Martin Phillips and Repatriation Commission
[2014] AATA 962
•24 December 2014
[2014] AATA 962
Division Veterans' Appeals Division File Number(s)
2013/2596
Re
Martin Phillips
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 24 December 2014 Place Sydney The Tribunal:
1. sets aside the decision of the Veterans Review Board dated 15 February 2013;
2. substitutes a decision that Mr Phillips suffers from bipolar II disorder which was war-caused, with effect from 26 February 2011.
..............................[ sgd]..........................................
Deputy President J W Constance
Catchwords
VETERANS – whether condition was war-caused – bipolar II disorder – whether applicant suffers condition – clinical onset of condition – Deledio principles - category 2 stressor – concerns in the work environment – decision set aside and substituted
Legislation
Veterans’ Entitlements Act 1986 (Cth) ss 9, 120, 120A(3), 120A(4)
Cases
Kaluza v Repatriation Commission [2011] FCAFC 97
Lees v Repatriation Commission [2002] FCAFC 398
Repatriation Commission v Deledio (1998) 83 FCR 82
Secondary Materials
Repatriation Medical Authority, Statement of Principles concerning Bipolar Disorder, No.27 of 2009
REASONS FOR DECISION
Deputy President J W Constance
INTRODUCTION
On 26 May 2011 Mr Phillips applied for a Disability Pension in accordance with the Veterans’ Entitlements Act 1986 (Cth). He claimed he has suffered, and continues to suffer, bipolar disorder arising out of service he rendered as a member of the Australian Regular Army in East Timor in 1999.
On 15 February 2013 the Veterans’ Review Board decided that Mr Phillips suffered from both bipolar disorder and post-traumatic stress disorder, but that neither of these conditions was caused by his service in the Army. Mr Phillips has applied to the Tribunal to review this decision, but only so far as it related to bipolar disorder.
For the reasons which follow the decision under review will be set aside and it will be decided that the bipolar disorder suffered by Mr Phillips was war-caused. The date of effect of the decision will be 26 February 2011, being three months before the day on which Mr Phillips made his initial application.
LEGISLATIVE BACKGROUND
War-caused injury
Section 9 of the Act sets out the circumstances in which an injury is taken to be "war‑caused". The relevant parts of that section are:
War caused injuries or diseases
(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war caused injury, or a disease contracted by a veteran shall be taken to be a war caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
(e)the injury suffered, or disease contracted, by the veteran:
(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service,
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered the injury or contracted the disease;
but not otherwise.
Standard of proof
Section 120 relevantly provides:
Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war caused injury, that the disease was a war caused disease or that the death of the veteran was war caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war caused injury or a defence caused injury;
(b)that the disease was a war caused disease or a defence caused disease; or
(c)that the death was war caused or defence caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
…
(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
Reasonableness of hypothesis to be assessed by reference to Statement of Principles
Subsection 120A(3) provides:
For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Subsection 120A(4) provides:
Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c)the kind of death met by the person;
as the case may be.
THE DELEDIO PRINCIPLES
In Repatriation Commission v Deledio[1] the Full Court of the Federal Court set out the steps to be taken in determining claims which arise from operational service once any issues relating to the type of service and the diagnosis of the condition suffered by the claimant have been determined. The Full Court said:
1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a SoP [Statement of Principles] determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If a SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
[1] (1998) 83 FCR 82, 97; [1998] FCA 391 (22 April 1998).
ISSUES FOR DETERMINATION
I have to determine the following issues:
(1) Did Mr Phillips render operational service and if so, when?
(2) Does Mr Phillips suffer from bipolar disorder?
(3) If he does, when was the clinical onset of bipolar disorder?
(4)Considering all the material before the Tribunal, does it point to a hypothesis connecting the bipolar disorder with the circumstances of the operational service?
(5)If such a hypothesis is raised, is there a relevant Statement of Principles in force?
(6)If a relevant Statement of Principles is in force, is the hypothesis consistent with the “template” within that Statement and therefore a reasonable one?
(7)If so, considering section 120(1), am I satisfied beyond a reasonable doubt that the disease suffered by Mr Phillips was not war-caused?
DETERMINATION OF THE ISSUES
Issue 1: Did Mr Phillips render operational service and if so, when?
It is not in dispute that Mr Phillips rendered operational service as a member of the Australian Regular Army in East Timor from 27 September 1999 to 18 December 1999.
Issue 2: Does Mr Phillips suffer from bipolar disorder?
It is necessary to determine whether Mr Phillips suffers from bipolar disorder according to the standard of “reasonable satisfaction” as set out in subsection 120(4) of the Act.
Evidence of Dr Dinnen, Consultant Psychiatrist
Dr Dinnen provided reports dated 18 November 2013, 30 April 2014 and 18 August 2014 respectively[2] and gave evidence. He reviewed the various medical reports and records contained in exhibit R1. He examined Mr Phillips for the purposes of these proceedings on 4 November 2013.
[2] Exhibits A2, A3 and A4 respectively.
Dr Dinnen took a history from Mr Phillips that he consulted three different psychiatrists while he was in the Army and that he was diagnosed with depression in late 2000. He was treated with medication. In 2007 he was referred by his general practitioner to Dr Garrity, Psychiatrist. Dr Garrity diagnosed Mr Phillips as suffering from bipolar disorder. His medication was changed. Mr Phillips continues to consult Dr Garrity.
In the years since 2000, Mr Phillips has identified periods of depression and periods of significant manic episodes. He recalls manic episodes in 2000, 2003, 2007 and 2010.
In his report of 18 November 2013 Dr Dinnen stated:
The patient has been subjected to a large number of psychiatric evaluations, and all of them indicate that psychiatric illness commenced after his service in East Timor. The academic argument as to the nature of the diagnosis and the range of opinion from one or two conditions to several coexisting is not uncommon. I believe most psychiatrists in clinical practice over any period of time will agree that these diagnostic formulations are always rubbery and much depends on the clinical acumen of the treating psychiatrist with regard to diagnosis and management. In this case I find Dr Garrity’s management of this patient even though he attended intermittently over a number of years to be exemplary. The use of psychological therapy and support from the local doctor has been of a high order. I believe the opinions of these therapists should be given great weight.[3]
[3] Exhibit A2, p.14.
In the opinion of Dr Dinnen, Mr Phillips suffers from post-traumatic stress disorder and bipolar II disorder, both of which commenced shortly after his service in East Timor and are attributable to that service. Dr Dinnen found nothing in the information at interview or in the documentation which would indicate that Mr Phillips suffered a psychiatric disorder prior his service in East Timor.
When he gave evidence Dr Dinnen said that the post-traumatic stress disorder may have triggered the bipolar disorder and then have settled.
Evidence of Dr Smith, Consultant Psychiatrist
Dr Smith gave evidence and provided reports dated 5 March 2014 and 15 April 2014 respectively.[4] He examined Mr Phillips on 21 February 2014 for the purposes of these proceedings and reviewed the documentation in exhibit R1 and other records.
[4] Exhibits R2 and R3 respectively.
Based on the history obtained from Mr Phillips, the documentation and the examination, Dr Smith diagnosed him as suffering a major depressive disorder in partial remission.[5] He accepted that bipolar disorder is “a possible alternative diagnosis based upon the symptoms reported.”[6] Mr Phillips appeared to have experienced the onset of symptoms in 2000 and these symptoms could have been related to either an adjustment disorder with depressed mood or a major depressive disorder. Dr Smith reported that he would be “more comfortable with establishing the diagnosis of Bipolar Affective Disorder if [he] had the opportunity to look more in detail at Mr Phillips' symptomologies at the time he experiences an elevation in mood.” [7] Also, he is of the opinion that bipolar disorder occurs at a younger age than was Mr Phillips at the alleged time of onset and that there is typically a family history of the disorder which was absent in Mr Phillips’ case.
[5] Exhibit R2 p.12.
[6] Exhibit R2 p.12.
[7] Exhibit R2 p.14.
In the opinion of Dr Smith there is no clinical evidence that the bipolar disorder, even if accepted, is related to the circumstances of Mr Phillips' military service. He reported that a “diagnosis of an Adjustment Disorder in relation to Mr Phillips' difficulties in transferring from the British to the Australian Army and the lack of support he experienced from his superiors [is] an equally consistent diagnosis.” [8]
[8] Exhibit R3 p.2.
Report of Dr Garrity, Consultant Psychiatrist
Mr Phillips was referred to Dr Garrity in 2007 by his General Practitioner, Dr Gordon. He consulted Dr Garrity twice in 2007 and then not until February 2011. During 2011 he attended at least six consultations.
After Dr Garrity first reviewed Mr Phillips in 2011 he changed his diagnosis to bipolar disorder. On 15 August 2011 Dr Garrity reported, in part;
My DSM IV diagnosis for him now would now be Bipolar Disorder Type II, as he has a clear history of recurrent episodes of Major Depression and more recently gives a history of features consistent with a diagnosis of Hypomania; a history of both Hypomanic episodes and Major Depressive episodes is what qualifies a person for a diagnosis of Bipolar Disorder Type II. [9]
[9] Exhibit R1 pp.37-38.
Discussion
Based on the evidence of Mr Phillips, Dr Garrity and Dr Dinnen, I am satisfied on the balance of probabilities that Mr Phillips suffers from bipolar II disorder. In reaching this conclusion I have placed considerable weight on the opinion of Dr Garrity, Mr Phillips' treating specialist. Dr Garrity had the advantage of a consultation with Mr Phillips in 2007, after he had experienced a hypomanic episode.
The opinion of Dr Garrity is supported by Dr Dinnen. Dr Dinnen provided careful reasoning in support of his opinion and explained why it may take several years to diagnose bipolar II disorder. While Dr Smith also provided carefully considered evidence in support of his opinion, he was very fair in his assessment in acknowledging that if he had the opportunity to look in more detail at Mr Phillips' symptomologies, he may agree with Dr Garrity’s diagnosis.
When was the clinical onset of bipolar disorder?
In the opinion of Dr Dinnen, the clinical onset of the bipolar II disorder was when Mr Phillips returned from East Timor in December 1999.[10] Mr Phillips suffered a depressive episode upon his return from East Timor in December 1999. Dr Dinnen based his diagnosis on this and subsequent episodes of depression and hypomania.
[10] Transcript 5 November 2014.
In Lees v Repatriation Commission [11] the Full Court of the Federal Court held that in determining clinical diagnosis the decision-maker cannot depart from the definition of the condition contained in the Statement of Principles. In Kaluza v Repatriation Commission [12] the Court held that clinical onset occurs either when symptoms can be identified which permit a doctor to say that the condition was present at that time or when a finding is made on investigation when a person attends a doctor.
[11] [2002] FCAFC 398, at [13-16].
[12] [2011] FCAFC 97, at [66].
The Statement of Principles concerning Bipolar Disorder[13], to which I shall refer in more detail later in these reasons, defines bipolar II disorder as:
….a psychiatric disorder that meets the following diagnostic criteria (derived from DSM-IV-TR):
A. Presence (or history) of one or more major depressive episodes.
B. Presence (or history) of at least one hypomanic episode.
C. There has never been a manic or a mixed episode.
D. The mood symptoms in criteria A and B are not better accounted for by schizoaffective disorder and are not superimposed on schizophrenia, schizophreniform disorder, delusional disorder, or psychotic disorder not otherwise specified.
E. The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
[13] No 27 of 2009.
Mr Phillips did not report experiencing a hypomanic episode until the time he left his post in the Army, in July or August 2000. This is confirmed in the history taken by Dr Dinnen, referred to in his report of 18 November 2013[14]:
[Mr Phillips] feels he had another [hypomanic] episode which was a lot milder at the time he left the Australian Army. He was gambling. He was looking to buy 4 million dollar houses and believing that he could buy them, even though his wage was $50,000 per year. He lost money on the stock market. ...
[14] Exhibit A2 p.6.
Based on the evidence of Mr Phillips and Dr Dinnen, I am satisfied that the clinical onset of Mr Phillips' bipolar II disorder was no later than August 2000. At this time there were symptoms which would allow a doctor to say that the condition was present.
Issue 3: Considering all of the material before the Tribunal, does it point to a hypothesis connecting the bipolar disorder with the circumstances of Mr Phillips' operational service?
Material before the Tribunal
Evidence of Mr Phillips
Mr Phillips was born in England. He is a Science graduate and prior to immigrating to Australia in 1999 he was a Captain in the British Army. Just before he resigned from the British Army he was promoted to the rank of Major. He joined the Australian Army with the rank of Captain in January 1999.
Mr Phillips was posted to Toowoomba in Queensland. He found the senior ranks to be “cold and dismissive” towards him. He felt he was regarded as a foreign officer. Notwithstanding this, he established a very good working relationship with the younger soldiers and the junior officers.
In 1999 he was deployed to the Northern Territory on exercise. He was the only officer in command of 40 soldiers. On completion of the exercise, in which the team’s participation was not to the expected standard, Mr Phillips was asked to write a report. He was told by a Major that he was a “Pommy bastard” and that he would regret the report. Later he was told that the Major was trying to have him charged with alleged misconduct whilst on the exercise. He continued to be treated in a dismissive manner, particularly in meetings and in the Officers’ Mess.
Also in 1999, Mr Phillips was asked by his Commanding Officer to prepare a report on a loss of equipment for which the Operations Team had responsibility. Prior to delivering the report, Mr Phillips was harassed by officers of the Operations Team to make a finding exonerating team members from responsibility and to provide a copy of the report to the team before handing it to the Commanding Officer. When Mr Phillips did not do this and delivered a report finding the team responsible for the loss, he was told that “life will be miserable”. At this point Mr Phillips spoke to his Commanding Officer about the manner in which he was being treated, however, so far as he is aware, no action was taken against those responsible.
Mr Phillips' Squadron was placed on standby to be deployed to East Timor in the latter half of 1999. At this time he became aware that some officers of the Operations Team asked the Commanding Officer to have him removed from standby. The Commanding Officer did not accede to this request.
Mr Phillips was deployed to East Timor on 27 September 1999. He was second-in-charge of the Operations Squadron which consisted of over 100 personnel. He was responsible for the Squadron when the Major was absent.
Whilst in East Timor, Mr Phillips had daily contact with a Major who was not within his chain of command. Mr Phillips said that when this Major arrived in East Timor “the daily onslaught started”. The Major attempted to give orders to Mr Phillips which he was not entitled to give and which Mr Phillips regarded as “dangerous”. At times Mr Phillips was ordered to move troops and vehicles for no apparent reason. He declined the Major’s verbal orders and was told by the Major that he would “make life hell” for him. Mr Phillips' other dealings within his Squadron were positive.
Mr Phillips felt belittled and embarrassed by an incident which occurred while he was stationed in Dili when his unit was to be inspected by an Australian Army General. When Mr Phillips asked the General if he wished to speak to the troops the only response he received was for the General to question whether the boots Mr Phillips was wearing were army issue. This was despite Mr Phillips’ boots being issued to him solely by reason of suitable regulation footwear being unavailable. These comments were made in front of members of the Squadron. The General did not address or inspect the troops despite their having been assembled for this purpose.
The conduct Mr Phillips experienced made him feel anxious and threatened and was a major distraction to the performance of him duties. He was keen to perform well. Prior to joining the Australian Army he had never experienced such harassment.
The Squadron was deployed out of Dili after approximately six weeks. Mr Phillips was repeatedly contacted by the Major who continued to denigrate him. Mr Phillips sought assistance on several occasions from his Commanding Officer in Australia and from his superior officer in East Timor; so far as Mr Phillips is aware, no action was taken and the Major’s conduct continued as before.
After Mr Phillips' deployment out of Dili he entered a compound near where he was stationed. He observed a schoolroom which appeared to have been hurriedly abandoned by children of similar age to his own child. He found this experience distressing.
On another occasion he entered a room in Balibo near where Australian journalists had been killed. He observed blood stains on the wall and was told that women had been raped and murdered in the room. He was distressed by what he saw.
Mr Phillips was also concerned by the conduct of an officer in leaving images of bestiality on a computer screen. At some stage he became aware that others working in the area thought that he was responsible for the images.
Mr Phillips was unaware of any legal officers in Dili with whom he could lodge a complaint. As he was embarking to leave East Timor he was asked by a psychologist if he any concerns arising from his tour of duty. This occurred as hundreds of members were lined up to board the ship and one psychologist was tasked to interview all of them. He did not feel this was an appropriate opportunity to discuss what had happened to him. At the time he was unaware of the Army’s grievance process.
By the time he returned to Australia in December 1999, Mr Phillips felt that the Army had let him down. He felt confused and lacked his previous confidence. He found it difficult to speak to groups of soldiers and to brief other officers. He said that he felt “generally upset”.
Mr Phillips left his workplace in July or August 2000 and did not return to duties in the Army after that time. He was discharged medically unfit for service on 31 January 2002.
In the two years following his return from East Timor, Mr Phillips experienced tiredness, loss of appetite and loss of interest in previous hobbies. He lacked pleasure from taking part in family activities. At times during this same period, he engaged in irresponsible gambling, irrational conduct (such as negotiating to buy property well beyond his means) and planning unrealistic projects. He described feeling “incredible spurts of energy”.
Mr Phillips’ service medical records show that he first consulted a psychiatrist in October 2000. He was diagnosed as suffering depression.[15] An entry dated 15 June 2001 reported that he had suffered depressive illness “since Jan/Feb 2000”.[16]
[15] Exhibit A6 p.55.
[16] Exhibit A6 p.55.
At times Mr Phillips had the ability to be a very productive employee. Shortly after his discharge from the Army he obtained employment as a Project Manager with a national company. He was quickly promoted to a position earning a substantial salary but was made redundant in 2002. During this time he also suffered many depressive episodes.
Evidence of Mr Gooding
Mr Gooding gave evidence and provided a statement dated 21 August 2014.[17]
[17] Exhibit A1.
Mr Gooding was a member of the Australian Army from 1978 until 1998. He re-joined in 1998 and commenced as a career manager in 2000. During his previous service he had been trained as a harassment contact officer. Shortly after re-joining he worked under the command of Mr Phillips. They were posted to East Timor together.
In his statement Mr Gooding said, in part:
During the lead up to East Timor he would go to briefings and meetings and come back stressed. This became worse in East Timor. There were a couple of episodes I can recall. I clearly recall when a Lieutenant or Brigadier General visited our operations centre to have a look around. All he focussed on was Martin Phillip's boots and how he was English. He walked in and we were all ready to show him our electronic equipment and he looked at Martin Phillips' boots and said "those are not normal Australian army boots." Martin said "no" and I believe because he answered with a British accent the general said "Are you exchanged from the British Army" Martin then said "no sir I am part of the Australian army" The general then said that "those are not normal army boots you should be wearing normal Australian army boots and setting an example to your troops and waved his hand."
This was said in front of half a dozen people including two Corporals, a Sergeant and WO 2. This really undermined Martin Phillip as he was the Captain of the Operations Squad. I observed that Martin was embarrassed, undermined and belittled. I was pretty angry at the General for such a display of belittling an Officer in front of the troops. You just don't do that.
...
Martin was a Captain and anyone abusing him was of a higher rank. He was being harassed by a Major there who didn't do his job and Martin was trying to do his job as well. Martin was left with it all as the Major didn't do a great deal of work at all. The way Martin was trying to do his job of operations and the Major's job and the stress of trying to do both in a war zone really affected Martin. I saw this and tried to help him out. It was all insidious and not obvious and overt. Things wouldn't get done and he would have to do them and it wasn't his role. He was the person that everyone looked to so the responsibility fell on him and he tried to live up to that. He was trying to do a Major's job and a Captain's job.
We would sit down and say "I am having to continually do the boss's job and it is wrong" and he was very stressed as he was working ridiculously long hours. The one that affected me most was the general's behaviour but it was pretty bad. It really affected Martin from that point on. It was like someone had punched in the stomach or pulled the carpet out - Martin had no authority after that. He was trying to act with authority but he had lost his esteem and confidence.
Medical evidence
In addition to the reports and evidence of Dr Dinnen and Dr Smith, there are numerous reports and medical records in exhibit R1. This material has been reviewed by both Dr Dinnen and Dr Smith in reaching their respective conclusions and I have taken that material into account.
Consideration
The hypothesis put on behalf of Mr Phillips is that “the constant and unrelenting harassment directed at Mr Phillips during his operational service in East Timor from 27 September 1999 to 18 December 1999 led to, or substantially contributed to, his bipolar disorder.” [18]
[18] Transcript 5 November 2014.
I am satisfied that the material before me as to Mr Phillips’ treatment by other officers in East Timor, and the evidence of Dr Dinnen as to the condition from which Mr Phillips suffers and the probable cause of that condition, points to the hypothesis put forward on behalf of Mr Phillips.
Issue 4: Is there a relevant Statement of Principles in force?
There is in force a Statement of Principles concerning Bipolar Disorder No.27 of 2009. Clause 3(b) specifies that the Statement of Principles relates to bipolar II disorder as well as other conditions.
Issue 5: Is the hypothesis consistent with the “template” within the Statement of Principles and therefore a reasonable one?
Clause 4 of the Statement of Principles provides:
The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that bipolar disorder and death from bipolar disorder can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces under the VEA, or members under the Military Rehabilitation and Compensation Act 2004 (the MRCA).
Clause 5 provides:
Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Clause 6(a)(iii) provides:
The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting bipolar disorder or death from bipolar disorder with the circumstances of a person’s relevant service is:
(a) for bipolar I disorder, bipolar II disorder, bipolar disorder not otherwise specified and cyclothymia only,
...
(iii) experiencing a category 2 stressor within the one year before the clinical onset of bipolar disorder; ...
A category 2 stressor is defined in clause 9 to mean in part:
... one or more of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry:
...
(c) having concerns in the work … environment including: on-going disharmony with fellow work … colleagues, perceived lack of social support within the work …environment, perceived lack of control over tasks performed and stressful work loads, or experiencing bullying in the workplace …
On the basis of the material, the hypothesis proposed fits within the template of Mr Phillips experiencing a category 2 stressor during the period of his operational service in East Timor.
There is material pointing to the effects of Mr Phillips’ treatment by his colleagues as being chronic and causing him to feel on-going distress. The evidence of Mr Phillips and Mr Gooding point to this, as does the opinion of Dr Dinnen.
There is also material pointing to on-going disharmony with work colleagues, particularly with the Major referred to by both Mr Phillips and Mr Gooding. The evidence as to the conduct of the Major is consistent with Mr Phillips' experiencing bullying in the workplace.
The material as to Mr Phillips' unsuccessful attempts to have action taken in respect of his treatment by the Major is consistent with Mr Phillips' perceived lack of support within his work environment.
Further the material points to Mr Phillips experiencing the category 2 stressor within one year before the clinical onset of bipolar II disorder in July or August 2000.
I conclude that the hypothesis is a reasonable one.
Issue 6: Am I satisfied beyond a reasonable doubt that the disease suffered by Mr Phillips was not war-caused?
Having seen and heard both Mr Phillips and Mr Gooding give evidence I am satisfied that each was an honest and reliable witness and I accept their evidence. On the basis of the evidence of Dr Dinnen and the report of Dr Garrity I am satisfied that Mr Phillips does suffer from bipolar disorder which was caused by the manner in which he was treated in his work environment in East Timor. On the basis of this evidence I cannot be satisfied that the bipolar disorder suffered by Mr Phillips was not war-caused.
CONCLUSION
The reviewable decision, being the decision of the Repatriation Commission made 16 November 2011, will be set aside.
In substitution it will be decided that Mr Phillips suffers from bipolar II disorder which was war-caused, with effect from 26 February 2011.
I certify that the preceding 68 (sixty -eight) paragraphs are a true copy of the reasons for the decision herein of ...........................[sgd].............................................
Associate
Dated 24 December 2014
Date(s) of hearing 5-6 November 2014 Date final submissions received 6 November 2014 Counsel for the Applicant L J Karp Solicitors for the Applicant Legal Aid NSW Advocate for the Respondent G Purcell; Department of Veterans' Affairs
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