North and Repatriation Commission

[2010] AATA 131

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 131

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. 2009/0714

VETERANS’ APPEALS DIVISION		)
Re		GEORGE NORTH

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date19 February 2010   

PlaceArmidale

Decision The decision in relation to chronic obstructive airways disease is affirmed.
The decision in relation to depressive disorder is set aside and remitted to the Repatriation Commission for assessment, with effect from 16 December 2005.

....................[sgd]..................

Ms N Isenberg

Senior Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – defence service – whether depressive disorder was defence-caused – consideration of Statement of Principles – category 2 stressor – “chronic pain” – the decision under review is set aside.

Veterans’ Entitlements Act 1986 (Cth) ss 70, 120(4), 120B, s 196B(3)

Statement of Principles – Instrument No 28/2008 concerning depressive disorder

Gorton v Repatriation Commission [2001] FCA 286

Lees v Repatriation Commission (2002) 125 FCR 331

Re Robertson and Repatriation Commission (1998) 50 ALD 668

Repatriation Commission v Smith (1987) 15 FCR 327

REASONS FOR DECISION

February 2010 Ms N Isenberg, Senior Member

1.      The decision under review is the determination dated 27 September 2006 made by the Repatriation Commission and affirmed by the Veterans’ Review Board (‘the VRB’) on 8 August 2008, that refused the claim by Mr George Ernest North in respect of depressive disorder on the ground that it is not related to service.  In that decision his claim in relation to chronic obstructive airways disease was also affirmed but that was not pursued before the Tribunal.  The decision in relation to chronic obstructive airways disease is formally affirmed.

2.      A hearing was held on 13 January 2010 at Armidale at which Mr North gave evidence and Dr Patrick Morris, a consultant psychiatrist who had examined Mr North on behalf of the Respondent, also gave evidence. 

3.      At the conclusion of Dr Morris’s evidence the Respondent conceded that Mr North suffers depressive disorder and that it was defence-caused.  I identified the date of effect as 16 December 2005 and remitted the matter to the Respondent for assessment of Mr North’s pension.

4. Because Mr North has heard nothing from the Respondent since that time he asks for formal reasons: s43(2A), Administrative Appeals Tribunal Act 1975 which I now provide.  

ISSUE BEFORE THE TRIBUNAL

5. The issue to be considered by the Tribunal was whether Mr North’s depressive disorder was “defence-caused” under ss 70(5) of the Veterans’ Entitlement Act 1986 (‘the Act’).

BACKGROUND

6. Mr North served as a member of the Royal Australian Air Force (‘the RAAF’) between 24 January 1978 and 23 January 1984. That service is defined under the Act as eligible defence service for the purpose of ss 70(5).

LEGISLATIVE BACKGROUND

7. Ss 70(1) of the Veterans’ Entitlement Act 1986 provides that, inter alia, where a member is incapacitated from a defence-caused injury, the Commonwealth is liable to pay pension by way of compensation to the member in accordance with that Act. By ss 70(5)(a), an injury suffered by a member shall be taken to be defence-caused if the injury arose out of, or was attributable to, the member’s defence service.

8. Pursuant to ss 120(4) of the Act, I am required to determine this matter to my reasonable satisfaction – that is, on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327.

9. The Repatriation Medical Authority (RMA) issues Statements of Principles (SoPs) based on sound medical-scientific evidence setting out factors relating to service, at least one of which must exist in order to establish a causal connection between the condition and service: ss 196B(3). In applying ss 120(4), I am required to decide matters to my reasonable satisfaction only if there is a connection between the injury and particular service rendered by the member and if that connection is upheld, on the balance of probabilities, by a SoP issued by the RMA: s 120B(3).

APPLICANT’S EVIDENCE

10.     In his claim form Mr North claimed he suffered post-traumatic stress disorder and that his symptoms were of severe depression, flashbacks and nightmares.  In support of his claim he provided a statement upon which he elaborated in his evidence.

11.     In his evidence he said that from the outset of his service things went badly for him, and he immediately regretted having left his family and his successful career as a plumber for life in the RAAF.  He said that during recruit training he endured ‘almost constant’ sleep deprivation because of the skylarking of other recruits who were generally much younger than him.  He suffered hallucinations, unnatural fears and phobias.  He had nightmares and was afraid of being sent to war.

12.     In April 1978, only several weeks after he joined the RAAF, he suffered an injury to his ankle.  He was accused of malingering.  He was ultimately admitted to hospital and was prescribed strong painkillers.  When discharged, he was obliged to continue his recruit training while using first a crutch and then a walking stick.  The pain continued and his sleep was affected.  Consequently, his performance was also affected.  It was some months later that his ankle condition was properly investigated, found to be broken, and was set in plaster.  He had then to undertake his trade training with his foot in a cast for several months, and had difficulties with the physical aspect of the course.

13.     After inoculations his health deteriorated and he had continuous coughs and colds.  He began to suffer from depression and suicidal thoughts.

14.     He sought medical help for depression.  According to his records this dated from 1978.  He self-medicated with alcohol.   He was unhappy with his work and he sought remustering - supported by the treating psychiatrist - without success.

15.     He also experienced severe dental problems which were initially dismissed as colds and sinus problems.  He injured his back in 1983 and he required hospitalisation.

16.     In summary, he said that he got off to such a bad start that he never recovered.

17.     After leaving the RAAF in 1984 Mr North has had three ‘nervous breakdowns’ – in about 1985-6, in 1992-3 and in about 2002-3.  He has been a public nuisance and has been warned by the police.  He has attempted suicide.  In 1989 he was admitted to hospital for depression.  He said that at some stage, he developed psychological problems, food allergies, and became a “religious nutcase”.  He was referred to a psychiatrist but he found the psychiatrist unsupportive.  He continues to have serious sleep issues.  He has self-medicated with ‘pills’ and alcohol.  He takes Zoloft prescribed by his GP and sees a psychologist, and manages his ongoing back pain through meditation.

MEDICAL EVIDENCE

18.     In September 1978 Mr North attended the RAAF medical centre complaining of tiredness, irritability and poor sleep.  The doctor observed that he seemed depressed.  In January 1981 he asked for sleeping tablets (Mogadon).  In June 1981 he complained of difficulty sleeping and also of reduced concentration, headaches and tiredness.  In July 1981 he was referred to a psychiatrist because he was “quite unhappy about his work and [felt] depressed, [had] marital difficulties and … trouble sleeping, [and] gets quite anxious”.  The psychiatrist recorded that Mr North had no job satisfaction and that he had become more depressed in the last month or so - being cranky and irritable at home and having lost interest in usual pursuits.  In August 1981 he was again recorded as being unhappy in the workplace and complained of inability to sleep.  He was recorded as having varying moods, low self-esteem and depression.  He was referred for counselling and relaxation classes.  When reviewed in August 1982, he was again found to be dissatisfied and unhappy with his work and he wanted to remuster. 

19.     Dr Kevin Helme, consultant psychiatrist, provided a report dated 2 June 2006 in which he related Mr North’s depressive disorder to his service. Dr Helme also made a note of the injuries Mr North sustained while in the RAAF, as a result of which he was unable to work.

20.     Dr John Westerink, consultant psychiatrist, provided two reports dated 6 and 13 November 2006.  Dr Westerink related Mr North’s depression directly to his back disability.

21.     Dr Kathleen Smith, consultant psychiatrist, provided a report dated 13 March 2007 in which she related Mr North’s depressive symptoms to his service.  She referred to his sleep deprivation, and his ankle, neck and back injuries, as well as to the fact that his ankle injury was undiagnosed for some time.  She considered that Mr North he had suffered a category 2 stressor in that he perceived a lack of social support within the work or school environment, or perceived lack of control over tasks performed and stressful work loads, or experienced bullying in the workplace or school environment. She further considered that the clinical onset of his condition was within six months of that stressor.  She found that his physical and mental health were poor by the end of his trade training.   She observed:

“It is my opinion that his experience during basic and trade training would be described as a severe psychosocial stressor.  The fracture, its associated pain and disability is a significant psychosocial stressor.  The failure of the RAAF service to provide appropriate medical care of the injury with timely diagnosis and treatment compounded the sense of distress experienced from the fracture.  His fear of exposure to possibly harmful agents is another work-related psychosocial stressor.  His working conditions, especially the ongoing pressure regarding his performance, particularly evoked feelings of substantial distress in him over a prolonged period of time.  Mr North perceived that he did not have control over the tasks he was required to perform and his stressful workload.  Further there was no support provided to him to manage these stressors but rather a work environment where his superiors actively pressured him about his performance.”

22.     Dr Patrick Morris, consultant psychiatrist, provided a report dated 4 August 2009. He reported that he did not think that Mr North currently suffered a depressive disorder.  In his evidence Dr Morris explained that he considered Mr North’s depressive disorder to be in remission.  He explained that he had used that term because Mr North’s symptoms were being controlled by medication.

23.     As to what had precipitated Mr North’s condition, he referred to ‘dreadful pain’ that Mr North may have been suffering.  He accepted that if Mr North had given evidence of back pain over the years, and that he had taken a lot of painkillers and had drunk because of the back pain, then he could be reasonably satisfied that that had precipitated Mr North’s depressive disorder.

CONSIDERATION

Does Mr North suffer depressive disorder?

24.     I accept on the balance of probabilities that Mr North is suffering from a depressive disorder.  That his condition is controlled by medication does not amount to a remission of the condition. 

Relevant factors

25.     The RMA has issued SoPs in relation to depressive disorder.  The current SoP is No. 28 of 2008.  I must apply the SoP that is currently in force, unless the SoP that was in force when the claim was first determined is more beneficial to the veteran: Gorton v Repatriation Commission [2001] FCA 286. I found that it was not necessary to consider the earlier SoP, No. 18 of 2007.

26.     Clause 5 of the current SoP provides that at least one of the factors set out in clause 6 must be related to Mr North’s service.  The relevant factors are as follows:

6(a)for depressive episode, recurrent major depressive disorder, dysthymic disorder and depressive disorder not otherwise specified only,

(i)        ...

(v)experiencing a category 2 stressor within the six months before the clinical onset of depressive disorder; or

...

(viii)having chronic pain of at least six months duration at the time of the clinical onset of depressive disorder; or

...

“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;

"chronic pain" means continuous or almost continuous pain, which may or may not be ameliorated by analgesic medication and which is of a level to cause interference with usual work or leisure activities or activities of daily living;”

27.     The first issue to be determined in respect of the relevant factors is when the clinical onset of depressive disorder occurred. 

28.     The earliest available medical evidence is that Mr North was showing symptoms of depression from 1978.  He was under formal psychiatric care from 1981.  I accept that Mr North’s depression was present from at least that time, and more likely, even by 1978: Lees v Repatriation Commission (2002) 125 FCR 331, Re Robertson and Repatriation Commission (1998) 50 ALD 668.

29.     I accept that by 1978 when Mr North first complained to a doctor, he was having concerns in the work environment, in accordance with the definition of a category 2 stressor: factor 6(a)(v).  Those concerns are likely to have been precipitated by the pain experienced by his misdiagnosed ankle condition, which in itself, in my view, on the balance of probabilities, satisfies factor 6(a)(viii).

DECISION

30.     For the above reasons, I set aside the decision under review, and:

(a)in place of that decision, determine that Mr North’s depressive disorder is defence-caused; and

(b)remit the matter to the Repatriation Commission for reassessment of the Applicant’s entitlements to pension in accordance with these reasons for decision, and on the basis that his entitlement to pension in respect of the condition of depressive disorder and will commence from 16 December 2005.

The decision in relation to chronic obstructive airways disease is affirmed.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.

Signed: .....................................................................................
  Associate

Date/s of Hearing  13 January 2010   
Date of Decision  19 February 2010
Solicitor for the Applicant           Self-represented
Counsel for the Respondent       Ms J Warmoll
Solicitor for the Respondent       Mr N Bunn, Department of Veterans’ Affairs