O'Halloran and Repatriation Commission
[2003] AATA 188
•26 February 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 188
ADMINISTRATIVE APPEALS TRIBUNAL Nº N2001/1064
VETERANS’ AFFAIRS DIVISION
Re: Christopher Michael O’HALLORAN
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: P.J. Lindsay, Senior Member, Dr M.E.C.Thorpe, Member
Date: 26 February 2003
Place: Sydney
Decision:The Tribunal affirms the decision under review.
(sgd) P. J. Lindsay
Senior Member
© Commonwealth of Australia (2003)
CATCHWORDS
VETERANS’ AFFAIRS – diagnosis of psychiatric disorder – anxiety disorder - whether anxiety disorder defence-caused – decision affirmed
Veterans’ Entitlement Act 1986, ss. 68, 120, 120B
Repatriation Medical Authority Statements of Principles: Instrument No. 2 of 2000 concerning Anxiety Disorder
Benjamin v Repatriation Commission (2001) 34 AAR 270
Repatriation Commission v Budworth (2001) 66 ALD 285
Repatriation Commission v Smith (1987) 15 FCR 327
Brew v Repatriation Commission (1999) 94 FCR 80
Lees v Repatriation Commission [2002] FCAFC 398
REASONS FOR DECISION
Mr P.J. Lindsay, Senior Member
Dr M.E.C.Thorpe, Member
1. This is an application under the Veterans’ Entitlements Act 1986 (the Act) for review of a decision by the Repatriation Commission (the Commission) dated 21 June 2000 which refused the claim by Mr Christopher Michael O’Halloran, the applicant, that his panic disorder with agorophobia and hypertension were defence-caused. On 26 June 2001 the Veterans’ Review Board (the Board) varied the diagnosis to include adjustment disorder but otherwise affirmed the Commission’s decision.
2. At the hearing Mr O’Halloran was represented Mr B. Winship, solicitor, and the Commission by Mr S. Modder, of the advocacy section of the Department of Veterans’ Affairs (the Department). Mr O’Halloran and his wife Mrs Betty O’Halloran were the only witnesses to give evidence at the hearing.
3. The Tribunal had before it the documents lodged under s.37 of the Administrative Appeals Tribunal Act 1975 and the exhibits tendered at the hearing.
background
4. It is not disputed that Mr O’Halloran, who is fifty years of age, served a period of “defence service” (s.68 of the Act) in the Australian Army from 7 December 1972 to 3 April 1981. He has been married since 1977 and has two sons.
5. On 8 March 2000, Mr O’Halloran lodged an application with the Commission for disability pension for incapacity from back injury, burns to body and lower limbs, injury to face and jaw and injured neck. The application referred to his past and present treatment for hypertension, anxiety and depression. On 21 June 2000 the Commission refused his claim for what by then had been diagnosed as panic disorder and hypertension, as well as rejecting his claim in respect of lumbar spondylosis, on the grounds that the conditions were not defence-caused. Mr O’Halloran applied to the Board for review of the decision refusing his claim for incapacity from panic disorder with agorophobia but the application was unsuccessful. Mr O’Halloran has applied to the Tribunal for a review of the Commission’s decision.
6. The Department has accepted Mr O’Halloran’s following disabilities: sensori-neural hearing loss with tinnitus; partial thickness burns of the right thigh, left forearm and abdomen which have resolved; loss of his right central incisor; laceration to upper limb and cervical spondylosis.
7. In opening, Mr Winship withdrew a number of contentions in the applicant’s statement of facts and contentions regarding diagnosis of chronic adjustment disorder and panic disorder. Mr Winship stated that the only psychiatric condition relied on is anxiety disorder and said Mr O’Halloran had been afflicted by the condition since 1974.
8. As Mr O’Halloran’s service is not operational service, the Tribunal is required to decide the matters raised in his application to its reasonable satisfaction: s.120(4) of the Act. Since his claim for pension was lodged after 1 June 1994, s.120B of the Act applies. In determining whether Mr O’Halloran’s anxiety disorder was defence-caused, s.120B(3) requires the Tribunal to be satisfied that there is material that raises a connection between the disease and service, and that a Statement of Principles (SoP) issued by the Repatriation Medical Authority upholds the contention that the disease is, on the balance of probabilities, connected with his service.
evidence
9. Mr O’Halloran gave evidence about a number of incidents that occurred while he was in the Army. He thought the first incident happened around mid-1974. At a site near Townsville, he was participating in a training exercise that involved a live firing shoot. His rifle malfunctioned a number of times. He was instructed to continue firing. Later, the rifle stopped again and, in trying to take the magazine off, he said the rifle exploded in his face. Even though he had been wearing some ear protection, his right ear was bleeding and he had ringing in both ears immediately. The ringing continued for a number of weeks. Mr O’Halloran was taken to the RAP at the scene and was given aspirin but he did not report the incident or seek attention for it when he returned to base. He explained that he feared his prospects for promotion would be jeopardised if the Army found out about his hearing loss. Eventually, his hearing loss was detected at a medical examination in 1976 (Supp T30).
10. The second incident also occurred while Mr O’Halloran was posted to Townsville. His company in 2/4RAR was going out on a day’s exercise to the firing range. He was involved in arranging rations. With a colleague, he was carrying a five gallon urn full of boiling water for loading onto a truck. Mr O’Halloran slipped, and due to a faulty cap on the urn, all of its contents spilled onto him, scalding his trunk and legs down to the top of his feet. He suffered extensive burns and was in excruciating pain. Colleagues ripped off his clothes and in doing so, tore away layers of skin. He was then taken to the RAP, given an injection and put in a bath of ice. He was later packed in ice for a number of hours. An ointment was applied to his burns and they were covered. Although he was not admitted to hospital, Mr O’Halloran said that he was attended in his room every four hours when he would be given medication and his bed sheets would be changed. He said at first he attended the RAP daily, then weekly for a check-up. His treatment continued for about three weeks after the accident. He was then put on light duties, which he thought continued for about ten to twelve weeks. Mr O’Halloran said that, apart from an infection in the groin, his burns healed but his main problem was trouble in sleeping. His restless sleeping was associated with a substantial increase in his alcohol consumption. As a result of bad dreams, and not his burns, he would often wake up with cold sweats. Prior to the scalding incident, Mr O’Halloran said that he had no trouble sleeping whatsoever. Constant interruptions to his sleeping pattern caused him to become irritable and easily upset.
11. When Mr Modder cross-examined him about this incident, he was referred to a medical Attendance and Treatment Record of 1 August 1974 (Supp T13) which stated that Mr O’Halloran was treated at the 2/4 RAP in relation to the following:
Dropped boiling water this a.m. while working in mess. O/E large partial thickness burn to anterior of R thigh and left forearm and below umbilicus. Several blisters. Ice water … Fortral tablets. No duties 24 hours.
The next entry in the record was dated 6 August 1974 for treatment at 2/4 RAP as follows:
Burn healing well. No infections. Now non-painful. Still red colour …
12. Mr O’Halloran disagreed that the record accurately summed up his injuries. When examined on 12 August 1974 at 2/4 RAP, the record (Supp T10) noted that Mr O’Halloran was fit for overseas duties. Mr O’Halloran disputed that the medical examination to assess fitness for service in Malaysia was held within two weeks of the scalding incident. The entry in this medical record referred to the need for his liver to be examined on return from service in Malaysia but made no mention of the burns or sleeplessness. Mr O’Halloran agreed that he was assessed as capable of full duties in Malaysia. Early in September 1974 he departed for a three month period of service in Malaysia. When asked by Mr Modder if he recalled being medically examined before a second period of service in Malaysia from the end of 1976, Mr O’Halloran said he could not remember if the doctor asked about his nerves.
13. The third incident happened in 1975 near Singleton, at a barbecue after a training exercise. Mr O’Halloran said that a mate of his, Mr Glen Morgan, who was a cook attached to the applicant’s unit, was using a kerosene oven. It suddenly exploded. Mr Morgan was blown off his feet and out of the tent where he had been cooking. He was on fire. Mr O’Halloran, who was not injured in the incident, and a colleague, rolled Mr Morgan in dirt and put out the flames. Mr O’Halloran said this incident, in a later flashback, reminded him of his own scalding accident and he said he went on the bottle for about six or seven weeks after it.
14. The fourth incident happened at night. A young soldier, who Mr O’Halloran did not know, was run over by an Army truck. Contrary to instructions, the soldier had been sleeping next to his vehicle. As part of the training exercise, the truck was driven into the camp without its lights on. In the darkness the driver ran over the young soldier’s head. Mr O’Halloran did not witness the accident but he heard the man’s horrific screams and saw his injuries. He said it was another trauma and again he turned to alcohol and gambling. Throughout his Army service, Mr O’Halloran has frequently gambled. At times, such as after his scalding accident, his gambling became excessive.
15. Mr O’Halloran said the third and fourth incidents occurred in 1976.
16. He said that, as a consequence of the scalding incident, he will always clothe himself fully whenever using a barbecue. He avoids the sun and said he does not like being burnt, whether sunburn or other.
17. He said that in around 1977 he was medically downgraded due to his hearing loss. The Army gave him an option of taking up clerical duties or re-training for service in stores. He felt his Army career was then at an end because he was not interested in either of these fields. He said he coped with this disappointment through drink and gambling. He knew he had to leave the Army. With a wife and two children, he was looking for another career. After leaving the Army in April 1981, Mr O’Halloran found work with Mayne Nickless in the transportation industry. Through a period of about ten years he was steadily promoted, ultimately to state manager with responsibility for about three hundred staff. In 1991 he left Mayne Nickless and with a partner established a courier business that over a number of years proved to be a profitable enterprise.
18. Mr O’Halloran does not see a psychiatrist at present but takes a medication twice daily for his nerves. He said that apart from taking valium briefly, he has always used alcohol to deal with his insomnia. He has not discussed with a psychiatrist any possible treatment for his sleep disorders.
19. In 1984, he was treated for panic disorder. At the time he experienced chest pains as well as having interrupted sleep, restlessness, intolerance and irritability. On examination, an hiatus hernia was found to be blocking his windpipe and chest. Mr O’Halloran was advised to change his diet, reduce his intake of coffee and cut back his smoking, and to try to relax. A couple of years after he had started his courier business, he was treated by Dr Bhatt, G.P, for shingles and high blood pressure. It was Dr Bhatt who prescribed valium. He was told by Dr Bhatt that his high blood pressure and anxiety could lead to a stroke or heart attack if he did not reduce his drinking and smoking. In 1997 he developed pneumonia. Acting on Dr Bhatt’s advice, he sold his interest in the courier business in 1999. By this point he said he still suffered from high blood pressure and nerves, and he had lost his confidence.
20. During cross-examination, Mr O’Halloran agreed that he played a lot of football during his period of service. He suffered quite a few injuries, to his back, wrist, nose, teeth, right knee, face and left shoulder. He said that his scalding accident and the rifle incident were the major incidents in the Army that affected him. He added that there was a flow-on effect from them to later incidents and he referred specifically to the truck incident. He agreed that he was able to put the truck incident out of mind for a number of years until he heard about a colleague at Mayne Nickless who was killed in a motor vehicle accident.
21. In his interview with Dr Dinnen, consultant psychiatrist, Mr O’Halloran said that the event that had the most impact was the death of his mother in 1992. The scalding incident was almost as traumatic. His mother died around the time he formed his courier business. His family had been living in the same house with his mother and father for a number of years. Mr O’Halloran agreed that his mother’s death was a traumatic event that with other things, contributed to his condition in 1994 when he saw Dr Bhatt. Mr Modder asked him if starting his own business was stressful. Mr O’Halloran agreed but he said all jobs were stressful. He said he could manage when he put his mind to it but the problems came when he was not able to switch off.
22. Mr O’Halloran explained that he did not seek medical treatment for his insomnia while in the Army because he saw asking for help as a problem. He was young and wanted to have a go. He said he had had cold sweats for many years but it all came to a head in 1984 when he sought treatment for his anxiety attacks and panic disorder. He told the Tribunal that he was not disciplined for bad behaviour, irritability, temper or the like while in the Army or while employed by Mayne Nickless. He explained that, in business, he set goals for himself and his employees. If his staff did not reach the goals, he could become unpleasant with them.
23. The applicant’s wife of twenty-six years, Mrs Betty O’Halloran, gave evidence of her husband’s drinking habit, which was well established before they married. Mrs O’Halloran said that his drinking and gambling became worse after his motor vehicle accident in 1979. She described him as never having been a good sleeper. His sleeping was more disturbed after he had been away on training exercises. When asked specifically about his behavioural problems during the mid-1980s when he was working for Mayne Nickless, she said that she noticed that he was shutting down a lot. He did not communicate well because of his limited hearing, and this created difficulties with the children who could not understand why their father would not join in social activities.
Dr Pickering
24. The Department referred the applicant to Dr Pickering, consultant psychiatrist, for a psychiatric assessment and report. He provided reports dated 18 April 2000 (T6) and 31 May 2000 (T7). At interview on 18 April 2000 Dr Pickering obtained a history about the scalding accident. The applicant suffered a partial thickness burn everywhere, except for a small area of full thickness burn in the groin. The full thickness burn kept him off duty for about five months. Mr O’Halloran referred to the rifle incident as the most significant single event that occurred to him during his Army career. He also mentioned that he suffered nervous symptoms while travelling in armoured personnel carriers that were closed up. Dr Pickering reported that Mr O’Halloran’s sleeping problems developed following the scalding accident. The cold sweat attacks that he suffered were different from the fear he experienced in the armoured personnel carriers. His symptoms remained unchanged until they worsened in about 1984.
25. Dr Pickering diagnosed a panic disorder with agoraphobia. In his opinion, onset of this disorder seemed to have coincided with the time that Mr O’Halloran was scalded and was experiencing limited symptoms. Dr Pickering thought that the condition would not have been diagnosed until it became overt in the mid-1980s, at the peak of the applicant’s symptoms when he had panic attacks. In relation to causation, Dr Pickering was of the view that panic disorder requires a constitutional background. He thought that the limited symptoms of disturbed sleep which occurred around the time of Mr O’Halloran’s scalding accident, were the initial stages of the panic disorder. There was significant exacerbation of the disorder at the time of his working as a supervising officer at Mayne Nickless. In Dr Pickering’s opinion, the scalding event was a substantial cause of the onset of the disorder. Dr Pickering said he did not believe that Mr O’Halloran was suffering from a depressive disorder or from post traumatic stress disorder (PTSD).
26. After his initial report, Dr Pickering was provided with Mr O’Halloran’s full service record. In his report dated 31 May 2000 (T7) Dr Pickering noted that there was some inaccuracies in the history Mr O’Halloran provided. Specifically, he observed that subsequent to the scalding incident, Mr O’Halloran was off duty for five weeks and not five months. Dr Pickering referred to the contemporaneous medical records dated 1 August 1974 which described the scalding as causing partial thickness burns. Five days later the burns were healing well. Dr Pickering said that on the basis of the full service records concerning the scalding incident
… it certainly would not be a significant psychological stressor and it would be therefore difficult to attribute the onset of limited symptom anxiety attacks to such an incident. This writer can only conclude that if limited symptom attacks did indeed begin around this time, they may have arisen spontaneously. At this time, Mr O’Halloran would have been about 21 years old, and therefore still within the age range within which endogenous anxiety symptoms such as panic attacks and limited symptom attacks may begin spontaneously and frequently do.
27. Dr Pickering did not observe a link between the exploding rifle incident and the applicant’s suffering limited symptoms. He noted that Mr O’Halloran’s symptoms were fairly mild until exacerbated during the period when he was working at Mayne Nickless. The symptoms were such then that they interfered with his life and this was the onset of panic disorder.
Dr Smith
28. Mr O’Halloran was referred to Dr Smith, consultant psychiatrist, by his G.P Dr Bhatt for examination on 21 February and 19 March 2001.
29. On 3 April 2001 Dr Smith reported (T11) that Mr O’Halloran was off duty for five months following the scalding incident. He obtained a history that included the rifle incident, the exploding kerosene oven incident and the truck incident. Mr O’Halloran’s current symptoms included impaired sleeping often associated with waking in cold sweats, neck and back pain connected with his arthritis, becoming more withdrawn and socially isolated, and resorting to an excessive intake of alcohol and gambling. Dr Smith noted that Mr O’Halloran’s hearing loss frequently results in his misunderstanding what others have said and that this causes him frustration.
30. Dr Smith accepted that Mr O’Halloran’s symptoms were genuine but noted he demonstrated a mixed clinical picture. Dr Smith diagnosed chronic adjustment disorder with depressed and anxious mood in response to his underlying physical and emotional impairments. In Dr Smith’s opinion, Mr O’Halloran’s exposure to the several significant traumatic events that have resulted in chronic pain, deafness and tinnitus have formed the backdrop to his chronic anxiety state to the point of panic disorder. There were a number of other incidents recorded by Dr Smith, including a severe facial injury at a football match in 1977, a car accident in 1979 that injured his neck and the difficult conditions he endured when patrolling the Malaysian – Thai border in 1975 and again in 1977. His psychiatric symptoms of depression and anxiety disorder with panic and agoraphobia were not due to a single incident. He said that, in common with Dr Pickering (that is, Dr Pickering’s initial opinion) Mr O’Halloran’s anxiety symptomatology emerged following the scalding incident.
Dr Dinnen
31. Dr Dinnen interviewed Mr O’Halloran on 15 January 2002 and provided a report dated 23 January (as well as a supplementary reported dated 24 July 2002) (Exhibit A2). Dr Dinnen reported that Mr O’Halloran worked for eighteen years since finishing at the Army but around mid-1999 had reached a stage where he had problems. His symptoms included a total loss of confidence, insomnia, cold sweats, drinking, gambling and arguing with his family. He worries excessively. He said the worrying started while in the Army or perhaps after discharge. His hearing loss had caused him to become a social outcast and he would not socialise at clubs, preferring to play poker machines and drink by himself. Dr Dinnen had taken a history that included the four incidents referred to above. Mr O’Halloran believed his nervous problems dated from his experiences in the Army and commenced half way through 1976.
32. Dr Dinnen diagnosed Mr O’Halloran as having anxiety disorder due to a number of medical conditions and that the disorder was attributable to service. He was in agreement with Dr Pickering and Dr Smith that the applicant developed his anxiety disorder due to the accumulative effect of traumatic events during service. Dr Dinnen’s diagnosis did not include anxiety disorder due to a general medical condition. In his later report of 24 July 2002, however, Dr Dinnen stated that Mr O’Halloran satisfied factor 5(a)(i) in the Statement of Principles concerning Anxiety Disorder in Instrument No. 2 of 2000. Dr Dinnen was of this opinion because he thought the scalding incident happened in 1975 and Mr O’Halloran said that his awareness of symptoms commenced during 1976.
Dr Shand
33. Dr Shand, consultant psychiatrist, examined the applicant on 10 April 2002 and provided a report dated 10 May 2002 (Exhibit R1) and a supplementary report dated 30 May 2002 (Exhibit R2). Due to inconsistencies in the history that he and the other psychiatrists had been given, which Dr Shand itemised in detail, he said he was unable to diagnose with confidence, any disorder as service related. As to Dr Smith’s diagnosis in April 2001 of panic disorder, Dr Shand noted that Mr O’Halloran informed him that he had not suffered from panic attacks for some years. Dr Shand recorded that Mr O’Halloran made nothing of the rifle incident in relation to any of his nervous problems. He reported the applicant’s flashback to the scalding incident consequent on his witnessing the burns suffered by Glen Morgan when the kerosene oven exploded. That incident still haunted Mr O’Halloran. Dr Shand observed that there was no evidence of the applicant’s psychiatric disturbance during his service. In his second report which responded to Dr Dinnen’s diagnosis, Dr Shand repeated his view that there was no consistency between the various psychiatrists as to diagnosis or causation. Dr Shand considered that the onset of Mr O’Halloran’s psychiatric disorder was during his employment by Mayne Nickless when he started to become intolerant of work pressures and responsibilities, which ultimately came to a head later when he sold out of his courier business.
34. In Dr Shand’s opinion, Mr O’Halloran’s psychiatric disorder in combination with his chronic alcoholism has made him unfit for work. However, Dr Shand would not rule outa diagnosis of chronic PTSD in combination with long standing personality disorder of obsessive-compulsive type. Due to the unreliability of the histories given to the different psychiatrists, he was unable to determine whether how much of this chronic psychiatric disorder can be attributed to stressful experiences during service and how much to the progressive decompensation of his personality disorder, independent of service.
consideration of issues
35. It was submitted for Mr O’Halloran that he suffered from anxiety disorder and that he satisfied the requirements of the relevant SoP, being SoP 2 of 2000. The opinion of Dr Dinnen was relied on. Mr Winship submitted that the scalding incident was a severe psychosocial stressor and that clinical onset of anxiety disorder happened around the time of that incident, noting that was when the applicant’s insomnia, cold sweats and increased drinking commenced. Mr Winship placed no reliance on factor 5(b) in SoP 2 of 2000, which refers to anxiety disorder due to a generalised medical condition. As to clinical onset of anxiety disorder, Mr Winship referred to the following comments made by Professor Ken Donald, the Chair of the RMA in an address in November 1998, that “Clinical onset is not when it’s diagnosed, not when the first laboratory test or X-ray is done. Clinical onset in its ordinary English usage means the first time the patient notices anything to do with the actual disease.”
36. For the Commission, it was submitted that Mr O’Halloran’s unpleasant experiences during service have not produced symptoms that now manifest in a psychiatric condition. Mr Modder submitted that if anxiety disorder were the appropriate diagnosis, the applicant did not satisfy a factor in SoP 2 of 2000 that must exist for anxiety disorder to be connected with service. He said that none of the four incidents described fit the definition of ‘severe psychosocial stressor’. In Mr Modder’s submission, it was difficult to reconcile any contemporary symptoms of anxiety arising from the scalding incident or the rifle incident and the later incidents, with Mr O’Halloran’s extensive participation in organised, competitive sport while in the Army. Further he noted that Dr Dinnen’s opinion referred to clinical onset of anxiety disorder in 1976. This was more than a year after the scalding incident, relied on as a severe psychosocial stressor, in fact occurred. He submitted that clinical onset of the condition occurred during Mr O’Halloran’s employment at Mayne Nickless as Dr Pickering had found.
37. There is no consensus among the psychiatrists regarding diagnosis. None of the doctors was called to give evidence at the hearing. The Tribunal faces what Dr Shand aptly described as “a diagnostic impasse”. Where there is a preliminary question about the nature or type of incapacitating disease from which an applicant suffers, the Tribunal’s initial task is to determine whether the applicant suffers from a disease, and if so, what disease. The Full Court of the Federal Court in Benjamin v Repatriation Commission (2001) 34 AAR 270, 283 stated that “The first question for the Tribunal will be how to characterise the psychiatric problems exhibited by the Veteran. If the Tribunal is satisfied that the symptoms constitute an injury or illness, the second question will be whether there is an SoP in force in respect of the disease.” In characterising the symptoms, the decision-maker is to:
… identify the collection of relevant symptoms which he or she is satisfied constituted the disease which the veteran contracted. It is not a matter of nomenclature or attaching a traditional label to the collection of symptoms. That, as the conflicting expert psychiatric evidence of Dr Knox and Dr Dent on the one hand and Dr Spragg on the other, shows in relation to the label ‘Post-Traumatic Stress Disorder’, may turn on questions of causation or aetiology. Once the decision maker has identified, to his or her reasonable satisfaction, the collection of relevant symptoms from which an applicant suffers, the question of whether those symptoms were war-caused has to be resolved … : Repatriation Commission v Budworth (2001) 66 ALD 285, 292.
38. Moreover, it is quite clear from Benjamin that “SoPs are not relevant to the question of diagnosis”, the Full Court there noted (at 280):
The primary judge observed that, on all the evidence before the Tribunal, exposure to a traumatic event was the primary criterion required for the diagnosis of post traumatic stress disorder. The Tribunal made its diagnosis by reference to SoP 15 of 1994. His Honour correctly held that to be impermissible, as the scheme of the Act contemplates that SoPs be used to determine the standard of proof. SoPs are not relevant to the question of diagnosis.
39. In summary, Dr Pickering has diagnosed panic disorder with agorophobia and Dr Smith diagnosed chronic adjustment disorder including panic disorder with agorophobia. A diagnosis involving panic disorder found no support from Dr Shand because the applicant informed him that he had not had panic attacks for some years. Dr Smith, however, also noted that the applicant had chronic depression and a chronic anxiety state to the point of panic disorder, but did not formally diagnose anxiety disorder. Although he found the applicant’s symptoms to be consistent with Dr Smith’s diagnosis, Dr Dinnen preferred a diagnosis of anxiety disorder due to the veteran’s general medical conditions. Dr Dinnen’s second report gives a diagnosis of generalised anxiety disorder or anxiety disorder not otherwise specified. Dr Shand disagreed with the diagnosis, seemingly because the suggested stressors during service were the subject of inconsistent histories. A diagnosis of PTSD was specifically ruled out by Dr Pickering, though as Dr Shand observed, that was a consequence of Dr Pickering not having been informed of the insomnia being associated not only with the scalding incident, but also from the flashbacks to that incident following the truck incident and the exploding kerosene stove incident. Dr Dinnen diagnosed PTSD as embedded in the applicant’s current condition but of only limited degree nowadays. There was no mention of PTSD by Dr Smith. Assuming the history he was given was correct, Dr Shand would diagnose chronic PTSD but in conjunction with chronic personality disorder. No report was obtained from the applicant’s G.P through the 1990s, Dr Bhatt. However, in completing the medical impairment assessment (T4A) provided to the Department in April 2000, Dr Bhatt noted that she had treated Mr O’Halloran for anxiety disorder.
40. Taking into account all the material before it, the Tribunal is reasonably satisfied that anxiety disorder is the appropriate diagnosis of Mr O’Halloran’s psychiatric problems. The Tribunal founds that diagnosis on the opinions of Dr Dinnen, Dr Smith and Dr Bhatt, who emphasised the significance of the applicant’s chronic anxiety state, while also noting that his symptoms had peaks, for instance when panic disorder would be diagnosed. In addition the diagnosis is preferred to chronic PTSD, which Dr Dinnen noted is reflected only in aversion of exposure to potential burning. Dr Shand’s diagnosis of chronic PTSD was in conjunction with a diagnosis of chronic personality disorder, a diagnosis not supported by the other expert opinions. Agreement can be found in the opinions of Dr Smith, Dr Dinnen, Dr Shand and Dr Pickering that it was not a single incident that was responsible for the applicant’s disorder. It is concluded, to the Tribunal’s reasonable satisfaction, that the accumulative effects of the various incidents have led to his anxiety disorder.
41. At this point, the Tribunal moves to consider whether Mr O’Halloran’s anxiety disorder is a defence-caused disease. The Tribunal is required to determine this issue to its reasonable satisfaction and in doing so will apply the civil standard of proof (Repatriation Commission v Smith (1987) 15 FCR 327). SoP 2 of 2000 is relevant here. His application will fail if the SoP does not uphold the contention that his anxiety disorder is, on the balance of probabilities, connected with his eligible war service (Brew v Repatriation Commission (1999) 94 FCR 80). It has been noted that Dr Dinnen considers that Mr O’Halloran satisfies factor 5(a)(i), which states:
5. The factors that must exist before it can be said that, on the balance of probabilities, anxiety disorder or death from anxiety disorder is connected with the circumstances of a person’s relevant service are:
(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 …
The following definitions in the SoP are pertinent:
For the purposes of this Statement of Principles, “anxiety disorder” is defined as the anxiety spectrum disorders of generalised anxiety disorder, or anxiety disorder due to a general medical condition, or anxiety disorder not otherwise specified, attracting ICD-10-AM code F06.4, F41.1, F41.8 or F41..9. This definition excludes the other anxiety spectrum disorders: post traumatic stress disorder, acute stress disorder, phobia, obsessive-compulsive disorder, adjustment disorder with anxiety, panic disorder and agoraphobia.
‘anxiety disorder not otherwise specified’ means a psychiatric disorder with prominent anxiety or phobic avoidance that does not meet criteria for any specific anxiety disorder, adjustment disorder with anxiety, or adjustment disorder with mixed anxiety and depressed mood;
‘generalised anxiety disorder’ means a psychiatric disorder with the following features:
A. Excessive anxiety and worry (apprehensive expectation), which occur on more days than not for a continuous period of at least six months, about a number of events or activities; and
B. The person finds it difficult to control the worry; and
C. The anxiety and worry are associated with three or more of the following six symptoms, with at least some symptoms present for more days than not during the previous six month period:
(1). restlessness or feeling keyed up or on edge
(2). being easily fatigued
(3). difficulty concentrating or mind going blank
(4). irritability
(5). muscle tension
(6). difficulty falling or staying asleep, or restless unsatisfying sleep; and
D. The focus of the anxiety and worry is not confined to features of any other Axis I disorder; and
E. The anxiety, worry, or physical symptoms (as described in C. above) cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and
F. The anxiety and worry are not due to the direct physiological effects of a substance or a general medical condition and do not occur exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder;
‘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 deciding whether factor 5(a)(i) exists, the Tribunal accepts Mr Modder’s submission that the scalding incident that happened on 1 August 1974 was not a severe psychosocial stressor. Mr O’Halloran’s service medical records state that on 6 August 1974 the burns were healing well, there was no infection and the burns were now non-painful (Supp T p.13). He was not transferred to hospital for treatment but treated in the RAP. Although on his discharge medical documents (Supp T p.56) it is noted that Mr O’Halloran was off work for five weeks, according to his medical assessment on 12 August 1974 (Supp T p.10) he was assessed fit for overseas. He departed for Malaysia very early in September 1974 and in evidence agreed he would have had to have been fit to go over there for a period of service. It is also noted that, on examination on 5 February 1981 prior to discharge, in the comments about identifying marks, scars etc. an appendectomy scar and scars to the upper lip and forehead are recorded, but there is no mention of scarring from burns (Supp T p.58). Mr O’Halloran’s evidence about the extent of his injury and recovery differs from the medical records. In addition, the Tribunal notes that the account of the scalding incident, its impact and his recovery that he gave to Dr Pickering and Dr Smith differs from that found in the service medical records. The Tribunal does not accept Mr O’Halloran’s evidence. The Tribunal is not satisfied that the scalding incident was a major injury and thus was not a severe psychosocial stressor.
43. Even if the scalding incident were considered a severe psychosocial stressor, factor 5(a)(i) requires clinical onset of anxiety disorder within a year of experiencing the severe psychosocial stressor. Mr Winship referred to Mr O’Halloran’s anxiety disorder as being an anxiety disorder not otherwise specified. The Tribunal notes, however, the absence of material in the applicant’s service medical records that suggest that he had prominent anxiety or phobic avoidance. There is an absence of symptoms of excessive anxiety or worry about events, whether it be undertaking service overseas on two occasions, or participating in activities such as organised sport. The only suggestion of such symptoms was a concern about being last out of armoured personnel carriers but Mr O’Halloran coped with that, eventually becoming a crew commander. The Tribunal considers that, as Dr Dinnen observed, Mr O’Halloran’s excessive level of drinking was part of the Army lifestyle.
44. So far as clinical onset of anxiety disorder is concerned, the Tribunal is mindful of the following passage from the Full Federal Court’s judgment in Lees v Repatriation Commission [2002] FCAFC 398, albeit a case about operational service (s.120(3)) and SoP 1 of 2000:
[16] … While it is true that Statements of Principles are directed to causation, the means of establishing the necessary link in SoP1 between disease and war service is to require that the symptoms (or features) of the disease are, in a case such as the present, revealed within two years of the veteran experiencing a severe psychosocial stressor (relevantly, during operational service). This is intended to establish sufficient proximity between the experiences during operational service and the manifestation of the disease to point to a causal link to sustain the hypothesis.
Clinical onset of a psychiatric disorder was determined by Dr Pickering and Dr Shand to have occurred while Mr O’Halloran was working at Mayne Nickless. As for Dr Smith’s diagnosis, which the Tribunal has noted was against a backdrop of chronic anxiety state from a combination of incidents in service from 1972 to 1979, clinical onset of the applicant’s condition would not have been within a year of the scalding incident. While Dr Dinnen noted clinical onset within a year of the scalding incident, the Tribunal prefers the opinions of the other experts, having regard to the emphasis that all have placed on the cumulative effect of the service incidents in bringing about Mr O’Halloran’s condition. The Tribunal is not satisfied that there is a causal link between the scalding incident and manifestation of anxiety disorder. Accordingly, clinical onset of either generalised anxiety disorder or anxiety disorder not otherwise specified could not be said to have been within one year immediately following the scalding incident, as required by the SoP.
45. The Tribunal is unable to be satisfied that the applicant’s anxiety disorder was defence-caused within the meaning of the Act.
46. The decision under review should be affirmed.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of P.J.Lindsay, Senior Member, and Dr M.E.C.Thorpe, Member:
Signed: .......................................................................................
AssociateDate of Hearing 25 July 2002
Date of Decision 26 February 2003Solicitor for the Applicant Mr B. Winship
Respondent’s Representative Mr S. Modder, Dep’t of Veterans’ Affairs
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