KMTH and Repatriation Commission
[2010] AATA 1005
•15 December 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 1005
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nº 2009/0556
VETERANS' APPEALS DIVISION ) Re KMTH Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member
Dr Roderick McRae, MemberDate15 December 2010
PlaceMelbourne
Decision The Tribunal sets aside the decision of the Veterans' Review Board dated 5 December 2008 insofar as it decided that depressive disorder was not war-caused and in substitution decides that depressive disorder is war‑caused.
The application is remitted to the respondent to assess pension entitlement.
(sgd) John Handley
Senior Member
VETERANS' AFFAIRS – entitlement – applicant suffered chest pain in December 2001 – feared he had heart disease – depressive disorder diagnosed in June 2002 ‑ ischaemic heart disease diagnosed in 2003 – clinical onset of ischaemic heart disease in December 2001 –– whether ischaemic heart disease caused depression ‑ whether applicant had a life threatening medical illness within five years of clinical onset of depressive disorder – whether applicant must have had a subjective belief he suffered ischaemic heart disease.
Veterans’ Entitlement Act 1986
Statement of Principles concerning Depressive Disorder (Instrument Nº 27 of 2008)
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
15 December 2010 Mr John Handley, Senior Member
Dr Roderick McRae, Member1. The applicant served in the Royal Australian Navy from 5 April 1964 to 12 August 1970 with five periods of operational service in 1965/1966. During operational service he was a messman onboard HMAS Duchess. He has the conditions of ischaemic heart disease (IHD), bilateral sensory neural hearing loss and bilateral tinnitus accepted as war-caused. The applicant receives pension at 100 per cent of the general rate.
2. On 5 December 2008 the Veterans’ Review Board (VRB) affirmed decisions of the respondent refusing the applicant’s claim for acceptance of depressive disorder and refusing to allow pension beyond 100 per cent of the general rate.
3. The applicant applied for review of both decisions. On the third day of hearing, the Tribunal was notified that he advised the respondent that he was withdrawing his application for payment of pension beyond the general rate. In the event that we found the condition of depressive disorder was war-caused, we were asked by both representatives to remit the application to the respondent to assess pension entitlement.
4. Accordingly, the evidence heard in support of an increase in pension, namely, the capacity of the applicant to engage in employment, the nature of that employment and the content of his tax returns will not be recorded in these reasons. Only the evidence concerning the connection between service and depressive disorder will be recorded.
5. The respondent made a number of concessions prior to and at the commencement of the hearing. The concessions are set out in the Statement of Facts and Contentions of respondent dated 7 December 2009 at paragraphs 2.1, 4.6 and 4.7; and the transcript of the first day of hearing at page 6 and the third day of hearing at pages 34 and 35, namely:
(a)depressive disorder is properly diagnosed and is a condition suffered by the applicant;
(b)the clinical onset of depressive disorder was in June 2002;
(c)IHD is properly diagnosed and is a condition suffered by the applicant;
(d)the clinical onset of IHD was 10 December 2001;
(e)IHD is an accepted disability and is a life threatening medical illness within the meaning of factor 6(a)(viii) of the Statement of Principles (SoP) concerning depressive disorder (in force at the date of the hearing being Nº 27 of 2008 as amended immaterially by Instrument Nº 40 of 2010);
(f)the clinical onset of IHD preceded the clinical onset of depressive disorder;
(g)the clinical onset of depressive disorder occurred within five years of the clinical onset of IHD; and
(h)at the time of clinical onset of depressive disorder, IHD was a medical illness or injury which was life threatening.
For reasons which will be explained later, we are satisfied that the concessions made by the respondent were properly made.
6. Factor 6(a)(viii) of Instrument Nº 27 of 2008 provides that a reasonable hypothesis will be raised connecting depressive disorder with the circumstances of relevant service, if the veteran has:
… a medical illness or injury which is life-threatening or which results in serious physical or cognitive disability, within the five years before the clinical onset of depressive disorder …
7. The hypothesis raised by the applicant in these proceedings is that his war‑caused IHD triggered the condition of depressive disorder. Having regard to the concessions recorded above, IHD did occur within five years of the clinical onset of depressive disorder.
8. IHD was diagnosed in 2003, shortly before the applicant had bypass surgery. Professor Harper, a consultant cardiologist engaged by the respondent reported that the clinical onset of IHD was 10 December 2001 (Exhibit R3). He expressed the opinion after he perused the clinical notes of Dr Verhoef, the applicant’s treating doctor. Dr Verhoef initially diagnosed the applicant as suffering from muscular type pain at 10 December 2001. However, after reviewing his notes, he also expressed the opinion that the clinical onset of IHD was 10 December 2001.
9. Before the commencement of the hearing the applicant also alleged that a senior officer had sexually assaulted him during service. He did not allege that it contributed to his depressive disorder but did acknowledge that it had previously caused him anxiety and embarrassment. When he was transferred back to HMAS Duchess, approximately two years after his assaults, he recorded in his statement of 4 February 2009 (Exhibit A1) that it triggered unpleasant memories and anxiety and he subsequently absented himself from service without leave for approximately 20 months.
10. A hypothesis of connection between the sexual assaults in service and depressive disorder was not pursued at the hearing and the respondent was given notice prior to the commencement of the hearing that it would not be pursued. Nonetheless, the nature of those allegations and the many references to them and to other persons in documents lodged with the Tribunal caused us to make orders pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 prohibiting the publication and disclosure of the applicant’s name and also directing that documents held by the Tribunal identifying the alleged assailant be removed from the file and placed in a sealed envelope, access to which may only be obtained by order of the Tribunal.
11. In evidence the applicant said that there was no point in reporting the sexual assaults because the assailant had a superior rank, his word would be preferred to mine. The applicant said that he was aged 18 at the time that he was assaulted, he was frightened and he felt powerless. He did not raise those events before the VRB and speculated that he was then probably acting on the advice of his advocate who had made a written submission. He said those events did have a significantly adverse affect on him but the anxiety and fears that he then experienced ultimately resolved when he was discharged from the Navy (transcript of 21 January 2010, p29‑32).
12. Following discharge from service, the applicant worked in labouring type occupations and as a truck driver and later in partnership with his brother as a refrigeration mechanic. The partnership ended after about five years and from 1980, the applicant worked alone in self‑employment as a refrigeration mechanic. He described the work as being physically demanding, involving the lifting and manoeuvring of refrigerators, some being without wheels. The work also involved the movement of refrigerators from domestic premises to his vehicle, carrying parts and tools and generally engaging in activity which was physically arduous.
13. The applicant eventually developed pain in his shoulders and arms and became breathless which he noted was progressively worsening. He would frequently have to rest and he became inefficient. He consulted Dr Verhoef on 10 December 2001, who diagnosed muscular problems. The symptoms continued to deteriorate, he became increasingly breathless and he had difficulty lifting. The applicant had a family history of cardiac illness and despite the diagnosis of Dr Verhoef, the applicant became anxious that he had a cardiac complaint.
14. The applicant said he would lie awake at night worrying about his chronic symptoms and afraid that he was heading for a heart attack (Exhibit A1, p3). He recalled that he was not coping with his work and noted that he was becoming depressed. He described himself as suffering from chronic depression in 2001 and 2002, and said that he felt very fragile, very frightened (transcript, p21). The applicant was afraid that he would be unable to continue working and therefore, would be unable to support his family and pay his mortgage. He had difficulty focusing on his work, struggled to think clearly and was unable to organise himself. He lost confidence, found communication with persons difficult and was frequently angry, short tempered and frustrated.
15. In mid 2002 Dr Verhoef diagnosed the applicant as suffering from depression. Medication was prescribed. In May 2003 Dr Verhoef referred the applicant to Dr Sheehan, a consultant psychiatrist. When the applicant was taken through the clinical notes of Dr Sheehan (who was not called to give evidence), he agreed that he had not given a history that his depression was associated with his fear of suffering from heart disease. He said that condition was not diagnosed until later in 2003 and he did not mention his fears to Dr Sheehan because he is a psychiatrist, he is not a doctor (transcript, p44). The applicant also said that he felt that he could not notify Dr Sheehan of his fear of heart disease and the potential of heart attack because he had been told by his general practitioner that wasn’t the case (transcript, p44).
16. At the insistence of his wife, the applicant re-presented to Dr Verhoef in August 2003. The applicant had then been practising golf and felt tightness in his chest and nausea. He drove home and was taken by his wife to Dr Verhoef. IHD was then diagnosed for the first time. Dr Verhoef referred the applicant to a cardiac surgeon who later performed coronary artery bypass grafting which was undertaken on 17 October 2003.
17. The applicant agreed that the diagnosis of IHD was not made until August 2003. However, he said that he had been in fear of a cardiac illness since December 2001 when he consulted Dr Verhoef complaining of pain in his arms and shoulders. He agreed that he was first diagnosed with depression approximately six months later in June 2002. He denied that it was associated with the viability of his business but rather with his continuing fear of having a cardiac illness. He agreed with the clinical notes of Dr Verhoef, who recorded that he would wake each morning with a churning feeling in his stomach and understood that that was an indicator of his depression.
18. The applicant gave a similar explanation with respect to the evidence he gave to the VRB, that in mid 2003 he was not coping and was having difficulty in his employment. He acknowledged that he was not busy at the time and explained that the work of a refrigeration mechanic is cyclical and it was usual for there to be less work in the winter months than in the summer months. He again reaffirmed that in mid 2003, his cardiac disease had not been diagnosed and he had been notified by his general practitioner that his shoulder and arm pains were muscular but he continued to be in fear of cardiac illness. Despite a sense of anxiety and depression, the applicant said that he could not then contradict the opinions that were given to him by Dr Verhoef.
WILLIAM VERHOEF
19. Dr Verhoef has been treating the applicant for 17 years as his general practitioner. He gave evidence in these proceedings and his clinical notes were received into evidence (Exhibit A5).
20. Dr Verhoef confirmed that the applicant presented to him on 10 December 2001 with complaints of pains in his arms which he thought were muscular in nature. His handwritten notes of that day record:
Pains in arms comes and goes. Worse at night settles with exercise and work consistent with muscle pain.
21. Dr Verhoef arranged for the applicant to have an ECG and some other pathology testing. The results of those assessments were discussed with the applicant on 14 December 2001 and his notes record that a chest x‑ray was clear, blood testing was all okay except borderline cholesterol and the results of an ECG, in the absence of a report, was recorded by Dr Verhoef as looks normal.
22. Dr Verhoef also recorded against the notes of 14 December 2001 that the applicant played golf recently, muscle pains eased the longer he played.
23. In a report of 30 July 2004, Dr Verhoef expressed the opinion that the presentation on 10 December 2001 in retrospect could have been due to heart disease.
24. In a report of 5 March 2005, Dr Verhoef expressed the opinion that the applicant presented for the first time in relation to his heart disease on 10 -12 - 01 (T7, p54).
25. He was aware that Professor Harper expressed an opinion, having read the notes of Dr Verhoef that the first indication of IHD symptoms manifested on 10 December 2001. Dr Verhoef agreed that his notes did not have any entry between 10 December 2001 and 20 August 2003 of any presentation by the applicant of coronary type symptoms. His notes of 20 August record:
last 6/12 PIC on exertion including today and wife demanded he come in. He describes pressure in chest on exertion which settles quickly when he stops …
Dr Verhoef arranged for the applicant to be referred to a cardiac surgeon for bypass surgery which was undertaken on 17 October 2003.
26. Dr Verhoef acknowledged that he did attend the applicant on many occasions between 10 December 2001 and 20 August 2003 and said that the applicant was a person who did not present for non serious problems. He didn’t come in for every sort of ache and pain … (transcript of 22 January 2010, p3).
27. The first presentation for depressive type symptoms occurred on 12 June 2002. The notes of Dr Verhoef on 12 June record:
Insomnia. Business quiet. Financial problems etc. Father suicided, brother suicided and his son suicided. (illegible) He waits for phone to ring. Can wait all day and get only one call. Another day he gets more than he can handle.
28. On 15 June 2002 the applicant again attended for depressive type symptoms. The notes record that the applicant felt terrible and a history of panic attacks. Diazepam and Prothiadon medication was prescribed and the applicant was referred to a psychologist for counselling. The applicant again presented to Dr Verhoef on 17 June 2002 and on a number of other occasions throughout the remainder of 2002 and in early 2003. Dr Verhoef eventually referred the applicant to Dr Sheehan.
29. A considerable part of the examination of Dr Verhoef concerned the applicant’s capacity for employment (which need not be recorded here for reasons set out in paragraphs 3-4 above).
30. Dr Verhoef acknowledged that he had also treated the applicant for non‑insulin dependent diabetes, plantar fasciitis (which was relieved by orthotics) and mild hypertension. The applicant suffered from cataracts and was referred for surgery. It was his opinion that none of those conditions affected the applicant’s capacity for work. He was not asked whether any of those conditions contributed to the applicant’s depression. Nonetheless, it was Dr Verhoef’s opinion that the applicant did suffer from severe depression and was totally incapacitated for employment because of the combined effects of the IHD and depression.
LESTER WALTON
31. Dr Walton is a consultant psychiatrist who examined the applicant at the request of the respondent and provided two reports which were received into evidence (Exhibits R1 and R2).
32. Dr Walton was of the opinion that the applicant suffered from depressive disorder. He said in strict DSM IV terms, the applicant suffered a dysthymic disorder which was within the definition of depressive disorder. It was his opinion that the diagnosis of depressive disorder was appropriate because the dysthymia was a less intense form of depressive disorder and is distinguished from a diagnosis of major depressive disorder (transcript of 22 January 2010, p17).
33. Dr Walton was aware that Dr Epstein, who assessed on behalf of the applicant’s representatives, reported the applicant as suffering from adjustment disorder. Dr Walton agreed that a diagnosis of that type was possible but is more closely related to a point in time when the applicant suffers pain associated with his IHD. He said a feature of adjustment disorder was an ongoing identifiable stressor and on the history given to him, IHD is not a major stress in his life these days (transcript, p18).
34. Dr Walton obtained a history from the applicant of the sexual assaults during service, a breakdown in his first marriage and the loss of a baby in his second marriage. He said those episodes may be described as having contributed to an adjustment disorder with depressive and anxiety symptoms but they didn’t last for long.
35. Dr Walton was also aware that some persons within the applicant’s family and extended family had committed suicide. He said those events would tend towards the applicant having developed a depressive disorder. Rather than describe it as a high genetic risk, he said there was an elevated risk of depression.
36. Dr Walton agreed with an opinion expressed by others that the clinical onset of depressive disorder was 12 June 2002. He formed that opinion having regard to the clinical notes of Dr Verhoef recorded on that day. He thought that the depressive illness suffered by the applicant had emerged over a period of months before June 2002 because of his deteriorating physical health and the pain associated with the IHD.
MICHAEL EPSTEIN
37. Dr Epstein is a consultant psychiatrist who assessed the applicant at the request of his solicitors. In a report of 22 May 2009 (Exhibit A8) he concluded that the applicant suffered from:
…an Adjustment Disorder with anxious and depressed mood that occurred in the context of coronary artery disease.
He was satisfied that the symptoms of depression occurred in 2002. He was aware that the applicant had a family history of depression involving his father and other persons who had suicided.
38. He concluded that the applicant did have coronary artery disease and despite it not being formally diagnosed until 2003, the symptoms were present in 2001. He was also satisfied that in the context of his coronary artery disease … he appears to have developed symptoms of anxiety and depression. He concluded that the applicant did satisfy factor 6(a)(viii) because the applicant had a medical illness or injury that was life threatening within five years of the clinical onset of depressive disorder. He therefore concluded that the applicant satisfied the SoP for depressive disorder.
39. In evidence, Dr Epstein said that he recorded in his report that the applicant suffered adjustment disorder because it is a condition suffered by a person in response to an external stressor which is manifested as anxiety or depression or both. He thought the applicant’s predominant symptoms were depressive and on balance, he thought that depressive disorder was a more appropriate diagnosis. He was also of the opinion that the depression suffered by the applicant:
.. seems to be primarily from his perception of having a life threatening-illness, that is, coronary artery disease, it seemed to me that dysthymic disorder is probably not appropriate, because of that (transcript of 8 July 2010, p4).
40. Dr Epstein was satisfied that the depression suffered by the applicant existed before the formal diagnosis on 12 June 2002. He also reported that the applicant had indicated to him that his depression had arisen in the context of concern about his physical health and the possibility of having a heart condition.
41. In cross-examination, Dr Epstein was asked to consider a number of reports and questionnaires completed by Dr Sheehan, who did not obtain a history that the applicant was concerned about his coronary artery disease but rather was concerned about the viability of his business and his ability to provide for his family. Dr Epstein noted that one of the consultations with Dr Sheehan occurred on 12 August 2003 which was two weeks before the coronary angiogram. He said it would be hard to believe that the applicant did not then have symptoms of coronary artery disease and he thought it was interesting that he did not mention those to Dr Sheehan (transcript, p9).
42. Dr Epstein was asked to consider the opinion expressed by Dr Sheehan that the depression arose because of the applicant’s concern about the viability of his business and providing for his family. Dr Epstein initially said that the opinion was based on what Dr Sheehan was told by the applicant and what he understood the situation to be (transcript, p10-11). In those circumstances, he said, the opinion was perfectly reasonable. Dr Epstein suggested that Dr Sheehan may not have been aware of the coronary artery disease and the applicant’s fears or of the potential link to service. When Dr Epstein was advised that the clinical notes suggest that Dr Sheehan was aware of the heart disease at least in November 2003, Dr Epstein was surprised that Dr Sheehan failed to include it in his reports (transcript, p22). He also said that it would not be unusual for a patient not to reveal all of their concerns, at least initially, to their doctor (transcripts, p21).
43. Dr Epstein acknowledged that had the applicant thought that a connection existed between his depression and his coronary artery disease, he might have mentioned it to Dr Sheehan. However, in his experience people aren’t necessarily logical and since he didn’t mention it, it (did not mean) it didn’t exist (transcript, p11). Dr Epstein also suggested that he was more focused, in practice, than Dr Sheehan might be, on obtaining a history of the physical side of a person’s health (transcript, p11).
44. Dr Epstein said that he thought that he and Dr Walton were in agreement with respect to diagnosis of depressive disorder. He agreed that the applicant did have anxiety but his most predominant symptoms were depression which he also thought was the major problem for the applicant. Dr Epstein was also of the opinion that the applicant:
…first became concerned about the possibility of having cardiac coronary artery disease, a heart condition, in late 2001 and he told me that he developed depressive symptoms in early 2002 (transcript, p16).
45. In conclusion, Dr Epstein reaffirmed that the depressive disorder suffered by the applicant was triggered by his perception that he had heart disease, which, as it happened, proved to be true and that he now has a depressive disorder (transcript, p17).
ANTHONY SHEEHAN
46. Dr Sheehan is a psychiatrist to whom the applicant was referred by Dr Verhoef on 15 May 2003. He was not called to give evidence. His clinical file was received as Exhibit A4 and two of his reports are in the T-documents (T5 and T17). The absence of Dr Sheehan from the hearing is unfortunate because (for obvious reasons) he was denied the opportunity to address the concerns raised by the respondent about the history he obtained from the applicant and his practice with respect to obtaining information from patients. He was also denied the opportunity to explain his notes and reports.
47. During the hearing there was considerable focus on the content of Dr Sheehan’s reports and of an apparent absence of a history given to him by the applicant, particularly in relation to his concern about coronary artery disease. A number of reports written by Dr Sheehan expressed the opinion that the applicant’s depression was associated with concerns about the viability of his business and the prospect of being unable to provide for his family (T5, p35).
48. Below is a summary of the contents of his file. It is assumed that the whole of the file has been received.
49. The letter referring the applicant to Dr Sheehan recorded that the applicant suffered from chronic anxiety and had applied to the Department of Veterans’ Affairs (the Department) for counselling. Dr Verhoef reported that he understood that the applicant needed to have a diagnosis made by a psychiatrist, before this can proceed.
50. Dr Sheehan first saw the applicant on 22 May 2003. His notes record that the applicant was very depressed, not sleeping, anxious, his stomach was in knots and he suffered nausea. When he asked the applicant Why, he recorded the applicant’s answer as business quiet. Dr Sheehan took a history of some of the circumstances arising out of the applicant’s service in the Navy, his family, employment and schooling. He also noted his observations following a mental state examination.
51. Dr Sheehan wrote to Dr Verhoef on 12 August 2003 advising that he had consulted with the applicant on three occasions in May, June and July 2003. He reported that the applicant suffered from symptoms of chronic anxiety and major depression. He also reported that the trigger for his anxiety is the telephone and whether he will get another job or not. The clinical notes consist of an entry for the first consultation on 22 May 2003. However, the next entry was made on 22 September 2003. There are no clinical notes in the file of the consultations of June and July 2003 – as he reported to Dr Verhoef – nor to any other consultation before September 2003.
52. The entry of 22 September 2003 records the medication taken by the applicant. Dr Sheehan also noted on that day coping strategies for anxiety. The Tribunal notes that the applicant had attended Dr Verhoef on 20 August 2003, the preceding month, with a six-month history of chest pain. The evidence heard in these proceedings and the file of Dr Verhoef indicate that on 20 August, the applicant was referred to a cardiac specialist which eventually resulted in triple bypass surgery. There is no mention of this in Dr Sheehan’s entry of 22 September.
53. The next recorded consultation with Dr Sheehan was on 6 November 2003. In the intervening period the applicant had undertaken a cardiac stress test on 29 September 2003, coronary angiography on 6 October 2003 and bypass surgery on 17 October 2003. Relevantly, Dr Sheehan recorded saw GP/BP? Stress test – saw Mark Horrigan (cardiologist) à triple bypass – Warringal à (illegible) – artery 90%, 100%,70%, ‑ so much has happened – on a lot of pills – aspirin/blood pressure pills.
54. Dr Sheehan’s file indicates that he saw the applicant on 19 December 2003 and 30 January 2004. Neither of the entries makes any reference to the coronary artery disease.
55. The notes of a consultation that took place on 11 March 2004 again refer to the applicant’s service in the Navy in considerable detail. Dr Sheehan referred to the death of the applicant’s son shortly after birth, 14 years ago. He also made the following notes: 2002 ‑ 1st episode of depression; approached DVA/VVCS; and Oct 2003 - Triple bypass.
56. On 22 March 2004 Dr Sheehan wrote to a claims officer at the Department. The report appears to contain the history taken from the applicant during the first consultation on 22 May 2003 and the consultation on 11 March 2004. He reported that the applicant became very depressed in 2002 and the applicant put this down to his business being quiet and went to see his general practitioner. Dr Sheehan repeats this sentiment in two other places within the report. He reported that he could find no connection between his current symptoms and the stressful events during his service and concluded that he:
…cannot support his claim for pension in relation to his service activities as his current problems are due both to his stressful work environment as well as a predisposing family history of depression and are not service related.
57. On 3 August 2004 the applicant consulted Dr Sheehan. His notes are brief but there are two references to coronary illness, namely has 90% pension – feels cannot work due to health problems – CAD; anxiety... ‑ applying for TPI – re IHD/cannot work – depression accepted but not pensionable.
58. On 2 February 2005 Dr Sheehan forwarded a report to a pension officer of the VVF who had requested it. She had notified Dr Sheehan of the applicant suffering IHD and of opinions of Dr Verhoef that the applicant could have presented with coronary symptoms at December 2001. Dr Sheehan did not refer at all to the applicant’s coronary artery disease. It was his opinion that the applicant would be unable to continue working due to severe levels of anxiety and depressed moods.
59. On 2 September 2005 Dr Sheehan received a letter from an officer of the Department requesting an updated psychiatric assessment based on questions posed in the enclosed attachment. One of the questions asked of Dr Sheehan was, Is the claimant prevented from undertaking employment solely because of “psychiatric condition/s” and his handwritten notes against the question was No – heart condition and depression.
60. Another question asked is:
Please specify each medical condition which impacts on the veteran’s capacity for work and identify the relative contribution of each condition as a percentage of the claimant’s inability to undertake paid work.
The notes record 60% cardiac 40% depression anxiety.
61. Dr Sheehan provided a psychiatric assessment dated 20 September 2005 which appears to be a response to the questions asked of him on 2 September 2005. As to whether the applicant is prevented from undertaking employment solely because of the psychiatric condition, he recorded that the applicant was suffering from persistent heart‑related illness and his ability to undertake employment is affected by this cardiac condition. In answer to the next question, he recorded that the ability to undertake employment s affected by both his physical and psychiatric disorders. When asked to specify the medical conditions that impact on the applicant’s capacity to work and the relative contribution of each, Dr Sheehan recorded that he had not been provided with any clinical information concerning the applicant’s cardiac complaint and that [the applicant]:
…indicates that he has a significant cardiac illness and that his cardiac problems are the main cause of his inability to undertake paid employment, whilst his psychiatric condition has a minor contribution.
Curiously, despite his handwritten notes on the request of 2 September 2005 indicating that he apportioned contribution at 60% cardiac and 40% depression anxiety, he reported on 20 September 2005 that he had insufficient information to assess the percentage of each contribution to incapacity.
62. The only presentation of the applicant to Dr Sheehan after the report of 20 September 2005 was on 12 December 2005. Again, assuming that the entirety of Dr Sheehan’s file was provided, the applicant did not consult him after that date. There is no reference on that date to any cardiac complaint or illness.
63. It is noteworthy that Dr Verhoef records on 17 May 2006 the applicant being very angry with ….Sheehan for what he perceives as non‑support for his TPI but he [illegible] …. A similar sentiment is recorded by Dr Verhoef on 25 May 2006, namely, Angry +++ with Dr Tony Sheehan – unwilling to say his psychiatric condition is caused by his war service.
64. Assuming the last consultation with Dr Sheehan was on 12 December 2005, a document contained within his file has caused the Tribunal some curiosity. It is typed and entitled [KMTH] History of depression/anxiety. We assume it was completed by the applicant because it is written in the first person. It contains a history of his service, circumstances subsequent to discharge and the references to his treatment. The document sets out a time-line and describes his symptoms from 2001 to 2006. The inclusion of those years, suggests that the document was completed in or after 2006, yet the last consultation with Dr Sheehan appears to be on 12 December 2005. It is unclear to us why that document is contained within Dr Sheehan’s file.
65. Nonetheless, against the year 2001, the applicant recorded:
…Presented to Doctor Verhoef with possible symptoms of heart disease (in hindsight) was told symptoms were probably muscular and exertion related. I did not really believe that this was the true cause of the problem but accepted the doctor’s diagnosis.
66. Against the year 2002, the applicant recorded:
…Started again suffering symptoms of extreme anxiety and depression which I considered to be caused by general life experiences and events (performance of my business etc) whilst always having a strong belief that something was not right with my health…
67. Against the year 2003, the applicant recorded:
…Presented again to Dr. Verhoef after an incident which I thought could be heart related, was subsequently tested and diagnosed with coronary artery disease. I have since had coronary artery bypass surgery for which I believe I have recovered well physically.
JOHN COOPER
68. Dr Cooper is a practising psychiatrist to whom the applicant was referred by Dr Verhoef. He was not called to give evidence. The only documentary evidence from Dr Cooper are letters dated 18 October 2006 and 13 February 2008 to Dr Verhoef (located within the clinical file of Dr Verhoef (Exhibit A5)); and a letter dated 29 March 2007 to the Department (Exhibit A7 and T30, p167-168). We cannot locate the referring letter from Dr Verhoef. The applicant first consulted Dr Cooper on 27 September 2006.
69. In the letter of 18 October 2006, Dr Cooper reported to Dr Vehoef after his first consultation on 27 September 2006. He recorded that the applicant reported a medical history of ischaemic heart disease requiring coronary artery bypass surgery.
70. In his letter of 29 March 2007 to the Department, Dr Cooper recorded that the applicant was:
…suffering from a Depressive Disorder that is also associated with anxiety. This condition arose in the context of him developing ischaemic heart disease in about 2001 that eventually required coronary artery bypass surgery in 2003. His ability to work and support his family was affected by his heart disease and this in turn caused him to become increasingly stressed and depressed.
71. In the letter dated 17 February 2008, Dr Cooper advised Dr Verhoef of the applicant’s progress. He referred to the applicant’s mental state, medication and relationship issues. He did not refer to his coronary artery disease.
CONCLUSION AND REASONS FOR DECISION
72. The first issue to be determined is whether, on the probabilities, the applicant suffered an injury or disease.
73. Despite some variation in opinion between Doctors Walton and Epstein, they were both satisfied that a diagnosis of depressive disorder could properly be made. Dr Verhoef, the applicant’s treating physician, was of the same opinion. The respondent conceded that diagnosis.
74. On balance, we are of the view that the concession made by the respondent was properly made and is consistent with the opinions expressed by Doctors Walton, Epstein and Verhoef. Doctors Sheehan and Cooper did not give evidence. However, it is clear to us from a perusal of their records that the applicant was treated for depression. We are satisfied that the applicant suffers from depressive disorder. Having regard to the evidence presented and the concessions made by the respondent, we are also satisfied that the clinical onset of depressive disorder was in June 2002.
75. The next issue to be determined by us is whether the applicant’s depressive disorder is a war-caused injury. He was engaged in operational service as defined in s 6C of the Veterans’ Entitlements Act 1996 (the Act). We must find that the depressive disorder is war-caused unless we are satisfied beyond reasonable doubt that there is no sufficient ground for making that determination (s 120(1) of the Act) There will be no sufficient ground for making that determination if the material does not raise a reasonable hypothesis connecting the injury or disease with war service (s 120(3) of the Act). Section 120A(3) provides that a hypothesis will be reasonable if there is a SoP in force that upholds the hypothesis. In Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98, the Federal Court set out a four-step process to determine whether an injury or disease is war-caused in accordance with s 120 and s 120A of the Act.
76. The first step requires a determination of whether there is material pointing to a hypothesis connecting an injury or disease with the circumstances of service. In the present case, the applicant argues that his concern about the symptoms he was experiencing which were later diagnosed as IHD and accepted by the Department as war-related, caused his depressive disorder. Evidence was also heard from medical practitioners and read from their reports. The material pointed to a hypothesis connecting the applicant’s depressive disorder and his war-service.
77. There is a SoP in force for depressive disorder, namely, Instrument Nº 27 of 2008. Therefore step two is also satisfied.
78. The third step requires us to determine whether the hypothesis is reasonable and it will be reasonable if it contains one or more of the factors found in the relevant SoP. The applicant relied on factor 6(a)(viii) on the basis that he had a life-threatening illness within five years before the clinical onset of depressive disorder.
79. We are satisfied that the hypothesis raised by the applicant is consistent with the template found in the SoP. The material before the Tribunal and the concessions made by the respondent point to the applicant having a medical illness, namely IHD, which is life threatening. Although the diagnosis of IHD was made in retrospect by Dr Verhoef, he was ultimately satisfied that the clinical onset of the condition was on 10 December 2001. Professor Harper who provided a report at the request of the respondent was of the same opinion. In any event the respondent conceded that the clinical onset of IHD was on 10 December 2001 and IHD is a life threatening medical illness for the purpose of factor 6(a)(viii) of the SoP. Consistent with the evidence of Dr Verhoef, the respondent also conceded that the clinical onset of depressive disorder was in June 2002. It follows that the applicant had the life threatening medical illness of IHD within five years before the clinical onset of depressive disorder. Therefore, the hypothesis in these circumstances is reasonable.
80. The fourth step of the Deledio analysis requires the Tribunal to determine whether it is satisfied beyond reasonable doubt that the injury or disease was not-war-caused. If not satisfied, the claim must succeed. It is at this stage that findings of fact are to be made. For reasons which will follow, we are not satisfied beyond reasonable doubt that the applicant’s depressive disorder is not war-caused. The evidence before us does support a connection between war-caused IHD and depressive disorder.
81. It was contended on behalf of the respondent that the applicant had no apprehension of serious injury or life-threatening injury until his heart condition was diagnosed in 2003 (transcript of 8 July 2010, p38). It was submitted that the applicant must have some awareness or knowledge that he was suffering from the disease at a subjective level, and not at an objective level only.
82. In the absence of any authority directly on point, whilst the proposition advanced on behalf of the respondent might have merit, we are satisfied for reasons which follow that the applicant did reasonably believe that he suffered a life threatening illness within the five years before to the clinical onset of the depressive disorder (factor 6(a)(viii) of Instrument Nº 27 of 2008).
83. Whilst Dr Verhoef diagnosed the applicant as suffering from muscular type pain in December 2001, the applicant thereafter remained suspicious of an error in that diagnosis. As recorded earlier, he said that he became concerned that he was suffering from a cardiac complaint; not only because of the presence of the symptoms (which he recognised as cardiac in nature) but also because of the prevalence of cardiac illness in his family. The applicant was at December 2001 having a life-threatening medical illness or injury (refer factor 6(a)(viii)). Apprehension of life-threatening injury or illness is not a component of the factor but if it was, the applicant certainly did apprehend a life-threatening cardiac illness.
84. There are two significant issues we consider at this stage are relevant; firstly, Doctors Walton and Epstein were satisfied that despite depression having a clinical onset in June 2002, the symptoms of depression arose some months earlier. That would connect the first symptoms of depression within a point in time approximate to the clinical presentation in December 2001 which was subsequently conceded by the respondent and acknowledged by Dr Verhoef as the clinical onset of IHD.
85. Secondly, the typed notes found within the file of Dr Sheehan and recorded by the applicant indicate that although he was told by Dr Verhoef that his symptoms in December 2001 were muscular and exertion related, he did not believe that diagnosis but he was accepting of the opinion he received. In the same notes, against the year 2002, the applicant recorded that he started again suffering symptoms of extreme anxiety and depression which he thought were caused by general life experiences and events and he was always having a strong belief that something was not right with my health.
86. There were a number of events in the applicants life which might be thought to have contributed to, or be responsible for his depression and over which he was cross-examined.
87. The applicant described sexual assault during service as causing him to be frightened and powerless. He also agreed that those events did have a significantly adverse affect on him but he regarded those events and the subsequent symptoms as having resolved when he was discharged from the Navy. Dr Walton was of a similar opinion.
88. Other noteworthy events in the applicant’s life included the break down of his first marriage and the loss of a baby in his second marriage. Again, Dr Walton was of the opinion that those events (which occurred many years prior to December 2001) did not contribute to the diagnosis of depression.
89. In recent years the applicant has suffered from diabetes, plantar fasciitis and mild hypertension, all of which have been successfully treated. Those conditions are now under control. The applicant had cataract surgery with a good outcome. There were persons within the applicant’s family who have suffered depression and at least one person had suicided. Dr Walton was of the opinion that those experiences could be regarded as exposing the applicant to an elevated risk of depression.
90. The applicant was examined at some length about the nature of his self‑employment as a refrigeration mechanic. He explained that his industry is cyclical in nature, with greater demand for his services during the warmer or summer months than during the winter months. There was evidence from both the applicant and from the doctors (especially from the notes of Dr Sheehan) that the applicant did express concern about the viability of his business, his anxiety about waiting for his telephone to ring and frequently waking with a sense of nausea and a churning sensation in his stomach. However, those descriptions given by the applicant were also expressed in the context of him fearing that he would be unable to support his family. We have concluded that those fears as expressed were not related to the downturn of his business as alleged but rather, to the fear he reasonably held of having coronary disease and a consequent inability to conduct his business.
91. Many of the feelings expressed by the applicant with respect to the viability of his business are found within the clinical notes of Dr Sheehan, after the first consultation in May 2003. We think it is noteworthy that it was in August 2003 that the applicant attended Dr Verhoef – at the insistence of his wife – where it was then considered that the applicant was suffering coronary artery disease. Arrangements were made to have a number of diagnostic and pathology assessments which resulted shortly thereafter in triple by-pass coronary artery surgery. We do not think that it is coincidental that at or about the time the applicant was expressing his fear to his treating psychiatrists about the viability of his business and his concern of being unable to support his family, his coronary artery disease – which he believed he suffered since December 2001 ‑ did exist and was apparently deteriorating to the extent that cardiac surgery was undertaken soon thereafter.
92. The contents of Dr Sheehan’s file reveals that the basis of the depression and treatment of it was the applicant’s concern about his business and his fear of being unable to support his family. Certainly Dr Sheehan took a lengthy history of prior circumstances including the sexual assault during service, the outcome of his first marriage and other apparent psychiatric type illnesses within the applicant’s immediate family. The reports initially written by Dr Sheehan to the Department did not support a connection between service and depression.
93. It was suggested by Dr Epstein that Dr Sheehan may not have given attention to the applicant’s physical health (as is Dr Epstein’s practice) and in the absence of knowledge of the applicant’s fear surrounding coronary disease, consideration may not have been given to any association between those fears and the depressive disorder. The absence of the reporting and recording (in the notes) by Dr Sheehan of the coronary disease and the fears held by the applicant concerning it, may also be explained by the nature of the relationship existing between patient and doctor. More likely, as the applicant himself volunteered, he did not express his fear to Dr Sheehan of suffering from coronary disease because he is a psychiatrist, he is not a doctor (transcript of 21 January 2010, p44). Therefore, it follows that if the applicant did not express his fear of coronary disease to Dr Sheehan, that fear could not be assessed or considered by the doctor.
94. Dr Sheehan was aware in November 2003 that the applicant did have a cardiac complaint which must have been regarded as significant because at a consultation on 6 November 2003, his notes record that in the preceding two months, the applicant had a cardiac stress test, a coronary angiography and by-pass surgery. In August 2004, Dr Sheehan was asked by an officer of the VVF to provide a medical report. He was then notified that the applicant suffered a heart condition and was provided with a report from Dr Verhoef which recorded the clinical onset of IHD at a date prior to the applicant being referred to Dr Sheehan. In his reply to that request, Dr Sheehan did not make any reference at all to the applicant suffering coronary artery disease, even though he was specifically asked to consider it in the context of the reasons for the applicant suffering incapacity. Put another way, Dr Sheehan did not express any opinion at all about whether coronary disease was responsible for incapacity. He remained silent on the issue. We think it can reasonably be stated that he overlooked the presence of IHD.
95. Some time later, at the request of the Department, Dr Sheehan did complete reports about the applicant’s coronary disease and apportioned contribution to incapacity between cardiac illness and depression. It is not clear to us how Dr Sheehan was able to express those opinions because in his report of 20 September 2005, he recorded that he had not been provided with sufficient clinical information about the cardiac illness. We assume that he was able to give the opinion after making enquiries of the applicant because in the second report of 2005, he recorded that it was the applicant who indicated that the cardiac problem was the major cause of his inability to undertake employment. Despite his enquiries, Dr Sheehan did not subsequently give any opinion of a connection between depression and the cardiac illness.
96. Whilst we do not discount the applicant’s failure to discuss his cardiac illness with Dr Sheehan, at least initially, we accept the possibility that Dr Sheehan failed to consider whether a connection existed between the applicant’s coronary disease and depression, even after he was informed about the existence of the condition. We are satisfied that after December 2001, the applicant suffered depression because of a reasonably held belief that he was suffering from coronary disease.
97. We earlier raised the possibility of some dynamic within the therapeutic relationship between the applicant and Dr Sheehan that was responsible for the failure to consider the connection between coronary artery disease and depression. We think that it is noteworthy that during the first consultation with Dr Cooper, the applicant disclosed his IHD and by-pass surgery.In a report of 29 March 2007, Dr Cooper notified the Department that the applicant suffered a depressive disorder associated with anxiety which arose in the context of the development of IHD in or about 2001. He also reported that the inability on the part of the applicant to work and therefore support his family was affected by his coronary disease which in turn caused depression.
98. Dr Cooper’s opinion indicates preparedness on the part of the applicant to reveal his coronary disease to Dr Cooper and Dr Cooper’s preparedness to make enquiries of a type which caused him to become aware of its significance. The opinion also indicates preparedness on the part of Dr Cooper to determine whether there was an association between the IHD and the depression. Having made those enquiries, Dr Cooper was satisfied that the applicant’s IHD was connected to his depression because his IHD was responsible for incapacity and the incapacity in turn caused the applicant to become anxious and afraid of the prospect of not being able to support his family.
99. We are satisfied that IHD is a life-threatening illness and as recorded above, it occurred within five years before the clinical onset of depressive disorder. We are therefore satisfied and find as a fact that a connection does exist between depression and the accepted war-caused disability of IHD.
DECISION
100. The Tribunal sets aside the decision of the Veterans' Review Board dated 5 December 2008 insofar as it decided that depressive disorder was not war-caused and in substitution decides that depressive disorder is war‑caused. The application is remitted to the respondent to assess pension entitlement.
I certify that the one hundred [100] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior Member
Dr Roderick McRae, MemberSigned: Olympia Sarrinikolaou
Legal Assistant
Dates of Hearing 21 & 22 January 2010, 8 July 2010
Date of Decision 15 December 2010
Counsel for the Applicant Ms J Bornstein
Solicitor for the Applicant Ms U Noyé, Williams Winter
Counsel for the Respondent Mr G Purcell
Solicitor for the Respondent Department of Veterans’ Affairs
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