his symptoms deteriorated as his time in the Army continued. He claimed that on his return from DFCE he was at his “lowest point”, wanted to kill himself and was a “total mental wreck”.
76. It seems to us that by the time he was released from DFCE in June 2002 there had been a significant deterioration in, or acceleration of, Mr Khourey’s condition and that this constitutes an aggravation within the meaning to the Act.
Cause of aggravation
77. The evidence makes plain that a number of factors played a role in the aggravation of Mr Khourey’s condition. These included his perceived isolation from his colleagues; being charged; sentenced and imprisoned; being investigated for the offence of "Unauthorised Discharge [of a firearm]"; and his increasing despair at the prospect of being unable to secure an early discharge. All are clearly employment-related and in our view materially contributed to the aggravation. The Commission contends that some are “excluded causes”, namely the disciplinary action taken after Mr Khourey went AWOL and the refusal of his request for an early discharge. Mr Khourey disagrees.
Disciplinary action
78. Mr Khourey agrees that the Army’s action in charging and sentencing him for being AWOL constitutes “reasonable disciplinary action”. He contends, however, that his treatment in military prison was anything but reasonable, and therefore does not constitute “reasonable disciplinary action”.
79. According to Mr Khourey the staff at the military prison made his life hell by tormenting and humiliating him once it became known that he was an “AWOL case”. He alleged that he was subjected to various incidents of degrading and improper treatment during his confinement in the military prison. These included being forced to comply with the commands of the (minor) son of a staff member and being forced to clean excrement from unflushed toilets immediately after their use by Army staff.
80. On his release from prison Mr Khourey was interviewed by Captain Hawker and invited to make any complaints about his treatment. He told Captain Hawker that he had none and signed a statement to that effect. According to Mr Khourey, he made no complaints at this “march out” interview, and completed a questionnaire to that effect, because he felt “pressured and scared” and was concerned that it might jeopardise his chances of an early release.
81. On 27 June 2002, Ms Donaldson recorded that Mr Khourey had told her that he found DFCE “as expected” and had kept out of trouble. In these proceedings, he said he did not disclose his alleged mistreatment to Ms Donaldson because he was concerned that it would have prolonged any discharge “probably for years”, given the gravity of the allegation.
82. It is argued for Mr Khourey that it is not open to the Commission to now challenge his account given its failure to call anyone to answer it, especially given that the officers who commanded the facility have at all times been known to the Commission. The Commission contends that there is no evidence that Captain Hawker had any knowledge of the alleged mistreatment, and on Mr Khourey’s evidence had been assured he had not been involved.
83. We do not think that the criticism of the Commission for not calling witnesses from the DFCE to contradict Mr Khourey’s evidence is warranted. The events occurred so long ago that it is unlikely that cogent evidence in response could be obtained or corroborated. It would be unfair, in our view, to draw an adverse comment against the Commission on this account.
84. If anything, an inference arises that Mr Khourey’s evidence concerning aspects of his treatment in custody may be a “recent invention”. While his claim that he failed to complain about his treatment at that time because of his fear that the Army might decide to prolong the discharge process as a form of victimisation if he did is not entirely implausible, he made no complaint after being told to show cause or, indeed, after his discharge from the Army. While we accept the overall thrust of Mr Khourey’s evidence that he developed his psychiatric illness in the Army, for the reasons given above, he was not in all respects a reliable witness. We cannot place confidence in this aspect of his evidence.
85. It follows that Mr Khourey’s time in military prison constitutes “reasonable disciplinary action”. We are satisfied that the aggravation of his condition “materially contributed to” or was a “result of” or that action. Accordingly, the aggravation does not constitute an injury within the meaning of the Act. Given this finding, it is not necessary to address whether other events or incidents also constitute an excluded cause.
Orders
The reviewable decision made 8 April 2008 is set aside and in place of that decision the Tribunal decides:
(i) The Commission is liable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of an injury, being a disease, namely “adjustment disorder with anxiety and depressed mood”.
(ii) The Commission is not liable for the aggravation of that injury which occurred on or about June 2002.
I certify that the 85 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton and Dr M E C Thorpe, Member.
Signed: ...................................[SGD]...........................................
AssociateDates of Hearing: 18, 19 February 2010
Date of final submissions: 26 March 2010
Date of Decision: 28 April 2010
Representative for the Applicant: Mr M Vincent
(instructed by Kemp and Co.)
Representative for the Respondent: Mr B Kelly
(instructed by Dibbs Barker)
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