Mitchell and Repatriation Commission
[2013] AATA 654
•13 September 2013
[2013] AATA 654
Division VETERANS' APPEALS DIVISION File Number
2011/5206
Re
Dorothy Mitchell
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 13 September 2013 Place Brisbane The Tribunal sets aside the decision under review and substitutes its decision that the applicant is entitled to receive the widow’s pension and remits the matter of determining the date of effect of the decision to the Repatriation Commission.
.............................[SGD]...........................................
Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Operational service with Australian Army - Death from ischaemic heart disease – Statements of Principles concerning depressive disorder (dysthymic disorder) and ischaemic heart disease – Clinical onset – Reasonable hypothesis of relationship to eligible war service raised - Death war-caused – Decision set aside
LEGISLATION
Veterans' Entitlement Act 1986 (Cth) ss 5E, 6A, 7, 8, 11, 14,120, 120A
CASES
Benjamin v Repatriation Commission (2001) 70 ALD 622
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Collins v Repatriation Commission [2009] FCAFC 90
Kaluza v Repatriation Commission [2010] FCA 1244
Lees v Repatriation Commission (2002) 125 FCR 331Repatriation Commission v Deledio (1998) 83 FCR 82
SECONDARY MATERIALS
Statement of Principles concerning depressive disorder No. 27 of 2008[1]
[1] As amended by Instrument No. 40 of 2010 in a manner unrelated to this matter.
Statement of Principles concerning ischaemic heart disease No. 89 of 2007[2]
[2] As amended by Instruments No’d 43 of 2009, 96 of 2010 and 125 of 2011 in a manner unrelated to this matter.
REASONS FOR DECISION
Mr R G Kenny, Senior Member
13 September 2013
BACKGROUND
James Mitchell (“the veteran”) died on 17 January 1995 at the age of 81 years.
The applicant is his widow and dependant as those terms are defined in ss 5E and 11, respectively, of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). On 18 March 2010, the applicant lodged a claim, under s 14 of the Act, for a pension on the basis that the veteran’s death was war-caused in accordance with s 8 of the Act. That claim was rejected by the Repatriation Commission on 21 April 2010 and by the Veterans’ Review Board on 3 November 2011.
SERVICE
The veteran served in the Australian Army (“the army”) from 5 January 1942 until 18 July 1944 and this included service in the Middle East and New Guinea. All of his service constitutes eligible war service in the form of operational service in accordance with ss 7 and 6A, respectively, of the Act.
CAUSATION
In order for the death of a veteran to be accepted as being war-caused, one of the requirements in s 8 of the Act must be met. Relevant in this matter is s 8(1)(b) of the Act which reads:
(1) Subject to this section… for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
…
(b) the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;…
Where, as in this case, operational service was rendered, the standard of proof applicable to the determination is set out in s 120(1) of the Act which reads:
120 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.
The application of that provision is affected by the terms of s 120(3) and by s 120A(3) of the Act. Those provisions read:
120 (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 ...
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
…
(3) 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. …
Those provisions are concerned with matters of causation and require a consideration of any relevant Statements of Principles which have been published by the Repatriation Medical Authority.
KIND OF DEATH
Before applying the causation provisions of the Act, it is necessary to consider the “kind of death” applicable to the veteran, a matter which is to be determined to the decision-maker’s reasonable satisfaction.[3] The veteran’s death certificate nominates the cause of death and duration of illness to be:[4]
1(a) pulmonary oedema (1 day)
(b) left ventricular failure (days)
(c) hypertension (years)
(d) ischaemic heart disease (years)
2 Alzheimer’s type dementia, diabetes mellitus type II (years)
[3] In accordance with s 120(4) of the Act: see Benjamin v Repatriation Commission (2001) 70 ALD 622 at 634-5 per Moore, Emmett and Allsop JJ; and Collins vRepatriation Commission [2009] FCAFC 90 at [20] per Mansfield and Stone JJ.
[4] Exhibit 1, T-Document 6, p. 38.
It was common ground that the kind of death in this matter was ischaemic heart disease and that its clinical onset was some time after 1975.
SUBMISSIONS AND ISSUE
Mr Anthony Harding, for the applicant, submitted that the veteran, during service, experienced a stressor[5] and also suffered from a serious medical illness[6] which, individually, led to a clinically significant dysthymic disorder[7] from which he suffered from the time of his service; that his dysthymic disorder resulted in the clinical onset of ischaemic heart disease; and that his ischaemic heart disease was the cause of his death. On those bases, he submitted, the veteran’s death was war-caused and the decision under review ought be set aside.
[5] See factor 6(a)(vi) of the Statement of Principles concerning depressive disorder No. 27 of 2008 (as amended by Instrument No. 40 of 2010 in a manner unrelated to this matter).
[6] See factor 6(a)(viii) of the Statement of Principles concerning depressive disorder No. 27 of 2008.
[7] As provided for in the Statement of Principles concerning depressive disorder No. 27 of 2008.
For the respondent, Mr Bruce Williams submitted that the veteran’s dysthymic disorder was unrelated to any stressor or serious medical condition and that he was not suffering from dysthymic disorder at the time of the clinical onset of ischaemic heart disease. He submitted that the veteran’s death was not war-caused and that the decision under review ought be affirmed.
The issue for the Tribunal is whether the veteran’s death arose out of, or was attributable to, any eligible war service rendered by him.
EVIDENCE
The veteran
At the time of his enlistment, the veteran was medically examined and assessed as being “class one”.[8] He was in the Middle East from 10 October 1942 until January 1943 when his Battalion departed for Australia. En route, he experienced diarrhoea and he is recorded as having had amoebic dysentery as well as “secondary” anaemia and glossitis at that time.[9] He was hospitalised in Toowoomba until July 1943. Following a period of leave, the veteran embarked for New Guinea in August 1943 where he again became ill and was medically evacuated to Australia in November 1943. He remained in care until January 1944 before being reclassified medically to “B” which precluded him from tropical service.[10] He was then assigned to the Australian Translator and Interpreter Section but again became ill in March 1944 and was hospitalised with anaemia. He was medically classified “D” on 29 May 1944,[11] and was subsequently discharged in July 1944.
[8] Exhibit 7, Annexure B.
[9] Exhibit 7, Annexure F.
[10] Ibid.
[11] Exhibit 12, p. 53.
In evidence was an undated letter[12] and a statement written by the veteran.[13] His letter describes his circumstances for the 12 months from October 1942 when he arrived in the Middle East. He referred to diarrhoea in November 1942 with light duties undertaken because of continuing bowel problems until January 1943. He also noted his return voyage to Australia in February 1943 when he again experienced bouts of diarrhoea with hospitalisation on return to Australia where he was treated for a blood deficiency and sore tongue, and was noted to have lost 3½ stone in weight. He described a period of leave in July/August 1943 before being transported to New Guinea where he again suffered from diarrhoea and sore tongue, and was repatriated to hospital in Australia.
[12] Exhibit 1, T-Document 3, pp.19-20.
[13] Exhibit 7, Annexure H.
In his statement, he wrote that he had “never at any stage been drafted into a company” of his unit and that he found himself a reinforcement for over twelve months.
The Applicant
The applicant’s evidence at the hearing and in her written statements[14] was that she met the veteran in 1941 and that they married in February 1942. He was a “fun-loving man” and “good company” in those years. However, he had changed by the time he returned from the Middle East. His weight had reduced dramatically and he remained in hospital for some four or five months. Because of his difficulty in eating, he consumed a substance called Exephos which appeared similar to vegemite. She was shocked on learning that he was to serve in New Guinea as she believed he had not fully recovered his health. When he was discharged from the army, he had become a ghost of his former self in that he was very distant from her. She described a “faraway look” in his eyes and said he always “appeared to be down in the dumps” and unable to enjoy life. She described him as withdrawn and morose.
[14] Exhibits 2, 3 and 4.
The veteran’s appetite gradually improved after the war but he did not sleep well over the years and appeared never to have any energy. She assumed responsibility for running the household and making decisions for the family. He was employed in the Post Office as a mail sorter from shortly after the war and remained in employment there until he retired at age sixty. She noted that he had declined a promotion at his work because of his unwillingness to make decisions which was consistent with his conduct in the family environment.
The applicant said that the veteran had no meaningful relationship with any of their four children, preferring in the main to be on his own. She said this contributed to much stress in the household. One characteristic which she noted was the veteran’s habit of purchasing new clothing, most of which he stored in the house, often still in original wrapping. She also noted the he was in the habit of leaving the house on his own, sometimes on three days each week when he was working and more often after he retired. She believed that he went to the city on those occasions and that he met up with friends. She was not invited on these excursions and was not really aware of what he did. She said that the veteran did not make friends easily but maintained contact with some workmates after he retired. The family went regularly to church where the veteran was well regarded until he had a dispute with the minister in the 1960s and the family ceased attending services. They would attend Post Office Christmas parties where she and the children were left to their own devices while the veteran spoke with other men from his work.
The veteran provided the applicant with basic housekeeping monies but she was forced to make her and her children’s clothes because of shortage of money. She described limited physical activity by the veteran and an unwillingness to engage in home chores apart from mowing the lawn and painting when it was necessary. Yet, she also said that, with some of his city excursions, he would walk to the city from Wilston where they lived.
Children of the veteran/applicant
Three of the veteran’s children completed statements and gave evidence. These were Margaret Trebilco,[15] David Mitchell[16] and Linda Massavelli.[17]
[15] Exhibit 5.
[16] Exhibit 6.
[17] Exhibit 11.
Their evidence was that the veteran remained distant from them and had very little to do with them as they grew up. Mrs Massavelli described him as a “sad and miserable man” who rarely smiled or laughed though she was aware that he liked to listen to military bands. She recalled seeing him from time to time, when she was on lunch break from her work in the city. He would be on his own in a park eating lunch. She did not see him with any friends. She said that he was quick to get angry if she or her siblings intruded, for example, if he was interrupted in listening to the radio. Mrs Massavelli had been advised by the applicant that her sex life with the veteran suffered because of his fatigue levels. She was aware that the veteran was very proud of having served his country during the war.
Mrs Trebilco did not have a close relationship with the veteran and described him as being “like a distant relative” and as having a “violent temper” which was directed at the children. She recalled that he did no work around the house, except for mowing the lawn, and left household duties to her mother. She considered the veteran to be a “loner” who seemed to have “no friends”. She recalled that, as a shift-worker, he would work at nights and that he would venture out on his own on two or three occasions per week and even more often after he retired from work. She recalled that he was in the habit of purchasing unnecessary new clothing and that he was always well dressed. This was unlike her mother who was forced to make her own clothes.
David Mitchell described the veteran as being an unhappy man who was very difficult to get along with. He had a quick temper and would “yell a lot” but was never violent.
Mr Mitchell was unaware of any of the veteran’s friends and listed his interests as listening to the radio and watching football on television. He described an absence of any interest by the veteran in his or his siblings’ education, school activities or sporting pursuits.
Medical evidence
Dr Barbara Fitzgibbon
Dr Fitzgibbon, Compensation Medical Officer with the respondent, completed a report on 7 April 2010.[18] Her opinion was that heart disease was the underlying cause of the veteran’s death and that she was unable to exclude ischaemic heart disease.
[18] Exhibit 1, T-Document 7, p.39.
Dr Michael Whitby
Dr Whitby provided a report, dated 2 April 2013,[19] and gave evidence. Amongst his wide range of qualifications, he identified his registration in Australia in the specialities of internal medicine, infectious diseases, pathology (medical microbiology), sexual health medicine and public health medicine. He practised as an infectious diseases physician for more than twenty years.
[19] Exhibit 10.
Dr Whitby noted that the veteran had gastrointestinal presentations in his service medical records including colitis, enterocolitis, macrocytic anaemia and glossitis. Post service, he noted that the veteran developed hypertension, ischaemic heart disease, vitamin B deficiency, folate deficiency and type 2 diabetes mellitus. Dr Whitby also noted chronic dysthymic disorder, Alzheimer’s type dementia and a personality disorder. He identified the “kind of death” in this matter to be ischaemic heart disease. He accepted that the veteran had dysentery during his service and considered that it was appropriately treated. He also referred to macrocytic anaemia which was associated with glossitis and which resulted in a diagnosis of vitamin B12 deficiency.
Dr Whitby agreed that amoebic dysentery was common in servicemen in the Middle East and that the veteran could have contracted it on service there. However, his opinion was that veteran did not suffer from amoebic dysentery during his army service. He noted a reference to this condition in the veteran’s service medical records but considered that it had not been formally diagnosed in the veteran at that time or after he had returned to Australia. He noted that there was no reference in the service records to a treatment regime which would have been appropriate to amoebic dysentery. He said that, if it had been present, it would most certainly have been treated and that the standard treatment, at that time, was by oral, intrarectal or intramuscular Emetine Hydrochloride. He also said that, if amoebic dysentery were suspected, stool samples would have been sent for testing. He believed that references in the veteran’s files did not reflect a diagnosis of amoebic dysentery but, rather, the recording of an historical reference to it by subsequent practitioners. Despite that, he could not rule out the possibility that the veteran suffered from amoebic dysentery during his service.
Dr Whitby’s opinion was that veteran had suffered from inflammatory bowel disease during his service. He described it as a common condition at the time and believed that the diagnosis was pointed to by the symptoms displayed by the veteran during his service. These included mucus, abdominal pain and blood in the faeces. He agreed that amoebic dysentery and inflammatory bowel disease were serious and that the veteran had suffered from a severe illness during his service. He noted that the veteran’s symptoms were not evident for many years after the service and his opinion was that it had “burnt out” over time and that, while that was unusual, he was aware of the process occurring.
Dr Bradley Ng
Psychiatrist, Dr Ng, completed a report, dated 19 March 2013,[20] and gave evidence. He had read the report of Dr Colin Brennan, and read the veteran’s files, as well as the statements of the applicant and her children. His opinion was that the veteran suffered from a personality disorder and, because there was insufficient evidence to specify a particular type, he diagnosed a personality disorder not otherwise specified. Dr Ng identified factors which supported his diagnosis of personality disorder. These were that the veteran was unhelpful and had a destructive personality style with trouble controlling his anger and his emotions, becoming easily irritated and socially isolated. He was unable to relate to his wife and children and was a self-centred man with little regard for anyone else. Dr Ng considered that the causes of personality disorder were multi-factorial. He said that a prejudicial childhood or wartime experiences could be responsible in a given case but noted that there was no material available in relation to the veteran’s childhood and that he did not engage in active service when he was overseas.
Dr Ng considered that the veteran’s personality disorder was present by 1994/5.
[20] Exhibit 9.
Initially, in his evidence, Dr Ng considered that the veteran did not have a depressive disorder because there was an absence of description by him or others of a depressed mood. He accepted that the veteran had not been interested in the family or the home but had other interests including his work, undertaking overtime hours at times, his band music, the radio, football, new clothing, his activity of walking regularly to the city and his attendance at church until the mid-1960s. In cross examination, Dr Ng agreed that dysthymic disorder could be recognised by the observations of other people. However, he maintained that there would usually be a subjective recognition of the condition. Dr Ng was referred to private hospital notes completed in November 1983[21] and he accepted that these indicated the veteran was able to identify his depressed mood. He said that this was over a short period but accepted that it represented an example of a subjective sense of dysthymic disorder. He agreed that the descriptions given by family members about the veteran were consistent with each other and conceded that, on their observations, he may have been clinically depressed when he was around the family. Dr Ng was referred to six criteria which make up dysthymic disorder but accepted that only two of these were required for a diagnosis of the condition to be made. He noted evidence from the family which supported this in that the veteran had difficulty sleeping, had difficulty making decisions and lacked energy for the discharge of various duties around the house. Dr Ng conceded that the veteran had a psychiatric condition that warranted management by a professional from the time of his war service.
[21] Exhibit 14.
Dr Colin Brennan
Dr Brennan completed a report on 25 October 2012[22] and gave evidence. He has a wide range of medical qualifications and, in his report, styled himself as a psychiatrist, public health physician and medical administrator. He continues in practice as a psychiatrist.
[22] Exhibit 8.
Dr Brennan noted that the veteran experienced persistent diarrhoea from his time in the Middle East and was diagnosed with colitis, entero-colitis and, chronic enteritis, dysentery, anaemia and glossitis. He noted the veteran’s voluntary enlistment into the army and his declared disappointment at not being allotted for
active duty as he was retained as a reinforcement. He referred to letters written by the veteran and to the evidence of family members. Dr Brennan described this as “marked disappointment” as he had volunteered for active duty. He referred to the rapid decline in the veteran’s situation for months on service due to infection with Entamoeba histolytica within a few weeks of arriving in the Middle East. As a result of this, he was either under direct medical care or in hospital or both. Dr Brennan considered that it was possible that his posting to New Guinea was premature. His opinion was that the veteran‘s personality characteristics deteriorated as he decompensated to such a degree that he developed a flattened, depressed mood with irritability and explosive anger along with “marked anergia”, “demotivation”, “social interest deterioration” and “social isolation”.
Dr Brennan identified an inability to make decisions or to express positive feelings to others, especially his family, and a marked withdrawal into himself as well as loss of outside interpersonal contacts.
Dr Brennan’s opinion was that the veteran had suffered amoebic dysentery while on service and that, as a result of his health problems on service, he developed chronic dysthymic disorder, personality disorder not otherwise specified and cognitive deterioration eventually with dementia. He also noted that he had suffered a heart attack in 1975 and his opinion was that ischaemic heart disease had its clinical onset after that time.
Dr Albert Palazzo
Dr Palazzo completed a report dated 15 March 2012[23] and gave evidence. He is an historian with particular expertise in the circumstances of World War Two. He noted that the veteran enlisted voluntarily in January 1942 which was a short time after Japan entered the war. He described a high level of concern among the Australian public at that time and a strong response by young Australian men to enlist in the armed services. He noted that the veteran had not been engaged with the enemy while he was in the Middle East but that he may have had some contact with enemy forces, in the form of air raids by Japanese aircraft, after he had landed at Finchhaven in New Guinea.
[23] Exhibit 7.
PROCEDURE FOR CONSIDERATION
The procedure for determining whether or not a particular condition which caused death arose out of, or was attributable to, any eligible war service that the veteran rendered was set out by the Federal Court in the following terms:[24]
(i) 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.
(ii) If the material does raise such hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). ...
(iii) 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.
(iv) The Tribunal must then proceed to consider under 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, ... 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.
[24] See Repatriation Commission v Deledio (1998) 83 FCR 82 at 82–83.
Step 1:- Hypotheses
The first step requires that there be material which points to an hypothesis connecting the condition which caused death with service. Two hypotheses have been raised by
Mr Harding: during service, the veteran experienced a stressor[25] and also suffered from a serious medical illness[26] which, individually, led to a clinically significant dysthymic disorder[27] from which he suffered from the time of his service; that his dysthymic disorder resulted in the clinical onset of ischaemic heart disease after 1975; and that his ischaemic heart disease was the cause of his death.
[25] See factor 6(a)(vi) of the Statement of Principles concerning depressive disorder No. 27 of 2008.
[26] See factor 6(a)(viii) of the Statement of Principles concerning depressive disorder No. 27 of 2008.
[27] As provided for in the Statement of Principles concerning depressive disorder No. 27 of 2008.
Step 2:- Statements of Principles
The hypotheses noted above require a consideration of the Statements of Principle concerning depressive disorder (of which dysthymic disorder forms a part) and ischaemic heart disease. The relevant factors and associated definitions in those Statements of Principle are listed below and the factors identified must be related to the relevant service rendered by the person. They read, relevantly:
Statement of Principles concerning depressive disorder No. 27 of 2008[28]:
[28] As amended by Instrument No. 40 of 2010 in a manner unrelated to this matter.
3…(b) For the purposes of this Statement of Principles, "depressive disorder" means a group of psychiatric conditions which are manifested by a dysphoric mood. The mood disturbance is prominent and persistent. This definition is limited to … dysthymic disorder…
"dysthymic disorder" means a psychiatric condition meeting the following diagnostic criteria (derived from DSM-IV-TR):
A. Depressed mood for most of the day, for more days than not, as indicated either by subjective account or observation by others, for at least two years. In children and adolescents, mood can be irritable and the duration must be at least one year.
B. Presence, while depressed, of two (or more) of the following:
(1) poor appetite or overeating;
(2) insomnia or hypersomnia;
(3) low energy or fatigue;
(4) low self-esteem;
(5) poor concentration or difficulty making decisions; or
(6) feelings of hopelessness.
C. During the two-year period (one year for children or adolescents) of the disturbance, the person has never been without the symptoms in criteria (A) and (B) for more than two months at a time.
D. No major depressive episode has been present during the first two years of the disturbance (one year for children and adolescents); i.e., the disturbance is not better accounted for by chronic major depressive disorder, or major depressive disorder, in partial remission. There may have been a previous major depressive episode provided there was a full remission (no significant signs or symptoms for two months) before development of the dysthymic disorder. In addition, after the initial two years (one year in children or adolescents) of dysthymic disorder, there may be superimposed episodes of major depressive disorder, in which case both diagnoses may be given when the criteria are met for a major depressive episode.
E. There has never been a manic episode, a mixed episode, or a hypomanic episode, and criteria have never been met for cyclothymic disorder.
F. The disturbance does not occur exclusively during the course of a chronic psychotic disorder, such as schizophrenia or delusional disorder.
G. The symptoms are not due to the direct physiological effects of a substance (e.g., a drug of abuse, a medication) or a general medical condition (e.g., hypothyroidism).
H. The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
Factor 6(a)(vi): experiencing a category 2 stressor within the one year before the clinical onset of depressive disorder; …
"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.
Factor 6(a)(viii): having a medical illness or injury which is life-threatening or which results in serious physical or cognitive disability, within the five years before the clinical onset of depressive disorder…
Statement of Principles concerning ischaemic heart disease No. 89 of 2007[29]:
Factor 6(o): having clinically significant depressive disorder for at least five years, before the clinical onset of ischaemic heart disease;
"clinically significant" means sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, counsellor or general practitioner;
[29] As amended by Instruments No’d 43 of 2009, 96 of 2010 and 125 of 2011 in a manner unrelated to this matter.
Clinical Onset
Each of the identified factors in the Statements of Principles requires consideration of the concept of clinical onset. In Kaluza v Repatriation Commission,[30] Jacobson J summarised the effect of the decision of the Full Federal Court in Leesv Repatriation Commission,[31] in the following way:
[92] The meaning of the expression “clinical onset” was considered by the Full Court in Lees. The effect of what their Honours (Heerey, Moore and Kiefel JJ) said at [13] was that there is a clinical onset of a disease, either:
·when a person becomes aware of some features or symptoms which enable a doctor to say that the disease was present at that time; or
·when a finding is made on investigation which is indicative to a doctor that the disease is present.
[93] The definition therefore emphasises the need for a determination of the clinical onset by medical evidence. It is for the doctor to say when the clinical onset occurred by the presence of features or symptoms. But the clinical onset is not necessarily when the patient first sees a doctor for medical treatment. [32]
[30] [2010] FCA 1244.
[31] (2002) 125 FCR 331.
[32] [2010] FCA 1244 at [92], [93].
Step 3:- Reasonableness of the Hypothesis
The third step requires consideration of whether either of the hypotheses raised is a reasonable one for the purposes of s 120(3) of the Act. This step is not concerned with proof of the claim but relates to the question of whether there is some material which calls for a determination under s 120(1) of the Act.[33] This requirement will be met if a hypothesis fits or is consistent with the template provided by any of the factors and the associated definition(s) in the Statements of Principles.
[33] See Bushell v Repatriation Commission (1992) 175 CLR 408 at 415.
A diagnosis of dysthymic disorder was made by Dr Brennan. Though, initially, preferring the diagnosis of personality disorder, Dr Ng conceded that at least two of the diagnostic criteria for dysthymic disorder were present in the veteran and that there was a subjective recognition by him that he suffered its symptoms. He also confirmed the presence of the veteran’s psychiatric condition from the time of his service and that it was of a sufficient severity to warrant management by a health professional. That points to the terms of factor 6(o) in the Statement of Principles concerning ischaemic heart disease i.e. the existence of a clinically significant level of dysthymic disorder from his service onwards, including at the time of the clinical onset of ischaemic heart disease.
As to the relationship of dysthymic disorder to service, Mr Harding relied, first, on a category 2 stressor in factor 6(a)(vi) of the Statement of Principles concerning depressive disorder. He identified paragraph (c) of the definition of that term which refers to a negative life event, the effects of which are chronic in nature and which cause the person to feel on-going distress, concern or worry. In particular, the relevant part of the definition is:
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 workloads, or experiencing bullying in the workplace … environment.
Mr Harding’s submission was that the veteran’s engagement in the army was the “work” in that definition. Mr Williams submitted that the definition was oriented towards occupational, health and safety aspects of a normal civilian work environment and was not suitable to application in a war-service environment. I have made no further references to this hypothesis because, as will be seen, I have accepted Mr Harding’s contention in respect of his alternate hypothesis.
Secondly, Mr Harding relied on factor 6(a)(viii) of the Statement of Principles concerning depressive disorder viz.: “having a medical illness … which results in serious physical … disability, within the five years before the clinical onset of depressive disorder”. The material relating to the veteran’s health problems points to his suffering from a severe illness, so described by Dr Whitby. Much of the hearing was concerned with the precise nature of the condition(s) with which he was afflicted but no consensus was reached. The evidence points to a man who enlisted in the army in a healthy state and who was hospitalised periodically in the Middle East, en route to Australia, in Australia, in New Guinea and again in Australia. After returning to Australia the evidence points to a weight loss of 3½ stone from his enlistment weight of 11 stone 2 pounds. That material points to factor 6(a)(viii) in the Statement of Principles concerning depressive disorder.
The second hypothesis advanced by Mr Harding is consistent with the relevant terms of the Statements of Principle for both depressive disorder and ischaemic heart disease. Accordingly, that hypothesis is a reasonable one.
Step 4:- Is Death War-caused?
As a reasonable hypothesis of a relevant relationship is raised between ischaemic heart disease and the veteran’s service, it follows that the applicant’s claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt or unless the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.[34]
[34] See Bushell v Repatriation Commission (1992) 175 CLR 408 at 414 per Mason CJ, Deane and McHugh JJ; and Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571 per Mason CJ, Gaudron and McHugh JJ.
As noted above, there was no consensus on the diagnosis of the medical illness from which the veteran suffered while in the army. References were made to symptoms of abdominal pain and mucus and blood in the faeces, and the conditions diarrhoea, amoebic dysentery, macrocytic anaemia, glossitis, colitis, vitamin B12 deficiency and enterocolitis. He experienced dramatic weight loss. He experienced sequential downgrading in his medical classification from “class 1” to “B” and then to “D” before he was discharged. That was over a relatively brief period of 18 months. During that time, he experienced recurrent admissions to hospital. I have noted Dr Whitby’s reference to the seriousness of his condition. I am satisfied that the veteran suffered from a medical illness, however diagnosed, which resulted in serious physical disability.
The opinions of Dr Brennan and Dr Ng were that the Veteran suffered from dysthymic disorder and this was based, to a large extent, on the evidence of the applicant and her family. That evidence has not been challenged and I accept that they were witnesses of truth. I am satisfied that the veteran suffered from his psychiatric condition from the time he suffered the serious physical disability. This was during his war service which marks the clinical onset of that condition. Accordingly, I am satisfied that his ischaemic heart disease had its clinical onset after his army service and that, therefore, at a time when he was already suffering from the dysthymic disorder. That heart condition was the underlying cause of his death.
On the basis of those findings, none of the facts necessary to support the hypothesis raised by Mr Harding are disproved and no facts have been established which are inconsistent with that hypothesis. Accordingly, I am not satisfied beyond reasonable doubt that the Veteran’s death was not war-caused in accordance with s 8 of the Act.
DECISION
The Tribunal sets aside the decision under review and substitutes its decision that the applicant is entitled to receive the widow’s pension and remits the matter of determining the date of effect of the decision to the Repatriation Commission.
I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member ...........................[SGD].............................................
Associate
Dated 13 September 2013
Dates of hearing 2, 6 and 13 August, and 3 September 2013 Counsel for the Applicant Mr Anthony Harding Solicitor for the Applicant Mr Terence O'Connor Advocate for the Respondent Mr Bruce Williams
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