McCabe and Repatriation Commission
[2008] AATA 753
•26 August 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 753
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 2005/1075
VETERANS' APPEALS DIVISION ) Re JOHN THOMAS McCABE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Regina Perton, Member Date26 August 2008
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (sgd) Regina Perton
Member
VETERANS' AFFAIRS ‑ veterans’ entitlements ‑ generalised anxiety disorder ‑ alcohol abuse ‑ hypertension ‑ whether conditions war-caused – whether entitled to pension at special rate
Veterans' Entitlements Act 1986 ss 9, 23, 24, 120(1), 196B(2)
Benjamin v Repatriation Commission (2001) 70 ALD 622
Lees v Repatriation Commission [2002] FCAFC 398
Re Stonehouse and Repatriation Commission [2004] AATA 707
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission vGorton (2001) 110 FCR 321
Repatriation Commission v Hill [2002] FCAFC 192
Repatriation Commission v Keeley (2000) 98 FCR 108
Stoddart v Repatriation Commission (2003) 197 ALR 283
White v Repatriation Commission [2004] FCA 633
REASONS FOR DECISION
26 August 2008 Regina Perton, Member 1. John McCabe, who is now 62 years old, served in the Royal Australian Navy (the navy) from 6 January 1962 to 24 November 1967. During 1965 and 1966, he spent several periods in the Far East Strategic Reserve and in Vietnamese waters. These periods constitute operational service under the Veterans' Entitlements Act 1986 (the Act).
2. Mr McCabe is currently receiving a disability pension at 90 per cent of the general rate. Mr McCabe suffers from a large number of medical conditions, several of which have been accepted by the Repatriation Commission (the Commission) as war‑caused conditions. On 7 September 2004, Mr McCabe submitted a claim for additional conditions to be accepted as war-caused. He is also seeking a special rate pension, which is a higher rate of pension, paid to a working-age recipient who is unable to work due to his accepted disabilities alone.
3. Mr McCabe’s claim was rejected by the Commission on 29 June 2005. The Veteran’s Review Board (VRB) affirmed the decision on 26 October 2005. Mr McCabe lodged an application for review with the Tribunal on 29 November 2005.
WHAT ARE MR McCABE’S MEDICAL CONDITIONS?
4. The Commission has accepted that Mr McCabe’s medical conditions of bilateral sensorineural hearing loss, bilateral tinnitus, chronic simple bronchitis and osteroarthrosis of the left knee are war-caused. The Commission rejected Mr McCabe’s claims that schizophrenia, chondromalacia left patella, appendicitis with operation, anxiety/depression, atrial fibrillation, generalised anxiety disorder, hypertension, skin problems and depressive disorder were war‑caused conditions.
5. In the claim under consideration, Mr McCabe sought additional disability pension on the basis of nervous problems, blood pressure problems and skin problems. The Tribunal is required to determine to its reasonable satisfaction whether Mr McCabe suffers from any particular injury or disease (Benjamin v Repatriation Commission (2001) 70 ALD 622). There is no dispute that Mr McCabe suffers from generalised anxiety disorder, depressive disorder and hypertension. Therefore, the Tribunal needs to make a determination on whether each of these conditions is war-caused.
ARE THE CONDITIONS WAR‑CAUSED?
Legal Framework
6. Mr McCabe’s service on the following dates was classified as operational service under the Veterans’ Entitlements Act 1986 (the Act).
Malaysia, Singapore and Brunei
·31 March 1965 to 7 May 1965
·27 May 1965 to 17 July 1965
·29 July 1965 to 1 September 1965
·24 March 1966 to 4 May 1966
Vietnam
· 25 April 1966 to 9 May 1966
· 26 May 1966 to 9 June 1966
7. Section 9 of the Act provides that where an injury or disease results from an occurrence that happened while the veteran was rendering operational service or where it arose out of, or was attributable to that service, the injury or disease will be taken as being war-caused. Causation questions such as these, where a veteran has rendered operational service, are addressed by applying the standard of proof in s 120(1) of the Act. That requires decision-makers to determine that an injury or disease is war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
8. In the circumstances of this case, where Mr McCabe has rendered operational service, the issue of whether the diagnosed conditions were caused by operational service is to be decided by reference to the four-step process identified by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97:
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 an 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 an 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.
Is generalised anxiety disorder war-caused?
9. Mr McCabe said that he realised his boyhood ambition by joining the navy just before his sixteenth birthday. He completed his recruit training at HMAS Leeuwin in Western Australia and at HMAS Cerberus in Melbourne. After two months at the latter, in April 1963, Mr McCabe was posted to HMAS Vendetta which served in the Far East as part of the South East Asia Treaty Organisation’s Far East Strategic Reserve . He said that, as a 17 year old who had never been away from home before, he found the experience of operating heavy guns frightening and overwhelming. He frequently became drunk. He was lonely and suffered health problems in Singapore.
10. After completing a gunnery course, Mr McCabe transferred to HMAS Yarra in July 1964. He stated that during this posting he made many trips to Vietnam escorting HMAS Sydney (the Sydney). His ship’s role was to protect the Sydney by positioning itself on the inward side of the Sydney, so that any mines floating into the river or the bay would strike HMAS Yarra first. He told the Tribunal that he was frightened, isolated and hopeless. He observed American aircraft bombing in nearby hills and valleys. He did not enjoy being confined in small spaces such as being locked up in the Gunnery Fire Control Room at action stations. He was also afraid of being hit accidentally by American gunners operating in helicopters flying overhead. He explained that in Borneo, HMAS Yarra would approach fishing boats at night and his task was to operate the search light. He said that this exposed him to particular danger if the vessel being searched opened fire, although no such incident occurred.
11. Mr McCabe also said that on other occasions he felt anxious when he was required to aim a machine gun at the occupants of vessels being searched. He said that his ship was constantly on alert while patrolling the Malacca Straits in the search for Indonesian troops who might have been in small fishing vessels. He described his fears when operating in company with an aircraft carrier, after hearing about the sinking of HMAS Voyager in 1963.
12. Mr McCabe said that heavy drinking enabled him to cope more easily with the constant stress, loneliness and homesickness. He felt anxious and more and more nervous. He became involved in fights, was anti-social and lacked self-confidence. He said that he did not trust anyone on‑board, and felt as if he was about to be thrown overboard. Mr McCabe described the experience on HMAS Yarra as unhappy and said that he was pleased to finish his posting in December 1966.
13. After leaving HMAS Yarra, Mr McCabe returned to Perth and was married on 3 December 1966. Mr McCabe said that he was sent to HMAS Leeuwin in a training role, supervising young recruits but he and his wife were very unhappy, isolated and distressed. He was still drinking heavily. He told the Tribunal that in October 1967 the navy agreed to send him back to Melbourne and he was discharged on medical grounds in November 1967.
14. Under cross-examination, Mr McCabe agreed that his hospitalisation in Singapore in 1963 caused anxiety because he did not know the extent of his medical problem or its possible consequences. He also agreed that he had enjoyed his time as a gunnery sailor on HMAS Vendetta, and his navy experience in general until 1967, when he returned to HMAS Leeuwin. He said that by this time his wife was unhappy living in Perth and he felt disillusioned with the navy. He also felt that he had let himself and his country down.
15. In a report dated 10 February 2006 Dr Nigel Strauss, consultant & occupational psychiatrist, stated that Mr McCabe’s generalised anxiety disorder came about as a consequence of his cumulative experiences in the navy, and that he used alcohol as a means of self-medication. Dr Strauss stated:
…This man was very young when he joined the Navy and found his experiences in the Navy overwhelming. He often felt confined, quite frightened and very lonely. He was isolated.
16. Dr Strauss concluded that although clinical onset of the anxiety condition was during Mr McCabe’s time in the navy, there were no specific psycho-social stressors during the operational service.
17. In his oral evidence Dr Strauss explained that Mr McCabe was exposed to situations that were frightening, but the psycho-social stressors were not severe; although he conceded that it might be possible to categorise them in such a manner. Under cross-examination, Dr Strauss agreed that at the time he assessed Mr McCabe he did not have access to documentation setting out details of Mr McCabe’s experiences in the workplace after discharge from the navy.
18. In a report dated 28 March 2005 Dr Peter Ots, consultant psychiatrist, said that Mr McCabe’s generalised anxiety disorder occurred during his five years of naval service and is related to that service, as a result of events that led to anxiety; including events that occurred before and after operational service.
19. Dr Kenneth Byrne, clinical and forensic psychologist, told the Tribunal that Mr McCabe had told him that he had enjoyed his naval service until his posting to HMAS Leeuwin in 1966, after his marriage, when he was suffering from nervous problems and was hospitalised but not given appropriate psychiatric treatment. Dr Byrne stated that the clinical onset of generalised anxiety disorder was in 2002, following work-related stresses and physical illness at the time. He maintained that Mr McCabe’s operational service did not include a severe psycho-social stressor and therefore did not contribute to the condition.
20. In a report dated 24 July 2006, prepared on behalf of Writeway Research Service Pty Ltd, Mr John MacDonald, an historian, stated that during the period of Mr McCabe’s operational service, HMAS Yarra conducted a number of night patrols and firings against Indonesian incursions around the Singapore and Malacca Straits areas without major incident and without encountering boats carrying arms or armed insurgents. Mr MacDonald confirmed that HMAS Yarra escorted HMAS Sydney to Vietnam in May 1966, and that the potential dangers of attack from enemy divers or from floating mines were well appreciated, although no attacks took place.
21. In relation to air strikes against enemy targets in the valleys near Vung Tau, Mr MacDonald stated that such strikes were occasionally visible from the harbour, but posed no threat to the ships. He said that no Australian navy unit came under hostile fire in Vietnam prior to 1967.
22. Mrs Virginia McCabe told the Tribunal that she met Mr McCabe in 1964 and married him in 1966. She confirmed that when they were living in Perth in 1967, Mr McCabe used to drink to excess. She said that he was hospitalised for nerves and depression.
23. In relation to the first step from Deledio, after considering Mr McCabe’s evidence and the evidence from the psychiatrists about his generalised anxiety disorder and operational service, the Tribunal determines that the material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by Mr McCabe. Therefore he satisfies the first step.
24. In respect of the second step from Deledio, there is a Statement of Principles (SoP) in force under s 196B(2) of the Act. The current SoP is Instrument Nº 101 of 2007 concerning anxiety disorder. If Mr McCabe does not satisfy Instrument Nº 101 of 2007, the Tribunal is required to consider Instrument N° 1 of 2000 concerning Generalised Anxiety Disorder, which has now been revoked but was in force at the time Mr McCabe made his claim (Repatriation Commission v Gorton (2001) 110 FCR 32).
25. Factor 6 in Instrument Nº 101 of 2007 concerning Anxiety Disorder provides:
(a)for generalised anxiety disorder or anxiety disorder not otherwise specified only:
…
(ii)experiencing a category 1A stressor within the five years before the clinical onset of anxiety disorder; or
(iii)experiencing a category 1B stressor within the five years before the clinical onset of anxiety disorder; or
…
(v)experiencing a category 2 stressor within the one year before the clinical onset of anxiety disorder;
In paragraph 9 of the SoP:
"a category 1A stressor" means one or more of the following severe traumatic events:
(a)experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e)being an eyewitness to or participating in, the clearance of critically injured casualties;
"a category 2 stressor" means 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:
(a)being socially isolated and unable to maintain friendships or family relationships, due to physical location, language barriers, disability, or medical or psychiatric illness;
(b)experiencing a problem with a long-term relationship including: the break-up of a close personal relationship, the need for marital or relationship counselling, marital separation, or divorce;
(c)having concerns in the work or school environment including: on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful work loads, or experiencing bullying in the workplace or school environment;
(d)experiencing serious legal issues including: being detained or held in custody, on-going involvement with the police concerning violations of the law, or court appearances associated with personal legal problems;
(e)having severe financial hardship including: loss of employment, long periods of unemployment, foreclosure on a property, or bankruptcy;
(f)having a family member or significant other experience a major deterioration in their health; or
(g)being a full-time caregiver to a family member or significant other with a severe physical, mental or developmental disability…
26. Factor 5 of Instrument Nº 1 of 2000 concerning Generalised Anxiety Disorder provides:
(a)for generalised anxiety disorder or anxiety disorder not otherwise specified, only
…
(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder…
In paragraph 8 of the SoP:
“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
27. In relation to the third step from Deledio the Tribunal takes into account that in Repatriation Commission v Hill [2002] FCAFC 192 the Federal Court held that the material must raise or point to the hypothesis, which must fit the relevant SoP. In Repatriation Commission v Bey (1997) 79 FCR 364 at 372‑3 the Federal Court held that a reasonable hypothesis involves more than a mere possibility, and is pointed to by the facts, even though not proved upon the balance of probabilities.
28. Mr McCabe cited a number of incidents suggesting that he satisfied factors 6(a)(ii), (ii) and (v) in Instrument Nº 101 of 2007, and alternatively factor 5(a)(ii) in Instrument Nº 1 of 2000. The Tribunal has considered all the evidence, including the evidence from Mr McCabe and his wife, and the medical evidence, and considers that the material is consistent with factors 6(a)(ii), (iii) and (v) of Instrument Nº 101 of 2007 and factor 5(a)(ii) of SoP Nº 1 of 2000. The material points to the hypothesis linking Mr McCabe’s operational service with the generalised anxiety disorder. Therefore Mr McCabe satisfies the third step
29. In relation to the fourth step from Deledio, the Tribunal must decide whether it is satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr McCabe’s generalised anxiety disorder was due to his operational service within the meaning of s 9 of the Act. It is at this stage that the Tribunal is called upon to make findings of fact. The claim will succeed unless one or more of the facts necessary to support the hypothesis is disproved or the truth of a fact inconsistent with the hypothesis is proved. There are both objective and subjective elements to consider when assessing claims of stressful circumstances (Stoddart v Repatriation Commission (2003) 197 ALR 283).
30. The Tribunal is satisfied that Mr McCabe did his best to recall events that occurred more than forty years ago. There was no dispute that during the period of his operational service there were potential threats to the safety of Mr McCabe and the personnel on board HMAS Yarra during operations in the Singapore and Malacca Straits and in Vietnam. In respect of SoP Nº 1 of 2000, the Tribunal takes into account that in White v Repatriation Commission [2004] FCA 633 Spender J said the test for severe psychosocial stressor had both a subjective and an objective element. He explained at [30]:
…the definition of severe psychosocial stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned. Both aspects are relevant and necessary.
31. In Re Stonehouse and Repatriation Commission [2004] AATA 707 the Tribunal stated at [18]:
…Even events that involve violence (eg, being shot at) are psychosocial stressors because the victim is likely to be distressed by the motivation of the aggressor (“What have I done to deserve this? Why me? How could someone do such a thing?”) rather than simply being frightened or fearing for his or her bodily integrity. An event that was merely dangerous or frightening – particularly an event that happened quickly, and which passed – does not amount to a psychosocial stressor without that additional dimension. The term was not intended to include all kinds of stressful and terrifying events – the social element makes it quite distinct from the concept of a severe stressor for the purposes of the SoP regulating post-traumatic stress disorder.
32. Mr McCabe described a number of events that occurred and fears he held during his operational service which included:
·Feeling tense while his ship was moored in Singapore Harbour on the basis that Indonesian divers might be trying to attach mines to the side of the ship when bubbles were seen and a dead diver found;
·Feeling claustrophobic when closed in the gunnery fire control room at action stations;
·Being closed up in a small wheelhouse while steering the ship;
·Worrying that mines might the HMAS Yarra on which he was located when the ship was anchored inshore of the HMAS Sydney in Vietnam;
·Observing bombing in the hills near the ship when it was in Vietnamese waters;
·Manning a search light at night while patrolling in Borneo and the Malacca Straits and worrying he might be the first man shot if they ran into the enemy;
·Worrying that boats that had been ordered to come alongside to be searched would be manned by the enemy while he was one of the armed guards at the side of his ship;
·Being concerned that their boat might be sunk just as the HMAS Voyager was when in company with other ships; and
·Worrying that they might be attached by allied helicopters or bombers by mistake.
33. The Tribunal agrees with Dr Strauss that each event described by Mr McCabe represents a general feeling of tension or apprehension in Mr McCabe, but is not an identifiable occurrence that evoked feelings of substantial distress in him, so that none of the incidents constitutes a severe psychosocial stressor as defined in the SoP. Mr McCabe worried about things that might happen but did not.
34. In respect of Instrument Nº 101 of 2007 the Tribunal, for similar reasons to those given in relation to whether Mr McCabe experienced a severe psycho-social stressor, finds that none of the events described by Mr McCabe as occurring during his operational service constitutes a severe traumatic event as set out in the definition of category 1A or 1B stressors. In relation to a category 2 stressor, the Tribunal takes into account that Mr McCabe described feelings of isolation and loneliness arising from separation from his family for the first time. However, the Tribunal finds that Mr McCabe generally enjoyed many aspects of his service in the navy, particularly while at sea, during which he experienced new places and developed skills as a gunnery sailor. For these reasons, the Tribunal concludes that during operational service he did not experience one or more negative life events that were chronic and caused ongoing distress, concern or worry within the one year before the clinical onset of generalised anxiety disorder.
35. Consequently, the Tribunal is satisfied beyond reasonable doubt that there is no causal connection between Mr McCabe’s generalised anxiety disorder and his operational service during the relevant period. Therefore, the hypothesis cannot be sustained. It follows that the fourth step from Deledio is not satisfied.
Is depressive disorder war-caused?
36. Mr McCabe stated that his operational service led to his depressive disorder. He told the Tribunal that the events that caused generalised anxiety disorder were also responsible for depressive disorder.
37. In his report, Dr Strauss referred to Mr McCabe as being depressed, but did not make a diagnosis of depressive disorder; although the Tribunal notes that he did not have access to a range of documentation about Mr McCabe’s history. He told the Tribunal that there was a reasonable possibility that Mr McCabe was exposed to traumatic events during his operational service, but that the depressive disorder was contributed to by generalised anxiety disorder. Under cross-examination, Dr Strauss agreed that later stressful events, including events that occurred after operational service, may have contributed to Mr McCabe’s psychiatric condition.
38. In relation to the first step from Deledio, after considering Mr McCabe’s evidence and the evidence from the psychiatrists about his depressive disorder and operational service, the Tribunal determines that the material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by Mr McCabe. Therefore he satisfies the first step.
39. In relation to the second step from Deledio the Tribunal has ascertained that there is in force an SoP, so Mr McCabe satisfies the second step. In this case the SoP at the date of hearing was Instrument Nº 17 of 2007 concerning Depressive Disorder. Factor 6 provides:
…
(b)experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder; or
(c)experiencing a category 1B stressor within the five years before the clinical onset of depressive disorder; or
…
(f)experiencing a category 2 stressor within the one year before the clinical onset of depressive disorder; or
(g)having a clinically significant psychiatric condition within the two years before the clinical onset of depressive disorder…
40. In paragraph 9 of the SoP:
…"a category 1A stressor" means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e)being an eyewitness to or participating in, the clearance of critically injured casualties;
"a category 2 stressor" means 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:
(a)being socially isolated and unable to maintain friendships or family relationships, due to physical location, language barriers, disability, or medical or psychiatric illness;
(b)experiencing a problem with a long-term relationship including: the break-up of a close personal relationship, the need for marital or relationship counselling, marital separation, or divorce;
(c)having concerns in the work or school environment including: on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful work loads, or experiencing bullying in the workplace or school environment;
(d)experiencing serious legal issues including: being detained or held in custody, on-going involvement with the police concerning violations of the law, or court appearances associated with personal legal problems;
(e)having severe financial hardship including: loss of employment, long periods of unemployment, foreclosure on a property, or bankruptcy;
(f)having a family member or significant other experience a major deterioration in their health; or
(g)being a full-time caregiver to a family member or significant other with a severe physical, mental or developmental disability;
"a clinically significant psychiatric condition" means any Axis 1 disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner;
…
41. An earlier SoP applicable at the time of the claim is Instrument Nº 58 of 1998 concerning Depressive Disorder. Factor 5 provides:
…
(b)experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder; or
(c)having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder…
Paragraph 8 of the SoP provides:
“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems…
42. The current SoP is Instrument Nº 27 of 2008 concerning Depressive Disorder. Factor 6 provides:
…
(a)for major depressive episode, recurrent major depressive disorder, dysthymic disorder and depressive disorder not otherwise specified only,
…
(ii)experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder; or
(iii)experiencing a category 1B stressor within the five years before the clinical onset of depressive disorder; or
…
(vi)experiencing a category 2 stressor within the one year before the clinical onset of depressive disorder; or
(vii)having a clinically significant psychiatric condition within the two years before the clinical onset of depressive disorder…
43. In relation to the third step from Deledio, the Tribunal has considered all the evidence, including the evidence from Mr McCabe and his wife and the medical evidence. The Tribunal considers that the material is consistent with factor 5(b) of SoP Nº 58 of 1998, factor 6(b), (c) and (f) of SoP Nº17 of 2007, and factor 6(a)(ii), (iii) and (vi) of SoP Nº 27 of 2008. The material points to the hypothesis linking Mr McCabe’s operational service with the depressive disorder. Therefore, Mr McCabe satisfies the third step.
44. In relation to the fourth step from Deledio, the Tribunal refers to its conclusions in relation to Mr McCabe’s generalised anxiety disorder; and the Tribunal finds that in respect of Instrument Nº 58 of 1998 none of the events described by Mr McCabe as occurring during his operational service constitutes a severe psycho-social stressor. Similarly, the Tribunal finds that none of the events constitutes a severe traumatic event as set out in the definition of category 1A or 1B stressors, or a category 2 stressor.
45. Consequently, the Tribunal is satisfied beyond reasonable doubt that there is no causal connection between Mr McCabe’s depressive disorder and his operational service during the relevant period. Therefore, the hypothesis cannot be sustained. It follows that the fourth step from Deledio is not satisfied.
Is hypertension war-caused?
46. Mr McCabe told the Tribunal that his hypertension was causally related to his operational service. Under cross-examination, he agreed that the discharge medical examination recorded a height of 5 feet 11 inches and a weight of 170 pounds, giving a body mass index of 24 and hence he was not obese at the date of discharge in 1967. He said that he was obese from the 1990s onwards and was prescribed medication for high blood pressure. He agreed that this was the first time that he had been diagnosed with elevated blood pressure. Mr McCabe said that he drank heavily during his naval service, but that he reduced his intake after discharge, and stopped drinking between 1973 and 1983, after which he resumed a moderate level of consumption.
47. In a report dated 26 October 2006, Dr Robin Horsley, occupational physician, stated that Mr McCabe was diagnosed with hypertension in the 1990s. She said that he has lost considerable weight, and that hypertension is no longer a problem.
48. There is no definition of the term clinical onset in the SoPs or in the Act. In Lees v Repatriation Commission [2002] FCAFC 398, Repatriation Commission v Cornelius [2002] FCA 750 and other cases, the clinical onset of a condition was said to occur when the symptoms of a condition have become sufficiently specific and severe for a medical practitioner to diagnose that particular condition, within the definition of the condition in the relevant SoP; or the condition is actually found on diagnostic testing, regardless of the extent of symptoms.
49. In relation to the first step from Deledio, after considering Mr McCabe’s evidence and the medical evidence about the high readings for blood pressure that were detected in the 1990s, the Tribunal determines that the material does not point to a hypothesis connecting the hypertension with the circumstances of the operational service rendered by Mr McCabe in 1965 and 1966. Therefore, he does not satisfy the first step, and his application in respect of this condition cannot succeed.
Does Mr McCabe qualify for special rate pension?
50. Section 24 of the Act makes provision for payment at rates higher than 100 per cent of the general rate of pension:
24(1) This section applies to a veteran if:
…
(a) either:
(i)the degree of incapacity of the veteran from war-caused injury or war‑caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force…
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war‑caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity…
(2) For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war‑caused disease, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
…
51. Mr McCabe is receiving 90 per cent disability pension so he meets the criteria in s 24(1)(a) of the Act.
52. After he left the navy in 1967, Mr McCabe worked in a series of different, relatively short-term, full‑time positions over the next few years. These included work as an untrained motor mechanic in a car dealership, a trainee in a grocery store, a cash van salesman for a company making pies, a bread salesman, a casual employee in the public service and in an Officers' Mess. In 1972 he commenced as a trainee manager at Woolworths in Victoria and Western Australia. In 1975 he started as a store manager for Safeway, with whom he remained until 1986. During 1986, Mr McCabe then worked as a truck driver for two different furniture companies and then as a despatch manager at another furniture company. He then commenced work that same year as a storeman for a sprinkler company. In 1991, he commenced at Bi-Lo supermarkets as a store manager for four years until a change of role with that company in 1995 as a loss prevention officer. He retired in 2005 on the basis of ill health. Between 1969 and 1976, he also undertook part‑time employment as a barman, petrol hand and security guard amongst other occupations.
53. Mr McCabe stated that he suffered from a number of bouts of pneumonia between 1999 and 2003 and they affected him for a long time. He said that when he retired in 2005, he was physically sick, mentally sick and exhausted. Mr McCabe said that if he did not have his anxiety condition, his chest condition and hearing loss, he would still be working.
54. Under cross-examination, Mr McCabe said that he stopped working in 2005. At page 71 of the transcript, he elaborates further the reasons for stopping work:
MR PURCELL: Mr McCabe, when did you stop working?‑‑‑In 2005, I think.
And why did you stop working?‑‑‑Health and nerves.
When you say "health" what do you mean by that?‑‑‑Physical health. My pneumonia, cardiomyopathy, from a physical point of view I just couldn't walk more than a couple of hundred metres.
Saying your pneumonia and your heart basically, are you?‑‑‑Yes.
Anything else?‑‑‑And my nerves.
No, talking physically?‑‑‑No. My knees - my knees were bad.
Both knees?‑‑‑Yes, both knees.
Anything else?‑‑‑Not that I can think of.
Well, what about your sinuses?‑‑‑Yes, my sinuses, sorry.
Did they give you serious problems?‑‑‑Yes, I have had four sinus operations.
What about your bowel obstruction surgery, when was that?‑‑‑That was 2006.
So that was after you had ceased working was it?‑‑‑Yes.
And with your bowel in the position - the state it is in now, would you be able to work?‑‑‑Would I?
Yes?‑‑‑No. I would like to, but I don't think I could.
…
55. Dr Horsley in her report dated 26 October 2006 concluded that:
….overall, his accepted disabilities alone do not specifically prevent him from undertaking remunerative work of eight hours or more or twenty hours or more per week. His rejected disabilities and other conditions clearly prevent him form working more than eight hours or more than twenty hours per week. He is totally and permanently disabled.
56. Dr Strauss also agreed that Mr McCabe could no longer work for more than 8 hours per week as the result of the combination of psychiatric and physical conditions from which he suffered.
57. Mr McCabe’s accepted war-caused disabilities are bilateral sensorineural hearing loss, bilateral tinnitus, chronic simple bronchitis and osteroarthrosis of the left knee. Dr Horsley was not satisfied that these physical conditions, of themselves, were sufficient to prevent Mr McCabe from working. Dr Strauss expressed the view that Mr McCabe’s psychiatric problems of themselves might not prevent him from working for 20 hours per week but that the combination of physical and psychiatric problems would prevent him from doing so. The Tribunal is satisfied that Dr Strauss and Dr Horsley have the relevant medical expertise to support their evidence and therefore accords significant weight to their assessments. The Tribunal also notes the evidence from Mr McCabe cited above as to why he stopped working in 2005 and why he believes he can no longer do so.
58. The Tribunal has determined that Mr McCabe’s conditions of generalised anxiety disorder, depressive disorder and hypertension are not war-caused conditions. The evidence before the Tribunal is that it is the combination of accepted and non-accepted disabilities that prevent Mr McCabe from working more than 8 hours per week.
59. Based on the evidence before it, the Tribunal finds that Mr McCabe’s accepted disabilities do not, by themselves alone, render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. The Tribunal is not satisfied that Mr McCabe meets the criteria set out in s 24(1)(b) of the Act, a mandatory criterion. Therefore, Mr McCabe does not meet the criteria for grant of a pension at the special rate. There is also no evidence before the Tribunal that he would meet the requirements of an intermediate rate pension pursuant to s 23 of the Act.
DECISION
60. The Tribunal affirms the decision under review.
I certify that the sixty [60] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
(sgd) Olympia Sarrinikolaou
Clerk
Dates of hearing: 19 ‑ 20 July 2007
Date of receipt of final submissions: 23 June 2008
Date of Decision: 26 August 2008
Counsel for applicant: Mr D. De Marchi
Solicitor for applicant: De Marchi & Associates
Counsel for respondent: Mr G. PurcellSolicitor for respondent: Department of Veterans’ Affairs
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