Nixon and Repatriation Commission
[2010] AATA 1001
•13 December 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 1001
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3368
VETERANS’ APPEALS DIVISION ) Re JOHN NIXON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms Regina Perton
Miss E A ShanahanDate13 December 2010
PlaceMelbourne
Decision The Tribunal affirms the decisions under review. ..............................................
Presiding Member
VETERANS' AFFAIRS ‑ veterans’ entitlements ‑ generalised anxiety disorder – lumbar spondylosis ‑ whether conditions war-caused – decisions affirmed
Veterans' Entitlements Act 1986 ss 9, 120(1), 196B(2)
Benjamin v Repatriation Commission (2001) 70 ALD 622
Lees v Repatriation Commission [2002] FCAFC 398
Re Stonehouse and Repatriation Commission [2004] AATA 707
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission vGorton (2001) 110 FCR 321
Repatriation Commission v Hill [2002] FCAFC 192
Stoddart v Repatriation Commission (2003) 197 ALR 283
REASONS FOR DECISION [2010] AATA 1001
13 December 2010 Ms Regina Perton
Miss E A Shanahan1. John Nixon, who is now 65 years old, served in the Australian Army (the army) from 2 April 1967 to 18 April 1969. He served in Nui Dat, Vietnam, from 8 July 1968 to 26 March 1969. This period constitutes operational service under the Veterans' Entitlements Act 1986 (the Act).
2. Mr Nixon lodged claims in October 2006 and November 2006 to have a number of medical conditions assessed as being war-caused. In March 2007 the Repatriation Commission (the Commission) accepted some, but not all, of those conditions as war-caused. Mr Nixon is currently receiving a disability pension at 20 per cent of the general rate.
WHAT ARE MR NIXON’S MEDICAL CONDITIONS?
3. The Commission accepted that Mr Nixon’s medical conditions of tinea, bilateral sensorineural hearing loss, bilateral tinnitus, solar keratosis and non-melanotic malignant neoplasm of the skin of neck and face were war-caused. The Commission rejected Mr Nixon’s claims for anxiety state and lumbar spondylosis. In May 2008, the Veterans Review Board (VRB) affirmed the decision concerning lumbar spondylosis. The VRB varied the diagnosis from anxiety disorder to generalised anxiety disorder (GAD) but affirmed the Commission’s decision to reject the claim. In this matter, Mr Nixon is seeking to have the rejected conditions accepted as war-caused.
4. The Tribunal is required to determine to its reasonable satisfaction whether Mr Nixon suffers from any particular injury or disease (Benjamin v Repatriation Commission (2001) 70 ALD 622).
5. The Commission has conceded that Mr Nixon’s diagnoses are GAD and lumbar spondylosis but not that they are war-caused. Therefore, the Tribunal needs to make a determination on whether each of these conditions is war-caused.
ARE THE CONDITIONS WAR‑CAUSED?
Legal Framework
6. Section 9 of the Act provides that where an injury or disease results from an occurrence that happened while the veteran was rendering operational service or where it arose out of, or was attributable to that service, the injury or disease will be taken as being war-caused. Causation questions such as these, where a veteran has rendered operational service, are addressed by applying the standard of proof in s 120(1) of the Act. That requires decision-makers to determine that an injury or disease is war-caused, unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
7. In the circumstances of this case, where Mr Nixon has rendered operational service, the issue of whether the diagnosed conditions were caused by operational service is to be decided by reference to the four-step process identified by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP [Statement of Principles] determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
Is generalised anxiety disorder war-caused?
8. Mr Nixon told the Tribunal that from 1962 to 1967, he worked with the Government Aircraft factory in Port Melbourne. He was an apprentice and then a qualified airframe fitter. Mr Nixon was conscripted into the army. He served for two years which included his operational service. He worked as an airframe fitter in Vietnam.
9. In his written statement, Mr Nixon stated that he was generally apprehensive on his arrival in Vietnam. He described his duties as maintenance and service of Cessna 180 aircraft and helicopters. The aircraft were used as reconnaissance planes but were fitted with two rocket pods under each wing. This work was undertaken at the Nui Dat base.
10. Mr Nixon stated that within a month of his arrival in Vietnam, a pilot invited him on a surveillance flight. Mr Nixon took up the offer. He stated that he found the flight terrifying. He stated that they flew for approximately two hours at low altitude. Mr Nixon stated that he felt vulnerable. His fear was such that he hyperventilated, suffered palpitations and chest pain. He stated that he was still distressed after landing. He said that he had only been a social drinker up to the day of the flight. However that night, and on the following day, a rostered day off, he drank excessively.
11. Mr Nixon said that he went to a bar in Vung Tau on the day after the flight and drank so much he could not remember the journey home. Mr Nixon later heard that there had been an incident that day in which a civilian died after being hit on the head by a beer can. He has wondered ever since if it might have been he who threw the can. However he was not interviewed by the military police and he does not know what happened to the investigation. Mr Nixon stated that he dates the commencement of his emotional illness to the surveillance flight. He indicated that he did not take another flight in Vietnam.
12. In his statement Mr Nixon expressed a belief that the sentry duties he performed during the TET Offensive also contributed to his emotional state.
…Normally I was not required to undertake sentry duties. During the period of the TET Offensive we were placed on stand to in the based for about two hours each night for the first three nights. We were also on alert for about one week and throughout that week I was given sentry duties every evening lasting for about two hours. I recall the artillery fired over my head into the distance and I could hear the shells as they passed overhead and I could hear the explosions in the distance as they found their mark…
13. Mr Nixon stated that he was fearful while on sentry duty during the TET Offensive. He was required to guard the airstrip and it was dark beyond the perimeter.
14. In his oral evidence, Mr Nixon conceded that the TET Offensive took place in 1968, before he arrived in Vietnam. He said that they were told that there was the possibility of a new offensive starting during the 1969 Vietnamese New Year. He said that during Vietcong celebrations, a rocket went over the task force area and hit a small village about a kilometre from the base. He said that he was required to do two hours guard duty a night which was frightening.
15. Mr Nixon stated that throughout his service in Vietnam his duties included loading rockets or other incendiary devices onto aircraft. He was fearful of accidentally detonating the devices and felt concerned about the potential targets of these devices. In his first two months in Vietnam, there was one night flight each night and he was part of the duty crew required to turn the airstrip lights on and off manually. He said that he had to carry weapons and he feared an attack. Fortunately, there was no attack.
16. Mr Nixon also expressed fear about coming into contact with rotor blades during the servicing of an aircraft as it involved removal and reinstallation of the rotor blade assembly while the engine was at full power.
17. Mr Nixon stated that by the time he returned from Vietnam he was suffering anxiety, depression, mood swings, irritability, short temperedness, anger, nightmares and I was sleeping restlessly. He said that at the end of his tour of Vietnam and for the next two years, he drank excessively. However within two years, he reduced his alcohol consumption and reverted to only drinking socially. Until recently he had avoided activities that reminded him of his time in Vietnam such as ANZAC day marches or reunions.
18. After completing national service, Mr Nixon resumed work at the Government Aircraft Factory. He worked as an airframe fitter for about two years before being promoted into a position as a bidder and estimator. He was retrenched from the Government Aircraft factory in 1997. After he was retrenched he applied for various jobs without success. He kept occupied by mowing lawns, including his church’s lawns and did painting for people who needed help. He took his sons to school and was involved in their activities. His elder son is now training as a specialist doctor. His younger son joined the army after completing school but was diagnosed with schizophrenia about four years ago. Mr Nixon acknowledged that his anxiety increased when the diagnosis was made and that he experiences increased anxiety when his son comes to visit.
19. Mr Nixon found that filling out the forms to apply to the Department of Veterans’ Affairs (DVA) had been stressful. He said this was because he had to revive memories of Vietnam and write them down. He had considered applying to DVA when he reached 60 years of age but it took him about another year to do so.
20. Mr Nixon said that Dr Varney has been his general practitioner since 1975, when he moved to the home in which he still lives. He said that he did not see Dr Varney often initially. He said that was because he just kept away from doctors. Mr Nixon stated that despite having been Dr Varney’s patient for so long, he only sought treatment for his psychiatric condition in around 2006. He stated that he had suffered from chest pain and his doctor initially suspected a cardiac complaint. However, he was cleared of any such problem. It was his cardiologist who first advised him that his symptoms were caused by anxiety.
21. Jill Nixon, Mr Nixon’s wife, provided a statement dated 14 March 2010 and gave oral evidence. She had met Mr Nixon in 1971 about two years after his return from Vietnam. She stated that she has always found him to be a sensitive and quiet person. She stated that some time after their marriage, her husband had told her about the frightening plane flight and how he sometimes dreamt of it. She mentioned the tensions that existed when Mr Nixon’s parents moved in, whilst the parents house was being built next door, and how his work and retrenchment affected him. She said that he did not discuss with her how he felt when he was stressed. She said that he always appeared to be a happy person and his sons said that he was the fun parent while she was the disciplinarian.
22. Mrs Nixon stated that it was not until mid 2006 when everything went wrong after he decided to apply to DVA for a health card or age pension. Memories of Vietnam came back as he did so. She stated that it was after the diagnosis of anxiety, rather than cardiac problems, that an RSL advocate suggested Mr Nixon lodge a claim.
23. A report was prepared on 2 February 2009 by P J Pearson of Writeway Research Service Pty Ltd (Writeway Report). He stated that little has been written about the activity of members of the flight workshops in Vietnam or what work was done to service helicopters or aircraft. He confirmed that maintenance staff were required to carry a weapon and leave it within easy reach when working.
24. Mr Pearson stated that it was common practice for maintenance staff to be asked by Cessna pilots to accompany them on flights. It was an informal practice. No unit records were kept of who flew with whom. It was an activity that was considered to break the monotony of the routine work many soldiers otherwise did.
25. While Mr Nixon claimed he had been on sentry duty for seven nights in a row, the Writeway Report indicates that there was only one night in the duty officer’s log that was relevant. On 23 February 1969 the log recorded there was an undefined threat against the base and those units on the base were placed on stand to which required them to occupy nominated defensive positions. The closest location of any enemy fire was recorded as being at 1200 metres to the south-west of Nui Dat base. The same report indicates that the Sioux helicopters were equipped with smoke grenade launchers for target marking. The Cessnas may have carried a variety of ordinance.
26. The Tribunal was provided with reports from three psychiatrists, namely Dr Leslie Chester, Dr Arthur Velakoulis and Dr Nigel Strauss. The clinical notes of Mr Nixon’s treating general practitioner, Dr Varney, and the hospital record from the Heidelberg Repatriation Hospital, PTSD Clinic were also provided.
27. Dr Chester was the first psychiatrist to see Mr Nixon and provide an opinion. Dr Chester’s report of 13 February 2007 related the history given to him by Mr Nixon. Mr Nixon had said he had only had occasional minor degrees of anxiety prior to 2006. He told Dr Chester that he had become acutely distressed in July 2006 when he was filling out DVA application forms for a pension. On specific questioning by Dr Chester, Mr Nixon denied that he was anxious most of the time, denied any panic attacks, phobias or excessive compulsive symptoms and stated that he slept well, had a good appetite, his weight was stable and his energy, motivation and libido were satisfactory. He described his marriage as a good and happy relationship. Mr Nixon was a social drinker and non-smoker. In relation to his Vietnam operational service, Mr Nixon denied any traumatic experiences in Vietnam and said that he had not been involved in any combat. On one occasion, he had served as an observer in a spotter aeroplane.
28. Dr Chester obtained a full history of Mr Nixon’s episodes of chest pain in 2002 and 2006, which had originally been thought to be due to coronary artery disease, but were eventually diagnosed as anxiety. Based on the history obtained, Dr Chester felt there was no diagnosable psychiatric disorder.
29. In his evidence before the Tribunal Mr Nixon described his interview with Dr Chester as distressing, particularly as Dr Chester did not accept that the filling in of a DVA form could precipitate severe anxiety and reawaken memories of his service some 37 years previously. Mr Nixon also informed the Tribunal that his anxiety became heightened in January 2007, to a degree where he sought assistance from the Vietnam Veterans’ Counselling Service, and subsequently received counselling from a psychologist.
30. Dr Arthur Velakoulis examined Mr Nixon at the request of Mr Nixon’s RSL advocate. Dr Velakoulis first saw Mr Nixon in August 2007 and, from September of that year, became his treating psychiatrist. In his report of 18 February 2008, Dr Velakoulis identified three severe psychosocial stressors. The first was Mr Nixon’s single episode of serving as a spotter on an aeroplane flight. The second was a rocket attack near Nui Dat as part of the TET offensive during a period of seven days, leading to a period of seven days of artillery fire day and night, while Mr Nixon was on sentry duty. The third was the requirement that he load rockets on planes. Dr Velakoulis diagnosed GAD with some features of post traumatic stress disorder (PTSD) in terms of intrusive daytime recollections, and dreams up to three times a week, the avoidance of war movies, RSL or ANZAC day events and shopping centres, and an increased startle response. He considered Mr Nixon had minimal social contact and there had been marital turbulence periodically. Dr Velakoulis considered that Mr Nixon had been an anxious individual prior to his service but this had become clinically significant in Vietnam, had waxed and waned between 1971 and 2006, and deteriorated after 2006.
31. In his oral evidence, Dr Velakoulis identified his role as being the Clinical Director of the PTSD clinic at the Austin and Repatriation Hospital and his special psychiatric interest in PTSD. Both in examination-in-chief and cross examination he did not change his opinion that Mr Nixon suffered from GAD with clinical onset during his Vietnam war service. Dr Velakoulis identified the reconnaissance air flight in Vietnam and the so called TET offensive episode as being Type 1A stressors, satisfying the requirements of Statement of Principles (SoP) Instrument No. 101 of 2007.
32. Dr Velakoulis had referred Mr Nixon to the PTSD clinic at the Austin Hospital for an inpatient course. Mr Nixon was assessed in April 2008 by a provisionally licensed psychologist who made a diagnosis of PTSD and GAD and felt that his level of anxiety was too high for him to undertake a PTSD five week course.
33. Dr Strauss saw Mr Nixon at the Commission’s request on 11 August 2009. Dr Strauss identified two psychosocial stressors, the spotter flight previously reported and the so called TET offensive when the Nui Dat base was said to have been attacked. Mr Nixon denied any direct combat during his eight months in Vietnam. Mr Nixon had a 35 year employment history with the aircraft factory and rose to a senior post involving considerable overseas travel. He was retrenched in 1997 and this had a very negative effect. According to Dr Strauss, Mr Nixon stated he had a nervous breakdown at that time. His emotional state deteriorated again in 2006 and he became depressed, this apparently being precipitated by the filling out of a DVA pension claim form. While there were some symptoms consistent with the diagnosis of PTSD, Dr Strauss diagnosed mild GAD. He noted Mr Nixon had only claimed flashbacks to his Vietnam days since 2006/2007.
34. Dr Strauss was of the opinion that Mr Nixon experienced a psychosocial stressor during his Vietnam service but did not require any psychiatric treatment until 2006. He stated that Mr Nixon’s psychiatric status had started to decline in 1997. Mr Nixon had been depressed commencing in 2006. Dr Strauss placed the clinical onset of Mr Nixon’s anxiety as commencing in 1999, and his depression in 2005/2006, and gave the opinion that the requirements of the SoP were not met on a time basis.
35. Dr Strauss’s oral evidence was to the same effect. He agreed that the definition of a psychosocial stressor as required in the GAD SoP was met. Dr Strauss differentiated episodes in 1975 when Mr Nixon reported anxiety to his general practitioner following his wife’s parents moving in to live with them, and again in 1985 following his mother’s death when he required counselling. Other reports of anxiety recorded in the general practitioner, Dr Varney’s notes, in 1987 and 1989 were attributed to work stress. Episodes in 2002 and 2006 were precipitated by what was thought to be cardiac ischaemic events but were eventually found to be due to anxiety in view of relatively normal coronary angiography. Dr Strauss regarded the spotter aircraft flight as meeting the requirements of a Category 1A stressor in the relevant 2007 SoP and a severe psychosocial stressor in the relevant 2000 SoP.
36. The medical records of the Austin Hospital, Veterans’ Psychiatric Clinic outlined Mr Nixon’s treatment in that institution but do not add any new information, with the exception of the recording of a motor vehicle accident suffered by Mr Nixon in 1971. In the accident, he sustained two fractures of the skull, a fractured femur, a fractured calcaneum, with a degloving type injury, requiring hospitalisation for two weeks and skin grafting. The Tribunal was subsequently informed that Mr Nixon has no memory whatsoever of this event, nor have any of his dreams or so called flashbacks related to this event.
37. Dr Varney’s notes record various consultations for stress, anxiety, symptoms suggestive of panic attacks and symptoms originally interpreted as being of cardiac ischaemic origin. The episodes of stress and acute anxiety in the 1970s, 80s and early 90s were related to extrinsic factors as opposed to Vietnam initiated symptomotology.
38. In relation to the first step from Deledio, after considering Mr Nixon’s evidence and the evidence from the psychiatrists about his generalised anxiety disorder and operational service, the Tribunal determines that the material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by Mr Nixon. Therefore, he satisfies the first step.
39. In respect of the second step from Deledio, there is a Statement of Principles (SoP) in force under s 196B(2) of the Act. The current SoP is Instrument Nº 101 of 2007 concerning anxiety disorder. If Mr Nixon does not satisfy Instrument Nº 101 of 2007, the Tribunal is required to consider Instrument N° 1 of 2000 concerning Generalised Anxiety Disorder, which has now been revoked but was in force at the time Mr Nixon made his claim (Repatriation Commission v Gorton (2001) 110 FCR 32).
40. Factor 6 in Instrument Nº 101 of 2007 concerning Anxiety Disorder provides:
(a)for generalised anxiety disorder or anxiety disorder not otherwise specified only:
…
(ii)experiencing a category 1A stressor within the five years before the clinical onset of anxiety disorder; or
(iii)experiencing a category 1B stressor within the five years before the clinical onset of anxiety disorder; or
…
(v)experiencing a category 2 stressor within the one year before the clinical onset of anxiety disorder;
In paragraph 9 of the SoP:
"a category 1A stressor" means one or more of the following severe traumatic events:
(a)experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e)being an eyewitness to or participating in, the clearance of critically injured casualties;
"a category 2 stressor" means one or more of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry:
(a)being socially isolated and unable to maintain friendships or family relationships, due to physical location, language barriers, disability, or medical or psychiatric illness;
(b)experiencing a problem with a long-term relationship including: the break-up of a close personal relationship, the need for marital or relationship counselling, marital separation, or divorce;
(c)having concerns in the work or school environment including: on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful work loads, or experiencing bullying in the workplace or school environment;
(d)experiencing serious legal issues including: being detained or held in custody, on-going involvement with the police concerning violations of the law, or court appearances associated with personal legal problems;
(e)having severe financial hardship including: loss of employment, long periods of unemployment, foreclosure on a property, or bankruptcy;
(f)having a family member or significant other experience a major deterioration in their health; or
(g)being a full-time caregiver to a family member or significant other with a severe physical, mental or developmental disability…
41. Factor 5 of Instrument Nº 1 of 2000 concerning Generalised Anxiety Disorder provides:
(a)for generalised anxiety disorder or anxiety disorder not otherwise specified, only
…
(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder…
In paragraph 8 of the SoP:
“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
42. In relation to the third step from Deledio the Tribunal takes into account that in Repatriation Commission v Hill [2002] FCAFC 192, the Federal Court held that the material must raise or point to the hypothesis, which must fit the relevant SoP. In Repatriation Commission v Bey (1997) 79 FCR 364 at 372‑3, the Federal Court held that a reasonable hypothesis involves more than a mere possibility, and is pointed to by the facts, even though not proved upon the balance of probabilities.
43. Mr Nixon cited a number of incidents suggesting that he satisfied factors 6(a)(ii) in Instrument Nº 101 of 2007, and alternatively factor 5(a)(ii) in Instrument Nº 1 of 2000. The Tribunal has considered all the evidence, including the evidence from Mr Nixon and his wife, and the medical evidence, and considers that the material is consistent with factor 6(a)(ii) of Instrument Nº 101 of 2007 and factor 5(a)(ii) of Instrument Nº 1 of 2000. The material points to the hypothesis linking Mr Nixon’s operational service with the generalised anxiety disorder. Therefore, Mr Nixon satisfies the third step.
44. In relation to the fourth step from Deledio, the Tribunal must decide whether it is satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Nixon’s generalised anxiety disorder was due to his operational service within the meaning of s 9 of the Act. It is at this stage that the Tribunal is called upon to make findings of fact. The claim will succeed unless one or more of the facts necessary to support the hypothesis is disproved or the truth of a fact inconsistent with the hypothesis is proved. There are both objective and subjective elements to consider when assessing claims of stressful circumstances (Stoddart v Repatriation Commission (2003) 197 ALR 283).
45. There is no dispute that, during the period of his operational service, there were potential threats to Mr Nixon’s safety while serving at Nui Dat in Vietnam.
46. In respect of SoP Nº 1 of 2000, the Tribunal takes into account that in White v Repatriation Commission [2004] FCA 633, Spender J said the test for severe psychosocial stressor had both a subjective and an objective element. He explained at [30]:
…the definition of severe psychosocial stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned. Both aspects are relevant and necessary.
47. In Re Stonehouse and Repatriation Commission [2004] AATA 707 the Tribunal stated at [18]:
…Even events that involve violence (eg, being shot at) are psychosocial stressors because the victim is likely to be distressed by the motivation of the aggressor (“What have I done to deserve this? Why me? How could someone do such a thing?”) rather than simply being frightened or fearing for his or her bodily integrity. An event that was merely dangerous or frightening – particularly an event that happened quickly, and which passed – does not amount to a psychosocial stressor without that additional dimension. The term was not intended to include all kinds of stressful and terrifying events – the social element makes it quite distinct from the concept of a severe stressor for the purposes of the SoP regulating post-traumatic stress disorder.
48. Mr Nixon has described a number of events that occurred, and fears he held during his operational service, which included the fear he had when flying in the Cessna; his sentry duty at night; his fear when fitting rockets to the aircraft; and the possible attacks during Vietnamese New Year in 1969.
49. Whilst it may be possible to classify the fears held by Mr Nixon during the Cessna flight as a severe psychosocial stressor or a Category 1A stressor, a major issue is whether the clinical onset of his GAD occurred within the requisite period of experiencing the stressor, namely two years or five years.
50. There is no definition of the term clinical onset in the SoPs or in the Act. In Lees v Repatriation Commission [2002] FCAFC 398, Repatriation Commission v Cornelius [2002] FCA 750 and other cases, the clinical onset of a condition was said to occur when the symptoms of a condition have become sufficiently specific and severe for a medical practitioner to diagnose that particular condition, within the definition of the condition in the relevant SoP; or the condition is actually found on diagnostic testing, regardless of the extent of symptoms.
51. Based on the history obtained from Mr Nixon some forty years after the events, Dr Velakoulis suggested the clinical onset of GAD occurred whilst he was still in Vietnam i.e. within two years of experiencing the stressor. However, Dr Chester, Dr Strauss and Dr Varney did not agree. Dr Strauss placed the clinical onset of Mr Nixon’s anxiety as commencing in 1999. Dr Varney’s notes indicate that Mr Nixon consulted him in relation to feeling anxious when his parents moved in temporarily with him in 1975; when his mother died in 1985; work related stress in 1987 and 1989; and the episodes of 2002 and 2006 which turned out to be anxiety related symptoms rather than cardiac symptoms.
52. The Tribunal is satisfied that Mr Nixon did his best to recall events that occurred more than forty years ago when providing a history to Dr Velakoulis. However, Dr Varney’s notes and the analysis by the other psychiatrists are at odds with those of Dr Velakoulis. The Tribunal is not satisfied that clinical onset occurred within the time period specified in the 2007 and 2000 SoPs.
53. Consequently, the Tribunal is satisfied beyond reasonable doubt that there is no causal connection between Mr Nixon’s generalised anxiety disorder and his operational service during the relevant period. Therefore, the hypothesis cannot be sustained. It follows that the fourth step from Deledio is not satisfied.
Is lumbar spondylosis war-caused?
54. The relevant instrument for a war-caused condition of lumbar spondylosis is Instrument No 37 of 2005. It has been amended subsequently, but neither of those amendments is relevant to this matter. The factors that may be relevant to Mr Nixon are found in paragraph 6(g) and 6(i) of the SoP.
(g) having a trauma to the lumbar spine before the clinical onset of lumbar spondylosis…
…
(i) carrying or lifting loads of at least twenty-five kilograms while bearing weight through the lumbar spine to a cumulative total of at least 120 000 kilograms within any ten year period before the clinical onset of lumbar spondylosis…
55. As indicated earlier, one of Mr Nixon’s main duties while in Vietnam was to service aircraft and helicopters. He provided details of the nature of the maintenance required which depended on how many hours each aircraft had undertaken since the last service.
56. Mr Nixon said that he first experienced back pain in an incident about a month after he arrived in Vietnam. Mr Nixon, with the assistance of three other soldiers, was required to manually move a helicopter about 50 metres. Mr Nixon and another man were pulling with the other two pushing. While trying to jerk the aircraft into moving, Mr Nixon said he noticed a sharp pain in the lower back. He immediately stopped and left the other three to continue with the task. Mr Nixon said he was sore for two to three weeks but did not report the episode. He just put up with it and avoided heavy duties for a while. Mr Nixon said that he had no difficulty pushing aircraft. He said that the pain has remained thereafter but has been intermittent. Mr Nixon said that currently his back pain is only provoked by lifting and, if he avoids such activity, he is pain free. He believes that the incident with the helicopter has led to his current back condition and is a basis for treating it as war-caused.
57. The other basis for the claim that his back condition is war-caused relates to the amount of weight he carried before, during and after operational service. He believes that he carried significant weights when carrying a toolbox necessary to perform his duties as an airframe fitter. Mr Nixon initially estimated the weight of the toolbox as 35 kilograms. In his oral evidence, he said that he thought the weight might be closer to 26 kilograms.
58. Mr Nixon also stated that two men were required to collect 44-gallon drums of oil weighing over 200 kilograms from the stores, tip them over and then roll them approximately 50 metres to the hangar, get them into position and decant the oil into smaller cans each weighing 2 kilograms empty. He estimated that they held about 2.5 gallons of oil and weighed about 13.3 kilograms each when filled.
59. Mr Nixon also stated that during his apprenticeship and in the two years after his military service, he undertook some heavy lifting. In the first year of his apprenticeship, he said that he lifted a toolbox weighing about 25 kilograms to and from his workbench four days a week. During his second year he and three others would carry a plaster cast that weighed about 100 kilograms once a month from one spot to another. He and another also carried a canopy weighing about 50 kilograms about once a month. He provided details of other lifting during his apprenticeship and after his return to the factory when he and others carried certain parts for installations. These, he estimated, were about 25 kilograms per person.
60. Mr Nixon has provided estimates of his toolbox carrying and other aircraft related weights he had to lift in his apprentice days, during his Vietnam service and post service when he worked for the aircraft factory. The total weights on his estimate exceeded those required by the SoP.
61. However, the estimates of weights and procedures at Nui Dat differed from those cited by Mr Nixon, according to two witnesses who were asked to give oral evidence by the Commission.
62. Geoffrey Moller, who was the sergeant in charge of the engine fitters’ section at Nui Dat, and worked in the same main workshop as Mr Nixon in 1968/69, gave evidence, as did Major Barry Skinner, who was an airframe fitter in Nui Dat from March 1969 to February 1970. Their evidence did not support that of Mr Nixon in relation to weights carried in the performance of their maintenance duties. Mr Moller stated tradesmen did not have individual toolboxes, the tools being kept on shadow boards in the workshop. There was a toolbox termed a flyaway kit containing a small range of tools for use on deployments. Major Skinner did not recall toolboxes being used at all except for the flyaway kit which he had used once in 11 months during his deployment in Vietnam. Both witnesses denied that 44-gallon drums of oil were used in their work, and had only seen these in use in regional areas to store fuel (Avgas) for aircraft on deployment. Four gallon drums of oil were used at the base in Nui Dat.
63. The first complaint of back pain is recorded in Dr Varney’s medical records as occurring in 1994 and was the subject of a Workcover claim. It appears no x-rays were done at that time.
64. Mr Nixon was assessed by Mr Garry Grossbard, orthopaedic surgeon, on 11 November 2008 at the request of Mr Nixon’s solicitors. The only incidents Mr Nixon reported to Mr Grossbard were that of pushing helicopters and the further injury in 1994 for which he was covered by Workcover.
65. The history Mr Nixon gave to Mr Grossbard was different to that he provided to the Tribunal in a statement drafted some five months earlier and which Mr Nixon stated was true and correct at the hearing. Mr Grossbard recorded that:
This man told me he first hurt his back in Vietnam in 1968. He said this occurred whilst he was pushing helicopters over undulating ground in the mud. He said at the time he felt a sharp pain in his lower back which he described as feeling like a knife and he thought he had torn a muscle. The pain persisted for several weeks during which time he stopped pushing aircraft. He said he was only able to walk slowly for about two weeks following the incident. He said he did not report the incident to the authorities…:
66. Mr Grossbard recorded that Mr Nixon experienced pain every few hours during the night, particularly when he lay on his side. Digging in the garden aggravated the symptoms, and restricted his standing time to half an hour and his walking distance to three kilometres. On examination by Mr Grossbard there was no spinal tenderness, but flexion and extension of the spine were decreased because of associated increased pain. No abnormalities were found in the lower limbs. Mr Grossbard considered an x-ray taken on 14 September 2006 was suggestive of some loss of the L4-5 disc height with degenerative facet joints at the same level. Dr Simon Morley, the radiologist who reported on the lumbar spine x-ray, stated the intervertebral disc space height is well preserved. There is no focal bone lesion. At L4-5 and L5S1 mild bilateral facet joint osteoarthritic degenerative change is noticed.
67. Mr Grossbard diagnosed lumbar spondylosis and based on the history Mr Nixon had given, postulated that Mr Nixon had probably suffered an injury to a disc annulus during the incident in 1968. In giving his opinion, Mr Grossbard highlighted that the injury had never been reported and that he therefore relied entirely on Mr Nixon’s history. He also points out that Mr Nixon’s anxiety issues are probably his major concern and there may well be some potentiation of his back issues in relation to this. Mr Grossbard also notes the absence of back complaint during the final medical examination in 1969.
68. In relation to the first step from Deledio, after considering Mr Nixon’s evidence and the medical evidence about lumbar spondylosis, the Tribunal determines that the material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by Mr Nixon. Therefore, he satisfies the first step.
69. In respect of the second step from Deledio, there is an SoP in force under s 196B(2) of the Act. The current SoP is Instrument Nº 37 of 2005 concerning lumbar spondylosis. Mr Nixon therefore satisfies the second step.
70. In relation to the third step from Deledio, Mr Nixon cited an incident that suggested he met factor 6(g), and that the weights he lifted met factor 6(i) of the relevant SoP. The evidence given points to the hypothesis linking Mr Nixon’s operational service with lumbar spondylosis. Therefore, Mr Nixon satisfies the third step.
71. In relation to the fourth step from Deledio, the Tribunal must decide whether it is satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Nixon’s lumbar spondylosis was due to his operational service within the meaning of s 9 of the Act
72. In relation to the incident where Mr Nixon was pulling the helicopter, he gave evidence to the Tribunal that this was when he first felt back pain. He said he felt a sharp pain and stopped the activity. He did not report the injury while in Vietnam. He continued to work throughout the next three weeks saying he put himself on lighter duties. He did not report any injury to his back when he undertook a medical examination on his return to Australia. However, the description he gave to Mr Grossbard was of much more severe pain lasting a lot longer. Mr Nixon did not complain of any injury to his back until the workplace incident in 1994, for which Workcover accepted liability. The Tribunal is satisfied beyond reasonable doubt that Mr Nixon’s recollection of his injury is not necessarily accurate, given the length of time since the injury, his failure to report the injury or seek treatment, the lack of any notations on his service medical records, and the differing accounts he has given of the injury.
73. Mr Nixon and the Commission provided calculations and submissions as to whether the weights carried by Mr Nixon met the requirements of factor 6(i).
74. Mr Nixon undertook his own calculations. He provided a document during the course of the hearing showing the basis for his figures. The 10 year period used was from his commencement as an apprentice in 1962 until February 1971 when he was still doing manual work at the Government Aircraft factory. However, his calculations entailed lifting toolboxes that weighed more than 25 kg, as well as the existence and lifting of 44 gallon drums.
75. In a submission dated 30 March 2010, the Commission stated that the evidence before the Tribunal does not point to Mr Nixon using a toolbox that weighed at least 25 kg. It was pointed out that Mr Nixon himself, agreed that his initial suggestion of 35 kg was too high, then guessed it was 26 kg, and then reverted to 29 kg. Mr Moller and Major Skinner pointed out that most jobs were small ones requiring only a few tools that were mostly taken to the aircraft in a small carry box, by hand or in a bucket. The evidence as a whole was said not to point to Mr Nixon carrying enough tools in the toolbox to have the weight of at least 25 kg. The Tribunal is satisfied beyond reasonable doubt that Mr Nixon’s recollections and estimates, some 40 years after the event, are not reliable.
76. The Commission submitted that rolling an oil drum into place does not constitute carrying or lifting as required in factor 6(g). In any case, the evidence of Mr Moller and Major Skinner was that the oil was stored in 4 gallon drums and that 44 gallon drums were not used for oil storage. The Tribunal accepts the Commission’s witnesses’ evidence on that point. Other matters raised include the weights of rockets being loaded which Mr Nixon said weighed 20 kg which is under the 25 kg limit mentioned in factor 6(i).
77. The Commission provided a comprehensive analysis of all aspects of weights lifted by Mr Nixon before, during, and after operational service. The Commission submitted that the material before the Tribunal does not point to Mr Nixon lifting the requisite 120,000 kg during a period of 10 years prior to the onset of lumbar spondylosis.
78. In relation to the weights carried, the Tribunal is not persuaded that Mr Nixon’s memory of the weights carried, their nature, and their frequency is reliable. The Tribunal prefers the evidence of Mr Moller and Major Skinner and the calculations undertaken by the Commission.
79. Consequently, the Tribunal is satisfied beyond reasonable doubt that there is no causal connection between Mr Nixon’s lumbar spondylosis and his operational service. Therefore, the hypothesis cannot be sustained. It follows that the fourth step from Deledio is not satisfied.
DECISION
80. The Tribunal affirms the decisions under review.
I certify that the eighty preceding paragraphs are a true copy of the reasons for the decision of:
Ms Regina Perton and Miss E A Shanahan, Members
…………………………………….
Kate Conners Associate
Dates of hearing: 15 – 17 March 2010, 4 August 2010
Date of Decision: 13 December 2010
Counsel for applicant: Mr G Chancellor
Solicitor for applicant: Williams Winter
Counsel for respondent: Ms K Miller, Mr D BrownSolicitor for respondent: Australian Government Solicitor
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