Murrell and Repatriation Commission
[2009] AATA 282
•27 April 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 282
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/5323;
VETERANS’ APPEALS DIVISION ) 2007/5324
ReROBERT MURRELL
Applicant
AndREPATRIATION COMMISSION
Respondent
DECISION
TribunalDr J Campbell, Member
Date27 April 2009
PlaceSydney
DecisionThe decision under review is set aside and in substitution thereof, I find that:
A.The appropriate diagnoses for Mr Murrell’s claimed conditions are:
1) Crohn’s Disease (Inflammatory Bowel Disorder);
2) Gastro-Oesophageal Reflux Disease; and
3) Generalised Anxiety Disorder.
B. The three diseases nominated are war-caused;
C. The date of effect for Crohn’s Disease and Gastro-Oesophageal Reflux Disease is 27 April 2004 and the date of effect for the Generalised Anxiety Disorder is 19 April 2005; and
D. Assessment of Mr Murrell’s Rate of Pension is remitted to the Repatriation Commission for determination.
...................[sgd]........................................
Dr J Campbell
Member
CATCHWORDS
Veteran’s Entitlements – Entitlement Claim for Irritable Bowel Syndrome – Gastro-Oesophageal Reflux – Generalised Anxiety Disorder – Assessment
Relevant Legislation
Veterans’ Entitlement Act 1986 - sections 9, 14, 119, 120 (1), (3)
Relevant Case Law
Benjamin v Repatriation Commission (2001) 64 ALD 411
White v Repatriation Commission (2004) 39 AAR 67
Repatriation Commission v Deledio (1998) 83 FCR 82; 49 ALD 193; 27 AAR 144
Other Relevant materials
Repatriation Medical Authority Statement of Principles concerning anxiety disorder No. 101 of 2007
Repatriation Medical Authority Statement of Principles concerning generalised anxiety disorder and anxiety disorder due to a general medical condition No 1 of 2000
REASONS FOR DECISION
27 April 2009
Dr John Campbell, Member
SUMMARY
1. Mr Murrell was born on 23 October 1928. In 1943, he left school and began employment. He enlisted in the RAAF in 1947 and left the service on 22 October 1968. He then worked as a civilian in the Department of the Navy until he retired in 1987 following an episode of coronary heart disease.
2. Mr Murrell completed the following periods of operational and eligible service in the Veterans’ Entitlement Act 1986 (“the Act”):
·Eligible Service in World War II from 10 March 1947 to 3 October 1948;
·Operational Service in Malaya from 7 April 1951 to 15 May 1952; and
·Operational Service with the Far East Strategic Reserve from 17 November 1960 to 14 May 1963.
3. On 29 July 2004, Mr Murrell lodged a claim for ‘Irritable Bowel Syndrome’, ‘Tinnitus’, ‘Gastro-Oesophageal Reflux’ (GORD) and ‘Sleep Apnoea’. On 20 June 2005, a delegate of the Repatriation Commission determined that Mr Murrell’s condition of tinnitus was war-caused, and that the other conditions of irritable bowel syndrome, GORD, and sleep apnoea were not related to service. Mr Murrell’s disability pension was increased to 80% of the general rate with effect from 27 April 2004 and his overall Lifestyle Component Rating was determined as 4.
4. On 19 July 2005, Mr Murrell lodged a claim for ‘Anxiety’ and ‘Obstructive Airways’. On 8 December 2005, a delegate of the Repatriation Commission determined that Mr Murrell’s condition of chronic obstructive pulmonary disease was war-caused, while his condition of organic mood disorder was not related to his service. Mr Murrell’s disability pension was then increased to 100% of the general rate with effect from 19 April 2005. An overall Lifestyle Component Rating was determined as 4.
5. On 17 August 2007, the Veterans’ Review Board:
·affirmed the decision under review in relation to irritable bowel syndrome, GORD and sleep apnoea; and
·varied the decision under review by changing the diagnosis of the anxiety condition from Organic Mood Disorder to Anxiety Disorder, and affirmed that the Anxiety Disorder was not related to service.
6. Mr Murrell seeks review of the determinations made by the Repatriation Commission in relation to irritable bowel syndrome, GORD and anxiety disorder. Mr Murrell does not press for review in relation to the condition of sleep apnoea.
ISSUES
7. The relevant issues in the matter are as follows:
a)what are the appropriate medical diagnoses for the claimed conditions?
b) are each of the diagnosed conditions war-caused?
c) the assessment of disabilities arising from accepted conditions.
CONSIDERATION AND FINDINGS
8. It was agreed by both parties that on the balance of probabilities the appropriate diagnoses for the claimed conditions were:
·Inflammatory Bowel Disease (Crohn’s Disease);
·Gastro-Oesophageal Reflux Disease (GORD); and
·Generalised Anxiety Disorder.
9. I accept the nominated and agreed diagnoses for the above listed conditions. In particular, I note Mr Murrell’s statement in his inital claim for irritable bowel syndrome, which nominated signs and symptoms as bleeding, mucus and uncontrolled bowel motions. Further, I note the report of Dr Grehan, consultant gastroenterologist, of 23 February 2009 (Exh A5), which states that Mr Murrell has been treated for Crohn’s Disease by Dr Brooks since 1991 and by him since 1994, with his symptoms, encloscopie findings and biopsy results unequivocally demonstrating Crohn’s Disease (Benjamin v Repatriation Commission (2001) 64 ALD 411 considered and applied).
ENTITLEMENT
10. At the hearing, both parties agreed that Mr Murrell’s conditions of Crohn’s Disease and Gastro-Oesophageal Reflux Disease were war-caused. I accept this agreement between the parties and, in particular, the concession by the Respondent, which is inherent in such agreement, and I so find that both conditions are war-caused.
GENERALISED ANXIEY DISORDER
11. In both his written statements and in his oral evidence, Mr Murrell described a number of incidents which were of concern to him, nigh on 60 years ago. In his oral evidence, Mr Murrell focused on the incident in 1952 when he, as a member of a three truck convoy, was forced to a halt by a tree fallen across the road. This occurred sometime after leaving Kuala Lumpar with the convoy tasked to carry stores to Changi in Singapore at the conclusion of a detachment period. Mr Murrell also alluded to the incident where a Douglas DC-3 plane was forced to land on a small island when an engine failed on a flight from Ceylon to Singapore. He stated, however, that this was not of major concern to him as he was aware of the competency of the pilot and he knew that the plane could fly with one engine.
12. In addressing the convoy incident, Mr Murrell stated in written evidence that he was aware, when stopped by the tree across the road, that the convoy was in terrorist country, that the tree across the road was a known terrorist ploy for an ambush and that the British High Commission had been ambushed and killed in the area. Mr Murrell stated that on stopping he loaded his rifle and was ready to fire. Mr Murrell stated that he took cover behind the truck on the left hand side, as he thought the ambush would come from above (the hillside). Mr Murrell stated that he was “shit scared” of what could have happened, that someone could have been shot and that his nerves were in full flight until he became assured by the arrival and presence of armed Malay Police.
13. Mr Murrell also detailed in his written statement his general concerns when on detachment to Kuala Lumpar and having to undertake plane guard duty at the airfield some miles out from the city centre. In oral evidence, Mr Murrell confirmed his written statement concerning the convoy incident and declared that he remained in the back of the truck for approximately ten minutes before moving to the side of the truck and that the whole incident lasted approximately 30-40 minutes, with the remainder of the trip to Changi being uneventful.
14. In addressing the issues of relationship to service, I refer to the Repatriation Medical Authority current Statement of Principles concerning anxiety disorder No. 101 of 2007 (“the Statement of Principles”). Mr Colborne, counsel for the Applicant, conceded that Mr Murrell was unable to postulate a hypothesis concerning his anxiety disorder with any factor nominated in the Statement of Principles. I accept such a concession and find that the Applicant is unable to point to material which would permit a hypothesis postulating the anxiety disorder with a factor nominated in the current Statement of Principles.
15. In addressing the relevant Statement of Principles that existed at the time of the claim lodgement and the resultant determination, namely the Statement of Principles concerning generalised anxiety disorder and anxiety disorder due to a general medical condition No 1 of 2000 (“the Statement of Principles No. 1 of 2000”), I note the factors upon which a hypothesis is postulated, namely factor (a) (ii) in paragraph 5.
(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder
16. I note the definition of “severe psychosocial stressor” contained in
paragraph 8 of the Statement of Principles No. 1 of 2000 “ 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.
17. In White v Repatriation Commission (2004) 39 AAR 67, Spender J at paragraph [30] made the following observations:
In my judgement, 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.
18. In the matter under consideration, the hypothesis postulated on behalf of Mr Murrell is that he suffered a severe psychosocial stressor within two years immediately before the clinical onset of anxiety disorder. As regards the first element of the hypothesis, the Applicant relies upon the material concerning the tree incident and his response to and during that incident.
19. After consideration of all the material, I observe that there is material pointing to an identifiable occurrence, namely the convoy stoppage because of the fallen tree early in the morning on a day in 1952 shortly after leaving Kuala Lumpar on the road to Changi, Singapore, which pointed to a possible terrorist ambush. I also observe that there is material pointing to Mr Murrell being “shit scared” and having “nerves in full flight” over a period of some 30-40 minutes after which it became known to Mr Murrell that the fallen tree was an accidental event and not a terrorist ambush. In such circumstances, I am satisfied that there is material pointing to Mr Murrell experiencing a severe psychosocial stressor at that time.
20. In addressing the second element of the hypothesis, namely clinical onset of the anxiety disorder within two years, I am mindful that for clinical onset, there must be material pointing to the diagnostic criteria of the disease in question and existing at the time in question and from which a diagnosis can be pointed to.
21. In a report dated 30 March 2007, Dr Pusic (T27) a consultant psychiatrist, who had seen Mr Murrell on five occasions prior to the report, noted the following, namely:
·that Mr Murrell began experiencing panic attacks after he came back from Malaya, which he described as experiencing acute apprehension and a feeling of overwhelming dread associated with palpitations and excessive sweating;
·that he described increased muscle tension and a sense of inner tension and a sense of constant apprehension
·that he did not want to socialise and that he preferred his own company;
·that he had become dysphoric and that he had lost his confidence and his self-esteem;
·that on one occasion he had become so anxious that he would not go on parade; and
·that at that time (post-Malaya 1952) he was also abusing alcohol on a daily basis.
22. I would note that in his report, Dr Pusic notes that Mr Murrell continued to suffe from acute anxiety together with occasional panic attacks and some depressive symptoms throughout his service in the RAAF. Dr Pusic also records Mr Murrell telling him that he saw a RAAF doctor after he returned from Butterworth in the early 1960’s because he had lost his nerve, “dreaded the thought of going on morning parade” and that at the that time he “shook and was anxious”.
23. In a report dated 6 May 2008 (Exh A4), Dr Dinnen, a consultant psychiatrist, concluded that Mr Murrell suffered from generalised anxiety disorder. Dr Dinnen considered that Mr Murrell’s anxiety disorder commenced during his period of operational service in Malaya 1951/52. In oral evidence, Dr Dinnen confirmed that the clinical onset of the anxiety disorder was shortly after his return to Australia in 1952/53, and in so stating observed that the diagnostic criteria necessary for a diagnosis of anxiety disorder at the time were clearly enunciated in Dr Pusic’s report.
24. After considering all of the material in evidence, I am satisfied that there is material pointing to the clinical onset of generalised anxiety disorder within two years of experiencing a severe psychosocial stressor. I would note that the material pointing to the clinical onset is contained within the report of Dr Pusic and
in the report and oral evidence of Dr Dinnen.
25. Having considered all the material, I find that a reasonable hypothesis exists, namely Mr Murrell experienced a serve psychosocial stressor within two years immediately before the clinical onset of generalised anxiety disorder.
26. In addressing the fourth stage of the Deledio process (see (1998) 83 FCR 82; 49 ALD 193; 27 AAR 144) – I note the following material:
·the evidence of Mr Murrell in which he detailed his actives in Singapore immediately after the convoy incident, when returning from Kuala Lumpar in 1952;
·the evidence of Mr Murrell as to the cause of his apprehension on his return to Australia in 1952, namely the issue of new wife, child, accommodation and money;
·the evidence of Mr Murrell surrounding his divorce after nine years and his remarriage prior to going to Butterworth in 1960;
·the Writeway Research Report (Exh R3) confirmed that bandits did attack convoys on the road passaged by the Applicant’s unit vehicles some six months earlier and that such a threat remained;
·the report of Dr Baker, consultant psychiatrist of 5 September 2005 (TIT), in which he considered Mr Murrell to be suffering from an organic mood disorder secondary to his sleep apnoea and unrelated to his service; and
·the report of Dr Morris, a consultant psychiatrist, dated 18 February 2008 (Exh R4) who considered Mr Murrell suffered from generalised anxiety disorder, which were not related to his service, as in his view Mr Murrell had not experienced a severe psychosocial stressor during his two periods of operational service.
27. Having examined and considered all the material before me, and in particular the matters referred to in the previous paragraph, I conclude that the analyses of such material does not permit me to find that any one of the facts essential to the hypothesis is disproved beyond reasonable doubt. Furthermore, the existence of another fact beyond reasonable doubt which is inconsistent with an essential fact of the hypothesis and thereby disproving the hypothesis beyond reasonable doubt has not been established in this case.
28. In so finding, I paid particular attention to the report of Dr Baker, which was essentially devoid of Mr Murrell’s service history, was particularly brief and failed to detail any reasons for his opinion. In examining Dr Morris’ report, I observe that his analysis did not appear to have had the opportunity of hearing Mr Murrell’s more detailed evidence in relation to the convoy ‘ambush’ incident.
29. Finally, I would note that Mr Murrell’s rendition of his service experiences over time to many clinicians reflects, in part, difficulties of ageing memory, albeit in a remarkably spry elderly man – an issue clearly reflected in section 119 of the Act. In such circumstances, I do not draw any significant interference from variations as to emphasis he has placed on necessary happenings and events in his life. Further, I do not consider his described activities at the time of the incident necessarily inconsistent with his emotional fright, as indeed his actions were consistent with that of a trained person.
30. In conclusion, the decision under review is set aside and in substitution thereof, I find that:
A. The appropriate diagnoses for Mr Murrell’s claimed conditions are:
4) Crohn’s Disease (Inflammatory Bowel Disorder);
5) Gastro-Oesophageal Reflux Disease; and
6) Generalised Anxiety Disorder.
B. The three diseases nominated are war-caused;
C.The date of effect for Crohn’s Disease and Gastro-Oesophageal Reflux Disease is 27 April 2004 and the date of effect for the Generalised Anxiety Disorder is 19 April 2005; and
D.Assessment of Mr Murrell’s Rate of Pension is remitted to the Repatriation Commission for determination.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Dr John Campbell, Member
Signed: .................................[sgd]...........................................
AssociateDates of Hearing: 31 March and 1 April 2009
Date of Decision: 27 April 2009
Solicitor for the Applicant: Ms R Wheeler, KCI Lawyers
Counsel for the Applicant: Mr C Colborne
Advocate for the Respondent: Mr T O’Reilly, Department of Veterans’ Affairs
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