Moran and Repatriation Commission
[2011] AATA 546
•8 August 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 546
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0562
GENERAL ADMINISTRATIVE DIVISION ) Re Christopher Moran Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Mr R P Handley, Deputy President
Dr S H Toh, Member
Date8 August 2011
PlaceSydney
Decision The decision under review is affirmed. .....................[sgd]....................
Mr R P Handley
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – entitlements - disability support pension – defence service - defence-caused disease – clinical worsening – Tribunal not satisfied on the balance of probabilities that clinical worsening of condition was contributed to in a material degree or aggravated by defence service – decision under review affirmed
RELEVANT ACT
Veterans’ Entitlement Act 1986: ss 68, 70, 120, 120B
CITATIONS
Repatriation Commission v Yates (1995) 57 FCR 241; (1995) 38 ALD 80, [1995] FCA 1234
Repatriation Commission v Milenz (2006) 93 ALD 107; (2006) 43 AAR 565; [2006] FCA 1436
OTHER AUTHORITIES
Statement of Principles concerning Anxiety Disorder No 102 of 2007 dated 5 September 2007
Amendment Statement of Principles concerning Anxiety Disorder No 43 of 2010 dated 22 April 2010
Amendment Statement of Principles concerning Anxiety Disorder No 16 of 2011 dated 14 December 2010
Statement of Principles concerning Alcohol Dependence and Alcohol Abuse No 2 of 2009 dated 19 December 2008
Statement of Principles concerning Ischaemic Heart Disease No 90 of 2007 dated 5 September 2007
Amendment Statement of Principles concerning Ischaemic Heart Disease No 44 of 2009 dated 19 June 2009
Amendment Statement of Principles concerning Ischaemic Heart Disease No 97 of 2010 dated 27 October 2010
REASONS FOR DECISION
8 August 2011 Mr R P Handley, Deputy President Dr S H Toh, Member
1. Mr Moran has applied to the Tribunal for a review of a decision of the Veterans’ Review Board (VRB) affirming a decision of the Repatriation Commission that his anxiety condition, alcohol abuse and ischaemic heart disease are not related to service.
Background
2. Mr Moran was born in 1951 and is aged 60. He served in the Royal Australian Air Force (RAAF) from 27 May 1969 to 26 May 1975, of which the period from 7 December 1972 to 26 May 1975 constitutes ‘defence service’ as defined in s 68 of the Veterans’ Entitlement Act 1986 (the Act).
3. Mr Moran has the following accepted injuries or diseases: bilateral sensorineural hearing loss with tinnitus, lumbar spondylosis, tinea of the skin, and otitis externa of both ears. He receives a disability pension at 90% of the General Rate. On 4 June 2009, his claim in respect of, amongst other conditions, anxiety disorder, alcohol abuse and ischaemic heart disease was refused on the ground that these conditions are not related to service. Mr Moran sought a review of this decision which, on 20 November 2009, was affirmed by the VRB. On 11 February 2010, Mr Moran sought a further review by the Tribunal.
4. Mr Moran contends that his anxiety condition is in part caused by his reaction to problems he faced following his enlistment and that these problems also led to his abusing alcohol. Relevantly in relation to these proceedings, he claims that there was a clinical worsening of his anxiety disorder in early 1973 caused by his defence service and that he satisfies the Statement of Principles (SoP) concerning Anxiety Disorder No 102 of 2007 (SoP No 102). (SoP No 102 of 2007 has been amended by SoP No 43 of 2010 and SoP No 16 of 2011 but neither amendment is relevant to this matter.)
5. At the hearing, Mr Colborne, for Mr Moran, conceded that while Mr Moran may have suffered from the condition ‘Alcohol Abuse’ in the past, he does not do so now. The Tribunal might not therefore be satisfied that he meets the Statement of Principles concerning Alcohol Dependence and Alcohol Abuse No 2 of 2009 (SoP No 2). However, Mr Colborne said that Mr Moran also claims that his ischaemic heart disease is defence-caused and if the Tribunal finds there was a clinical worsening of his anxiety disorder in early 1973, the Tribunal should also be satisfied that he meets the Statement of Principles concerning Ischaemic Heart Disease No 90 of 2007, as amended by SoP No 44 of 2009 and SoP No 97 of 2010.
Issues and Legislation
6. Pursuant to s 70(1)(d) of the Act, where a member of the Forces is incapacitated from a defence-caused injury or a defence-caused disease, the Commonwealth is liable to pay a pension to the member by way of compensation. Section 70(5)(d) provides relevantly that the disease is a defence-caused disease if it was contributed to in a material degree by, or was aggravated by, any defence service rendered by the member, being service rendered after the member contracted that disease.
7. In Repatriation Commission v Yates (1995) 38 ALD 80, [1995] FCA 1234; (1995) 57 FCR 241 (Yates), at 248-249, Lindgren J stated:
Sub-sections 70(4) and (5) are "deeming provisions". Relevantly, s 70(5) provides that a disease contracted by a member of the Forces shall be taken to be a "defence-caused disease" if the circumstances described in any one of pars (a) to (d) of the subsection exist. Accordingly, s 70(5) is concerned to define the relation between disease and service which is to satisfy the causative element of the expression "defence-caused". For example, in par (a) that link is one indicated by the words "arose out of or was attributable to". Paragraph (b) is a "journeying provision". I need not stay to discuss par (c). Paragraph (d) deals with situations in which an injury or disease, although not arising out of or attributable to service, was contributed to or aggravated by service. The plain meaning of par (d) is that the injury or disease itself must be contributed to or aggravated by service.
Incapacity, although made an essential element of the Commonwealth's liability by s 70(1), is not itself the particular concern of s 70(5). A defence-caused aggravation of a disease may or may not cause incapacity. Incapacity is related to "symptoms". There cannot be incapacity without symptoms but there can be symptoms without incapacity. Similarly, symptoms are related to, but not synonymous with, relevantly, disease. A disease may be, from time to time, symptom free. Likewise there can be symptoms of a disease, and a worsening of such symptoms, whether or not there has been an aggravation of the underlying disease.
Symptoms worsened by service activity may or may not, depending on the medical evidence, be evidence of a defence-caused aggravation of the underlying injury or disease. …
8. Accordingly, pursuant to s 70(5)(d), the Tribunal must consider whether any worsening of symptoms has resulted in an aggravation of the underlying disease which has also resulted in an incapacity. Lindgren J said, at [45], that that while an aggravation need not be permanent:
… I would expect, in the absence of medical evidence to the contrary, that an aggravation of an underlying disease would have a duration at least longer than the period of worsening of symptoms caused by the service, although it may not necessarily be as long as the duration of the disease itself.
9. Pursuant to s 120(4), the standard of proof to be applied is that of “reasonable satisfaction”. Further, pursuant to s 120B(3), there being relevant SoPs in force, the Tribunal must be reasonably satisfied that the material before it raises a connection between the injury or disease and the person’s service, and that the relevant SoPs uphold the contention that the injury or disease of the person is, on the balance of probabilities, connected with that service.
10. The factor on which the Applicant relies to establish that, pursuant to clause 6 of SoP No 102 of 2007, “on the balance of probabilities, anxiety disorder … is connected with the circumstances of a person’s relevant service” is:
(c) for generalised anxiety disorder or anxiety disorder not otherwise specified only:
…
(iv) experiencing a category 2 stressor within the six months before the clinical worsening of anxiety disorder; …
11. Clause 9 of SoP No 102 states that for the purposes of this SoP:
"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;
12. The relevant stressor relied upon by the Applicant in this case is that described in paragraph (f).
13. The Applicant relies on a diagnosis by Dr Patrick Morris, consultant psychiatrist, in a report dated 2 November 2010, that Mr Moran suffers from an ‘anxiety disorder not otherwise specified’.
14. With regard to liability in respect of ischaemic heart disease, clause 9 of SoP No 90, as amended by SoP No 44, states that for the purposes of the SoP:
"a clinically significant anxiety spectrum disorder as specified" means one of the following disorders:
(a) anxiety disorder due to a general medical condition;
(b) generalised anxiety disorder;
(c) panic disorder;
(d) phobic anxiety;
(e) posttraumatic stress disorder; or
(f) anxiety disorder not otherwise specified,
that attract a diagnosis under DSM-IV-TR and is sufficient to warrant ongoing management. The ongoing management may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner; …
15. The Commission accepts that on the balance of probabilities Mr Moran suffers from a psychiatric condition, diagnosed in a report dated 10 December 2010 by Dr Robert Lewin, consultant psychiatrist, as a ‘generalised anxiety disorder’, but contends that there was no clinical worsening of Mr Moran’s generalised anxiety disorder during his defence service.
16. The principal issues for the Tribunal in relation to Mr Moran’s anxiety disorder are (1) the correct diagnosis for that disorder, (2) whether Mr Moran suffered a clinical worsening of his anxiety disorder during his defence service, (3) whether the material before the Tribunal raises a connection between any clinical worsening and Mr Moran’s defence service, and (4) whether the relevant SoP upholds the contention that the disease is, on the balance of probabilities, connected with his defence service.
17. In relation to the Applicant’s claim in respect of ischaemic heart disease, the factor on which he relies to establish that, pursuant to clause 6 of SoP No 90, as amended by SoP No 44, “on the balance of probabilities, … ischaemic heart disease … is connected with the circumstances of a person’s relevant service” is that stated in paragraph (p)(iv):
having a clinically significant anxiety spectrum disorder as specified, at the time of the clinical onset of ischaemic heart disease; …
18. There is evidence to establish that the clinical onset of Mr Moran’s ischaemic heart disease had occurred by at least 18 November 2004. A report of that date by Dr Thomas P Gavaghan, cardiologist, to Mr Moran’s general practitioner states that Mr Moran underwent a coronary angiography at the Sydney Adventist Hospital on that day which showed coronary artery disease and recommended further treatment. The Commission accepts that if the Tribunal finds that Mr Moran’s anxiety condition is defence-caused, it would accept that his ischaemic heart disease is also defence-caused.
The History of Mr Moran’s condition
19. Mr Moran has at various times described his family history. His father served in World War II and Mr Moran was told that his father suffered from ‘war neurosis’, which Dr Lewin told the Tribunal was likely to be what today is referred to as Post Traumatic Stress Disorder (PTSD). His father was an alcoholic and at times violent and abusive towards his family. He had frequent admissions to Concord Repatriation Hospital, apparently for treatment of his psychiatric condition. Mr Moran has one older sister, who also joined the RAAF some years before Mr Moran.
20. Mr Moran spoke of joining the RAAF as in part a means of escaping his home environment. He also hoped that by leaving home, it would reduce the conflict there. However, he felt guilty leaving his mother to fend for herself and cope with his abusive father. In his report dated 10 December 2010, Dr Lewin referred to Mr Moran having a history of childhood anxiety problems and noted evidence of social avoidance during primary school years. Dr Lewin told the Tribunal that Mr Moran has a clearly defined genetic history and various sorts of anxiety have been evident through his life.
21. Mr Moran said that after leaving school on completing Year 10, he joined the Postmaster General’s Department (PMG) as a trainee and then worked in the Sydney Mail Exchange as a technician’s assistant for about 18 months. He joined the RAAF at the age of 18 having been told that he could undertake electronics training in order to work as a radio technician. When Mr Moran had completed the initial three months new recruit training, he had an opportunity to leave the RAAF but stayed, still believing that he could train as a radio technician. It was only after the opportunity to leave the RAAF had passed and he had signed on to complete six years’ service that he was told that there were no places on the relevant electronics training courses and he would have to choose some other training. He was bitterly disappointed by this but found there was nothing he could do about it.
22. The first reference in the clinical notes to Mr Moran suffering anxiety is on 11 September 1969 when he is recorded as suffering from “mild anxiety state” for which he was prescribed Librium. On 14 December 1969, he is recorded as suffering from an “environmental neurosis”, for which he has a family history, and is again prescribed Librium. Dr Lewin said that an ‘environmental neurosis’ would be called an adjustment disorder today.
23. As an alternative to undertaking the electronics training, which he was denied, Mr Moran chose to undertake a six‑month airframe mechanics course. On completion of this course he was posted to Richmond airbase for a year. He then undertook an airframe fitting course of four to five months after which he was posted to Fairbairn airbase in Canberra. He was there for about five months before returning to Richmond on secondment to work on a special project which took about eight months. After another three months back at Fairbairn, Mr Moran was awaiting posting to Vietnam when Australia withdrew from that conflict. He was then sent back to Richmond where he spent the next two‑and‑a‑half to three years, completing his six years’ service in May 1975.
24. Mr Moran said his psychiatric problems started not long after he joined the RAAF, probably when he was told he could not undertake the electronics training as he had hoped. He was angry and disillusioned by this and became impatient with others, had difficulty maintaining good relations with his colleagues, was resistant to authority, started drinking to excess, and got involved in fights and in bullying others. As a result, Mr Moran was charged with a number of disciplinary offences and, on one occasion, only avoided criminal prosecution when charges brought against him by the police were dropped. Socially, he became a “lone ranger” – he did not trust others and avoided delegating work, preferring to do it himself. Early on, he also developed perfectionist traits. Such traits were encouraged in the RAAF – for example, in recruit training, it was expected that a recruit would make his bed perfectly - as a means of ensuring that the work performed on aircraft was of a high quality.
25. Mr Moran said he had none of these psychiatric problems when he worked at the PMG. However, despite these problems, his work as an airframe fitter was of a very high quality, to the extent that when he left the RAAF, he was offered a Reserve position only offered to ex-servicemen.
26. Mr Moran said his mother had a heart attack in September 1972 and had coronary bypass surgery in early 1973. At that time, she was in her late 40s. His father continued to be abusive and failed to offer her adequate support. Mr Moran said he felt rather helpless, and concerned that he was not offering his mother sufficient support, in part because of his being in the RAAF and, at that time, stationed at Richmond. Concern for his mother affected him for two or three years while he was in the RAAF – until after she had her bypass surgery and her health was more settled.
27. Mr Moran said that, at this time, he was suffering from insomnia and headaches which were investigated by a neurologist. He was also drinking to excess as a means of trying to cope – usually five or six schooners of beer a day. He had two periods in hospital for treatment of a duodenal ulcer: from 7 to 21 December 1972, followed by 16 days sick leave, and from 15 January 1973 to 13 February 1973. During his second hospitalisation, Mr Moran was referred to a psychiatrist at the Richmond base, Squadron Leader Dr N Wilton, who examined Mr Moran on 16 and 23 January 1973. In a referral note, the referring officer, Flight Lieutenant LJ McCafferty (probably a general practitioner), said of Mr Moran that “He is a tense sort of character and admits to symptoms of anxiety.”
28. Dr Lewin noted that, at that time, it was thought that suffering from an ulcer was often associated with anxiety. Ulcers were regarded as a psychosomatic condition and it was common for psychiatrists to be involved in their treatment. In a clinical note following his examining Mr Moran on 16 January 1973, Dr Wilton said Mr Moran was:
… a rather angry young man with D.U. [duodenal ulcer] symptoms from about the time of his mother’s heart attack, in which she nearly died. He has noticed increasing instability lately, but appears more relaxed since commenced on Melleril.
Dr Lewin noted that Melleril was a strong medication prescribed to relieve anxiety. Antacids like Mylanta were also then commonly prescribed to treat duodenal ulcers.
29. In his clinical note dated 23 January 1973, Dr Wilton said:
He is a likeable man with D.U. symptoms for 5 months. There appears to be a precipitant in his mother’s illness last September, and he describes worrying about her dying and being unable to show it, keeping it “screwed up in my gut”. He has no previous psychiatric history although he has always been somewhat tense, smoking 50-60 cigarettes per day – which he has now cut right down. I do not consider he has a psychiatric illness, but that he may be helped to ventilate some of his feelings about his mother’s illness, and his feelings about death and dying, as this might also be a constructive preventive intervention for when she does die. He should continue on the medication as prescribed while in hospital.
30. A clinical note from 9 April 1973 by a Dr Walsh refers to Mr Moran “Still feeling tense. Gets upset easily [and] … feels depressed”. Dr Walsh prescribed Tryptanol. In a report by a neurologist, Dr Rail, dated 17 July 1973, on a referral to investigate Mr Moran’s headaches, Dr Rail noted ‘nervous symptoms’.
31. Mr Moran was asked about visiting his family during the last three years of his service, most of which he spent at Richmond. He said he would usually have two weekends off a month and could visit his family then. He said it was too far to drive to see them during the week because at that time it would take about two hours to get to Belmore where they lived. However, he acknowledged that he was spending about two nights a week sleeping on the couch of his girlfriend’s home in Windsor. Mr Moran’s mother’s coronary surgery took place after he was released from hospital in February 1973. His commanding officer would not allow him additional time off to spend with her at this time because Mr Moran had himself had a considerable amount of time off during and after his hospitalisations.
32. Mr Moran said his psychiatric condition worsened when he left the RAAF. Initially, he worked as a salesman selling advertising space but later was appointed to a management position. He had difficulty coping with stress. By 1980, Mr Moran and his first wife had divorced, there being no children of the marriage, and in 1980 he and his now wife began living together. They were married in 1984. Mr Moran also found it stressful coping with a new family, his wife having two children from her first marriage. During this period, Mr Moran appears to have progressed rapidly to a senior managerial position and thereafter held various senior positions in companies in the newspaper and publishing industry.
33. Mr Moran said that he consulted a psychiatrist, Dr Jackson, over a period of about five months in 1984. Dr Jackson taught him to hypnotise himself and relax. Dr Jackson told him to leave his work concerns when he put his hand on the door handle of his car to go home at the end of the day and not to think about his work until he got back in the car to go to work on the next occasion. Mr Moran said he would attend social functions if alcohol was involved but would try and avoid training sessions. Sometimes he would experience panic attacks when talking with a customer in his office and would need to leave, making an excuse, for example that he needed to go to the toilet. He had obvious signs of anxiety – trembling hands, profuse sweating, heart palpitations etc – about which he consulted his general practitioner. He took medication to control his blood pressure and also to control his trembling hands and sweating.
34. Mr Moran said this anxiety lasted until he took a senior position in a publishing company in Hong Kong, which was followed by another short term position with the same company in Los Angeles. In August 2004, when Mr Moran returned to Australia, he felt a failure, with nothing to show in terms of securing his financial future, despite having held some very senior and well-paid positions. Mr Moran said he and his wife then bought a five acre block on the Sunshine Coast in Queensland where he tried to start a furniture making business in a workshop under their house. However, this failed when it was blocked by the local Council. Following this, in November 2005, Mr Moran tried to commit suicide by gassing himself in his car, but could not go through with it.
35. Mr Moran and his wife then returned to Sydney in 2006 where he tried to find work. However, despite making thousands of applications over the course of two years, he was unsuccessful, apart from one position which lasted only a few weeks, probably, he said, because of his having had too much experience and because of his age. Also, his hearing was also a problem and his anxiety at interview was obvious from his sweaty hands. Finally, in December 2008, Mr Moran made an application for a disability support pension on the basis of his anxiety and depression and ischaemic heart disease which was accepted, and since then he has not sought work and has reconciled himself to his financial state. Mr Moran said he separated from his wife for a year at the time he applied for a disability support pension because he felt he had failed. This was against his wife’s wishes and they subsequently got back together. They now live in a St Vincent de Paul village for aged people who are unable to position themselves in the private rental market.
36. Mr Moran said when his anxiety was first recognised and treated, in about 1969, it was event driven. However, it is now ongoing. He has been treated on a regular basis for anxiety since about 1980. Over time, he has learned to deal with this and with the medication. Nevertheless, his depressive symptoms are event driven. Currently, he takes Xanax and Lexapro for his anxiety and depression.
(1) What is the correct diagnosis for Mr Moran’s anxiety disorder?
37. Mr Moran has also consulted other psychiatrists at various times: in 1993 and 1994, Dr Atsumi Fukui (letter dated 8 March 1994), Dr Lisa Lampe (report dated 31 March 1994), a psychologist, Ms Carol Janes, in 2008 and 2009 under a Mental Health Care Plan (report dated 22 December 2008), and he was also assessed by Dr Peter Whetton for the Department of Veterans’ Affairs (report dated 17 February 2009). Dr Whetton diagnosed alcohol abuse, generalised anxiety disorder and personality disorder. He said of Mr Moran:
His history is of lifelong personality disorder developing within the context of disturbed family relationships and subsequent alcohol abuse. While he may blame the RAAF, the problem has its origin in his personality and as such I do not consider the RAAF to be a substantial contributing factor to the development of his condition.
38. In his report dated 2 November 2010, Dr Morris diagnosed Mr Moran as suffering from the condition ‘Anxiety Condition Not Otherwise Specified’. He said:
I make this diagnosis as Mr Moran has clinically significant symptoms of anxiety and depression but the criteria are not met for either a specific mood disorder or a specific anxiety disorder. In my opinion Mr Moran’s condition of Anxiety Condition Not Otherwise Specified has been present since at least early 1970.
39. In oral evidence, Dr Morris referred to Mr Moran suffering two stressors during his RAAF service. The first was his disappointment over not being able to undertake electronics training. In his report, Dr Morris referred to this causing Mr Moran “disappointment, frustration and anger”. Dr Morris said anxiety is sometimes expressed through aggressive behaviour. He said that in his opinion, Mr Moran’s inability to support his mother meets the definition of a category 2 stressor, marking a clinical worsening of his disorder.
40. In his report dated 10 December 2010, Dr Lewin stated:
When considering the long-term history, I note Mr Moran has experienced transient flare-ups of anxiety or, alternatively, of depressive symptoms at various times in his life. These periods when he was symptomatic, included periods both before and after his military service. There appears to be evidence of inherent vulnerability in terms of his personality functioning over a long-standing period, both before and after his military service. The personality vulnerability became evident in terms of perfectionistic or obsessional character traits.
41. Dr Lewin said he diagnosed Mr Moran as suffering from a ‘Generalised Anxiety Disorder’ because the predominant symptom among others is worry. Dr Lewin described diagnosis of an ‘Anxiety Condition Not Otherwise Specified’ as a less specific diagnosis and noted that this condition is a more recent addition to the Diagnostic and Statistical Manual – IV (DSM-IV). He said that in his view, the difference between a Generalised Anxiety Disorder and an Anxiety Condition Not Otherwise Specified is slight and he would not quarrel with the latter as a diagnosis for Mr Moran’s condition.
42. Dr Lewin said it was more likely than not that if Mr Moran had been examined by a psychiatrist in childhood, he would have been diagnosed as suffering from an anxiety disorder. As it is, there is no objective evidence of symptoms until 1969 (when the clinical notes first refer to Mr Moran suffering from a “mild anxiety state”), but the range of symptoms listed by Dr Wilton in 1973 are, in Dr Lewin’s opinion, consistent with a diagnosis of an anxiety disorder even though Dr Wilton declined to diagnose one. Such a condition fluctuates and it is possible that the condition may have been worse at the time Mr Moran was hospitalised in January 1973, his having failed to get onto an electronics course and after his mother had had a heart attack.
43. The Tribunal is reasonably satisfied from the evidence of Dr Morris and Dr Lewin that a diagnosis of ‘Anxiety Condition Not Otherwise Specified’ represents an appropriate diagnosis for Mr Moran’s condition. The objective evidence of the clinical notes indicates that symptoms of this condition were present in September 1969 and the psychiatric opinions with which we have been provided suggest that Mr Moran probably experienced symptoms of anxiety from an early age, possibly as a result of a genetic vulnerability. We are therefore reasonably satisfied that the clinical onset of Mr Moran’s condition occurred before 7 December 1972.
(2) Did Mr Moran suffer a clinical worsening of his anxiety disorder during his defence service?
44. In Repatriation Commission v Milenz [2006] FCA 1436; (2006) 93 ALD 107, at 114 [35], Finn J said that the requirement for a clinical worsening “imposed a medical-scientific standard, not a lay standard”, emphasising, at 115 [47]:
… Whether there has been a clinical worsening of a particular depressive disorder … was a diagnostic question that addressed the features and symptoms of that disorder as defined in the SoP and required a clinical judgment be made.
45. Dr Morris expressed the opinion that Mr Moran’s concern over his mother’s health marked a clinical worsening of his condition. His mother suffered a heart attack in September 1972, before the commencement of Mr Moran’s defence service. Mr Moran’s evidence indicates that the coronary bypass surgery she underwent took place in about late February/early March 1973 during Mr Moran’s defence service. Dr Wilton’s clinical notes indicate that Mr Moran was undoubtedly worried about his mother’s health in the period before her surgery and recorded that he was suffering from anxiety. Both Dr Morris and Dr Lewin expressed the opinion that anxiety over his mother’s health exacerbated Mr Moran’s anxiety condition.
46. We are reasonably satisfied on the basis of Mr Moran’s evidence and the medical evidence that he did suffer an increase in symptoms of his anxiety disorder and, therefore, a clinical worsening of that condition in the period from September 1972 continuing through 7 December 1972 (the commencement of his defence service) until after his mother’s condition had stabilised in 1973.
(3) Does the material before the Tribunal raise a connection between any clinical worsening and Mr Moran’s defence service?
47. As stated above, the factor on which the Applicant relies is experiencing a category 2 stressor within six months before the clinical worsening of his anxiety disorder. The category 2 stressor relied upon is paragraph (f) "having a family member or significant other experience a major deterioration in their health”, in this case, the poor state of Mr Moran’s mother’s health between 7 December 1972 and until her heart condition had stabilised after coronary bypass surgery which took place in about late February/early March 1973.
48. Dr Lewin’s evidence is that a person suffering from an anxiety disorder is likely to experience fluctuations in their symptoms according to influences and events occurring through a person’s life. Mr Moran’s evidence indicates his condition continued to fluctuate after he had left the RAAF according to the stress he was experiencing at particular times.
49. Mr Moran told the Tribunal that he was frustrated at not having the flexibility to spend more time in supporting his mother through the period from her suffering a heart attack until after her health had stabilised following her coronary bypass surgery. Mr Moran was stationed at Richmond airbase at this time which, he said, was about two hours drive from his mother’s home in Belmore. He said this was too far to drive to visit his mother except at the weekend. We note, however, his evidence that he spent two nights a week staying at his girlfriend’s home at Windsor at this time.
50. In the Tribunal’s view, there is sufficient evidence to raise a connection between Mr Moran’s service and the clinical worsening of his condition although as will be apparent from the further discussion below, we are not satisfied that the SoP upholds the contention.
(4) Does the relevant SoP uphold the contention that Mr Moran’s anxiety disorder is, on the balance of probabilities, connected with his defence service?
51. First, in relation to the clinical worsening of Mr Moran’s condition, we are mindful of Lindgren J’s comments in Yates, quoted above, about s 70(5)(d) of the Act and the relationship between the worsening of symptoms and whether the disease was contributed to in a material degree by, or was aggravated by, the member’s defence service. His Honour noted that an aggravation of an underlying disease would have a duration at least longer than the worsening of symptoms caused by the service. In Mr Moran’s case, we are not reasonably satisfied that the worsening of symptoms after 7 December 1972 had a longer term effect on the nature of his condition. In our view, it is more likely that the effect was more akin to a fluctuation in symptoms according to the influences and events occurring through a person’s life of the kind described by Dr Lewin.
52. Second, we are also not satisfied on the balance of probabilities that Mr Moran’s defence service made a contribution in a material degree to the clinical worsening of his condition. Thus, we are not satisfied that the causative connection with his defence service has been established. Mr Moran’s anxiety following his not being permitted to undertake the electronics training on which he was focused, occurred before the commencement of his defence service. Further, while his anxiety over the health of his mother was understandable given his family circumstances, we are not satisfied that his defence service imposed any significant restriction on his ability to support her given his location at Richmond, which he said was about two hours drive from the family home. In our view, it should have been possible for him to visit his mother after work during the week on an occasional basis, noting, in particular, that he spent two nights a week staying at his girlfriend’s house. It is still the case that some commuters spend a similar amount of time commuting to work in Sydney on a daily basis. Moreover, Mr Moran could have visited his mother on the two weekends out of every four that he said he usually had off.
53. In conclusion, we are not satisfied on the balance of probabilities that there was a clinical worsening of Mr Moran’s anxiety condition that was contributed to in a material degree or was aggravated by his defence service. Thus, the decision under review in relation to Mr Moran’s claim in respect of his anxiety condition is affirmed and, consequently, the rejection of his claim in his respect of ischaemic heart disease is also affirmed, since the Tribunal is not reasonably satisfied of the connection between that disease and Mr Moran’s service. Finally, the evidence does not, as Mr Colborne acknowledged, support a finding that Mr Moran is currently suffering from the condition ‘Alcohol Abuse’.
Decision
54. The decision under review is affirmed.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President, and Dr S H Toh, Member.
Signed: ..........[sgd]....................................................................
AssociateDate of Hearing 26 July 2011
Date of Decision 8 August 2011
Counsel for the Applicant C Colborne
Solicitor for the Applicant Legal Aid Commission of NSWSolicitor for the Respondent K Rudge, Department of Veterans' Affairs Advocacy Section
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