Kirk and Military Rehabilitation and Compensation Commission
[2008] AATA 252
•1 April 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 252
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T 2000/0116
GENERAL ADMINISTRATIVE DIVISION ) Re ROBERT PETER KIRK Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Dr J D Campbell, Member Date1 April 2008
PlaceHobart
Decision The decision under review is affirmed.
................[sgd].........................
Dr J D Campbell Member
CATCHWORDS
MILITARY COMPENSATION - discharge from service on medical grounds - discharge diagnosis at date of discharge being chronic schizophrenia - discharge diagnosis changed to generalised anxiety disorder in March 1999 - generalised anxiety disorder accepted as a war-caused disease and disability pension paid at the Special Rate with the date of effect being 13 May 1997 - claim for compensation for generalised anxiety disorder and aggravation of that disorder - consideration of section 5(10) of the Safety Rehabilitation and Compensation Act 1988 - consideration of section 124 of the Safety Rehabilitation and Compensation Act 1988 - liability to pay compensation under the 1930 Act - decision affirmed.
Commonwealth Employees Compensation Act 1930, sections 4, 9, 10, 16
Compensation (Commonwealth Government Employees) Act 1971
Freedom of Information Act 1982
Safety, Rehabilitation and Compensation Act 1988, sections 5, 124
Veterans’ Entitlements Act 1986, sections 5, 120
Benjamin and Repatriation Commission (2001) 70 ALD 622
Commonwealth v Bourne (1960) 104 CLR 32
Commonwealth v Hornsby (1960) 103 CLR 588
Commonwealth v Rutledge (1964) 111 CLR 1
Commonwealth v Thompson (1960) 104 CLR 48
Fenton v J Thorley & Co Ltd [1903] AC 443
Kavanagh v Commonwealth (1960) 103 CLR 547
McDougall and Comcare [1999] AAT 312
REASONS FOR DECISION
1 April 2008 Dr J D Campbell, Member 1. Mr Kirk is a 62 year old veteran, with a special rate disability pension. Mr Kirk served in the Royal Australian Air Force (RAAF) between 4 February 1963 and 21 March 1967 as an Administrative Clerk. During his service Mr Kirk served in Ubon, Thailand between 26 February 1964 and 28 August 1964. Mr Kirk was discharged from the service on 21 March 1969. The reason for his discharge was that Mr Kirk was considered medically unfit for further service. The diagnosis of the disability which caused Mr Kirk to be considered medically unfit at the time of his discharge was chronic schizophrenia. On 2 March 1999, pursuant to the Freedom of Information Act 1982, the Defence Department amended the diagnosis of chronic schizophrenia made at the time of discharge, to one of generalised anxiety disorder.
2. On 17 March 1998 the Repatriation Commission, pursuant to a section 31(8) review (Veterans’ Entitlements Act 1986) (“the VE Act”), determined that Mr Kirk’s generalised anxiety disorder was a war-caused disease, that Mr Kirk was permanently unfit for remunerative work of eight or more hours per week “solely as a result of his service related incapacity” and that he was entitled to the payment of a disability pension at the special rate, with the date of effect being 13 May 1997.
3. Mr Kirk lodged a claim for compensation for his condition of generalised anxiety disorder on 14 April 2000 in which he described his condition as arising from “excessive exposure to warring forces that lurked nearby”. I also note the comment (handwritten) on the top of the claim form (T77) “cause = incorrect diagnosis at discharge”. On 26 May 2000 the claim was disallowed by a Delegate on the grounds that the condition of generalised anxiety disorder arose during a period of operational service. In such circumstances, the Delegate with the knowledge that Mr Kirk was receiving a pension under the Veterans’ Entitlements Act 1986, considered that section 5(10) of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”) did not permit payment of compensation under that Act. Further the Delegate considered Mr Kirk’s further service (peacetime) in the RAAF and concluded that there was no evidence that Mr Kirk’s condition (generalised anxiety disorder) was due to the nature of his peacetime service in the RAAF. Finally, in addressing Mr Kirk’s concerns that a wrong diagnosis at discharge had had a significant and negative impact on his life for the last 30 years, the Delegate concluded that the legislation that applies to Mr Kirk’s situation precluded him from taking such issues into account. The Delegate also was particular in suggesting to Mr Kirk that he seek a review of his invalidity classification from the Defence Force and Retirement Benefits Board (now incorporated within Comsuper).
4. On 11 August 2000 the decision of the Delegate was affirmed by the Director of Military Compensation and Rehabilitation. It is this decision which is addressed in this appeal.
5. The relevant issues in this matter are: -
(a) On the balance of probabilities, did Mr Kirk suffer from any psychiatric conditions at the time of discharge in 1967, and if so what were they?
(b) On the balance of probabilities, at the time of hearing (December 2007), did Mr Kirk suffer from any psychiatric conditions, and if so, what were they?
(c) Are any of Mr Kirk’s claimed psychiatric conditions found continuing to exist excluded from consideration under the Safety Rehabilitation and Compensation Act 1988, pursuant to section 5(10) of that Act?
(d) In the circumstances that section 5(10) of the Safety Rehabilitation and Compensation Act 1988 does not operate to exclude consideration of claims for compensation for death, injury and/or incapacity arising from a period of service, for which a pension payment entitlement is not available under the Veterans Entitlement Act 1986, is Mr Kirk entitled to:
(i) Payment of compensation under the Commonwealth Employees Compensation Act 1930 (“the 1930 Act”)?
(e) Is Mr Kirk entitled to payment of compensation in relation to this claim?
6. For the reasons stated later in this decision, I find that:
(a) The diagnosis for Mr Kirk’s psychiatric disorder at the time of discharge in 1967 was:
(1) Generalised Anxiety Disorder
(2) Personality disorder – Not otherwise specified
(b) The diagnosis for Mr Kirk’s current psychiatric disorder is the same as nominated in (a).
(c)(i) With the generalised anxiety disorder having been accepted as a war-caused disease and a disability pension paid at the special rate, any consideration of compensation for injuries and/or (diseases occasioned during the period of operational service is precluded, pursuant to the exclusion clause detailed in section 5(10) of the SRC Act 1988.
(ii) Aggravation of the generalised anxiety disorder arising during the periods of non eligible service in this matter is not excluded by the operation of section 5(10), nor would a claim for personality disorder, other than during the period of operational service be excluded by the operation of section 5(10).
(d) Mr Kirk is not entitled to be paid compensation for the two aggravations of his generalised anxiety disorder or his personality disorder pursuant to section 10 of the 1930 Act.
(e) Mr Kirk’s claim for compensation under the SRC Act fails, in that pursuant to section 124(2) of the SRC Act entitlement to compensation exists under the SRC Act only where compensation is payable under the 1930 Act.
(f) The decision under review is affirmed.
BACKGROUND:
7. Mr Kirk described attending his early years of school at Queenstown prior to the family returning to live in the family owned hotel in Hobart. Mr Kirk stated that he left school (Ogilvie High School) at age 16, in his pre-matriculation year. Mr Kirk described his schooling years as enjoyable, beneficial and tedious – a time, in which he participated in many aspects, enjoyed interaction with many acquaintances, with no particular close friends and apart from a smoking episode, enjoyed good relationships with his teachers.
8. Mr Kirk detailed his family environment, and in particular his father, whom he much respected, considering him (the father) to be very studious, very intelligent and regimental in carrying through various activities. He described feeling much saddened when at the age of eight, his father died, leaving him to be the man of the house. While his father was alive, he held his mother in high esteem and while continuing to live in the hotel, he had difficulty in understanding and accepting his mother’s liaisons with other men over the ensuing years.
9. Mr Kirk detailed an episode at about age 16, when he and some other friends were involved in a car accident after they had been drinking. He was admitted to hospital unconscious and remained in hospital for some seven to ten days.
10. Mr Kirk stated that he commenced drinking alcohol socially at about age 15 to 16; drank regularly when he joined the service to the extent of two to three beers a day. Mr Kirk stated that he increased noticeably his drinking habit when in Ubon, Thailand, when he would get drunk four or five times a week, consuming up to a dozen bottles of beer at a time, although on occasions consuming whisky. On return to Australia Mr Kirk stated that he continued to drink beer, but in the end drank port and or sherry. Mr Kirk stated that he drank the latter because he was having difficulties with his thoughts, sleeping and having nightmares, with such difficulties commencing around late 1964, early 1965. Mr Kirk stated that in mid 1965 he attended a doctor, who made a diagnosis of anxiety neurosis. As a consequence Mr Kirk stated that he took a good look at himself, decided to try to become an officer and in so doing gave up smoking and alcohol. Mr Kirk stated that he abstained from alcohol until after he left the service in 1967, when he again commenced drinking a few drinks to help him relax and be less worrisome. Again at age 32, Mr Kirk stated that he gave up smoking and drinking alcohol, and apart from an occasional drink at a social occasion this has remained the situation. Mr Kirk denied any association with drug taking when in Ubon or in Australia upon his return.
11. After leaving school, Mr Kirk stated that he worked in the Post Office in the Telegram Office for six months, prior to joining the Air Force in 1963. Mr Kirk stated that his initial posting was to recruit training at Wagga, followed by a posting as an Administration Clerk to 2 Stores Depot at Regents Park. While at Regents Park, Mr Kirk stated that on a number of occasions he had detachment to other units. Mr Kirk believed he earn respect for his diligence and devotion to duty and a degree of acceptance as he was given extra responsibility and more challenging assignments above his rank.
12. Mr Kirk stated that he spent about three years at the Regents Park unit, during which he was detached to Ubon for a period of six months commencing 28 February 1964. Mr Kirk considered the Ubon Base to be primitive, isolated and a lonely place, with his duties including periodic guard duty involving patrolling around the Australian aircraft. Mr Kirk stated that he started to drink heavily; that he had difficulty with the local language; that he became focussed on his work activities; that he experienced resentment from his supervising sergeant because of Mr Kirk’s incompetence or lack of knowledge in the execution of his duties; and that such conflict with his sergeant continued as he endeavoured to learn the regulations and quoted them back to the sergeant. Mr Kirk stated that he felt persecuted, as he had only been in the Air Force for some 12 months and that, in that time he had experienced a number of detachments from his present unit. Apart from his work situation, Mr Kirk stated that he felt stressed as a result of the noise of the aircraft and of the distant bombs exploding, as well as the heat of the situation, the attitude of the Americans and the existence of a large fuel depot at the base.
13. On returning to Australia in late August 1964, thirty days leave were spent in Tasmania with Mr Kirk returning to and remaining on duty at Regents Park, until posted to 11 Squadron at Richmond in May/June 1966. Mr Kirk stated that he applied for a commission in the Army in April 1966, underwent a psychological assessment in Sydney and attended a selection committee at Watson’s Bay. Mr Kirk stated that his application was not successful.
14. Mr Kirk stated that in June 1966 he was experiencing stress, tension and anxiety arising from reflections of his service in Ubon and consequences thereof. Mr Kirk stated that such symptoms had been plaguing and annoying him since his return from Ubon, with such memories being dampened by his intake of alcohol after his return. Mr Kirk stated that while disappointed in not securing a commission, and having given up the alcohol he found he was getting very anxious, very worried, stirred up and all wound up. It was such symptomatology that Mr Kirk believes led to his admission to 3 RAAF Hospital in Richmond on 27 June 1966, where he remained for 10 days and after four days on sick leave returned to the stores Unit at Regents Park.
15. Mr Kirk stated that he was next posted to No 11 Squadron Richmond as a Senior Aircraftsman, having completed an examination for such after returning from Ubon. Mr Kirk stated that he worked in the orderly room and there was a conflict between him and the supervising sergeant, with Mr Kirk believing that the sergeant’s narrow experience led to him being criticised for his professionalism in the execution of his duties, as he was doing everything by the book. Mr Kirk believed the sergeant was not appreciative of his expertise, while in time he considered that things were being done in a very lackadaisical manner. Mr Kirk stated that the friction continued to build, with he, in his view, being continually demeaned for doing things right all the time.
16. Mr Kirk stated that he was reported to the squadron adjutant with the latter informing Mr Kirk that he must change his ways; Mr Kirk believes as a result of this occasion, the adjutant took a dislike to him. Mr Kirk said that he continued to undertake his duties over the next five weeks, but by early September 1966 he was forced, because of feeling increasing stress and strain to seek medical advice. The medical officer (Flight Lieutenant H Dyer) referred him for psychiatric appraisal to Dr Ellard, because of his increasing difficulties with his section commander, however Mr Kirk was hospitalised for 13 days at 3 RAAF Hospital because of a lumbar disc problem.
17. Following the period of hospital assessment and treatment with Dr Ellard, Mr Kirk stated that he continued to undertake his normal duties (recommended light duties with no responsibility) over the next two months, prior to being posted to Headquarters, Operational Command at Penrith, with a detachment to occur three weeks later, to Da Nang in South Vietnam. Three days prior to his detachment posting to Do Nang Mr Kirk stated that he received a letter from the Department of Air Force stating that he was no longer classified well enough or healthy enough to stay in the Air Force and that he would be posted back to the Richmond Base Squadron for processing for discharge. Mr Kirk stated that at no stage prior to receiving the letter referred to, had he been given any indication of the intention to discharge him on medical grounds from the service.
18. As a consequence of his concerns for his medical discharge, Mr Kirk stated that arrangements were made for him to see Dr Ellard on 28 February 1967, who explained to him his condition in terms of an emotional disorder, which Mr Kirk accepted. Mr Kirk stated that he was discharged on 21 March 1967, with no arrangements having been made for his further care. Mr Kirk stated that he returned to Hobart some three to four weeks after discharge.
consideration and findings:
19. I observe that Mr Kirk has for many years focussed his every endeavour on the issues before the Tribunal. I observe that he has had to tell his story many times over many years and amongst others to many psychiatrists. It is therefore not surprising, given Mr Kirk’s particular intellect and attention to detail that Mr Kirk has an impressive knowledge about both his personal circumstances and the issues to be explored in the conduct of this matter.
20. With such having been stated, I believe that Mr Kirk enjoyed the opportunity to tell the factual circumstances of this matter as he believed them to be. I consider that Mr Kirk in all the circumstances of this matter answered questions asked of him honestly, albeit with some difficulty as to particular accuracy of dates and events many years past. Further I observed that at times, and particularly in cross-examination, Mr Kirk would often indirectly address the particular question asked, but prefer to answer by way of what to others would appear a less than relevant dialogue. Such responses, I believe were responses by Mr Kirk to ensure that the historical overview be consistent, with the beliefs and memories structured in his mindset.
psychiatric condition at discharge
21. An examination of Mr Kirk’s confidential personal Air Force records is detailed as stating that Mr Kirk had a satisfactory level of performance in his duties for the years 1964, 1965 and 1966. Further such records did not detail any record of conflict of opinion between the member’s section commanders and commanding officers. Further it was noted that there was no record of conflict between Mr Kirk and the adjutant of No 11 Squadron (T40).
22. An examination of Mr Kirk’s service medical records (Exhibit R5) detail that Mr Kirk was:
·subject to normal medical enlistment procedures which were satisfactorily completed in October 1962;
·subject to and satisfactorily completed a medical examination for tropical posting on 6 February 1964;
·subject to and satisfactorily completed a medical examination and psychological assessment for army officer training on 7 April 1966;
·attended for medical attention six times in the last six months of 1963 for physical complaints, while in the prior five months he attended for physical complaints on five occasions while in Ubon, Mr Kirk attended six times over the six months period for conditions of respiratory tract infection, left chest pain (twice), urethral discharge and skin rash;
·after returning to Australia from Ubon, attended for medical attention involving conjunctivitis, urinary frequency, urethral discharge and rectal bleeding over the four month period to the end of 1964;
·a record of one attendance on 30 June 1965 for what is recorded as mild anxiety neurosis arising from worries over a hire purchase agreement for a car; and
·attended for treatment of mild epitaxis (January 1966), conjunctivitis (March 1966), abdominal pain, respiratory tract infection and painful right patella following a fall while ice skating some two weeks earlier (admitted to 3 RAAF Hospital on 27 June 1966 and discharged 7 July 1966 with a diagnosis of viral infection), diarrhoea (September 1966), gradual development of lumbar back pain (November 1966), nightmares (December 1966), bizarre symptoms left leg and abdomen (January 1967), and non productive cough (March 1967).
23. On 29 August 1966, Mr Kirk is recorded as presenting with complaints of colicky abdominal pain for a few months. The attending doctor (Flight Lieutenant Dyer) noted “says he has terrible nerves” and stated “has psychological problems”, should “see psychiatrist” and makes a provisional diagnosis of “psychosomatic? Schizophrenia”.
24. Mr Kirk attended Dr Ellard (consultant psychiatrist) on 5 September 1966. Dr Ellard records a history which includes anxiety symptoms for plus or minus six months, many psychogenic symptoms, mostly hypochondriacial. Dr Ellard records a history of many childhood upsets, that his parents fought, the hard times he had since his father died when he was nine years old , that he worried a lot as a child and worries (at time of consultation) about everything (fiancé, family, career) as well as having problems with his section commander.
25. Dr Ellard, detailed the following point summary:
Rather odd young man
Peculiar hypochondriasis
Pan anxiety
Widespread somatic discomfort
Phobias
Occasional depression
Further Dr Ellard stated “I am not sure, but a diagnosis of pseudo-neurotic schizophrenia may be in order”. Dr Ellard prescribed Melleril 25mgs four times a day and further commented “will need some thought”.
26. Dr Ellard reviewed Mr Kirk on 4 October 1966. Dr Ellard reports that Mr Kirk gets depressed, fed up with everything (job, home, noise), needs peace and quiet, and when he has a day away he feels OK. Dr Ellard changed the medication to Tryptanol 25 mgs two times a day as the Melleril did not seem to help after a while. Dr Ellard considered that Mr Kirk “does not stand far from psychiatric illness… it seems better to let the situation unfold gradually”.
27. Dr Ellard records after a further review on 13 December 1966 that Mr Kirk be given further rest and reassurance, changed his medication to Valium - two tablets four times a day, that his provisional diagnosis was pseudo-neurotic schizophrenia and that Mr Kirk was fit for duties with no responsibility.
28. On 5 January 1967 an unsigned confidential report for medical officer was completed by an administrative officer. In this report Mr Kirk is described as unsatisfactory and unreliable in the discharge of his duties, “very much a lone wolf”, and “sulks and whinges when disciplined”. The author of the report (Exhibit R6) commented that Mr Kirk:
… appears to have occasional flashes of normality, but unfortunately they are out weighed by his long periods of vagueness, dullness and lackadaisical melancholy. He is unhappy in his employment in a flying squadron and if medical opinion considers him fit for retention in the service, it is recommended that he be employed at a depot – far removed from No 11 SQN.
29. In a further review on 10 January 1967, Dr Ellard noted the report referred to in the previous paragraph, Mr Kirk’s complaint that loud noise, including aircraft noise scares him and Mr Kirk’s history of a motor vehicle accident in his final year of schooling, with Mr Kirk being unconscious for seven days. Dr Ellard opined that the administrative officer’s report “indicates very considerable personality disturbance and much inefficiency, which is in accord with ones, own feeling that he has a low grade psychotic illness”. Dr Ellard defined a provisional diagnosis of chronic schizophrenia, suggested Mr Kirk was medically unfit for service and doubted that his service has anything to do with his illness.
30. In a medical board report dated 25 January 1967, the board, in noting that Mr Kirk was due for posting to the Headquarters Operational Command on 6 February 1967, with detachment to Vietnam on 15 February 1967, found that Mr Kirk was unfit for service because of his medical disability of chronic schizophrenia, that he had a minimal disability and that he was fit to return to work under medical supervision at 11 Squadron. The board’s finding was confirmed on 14 February 1967.
31. In a further consultation on 28 February 1967, Dr Ellard (Exhibit R5) details that he had a long talk with Mr Kirk and
…explained the nature (but not the name) of his disability to him. I have explained in terms of an emotional disorder due to childhood difficulties manifesting itself with a heightened level of anxiety and with peculiar bodily symptoms…
32. Mr Kirk was discharged on 21 March 1967 and in June 1967 was referred to Dr Pargiter, consultant psychiatrist. In a report dated 14 June 1967 (T6), Dr Pargiter described Mr Kirk as telling him of a normal early development, happy childhood with a good, secure and cheerful home atmosphere. Dr Pargiter records Mr Kirk’s educational history, sexual history, post service employment activities and the circumstances of his marriage. Dr Pargiter records Mr Kirk as finding it difficult to adjust as he frequently changed units in the Air Force, and that he tried to fit in, but with each change he had difficulty and he always seemed to do the wrong thing. Dr Pargiter described Mr Kirk as stating to feeling unstable, lacking in confidence, isolated and unable to establish any lasting friendships, because of the frequent moves.
33. Dr Pargiter noted that while Mr Kirk had a good vocabulary, “his speech was stilted, pretentious and grandiloquent, with much unnecessary verbiage, unnecessary detail” and unrealistic superlatives. Dr Pargiter considered his thoughts not particularly logical, his grasp of the situation not always good and that he would answer a question with the “why” rather than the “what”. Dr Pargiter noted that there was no very obvious disorder of affect.
34. Dr Pargiter never completed his examination, because he wanted a further appointment with Mr Kirk, his wife and his mother – an event that never happened. Despite this, Dr Pargiter felt that he had sufficient evidence to confirm a diagnosis of schizophrenia, while commenting that there are some pointers in his history suggesting some irritability and erratic behaviour prior to service.
35. In a formulation statement made on 6 December 1967 by the Royal Derwent Hospital (T14), Mr Kirk is noted to have been admitted on 23 November 1967; that he had been discharged from the RAAF in 1967 with a reported diagnosis of schizophrenia, that he had persecutory ideas about his treatment in the RAAF, his medical discharge, his failure to get repatriation benefits and his failure to get membership of the RSL. It noted that Mr Kirk attributed his illness (“nerves”) to recurrent non-specific urethritis and a personal isolation due to frequent transfers during his service. It is noted that Mr Kirk had been treated with electroconvulsive therapy at Clare House and that his discharge was for possible hospital follow up in Victoria. The discharge diagnosis was paranoid schizophrenia with neurotic patterns.
36. In a report dated 20 July 1978, (T32), Dr Thacore, acting psychiatrist superintendent, detailed Mr Kirk being hospitalised at the Ballarat Psychiatric Hospital from 17 to 20 November 1967. Dr Thacore noted Mr Kirk’s history of head injury at age 16, treatment in a mental hospital in Tasmania, and his discharge from the RAAF because of schizophrenia. Mr Kirk’s clinical picture was recorded as: gave very vague answers to questions, flat affect, paranoid ideas towards the RAAF and the Repatriation Department, bizarre descriptions of stomach pains and no admission of any auditory hallucinations. Dr Thacore noted that Mr Kirk was diagnosed as suffering from chronic undifferentiated schizophrenia, and was discharged with an outpatient appointment which he did not keep.
37. On 22 February 1968 Dr Banks (Geelong) in a brief note (T18) certified that he had examined Mr Kirk and he found no evidence of organic disease. On 4 March 1968 Dr Banks confirmed in a note (T19), that Mr Kirk had been seen by Dr Fitzpatrick, psychiatrist, and that in view of the referral and his own examination, he opined that Mr Kirk showed no evidence of psychiatric or emotional disease.
38. Dr Sinclair, consultant psychiatrist, in a report dated 1 August 1968 (T21) detailed Mr Kirk’s pre-service history, including the car accident, his service history including the difficulties Mr Kirk experienced with a senior NCO in Ubon (Vietnam nominated) early in his service career and the further unhappiness and conflict with a senior NCO at Richmond. Dr Sinclair records Mr Kirk feeling that the medical board findings of a nervous disorder prevented him from obtaining appropriate employment over time, as evidenced by his post-service employment history.
39. Dr Sinclair stated that there was evidence to suggest Mr Kirk had never made good adjustments within the service, and did not make friends easily. Dr Sinclair stated that it was impossible to say what Mr Kirk was like prior to service, since he was shortly out of school and at the same time his educational record was not good.
40.Dr Sinclair considered that Mr Kirk:
…is not currently schizophrenic but that he may have had some schizophrenic episodes, although I have some doubt as to this. He is a schizoid personality and probably his difficulty interpersonally in the service is related to this. I have no evidence that this man suffered any stress peculiar to the war situation which could have resulted in his present personality difficulties.
41. Dr Sinclair concluded that Mr Kirk’s diagnosis was that of schizoid personality, possible insidious chronic schizophrenia. Dr Sinclair considered Mr Kirk’s “paranoid attitude may have been triggered off by his difficulties with his senior NCO”, with such difficulties being regarded as incidental to any service condition. Dr Sinclair considered that Mr Kirk’s paranoid attitude would be ongoing and that there was no aspect of the employment which could aggravate or cause a schizoid personality or schizophrenia.
42. In a report dated 12 July 1977 (T30), Dr Burges Watson, psychiatrist, stated that he doubted very much whether any medical board would accept that chronic schizophrenia was an attributable illness, although of course severe stress in a military situation might be a precipitant. As regards to the question of Mr Kirk clearing his name in relation to his discharge from the service, Dr Burges Watson stated that he would be reluctant to pass any comment without much more detailed information.
43. In July 1978 Dr Pitt, Mr Kirk’s attending general practitioner, referred Mr Kirk to the Royal Hobart Hospital for admission and treatment. In hospital clinical notes (Exhibit R4), Dr Baily, psychiatric registrar, notes that the referral letter, while containing insufficient information, contained a request from a solicitor to assist in relation to a stealing offence by Mr Kirk on 30 June 1978. Dr Baily records in the notes that “his girlfriend often tells him that he is out of touch with reality” with Mr Kirk being recorded as stating “at times I believe I am superior to every other human being; and at other times I feel so substandard and so negativistic. I have never had love in my life”.
44.In a report to the solicitors on 31 July 1978 (T33), Dr Baily concluded that
…examination on two occasions … did not reveal any clearcut [sic] and definite signs of a schizophrenic illness although his personality assessment did reveal several certain idiosyncratic behaviour, viz. trying to convince me he was not “mad or crazy”; voicing some angry and hostile feelings towards his past employers and overconfidence in his own ability to work as a crane operator or driving instructor.
45. In summary, Dr Baily concluded that “this man presently exhibits no florid signs of a serious mental disease and does not need any treatment”. It is to be noted that Dr Baily made his report after considering hospital reports at which Mr Kirk had received treatment post his discharge.
46. In a report dated 15 November 1979 (T50), Dr Cunningham Dax, consultant psychiatrist, noted that he had seen Mr Kirk on a number of occasions since the end of August 1979 and that since the first consultation he had improved considerably with settled employment and without medication.
47. Dr Cunningham Dax noted that Mr Kirk:
…still shows symptoms which would fit with the diagnosis of pseudo-neurotic schizophrenia. These consist of anxiety associated with a variety of subjects, many neurotic symptoms of different kinds, sexual worries and mild psychotic experiences.
48.Dr Cunningham Dax also stated that:
His main trouble is, however, that he has a definite and marked obsessional personality. He is meticulous, tidy, clean and rigid in outlook. He is overconscientious, perfectionistic, worries over trifles, takes himself seriously and sets himself unachievable standards. He is a ruminative person who, having a thought on his mind, cannot remove it without increasing his tension.
He becomes depressed when overloaded, has thoughts of unworthiness and self -blame and has had acute anxiety and feelings of impending disaster.
49. Dr Cunningham Dax considered that Mr Kirk’s rapid shifting of postings in the Air Force and his lack of supervision in Ubon, “seems to have done more than raise his anxiety and to accentuate his obsessional make-up and behaviour”. Further, Dr Cunningham Dax considered the labelling of Mr Kirk with a diagnosis of chronic schizophrenia was very questionable, having reviewed the relevant Air Force medical records. Dr Cunningham Dax considered Mr Kirk had a genuine grievance, which affected his mental health, since it had become an obsession which had taken precedence over the other matters in his life.
50. Dr Cunningham Dax, having analysed both his service medical records and the opinions by Dr Pargiter and Dr Thacore, was concerned that no report had mentioned Mr Kirk’s obsessional personality, that Mr Kirk had suffered from pseudo-neurotic schizophrenia since mid-1966, that such patients as a rule do not deteriorate into chronic schizophrenic psychoses and that he was unable to agree with a diagnosis of chronic schizophrenia, as made by Dr Ellard.
51. Dr Cunningham Dax considered that Mr Kirk’s psychiatric condition was pseudo-neurotic schizophrenia. He believed that Mr Kirk’s service between 7 April 1966 and 29 August 1966 was associated with the onset or aggravation of the condition, with the two matters contributing being his failure to obtain a commission and his disturbed relationships with his section commander at No 11 Squadron.
52. In a report dated 22 April 1980 (T58), Dr Cunningham Dax, having reviewed the report of Dr Sinclair for the first time, concludes that:
It is manifestly absurd that a condition of no more than a few weeks duration should be diagnosed as “chronic schizophrenia”.
Since this diagnosis of “chronic schizophrenia” was given on Mr Kirk’s discharge certificate, it has been a handicap in his life and has interfered with his opportunities for obtaining employment.
…
In summary it appears that Mr Kirk was misdiagnosed, inadequately treated and incorrectly labelled.
53. In a report dated 6 June 1991 (Exhibit R9), Dr Lowenstern, a consultant psychiatrist in the RAAF Reserve, concluded that a diagnosis of pseudo-neurotic schizophrenia was consistent with Mr Kirk’s presentation; that the decision to discharge him from the service on medical grounds was correct; that the diagnosis would be different if the presentation occurred now, with the diagnosis coming under the grouping “Personality Disorder/ Dysfunction” using the current classification. Dr Lowenstern notes that his opinions are formed after access to Mr Kirk’s service medical records and what was contained within.
54. In a report dated 20 June 1997 (Exhibit R11), Dr McCafferty, consultant psychiatrist, records Mr Kirk attending on 17 May 1997, when he presented in a disinhibited state with pressure of speech and elevated mood, consistent with a hypomanic state.
55. In a letter dated 28 July 1997, (Exhibit R11), Dr Cannon, Mr Kirk’s treating General Practitioner since 1993, considered Mr Kirk to have a “chronic and disabling mental illness of uncertain nature” that arose during his RAAF service, has required regular psychiatric care and medication, is not improving and renders him unfit for work.
56. In an opinion report to Department of Veterans Affairs on 14 October 1997 (T69), Dr Isles, consultant psychiatrist, in noting that he had seen Mr Kirk on several occasions, considered that Mr Kirk first began to experience emotional tension was when he was serving in Ubon. Further he noted that by the time he returned to Australia he was highly obsessional and experiencing attacks of chronic anxiety. In such circumstances Dr Isles found it easy to understand how an obsessive component and ritualistic behaviour patterns would have added to the psychotic flavour eventually alluded to the concluding diagnosis at time of discharge from the service. Dr Isles notes that the correctness of the diagnosis has dominated the medical argument since, so that most opinion has failed to take into account the devastating effect wrought upon Mr Kirk as a result of the diagnosis which was made.
57. In summary opinion, Dr Isles considered that in latter years Mr Kirk had been suffering from an iatrogenic condition, which had remained unrecognised and persisted as an incurable and psychologically crippling state. While such is an issue in the management of Mr Kirk’s case, Dr Isles, concluded that the extent to which it is a factor in a claim for compensation should be addressed elsewhere. On the other hand, Dr Isles expressed no doubt that Mr Kirk’s original anxiety state arose out of his service in Ubon.
58. In a further report dated 20 February 1998 (T70), Dr Isles concluded that Mr Kirk does not have the capacity to go or hold down any sort of remunerated work in the foreseeable future.
59. In a report to Dr Cannon, dated 18 September 1998 (Exhibit R11), Dr Isles noted that Mr Kirk is continued to experience panic attacks to which he responded with extravagant and rather bizarre behaviour. Dr Isles cautioned that with the crusade for justice against the Air Force no longer an issue to be maintained (special rate disability pension granted in 1998), Mr Kirk had to deal with problems which exist within his family, including difficulties with his sons.
60. Within the Clinical Records of the Cambridge Road Medical Centre (Exhibit R11), I note the following:
·Report of Dr Wilson dated 10 August 1993, psychiatrist, who considered Mr Kirk to have a personality disorder and not suffering from a major mental illness. Dr Wilson had seen Mr Kirk as both an inpatient in the Royal Hobart Hospital and thereafter as an outpatient. Despite noting that Mr Kirk had variable anxiety symptoms, Dr Wilson considered that Mr Kirk need not be on sickness benefits.
·Discharge summary from the Hobart Clinic dated 6 October 1998 signed by Dr RA Pargiter, consultant in charge, noted a diagnosis on discharge as:
Axis I Situational Crisis (Adjustment Disorder) with mixed features of anxiety and conduct disorder.
Axis II Personality disorder (Principal diagnosis)
·Discharge summary from the Hobart Clinic dated 22 March 1999 signed by Dr RA Pargiter, noted the diagnosis on discharge as:
Axis I Parent/child relationship problem
Axis II Mixed personality disorder (Principal diagnosis)
·Discharged formulation from the St Helens Private Hospital 15 February 2000 signed by Dr Isles, Treating Psychiatrist noted a diagnosis as:
Axis I Anxiety disorder
Axis II Personality disorder (Obsessive)
61. In a report dated 25 August 2001 (Exhibit R8), Dr Rose, consultant psychiatrist, detailed Mr Kirk’s social, educational, family, marital, employment and clinical history. In the mental health examination of Mr Kirk, Dr Rose noted in part:
He was self-absorbed, obsessional and narcissistic. He spoke in a flat, unemotional, overdetailed manner and was markedly grandiose, giving the impression that he believed that other people (including women) were there merely to do his bidding. His idea of his own importance was inflated. There was little, if any, warmth of personality.
62.Dr Rose in his summary and assessment concluded:
The overall impression is one of a man with a longstanding Personality Disorder with features of obsession and narcissism. Due to his long history of gross infidelity, accompanied by grandiosity, one is almost inclined to think that there may be antisocial personality factors. At any rate, he appears to have a Mixed Personality Disorder.
…
There is no doubt that, in addition to the obsessional problems, Mr Kirk has intermittently suffered from anxiety, depression and mood swings… certainly there have been features of Depression and Anxiety Disorder over many years. I consider these features secondary to the presence of a personality disorder.
…
I am aware that both Dr Ellard and Dr Thacore considered that Mr Kirk had been suffering from schizophrenia; however, there is no evidence of this.
63. In particular I note Dr Rose’s diagnosis of Mr Kirk’s current mental health problems presenting to DSM IV:
Axis IGeneralised Anxiety Disorder with possible Mild Bipolar Affective Disorder
Axis II Undifferentiated Personality Disorder with Obsessional and Narcissistic Features
64.Dr Rose in his report stated the following opinions:
·Mr Kirk’s diagnosis in 1967 would have been the same as in 2001, had the criteria for psychiatric diagnosis used in 2001 been used.
·No evidence that Mr Kirk’s present condition had been caused by his employment as clerk during his service (section 10 of the Compensation Act 1930 considered).
·That there was a pre-existing condition of personality disorder and on the balance of probabilities, the nature of Mr Kirk’s employment does not have a tendency to cause his condition.
·That Mr Kirk is presently not fit for work as a clerk, partly because of his anxiety and depression, but also because of multiple other medical conditions.
·That Mr Kirk’s disabilities were not due to his service and that they will continue indefinitely.
65. On 15 November 2007 Dr Rose re-examined Mr Kirk and in a report (Exhibit R2) detailed the documentation he had access to, including the report of Dr Sheehan of 3 July 2006 and of Dr Pridmore dated 15 March 2004, both doctors being psychiatrists. In the report Dr Rose:
·Confirmed the diagnosis made in his earlier report with Mr Kirk not providing any further history or details which would cause him to alter his opinion, namely that the appropriate diagnosis is now and was in 1967, when using DMS IV Diagnostic Criteria:
Axis I Generalised Anxiety Disorder
Axis II Personality Disorder not otherwise specified
·That Mr Kirk does not have and never has had chronic schizophrenia.
·Absolutely no evidence to support Dr Sheehan’s diagnosis that Mr Kirk is suffering from post traumatic stress disorder, as he was never exposed to an essential diagnostic criteria of being exposed to a severe stressor (traumatic event) as well as no convincing history of the traumatic event being re-experienced, as well as no significant history of avoidance of stimuli with Mr Kirk’s symptoms being often present in cases of generalised anxiety disorder.
·That he agreed with Dr Pridmore in his report of 15 March 2004 that Mr Kirk continues to have neurotic and personality difficulties.
·That Mr Kirk remains incapacitated for work because of considerable chronic anxiety.
·The diagnosis of chronic schizophrenia made in 1967 would have had a profound negative effect on his generalised anxiety disorder, with the latter disorder aggravated by an incorrect diagnosis of chronic schizophrenia in 1967.
·That it would have been appropriate for a diagnosis of pseudo-neurotic schizophrenia to have been made in 1967.
66. In a report to the Department of Veterans’ Affairs dated 3 July 2006, (Exhibit R10) Dr Sheehan, consultant psychiatrist, considered poetry that Mr Kirk had written, and other spontaneous reminiscing by Mr Kirk from time to time about both his time before and during service (particularly in Asia) and believed that Mr Kirk’s psychology had changed immensely. Dr Sheehan notes that he gave the Department of Veterans’ Affairs publication on post traumatic stress disorder (PTSD) to Mr Kirk to read. Dr Sheehan further notes Mr Kirk moving to reassess his own total life situation because of the obvious sympathy between the clinical description of PTSD and his own inner mental life. Dr Sheehan concluded that the clinical picture is not a simple one, with the two processes (PTSD and the inevitable consequence of the misdiagnosis) running concurrently.
67. In addressing the question of what was Mr Kirk’s diagnosis at the time of his discharge from service in 1967, I have been particular in detailing Mr Kirk’s description of his pre-service and service experience, the content of the relevant service records that are before me and the relevant comments of many mostly psychiatric opinions, that have been concerned with this case over forty years. I have also considered Mr Kirk’s responses in cross-examination on matters pertaining to his pre-service, service and post-service circumstances.
68. I note that the diagnosis notated and confirmed on Mr Kirk’s discharge medical board was chronic schizophrenia. Counsel for the Respondent contended that it was still the correct diagnosis, and in so doing relied upon the opinions of Dr Ellard, the final medical board opinion and the later opinions of Dr Pargiter, Dr Thacore and the clinical records from the Royal Derwent Hospital in late 1967. Further, Counsel relied in part upon Dr Sinclair’s report and also Mr Kirk’s continued reference to the chronic schizophrenic condition when seeking treatment and/or applying for compensation many years later. Further Counsel sought to distinguish decisions made as to diagnosis under the Freedom of Information Act 1982 and/or the Veterans’ Entitlements Act 1986 as involving differing standards of proof as well as different considerations.
69. Further I acknowledge that over the 40 years involved in this matter, diagnostic classification and criteria for diagnosis of mental health diseases has changed. In this regard much assistance was given in some of the psychiatric opinions (Drs Lowenstern, Cunningham Dax, Isles, Rose) as to explaining current terminology and terminology and practices current in the nineteen-sixties.
70. Nevertheless the psychiatric opinions in this matter particularly and clearly define clinical differences in presentation that allow a diagnosis of chronic schizophrenia to be made as opposed to a diagnosis of pseudo-neurotic schizophrenia, with both conditions following discrete clinical presentation and causes particularly when the word chronic is affixed to schizophrenia.
71. I also note that Dr Ellard considered in late 1966 that Mr Kirk’s provisional diagnosis was pseudo-neurotic schizophrenia. I further note that a number of later psychiatric opinions would consider such a diagnosis consistent with their understanding of Mr Kirk’s psychiatric conditions at that time, although with current diagnostic criteria and classification the diagnostic nomenclative would be different. In this regard I note the opinions of Drs Cunningham Dax and Rose, with Dr Lowerstern being particular in confirming a diagnosis of chronic schizophrenia (pseudo-neurotic).
72. I note that Dr Ellard only ever made a provisional diagnosis of chronic schizophrenia and this was made after reviewing an unsigned and unnamed report from an Administrative Officer of 11 Squadron written on 5 January 1967. Regardless, the Medical Board determined the diagnosis of Mr Kirk’s disability to be chronic schizophrenia with the totality of the documentation in reaching such a decision having been listed earlier in this decision. I further note that the Medical Board considered that Mr Kirk had minimal disability and was fit to continue working under medical supervision. In so stating and after a careful appraisal of the service medical records, I see no evidence of the medical staff acting other than in good faith. Nevertheless the absence of clinical detail in the service records is a difficulty, with the notes of Dr Ellard being generally brief and opinion orientated.
73. Nevertheless after careful examination of all the material and on the balance of probabilities, I consider the diagnosis of chronic schizophrenia was not an appropriate diagnosis for Mr Kirk’s condition at that time. In so finding I rely on the opinions of Drs Sinclair, Cunningham Dax, Isles and Rose. While I note that the Respondent relied in part upon the report of Dr Sinclair in 1968 in so far as he mentions that “he may have had some schizophrenic episodes, although I have had some doubt as to this”. Nevertheless Dr Sinclair was particular in concluding that Mr Kirk’s diagnosis was that of schizoid personality, possible insidious chronic schizophrenia.
74. In noting that the Respondent relied on Dr Pargiter’s report of 1967 to assert that a diagnosis of chronic schizophrenia was correct, I note that any opinion given by the doctor was tentative in that he wished to confirm his opinion after a further consultation with Mr Kirk, his mother and his wife. This event never occurred and thus the clinical reasoning behind his tentative opinion was never detailed.
75. While I note that Mr Kirk was diagnosed with chronic schizophrenia at both the Royal Derwent Hospital and the Lakeside Hospital at Ballarat in late 1967, with the later hospital receiving Mr Kirk on transfer from the Royal Derwent Hospital, with presumably a clinical letter accompanying the transfer. It is also evident that during this period that Mr Kirk was specific in detailing the medical reason which led to his discharge from the service. In such circumstances, a careful study of documented symptomatology and clinical reasoning underlying any diagnosis is relevant and in the absence of such little weight can be placed on the diagnostic labels nominated in the brief reports from these two hospitals. In this regard I note the report of Dr Cunningham Dax.
76. Further I note again the report of Dr Lowenstern, which appears to be a report on the service medical records. Further the doctor affirms a diagnosis of chronic schizophrenia (pseudo-neurotic), a diagnosis inconsistent with that of chronic schizophrenia but consistent with the diagnosis made by Drs Sinclair, Cunningham Dax, Isles and Rose, the latter diagnoses receiving in part some clinical affirmation from Drs Baily, Wilson, RA Pargiter (Hobart Clinic) and Pridmore.
77. While I am aware that there is some variations in relation to some events as detailed by Mr Kirk and recorded by the various specialists, such variation, albeit of minor significance could be representative of the time span over which Mr Kirk’s history travels and evolves, the questions asked of Mr Kirk and the answers detailed in the clinical report of the specialist, as opposed to his contemporaneous clinical records and of course Mr Kirk’s clinical condition at the time of the particular consultation. Nevertheless, I am satisfied that there is a body of knowledge in this matter which is relatively consistent and to which the nominated specialists referred to in the previous paragraphs (Dr Lowerstern excepted) have had access to before formulating their opinions.
78. I am also aware that there are some other opinions which I have not canvassed. In this regard I note the report of Dr Burgers Watson and consider it unhelpful as it does address the issue in question. Similarly I find the report of Dr Sheehan less than helpful both from the manner in which he appeared to proceed and his diagnosis of PTSD which emanated from such a process. Further Dr Sheehan failed to nominate clinical detail to support the criteria for such a diagnosis – an issue clearly defined in Dr Rose’s report of 2007.
79. As a consequence of my analysis, I conclude that the diagnosis for Mr Kirk’s psychiatric condition at the time of his discharge in 1967, with such a diagnosis made in conformity with criteria and classification as nominated in DSM IV, to be:
Axis I Generalised Anxiety disorder
Axis II Personality disorder – not otherwise specified
80. In reaching such an outcome, I have placed greater reliance and for the reasons nominated earlier in this decision on the clinical opinions of Drs Sinclair, Cunningham Dax, Isles, Wilson, Baily, Rose and the later reports of Dr Pargiter from the Hobart Clinic. Further I note the report of Dr Lowerstern, which assists in part, while again for the reasons stated previously place lesser and/or little weight on the opinions of Drs Ellard, Pargiter (1967 report), Royal Derwent Hospital and Dr Thacore’s report. Finally I found the report of Dr Sheehan both unusual and not helpful. I note that there are many other psychiatric opinions in this matter which on examination carry the analysis no further.
81. Finally on this issue I would note that the Department of Veterans Affairs in 1998 considered the question of diagnosis. Pursuant to Benjamin and Repatriation Commission (2001) 70 ALD 622 the decision relating to the diagnosis would have to had been made on the grounds of reasonable satisfaction (balance of probabilities) that Mr Kirk was currently suffering (in 1998) from generalised anxiety disorder, before proceeding to consider issues of service causation by way of hypothesis pursuant to section 120(1) and (3) of the Veterans Entitlement Act 1986. Further and more definitively I observe that the Department of Defence would have to have been satisfied on the balance of probabilities before authorisation the change in 1999 pursuant to the Freedom of Information Act 1982 of Mr Kirk’s discharge diagnosis in 1967 to one of generalised anxiety disorder. Nevertheless I accept Counsel’s contention that such previous outcomes, while of interest, have no bearing in this decision.
82. In addressing the issue of Mr Kirk’s diagnoses for his psychiatric condition at the time of hearing it is not my intention to re-analyse and present again the clinical opinions in evidence in this matter. It is clear, in my view that the current (1970 onward) clinical psychiatric opinions with the exception of Dr Sheehan all point to a diagnosis of generalised anxiety disorder and a personality disorder. I have already detailed my concerns as to the forensic reliability of Dr Sheehan’s report of 2006.
83. It is my finding of fact that Mr Kirk’s current diagnoses are generalised anxiety disorder and personality disorder – not otherwise specified. In so finding I rely upon the clinical opinions and the clinical reasoning contained within the reports of Drs Isles, Wilson, Pargiter (Hobart Clinic reports), Pridmore and Rose.
84. There remain further issues, namely when did the two diseases have their clinical onset, and was either disorder aggravated during Mr Kirk’s period of service, or thereafter as a consequence of the diagnosis of chronic schizophrenia made at the time of discharge.
85. In addressing the issue of personality disorder, many of the psychiatrists (Drs Ellard, Sinclair, Rose) commented that Mr Kirk experienced many difficulties during his former childhood years. Mr Kirk, while stating he had had a happy childhood did detail a history of school changes for practical reasons, the death of his father whom he much admired, a disappointment at his mother’s behaviour after the death, his serious car accident disrupting his school year, his use of alcohol while still at school, difficulties in settling after the car accident with a variety of employment, a brief return to another school, employment at the PMG and enlistment in the Air Force, all occurring over a 20 month time frame. Mr Kirk acknowledged that his preferences were to have many acquaintances as a child, but no close friends. Mr Kirk stated that the family environment up to the time of the death of his father was happy, albeit his farther being regimental and obsessive. Despite some psychiatrists recording arguments between his parents, Mr Kirk believed that such arguments were between his mother and stepfather.
86. I note that psychiatric opinion in this matter is that Mr Kirk’s personality characteristics and his personality disturbance/disorder existed prior to his service. In this regard I note the opinions of Dr Ellard and Dr Rose, while other psychiatrists are of the opinion that Mr Kirk’s obsession and narcissistic personality traits are a significant issue in his psychiatric disability (Drs Sinclair, Cunningham Dax, Isles).
87. Having listened to Mr Kirk detail the circumstances and happenings associated with his child, adolescent and early adulthood years, to his responses during detailed cross-examination and having read the details of same in many psychiatric reports, I conclude on the balance of probabilities that Mr Kirk’s personality characteristics and his personality disorder pre-existed his entry into the Air Force. In so finding I rely upon the opinions of Drs Ellard and Rose and in part on the opinions of the psychiatrists, Drs Sinclair, Cunningham Dax and Isles.
88. Such a finding is further reinforced by the detailed evidence and psychiatric opinion (Drs Ellard, Sinclair, Cunningham Dax, Isles and Rose) that Mr Kirk’s personality characteristics (particularly obsessional and narcissistic behaviour patterns) were significant factors in creating circumstances, which led to Mr Kirk experiencing difficulties and frustrations as he strove to cope with the circumstances confronting him in his daily activities of service.
89. I would observe that there is an absence of clinical evidence and opinion which either suggests or indicates that Mr Kirk’s opinion of pre-existing personality was aggravated by his service experiences. While there is much evidence documented which demonstrates that Mr Kirk’s underlying personality characteristics/disorder continue to exert an influence, with periods of exacerbation of his characteristic personality symptomatology very much in evidence, when Mr Kirk is confronted with circumstances that pose a challenge to his preferred order. Such a situation I observe has continued both through his Air Force service and thereafter and continues to the present day.
90. It is for these reasons that I find that I have no evidence or clinical psychiatric opinion before me, which suggests that Mr Kirk’s personality disorder was aggravated as a consequence of his service, including the issue of his diagnosis at discharge. While I note that Mr Kirk’s personality characteristics underlying his personality disturbance have become more apparent and recognisable over time, this in itself does not act as a marker denoting aggravation of the personality disorder. In so stating, I note as Mr Kirk’s post-service history is punctuated by long periods of travel with frequent locality and employment change with no reliance on continuing psychiatric care, coupled with a period of long term stable location and deployment, together with both; desire and need for continuing psychiatric and psychological support. In short his personality traits and their disturbance is a life long continuum, and subject to increased symptomatology when Mr Kirk is confronted with situations which precipitate conflict with Mr Kirk’s particular personality characteristics. In the absence of any clinical opinion detailing that Mr Kirk has suffered an aggravation of his personality disorder, I find that Mr Kirk’s pre-service personality disorder was not aggravated by his service in the Air Force, or as a consequence of the diagnosis made at the time of discharge.
91. Nevertheless it is apparent that by virtue of his personality disorder as a young adult in the service, Mr Kirk was confronted with many situations and circumstances that caused him much worry and frustration. Over time, it is evident that Mr Kirk became worried and anxious about issues, common to his every day activities.
92. In this regard, I note the events, circumstances and responses to such by Mr Kirk during his period of service in Ubon. I acknowledge that Mr Kirk was 18 years old when he was posted to Ubon and that he had had limited experience, training and supervision prior to such posting, having experienced postings/detachments to four different units after his enlistment. Further I note the history Mr Kirk has given concerning his Ubon detachment, which included difficulties in his work with his supervising sergeant who showed resentment towards Mr Kirk for his lack of knowledge, the isolation and loneliness he felt at Ubon, the lack of supervision, his dislike for the heat, noise and the attitude of the Americans, his use of prostitutes and infection with non specific urethritis, his concerns about the fuel depot, his inability to speak the local languages and his growing and significant abuse of alcohol. I note that his continual worrying about everything continued on his return to Australia, as did his abuse of alcohol, which he used to allay sleeping problems and intrusive worries about his Ubon service. I note that in June 1965, an attending doctor diagnosed Mr Kirk as suffering from a mild anxiety neurosis.
93. I note the reports of Dr Ellard and Dr Sinclair in which both speak of Mr Kirk stating he experienced stress in Thailand. I note the report of Dr Cunningham Dax in which he concludes that Mr Kirk’s first signs of a psychiatric disorder appeared in Thailand and further his comment that service between April 1966 and September 1966 was associated with the cause of and/or aggravation of generalised anxiety disorder. I note the report of Dr Rose in which he reports that Mr Kirk spoke of becoming anxious, while serving in Ubon. Further I note the report of Dr Isles, in which he states that Mr Kirk’s anxiety state arose out of his service in Ubon.
94. Consequent to the evidence I have outlined, I conclude, on the balance of probabilities, that the clinical onset of Mr Kirk’s generalised anxiety disorder was during his service in Ubon. While I note that Dr Rose in his 2001 report was of the opinion that all of Mr Kirk’s psychiatric symptomatology could be accounted for by his personality disorder, I would consider that without further explanation from Dr Rose, there appears some inconsistency between that opinion and a later opinion with recognises the existence of a generalised anxiety disorder and aggravation of that disorder by the wrong diagnosis of chronic schizophrenia. I suspect that Dr Rose is implying that the generalised anxiety disorder arose as a consequence of the personality disorder.
95. I have concluded that the clinical onset of the generalised anxiety disorder occurred during Mr Kirk’s period of operational service in Ubon. There is much evidence before me of a clinical worsening of this condition in the final year of Mr Kirk’s service. In this regard I point to the evidence of Mr Kirk and the service medical records. I am also mindful that during this period Mr Kirk’s twin psychiatric conditions of personality disorder and generalised anxiety disorder existed, with Mr Kirk observed as continuing to present symptomatology of a complex evolving condition as evidenced by Mr Kirk’s recognition of his psychiatric condition (“nerves”), his presentation with increasingly diverse psychosomatic complaints and increasing difficulties in his work situation.
96. I note the opinion of Dr Cunningham Dax who explained the clinical situation during April through September 1967 as either the clinical onset of or the aggravation of a generalised anxiety disorder. I further note that in his opinion the clinical situation was a consequence of Mr Kirk’s failure to obtain an army commission in April 1966 and increasing difficulty and conflict in his work situation in the Orderly Room at 11 Squadron after his posting to that unit in July 1966. I accept Dr Cunningham Dax’s analysis and in so doing conclude that on the balance of probabilities, Mr Kirk suffered an aggravation of his generalised anxiety disorder during this period, with his clinically worsened anxiety disorder leading to his hospitalisation, assessment and discharge.
97. Further I note the history detailed by Mr Kirk, that at time of discharge, he knew that the disability leading to his medical discharge was chronic schizophrenia. This is evidenced by his claim for compensation of 20 March 1967 which is signed by him and witnessed by the Chaplain. Mr Kirk also stated that he was informed by Dr Ellard that his condition was an emotional disorder, such a statement being confirmed by Dr Ellard in the service medical records. Mr Kirk left the service with only such knowledge in March 1967 and in his evidence, it was not until some months later after talking with his general practitioner in Hobart and consulting a dictionary that he gained an understanding of what the term chronic schizophrenia meant.
98. Subsequent to gaining such an appreciation of his condition, in the second half of 1967, I note the history of Mr Kirk’s psychiatric condition, with admission to Clare House for electro compulsive therapy, to Royal Derwent Hospital for psychiatric inpatient care, and transfer to Ballarat Hospital – all such events happening in the last months of 1967.
99. As a consequence of this clinical history I am satisfied on the balance of probabilities that Mr Kirk upon becoming aware of and understanding the significance of the diagnostic label suffered a clinical worsening of his underlying generalised anxiety disorder, as evidenced by his hospitalisation and significant treatment. While I acknowledge that Mr Kirk was disappointed with the circumstances of his discharge, I do not consider that at that point in time Mr Kirk contemplated that there had been an error in his diagnosis at discharge. Nevertheless, I consider the impact of such a diagnostic label to be significant, particularly once he understood in part the implications of the label. This is further evidenced by Mr Kirk’s desire to seek compensation for he was of a firm belief that his Air Force service had caused and/or contributed to his condition. This coupled with his stated concern of losing an opportunity to develop a career in the service together with a growing realisation that this discharge diagnosis was a significant impediment to desired employment. This is further evidenced by his failed attempt to secure enlistment in the Victorian Police Force after seeing Dr Fitzpatrick, a psychiatrist in Geelong in late February 1968.
100. I note that in August 1968, Mr Kirk was seen by Dr Sinclair in the context of his claim for compensation. Thereafter I observe Mr Kirk travelled with his wife to various parts of Australia undertaking many different short term jobs. These travels continued for many years with Mr Kirk and family returning to Hobart in 1975/76. It would appear that in late 1979, Mr Kirk attended upon Dr Cunningham Dax for assistance in resolving his second compensation claim which had been ongoing since 1976 and for continuing assessment and treatment. It was during his examination with Dr Cunningham Dax that the issue of error in diagnoses was consistently raised and canvassed. The compensation issue was resolved in September 1982 by dismissal of his application by consent before the Administrative Appeals Tribunal, while the issue of on error of discharge diagnosis was not finalised until 1999, with a Repatriation Commission determination on 17 March 1998 granting Mr Kirk a disability pension for a war caused disease, namely generalised anxiety disorder.
101. I note the opinion of Dr Isles that Mr Kirk’s condition is an iatrogenic condition caused by an error in diagnosis. I note the opinion of Dr Rose that Mr Kirk’s generalised anxiety would have been aggravated by diagnosis of chronic schizophrenia, and that such aggravation would be continuing. I note his reasoning for such an opinion.
102. In accepting both opinions, I find on the balance of probabilities that there has been an aggravation of Mr Kirk’s generalised anxiety disorder as a consequence of the diagnosis at discharge of chronic schizophrenia. In so finding, I accept Mr Kirk’s history of events which led to his understanding what the diagnosis meant and what the consequences of such a diagnosis was regards employment. With this in mind I consider the aggravation of the condition occurred in the second half of 1967, when Mr Kirk became aware of the significance of such a diagnosis, coupled with a clinical worsening of his psychiatric condition. I consider the underlying aggravated condition had stabilised by the time Mr Kirk went to Western Australia in 1968, and that the underlying anxiety disorder and personality disorder have continued thereafter, with periods of exacerbation of the generalised anxiety disorder in response to a myriad of other non-service circumstances that have occurred in Mr Kirk’s life.
SECTION 5(10) OF THE SRC ACT 1988
103. Mr Kirk’s claim for compensation for his generalised anxiety disorder has been disallowed by the Respondent, on the ground that section 5(10) excludes Mr Kirk’s claim from being considered under the SRC Act.
104.Section 5(10) provides:
Subject to subsections (10A), (10B) and (10C), this Act does not
apply in relation to service of a member of the Defence Force in
respect of which provision for the payment of pension is made by:(a) the Veterans’ Entitlements Act 1986; or
(b) the Papua New Guinea (Members of the Forces Benefit) Act 1957.
105. I note that during the hearing there was much discussion of section 5(10) and the subsections. A closer examination of section 5(10) indicates that much of the discussion and the related submissions were of limited consequence. Section 5(10) is particular in stating that the Act does not apply in relation to service of a member of the Defence Force in respect of which provision for the payment of pension is made by the Veterans Entitlement Act 1986.
106. It is my interpretation of the section that exclusion occurs only in relation to service of a member in respect of that service for which provision is made for payment of pension by the VE Act 1986. It would be my interpretation that such exclusion only applies to use a short hand phrase; “VE Act 1986 covered service”, and not to the totality of a member’s service in circumstances where part of the member’s service is covered and part is not.
107. In addressing the circumstances of Mr Kirk’s service between 4 February 1963 and 21 March 1967, the only part of that service in respect of which provision for payment of pensions exists under the VE Act 1986 is Mr Kirk’s period of operational service between 26 February 1964 and 28 August 1964. It is this period of service that in my view is excluded by the operation of section 5(10), with the remainder of his service not excluded by the operation of section 5(10), as no provision for payment of a pension in respect of that service exists under the VE Act 1986.
108. I would note that a special rate disability pension has been paid for a war caused disease occasioned during that period of service pursuant to a decision by the Repatriation Commission dated 17 March 1998.
109. Finally a careful examination of subsections (10A), (10B) and (10C) of section 5(10), does not alter the outcome, as subsection (10A), (10B) and (10C) are not applicable in the light of the factual circumstances of this matter.
110. As a result of my findings I conclude that Mr Kirk’s pre and post-operational service (Ubon Service) are not excluded by section 5(10) of the Act. I further conclude that it is appropriate to consider Mr Kirk’s claim to injuries/diseases related to the non excluded service periods.
SECTION 124 OF THE SRC ACT 1988
111. I again note my earlier findings that Mr Kirk’s:
(a) Personality disorder was in existence prior to his service and was not aggravated by his service.
(b) Generalised Anxiety disorder commenced (clinical onset) during his period of operational service, and as such further consideration of the causation of the disease and liability to pay compensation is excluded by section 5(10) of the SRC Act.
(c) Aggravation of the generalised anxiety disorder was found to have occurred on two occasions, namely:
(i) during Mr Kirk’s service between April 1966 and September 1966; and
(ii) in late 1967, when Mr Kirk became aware and understood both the significance and implications of his discharge diagnosis of chronic schizophrenia – such having been determined to be an incorrect diagnostic label some 20 years later.
112. In addressing whether Mr Kirk is entitled to be paid compensation for aggravation of generalised anxiety disorder on two occasions, one in 1966 and the other in 1967. I note that section 124 of the SRC Act provides:
…
(1A) Subject to this part, a person is entitled to compensation under this
Act in respect of an injury, loss or damage suffered before the
commencing day if compensation was, or would have been,
payable to the person in respect of the injury, loss or damageunder the 1912 Act, the 1930 Act or the 1971 Act.
(2) A person is not entitled to compensation under this Act in
respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
(a)…
(b) where the injury loss or damage was suffered after the 1930 Act but before the commencement of the 1971 Act – under the 1930 Act as in force when the injury, loss or damage was suffered
…
113. I note that the circumstances leading to Mr Kirk’s two aggravations occurred in 1966 and 1967, and in such circumstances, I move to consider pursuant to section 124(2)(b) of the SRC Act, whether Mr Kirk was entitled to payment of compensation under the 1930 Act, as in force when the aggravation of his generalised anxiety disorder occurred in 1966 and 1967.
114. Section 4(1) of the 1930 Act defines:
“disease” includes any physical or mental ailment, disorder defect or morbid condition, whether of sudden or gradual development, and also includes the aggravation, acceleration or recurrence of a pre-existing disease;
“employee” means-
(a)…
(d) a member of the Defence Force to and in relation to whom this Act applies;
“injury” means any physical or mental injury and includes the aggravation, acceleration or recurrence of a pre-existing injury;
115. I further note that section 10 of the 1930 provides:
(1) Where
(a) an employee is suffering from a disease and is thereby incapacitated for work; or
(b) the death of an employee is caused by a disease,
and the disease is due to the nature of the employment in which the employee was engaged by the Commonwealth, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with the Act, as if the disease was a personal injury by accident arising out of or in the cause of his employment.
116. I note section 16 of the 1930 Act, which is to do with time for taking proceedings under the 1930 Act. The Respondent in this matter is not pressing any argument in relation to this situation in relation to the time issue and/or prejudice to the Commonwealth. I accept this position.
117. In this matter I observe that there is no history of an injury as defined by section 4(1) of the 1930 Act. There is clearly evidence pointing to Mr Kirk suffering a mental ailment and/or disorder, and I conclude that Mr Kirk suffered a disease as defined by section 4(1) of the 1930 Act. I have already defined that Mr Kirk suffered a disease when his generalised anxiety disorder occurred during his period of operational service in 1964. Further I have defined two further aggravations of that condition in 1966 and late 1967. I have already detailed while only the latter two aggravations are open to consideration under the 1930 Act, with a disease under that Act being defined to include an aggravation.
118. Further I note that section 10 of the 1930 Act is particular in defining that in relation to a disease, liability to pay compensation can only arise in circumstances where the disease is due to the nature of the employment. I note the contrast with section 9 of the 1930 Act, in which personal injury by accident may arise out of in the course of his employment was the criteria for liability to pay compensation. I further note that the phrase “personal injury by accident” does involve an unlooked for mishap or an untoward event which is not expected or designed (Lord MacNaghten. at p 448), “any unexpected personal injury resulting to a workman in the course of his employment from an unlooked for mishap or occurrence” (Lord Shand at p451) or “any unintended and unexpected occurrence which produces hurt or loss” (Lord Lindley at p453), with all extracts taken from Fenton v J Thorley & Co Ltd [1903] AC 443. The issue of what constitutes personal injury by accident has much evolved over the years and has been much discussed by Dixon C.J in Commonwealth v Hornsby (1960) 103 CLR 588 and Kavanagh v Commonwealth (1966) 103 CLR 547. In accordance with the precedents nominated, I have considered all the evidence in this matter and I find that Mr Kirk did not suffered a personal injury by accident, and that his psychiatric disorders are considered diseases pursuant to the 1930 Act; as both conditions fall within the definition of disease.
119. In addressing the term “due to the nature of the employment”, I note the term was considered in Commonwealth v Bourne (1960) 104 CLR 32 where the following statements were made :
·“… such a relationship is not established by showing that a disease from which a particular individual is found to be suffering has been aggravated or accelerated by the duties which he has been required to perform. Still less is it established by proof that the work of a particular individual has been attended by worry and anxiety which, in turn, has aggravated or accelerated the progress of a particular disease.” (per Taylor J)
·Does not cover “an employment which has no particular tendency to give rise to a disease, contribute or conduce to it or accelerate it and no incident, adjunct or quality of which involves those employed …. in any particular liability to the contraction of the disease or to the aggravation or acceleration of its course.” (per Dixon CJ)
·The disease in question must be a characteristic product of the employment (ie. what are commonly called industrial diseases or occupational diseases (Windeyer J.)
120. I note the case of Commonwealth v Thompson (1960) 104 CLR 48, where Menzies J stated:
… even if the evidence did establish that the responsibilities of the offices which he [the deceased] occupied in the Taxation Department did aggravate or accelerate the coronary disease from which he [the deceased] was already suffering, that disease which eventually caused his death was not due to the nature of his employment,...
121. In considering the material before me I observe that the two diseases in existence were personality disorder and generalised anxiety disorder. I observe that there is an absence of evidence that either of these two diseases were due to the nature of Mr Kirk’s employment. While Mr Kirk’s generalised anxiety disorder may have arisen from incidents that occurred during his employment, with similarly the two separate aggravations of this disorder which occurred in 1966 and late 1967 arising out of incidents occurring during his employment, neither the initial causation (if it was subject to consideration under the 1930 Act), nor the two aggravations of generalised anxiety disorder can be said to have been due to the nature of his employment. I so find, and in so doing note the opinions of Dr Ellard, Sinclair, Cunningham Dax, Isles and Rose in so far as each opinion refers to issues of causation/aggravation, I note an absence of any psychiatric opinion suggesting it was due to the nature of the employment, as opposed to arising from incidents occurring in employment.
122. Finally I considered the case of Commonwealth v Rutledge (1964) 111 CLR 1. I observed that the outcome in that matter was very much dependant on the particular factual issues. In Mr Kirk’s situation the nature of his employment remained unchanged in that his employment was an administrative clerk throughout the totality of his career, with no significant redefinition of either his basic duties or the nature of his employment throughout this period of service in the Air Force and particularly at the time of the two aggravations.
123. In such circumstances I conclude that the aggravation of Mr Kirk’s generalised anxiety disorder on two occasions arose from incidents occurring during his service and not from the nature of his service. In such circumstances Mr Kirk is not entitled to payment of compensation pursuant to the 1930 Act, with any claim for compensation pursuant to section 124(2) of the SRC Act failing, because Mr Kirk was not entitled to payment of compensation under the 1930 Act.
124. In affirming the decision, I note the circumstances of Mr Kirk’s employment history since 1993 and the many psychiatric opinions concerning his capacity for work since that date. I note, as did the primary decision maker in this matter, that Mr Kirk was discharged with 30 per cent impairment as regards civilian employment, this equating to a category C rating pursuant to the Defence Force Retirement Benefits fund. I further note that Mr Kirk has not sought a review of his entitlements pursuant to this fund. I consider that this is an avenue Mr Kirk could well explore.
I certify that the 124 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J Campbell, Member
Signed: ...........[sgd]...........................................................
AssociateDates of Hearing 18, 19 and 20 December 2007
Date of Decision 1 April 2008
Representative for the Applicant Self
Counsel for the Respondent Mr J Ferwerda
Solicitor for the Respondent DLA Phillips Fox
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