Manson and Repatriation Commission
[2007] AATA 66
•27 February 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 66
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2005/356
VETERANS' APPEALS DIVISION ) Re STEWART MANSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President S D Hotop
Mr W Evans, Member
Brigadier A G Warner, MemberDate27 February 2007
PlacePerth
Decision The Tribunal affirms the decision under review.
..........[Sgd S D Hotop]..........
Deputy President
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – disability pension – applicant has served in Royal Australian Navy since 1981 – applicant has rendered "defence service" and "operational service" – applicant claimed that he suffers from adjustment disorder and that his adjustment disorder is defence-caused – applicant does not suffer from adjustment disorder or any other mental disorder – decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth), s 70, s 120(4), s 120B(3) and s 196B(3)
Benjamin v Repatriation Commission (2001) 34 AAR 270
Repatriation Commission v Smith (1987) 15 FCR 327
REASONS FOR DECISION
27 February 2007 Deputy President S D Hotop
Mr W Evans, Member
Brigadier A G Warner, MemberIntroduction
1. Stewart Manson (“the applicant”) has been a serving member of the Royal Australian Navy (“RAN”) since 1981. He is presently 44 years of age.
2. He suffers from various RAN service-related physical disabilities and he presently receives a disability pension under Pt IV of the Veterans’ Entitlements Act 1986 (Cth) (“the VE Act”) at the rate of 40% of the “general rate” in respect of those disabilities.
3. He claims that he also suffers from a mental disability, namely, adjustment disorder, which is related to his RAN service.
The Issues and the Tribunal’s Determination
4.The issues for the Tribunal’s determination are:
· whether the applicant suffers from a mental disability; and, if so
· whether that mental disability is related to his RAN service.
5. For the reasons which follow, the Tribunal has determined that the applicant does not suffer from a mental disability. The issue of the relationship (if any) of any such disability to the applicant’s RAN service does not, therefore, arise.
The Evidence
6.The evidence before the Tribunal comprised:
·the “T Documents” (T1-T23, pp 1-115) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
· the oral evidence of the applicant;
·the oral evidence of Dr G Altman, and a report of Dr Altman dated 20 September 2006 (Exhibit A1); and
·the oral evidence of Dr A Mander, and reports of Dr Mander dated 13 April 2006 and 28 September 2006 (Exhibits R1 and R2).
The Factual Background
7.
The relevant background facts, as found by the Tribunal on the basis of the
T Documents, are as follows.
8. The applicant enlisted in the RAN on 10 March 1981 (when aged 19 years) and continues to serve in the RAN.
9.The applicant has rendered:
·“defence service”, within the meaning and for the purposes of Pt IV of the VE Act, from 10 March 1981 to 27 February 2002, and from 27 June 2002 to date;
·“operational service”, within the meaning and for the purposes of s 9 and Pt II of the VE Act, on board HMAS Manoora in the Persian Gulf from 28 February 2002 to 26 June 2002.
10. In a “Report of an Injury” form the applicant indicated that he suffered injuries, described by him as “lacerations, bruising, left leg, face and jaw, broken teeth”, when he was “struck by motor vehicle whilst cycling through intersection” while on duty in Cairns on 25 July 1987. (T3, p 35)
11. In a “Medical Opinion” form dated 18 March 1988, the abovementioned incident was referred to as follows:
“The veteran was involved in a pushbicycle accident in which he hit the back of a car. He suffered from a graze to the left ankle on the lateral side, a graze to the left side of the knee, bruising to the left thigh on the lateral side, and broken front teeth. At the present time the grazes to the ankle and the knee have completely healed with no sequelae and it is reasonable not to regard this as part of the present disability. He still has a resolving haematoma on the left thigh. He also has a partial denture as a consequence of the broken front teeth.
The haematoma will resolve and it is likely that there will be no sequelae to this when it resolves but the resolving haematoma may take 12 or 18 months. The veteran will be required to use dentures for the rest of his life.” (T3, p 37)
12. In a “Daily Injury Record” form dated 3 February 1997 it was recorded that on or about 2 October 1996 the applicant sustained a left shoulder injury “whilst on obstacle course at HMAS Cerberus during recruiting familiarisation”. (T3, p 25)
13. On 4 August 2003 the applicant lodged with the Department of Veterans’ Affairs a claim for disability pension, together with supporting documentation, in respect of the following disabilities (the signs and symptoms of which he first became aware of in the years specified):
· left shoulder A-C joint injury – 1996;
· left ankle injury – 1984;
· hearing loss with tinnitus – 2001;
· squashed little toes/aching feet – 2001;
· adjustment disorder – 2002.
14. On 31 August 2004 a delegate of the respondent determined that the appropriate medical diagnoses of the applicant’s abovementioned claimed disabilities were (respectively):
· small tear of the bicipital labral anchor left shoulder;
· injury lateral ligament left ankle;
· bilateral sensorineural hearing loss with tinnitus;
· bilateral acquired hallux valgus;
· adjustment disorder.
The delegate determined that:
·injury lateral ligament left ankle, and bilateral sensorineural hearing loss with tinnitus, were related to service; but that
·small tear of the bicipital labral anchor left shoulder, bilateral acquired hallux valgus, and adjustment disorder, were not related to service;
and that disability pension was payable to the applicant in respect of the abovementioned service-related disabilities at the rate of 10% of the “general rate” with effect from 4 May 2003.
15.On 19 July 2005, however, the Veterans’ Review Board (“VRB”):
·determined that bilateral acquired hallux valgus, and adjustment disorder, were not defence-caused;
·varied the diagnosis from “small tear of the bicipital labral anchor left shoulder” to “left shoulder bursitis”, and determined that left shoulder bursitis was defence-caused for the purposes of s 70 of the VE Act.
The VRB determined that disability pension was payable to the applicant in respect of his defence-caused conditions at the rate of 30% of the “general rate” with effect from 4 May 2003, and at the rate of 40% of the “general rate” with effect from 9 March 2005.
16. On 5 August 2005 the applicant applied to the Tribunal for review of the VRB’s decision.
The Applicant’s Evidence
17. At the hearing the applicant confirmed that the only part of the VRB’s decision which he was disputing was its determination regarding adjustment disorder. He also confirmed that the only mental condition which he wished the Tribunal to address was adjustment disorder, and that he was not claiming that he suffered from any mental condition other than adjustment disorder.
18. In his oral evidence the applicant focused on the injuries he sustained in 1987 (especially the broken teeth) and in 1996, referred to in paragraphs 10-12 above.
19. As regards the 1987 incident, he said that, by reason of the injury to his mouth and his broken teeth, he became more aware of his personal appearance. He said that on the night of the accident he took a photograph of his face and his “smashed teeth”, and he then thought that it was going to affect him for the rest of his life. He said that he thereafter started to experience psychological and emotional symptoms.
20. He said that it affected his behaviour while at work and added that he was told that he was “not going to make it any further in the Navy” because of his dictatorial attitude. He referred to a “Preliminary Review of Performance (PRP)” form completed by his Australian Defence Force assessor for the purpose of performance appraisal on 24 November 2003 in which he was rated “A” (“made disappointing progress”) in relation to “Interpersonal Skills” and the following comments were made:
“The main areas requiring attention by CPOSTD (Chief Petty Officer Steward) Manson are his interpersonal skills and teamwork. At times his approach is perceived as dictatorial rather than helpful. This perception has alienated him from greater numbers of fleet units from seeking his counsel and advice.” (T11, p 78)
21. He said that, socially, his problems were not “highlighted” until about the year 2000 when he got married. He said that friends would ask his wife if he was “OK”. He added that since the accident in 1987 he has walked with a “minor limp” and that people made comments about his physical stature and gait which embarrassed him.
22. As regards the left shoulder injury which he sustained in 1996, he said that he continues to experience pain symptoms which affect his spontaneously playing with his 2 young children and his spontaneous intimacy with his wife. He said that he takes medication in the form of anti-inflammatory pain-killers for his left shoulder pain.
23. He said that he did not seek psychiatric help until 2002 because he was worried about how his seeking such treatment might affect his job. He added that he did not previously think that he was the sort of person who would need psychiatric help, and that he had also found it difficult to discuss psychiatric issues with his wife.
24. He referred to a “Lifestyle Questionnaire” form which he completed on 26 May 2004 and in which he commented on the ways in which his relevant disabilities had affected, inter alia, his personal relationships as follows:
·he suffers from a constant feeling of anxiety, mood swings and depression, daily pain and loss of mobility;
·his disabilities caused frequent family conflict, outbursts of anger, and difficulty relating to children;
·he has limited social and recreational activities owing to the severity of his symptoms;
·he is unable to relate to people, and finds it difficult to maintain personal relationships;
·daily pain and loss of mobility impair his sexual function;
·medication for pain, when mixed with alcohol, exacerbates family conflict. (T11, p 71)
25. As regards psychiatric assessment, he said that he saw Dr Koller (who was described as his treating psychiatrist) in 2002 and 2003, but had not consulted him since then. More recently, he saw Dr Mander (on 3 occasions) and Dr Altman in 2006 for the purpose of medico-legal assessment.
The Medical Evidence
Dr K Koller, Psychiatrist
26. A report of Dr Koller regarding the applicant, dated 1 December 2003, is contained in the T Documents (T8, pp 61-63). That report, which is addressed to the Department of Veterans’ Affairs, states as follows:
“Herewith a psychiatric report on the above named who was examined on 26.11.2003.
COMPLAINTS
1. He walks with a limp. When he exercises left leg there is invariable pain and the next day difficulty walking. ‘People make remarks on how I walk, I can take so much’.
2. Ongoing dental treatment – there has been tooth extractions bridge work. This continues and is a stressful experience.
3. He is self-conscious of dental injuries and repairs. He avoids smiling in public. ‘People say you don’t appear to be happy’. People tend, he believes, not to approach him because he appears unfriendly.
4. He has become more anxious and worrying since the accident.
5. Somewhat restless sleep.
6. His left should (sic) is troublesome, e.g. carrying a young child. The shoulder fatigues quickly. He had to surrender golf and there was a pain to consider the next day. Swimming is a struggle. The shoulder does not allow him to react quickly to some change in posture. There is ongoing physiotherapy.
7. ‘I am also very tense, the physiotherapist says this all the time’.
8. Some depressive mood spells.
SERVICE LIFERAN 1981 – to present day. Stewart (sic). Service Funds Manager is current job title based ‘Kuttabul’.
Was involved in a push bike accident in 1987. He was hit by a truck at an intersection in the Cairns area. He suffered facial injuries especially in mouth and loss of front teeth. Also left leg was bruised, the haematoma remains in the thigh muscle (left).
Also there was a shoulder injury 1997. This occurred when he took some school children on a Navy Recruit Orientation Day that involved going over an obstacle course. Whilst bunking a young boy over a 16 foot fence he hut (sic) his left shoulder. He has had surgery for subacromial decompression.
BACKGROUND
Born in Geelong. Happy childhood. Father was a boilermaker. He has two brothers and a sister. The siblings are well.
School – Year 11.
Work – Started work on computer and sales and then joined RAN in 1981.
Married three years and has a son. His wife is of the opinion that he tends to be irritable with a short fuse.
Alcohol – Social drinking every second night – a couple of beers, ‘to wind down’.
Tobacco – nil.
Illness – Acute abdomen pain three years ago. Settled with no recurrence. No medication.
EXAMINATION
Serious concerned informant.
Cognitive functions are normal.
He is not psychotic. There are no delusions, hallucinations or thought disorder.
Average intelligence.
OPINION
The diagnosis is Adjustment Disorder. There is the development of emotional/behavioural symptoms in response to identifiable stressors, in his case, two separate injuries.
The injuries have resulted in losses both physical and psychological.
From the physical viewpoint the losses concern any free movements especially for lifting, the denial of sports especially golf, and even the free ability to lift up his young son. Walking is with a limp and causes pain.
From the psychological viewpoint there is a loss of self-esteem. He is conscious of the need for dental work and this fact alone causes anticipatory anxiety. He avoids emotional reactions as smiling as this exposes his mouth. In turn people interpret him as aloof, unfeeling and unreactive. Walking with a limp is a source of social embarrassment.
He believes that gradually with the passage of time he has become increasingly anxious and worrying, irritable and his sleep restless. There are despairing depressive mood spells.
He should attend a psychiatrist.
…”
Dr G Altman, Consultant Psychiatrist
27. Dr Altman confirmed that he saw the applicant on one occasion for the purpose of preparing a report, dated 20 September 2006. That report, which is addressed to the applicant’s solicitors and which was tendered in evidence by the applicant (Exhibit A1), states as follows:
“I am writing this report in response to your letter to me dated 9 June 2006.
Mr Manson is currently serving in the Royal Australian Navy. He stated that the following has been stressful for him
‘I suffered a pushbike accident (in 1987). I was out physical fitness training for the navy in Cairns and basically a truck ran through an intersection and cleaned me up – hit me. I had damage to my teeth and mouth, damage to my left leg and left ankle’.
He was not admitted after having x-rays at Cairns Base Hospital. Later that day he was sent to a dentist to have two front teeth removed – ‘they had been smashed’. His teeth were removed that day and the damaged teeth which had been ‘chipped’ were repaired. At a later stage he had an eight-piece bridge put in on the top (i.e. false teeth). He has ongoing problems with this bridge – he stated that for example the bridge has a tendency to chip and has had to be redone.
In terms of the injury to his leg he stated ‘I limp on the left leg because of the thigh – it was bruised that badly there is an about five centimetre haematoma’. He stated that the haematoma is not painful.
He stated that the above mentioned injuries – in particular the injury to his teeth – have affected him in the following ways:
1. ‘I do not smile because I have damaged teeth – it does not look nice – (often) gaps and chips’.
2. ‘I do not socialize as much because I am worried about people looking at my teeth and I cannot eat tough things like steak as it could damage the teeth – it draws attention to you in a group of people’.
3. ‘I am not smiling so I am often asked why I am not happy and my wife gets asked why I am not happy. Hence we do not go out in great groups’.
4. ‘I get angry when people think I am not happy’.
5. ‘People at work think I am unhappy because I do not smile around work and I am not a happy person’.
6. ‘Withdrawn’.
7. ‘I get angry’.
In addition Mr Manson stated that while serving in the navy in approximately 1997 he hurt his left shoulder when pushing a student over a sixteen foot wall. He stated that this has caused weakness in his left shoulder – ‘about 25% and pain – enough to be taking anti-inflammatories’.
He stated that the shoulder injury has affected him in the following ways:
1. It causes pain – ‘it hurts’ and he stated that for example he cannot cuddle his children for long due to this pain.
2. Pain on for example mowing the lawn.
3. It has made him more abrupt.
4. It has caused him to stop playing golf.
5. It has caused him to become frustrated – ‘that makes me angry’.
6. ‘Sad’.
7. ‘Miserable’.
He stated that prior to 1987 he was ‘a normal young bloke in the navy – physically and mentally fit. No social problems’. He stated ‘I was an open person’. He stated that now he is ‘withdrawn from family and social activities. Do not communicate well with my wife through frustration of having a sore shoulder. I do not do things as much with my children because of the pain in my shoulder’. In addition he stated ‘I get anxious in groups’ and he stated ‘I get anxious about going out to sea – whether my shoulder will stand up’. On other occasions he feels that his mood is low ‘because I cannot do the same thing that I see the dad next to me doing’.
Mr Manson drinks approximately two to three drinks of alcohol per day.
There is no history of drug abuse, nor is there a history of any conflict with the law.
In terms of his past psychiatric history he has seen two psychiatrists – he saw the one psychiatrist on two occasions and the other psychiatrist on three occasions.
He stated that he had no psychiatric or psychological problems prior to 1987.
In terms of his childhood he stated that he was ‘a normal child who struggled through school (he did averagely). Happy’. Furthermore in terms of his childhood he stated ‘it was good. Had a good childhood’.
Since leaving school he has served in the Royal Australian Navy to a large extent until the present time. He stated that he is coping at work generally, but he avoids groups and tries to appear happy without smiling.
He has been married since 2000. He stated that over the years he has noticed that he is communicating less – ‘I get too short and abrupt and angry’.
In terms of his family psychiatric history, he stated that his brother suffers from a Bipolar Affective Disorder.
His socializing is diminished as previously mentioned – he in particular attempts to avoid large groups.
He stated that he is not doing his hobbies and leisure activities such as golf and playing sport as much as he used to due to the pain he suffers.
I mentioned to Mr Manson that in my opinion a trial of an anti-depressant is recommended as it may improve some of his symptoms.
In summary in my opinion the pushbike accident has caused Mr Manson to suffer from an Adjustment Disorder. The subsequent injury to his left shoulder is also in my opinion an Adjustment Disorder. In my opinion he meets the Statement of Principles for an Adjustment Disorder in that he developed emotional and behavioural symptoms in response to the stressor (the push-bike accident in 1987 and the shoulder injury in 1997) within three months of these stressors. He stated that almost immediately, i.e. within the three month period of the stressors, he became overly anxious and he became overly conscious of his teeth for example. Furthermore his symptoms and behaviour are clinically significant in that they have caused marked distress that is in excess of what could be expected from exposure to the stressor and there has been significant impairment in his social functioning as mentioned in this report. The consequences of the stressors, i.e. his chipped teeth and shoulder injury, are ongoing. By definition he would have a chronic Adjustment Disorder in that his disturbance has lasted for more than six months. The stressors (or their consequences) are ongoing. The stressors have enduring detrimental consequences for him. By definition, in my opinion, he has a chronic Adjustment Disorder – Unspecified in that his maladaptive reactions include physical complaints, social withdrawal and some anxiety and depressive symptoms.
…”
28. In his oral evidence Dr Altman reiterated the contents of his report and did not add significantly thereto, and it is, accordingly, unnecessary to set out his oral evidence in these reasons.
Dr A Mander, Consultant Psychiatrist
29. Dr Mander confirmed that he had prepared a report, dated 13 April 2006, regarding the applicant at the request of the Department of Veterans’ Affairs. He also confirmed that he had prepared a brief supplementary report, dated 28 September 2006. Those reports were tendered in evidence by the respondent (Exhibits R1 and R2).
30. In the report of 13 April 2006, Dr Mander noted that he had seen the applicant on 3 occasions, namely, on 23 March, 6 April and 13 April 2006, and that on 6 April 2006 he had obtained a collateral history from the applicant’s wife who had accompanied the applicant on that occasion. The report continued:
“PART 1: PSYCHIATRIC HISTORY
Active Service
I understand that Mr Manson has been in the Royal Australian Navy since 1981 and is currently still serving, presently based at HMAS Stirling. He told me that he had suffered a series of injuries and that his psychiatric problems were the result of trying to manage these. He was at pains to point out that it was difficult for him to date the onset of his difficulties and that he thought that all of his physical injuries contributed to his psychiatric problems. Nevertheless he was able to say that in his view most of his psychiatric problems were secondary to his shoulder injury which occurred 3 or 4 years ago and to a lessor (sic) extent problems with his teeth following a push bike accident in 1989 and ongoing issues to do with his hearing loss and tinnitus (a further accepted disability) and his ankle and feet problems (non accepted service related disabilities).
Psychiatric Status prior to Service
No difficulties reported.
Psychiatric Status during service
It is difficult to get a clear time line on the onset of his problems. His first major accident appears to have occurred in 1989 when at a T-intersection he was hit while on his push bike by a truck and had to hang onto the truck’s bull bar. He subsequently had approximately 10 hours observation in an emergency department but was not admitted. Subsequently he tells me that he has had many dental operations and he has been self conscious about his teeth and hence avoids smiling. He said that the current state of his teeth were much better than they had been in the past although his current difficulty relates to continual breaking of his porcelain replacement teeth.
His shoulder injury which occurred ‘3 or 4 years ago’ while assisting children to vault a wall has led to ongoing pain and discomfort. He tells me that this is manageable on a daily basis and hasn’t affected his fitness rating from the Navy. Nevertheless he has to manage it by avoidance and so for instance has all but given up golf despite the fact he used to play off a handicap of 17. He was also able to describe how he could no longer do any heavy work in the garden and even light work leads to increased discomfort and the need to take anti-inflammatories.
With regards to psychiatric sequelae he told me that he would be ‘disappointed and unhappy’ for instance when invited out to a golf game because he couldn’t go. I specifically asked him to quantify what he meant by disappointment and unhappiness and it’s clear that he was referring to a mood shift that would be within the normal range and would be accurately described by those terms. He told me that he was not able to get as involved with his son who is now 4 as he would like to. His wife has pointed this out to him and he told me ‘it upsets me’. For instance he is less likely to undertake physical activities with his son and is unable for instance to take him out of a bath.
He has hearing loss and tinnitus and told me that as a result of this he would avoid noisy places like restaurants and night clubs because he simply can’t hear people. Socially therefore he and his wife are more likely to invite people to their house and perhaps a single couple at a time rather than engaging in larger social gatherings outside the house.
Overall I found Mr Manson very preoccupied with his various physical injuries both accepted and non accepted. He was clearly upset in the interview when describing these. He also ascribes to other views about himself which are negative. For instance he told me that he has been given assessments that referred to him as being dictatorial. He believes that this relates to how people see him because he smiles little as he is self conscious about his teeth and indeed believes that people think he is a sad individual. In contrast to this he told me that at work he was in actual fact very happy. He also believed that the non accepted injuries in his leg leads him to walk funny and in the Navy others observe this and ask him why he walks ‘with a carrot up your arse’. He also believes that his various problems have led him to being less intimate with females than would otherwise be the case.
Past Personal History
He was born in Geelong and had to repeat a year of school. He then joined the Navy immediately at 19 and still is a serving member.
Family History
He has an older brother, a younger brother and younger sister, the latter a nurse still living in Geelong. He told me that his father died when he was 20 following an eye operation. His mother has remarried. The family is not close but stays in touch with occasional telephone calls. He told me that his older brother, has served in the RAAF, and is taking an antidepressant.
Past Psychiatric History
Nil.
Past Medical History
This is thoroughly documented in his T documents. He tells me that with regards to his shoulder he has to have conservative measures including anti-inflammatories for the next year (and is also taking Glucosamine) and that if this is unsuccessful operative intervention may be considered but this would have only a 50% chance of helping him.
PART 2: CLINICAL EXAMINATION
Mental State Examination
Mr Manson was preoccupied with his various physical problems and with what he views as other people’s observations about him. He constantly and frequently returned to this issue throughout the assessment. He was on the verge of tears a number of times when describing his various physical problems and what he views as the failure of the Defence Force and DVA to take these seriously. However he did not appear overtly depressed or anxious, reality testing was intact and he was fully orientated in time, place and person.
Physical Examination
He walks with a slight limp to the left hand side but other than that no obvious physical abnormalities were notable.
PART 3: SUPPLEMENTARY INFORMATION
…
His wife, Angela, attended the second appointment with me. She told me that she had met her husband 7 years ago and that she was always the more sociable of the two. Nevertheless originally they went out a lot to restaurants and he was sociable. She told me that he has changed and now prefers to entertain at home and gets frustrated with his inability to hear and with his friends thinking he is standoffish. She did however say that he enjoyed entertaining at home and that he likes to cook. She said that she has noticed that he is not now as active around the house having previously been a ‘Mr fix-it’ person and that they have to get someone in in order to carry out these tasks. He is bad tempered and frustrated and more withdrawn whereas when she first met him he would be quite likely to play golf or tennis. When he has bad days they tend to last from a few hours to a few days and this will occur every 2 or so months. She told me that it affects their intimacy and that they don’t cuddle as much. When I asked her whether she saw her husband as being mentally ill she said no, she saw him more as being frustrated and moody.
…
Opinion
Mr Manson is very focused on his various physical problems and he spends a great deal of time focused on these issues. It is not uncommon for individuals to struggle with hearing impairment and physical incapacity and I think his description of being disappointed and unhappy and obviously frustrated at times is an understandable reaction to that. His social withdrawal because of difficulties with hearing is also another potent source of frustration and it is understandable that he feels happier entertaining at home. However, quite critically, his wife did not see him as being ill in any way and this is consistent with the serving member’s description where he used words such as frustrated and disappointed indicating a relatively mild reaction. I have considered the question of adjustment disorder and also whether one could consider that he had a psychiatric disorder such as depression or anxiety secondary to his basic physical problems. With regards to the latter I don’t find that his symptoms are in any way severe enough to meet this test which is of a lower order than meeting the criteria for full blown major depressive illness. The issue of an adjustment disorder is more difficult. Usually these are self limiting and it used to be considered that if they continued for longer than 6 months it was necessary to change the diagnosis. Contemporary psychiatric thinking though allows that if the stressor is still ongoing then the adjustment disorder may be present for longer than 6 months. One could certainly make the case that Mr Manson is overly focused on his physical problems and indeed this is most obvious when he talks about his teeth and the dental work that he has had done although there are no obvious abnormalities in this area. However, there is little, if any impairment in his day to day functioning except for the obvious adjustments that he has made to deal with his physical difficulties. Essentially this excludes adjustment disorder since this requires ‘significant impairment in social or occupational functioning’. There is no impairment in the former (sic) and in the case of the latter (sic) difficulties revolve around the physical problems rather than psychological complications.
Conclusion
No psychiatric disorder present.”
31. In his supplementary report of 28 September 2006 and in his oral evidence, Dr Mander emphasised that he disagreed with Dr Koller and Dr Altman in respect of the degree of severity of the applicant’s symptoms, and he reiterated that it was his opinion that the applicant’s symptoms were not sufficiently severe for a diagnosis of adjustment disorder. In terms of the diagnostic criteria for making a diagnosis of adjustment disorder, as set out in the Diagnostic and Statistical Manual of Mental Disorders (4th ed) (“DSM-IV”), Dr Mander opined that, although the applicant has emotional or behavioural symptoms in response to, in particular, his dental condition and his left shoulder condition, those symptoms are not “clinically significant” in that the degree of distress or impairment in social functioning which results from those symptoms is relatively mild and is not marked or significant.
32. Dr Mander also noted that forms of treatment are available to deal with adjustment disorder, including medication and psychological and behavioural management, but that the applicant had not sought any such treatment.
Additional medical evidence
33. The T Documents contain “Medical Impairment Assessment” forms completed by Dr A Thalagala, a RAN local medical officer, in September 2003 in relation to, inter alia, the applicant’s dental condition and left shoulder condition. As regards the applicant’s dental condition, described as “partial denture (upper) – false teeth with bridge upper front teeth”, Dr Thalagala described his symptoms as “awareness constantly” and their severity as “mild”. As regards the applicant’s left shoulder condition, described as “injury left acromioclavicular joint”, Dr Thalagala described his symptoms as “pain and discomfort, pressure feeling at the joint when working above the shoulder level” and opined that:
·there is a permanent loss of movement of the joint which is “minor”;
·the applicant is able to use his left upper limb “reasonably well in most circumstances”;
·the applicant is able to use his left upper limb “for normal tasks but with excessive fatigue towards the end of the day”. (T5, pp 51-54)
34. The T Documents also contain a report of Dr P Youssef, Consultant Rheumatologist, dated 18 August 2004, regarding the applicant’s left shoulder condition. That report, which is addressed to the Department of Veterans’ Affairs, states as follows:
“Thank you for asking me to provide a medical report on Mr Manson. You have asked me to comment on any disability related to ‘an injury left acromioclavicular joint’. I provide this report in response to your correspondence dated 27 July 2004.
I interviewed and examined Mr Manson on 11 August 2004.
I previously provided a report on Mr Manson dated 8 June 2004.
History
Mr Manson is right hand dominant. He indicated that he first developed left shoulder pain approximately eight or ten years ago when he was doing some work with school children.
Specifically, he carried a 10 or 12 year old child (weighing approximately 40 to 50 kilograms) over a 16’ wall. The child was sitting on his shoulders. He indicated that the child ground his feet into the left shoulder and that ‘it hurt a little bit’ that same day.
He did not experience any further pain until two or three weeks later. He indicated that he was unable to move his head to either side and that he experienced pain in the neck and the back of the head. He could not recall any other injury to the neck or shoulder.
He indicated that he ceased playing golf and tennis because of ongoing pain over the top of the left shoulder. Even though he is right hand dominant, he indicated to me that the symptoms in the left shoulder prevented him playing sport. Also, he was able to carry less shopping in the left hand.
He was given a corticosteroid injection approximately four years ago without any significant benefit.
Twelve months ago he underwent what he described as ‘minor surgery’ to the left shoulder performed by Dr Quain. Mr Manson informed me that ‘he told me very little’ (referring to Dr Quain). Mr Manson indicated that Dr Quain ‘cleaned out the shoulder’. Mr Manson added that he did not derive any significant benefit after surgery and that surgery was followed by six months of physiotherapy. He is currently continuing with an exercise programme. He added that the shoulder was ‘very sore today’.
He currently works on a full time basis. He informed me that pain in the left shoulder makes him get up from a desk to move around. He added that the pain is usually 5 out of 10 in severity (0 no pain and 10 being severe pain). He informed me that the pain today was 7 out of 10 in severity. He added that the pain in the left shoulder is present every day and is ‘always there’.
He informed me that he currently uses Voltaren or Nurofen twice or three times a week and that this provides some symptomatic relief. This is in contrast to the information that he gave me when I interviewed him on 2 June 2004 when he indicated that the only medication he was using was paracetamol three days out of seven.
He informed me that he has not played any sport for two years.
Examination
I noted that he was able to remove his top without difficulty. There were three small scars over the left shoulder (arthroscopy scars) which were well healed. He complained of tenderness over the superior and anterior aspect of the left shoulder. There was no wasting in the left shoulder. There was no wasting in the upper limb musculature. The forearm circumference at a distance of 10cm distal to the olecranon was 27.5cm on the left and 28cm on the right (normal difference in right hand dominant person). The arm circumferences at a distance of 10cm proximal to the olecranon were equal at 30.5cm.
There was no swelling or deformity of the left acromioclavicular joint.
There was a full range of movement in the left shoulder and no definite weakness on examination. There was no evidence of shoulder instability and there was no impingement. He complained of pain in the left shoulder on resisted abduction which was more marked with the arms supinated rather than pronated.
There were no neurological abnormalities in the upper limbs with normal power, tone, reflexes and sensation to touch.
Investigations
X-ray of the left shoulder performed on 3 August 2004 was normal.
MRI scan left shoulder performed on 7 September 2001 did not show any abnormality in the acromioclavicular joint. There was a high signal area low in the bicipital labral anchor in the MRI arthrogram left shoulder performed on 27 September 2001 showed contrast extending into the bicipital labral anchor confirming a SLAP lesion probably Type 2.
Assessment
Mr Manson complains of an eight to ten year history of pain in the left shoulder. There is no evidence of any disorder in the acromioclavicular joint. X-rays and MRI scans of the acromioclavicular joint have been normal.
He has had a SLAP lesion (small tear of the bicipital labral anchor). Such lesions may occur with forced overhead movement such as playing tennis or catching a ball. They do not occur after activities such as carrying a child on one shoulder. Furthermore, the symptoms that Mr Manson admits to after carrying the child did not become significant until three weeks later and were mainly in the neck rather than the shoulder.
Mr Manson does not admit to any other injury to the left shoulder which is surprising in view of the fact that he has had a SLAP lesion.
In my opinion there is no evidence of a work related disorder. Furthermore, his current symptoms are out of proportion to any physical abnormality.
In my opinion there is no significant ongoing impairment in the left shoulder. There has never been any disorder of the left acromioclavicular joint. There is no effect on hand function (grip strength or general dexterity).
There is no evidence of an injury related to his service with the Commonwealth Department of Veterans’ Affairs.
…” (T13)
35. A report of an operation on the applicant’s left shoulder performed by Dr J Quain on 6 December 2002 (as referred to in Dr Youssef’s abovementioned report) is contained in the T Documents. That report states:
“…
OPERATION: LEFT SHOULDER ARTHROSCOPY AND SUBACROMIAL DECOMPRESSION
SURGEON: DR J S QUAIN
ASST: LEUT. ADAM FOWLER
ANAESTH: DR S INGLIS
OPERATIVE FINDINGS: Within the shoulder joint there was no slap lesion as had been reported on the MRI. Long head of biceps was normal. There is mild wear of the central portion of the glenoid articular surface and the rotator cuff insertion is normal. Within the subacromial bursa, there is thickening of the bursa itself and a moderate subacromial spur.
...
POST OPERATIVE ORDERS: Rest in sling/passive mobilization as tolerated.” (T3, p 27)
36. The T Documents also contain a report of a RAN physiotherapist, Ms E Newby, to the effect that:
·
the applicant referred himself for treatment on 20 December 2002 –
2 weeks after his abovementioned left shoulder operation;
·he attended 6 treatment sessions between 20 December 2002 and 31 January 2003;
·the outcome of his treatment was that he had full, pain-free range of movement in his left shoulder, and no further appointments were required. (T3, p 26)
The Legislative Framework
37. Part IV of the VE Act deals with pensions for, amongst others, members of the Defence Force. Section 70(1) of the VE Act provides that, inter alia, where a member of the Forces is incapacitated from a defence-caused injury or a defence-caused disease, the Commonwealth is liable to pay pension by way of compensation to the member in accordance with that Act. By s 70(5)(a), an injury suffered, or a disease contracted, by a member of the Forces shall be taken to be defence-caused if the injury or disease arose out of, or was attributable to, any defence service of the member.
38. In s 5D(1) of the VE Act, the word “disease” is defined to mean, inter alia, “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”, and the word “injury” is defined to mean “any physical or mental injury” but not including, inter alia, a “disease”.
39. Section 120 of the VE Act deals with the standards of proof according to which various determinations under that Act are to be made. Pursuant to s 120(4), the Tribunal, in determining whether a member of the Forces is suffering from an “injury” or a “disease”, is to decide that matter “to its reasonable satisfaction”. Likewise, the Tribunal, in determining whether an “injury” or a “disease” suffered by a member of the Forces is a “defence-caused injury” or a “defence-caused disease” for the purposes of s 70 of the VE Act, is, pursuant to s 120(4), to decide that matter “to its reasonable satisfaction”.
40.Section 120B(3) of the VE Act provides:
“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.”
41.Section 196B(3) of the VE Act provides:
“If the [Repatriation Medical] Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to:
(a)eligible war service (other than operational service) rendered by veterans; or
(b)defence service (other than hazardous service) rendered by members of the Forces; or
(ba) peacetime service rendered by members;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(c)the factors that must exist; and
(d)which of those factors must be related to service rendered by a person;
before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.”
42. The Repatriation Medical Authority has determined, under s 196B(3) of the VE Act, a relevant Statement of Principles (“SoP”), namely, Statement of Principles concerning Adjustment Disorder (Instrument No 58 of 1996).
Analysis and Findings
Is the applicant suffering from a mental “injury” or a mental “disease”?
43. Pursuant to s 120(4) of the VE Act the Tribunal is required to determine this matter “to its reasonable satisfaction” – that is, on the civil standard of proof, namely, proof on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327.
44. The medical evidence relating to the applicant’s mental state chiefly comprises:
·the report of Dr Koller, dated 1 December 2003;
·the report of Dr Altman, dated 20 September 2006, and his oral evidence;
·the reports of Dr Mander, dated 13 April 2006 and 28 September 2006, and his oral evidence.
The Tribunal also notes that, in the relevant claim form lodged by the applicant on 4 August 2003 (see paragraph 13 above), Dr Thalagala, RAN Local Medical Officer, in connection with the applicant’s claim of “adjustment disorder” described the diagnosis as “stress reaction”, stated that the basis for that diagnosis was “signs and symptoms impression by the psychiatrist”, and noted that the applicant had first consulted him for this condition in 2002. (T4, p 42)
45. As regards the expert psychiatric evidence, whereas Dr Koller and Dr Altman have opined that the applicant suffers from adjustment disorder, Dr Mander has opined that he does not suffer from adjustment disorder or, indeed, any psychiatric disorder.
46.
The diagnostic criteria for the making of a diagnosis of adjustment disorder, as set out in DSM-IV (substantially reproduced in cl 2(b) of the abovementioned SoP), are as follows:
“
A. The development of emotional or behavioral symptoms in response to an identifiable stressor(s) occurring within 3 months of the onset of the stressor(s).
B. These symptoms or behaviors are clinically significant as evidenced by either of the following:
(1)marked distress that is in excess of what would be expected from exposure to the stressor
(2)significant impairment in social or occupational (academic) functioning.
C. The stress-related disturbance does not meet the criteria for another specific Axis I disorder and is not merely an exacerbation of a pre-existing Axis I or Axis II disorder.
D. The symptoms do not represent Bereavement.
E. Once the stressor (or its consequences) has terminated, the symptoms do not persist for more than an additional 6 months.
Specify if:
Acute: if the disturbance lasts less than 6 months
Chronic: if the disturbance lasts for 6 months or longer
...”
47. In the Tribunal’s opinion Dr Koller’s report of 1 December 2003 does not sufficiently address the DSM-IV diagnostic criteria for the making of a diagnosis of adjustment disorder in the applicant’s case. More specifically, Dr Koller’s report does not sufficiently address criteria A and B in the DSM-IV diagnostic criteria in that:
·it does not specify the approximate time when the relevant emotional or behavioural symptoms developed in response to the relevant stressors (described in the report as “a push bike accident in 1987” and “a shoulder injury 1997”), and no opinion is expressed to the effect that those symptoms developed within the period of 3 months of either or both of those stressors (as required by criterion A);
·it does not contain a sufficient assessment of the degree of the severity of those symptoms, and no opinion is expressed to the effect that those symptoms involved either “marked distress that is in excess of what would be expected from exposure to the stressor” or “significant impairment in social or occupational… functioning” (as required by criterion B).
As regards the latter requirement, in the Tribunal’s opinion the descriptions of the applicant’s symptoms set out in Dr Koller’s report are not indicative of symptoms which are of sufficient severity to satisfy criterion B.
48. Unfortunately, the Tribunal did not have the benefit of hearing oral evidence from Dr Koller which might have elaborated upon and clarified the contents of his report. In these circumstances, and having regard to the abovementioned considerations, the Tribunal regards it as appropriate to attach quite limited weight to Dr Koller’s report.
49. Dr Altman’s report of 20 September 2006 does specifically address the diagnostic criteria for the making of a diagnosis of adjustment disorder, but it does so by reference to the relevant SoP rather than to DSM-IV. The scheme of the VE Act contemplates that SoPs are to be used only for the purpose of determining whether an injury or a disease is war-caused or defence-caused, and, accordingly, SoPs are not relevant to the determination of the appropriate diagnosis of an injury or a disease: Benjamin v Repatriation Commission (2001) 34 AAR 270 at 280. As previously mentioned, however, the definition of “adjustment disorder” in the relevant SoP substantially reproduces the DSM-IV diagnostic criteria in respect of adjustment disorder, and, accordingly, the fact that Dr Altman’s report refers, for diagnostic purposes, to the SoP rather than to DSM-IV does not, in a practical sense, detract from its worth.
50. In his report of 20 September 2006 Dr Altman asserted that the applicant “developed emotional and behavioural symptoms in response to the stressor (the push-bike accident in 1987 and the shoulder injury in 1997) within three months of these stressors”. The basis of that assertion was expressed in the report as follows:
“He (the applicant) stated that almost immediately, ie within the three month period of the stressors, he became overly anxious and he became overly conscious of his teeth for example.”
The Tribunal has substantial reservations as to whether that basis for Dr Altman’s assertion is a sufficient basis for determining that criterion A of the DSM-IV criteria in respect of adjustment disorder has been satisfied. It seems to the Tribunal that both that basis and, indeed, the assertion itself are insufficient to satisfy criterion A in that they do not clearly meet the implicit requirement that the development of emotional or behavioural symptoms, of the degree of severity contemplated by criterion B, must have occurred within 3 months of the relevant stressor(s). To state that the applicant “became overly anxious” and “overly conscious of his teeth” within 3 months of the relevant stressor falls substantially short of stating that he developed, within that period, clinically significant emotional or behavioural symptoms evidenced by either “marked distress…” or “significant impairment in social or occupational… functioning”.
51. As regards criterion B of the diagnostic criteria in respect of adjustment disorder, Dr Altman in his report merely asserted that the applicant’s symptoms “have caused marked distress that is in excess of what could (sic) be expected from exposure to the stressor” and that “there has been significant impairment in his social functioning as mentioned in this report”. Dr Altman, however, did not explain his understanding of the phrases “marked distress” and “significant impairment” – in particular, the degree of the severity of symptoms connoted by those phrases.
52. There is a further, more fundamental, reason why the Tribunal has substantial reservations about the validity of the assertions made in Dr Altman’s report. Dr Altman in his report has made assertions and expressed opinions in relation to emotional or behavioural symptoms allegedly experienced by the applicant in response to, and within 3 months of, 2 stressors which occurred in 1987 and 1996 – that is, 19 years and 10 years, respectively, before he interviewed the applicant – and those assertions and opinions were apparently based largely, if not entirely, on the history given to him by the applicant, there being no contemporaneous reports or other material in relation to such symptoms. The Tribunal, however, has serious reservations about the applicant’s credibility regarding his emotional or behavioural symptoms for the reasons explained below.
53. The Tribunal, having observed the applicant give evidence, did not regard him as a satisfactory witness and formed the view that he gave an exaggerated account of the emotional and behavioural impacts on him of the push-bicycle incident in July 1987 and the left shoulder injury sustained in October 1996. As regards the latter, the Tribunal notes that the applicant’s evidence that he has continued to experience pain symptoms to a degree that has necessitated his taking medication in the form of anti-inflammatory pain-killers is at odds with the report of Ms E Newby, Physiotherapist, that, following a post-operative course of physiotherapy treatment from 20 December 2002 to 31 January 2003, he had full, pain-free range of movement in his left shoulder (see paragraph 36 above), and with the report of Dr P Youssef, Consultant Rheumatologist, dated 18 August 2004, in which the view is expressed that “his current symptoms are out of proportion to any physical abnormality” and that there is “no significant ongoing impairment in the left shoulder” (see paragraph 34 above). The Tribunal also notes that there is no evidence before it to the effect that the applicant sought any psychiatric or psychological treatment for his alleged emotional and/or behavioural symptoms either before 2002 or since 2003.
54. Having regard to the considerations expressed in paragraphs 49-53 above, the Tribunal has substantial reservations regarding the validity of the assertions and opinions expressed by Dr Altman in relation to the applicant’s psychiatric status.
55. Dr Mander, the Tribunal notes, had the benefit of examining the applicant on 3 occasions in March-April 2006 and, significantly, of taking a collateral history from the applicant’s wife (who, the Tribunal observes in passing, was not called as a witness in these proceedings). Having considered the contents of Dr Mander’s reports of 13 April 2006 and 28 September 2006, and of his oral evidence, the Tribunal accepts his assessment regarding the degree of severity of the applicant’s emotional and behavioural symptoms, and his opinion that the applicant does not suffer from adjustment disorder.
56. More specifically, in terms of the DSM-IV diagnostic criteria for the making of a diagnosis of adjustment disorder, the Tribunal accepts Dr Mander’s assessment that such emotional or behavioural symptoms as the applicant has developed in response to identifiable stressors, namely, the push-bicycle incident resulting in broken front teeth in July 1987 and the obstacle course incident resulting in a left shoulder injury in October 1996, are not “clinically significant” in that they are evidenced by:
·distress which is not “marked” (defined in the Macquarie Dictionary (4th ed) as “strikingly noticeable; conspicuous”), but which is of a lesser degree more appropriately described as mild; and
·impairment in social functioning which is not “significant” (defined in the Macquarie Dictionary (4th ed) as “important; of consequence”), but which is of a lesser degree more appropriately described as mild.
Furthermore, even if the applicant has developed “clinically significant” emotional or behavioural symptoms in response to the abovementioned stressors, the Tribunal, on the whole of the evidence before it, is not satisfied that he did so within 3 months of either of those stressors. In short, the Tribunal is not satisfied that either criterion A or criterion B of the DSM-IV diagnostic criteria for the making of a diagnosis of adjustment disorder is satisfied in the applicant’s case.
57. The Tribunal notes that there is no evidence before it on the basis of which it might be satisfied that the applicant is suffering from any other psychiatric disorder. Neither Dr Koller nor Dr Altman suggested any alternative diagnosis. Dr Mander, however, did briefly consider alternative diagnoses, namely, depression and anxiety disorder, but he unhesitatingly opined that the applicant’s symptoms were clearly insufficient to warrant either of those diagnoses. Dr Mander went on to conclude that the applicant was not suffering from any psychiatric disorder.
Finding
58. Having regard to the whole of the evidence before it, the Tribunal is reasonably satisfied, and finds, that the applicant is not suffering from adjustment disorder or from any other mental “injury” or mental “disease”, for the purposes of the VE Act. It is, accordingly, unnecessary for the Tribunal to consider the question whether the applicant suffers from a mental “injury” or a mental “disease” which is defence-caused.
Decision
59. For the above reasons, the Tribunal affirms the decision under review.
I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop, Mr W Evans, Member, Brigadier A G Warner, Member
Signed: ...........[Sgd Y Maker]............
AssociateDate of Hearing 31 January 2007
Date of Decision 27 February 2007
Solicitor for the Applicant Mr D Reid
Winship Lawyers
Advocate for the Respondent Mr C Ponnuthurai
Department of Veterans’ Affairs
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