Lees and Repatriation Commission
[2005] AATA 905
•16 September 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 905
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/466
VETERANS' AFFAIRS DIVISION ) Re ALLAN LEES Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis and Dr E T Eriksen, Member Date16 September 2005
PlaceAdelaide
Decision The Tribunal affirms the decisions under review.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
VETERANS' AFFAIRS - veteran's entitlements - generalised anxiety disorder - alcohol abuse or alcohol dependence - gastro-oesophageal reflux disease - diagnosis accepted at first hearing before Tribunal - Tribunal decided that conditions not war-caused - appeal to Federal Court allowed - matter remitted to Tribunal differently constituted - fresh evidence received by respondent that applicant not suffering from generalised anxiety disorder or alcohol abuse - conflict of medical evidence - finding that applicant not suffering from asserted conditions during assessment period - decisions under review affirmed.
Veterans’ Entitlements Act 1986, s 19
Re Lees and Repatriation Commission [2002] AATA 98
Lees v Repatriation Commission (2002) 125 FCR 331
Re Lees and Repatriation Commission (2004) 82 ALD 150
Re Jebb and Repatriation Commission [2005] AATA 470
Benjamin v Repatriation Commission (2001) 70 ALD 622
Gerzina v Repatriation Commission [2004] FCAFC 96
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
16 September 2005 Deputy President D G Jarvis
and Dr E T Eriksen, Member1. The applicant is a veteran of the Vietnam War. He had nineteen days’ operational service on HMAS Sydney between 15 November and 3 December 1969, and eighteen days’ operational service between 16 February 1970 and 5 March 1970 on the Sydney. He also served on HMAS Duchess, and had six days’ operational service on that vessel between 3 and 8 April 1971 and sixteen days’ operational service between 17 May and 1 June 1971. In each case, the vessels on which he served had sailed to Vietnam.
2. On 15 April 1999 the Repatriation Commission refused Mr Lees’ claim for pension in respect of, inter alia, generalised anxiety disorder. In a second decision made on 13 December 1999, the Commission refused Mr Lees’ claim for pension in respect of gastro-oesophageal reflux disease and alcohol dependence or alcohol abuse. The Commission’s decisions were affirmed by the Veterans’ Review Board (“VRB”).
3. Mr Lees applied to this Tribunal for review of the Commission’s refusal of his claims. The hearing proceeded on the basis that the diagnosis of the asserted conditions was not in issue. The Tribunal found that there was no material pointing to the clinical onset of Mr Lees’ generalised anxiety disorder, alcohol abuse or alcohol dependence within two years of his experiencing certain asserted severe stressors and, accordingly, the hypothesis advanced by him was not consistent with the relevant Statements of Principles (“SoPs”), and was not therefore a reasonable hypothesis, and so his conditions were not war-caused. The Tribunal further decided that because there was no relevant connection between Mr Lees’ war service and his alcohol abuse, there was no relevant connection between his operational service and his gastro-oesophageal reflux. The Tribunal accordingly confirmed the Commission’s decision to reject the claims (Re Lees and Repatriation Commission [2002] AATA 98).
4. Mr Lees appealed against the Tribunal’s decision. The Full Court of the Federal Court (Heerey, Moore and Kiefel JJ) allowed the appeal on the grounds that there was material before the Tribunal to the effect that the clinical onset of Mr Lees’ generalised anxiety disorder had occurred within two years of the asserted stressors (Lees v Repatriation Commission (2002) 125 FCR 331). The Court referred in this regard to the history which Mr Lees had given to a psychiatrist whom Mr Lees had called in support of his claims and which his psychiatrist (Dr Ewer) had recounted in a medical report and in his oral evidence before the Tribunal. The formal order made by the Full Court was that “the decision of the Tribunal should be set aside, the matter remitted to the Tribunal differently constituted and the respondent ordered to pay the appellant’s costs”.
5. After the matter had been remitted to the Tribunal, the Commission requested an updated report from a consultant psychiatrist, Dr Blakemore. He reported that in his opinion, Mr Lees was not suffering from a generalised anxiety disorder, or alcohol abuse. Following receipt of this report, the Commission disputed diagnosis.
6. On the remitted hearing counsel for Mr Lees contended that on its proper interpretation, the scope of the remitter from the Court was confined to the issue on which the appeal succeeded, that is, the Court’s decision that there was material before the Tribunal pointing to the clinical onset of generalised anxiety disorder within the two-year period (that being a matter relevant only to the issue of whether Mr Lees’ condition was war-caused), and that the issue of diagnosis was not remitted for further hearing. Counsel further contended that if (contrary to his primary assertion) the remitter was not so confined, the Commission was estopped from disputing diagnosis on the re-hearing because of its concession at the first Tribunal hearing that diagnosis was not in issue. Following a directions hearing, Deputy President Jarvis decided that the remitter should not be interpreted in the restrictive manner contended for by counsel. He further decided that the Commission was not estopped from disputing diagnosis, and that to do so would not (as had also been contended on behalf of Mr Lees) be analogous to an abuse of process, or be precluded by issue estoppel or Anshun estoppel (Re Lees and Repatriation Commission (2004) 82 ALD 150). We note that a similar conclusion was reached in relation to questions of estoppel in Re Jebb and Repatriation Commission [2005] AATA 470.
Issues Before the Tribunal
7. On the re-hearing of the application before us, the issues before the Tribunal were as follows.
(a) Is Mr Lees suffering from a generalised anxiety disorder?
(b) Is he suffering from alcohol abuse?
(d) If he is suffering from either or both of those conditions, are they war-caused?
(d) Is his condition of gastro-oesophageal reflux war-caused?
It was common ground at the hearing before us that Mr Lees was suffering from gastro-oesophageal reflux disease, and that under the SoP in respect of that disease, it was war-caused if his alcohol abuse was war-caused.
Background Facts
8. The following background facts were not contested.
9. Mr Lees was born on 2 October 1952. He enlisted in the Royal Australian Navy on 7 July 1968 when he was fifteen years of age. His initial training was completed in a year at HMAS Leeuwin. Most of his training took place in the classroom. Whilst he was undergoing additional training at HMAS Penguin from 2 to 14 July 1969, he learned that his brother, who was in the Australian Army and serving in Vietnam, had been seriously injured the month before. At that stage, Mr Lees did not know the extent of his brother’s injuries. He sought compassionate leave to visit his brother in hospital at Ingleburn. He later saw him, and was extremely upset to see the effect of his injuries, which meant that his brother was then confined to a wheelchair.
10. On 26 October 1969, Mr Lees was posted to HMAS Sydney as an ordinary seaman. At this stage his training had been shore based, and he had not had any experience at sea. The Sydney sailed for Vung Tau Harbour on 15 November 1969, and was escorted by HMAS Duchess. He sailed to Vietnam again on HMAS Sydney on 16 February 1970. He also served on HMAS Duchess, and sailed to Vietnam on this vessel on two occasions, in April 1971 and in May 1971. His operational service was fifty nine days in all.
Is Mr Lees Suffering a from Generalised Anxiety Disorder
11. The question of whether Mr Lees is suffering from a generalised anxiety disorder and/or alcohol abuse must be determined on the balance of probabilities to the reasonable satisfaction of the decision-maker pursuant to s 120(4) of the Veterans’ Entitlements Act 1986 (the “Act”): Benjamin v Repatriation Commission (2001) 70 ALD 622 at [54] to [55]. The issue of the diagnosis is a separate issue from whether the conditions were war-caused, and should be addressed before determining the issue of causation.
12. At the re-hearing before us, there was a conflict of medical evidence on the issue of diagnosis of the two primary asserted conditions of generalised anxiety disorder and alcohol abuse. Mr Lees again called Dr Ewer to give evidence. He is a consultant psychiatrist, and initially examined Mr Lees at the request of the Department of Veterans’ Affairs. Later Mr Lees’ general practitioner referred him to Dr Ewer for treatment, and Dr Ewer also saw Mr Lees on a number of occasions as an outpatient, presumably of the Repatriation General Hospital, which treats veterans. By the time of the re-hearing before us, Dr Ewer had become Mr Lees’ treating psychiatrist, and he said he had seen Mr Lees on numerous occasions. Dr Ewer provided five reports, with his initial report dated 25 March 1999 and his last report dated 1 December 2004. A copy of all of the reports was tendered. Dr Ewer initially reported that Mr Lees was suffering from “alcohol abuse and dependence”, but subsequently revised this diagnosis to alcohol abuse. He also considered that Mr Lees was suffering from a generalised anxiety disorder. In his second report, which was dated 28 April 2000, Dr Ewer said that Mr Lees’ generalised anxiety disorder had responded to treatment and was then in remission. However, in each of his later reports, and in his evidence, he expressed the opinion that Mr Lees was suffering from a generalised anxiety disorder. He also reported, and gave evidence, that Mr Lees is suffering from alcohol abuse.
13. Both Dr Ewer and the psychiatrist called by the respondent, Dr Blakemore, based their diagnosis on the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (“DSM-IV”) published by the American Psychiatric Association. After Dr Ewer had been provided with a copy of a report from Dr Blakemore of 10 July 2003 (exhibit R1) Dr Ewer reviewed his diagnosis by taking additional history, and using two further instruments as aides to, or to supplement, the opinion he had already formed. The first such instrument was Davidson’s Structured Interview for Post-Traumatic Stress Disorder, and the second was the Personality Assessment Inventory (“PAI”), which he described as another American instrument developed after the DSM-IV taking into account the DSM-IV criteria. Dr Ewer said that he administered the PAI on 23 March 2004, and Mr Lees’ responses indicated that he was not trying to distort his presentation, and his scores were in keeping with a clinical anxiety disorder and a clinical alcohol problem.
14. Dr Blakemore saw Mr Lees on two occasions, each for about an hour, prior to preparing his first report, which is dated 10 July 2003. According to that report, he studied the reasons for the first Tribunal decision in this matter, the first four reports provided by Dr Ewer, an extract from the transcript of the earlier proceedings in the Tribunal containing a copy of Dr Ewer’s evidence at that hearing, and a copy of the relevant Statements of Principles. In his first report of 10 July 2003, Dr Blakemore recites the history he obtained from Mr Lees in some detail, and concludes that Mr Lees is not suffering a generalised anxiety disorder as defined by DSM-IV. Dr Blakemore refers in particular to the first diagnostic criteria for generalised anxiety disorder, and it is clear from his report and his oral evidence that he considered that there was no history of excessive anxiety and worry (apprehensive expectation) occurring more days than not for at least six months, and that the history of worries Mr Lees provided did not constitute the symptoms contemplated by DSM-IV. It is also apparent from his evidence that he considered further that Mr Lees does not find it difficult to control his worry, in the sense required by DSM-IV.
15. Dr Blakemore further considered that Mr Lees does not fulfil the diagnostic criteria in DSM-IV for substance abuse. He considered that on the history he had obtained, Mr Lees’ drinking has not resulted in a failure to fulfil major role obligations at work or at home, and that he did not fulfil the other criteria for substance abuse. In particular, he did not consider that Mr Lees’ history of his relationship with his wife and family, or at his places of employment, amounted to persistent or recurrent interpersonal problems of the degree or kind required to satisfy criterion A(4) of the DSM-IV diagnostic criteria for substance abuse.
16. Dr Blakemore provided a further report dated 2 February 2005, after obtaining an updated history from Mr Lees, and confirmed the opinions he had expressed in his earlier report, notwithstanding the views expressed by Dr Ewer in his most recent report, which was dated 1 December 2004.
17. We have carefully reviewed the reports and evidence of Dr Ewer and Dr Blakemore. We prefer the evidence of Dr Blakemore, and find that Mr Lees is not suffering from either a generalised personality disorder or alcohol abuse. Both psychiatrists refer to the importance of the patient’s history in arriving at their diagnoses. We find that Dr Blakemore was careful to obtain a detailed history from Mr Lees, and to record that history accurately. As against this, in his reports and evidence, Dr Ewer asserted in a number of instances that various relevant diagnostic criteria from DSM-IV were satisfied, but included little detail as to the symptoms of which Mr Lees was complaining. It was also apparent from his evidence that in some cases where symptoms were referred to, Dr Ewer did not, in our view, adequately investigate or particularise them.
18. We also note that Dr Ewer conceded in his evidence that on the history obtained by Dr Blakemore, he would not have diagnosed either generalised personality disorder or alcohol abuse. Counsel for Mr Lees, Mr Ower, submitted that in considering the relevance of Dr Ewer’s concession, we should have regard not only to the history obtained by Dr Blakemore, but also the evidence given by Mr Lees in the proceedings before us; that Dr Ewer, as the treating psychiatrist, has seen Mr Lees on many more occasions than Dr Blakemore and has interviewed Mrs Lees; and that the severity of Mr Lees’ condition of generalised anxiety disorder might have fluctuated and might have been less severe on the occasions when he saw Dr Blakemore. We accept the force of these submissions, and we have taken them into account. However, Mr Lees expressly acknowledged the correctness of the history recorded by Dr Blakemore, with the exception of certain matters which are, in our view, of minor import in relation to the issue of diagnosis. Although Mr Lees did provide some further information in evidence as to his symptoms and their effect on him, we do not think that that information or the other matters referred to by counsel affect the essential basis for Dr Blakemore’s conclusions.
19. It was apparent that Dr Ewer and Dr Blakemore had different views as to the severity of the symptoms that would result in a diagnosis of generalised anxiety disorder. DSM-IV should not be construed as if it were a statutory or quasi-statutory instrument; it is a diagnostic tool used by psychiatrists in conjunction with their clinical judgment (see Full Federal Court in Gerzina v Repatriation Commission [2004] FCAFC 96 at [14] (Black CJ, Heerey and Bennett JJ)). Nevertheless, we agree with Dr Blakemore’s assessment that the symptoms of which Mr Lees complained were not sufficiently severe to satisfy the criteria for generalised anxiety disorder. We note that at page 475.8, DSM-IV distinguishes generalised anxiety disorder from non-pathological anxiety, and says that worries associated with the condition “are difficult to control and typically interfere significantly with functioning, whereas the worries of every-day life are perceived as more controllable and can be put off until later”. DSM-IV goes on to say in effect that the relevant worries are more pervasive, pronounced, distressing and of longer duration and frequently occur without precipitance. Further, under diagnostic criterion E, the anxiety, worry or physical symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. Whilst we agree with Mr Ower’s contention that some of the examples given by Dr Blakemore in his evidence were extreme, we nevertheless accept Dr Blakemore’s opinion in preference to that of Dr Ewer that Mr Lees’ symptoms and their effect on him were not of sufficient significance to constitute generalised anxiety disorder. Under DSM-IV all of diagnostic criteria A to F must be satisfied before a diagnosis of generalised anxiety disorder can be made. We note Mr Lees’ evidence that he worries about matters related to his work, but he has been employed successfully for many years, and has changed employment infrequently, and then in order to move to better paid employment. We accept Dr Blakemore’s opinion that Mr Lees’ worries are not of a level sufficient to satisfy the requirements of DSM-IV, including in particular diagnostic criteria B and E.
20. As regards alcohol abuse, Dr Ewer considered that criteria A(2) and A(4) were met. These paragraphs read as follows:
“A. A maladaptive pattern of substance use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period:
…
(2) recurrent substance use in situations in which it is physically hazardous (e.g., driving an automobile or operating a machine when impaired by substance use);
…
(4) continued substance use despite having persistent or recurrent social or inter-personal problems caused or exacerbated by the effects of the substance (e.g., arguments with spouse about consequences of intoxication, physical fights)”.
Mr Lees had been diagnosed as having contracted hepatitis A in 1972 when he was serving in the Navy. It later transpired from blood tests carried out many years later that he had at that time almost certainly contracted hepatitis B, not hepatitis A. Mr Lees said that he had been advised by his general practitioner, Dr Maldari, to reduce his consumption of alcohol, as excessive consumption might damage his liver. Dr Ewer said that he told Mr Lees the same thing. Mr Lees said that notwithstanding these warnings, he did not reduce his consumption of alcohol.
21. Mr Lees gave a somewhat different history to Dr Blakemore, who reported:
“Mr Lees said he saw a specialist then and had a lot of investigations, and his doctor advised him to stop drinking for a month, and he did that, and he said the enzyme levels gradually fell. The specialist, Mr Lees said, told him that it was safe to drink again, but to keep an eye on his liver enzymes, because it was all right if they kept about the same level, but if they spiked then he might need to do something.” (exhibit R1, page 8.9).
22. Mr Lees had also said in evidence that he was referred by his general practitioner to a specialist, Dr Mounkley. A copy of a report from Dr Mounkley dated 17 November 1999 was tendered, and is exhibit A15. Dr Mounkley said in this report that Mr Lees had recovered completely from the effects of the hepatitis B, and had abnormal liver function tests which he suspected were “more due to fatty infiltration of the liver related to his body habitus and high cholesterol”. Mr Lees’ general practitioner, Dr Maldari, was not called to give evidence but his notes were tendered. There is no reference in those notes to indicate that Mr Lees’ liver will be damaged by his consumption of alcohol. Further, pathology reports of tests at various intervals between February 1997 and January 2005 were tendered, and are exhibit A18. These confirm that Mr Lees’ enzyme levels have generally fallen since reports provided in October 2000, and do not indicate that his liver function has been adversely affected by the level of alcohol he was consuming at the dates when the relevant specimens were taken.
23. On the above state of the evidence before us, we find that Mr Lees’ use of alcohol has not been harmful to his liver. In any event, we are inclined to agree with the doubt expressed by Dr Blakemore as to whether the diagnostic criterion A(2) would apply to a person who was engaging in conduct that would result in self-harm (that is, by using alcohol in circumstances which could be harmful to that person) or that this would be relevant to the diagnostic criteria for alcohol abuse. However, it is unnecessary for us to determine that question in view of our above finding.
24. We have referred above to Mr Lees’ history of employment. Whilst he gave evidence of having had some difficulties at work, we find that they are not sufficient to constitute problems of the kind described in criterion A(4) of DSM-IV. Mr Lees also gave evidence of having had some difficulties in his relationship with his wife and daughters in the past. However, the specific incidents to which he and Dr Ewer referred happened some time ago, and Mr Lees gave evidence that his relationship with his wife and daughters is now satisfactory. We prefer Dr Blakemore’s opinion that Mr Lees does not satisfy criterion A(4).
25. Neither party elected to make submissions on a further issue which we raised, that is, whether the asserted conditions must exist as at the date of our decision, or whether it would be sufficient if they existed at any time prior to that. The present proceedings arose out of claims for medical treatment and pension, or increase in pension, made by Mr Lees in respect of the asserted conditions (see exhibit A1, T5 and T6). Under s 19(5c) of the Act, the Commission (and following an application to it for review, this Tribunal standing in the shoes of the Commission) must determine the rate(s) at which pension would have been payable from time to time during the assessment period. The expression “assessment period” is defined in s 19(9) to mean in effect the period commencing when a veteran’s claim is received by the Department of Veterans’ Affairs and ending when the claim is determined. In our view it is therefore necessary to consider whether Mr Lees was suffering from the conditions on which his claim is based at any time during that period.
26. We are mindful that the Commission at first accepted diagnosis, no doubt on the basis of Dr Ewer’s reports, and that the question of diagnosis did not become an issue until after Dr Blakemore’s first report, which was dated 10 July 2003. However, from our analysis of the history given to Dr Blakemore and of Mr Lees’ evidence before this Tribunal, it appears that the matters relevant to diagnosis were not materially different in the assessment period before Dr Blakemore examined Mr Lees. Further, there is nothing before us to suggest that Mr Lees’ position has changed relevantly between the date of the hearing and the date of this decision. We have accordingly concluded that our findings as to diagnosis apply to the whole of the assessment period.
27. We must also, however, consider whether the evidence before us would lead to a finding that Mr Lees is suffering from some disease other than the conditions he has relied upon, and if so, whether that disease is war-caused (see Benjamin, supra, at [47] to [51], where the Court referred to the inquisitorial nature of the function of decision-makers). Following the conclusion of the hearing, we specifically asked counsel for the applicant whether Mr Lees asserted that any other conditions should be considered by the Tribunal in the event that his claim for the asserted conditions was not successful. At a subsequent directions hearing, both parties indicated that they did not wish to make any submissions in support of any other diagnosis. In view of this, and on our own view of the evidence before us, we find that Mr Lees has not during the assessment period suffered from any other psychiatric condition, including in particular alcohol dependence.
28. Having regard to our findings that Mr Lees is not suffering from alcohol dependence or abuse, Mr Lees’ claim in respect of gastro-oesophageal reflux disease must fail, insofar as it is based on those conditions. It was not suggested that any of the other factors in clause 5 of the SoP in respect of that disease are applicable. In those circumstances, having regard to s 120A of the Act and applying the approach suggested by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82, we are required by s 120(3) of the Act to be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that that disease is a war-caused disease.
29. For all of the above reasons, we find that Mr Lees has not during the assessment period suffered from alcohol abuse or generalised anxiety disorder. As a result of this finding it is not necessary for us to decide whether these conditions were war-caused.
Decision
30. The decisions under review are affirmed.
I certify that the 30 preceding paragraphs are a
true copy of the reasons for the decisions herein
of Deputy President D G Jarvis and Dr E T EriksenSigned: .....................................................................................
J. MacIntyre AssociateDate/s of Hearing 7, 8, 9, 11, 22 and 23 February 2005
Date of Decision 16 September 2005
Counsel for the Applicant Mr S Ower
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Ms S Maharaj
Solicitor for the Respondent Australian Government Solicitor
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