Noonan and Repatriation Commission - [2004] AATA 344

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 344

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/217

VETERANS' APPEALS DIVISION

Re: RICHARD NOONAN

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal: Mr E. Fice, Member

Date: 2 April 2004

Place: Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) E. Fice
Member

VETERANS' AFFAIRS — veterans’ entitlements - generalised anxiety disorder - events constituting a severe psychosocial stressor - whether condition war‑caused within meaning of s 9 of Veterans' Entitlements Act 1986 - whether causal event occurred

Veterans' Entitlements Act 1986 ss 9, 120, 120B

REASONS FOR DECISION

2 April 2004 Mr E. Fice, Member

On 9 December 2002, the Veterans’ Review Board (the VRB) affirmed the decision of a delegate of the Repatriation Commission (the Commission) made on 3 May 2002. The Commission had rejected Mr Noonan's claim for the costs of medical treatment and a pension in respect of incapacity resulting from generalised anxiety disorder. The VRB found that Mr Noonan's generalised anxiety disorder was not war‑caused. Mr Noonan appeals that decision to the Tribunal.
Mr G. Chancellor, of counsel, instructed by Williams Winter, solicitors, appeared for Mr Noonan and Ms R. Casamento, an advocate with the Department of Veterans' Affairs, appeared for the Commission.

BACKGROUND

Mr Noonan enlisted in the Australian Army ('the army') on 6 October 1941. His Service and Casualty Form indicates that his medical classification upon enlistment was B2. It is not clear why he was given this medical rating upon enlistment. On 3 February 1942 he was transferred to the Australian Intelligence Corps in Melbourne. On 1 April 1942 he was transferred to Base HQ S/Command Melbourne. On 10 August 1942 he was transferred to 4 Army Corps Training Regiment (ACTR) at Bendigo, Victoria. In December 1942 he was serving with 3 ACTR, also in Bendigo. On 15 April 1943 he was transferred to 1 ACTR at Puckapunyal in Victoria. On 22 May 1943, he was transferred to the Australian Army Corps Regiment Signals Unit at Puckapunyal. On 25 January 1945, he was transferred to LHQ School of Signals at Bonegilla.
On 12 February 1946, Mr Noonan's medical category was reclassified from B2 to A1. On 1 March 1946, he was transferred to HQ British Commonwealth Occupational Forces (Balcombe) (BCOF). On 29 July 1946, Mr Noonan was discharged from the army at Melbourne.
Although there is some dispute about this, Mr Noonan claims that, in about 1943, he was involved in a serious accident when a three‑tonne truck left the road and rolled over ('the truck accident'). According to Mr Noonan, the truck accident happened on the road from Benalla to Wangaratta where the road crossed the railway line. Mr Noonan's evidence was that he was knocked unconscious as a result of the truck accident and was hospitalised at Bonegilla for about two weeks.
On 20 August 1946, Mr Noonan submitted an application for acceptance of a disability to the Commission for what he described as "nerves complaint". No disability was found and Mr Noonan's claim was rejected.
Mr Noonan submitted a second application on 29 November 1950, which was treated as a reapplication. In his application for acceptance of disability, his complaint is described as "Has been nervy since accident in army - but can carry on work alright…".

PARTIES' CONTENTIONS

Mr Noonan claims that the truck accident caused his anxiety and depression. He said he did not suffer from those symptoms prior to the truck accident.
Although at the outset I understood the Commission's argument to be that the truck accident did not occur, in her submissions, Ms Casamento accepted the fact that a truck accident had occurred. However, the Commission did not accept that the truck accident was as severe as claimed by Mr Noonan, or that it resulted in his generalised anxiety disorder.
There are a number of problems with Mr Noonan's recollection of the truck accident. In his evidence to the VRB, Mr Noonan initially said the truck accident happened in 1943. When asked how he could remember that, he said that the unit he was then stationed with was "gearing up to engage Rommel in Alamein" [sic]. In his evidence to the Tribunal, he said he remembered the weather was good at the time and he thought it to be about summertime, either very early in 1943 or late in 1943. Mr Noonan's recollection was that he was with a unit at Bonegilla at the time and he recalls being stationed at Puckapunyal immediately prior to that. In his evidence to the VRB, Mr Noonan also referred to being transferred back to Puckapunyal after going overseas. This cannot be correct as Mr Noonan's army record discloses that he never went overseas. Nevertheless, Mr Noonan seems to have a clear recollection of being treated in a military hospital at Bonegilla as a consequence of the truck accident.
Mr Noonan also appeared to have a clear recollection of what happened on the day of the truck accident. He said that he had been in charge of a motor vehicle, a three‑tonne truck, and that a number of vehicles had been out on exercise. He said that the convoy was returning to Bonegilla when it stopped at Benalla. Apparently, a number of personnel consumed alcohol at the Benalla hotel before the convoy continued to Bonegilla. Before departing Benalla, Mr Noonan was told by a captain to give the keys of his truck to a lieutenant, who would drive the truck. Mr Noonan was told to sit in the back of the truck. He did so, and the truck, with the lieutenant and the captain sitting in the cabin departed along the road between Benalla and Wangaratta. According to Mr Noonan, the road crossed the railway line on a number of occasions in a series of S‑bends, and it was at one of these that the driver failed to negotiate the bend, causing the truck to roll over. Mr Noonan recalls nothing further until he regained consciousness in the Bonegilla Hospital, somewhere between 9 and 14 days after the accident.
Mr R. Piper, a military history expert, conducted extensive research into wartime accidents. This included examining the Australian War Memorial Archives, the National Archives of Australia, Army Accidents involving vehicles (World War 2 and later) Reports, and LHQ Army School of Signals and HQ AMF School of Signals diary and paperwork. Despite this extensive research, he was unable to discover any record of the accident described by Mr Noonan. However, Mr Piper admitted that the records are not complete and it is possible that such an accident had occurred, and he had not been able to locate a record of it.
Mr Noonan referred to the battle at El Alamein as triggering his memory as to the time when the truck accident occurred. Mr Piper pointed out that the battle for El Alamein occurred in October 1942. At this time, according to Mr Noonan's service record, he was serving in Bendigo with Nº 4 ACTR. Therefore, according to the Commission, it is most likely that the time of the accident, as described by Mr Noonan, is in error.
Mr Piper located one record of a vehicle accident in which Benalla was mentioned. This was located in the LHQ School of Signals' diary page for 29 June 1945. LHQ School of Signals was based at Bonegilla at the relevant time and Mr Noonan served with that unit between January 1945 and March 1946. Unfortunately, details of the driver, vehicle type and circumstances are not recorded in the diary.
Mr Piper also located records of two accidents that occurred in 1946. Both of these accidents are recorded in the HQ AMF School of Signals' diary. Mr Noonan served with HQ AMF School of Signals at Balcombe in Melbourne from March 1946 to June 1946. Unfortunately, again, the diary details are incomplete and do not assist in determining whether Mr Noonan was involved in either of these accidents.
Mr Noonan's service record and in particular his Service and Casualty Form, which contains extensive records of his service and hospitalisation, only records two instances of Mr Noonan being hospitalised. On 2 March 1943 he was admitted to hospital in Bendigo suffering from an upper respiratory tract infection. He was discharged back to his unit on 7 March 1943. On 13 April 1945, Mr Noonan was admitted to 106 Army General Hospital at Bonegilla where he was diagnosed with neurasthenia. He remained there for 19 days. It is the Commission's contention that, if Mr Noonan was involved in a serious truck accident which resulted in him being unconscious for at least nine days, it would be disclosed in his medical history. Although there may be a gap in the medical records, Mr Piper's opinion was that they were complete. Given that there are records of Mr Noonan's admission to hospital for less severe medical problems, it is unlikely that a serious admission would not have been recorded in his service documents

CONSIDERATIONS

Mr Noonan served with the army from 6 October 1941 to 29 July 1946. The parties accept that Mr Noonan did not render operational war service as defined under s 6A of the Veterans' Entitlements Act 1986 (the Act). It is also not disputed that Mr Noonan is a person to whom s 7(1)(c) of the Act applies and he has therefore rendered eligible war service.
Sub‑section 13(1)(b) of the Act provides that:
13(1) Where:
(a)…
(b)a veteran has become incapacitated from a war-caused injury or a war‑caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)…
(d)in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
Section 9 of the Act, in so far as it is relevant, provides:
9(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)…
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
Section 120(4) of the Act provides that:
120(4) …the Commission shall, in making any determination or decision in respect of a matter arising under this Act…decide the matter to its reasonable satisfaction.

In addition, because Mr Noonan's claim arose on or after 1 June 1994, s 120B applies to his claim. Therefore, in applying s 120(4) of the Act, the Commission can only be reasonably satisfied that Mr Noonan's disease was war‑caused if:

(a)the material before the Commission raises a connection between his disease and some particular service rendered by him; and
(b)there is in force a Statement of Principles (the SoP) determined under s 196B(3) or s (12),

that upholds the contention that Mr Noonan's disease, on the balance of probabilities, is connected with his eligible war service.

The parties accept that Mr Noonan suffers from a generalised anxiety disorder. The psychiatrists, Dr M. Epstein and Dr L. Walton, provided reports to the Tribunal, and agreed about his current condition.
Mr Noonan claims that his generalised anxiety disorder was brought on as a consequence of a motor vehicle accident in or around 1943. There is some doubt in my mind as to whether this accident occurred at all. Although I accept that the military records, produced in evidence by Mr Piper, are not complete, the fact that Mr Noonan says that he was taken to hospital in Bonegilla when, at the time of the accident, the truck was on the road between Benalla and Wangaratta is puzzling. If Mr Noonan had been seriously injured in such an accident, one might have expected him to have been transported to the nearest medical facility, not to Bonegilla, which is some 80 kilometres from Benalla. At about that time, according to Mr Piper, there was a large and extensive army hospital, 107th Convalescent Depot, located at Ballarat. There is no record of Mr Noonan having been hospitalised there.
Mr Noonan is certain that the accident occurred during the period that he was stationed at Bonegilla. According to his service records, Mr Noonan, at the time of the accident, must have been serving with LHQ School of Signals. Mr Piper's research uncovered a diary page for 29 June 1945 for the LHQ School of Signals. The record (Exhibit R4) states:

Place.

Date.

Hour.

Summary of Events and Information.

BONEGILLA VIC

Fri 29

Jun 45

0800 hrs

One of the vehs used during the Adv Lines Course fd exercise at BENALLA was involved in an accident during the return trip on Fri. Lt Krone, Adm Offr, was appointed Investigating Offr.

…

Unfortunately, the name of the driver or any other persons involved, the vehicle type and the circumstances of the accident were not included. The report also seems to conclude with the words, "The weather was cold and dull and more rain appeared to be coming." This does not seem to accord with Mr Noonan's evidence that the weather was fine and that the accident occurred during summer. Mr Noonan, in his evidence to the Tribunal, stated that the officers involved in the accident visited him in hospital and asked him not to give an account or record of the accident. Mr Noonan believed that they were attempting to cover up the accident for the reason that the officer driving at the time of the accident had been drinking.

There is documentary evidence that Mr Noonan, relatively shortly after discharge from the army, referred to being involved in an accident during his service. In November 1950, Mr Noonan made an application to the Repatriation Commission for a disability pension. On that application form, it is stated:
…
Patient complains of - has been a nervy since accident in the Army - but can carry on work alright.
Although I am not certain that the accident, as recounted by Mr Noonan, did in fact occur, his evidence that there was an accident is supported by his application made in 1950. Accordingly, on balance, I accept that Mr Noonan was involved in an accident in the course of rendering eligible war service as defined by the Act.
The precise date on which the accident occurred is anything but clear. Mr Noonan, quite understandably, seemed quite confused about even the approximate date of the accident. At first, he was quite certain that it happened around about or just prior to the famous battle at El Alamein. However, as Mr Piper's evidence discloses, that battle occurred in October 1942. At that time, Mr Noonan was serving with 4 ACTR, stationed at Bendigo. Mr Noonan was transferred to 3 ACTR, also in Bendigo, in December 1942 and to 1 ACTR at Puckapunyal in April 1943. As I have previously noted, he was not transferred to Bonegilla until January 1945. Furthermore, his Service and Casualty Form discloses only two admissions to hospital during his period of service. On 2 March 1943, Mr Noonan was evacuated to 19 Central Hospital in Bendigo suffering from an upper respiratory tract infection. He was hospitalised for five days and returned to his unit on 7 March 1943. On 13 April 1945, he was evacuated to 106 Army General Hospital at Bonegilla, where he was diagnosed as suffering from neurasthenia. He remained in hospital for 19 days before rejoining his unit on 2 May 1945. Mr Noonan's medical records confirm that those were the only two occasions on which he was hospitalised in the course of his service.
There is no evidence that Mr Noonan's medical records may be incomplete. There appears to be no explanation for the absence of a medical record disclosing Mr Noonan's admission to hospital following a motor vehicle accident during the course of his army service. Given that Mr Noonan maintains that he spent some 9 days in a coma, it is unlikely that there are no medical records of that admission. Because of the absence of medical records, I am inclined to accept Ms Casamento's submission that, on balance, the accident suffered by Mr Noonan was of a minor nature. Although there remains the slight possibility that there is a gap in Mr Noonan's medical records, Mr Piper does not believe that to be the case. As Ms Casamento submitted, Mr Noonan was admitted to hospital and records were maintained for reasons far less severe than those he described as a consequence of the accident. I agree that, on balance, it is unlikely that no record would have been made by the hospital of Mr Noonan's condition following his accident.
Accordingly, although I find that Mr Noonan did suffer an accident in the course of rendering eligible war service, that accident only resulted in Mr Noonan suffering from minor injuries.
The relevant SoP concerning anxiety disorder is Instrument Nº 2 of 2000. In accordance with the SoP, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the claimant. Mr Noonan relied on the factors as set out in clause 5(a)(i) and 5(a)(iii), which provide:
…
(a)for generalised anxiety disorder or anxiety disorder not otherwise specified, only
(i)experiencing a severe psychosocial stressor within one year immediately before the clinical onset of anxiety disorder; or
(ii)…
(iii)having a major illness or injury within one year immediately before the clinical onset of anxiety disorder; or
…
Severe psychosocial stressor is defined as
…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;

Major illness or injury is defined by the SoP as a disease or injury that is life‑threatening or seriously disabling.

The problem for Mr Noonan is that the evidence does not disclose that he suffered a severe psychosocial stressor or a major illness or injury during his period of eligible war service. Without such evidence, it is my opinion that Mr Noonan fails to satisfy factors 5(a)(i) and 5(a)(iii).
Dr Walton's evidence raised the possibility that Mr Noonan suffered from the symptoms of anxiety disorder prior to the truck accident. Dr Walton referred to the Specialist Report of 3 April 1945, where the clinical notes state, "The lad gives a

history of being well until 1 your [year] ago…". The symptoms which were commonly diagnosed as neurasthenia are then described.

The problem with this possibility is that there is no evidence of Mr Noonan having a clinically significant psychiatric condition within one year immediately before any clinical worsening of anxiety disorder as is required under SoP 5(a)(vi).

CONCLUSIONS

Mr Noonan's hypothesis is that, in the course of rendering eligible war service, he was involved in a serious motor vehicle accident which either brought about the onset of a generalised anxiety disorder or caused an existing anxiety disorder to become worse. As I have found Mr Noonan was involved in a motor vehicle accident during the course of his eligible war service, and that he now suffers from a generalised anxiety disorder, establishes Mr Noonan's hypothesis.
However, for Mr Noonan to succeed in his claim, the evidence must disclose that there is in force an SoP, which upholds his contention that his disease is, on the balance of probabilities, connected with that service. The evidence points to Mr Noonan not being severely injured as a result of the truck accident. Accordingly, factors 5(a)(i) and 5(a)(iii) of the relevant SoP do not exist. As Mr Noonan is also unable to satisfy factor 5(a)(vi) of the SoP, his claim must fail.
For the reasons set out above, the Tribunal affirms the decision under review.

I certify that the thirty‑six [36] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr E. Fice, Member

(sgd) Catherine Thomas
Clerk

Date of Hearing:                 2 February 2004
Date of Decision:               2 April 2004
Counsel for the applicant:    Mr G. Chancellor
Solicitor for the applicant:     Williams Winter
Solicitor for respondent:      Ms R. Casamento, Advocacy Section,
  Department of Veterans’ Affairs

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Noonan and Repatriation Commission [2004] AATA 344

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