Lowe and Repatriation Commission
[2000] AATA 843
•22 September 2000
DECISIONS AND REASONS FOR DECISIONS
[2000] AATA 843
ADMINISTRATIVE APPEALS TRIBUNAL)
Nº N97/597
VETERANS' APPEALS DIVISION) Nº N98/1228
Re: SHARON KAYE LOWE
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISIONS
Tribunal: Mrs H.E. Hallowes, Senior Member
Date:22 September 2000
Place:Sydney
Decisions: Entitlement – N97/597: The decision of the Repatriation Commission dated 16 January 1996, as varied by the Veterans' Review Board on 22 April 1997, is set aside. The Tribunal substitutes a decision that the applicant's generalised anxiety disorder is defence-caused. Entitlement – N98/1228: The decision of the Repatriation Commission dated 16 January 1996, which was affirmed by the Veterans' Review Board on 17 August 1998, is set aside. The Tribunal substitutes a decision that the applicant's ulcerative colitis is defence-caused. Rate: The applicant is entitled to be paid pension under section 22 of the Veterans' Entitlements Act 1986 ("the Act") at 80 per cent of the general rate for the period from 1 May 1995, being three months before the date on which she lodged her claim for pension until the date on which Dr A. Eyers operated on her bowel in 1996 and from that date, until 2 October 1997 when she ceased work, at 100 per cent of the general rate. From 2 October 1997 until such time as the Repatriation Commission determines that the applicant is incapacitated permanently or that she has a capacity to work for periods aggregating more than eight hours per week, she shall be paid pension under section 25 of the Act.
(sgd) H.E. Hallowes
Senior Member
VETERANS' AFFAIRS — entitlement — ulcerative colitis, generalised anxiety disorder — whether connected with defence service — whether Statements of Principles apply ("SoPs") — whether SoPs uphold connection
rate — whether entitled to temporary payment at special rate
Veterans' Entitlements Act 1986 ss.5D, 22, 25, 70, 120, 120B, 196B
Statement of Principles
Instrument Nº 49 of 1994 as amended by Instrument Nº 276 of 1995 —
concerning generalised anxiety disorder
Instruments Nº 145 of 1996 as amended by Instrument Nº 180 of 1996 —
concerning inflammatory bowel disease
Brew v Repatriation Commission (1999) 56 ALD 403
Gartrell v Repatriation Commission (2000) FCA 1228 (decided 9 August 2000)
Ogston v Repatriation Commission (1999) 29 AAR 89
Repatriation Commission v Bendy (1989) 10 AAR 323
Repatriation Commission v Keeley (2000) 31 AAR 150
Re McLeod-Dryden and Repatriation Commission (1998) 53 ALD 428
REASONS FOR DECISIONS
22 September 2000 Mrs H.E. Hallowes, Senior Member
The applicant seeks review of a decision of the Repatriation Commission, made on 16 January 1996, that her cervical spondylosis, osteoarthrosis of the left shoulder, ulcerative colitis and depressive disorder were not caused by her eligible defence service. On 22 April 1997 the Veterans' Review Board ("the VRB") consented to the withdrawal of the application, so far as it related to cervical spondylosis and osteoarthrosis of the left shoulder, substituted a diagnosis of generalised anxiety disorder for depressive disorder and affirmed the decision of the Repatriation Commission with respect to that disease. On 17 August 1998 the VRB affirmed the decision of the Repatriation Commission with respect to the applicant's ulcerative colitis. On 1 May 1997 the applicant lodged an application with the Tribunal for review of the decision of the Repatriation Commission, as varied by the VRB, with respect to her generalised anxiety disorder (application number N97/597) and on 1 September 1998 she lodged an application for review with the Tribunal with respect to the decision of the Repatriation Commission in respect of her ulcerative colitis (application number N98/1228).
The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents") with respect to both applications (97T with respect to generalised anxiety disorder, 98T with respect to ulcerative colitis), together with a considerable amount of further material lodged by both parties at the hearing, particularly the Repatriation Commission. The applicant was represented at the hearing by Ms A. Toliopolous of Legal Aid (New South Wales) and the respondent was represented by Mr E. Nyhof, an advocate with the Department of Veterans' Affairs ("the department). The applicant served in the Royal Australian Air Force ("RAAF") from 23 June 1975 to 22 June 1986. Issues before the Tribunal must be determined on the balance of probabilities under sections 120(4) and 120B of the Veterans' Entitlements Act 1986 ("the Act"). The material before the Tribunal with respect to the applicant's medical condition on entry discloses nothing of relevance.
On 31 July 1995 the applicant lodged a claim for disability pension and medical treatment with respect to left shoulder and neck pain, ulcerative proctitis and anxiety state. As she is no longer contending that her left shoulder and neck pain is caused by eligible defence service, the Tribunal will make no further reference to that disability other than with respect to the rate of pension payable. The applicant stated that she was contending that her ulcerative proctitis was caused by the stress associated with her being a RAAF policewoman and that her anxiety state was caused by sexual harassment and the threat of discharge. The applicant further advised that she was born on 2 April 1956 and that her son, Nathaniel, was her next of kin. She outlined her employment history since leaving the RAAF in June 1986, being employed by the department as a data entry operator since 1994.
On medical examination at discharge on 16 June 1986, it was noted that the applicant had frequent attacks of ulcerative proctitis. The documents include advice with respect to the applicant's treatment for her proctitis, which may have been relevant to the application before the Tribunal, there being in force Statements of Principles ("SoPs") determined under subsection 196B(3) of the Act concerning Inflammatory Bowel Disease, Instrument Nº 145 of 1996 dated 26 September 1996 (98T, T20), as amended by Instrument Nº 180 of 1996 dated 9 December 1996, providing so far as relevant, that inflammatory bowel disease is a group of chronic inflammatory disorders including "ulcerative colitis, meaning a chronic inflammation of the gastrointestinal tract which primarily affects the large bowel and is usually limited to the mucosa and sub-mucosa attracting ICD Code 556".
When the applicant lodged her claim on 31 July 1995 and when the Repatriation Commission first determined the matter on 16 January 1996, no SoPs were in force concerning Inflammatory Bowel Disease. When the VRB made its decision on 17 August 1998 the 1996 SoPs mentioned above were in force although the VRB only referred to Instrument Nº 145 of 1996, making no mention of the amending Instrument Nº 180 of 1996 which came into effect in December 1996. The factor which the applicant contended existed relating her inflammatory bowel disease to her defence service was factor 5(c), which provides "inability to obtain appropriate clinical management for inflammatory bowel disease".
Turning to the applicant's claim with respect to depressive disorder, the Repatriation Commission made a decision on 16 January 1996, presumably having considered Instrument Nº 4 of 1994 concerning Depressive Disorder, rejecting the applicant's claim, having found that there was no history that the applicant had experienced a stressor. The VRB, having varied the decision under review relating to depressive disorder by substituting the diagnosis generalised anxiety disorder, considered Statements of Principle Nº 49 of 1994 as amended by Instrument Nº 276 of 1995.
The documents disclose that on 5 September 1985 Dr A. Austin, in referring the applicant to Dr J. Bergan, nutritionist, noted that the applicant had been diagnosed as suffering from ulcerative proctitis in late 1984. He reported that the condition was reasonably well controlled without medication.
It is not easy to trace the applicant's medical records within the RAAF during her service as some of the applicant's medical records are included in both sets of documents whereas other medical records are included in the further material provided by the respondent which came from the department's Military Compensation and Rehabilitation Service, as well as in material provided by the Defence Health Service Branch. The record dated 7 February 1983 discloses "blood on toilet paper". A month later there was a request for fybranta, and on 9 May 1983 a record that "haemorrhoids still bleeding". On 1 August 1983 sigmoidoscopy and haemorrhoidectomy was performed. Microscopic examination on 5 August 1983 was "highly suggestive of active Ulcerative Colitis". By 5 October 1984 intermittent bleeding for three and a half years was noted as was the procedure carried out on 5 August 1983 and ". . . Ulcerative Colitis . . . no treatment or follow up" was recorded. On 12 November 1984, Dr R. Pirola, gastroenterologist, to whom the applicant had been referred for specialist consultation, advised, so far as relevant:
. . .
History of intermittent bloody diarrhoea over 18 months with two normal BA Enemas and rectal biopsy showing ulcerative proctitis.
. . .
Sigmoidoscopy to 15 cms shows proctitis terminal 10 cms only – normal above that. Biopsies taken at 15 cm and 8 cm.
Diagnosis: Ulcerative Proctitis.
Prognosis: Good (i.e. unlikely to spread or cause significant disability, but likely to cause intermittent symptoms).
Treatment: should be minimal. Told to take Flagyl one week (remote possibility of amoebiasis) and Predsol suppositories occasionally if symptoms troublesome.
The referring letter to Dr Pirola provided a history that the applicant had had intermittent bleeding over the past three and a half years which she had attributed to haemorrhoids. She also had a significant amount of mucus and she was experiencing central colicky pain with associated abdominal distension. The applicant had presented a year earlier when a sigmoidoscopy as well as rectal biopsy was performed which showed active ulcerative colitis. A barium enema was apparently normal. She had no follow up following those investigations and she was unaware of the findings of ulcerative colitis. This was confirmed by the applicant when giving oral evidence to the Tribunal.
The second set of documents discloses "haemorrhoids playing up" on 6 December 1983 and occasional abdominal pain on 22 October 1984. Bleeding was noted. It was recorded that no radiological evidence of ulcerative colitis was found when the applicant had undergone double air contrast barium enema. On 16 April 1985 the applicant's out-patient clinical records disclose:
Posted in today. Was at Neutral Bay. Single parent. Probs with child because of posting. Now living at Liverpool with her parents. Not happy with move. Very tense + anxious. Feels she was forced out here. Advised to let herself settle down for a couple of months – if still probs to come back Õ psych.
On 5 September 1985 it was recorded that there was no rectal bleeding or mucus. The referral to Dr Bergan was noted. A psychiatric medical examination by Dr H. Sabir, local medical officer, described the applicant's symptoms as follows:
Longstanding problems with anxiety related disorder compounded by persistant, systematic ulcerative proctitis & neck, shoulder pain, considerable wt gain change in sleep pattern, including early & late insomnia. She has been irritable & gets agitated easily. She has lost concentration at work & home and has lost alot of energy lately.
The department's Military Compensation and Rehabilitation Service documents include a minute dated 24 October 1996, which noted that on 11 December 1984 the applicant was advised that she would only be allowed to continue her service in the RAAF beyond her current period of service if she was able to reconcile her domestic situation with her service duties and meet all her service obligations. It was concluded that the applicant did not want to work a shift roster. It was further noted that the applicant was highly regarded during her time as an electronic data process ("EDP") operator, but that her performance was later affected by personal problems and comments were recorded about her mood and interest in her service which were not flattering. In 1984 it was reported that she was performing very well but in 1985 her domestic situation caused her difficulty.
The applicant was born on 2 April 1956. She gave oral evidence that she left school at the end of 1974, enlisting for service in the RAAF on 22 June 1975. She enjoyed her initial training, including training as an EDP operator. However, when she was posted to Richmond Air Force Base she was not as happy as she had anticipated. The EDP section at Richmond only had four or five members. She described approaches made to her by her senior NCO which she perceived as sexual harassment. Being a junior officer who had been taught to obey her superiors she was uncomfortable and approached the Commanding Officer who told her that she was "imagining things", which made her feel let down. She was given work to do outside the section for two weeks, which she described as "colouring in", before returning to the section. Each time she was in the section she felt uncomfortable. Nothing was said.
In 1978 the applicant was re-mustered to the RAP Police, undergoing retraining in Melbourne before being posted to Fairbairn Air Force Base. At first she enjoyed her work at Fairbairn but she then discovered that she was "out of the frying pan and into the fire". She was the first female placed in the section and once again she found that advances were made to her by superior officers. She commenced a sexual relationship with one of the officers which lasted for at least a year. She then became pregnant to another officer and described her mental state as being "topsy turvy". By 1980 she described herself as being "mixed up". She was prescribed anti-depressants in the early 1980s but that fact was not recorded on her file so that it would not affect her rating. Her son was born on 6 June 1981. She arranged daycare for her child but found that her work roster kept changing. In her opinion she was discriminated against when her son became ill and she had to rely on her parents to take care of him, although a male sergeant was allowed to stay at home and look after his wife. She feels that she was deliberately made unwelcome and that subtle pressure was applied.
The applicant was eventually posted to Neutral Bay in approximately 1983, where she had the support of her parents who lived in Sydney. She then started to enjoy her work. When at Neutral Bay she was forced by another officer to have sexual intercourse against her will, but she did not report this because she feared she would not be believed. She did not find this assault as demeaning as the original sexual harassment she had experienced when she was first posted to Richmond. The applicant said that she thought she was not believed at Richmond and that she had no grounds for a transfer until she was re-mustered out of EDP in 1978. When she did ask for re-muster it came through quite quickly. She has had to try to bury the memory of her experiences but her recall is now better and names and faces have come back, particularly since she was referred by her solicitor to Dr C. Quadrio, consultant psychiatrist, for medico-legal opinion on 1 August 1996 and on 24 April 1998. When her period of engagement was up for renewal her son was of school age. She thinks that she would have passed the medical examination for re-engagement in June 1986 as far as her physical fitness was concerned, but she doubts her mental capacity would have enabled her to pass. She did not consult medical practitioners because she did not have a lot of confidence in them, although she did disclose to a RAAF doctor at Richmond in 1985 that she was not coping. It is her opinion that her anxiety state commenced when she was harassed before 1978 and that other things happened to her which kept compounding the situation. She thought she would be capable of handling it but she now feels that she failed to acknowledge how bad the situation was becoming.
When giving evidence about her ulcerative colitis the applicant said she first noticed bleeding in 1982. She underwent operation on 2 August 1983, understanding that haemorrhoids were removed and that that procedure would solve her problems. She was not told until the end of 1984 that she had ulcerative colitis. The only treatment she had been given in the RAAF was a cream to apply for an "itch". She then said she was told she had proctitis but that it was nothing to worry about and no treatment was offered. She experienced constipation and bloating but did not recognise those as sinister symptoms which should have made her suspicious. She agreed that Dr Pirola had advised her to take predsol suppositories occasionally if her symptoms were troublesome. She felt off-colour and she did not know why. As she put on weight the RAAF doctor referred her to a nutritionist who suggested that she increase her fibre intake.
The applicant was discharged on 22 June 1986. She obtained her RAAF medical file for the purpose of applying for other employment. When she found a document with respect to her ulcerative colitis she was referred for tests by her general practitioner, Dr R. Bell. He referred her to Dr A. Eyers, colorectal surgeon, whose report dated 14 August 1998 was before the Tribunal. She underwent operation in 1996 and after a number of operative procedures she is now awaiting a further operation to try and resolve her medical condition. She describes her life as "not worth living". She has been unable to complete a TAFE computer course which she commenced. She has lost confidence. She has no sexual relationship and she does not socialise. She says she feels like a misfit. She is no longer able to exhibit the dogs which she breeds. She ceased working with the department as a data entry operator in October 1997. She said that she had enjoyed that work. She has experienced years of depression and she is finding it very hard to pick herself up now. She is taking tofranil for her depression, but it is hard to get help when she needs it.
Under cross-examination, the applicant had little accurate recall of her medical history during the early 1980s, which the Tribunal accepts is a long time ago. It is more difficult for her to give an accurate medical history to the Tribunal in light of her generalised anxiety disorder. She thought that the bleeding she experienced in the early years was due to haemorrhoids or related to the birth of her child. She said that it took quite a time for her to get the courage to seek treatment. She thought that her stomach soreness was related to her periods. In November 1984 Dr Pirola had assured her that she had "nothing to worry about". She took the suppositories he prescribed to relieve her symptoms. She has no recall of seeing a dietitian, which is recorded in the documents, but she could recall that her doctor had recommended a high fibre diet in 1985. When asked under cross-examination to describe her social relationships she said that she has nothing to do with a brother who lives not far from her in country New South Wales. She described her father as "a pain in the neck", acknowledging that some of the friction between them was probably caused by her.
The applicant did not volunteer in evidence-in-chief information about the relationship which she entered into when she was stationed at Neutral Bay. The evidence indicates that it is the only relationship which has been important to her. It is disclosed in Dr Quadrio's report. Her then partner moved with her to Richmond and they moved to Bathurst together and, in 1992, bought a house at Rylestone. For a considerable number of years the applicant's son accepted that her partner was his father, although she has now advised her son that this is not so. She and her partner left the RAAF together in 1986. That relationship came to an end two or three years ago which the applicant told the Tribunal "devastated" her. The house had to be sold and the applicant found that she had no home. She described herself as a "mess". She had no one to turn to.
Dr Eyers gave oral evidence. He has treated the applicant since 1996 for ulcerative colitis. In his report dated 14 August 1998 Dr Eyers stated, having outlined the history and materials provided to him:
. . .
4)It would not be my normal practice to treat recently diagnosed ulcerative proctitis with a "wait and see" approach. I would be keen to try to obtain a clinical remission. Treatment normally involves a combination of oral Salazopyrin or an equivalent medication, along with use of topical steriods [sic] such as Predsol suppositories or Colifoam enemas. The treatment that Sharon did receive was certainly much less than this according to the records I have reviewed. Moreover the approach I have outlined was our practice in the early 1980s, although I am unsure as to whether Colifoam had become available on the Australian market at that time.
5)As regards the possibility of a different disease outcome, were the initial treatment different, there is no scientific evidence that I know to support this one way or the other. However it is logical to assume that if the disease were controlled by more aggressive therapy in its earlier stages, its dissemination and her ultimate colectomy may have been prevented.
. . .
In his later report dated 9 August 1999, Dr Eyers advised that ulcerative colitis, of which the applicant reported typical symptoms, was well described and not an uncommon clinical condition at the time she first reported symptoms. In his opinion her condition should have been diagnosed and ". . . that disease was not treated with skill and expertise that would have been expected to have been given to a civilian at that time. It was not treated specifically at all". In response to the question whether, if the appropriate treatment had been given, the disease would not have progressed or worsened to the extent that it did, Dr Eyers stated that:
This is a grey area, and I cannot make an unequivocal assertion to that effect. However a major purpose of treatment, and its frequently observed effect, is precisely to prevent the disease progressing and extending.
In giving oral evidence to the Tribunal Dr Eyers said that the applicant has a rectal fissure. He was asked to comment on the medical report from Dr P. Sacco, civilian medical officer, to Dr Pirola, dated 2 November 1984, which advised as follows:
. . .
Thank-you very much for seeing this 28 year old airwoman who I met for the first 1/12 ago. She gives a history of intermittent bright red P.R bleeding over the past 3½ years which she has attributed to haemorrhoids. She also C/O passing a significant amount of mucus and also C/O abdominal pain usually central colicky and associated with abdominal distension. There has been no weight loss or other gastro intestinal symptoms.
The patient presented to a surgeon 12/12 ago who performed a sigmoidoscopy and rectal biopsy. Showed active ulcerative colitis. A barium enema at the time was apparently normal. She has had no follow up since these initial investigations and was unaware of these findings.
On examination she appeared well not jaundiced, no stigmata of CLD. The abdomen was soft but deep palpation elicited tenderness. No abnormalities on pr except for blood and mucus on the glove. Proctoscopy revealed an erythematous congested rectal mucosa with numerous punctate bleeding sites.
Investigations1)double air contrast Barium enema
2)FBC/ESR
3)LFT'S
I would appreciate your opinion and continued management.
. . .
Dr Eyers said that the applicant had not been treated with the best medical practice "at the time". He was also referred to Dr Pirola's report of 12 November 1984 (paragraph 8 above). He said that it would not have been his way of managing the case in 1984. He could not be sure what had been the cause of the applicant's bleeding at that time. It was possible it could have been caused by her haemorrhoids. Under cross-examination, Dr Eyers said active colitis may be present even if there is no bleeding – it comes and goes of its own accord. A test may show up as normal. When Instrument Nº 145 of 1996 dated 26 September 1996 was put to Dr Eyers, the SoPs in effect when the VRB reviewed the decision of the Repatriation Commission but not in effect when the Repatriation Commission delegate made his decision on 16 January 1996, Dr Eyers said that the treatment the applicant had received was less than optimal.
Dr Eyers said that the applicant has unfortunately fallen within the 10 per cent of patients whose disease has progressed. He cannot say whether her condition is now worse because of the lack of medical treatment she received. He agreed with the opinion expressed by Dr P. Stewart, colorectal surgeon, whose report dated 10 November 1999 was obtained by the respondent and which was before the Tribunal. Dr Eyers is of the opinion that the applicant's fistula is now her main problem. She cannot work at the moment, although he is hopeful that, with further surgery, the fistula may be closed. She must presently wear a bag having undergone a total colectomy and ileostomy and mucous fistula in 1997. Because of the fistula she cannot control her discharge which is socially difficult. She no longer suffers colitis because her bowel is gone. She has undergone five procedures to try and fix the discharge and all have failed. Dr Eyers said that the applicant is therefore in a very difficult category. There are two further possible procedures which he is hopeful may assist her as she still has a good pelvic floor. If the fistula can be healed it may be possible for her to get back to work.
Dr Stewart gave evidence on behalf of the respondent. He examined the applicant on 14 October 1999, completing his report on 10 November 1999. He obtained a history that biopsy done in August 1983 showed ulcerative colitis but that the applicant was not advised of the diagnosis until the end of 1984. She recalled having a barium enema at some stage before finding out what was wrong with her. Her symptoms had worsened in 1994. In 1996 she had a loop ileostomy and a mucosal advancement flap which failed. Colonoscopy in 1997 showed extensive ulcerative colitis affecting the entire colon. Dr Stewart outlined the applicant's symptoms as follows:
. . .
Ms Lowe's symptoms at the time of her interview are of pelvic pain and a build-up of pressure. Approximately once a month there is a release of faeces both through the vagina and through the rectum which tends to relieve her pain. She finds it difficult to walk. She needs to constantly wear a pad because of mucus and faecal discharge from the vagina. She has no rectal bleeding.
Constitutionally she feels generally lethargic. Her weight has been reasonably constant. She complains of an offensive smell. She is unable to walk long distances but is able to sit without too many problems. She manages the ileostomy competently although she has had occasional leakage from the appliance. This makes her hesitant to go out socially.
. . .Dr Stewart noted that the applicant found her data processing work difficult because of poor eyesight. Having considered the relevant documents which were before the Tribunal, Dr Stewart expressed the opinion that:
. . .
The Veteran was inadequately treated and was unable to obtain appropriate clinical management between the time of the sigmoidoscopy and biopsy on 2 August, 1983, until she was reviewed by Dr Pirola on 12 November, 1984.
Therapeutic measures for patients with ulcerative colitis are guided by several factors. These include location of disease, activity of disease, duration of disease and the overall impact of the disease on the patient and his or her adaptation to the disease state. [Barkin and Green, Medical management of ulcerative colitis, in Bockus, Gastroenterology 5th Ed, WB Saunders, 1995] In addition a positive physician/patient relationship, including education and reassurance, is a strong foundation for therapeutic efficacy.
It is possible that a delay in commencing therapy may have aggravated Ms Lowe's ulcerative colitis. Commencement of Predsol suppositories would almost certainly have alleviated many of her symptoms. It could be argued that commencement of an anti-inflammatory, such as Salazopyrin, 12 months earlier may have slowed the progress of the disease although it would be impossible to prove this scientifically. The natural history of ulcerative proctitis is of a benign course with a good prognosis for over 90% of patients. Only 10% develop proximal extension of the disease and 8% require surgery. In one study, 75% of patients achieved complete resolution while receiving hydrocortisone enemas, they did not require further therapy, and results of sigmoidoscopy examination returned to normal [Farmer, RG. J. Clin Gastroenterology. 1979; 1:47-50].
. . .
I believe that the Veteran is unable to engage in any practical remunerative employment at the present time.
. . .In giving oral evidence to the Tribunal Dr Stewart said the applicant's treatment had been inadequate. He noted a report dated 25 August 1983 with respect to the sigmoidoscopy and biopsy and said that it was clearly not correct. The records point to no further treatment in August 1983, whereas in his opinion the applicant should have been immediately referred for further treatment which did not happen until 14 months later. Dr Stewart said that, with early treatment 70 per cent of patients with ulcerative colitis get better; 20 per cent will have recurrent localised colitis and in 10 per cent of patients the condition will spread. If the applicant had received early treatment it may have led to a different outcome. Her condition appeared to be well controlled until 1994. It is the natural history of the disease to get intermittently better and to get worse. Dr Stewart said he could only speculate that treatment would have changed the course of the applicant's disease. He noted that only the lower 10 cms of the applicant's bowel was affected in 1983 and he said that response to treatment is often good. The applicant may well have been cured if treated early. The evidence was that the applicant took suppositories when she needed to, but that is not the way he would have treated her. He assumed from her lack of treatment between 1983 and 1995 that her symptoms were not severe during that period. The co-operation of a patient is needed to carry out treatment. He told the Tribunal that the applicant would feel quite "lousy". She would have little energy and she would experience difficulty in concentrating.
Under cross-examination, Dr Stewart said that occasional use of suppositories would not cure the applicant's condition, although treatment would probably not have made any difference to her situation. It was something that cannot be proved one way or the other. Her treatment should have included psychological support and education. Dr Stewart considers that the applicant was "short-changed". He outlined quite a different treatment regime as being appropriate for the applicant compared to that which she was given.
The Tribunal had before it part of the transcript of the hearing before the VRB held on 22 April 1997 when the issue of when the applicant was first diagnosed as being depressed was discussed. She confirmed that in 1980 she was given about a fortnight's sick leave by one of the RAAF doctors at Fairbairn and she was prescribed anti-depressant medication. The applicant pointed to the date of 20 May 1980 in her sick leave records. She did not report depression again until she was at Richmond in about 1985.
As already indicated, the Tribunal had before it two reports from Dr Quadrio (paragraph 13 above). The applicant had said to her:
. . . Anything that happened must have been my fault because I was the one who could have done something about it, I just hate every thing that I did. . . . Where men are concerned it is me obviously who has stuffed my life up . . .
A number of the documents, as well as Dr Quadrio's report, refer to issues for the applicant with respect to childcare.
Dr Quadrio gave oral evidence to the Tribunal. It is her opinion that the applicant's psychiatric disorder is interrelated with both her ulcerative colitis and her service experiences. Dr Quadrio said that she obtained a history of symptoms sufficient for her to have diagnosed general anxiety disorder in 1980. The applicant was young and it was her first job when she was sexually harassed. She would not have known how to deal with it. In 1980 the applicant was probably depressed by the situation at work with respect to the harassment which occurred. It may have appeared to others that the applicant was coping but the sexual assaults led to a severe decompensation. The applicant was profoundly depressed when last seen by Dr Quadrio in 1998, although Dr Quadrio conceded that the applicant may not have been so depressed when seen by Dr R. Lewin, psychiatrist, a year later.
Under cross-examination Dr Quadrio expressed the opinion that the applicant is capable of rehabilitation. She is now in a self-perpetuating cycle, her physical condition giving rise to anxiety and the result of that anxiety impinging on her physical condition. In Dr Quadrio's opinion the applicant's anxiety which has been established over many years is now entrenched. She was asked to comment on the Statement of Principles Instrument Nº 49 of 1994 concerning Generalised Anxiety Disorder, which was amended in 1995 by Instrument Nº 276. In Dr Quadrio's opinion the applicant satisfies both factors 1(a), "experiencing a stressful event not more than one year before the clinical onset of generalised anxiety disorder", and 1(c) "inability to obtain appropriate clinical management for generalised anxiety disorder". Paragraph 1(c) only applies if the person's generalised anxiety disorder was suffered prior to, or during, a period of service. For the purposes of Instrument Nº 49 of 1994, generalised anxiety disorder means a psychiatric disorder meeting a description of excessive anxiety and worry, occurring more days than not during a period of six months, about a number of events which a person finds difficult to control and which is associated with three or more of six symptoms outlined in the Instrument and the focus of which is not confined to features of an Axis I disorder. The anxiety, worry or physical symptoms must cause clinically significant distress or impairment.
The history given by the applicant to Dr Quadrio satisfies the Tribunal that the departure of her partner has had a major impact on the applicant's psychiatric condition. Dr Quadrio also referred to the applicant's shoulder and arm condition. The applicant told Dr Quadrio that she has had manipulations and that there had been a considerable improvement in her neck and shoulder condition when first seen on 1 August 1996. Dr Quadrio diagnosed generalised anxiety disorder and expressed the opinion that the disorder had developed during the applicant's time in the RAAF. The applicant was not clinically depressed at the time she saw Dr Quadrio but Dr Quadrio considers that she had been significantly distressed on more than one occasion during services noting her treatment with anti-depressants. At the time of her second consultation on 24 April 1998, Dr Quadrio noted that the applicant had lost a considerable amount of weight and at that time she was profoundly depressed, and she continued to experience generalised anxiety. The applicant was easily fatigued and had difficulty concentrating and sleeping. In Dr Quadrio's opinion the applicant's psychiatric problems are largely related to her experiences of harassment during the services. Dr Quadrio provided an assessment of the applicant's emotional and behavioural state under the Guide to the Assessment of Rates of Veterans' Pensions ("the GARP"), expressing the opinion that the applicant had a rating under Chapter 4 of 52.
The Tribunal had a number of reports from Dr Lewin before it, the first one being dated 4 May 1998 in which Dr Lewin asked to see reports from the applicant's treating psychiatrist and gastroenterologist. He obtained a history similar to that provided to other practitioners who gave evidence before the Tribunal. The Tribunal notes the consistency with which the applicant has provided histories to various practitioners, despite her opinion that her recall is diminished. She did however omit to tell other than Dr Quadrio about her relationship with her partner. Dr Lewin formed the opinion that the applicant had recently experienced a major episode of depression before he saw her on 28 April 1998. He noted that she dated the onset of her depressive condition from the early 1980s. He gained the clinical impression that she withheld aspects of her history. In his view her answers with respect to her family were "cautious" and perhaps "evasive". His clinical assessment at that time was that there was no causal nexus between events described by the applicant in the workplace and her enduring condition. Having seen the applicant in November 1999, Dr Lewin reported that a range of anxiety symptoms were part of the applicant's recurrent unipolar depression. In his opinion the applicant's last episode of major depression had remitted. She had minor enduring symptoms. He now referred to generalised anxiety disorder, possibly following the decision of the VRB, and stated that that condition on its own would not prevent the applicant from working. Dr Lewin provided an impairment rating under Chapter 4 of the GARP of 18.
The applicant was also seen by Dr M. Baz, occupational physician, on 21 September 1998. Dr Baz's report dated 19 October 1998 was before the Tribunal. Dr Baz was asked to undertake an assessment of the applicant under the GARP. She noted the attempted repair of the applicant's fistula in 1996 which was unsuccessful. It appears to be about this time that the applicant's partner left. She recorded that the surgery the applicant underwent in August 1997 was complicated by renal failure. Dr Baz also noted that the applicant attended Dr Frukacz, psychiatrist, every two months and that she was taking tofranil. Dr Baz expressed the opinion that the applicant experiences severe disability as a result of her ulcerative colitis. She recorded the diagnoses of major depression and generalised anxiety disorder, cervical spondylosis and osteoarthrosis of the left shoulder. Dr Baz provided an impairment rating of 54 under Chapter 4 of the GARP, a very different impairment rating from that found by Dr Lewin. She provided an impairment rating of 40 under Chapter 6.1.2 with respect to the ileostomy and an impairment rating of 30 with respect to the fistula which causes incontinence. The applicant's dyspepsia was rated as 5, the combined impairment rating being 81.
Dr Baz also provided a lifestyle rating averaging 5 which converts to an entitlement to 100 per cent of the general rate of pension under section 22 of the Act. As did a number of other medical practitioners, Dr Baz expressed the opinion that the applicant was totally unfit for any work when seen by her, although, if the fistula can be repaired and the ileostomy removed, she considers that the applicant may then have an ability to work. Either the applicant's ulcerative colitis or her generalised anxiety disorder is sufficient, in Dr Baz's opinion, to make the applicant unfit for work for more than 8 hours a week. She agreed with the opinion expressed by Dr T. Anderson, consultant occupational physician, whose report dated 2 November 1999, was before the Tribunal, but she disagreed with the conclusions reached by Dr Lewin. Dr Baz expressed the subjective opinion that the applicant must still be depressed because of her ulcerative colitis. She related the applicant's depression to her physical condition, noting that her medication is not "very high". She conceded that the applicant's psychiatric condition was mild as the applicant is only seeing her psychiatrist every couple of months.
Dr Anderson provided a report to the Tribunal dated 2 November 1999. He advised that he had previously seen the applicant in October 1996, examining her again on 28 October 1999. On the earlier occasion he had concluded that there was nothing of significance to demonstrate with respect to the applicant's neck and left shoulder. In his report he suggested that events to which the applicant was exposed during her service with the RAAF, including sexual harassment and assault, must have had a significant effect on her. He said that it is well known that ulcerative colitis deteriorates at a time of psychological pressure. Dr Anderson stated that he found the issues in this case difficult to unravel. He posed a working hypothesis with respect to an association between the applicant's time in the RAAF and her ulcerative colitis and her mental condition. When seen by Dr Anderson the applicant was attending a TAFE college and he expressed the view that she would be able to work up to four or five half days a week, although he doubted that she would be able to sustain that effort for a significant period of time. He formed the opinion that there had been a significant deterioration in both the applicant's claimed conditions after July 1995. He was hopeful, with improvement in her gastrointestinal condition and her psychiatric state, that she would be able to return to the workforce. The Tribunal did not find Dr Anderson's report very helpful. Dr Anderson gave oral evidence to the Tribunal but that evidence took the opinion expressed in his report no further, although he did say that the applicant is well motivated.
Closing submissions were made to the Tribunal in writing before the decision in Repatriation Commission v Keeley (2000) 31 AAR 150 was handed down by the Full Federal Court on 28 April 2000 and the decision of the Full Federal Court in Gartrell v Repatriation Commission (2000) FCA 1228 was handed down on 9 August 2000. It was the applicant's contention that her generalised anxiety disorder arose out of or was contributed to by the sexual harassment she experienced during defence service and that her ulcerative colitis had also contributed to or aggravated her generalised anxiety disorder. She also contended that her "ulcerative colitis" was connected with the circumstances of her defence service due to her "inability to obtain appropriate clinical management for inflammatory disease" (factor 5(c) of Instrument Nº 145 of 1996). Ms Toliopolous referred the Tribunal to the decision of Davies J in Repatriation Commission v Bendy (1989) 10 AAR 323. Davies J said, at page 325:
. . . In each case, the reference to materiality serves to make it clear that the contribution required is a contribution of a causal nature, that a contribution which is de minimis, which did not influence the course of events or which is so tenuous as to be immaterial is to be ignored. The term "material" is here used not in the loose sense set out in definition 12 of the Macquarie Dictionary, namely, "of substantial import or much consequence" but rather in its legal sense of "pertinent" or "likely to influence".
And further at page 329:
. . .
Events may be a contributing cause of an injury or incident if they are events in the absence of which the injury or evidence would not have occurred, or would not have occurred as and when it did. . . .
Davies J went on to say, at page 330:
. . .
If the Administrative Appeals Tribunal were to form a view that Mr Bendy's disease did not arise out of his war service and was not attributable thereto, the Administrative Appeals Tribunal would then have to consider, in terms of s 9(1)(e), when the disease was contracted and whether the disease was "contributed to in a material degree by, or was aggravated by" Mr Bendy's war service.
. . .
Section 70 of the Act provides eligibility for pension with respect to incapacity from defence-caused injury or disease. Subsection 70(5), so far as relevant, provides:
70(5) For the purposes of this Act, . . . a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
. . .
(d)the injury or disease from which the member died, or has become incapacitated:
(i)was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
. . .
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or
. . .
Section 120B(3) provides:
120B(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii)a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
One of the difficulties in these matters is that the parties led evidence and made submissions with respect to SoPs which came into force after the Repatriation Commission made its decision. The parties were provided with an opportunity to lodge further submissions after the decision was handed down in Keeley's case but they did not make any further submissions with respect to what SoPs the Tribunal should apply. Ms Toliopolous contended that, if both the applicant's diseases are found to be defence-caused, relying on the evidence of Dr Baz the applicant's degree of incapacity is 100 per cent and, if it was permanent, the applicant would be entitled to be paid pension under section 24 of the Act from 2 October 1997 after she ceased work.
Mr Nyhof noted in his written submission that the SoPs concerning Generalised Anxiety Disorder, addressed by the parties during the hearing, has been revoked and replaced by Instrument Nº 2 of 2000 concerning Anxiety Disorder. He submitted that, if Instrument Nº 49 of 1994 concerning Generalised Anxiety Disorder as amended by Instrument Nº 276 of 1995 was to be applied, factors did not exist such that it could be said on the balance of probabilities the applicant's generalised anxiety disorder was connected with the circumstances of her service. The factors in the above SoPs are:
1.. . .
(a)experiencing a stressful event not more than one year before the clinical onset of generalised anxiety disorder; or
(b)experiencing a stressful event not more than one year before the clinical worsening of generalised anxiety disorder; or
(c)inability to obtain appropriate clinical management for generalised anxiety disorder.
An outline of the meaning of generalised anxiety disorder appears in paragraph 28 above.
Turning to the applicant's ulcerative colitis, the respondent submitted that the applicant was able to obtain appropriate clinical management for her ulcerative colitis. Mr Nyhof drew attention to the results of the sigmoidoscopy performed on 2 August 1983 and follow-up, including barium enema performed on 25 August 1983. Mr Nyhof contended that, in expressing their opinions, neither Dr Eyers nor Dr Stewart had the applicant's complete medical history with respect to her inflammatory bowel disease before them. Turning to assessment it was the respondent's contention that, if the applicant's diseases were accepted as defence-caused, the ratings provided by Dr Lewin should be adopted which, together with the applicant's lifestyle rating of 5, provides in the respondent's contentions a pension under the GARP of 60 per cent of the general rate. The Tribunal notes however that Dr Lewin only assessed the applicant's psychiatric condition and not her other conditions, and the respondent did not provide any evidence to dispute Dr Baz's opinion with respect to those other conditions. In any event, the respondent contended that the applicant was currently fit for work and that she was not qualified for pension payable above the general rate.
There can be no dispute that the applicant suffered from ulcerative colitis when she lodged her claim, although the removal of all of her large bowel on 22 August 1997 leaves her with no site for that disease. She now suffers from the consequences of her disease and its treatment.
The Tribunal is also satisfied that the applicant suffers generalised anxiety disorder and that, on the balance of probabilities, she suffered that condition in May 1980 when she was prescribed medication (see also Dr Sabir's report, paragraph 9 above). Dr Quadrio diagnosed that disease when she examined the applicant on 1 August 1996, and was satisfied the applicant suffered the disorder in 1980. In her Lifestyle Questionnaire, signed on 30 July 1995, the applicant disclosed that she was finding it hard to associate with people and that she was agitated by noise. She was irritable and moody. Dr U. Subhas, psychiatrist, reported on 7 December 1997 that the applicant had self-presented on 22 November 1995. Her affect was depressed although this was not sustained. She was expressing some paranoid feeling. Dr Subhas expressed the opinion that the applicant was bitter and angry with the way she had been treated in the RAAF. He recorded that she had been on the anti-depressant prothiaden since January 1995. On 28 October 1995 Dr H. Subir, local medical officer, diagnosed a longstanding anxiety-related disorder, compounded by persistent symptomatic ulcerative proctitis amongst other things. It was also noted that the applicant has been attending Dr Frukacz who prescribed tofranil for her. She was apparently placed on that medication after surgery which points to her anxiety state being linked to her ulcerative colitis.
The applicant lodged her claim on 31 July 1995. The Repatriation Commission determined the matter on 16 January 1996. At that date the Repatriation Medical Authority ("RMA") had not determined a SoPs concerning Inflammatory Bowel Disease. There was an amended SoPs in respect of generalised anxiety disorder. The Full Federal Court decided in Keeley that Mrs Keeley had an accrued right to have her matter determined under the law as it stood when the Repatriation Commission made its determination, her right then accruing. In this matter that date is 16 January 1996. In Keeley's case no SoPs was in existence at the date the claim was lodged although one was in force and applied by both the Repatriation Commission and the VRB. The relevant SoPs was revoked before the matter was determined by the Tribunal which had applied the new SoPs then in force. The Tribunal decision was set aside by the Federal Court. Similarly, in Ogston v Repatriation Commission (1999) 29 AAR 89 no SoPs had been determined by the RMA when the claim was lodged but there was a SoPs in force when the Repatriation Commission determined the matter. The Full Federal Court said that the Tribunal was plainly correct in applying the SoPs which was in force at the time the Repatriation Commission determined the matter. On 9 August 2000 both Keeley and Ogston were considered in Gartrell. The fact that there may be difficulty in reconciling the reasoning in Keeley and Ogston was not of concern to the Court in Gartrell where Ogston was followed. These authorities satisfy the Tribunal that it should apply the law in force when the Repatriation Commission determined the applicant's claim.
Turning first to the applicant's ulcerative colitis and the relevant legislation, the Tribunal notes that the definition of "disease" in section 5D of the Act does not include the aggravation of an ailment. The Tribunal finds that the applicant's disease did not arise out of nor is it attributable to her defence service (paragraph 70(5)(a)). The medical evidence does not support that proposition. The Tribunal therefore turns to paragraph 70(5)(d), being satisfied that the applicant's ulcerative colitis, which has incapacitated her, was suffered during defence service. The issue therefore is whether it was contributed to in a material degree or aggravated by defence service.
Microscopic examination on 5 August 1983 was highly suggestive of active ulcerative colitis. The Tribunal accepts the applicant's evidence that she was not made aware of that diagnosis which may have alerted her to seek further medical opinion in light of symptoms she later experienced. Sigmoidoscopy in 1983 only disclosed 10 centimetres of affected bowel. The prognosis was stated to be good, "unlikely to spread". Treatment recommended was minimal. She was re-assured by Dr Pirola. The applicant apparently had a number of visits to medical practitioners during 1984 but it was not until the eighth visit, on 5 October 1984, that she sought treatment for rectal bleeding, which had apparently been occurring for the last three and half years. The applicant told the Tribunal that she thought the source of her bleeding may be her haemorrhoids or due to the birth of her son. Had she been alerted to the diagnosis, she may have drawn medical practitioners' attention to her rectal bleeding at an early time. In certifying the applicant fit for discharge in 1986 Dr Searl noted, in the Discharge Health Statement dated 16 June 1986, possible problems in the future arising out of the applicant's ulcerative proctitis and her left shoulder and knees. The applicant had stated that she was then suffering from sprained right ankle, pain in her left arm and left knee. In Dr Eyers's opinion treatment provided was much less than he would have prescribed. There was a lack of skill and expertise. Dr Stewart agreed with this opinion, stating that the applicant's treatment had been inadequate. Although Mr Nyhof submitted that both Dr Eyers and Dr Stewart did not have a complete medical history in expressing their opinion, the Tribunal is satisfied that they had sufficient material before them such that the Tribunal can rely on their expert opinion
The issue for the Tribunal is whether the inadequate treatment the applicant received has contributed to her disease in a material degree or whether her disease was aggravated by her defence service. The expert evidence before the Tribunal was more equivocal on this issue. In his written report of 14 August 1988 Dr Eyers stated that it was logical to assume that, if the applicant's disease had been controlled by more aggressive therapy in the early stages, its dissemination and the ultimate colectomy may have been prevented. However, in giving oral evidence, he was not prepared to make an unequivocal assertion to that effect. The Tribunal notes what Dr Stewart said with respect to the need for a person to have education and to be reassured for therapeutic efficacy. He said that with better treatment, progress of the applicant's disease may have been slowed and it is possible that her condition has been aggravated. At one stage he stated that the applicant may well have been cured if treated early. The Tribunal is satisfied that the thrust of his evidence, taken together with that of Dr Eyers is such that the Tribunal finds the applicant's defence service contributed in a material degree to the aggravation of her disease due to her inability to obtain appropriate clinical management (see Bendy, paragraph 34 above). She had understood that her proctitis was being appropriately clinically managed. She was not told that the diagnosis was ulcerative colitis at a time which would have alerted her to the seriousness of her possible situation. She lacked power (Brew v Repatriation Commission (1999) 56 ALD 403) (para 26).
In considering the applicant's generalised anxiety disorder the Tribunal will consider the matter under the SoPs applied by the Repatriation Commission on 16 January 1996 in deciding whether there is a connection between her disease and the circumstances of her defence service. The Tribunal has no doubt that the applicant is bitter and that she has displayed a lot of anger with respect to what happened to her during her defence service, particularly with respect to her relationships with her superiors after she first enlisted for service. She acknowledges that she was "mixed up" and blames herself for much of what has happened. A clinical diagnosis was apparently made with respect to a psychiatric condition in May 1980 although there is no documentation on which the Tribunal can rely. There is other supporting evidence (see paragraph 40 above). A "stressful event" means an occurrence which evokes feelings of anxiety or stress. The applicant has had many of those events throughout her defence service and since. It was in 1980 that she became pregnant and one of her relationships came to an end. There is a further report of depression in 1985. The Tribunal is satisfied that there were a number of events during the early 1980s which evoked feelings of anxiety and stress in the applicant which involved her own personal relationships but it finds that there were also events such as the harassment and unwelcome attention she received as a young inexperienced recruit which led to excessive anxiety and worry during a period of time which the applicant found difficult to control. The Tribunal is reasonably satisfied that the applicant's generalised anxiety disorder was defence-caused as the material before the Tribunal raises a connection between her disease and the defence service rendered by her. The SoPs in force upholds the connection as the applicant experienced stressful events not more than one year before the clinical onset of her generalised anxiety disorder (factor 1(a)). The Tribunal accepts the applicant's evidence that, despite the lack of records, medication was prescribed in the early 1980s for her psychiatric condition. Dr Quadrio's evidence supports the Tribunal's finding.
The Tribunal finds that the applicant's psychiatric problems are related to both her experience of harassment during service, her bowel condition and the loss of her partner. The Tribunal is satisfied that the applicant's generalised anxiety disorder worsened in 1995 as a result of the deterioration in her ulcerative colitis (a stressful event) and the relationship between her disorder and her defence service is a relationship set out in paragraph 70(5)(d) of the Act. The clinical management of her ulcerative colitis during service has contributed in a material degree to her generalised anxiety disorder (factor 1(b)). The opinion formed by Dr Lewin in April 1998, in which he used the term "depression" to describe her symptoms, should not tell against the applicant in light of his later report when he referred to a range of anxiety symptoms. The Tribunal does not find that the applicant was unable to obtain appropriate clinical management for her generalised anxiety disorder. More recently the unsuccessful operations she underwent in both 1996, and particularly in August 1997, which was complicated by renal failure, have materially contributed to her generalised anxiety disorder. Memories have been suppressed by the applicant over a long period of time. The Tribunal is satisfied that the applicant has been reluctant to share her reaction to her experiences with others. Her generalised anxiety disorder is attributable to her defence service.
Dr Baz's and Dr Quadrio's assessments under Chapter 4 of the GARP are not dissimilar. They agree that the extent of the applicant's generalised anxiety disorder has varied during the assessment period, particularly since the applicant's operation in August 1997. The Tribunal is satisfied that the assessment of Dr Baz, who has considerable experience in applying the GARP, should be accepted. The Tribunal finds that the applicant had persistent symptoms causing her considerable distress which would be continually obvious to others. Her psychiatric condition moderately interfered with functions in everyday situations and post-operatively she was not in a position to work. Her evidence supports a finding that she has negligible social contact with others and she has virtually abandoned her recreational activities, no longer being able to show her dogs, although a rating of 3 rather than 5 probably best describes the current therapy. However, that rating does not change the calculations under Chapter 4.
Turning to the assessment of the applicant's rate with respect to ileostomy and fistula, only Dr Baz has provided evidence with respect to Chapter 6. The Tribunal is satisfied that those ratings are appropriate after the applicant underwent her operation in 1996. When the applicant lodged her claim the treating medical practitioner suggested that her ulcerative proctitis was reasonably well controlled. At that time Dr Sabir noted no, or minor, loss of range of movement with respect to the applicant's upper limbs although on examination there was some tenderness at the nape of the neck. Persistent pain was reported, but the Tribunal is satisfied that that condition has not impacted on the applicant's ability to work. Mr Nyhof put to the Tribunal that Dr Lewin's ratings should be accepted and it may be appropriate to accept those ratings before the applicant ceased employment when her lifestyle would have been better. There was little evidence before the Tribunal on that aspect of the applicant's claim.
The applicant gave evidence that her symptoms had worsened in 1994. She lodged her claim on 31 July 1995. In 1996 she underwent loop ileostomy and a mucosal advancement flap was attempted which failed. She apparently ceased work on 2 October 1997. The Tribunal has turned its mind to what evidence it did have before it with respect to those periods. Considering the applicant's circumstances from the date when she lodged her claim until operation in 1996, the Tribunal finds that an impairment rating of 48 rounded up to 50 is appropriate under Chapter 6 and it is satisfied that Dr Lewin's rating of 18 points under Chapter 4 is appropriate at that time, together with a lifestyle rating of 3, the average of lifestyle effects of 4, 2, 3, and 2. Converting these findings to a degree of incapacity, the applicant would be entitled to be paid pension at 80 per cent of the general rate from three months before the date on which she lodged her claim until the date in 1996 when she underwent surgery and had the loop ileostomy performed. From that date, the Tribunal is satisfied that she has an entitlement to be paid pension at 100 per cent of the general rate until such time as she ceased work on 2 October 1997. After operation, the Tribunal accepts the ratings provided by Dr Baz under Chapter 4. Even accepting Dr Lewin's rating of 18 points for generalised anxiety disorder, which the Tribunal has already indicated it is satisfied would have applied when the applicant was still working, and Dr Baz's points with respect to the applicant's other conditions and using the shaded area on scale 23.1, the applicant would be entitled to pension at 100 per cent of the general rate.
The Tribunal is further satisfied that the applicant has been temporarily incapacitated for work by her diseases which are defence-caused since she ceased employment and that, if she was so incapacitated permanently, section 24 of the Act would apply to her. The Tribunal has found that the degree of her incapacitated is at least 70 per cent and, although Mr Nyhof put to the Tribunal in his closing submission that the applicant has a capacity for work relying on the opinion of Dr Lewin, the Tribunal prefers the evidence of Dr Baz and Dr Quadrio which, together with the evidence of the applicant's treating surgeon, Dr Eyers, satisfies it that, from 2 October 1997 when she ceased work with the department and used up all her sick leave following her operation which was unsuccessful, she has been incapacitated as a result of her defence-caused diseases they have rendered her incapable of undertaking remunerative work for periods aggregating more than eight hours per week.
The Tribunal did not have the applicant's income tax return before it and it is the Tribunal's understanding that the applicant has been in receipt of disability support pension under the Social Security Act 1991. Being aware that before 2 October 1997 the applicant was in employment with the department, the Tribunal finds that her incapacity from defence-caused diseases alone has prevented her from continuing to undertake remunerative work that she was undertaking and therefore she has suffered a loss of wages which she would not otherwise have suffered. She has ceased to engage in remunerative work because of her defence-caused diseases and not for any other reason, the Tribunal finding that the cervical spondylosis and osteoarthrosis of her left shoulder no longer play a part in preventing her from working. In any event, she is below the age of 65 years and she is entitled to have the ameliorating provisions of paragraph 24(2)(b) of the Act applied to her.
It is for these reasons that the Tribunal will set aside the decision of the Repatriation Commission with respect to the applicant's generalised anxiety disorder and ulcerative colitis, and will determine the rates of pension payable to the applicant during the assessment period in line with the above reasons.
I certify that the fifty-two [52] preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs H.E. Hallowes, Senior Member
(sgd) Catherine Thomas
Personal AssistantDates of Hearing: 31.01.00 and 31.03.00
Date of Decision: 26.09.00
Solicitor for the Applicant: Ms A. Toliopolous, Legal Aid (New South Wales)
Solicitor for the Respondent: Mr E. Nyhof, Departmental Advocate
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