Palmer and Repatriation Commission
[2005] AATA 2
•4 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 2
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/282
VETERANS' APPEALS DIVISION )
Re RICHARD JAMES PALMER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr S C Fisher, Member Date4 January 2005
PlaceBrisbane
Decision The Tribunal decides:
(a) to vary the decision of the VRB where it amended the diagnosis concerning lumbar spondylosis by including a diagnosis of spondylolisthesis and spondylolysis by amending that diagnosis to one of spondylolisthesis; and
(b) to vary the diagnosis of the VRB of adjustment disorder to anxiety disorder; and
(c) to affirm the decision of the VRB in relation to denying liability for the conditions of adjustment disorder and alcohol dependence or alcohol abuse; and(d) to set aside the decision under review concerning spondylolisthesis and spondylosis and substitutes its decision that the condition of spondylolisthesis is war-caused; and
(e) the date of effect is 17 April 2000.
...................[Sgd].......................
S C Fisher
Member
CATCHWORDS
VETERANS’ AFFAIRS – Pensions, benefits and entitlements – Whether applicant’s conditions of spondylolisthesis and spondylolysis, adjustment disorder and alcohol dependence or abuse are war-caused – Diagnosis of spondylolisthesis and spondylolysis varied to spondylolysis – Diagnosis of adjustment disorder varied to anxiety disorder – Alcohol dependence or abuse is not war-caused - Spondylolisthesis is war-caused
Veterans’ Entitlements Act 1986 ss 6, 6F, 7, 9, 17, 119, 120, 120A, 174-176, 196
Secretary, Department of Social Security v Murphy, Federal Court, 29 June 1998, 809/98
Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248; (2003) 74 ALD 21
Bantick and Secretary, Department of Family and Community Services [2003] AATA 472
Bramwell v Repatriation Commission (1998) 51 ALD 56
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598; (1981) 4 ALD 198Hillier v Repatriation Commission [2004] AATA 897
Schmidt v Repatriation Commission [2004] FCA 1158
Repatriation Commission v Stoddart [2003] FCAFC 300; (2003) 77 ALD 67
Repatriation Commission v Gorton (2001) 110 FCR 321; (2001) 65 ALD 609
Kattenberg vRepatriation Commission (2002) 73 ALD 365
Ahrens and Repatriation Commission [2004] AATA 943
Williamson and Repatriation Commission [2004] AATA 1185
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193
Mines v Repatriation Commission [2004] FCA 1331
Repatriation Commission v Bey (1997) 79 FCR 364; (1997) 47 ALD 481
ReAhrenfeld and Repatriation Commission (1992) 28 ALD 921
Woodward vRepatriation Commission [2003] FCAFC 160; (2003) 75 ALD 420
O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356; (1990) 19 ALD 743
White v Repatriation Commission [2004] FCA 633
Re Stonehouse and Repatriation Commission [2004] AATA 707REASONS FOR DECISION
4 January 2005 Mr S C Fisher, Member Introduction and background
1. Mr Richard James Palmer (applicant) served with the Royal Australian Navy from 31 January 1958 to 25 April 1978. The applicant rendered operational service on various dates from 26 March 1959 to 11 August 1966 and defence service from 7 December 1972 to 25 April 1978.
2. The applicant lodged a claim with the Repatriation Commission (the respondent) on 17 July 2000 for various conditions comprising “back (lumbar), hearing, lungs, anxiety state”. Liability was accepted for lumbar spondylosis, bilateral sensorineural hearing loss with tinnitus and chronic bronchitis and emphysema. Liability was declined for adjustment disorder, alcohol dependence or alcohol abuse and spondylolisthesis and spondylolysis.
3. The applicant sought review from the Veterans’ Review Board (VRB). On 13 February 2002, the VRB amended the diagnosis concerning lumbar spondylosis by including a diagnosis of spondylolisthesis and spondylolysis, affirming the amended decision under review concerning spondylolisthesis and spondylolysis, affirming the decision under review concerning adjustment disorder and alcohol dependence or alcohol abuse and set aside the decision under review concerning lumbar spondylosis and substituted its decision that the lumbar spondylosis is war-caused.
4. From the VRB, the applicant appealed to this Tribunal on 2 April 2002.
Jurisdiction
5. This appeal is governed by the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). The Tribunal has jurisdiction in this appeal by virtue of sections 174 - 176 of the Act. In these Reasons for Decision, references to statutory provisions are to provisions of the Act unless the context indicates otherwise.
The Decision under Review
6. The decision under review is a decision made by the VRB on 13 February 2002 declining liability for the conditions of adjustment disorder, alcohol dependence or alcohol abuse and spondylolisthesis and spondylolysis.
The Role of the Tribunal
7. The role of the Tribunal is to review the merits of the decision before it: section 43 of the Administrative Appeals Tribunal Act 1975 and Secretary, Department of Social Security v Murphy, Federal Court, 29 June 1998, 809/98. The Tribunal is guided by the norm that it should reach the correct and preferable decision on the basis of the material before it: Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248 at [33]. The Tribunal is required to stand in the shoes of the original decision-maker and consider all evidence anew, bearing in mind statutory provisions and any significant legal precedent: Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 at [23]. The Tribunal proceeds de novo: Bramwell v Repatriation Commission (1998) 51 ALD 56 at 60 per Weinberg J. The Tribunal must base its decision upon the material that is logically probative of the existence of facts that emerge from the evidence before it: Collins v Minister for Immigration and Ethnic Affairs(1981) 36 ALR 598 at 601.
Issues
8. The issues before the Tribunal are whether the applicant’s conditions of spondylolisthesis and spondylolysis, adjustment disorder and alcohol dependence or alcohol abuse are war-caused within the meaning and operation of section 9 of the Act or defence-caused within section 17 of the Act. It is common ground that if the applicant is successful in his claim, the date of effect would be 17 April 2000.
The Material Before the Tribunal
9. The following documentary evidence was before the Tribunal:
Exhibit 1 Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
Exhibit 2Report of Dr Peter Sharwood dated 13 February 2003
Exhibit 3Statements of Richard James Palmer of 22 July 2002, 3 October 2002 and 29 July 2004, together with a document captioned “Alterations to Statements and Facts” and a diagram of a minesweeper.
Exhibit 4X-ray and MRI report of Dr Simpson dated 4 June 2002
Exhibit 5Report by Associate Professor Bruce McPhee Dated 31 July 2002
Exhibit 6Report by Dr William Kingswell dated 20 November 2002.
10. The applicant was represented by Mr RJ Clutterbuck of counsel. Mr Clutterbuck was instructed by Gilshenan & Luton Lawyers. The applicant’s counsel provided an outline of submissions to the Tribunal.
11. The Respondent lodged documents T1 to T6 under section 37 of the Administrative Appeals Tribunal Act 1975. These documents were taken into evidence as Exhibit 1. In addition, the respondent tendered documentary evidence, which were taken into evidence by the Tribunal as Exhibits 4 and 5. The Respondent was represented by Mr Malcolm Smith, a departmental advocate. The respondent’s advocate provided a Statement of Facts and Contentions to the Tribunal.
12. The Tribunal considered carefully all of the documentary and oral evidence before it.
Evidence
13. The applicant gave evidence in person. Dr John Brown and Dr Peter Sharwood gave evidence on behalf of the applicant by telephone. Associate Professor Bruce McPhee gave evidence on behalf of the respondent by telephone.
Applicant’s Evidence
14. Much of the evidence given by the applicant was not in dispute. The evidence of the applicant to the Tribunal can be summarised as follows.
A. Naval Work History
15. The applicant joined the Royal Australian Navy in 1958. The applicant was trained as an electrical mechanic and he served on various ships, including the HMAS Melbourne, the HMAS Voyager, the HMAS Tobruk and the shore-based facility the HMS Terror (in Singapore). The applicant was also seconded to the Royal Navy where he served aboard the HMS Mull of Kintyre, a minesweeper support craft that operated out of HMS Terror. The applicant was also based in HMAS Harman (a shore-based facility near Canberra)
16. The applicant rendered operational service on various dates from 26 March 1959 to 11 August 1966, which included deployment during the Malayan Emergency and also in Vietnam. The applicant also rendered defence service from 7 December 1972 to 25 April 1978. The applicant was discharged from the Navy at his own request with the rank of Warrant Officer.
B. HMS Mull of Kintyre Incident
17. The applicant was posted to HMS Mull of Kintyre (based on Singapore) from December 1965 to May 1967. During this posting, the applicant injured his back whilst lifting an electric motor in June 1966. The applicant sought and received medical treatment for symptoms that lasted for a period of nine days. The applicant said that his back pain continued to get worse and that he drank alcohol for pain relief and to put himself to sleep.
C. Alcohol Consumption
18. The applicant described in some detail his alcohol consumption. The applicant said that he began to drink heavily during the early years of his service in the early 1960s. The applicant said that he stopped drinking in 1962 when he married. Later, the applicant said that he resumed drinking heavily whilst based in Singapore after the injury to his back caused by lifting the electrical motor in 1966. The applicant said that beer and rum were the main drinks he consumed. The applicants said that he noticed changes in his personality, he became short and grumpy with his family and was also grumpy at work. The applicant said that he increased his alcohol consumption over time and this did not affect his ability to do his work. The applicant described himself as a loyal and committed Navy man, and this emerges clearly from the evidence.
19. In cross-examination, the applicant was taken to Exhibit 6 where Dr William Kingswell, Consultant Psychologist, in a report dated 20 November 2002 wrote:
“Mr Palmer said that he began drinking in the Navy in the late 50s and early 60s. He said as the result of peer pressure he drank every night when on short leave. He said he drank until his money ran out. Despite his alcohol abuse he said he did not experience health problems. He was not charged with any offences …”
20. In response, the applicant explained that he had never stopped drinking during his time in the Navy but that he had times when he increased his alcohol intake, including after he injured his back. The applicant also said that he decreased his drinking, including after when he got married in 1962.
21. The applicant said that as his alcohol consumption increased over the years, it affected his interaction with his family to the point that the applicant and his wife separated on three occasions.
D. HMAS Harman Incident
22. The HMAS Harman incident took place during the applicant’s posting to this shore-based facility in Canberra in December 1975. This incident was the subject of the applicant’s oral evidence to the Tribunal, and it is referred to also in a supplementary statement dated 3 October 2002 which was taken into evidence as part of Exhibit 3. This incident involved the applicant sneezing at work as a result of hayfever he developed as while living in the region of Canberra. This sneeze caused the applicant severe back pain resulting in him being hospitalised for two weeks.
E. Post-Naval Work History
23. The applicant summarised his post-naval work history. The applicant said that he became a Mad Barry’s franchisee and was also involved in the administration of the franchisor. The total span of this work history was about 20 years, and this ended in the late 90s when the Mad Barry’s franchise system became insolvent and went into a period of voluntary administration before insolvency.
F. Psychiatric Condition
24. The applicant described how he was under treatment from Dr John Brown, Psychiatrist, and is on medication for anxiety depression.
Applicant’s medical evidence
25. Dr Peter Sharwood, Orthopaedic Surgeon, gave evidence on behalf of the applicant. Dr Peter Sharwood provided a medical report of 13 February 2003 (taken into evidence as Exhibit 2). The oral evidence of Dr Sharwood can be summarised as follows:
A.The incident involving the lifting of the heavy electrical motor was an event that constituted a high energy trauma injury to the lumbar spine.
B.The applicant probably had spondylolisthesis before his Naval service, and then it was onset in a clinical sense as a result of an episode such as one similar to the injury the applicant sustained as result of lifting the heavy electrical motor.
26. In cross-examination, Dr Sharwood conceded that it was possible that the spondylolisthesis was present in the applicant before he enlisted and that there was no radiological evidence of spondylosis on x-rays reported in July 1976.
27. In his 13 February 2003 report (Exhibit 2), Dr Sharwood said:
A.The applicant suffered an injury to his lower back in May 1971 which he reported to the naval medical authorities at the time.
B.As a result of the HMAS Harman incident (December 1995), x-rays taken at that time showed he had spondylolisthesis at L5 – S1, with pars interarticularis defects seen on the left side.
C.In June 1996, the applicant suffered a further exacerbation of back pain and in July 1996, an x-ray showed evidence of pars interarticularis defects seen on the left side.
D.In 1996, the applicant had episodes of intermittent back pain and left sciatica.
E.The applicant suffers from lumbar spondylosis and spondylolisthesis. The lumbar spondylosis was due to several factors, including factors related to the military service of the applicant such as the 1966 electrical motor incident.
F.The spondylosis and spondylolisthesis of the applicant fitted the statement of principles for these conditions.
G.The applicant probably had spondylolisthesis before his Naval service and this was exacerbated by his military service.
28. Dr John Brown, Psychiatrist, gave evidence on behalf of the applicant by telephone. A summary of Dr Brown’s oral evidence is as follows:
A.Dr Brown diagnosed the applicant is suffering from a chronic adjustment disorder with anxiety and depression.
B.Dr Brown attributed this condition predominantly to the applicant’s back pain.
C.Dr Brown said that the applicant reported to him that he began drinking heavily in the early 1960s, attributing this to peer pressure. After the applicant married 1962, he curtailed his drinking and after he injured his back in 1966 he began to drink heavily again.
29. In his 11 March 2000 report, Dr Brown reported as follows:
A.The applicant suffers from a chronic adjustment disorder with mixed anxiety and depressed mood, the onset of which began following the Voyager disaster 1964 but which was perpetuated by chronic back pain.
B.The applicant has alcohol dependence in remission.
C.The applicant’s anxiety and depressive symptoms escalated greatly following the onset of back pain. It was the back pain which is causative of the applicant’s heavy alcohol intake after 1966.
D.The applicant’s business and financial problems also contributed to his anxiety symptoms but his chronic back pain also remains etiologically significant.
Respondent’s Medical Evidence
30. The only medical expert called by the respondent to give evidence was Associate Professor Bruce McPhee, Orthopaedic Specialist. Associate Professor Bruce McPhee provided a report dated 31 July 2002.
31. Associate Professor McPhee’s evidence to the Tribunal was as follows:
A.The applicant suffers from lumbar spondylosis and lumbosacral spondylolisthesis.
B.The applicant’s spondylolisthesis is a degenerative condition that probably began in his second decade of life.
C.No evidence of spondylosis was detected on x-rays taken in July 1976.
D.The spondylolisthesis and spondylosis of the applicant was pre-existing and the 1966 accident exacerbated or aggravated these conditions in the sense of a clinical worsening of them.
32. Key findings from Associate Professor McPhee’s report dated 31 July 2002 are as follows (duplication of anything said in oral evidence has been avoided):
A.The applicant’s spondylosis is of constitutional origin.
B.The lumbar spondylosis is connected with the applicant suffering a trauma to the lumbar spine within 25 years immediately before the clinical onset of lumbar spondylosis.
C.The lifting incident contributed in part to aggravation of the spondylolisthesis.
D.The 1975 sneezing incident was significant in terms of cause and effect and probably amounts to an aggravation of a pre-existing condition that which was outside the spirit of the Statement of Principles as a causative factor or a service factor causing aggravation.
33. Dr William Kingswell, Consultant Psychiatrist, did not give evidence in person on behalf of the respondent but he did provide a report dated 20 November 2002 which was taken into evidence as Exhibit 6. The salient aspects of this medical evidence are as follows:
A.The applicant’s experience of chronic pain did not did not warrant a psychiatric diagnosis because there is a physiological basis for his pain.
B.The anxiety symptoms described by the applicant best fitted a diagnosis of generalised anxiety disorder rather than adjustment disorder because the chronicity of his symptoms and the applicant’s gloomy preoccupation with his health and finances is more consistent with generalised anxiety disorder than with adjustment disorder.
C.The applicant also suffers from alcohol dependence however this condition is in partial remission. The applicant was prone to alcohol abuse before his marriage in 1962.
D.Recent stressors since the applicant left the Navy included failure of his business, family illness, and personal illness (haemochromatosis).
E.If lumbar spondylosis fell within the definition of a “psychosocial stressor” within instrument No 57 of 1996 or a major illness or injury within instrument No 1 of 2000, then a relationship to relevant service is probably established, regardless of what specific diagnosis with respect to anxiety disorder is considered appropriate.
F.Alcohol abuse would necessarily follow as a disorder arising from a clinically significant psychiatric condition present two years before its onset.
Discussion of the Evidence
34. The applicant gave his evidence truthfully and there were no significant issues of credit in this appeal.
35. The medical evidence called by the respondent indicates that the lifting incident (which took place during operational service) contributed in part to aggravation of the pre-existing spondylolisthesis. Accordingly, there is a relationship between the spondylolisthesis of the applicant and operational service.
36. The medical evidence is fragmented concerning the exact nature of the psychiatric condition of the applicant. Different diagnoses of generalised anxiety disorder and chronic adjustment disorder with mixed anxiety and depressed mood have been made. There is unanimity concerning the cause-and-effect of the psychiatric condition of the applicant and its connection with operational or defence service. The medical evidence establishes that the anxiety disorder of the applicant arose after he sustained his back injury 1966 in the course of operational service.
37. Medically, the chain of events proceeds according to the following schema. The applicant’s alcohol abuse began in the early 1960s. The applicant’s alcohol consumption decreased with his marriage in 1962 until such time as injured his back in Singapore in 1966. After the pain associated with his back injury did not resolve, the applicant developed an anxiety disorder. In an effort to deal with the pain, the applicant self-medicated with significant amounts of alcohol such that he could be considered as alcohol abusive or alcohol dependent.
38. Before his naval service, the applicant had a pre-existing spondylolisthesis. The 1966 lifting incident aggravated this condition. This in turn led to lumbar spondylosis.
39. The applicant’s alcohol abuse is in remission (according to Dr John Brown) or in partial remission (according to Dr William Kingswell). Were it current or recurrent, then Dr Kingswell’s report attests to the connection between this condition and the applicant’s anxiety disorder.
Submissions of the Parties
40. These submissions of the parties are dealt with later in these Reasons for Decision.
Legislative framework
41. Section 9 of the Act provides for when an injury or disease is taken to be war-caused. The expression “operational service” which appears in section 9(1)(a) of the Act is defined in sections 6 to 6F of the Act. It was common ground between the parties that the applicant had rendered operational service. Further, section 7 of the Act provides that a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service: see Hillier v Repatriation Commission [2004] AATA 897 at [10].
42. In Schmidt v Repatriation Commission [2004] FCA 1158 at [5], Spender J accepted the following summary of certain key provisions of the Act, which this Tribunal gratefully adopts:
“[5] … Section 13 of the Act imposes upon the Commonwealth, liability to pay pensions to eligible persons. Section 14 deals with the making of claims for pensions and section 15 deals with making applications for increases in such pensions. Section 17 requires the Secretary of the Department of Veterans’ Affairs to investigate claims and applications. Section 19 gives to the Repatriation Commission the duty of determining claims and applications for pensions and to determine the rate at which the pension is payable.”
43. As the applicant has performed operational service, as defined in section 6 of the Act, the determination of whether his conditions are war-caused is to be made by applying sections 120(1) and 120(3), as affected by section 120A, of the Act. Sections 120(1) and 120(3) provide as follows:
“120 Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.”
44. Under section 120A of the Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority has made a SoP in respect of a particular kind of injury or disease, the reasonableness of a hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
“(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.”
45. According to the decision of the Full Court of the Federal Court of Australia in Repatriation Commission v Stoddart [2003] FCAFC 300, at [10] that the standard of proof to be applied by the Repatriation Commission (and on review by the Tribunal) to the question whether a disease is war-caused where a claim relates to operational service, is dealt with in sections 120(1) and (3) of the Act.
46. The Repatriation Medical Authority has devised Statements of Principles (“SoPs”) in respect of anxiety disorder and alcohol dependence or alcohol abuse pursuant to section 196B(2) of the Act. Section 120A says the reasonableness of the hypotheses must be assessed against the relevant SoPs. There were no determinations of the Repatriation Commission under subsection 180A(2) that are relevant to this case, and the parties did not contend to that effect. In accordance with the decision of the Full Court in Repatriation Commission v Gorton (2001) 110 FCR 321; (2001) 65 ALD 609, the Tribunal must apply the SoP in force at the date of its decision: see also Hillier v Repatriation Commission [2004] AATA 897 at [15]. A SoP is brought into existence in order to comply with section 196B: Kattenberg v Repatriation Commission (2002) 73 ALD 365 at [42].
47. There was no dispute between the parties that the applicant had rendered operational service, and that sections 120(1) and 120(3) of the Act apply. As this Tribunal said in Ahrens and Repatriation Commission [2004] AATA 943:
“[25] The Tribunal must determine that the disease or condition was war‑caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination (s120(1)). Subsection 120(3) is affected by s120A, applying to claims for pension made after 1 June 1994 where a veteran has rendered operational service. The operation of s120A depends upon whether there is in force a Statement of Principles (SoP) determined under s196B of the Act in respect of the kind of disease contracted by the applicant. Subsection 120A(3) provides that, for the purposes of subsection 120(3), an hypothesis connecting a disease contracted by a person with the circumstances of any particular service rendered by the person is to be regarded as reasonable only if there is in force an SoP that upholds the hypothesis.”
48. In relation to any part of the applicant’s claim for any condition that is said to relate to defence service (as distinct from operational service), the Deledio “reasonable hypothesis” approach is not followed – instead the Tribunal must simply test the applicant’s claim against the factors of the relevant SoP. For the applicant to be successful, the Tribunal must accept his or her claim to a standard of reasonable satisfaction: see Williamson and Repatriation Commission [2004] AATA 1185. In cases such as the present, the approach for decision makers such as this Tribunal to take is marked by the decision of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82. Before the Tribunal proceeds to the Deledio four step approach the Tribunal must be satisfied (to a standard of reasonable satisfaction) the applicant suffers from a medical condition. The Tribunal considered this aspect next.
Diagnosis
49. The first issue for the Tribunal is that of diagnosis. The question of whether a veteran suffers from a particular medical condition is decided to the reasonable satisfaction of the Tribunal: section 120(4) of the Act. On the basis of the medical opinions before the Tribunal, the Tribunal is satisfied that the applicant suffers from lumbar spondylosis, spondylolisthesis and generalised anxiety disorder (or anxiety disorder). The Tribunal prefers a diagnosis of anxiety disorder to adjustment disorder because of the chronicity of the symptoms reported by the applicant. The diagnosis of alcohol dependence is problematic given that the condition is in remission. The Tribunal is not satisfied that the applicant currently has a medical condition of alcohol dependence.
Deledio Steps
50. In Deledio the Full Federal Court summarised (at 97) the four steps the Tribunal must follow in deciding whether a disease or injury is war-caused:
“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 a SoP 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.”
51. In Mines v Repatriation Commission [2004] FCA 1331, Gray J made these important observations about the Deledioreasoning process:
“[37] … The steps outlined in Deledio constitute a process of reasoning to be undertaken when the question arises whether a connection exists between a particular injury, disease or death and the particular operational service rendered by the veteran concerned. The first step identified in Deledio assumes that there has already been a finding that the requisite injury, disease or death exists or has occurred, and a finding that the veteran concerned rendered operational service. The first step is to identify whether the material points to a reasonable hypothesis connecting the one with the other. There cannot be such a reasonable hypothesis unless the two facts to be connected have already been identified. Their identification is not one of the steps referred to in Deledio.”
Gray J went on to say -
“[38] Section 120(1) of the [Veterans’ Entitlements Act] appears to be based on the assumption that there will have been determined both the question whether there exists or has occurred an injury, disease or death and the question whether the relevant veteran had rendered operational service.” … This concludes the preliminary or antecedent investigation before the first Deledio step is applied.”
52. Conditions related to defence service are governed by sections 120(4) and 120B(3) and (4) of the Act. While the Tribunal has reference to SoPs, the test is one of reasonable satisfaction, not reasonable hypothesis.
The first Deledio step
53. The Tribunal must determine that the material before it gives rise to a hypothesis connecting the injury or disease to the service rendered by the applicant. The Applicant’s contention is that his medical conditions of spondylolisthesis, spondylolysis, adjustment disorder (or anxiety disorder, as this is the preferred diagnosis of the Tribunal) and alcohol dependence or alcohol abuse are related to service. The Tribunal noted that in this case no contention is made on behalf of the Applicant that the veteran’s medical conditions are a result of defence service as distinct from being war-caused. The 1975 incident at HMAS Harman could be characterised as a defence-service exacerbation of an earlier war-caused condition.
54. The Tribunal took into account what the Federal Court said in Repatriation Commission v Bey (1997) 79 FCR 364 at 373; (1997) 47 ALD 481 that there must be material pointing to a connection between the veteran’s disease and his or her war service. Either the material points to a connection or it does not. If there is no such connection, then the deficiency cannot be cured by resort to a procedural provision such as section 119(1)(g). In terms of aligning the statutory direction to act according to substantial justice with the requirements for a reasonable hypothesis under section 120, the Federal Court in Repatriation Commission v Bey has stated that section 119 does not displace section 120. In a similar vein, this Tribunal said in Re Ahrenfeld and Repatriation Commission (1992) 28 ALD 921 at 922 – 923 that section 119(1)(h) cannot be used to ensure a benign medical interpretation of facts once those facts have been determined relying on this legislative signpost.
The first Deledio step: Spondylolisthesis and Spondylolysis
55. The Tribunal is satisfied that there is a hypothesis linking the applicant’s spondylolisthesis and spondylolysis with his operational service. In particular, the hypothesis arises from the service-related aggravation of these pre-existing conditions.
The First Deledio Step: Anxiety Disorder
56. The Tribunal is satisfied that there is a hypothesis linking the applicant’s anxiety disorder with his operational service. This hypothesis arises from the anxiety the applicant experienced or suffered from following his 1966 back injury, which in turn is service-related.
The First Deledio Step: Alcohol Dependence or Alcohol Abuse
57. The Tribunal is satisfied that there is a hypothesis linking the applicant’s past alcohol dependence or alcohol abuse with his operational service. This hypothesis follows from the applicant self-medicating with alcohol in order to deal with the pain following the service-related 1966 back injury. Alcohol dependence or alcohol abuse is a “disease” within the meaning of section 5D, and in the context of the provision, either this condition must be presently existing or recurrent. Based upon the evidence before it, the Tribunal is not, however, satisfied as to the currency or the recurrency of the alcohol dependence of alcohol abuse of the applicant, and so the Tribunal did not consider this condition any further for the purposes of this appeal.
The Second Deledio Step
58. The second Deledio step is to determine the relevant SoPs. In this case, the relevant SoPs are:
¨ Spondylolisthesis and spondylolysis: Instrument No 15 of 1997.
¨ Anxiety disorder: Instrument No 1 of 2000.
59. As the Tribunal has determined that the alcohol dependence or alcohol abuse of the applicant is not current or recurrent, then the Tribunal did not need to go on to consider Instrument No 76 of 1998 (alcohol dependence or alcohol abuse) for the purposes of this appeal.
The Third Deledio Step
60. The Tribunal must then determine whether the facts as presented “fit” the SoP. Raised facts “fit” if they are consistent with the SoP: Woodward v Repatriation Commission [2003] FCAFC 160 at par 34. The Tribunal cannot make findings of fact at this point.
The Third Deledio step: Spondylolisthesis
61. The SoP for spondylolisthesis and spondylolysis is Instrument No 15 of 1997. This SoP defines “spondylolisthesis” as the “forward displacement of one vertebra over another…” and “spondylolysis” as a “defect or fracture, unilateral or bilateral, involving the pars interarticularis of a vertebra…” (clause 2 (b) refers).
62. The factors connecting any particular veteran’s service with spondylolisthesis and spondylolysis as a reasonable hypothesis are itemised in clause 5. In the case of the lumbar spine injury sustained by the applicant, it is Factors 5(f) and 5(j) that are relevant, so the applicant contended. The applicant has been diagnosed with spondylolisthesis not spondylolysis.
63. Clause 4 of the SoP requires at least one of the clause 5 factors to be related to any relevant service rendered by the veteran. It is common ground between the parties that (a) the applicant has rendered “relevant service” within the meaning of clause 7 of the SoP, and (b) the applicant sustained his back injury during operational service (a subset of “relevant service”). The nexus (expressed in the words “be related to”) between the causative factor and relevant service required by clause 4 of Instrument No 15 of 1997 does not need to be temporal (although this is sufficient rather than necessary). Clause 4 does not specify the relationship between the causative factor and relevant service. Phrases in the nature of “in respect of” and “in relation to” are taken to be of the broadest import: see O’Grady v Northern Queensland Co Ltd(1990) 169 CLR 356 at 374 per Toohey and Gaudron JJ and at 376 per McHugh J. Although much depends on the particular context in which any two or more referents are said to be “related”, there is sufficient judicial warrant for reading the relationship between the causative factor and relevant service as being satisfied if there is a relationship, whether direct or indirect, between these two matters. Put another way, there must be some kind of connection between the two matters for the relationship to arise. The determination of this is a matter for the Tribunal or other decision-maker.
64. As to Factor 5(f), this refers to the veteran suffering from lumbar spondylosis affecting the facet joints at the involved intervertebral level at the time of the clinical onset of degenerative lumbar spondylolisthesis. The respondent has already accepted liability for lumbar spondylosis. In turn, “lumbar spondylosis” and “degenerative lumbar spondylolisthesis” are defined in clause 7 of the SoP. The applicant contended that the evidence of the respondent’s medical expert, Associate Professor McPhee, supported the grounding of this factor. The Tribunal considered that the evidence of Dr Peter Sharwood also supported this. In its statement of facts and contentions, the respondent conceded that the 1966 lifting episode would have contributed to the applicant’s lumbar spondylosis. The clinical onset of degenerative lumbar spondylolisthesis must be related to service in the sense explained above, and on the evidence before the Tribunal, this relationship is demonstrated or made out by the 1966 lifting incident which at the very least exacerbated or aggravated the pre-existing spondylolisthesis. Accordingly, the Tribunal concluded that there is a reasonable hypothesis linking the spondylolisthesis suffered by the applicant with his operational service within the meaning of section 120. In other words, the circumstances of the applicant in relation to spondylolisthesis “fit” or are consistent with the SoP.
65. Because of the concession made by the respondent and the reasoning of the Tribunal in the case of Factor 5(f), the Tribunal determined that it was unnecessary to proceed to consider Factor 5(j).
The Third Deledio step: Generalised Anxiety Disorder
66. As indicated earlier in these Reasons for Decision, the Tribunal considers that the better view of the medical evidence before it is that the applicant suffers from an anxiety disorder rather than an adjustment disorder. The SoP for anxiety disorder is Instrument No 1 of 2000. Excerpts from this SoP are set out next to the extent that they were raised by the contentions of the parties:
“Kind of injury, disease or death
2.(b) 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.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service are:
(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; or
….
(iv) having a major illness or injury within the two years immediately before the clinical onset of anxiety disorder.
8. “major illness or injury” means a disease or injury that is life-threatening or seriously disabling.
8. “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.”
67. The contentions of the applicant sought to connect his operational service with his anxiety disorder using Factors 5(i) and (iv). In particular, the applicant contended that the back pain suffered by the applicant following the 1966 lifting incident was a severe psychosocial stressor that predated the clinical onset of an anxiety disorder within the requisite two year timeframe (citing White v Repatriation Commission [2004] FCA 633 and Re Stonehouse and Repatriation Commission [2004] AATA 707). Alternatively, the applicant contended that he sustained a major illness or injury (namely, his back injury) within the two years immediately before the clinical onset of anxiety disorder. The respondent conceded that back pain could be a psychosocial stressor (if the appropriate diagnosis was adjustment disorder) but disputed the causality of any psychiatric or psychological condition on the basis that this predated the back pain which occurred in 1966 following the lifting incident that year. In this case, the only possible severe psychosocial stressor that is raised on the evidence before the Tribunal was the occurrence of a major illness or injury, which accordingly was the common denominator to the application of Factors 5(i) and (iv) to the circumstances of the applicant. The applicant did experience other severe psychosocial stresses such as major financial problems, but they arose after his Naval service.
68. The SoP requires a major illness or injury to predate the clinical onset of anxiety disorder. Dr Brown’s report makes a clear link between the onset of the applicant’s back pain and his anxiety. Dr Kingswell’s report can be interpreted the same way. The applicant’s own evidence to the Tribunal was that he was able to continue to do his job in the Navy despite his alcohol consumption (and for that matter, his anxiety, the Tribunal would infer). The applicant was not the subject of any disciplinary charges or proceedings associated with his alcohol consumption. In this case, there is no evidence to suggest that the applicant sustained a disease or injury that was life-threatening, or a disease or injury that was seriously disabling.
69. Based upon the evidence before it, the Tribunal was not satisfied that the applicant sustained a disease or injury that was life-threatening, or a disease or injury that was seriously disabling within the SoP. Accordingly, it was not necessary for the Tribunal to exegete the meaning of “severe psychosocial stressor” as elaborated in decisions such as White v Repatriation Commission [2004] FCA 633 and Re Williamson and Repatriation Commission [2004] AATA 1185. The Tribunal accepts without hesitation that the applicant suffers from an anxiety disorder but for military compensation purposes, there must be a sufficient or requisite degree of severity of impact of this condition on the applicant within the parameters delineated by the SoP. The analysis of the Tribunal suggests that this is not demonstrated on the evidence before it. For these reasons, the Tribunal determined that the circumstances of the applicant in connection with anxiety disorder did not fit Factors 5(i) and (iv) of the SoP.
The Fourth Deledio Step: Findings of Fact
70. The Tribunal has determined that only the condition of spondylolisthesis “fits” or is consistent with the relevant SoP. Where the Tribunal is not satisfied beyond reasonable doubt that the incapacity or injury of the veteran was not war-caused, then the fourth Deledio step requires the Tribunal 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.
71. Accordingly, the Tribunal is to decide the issue of liability for the applicant’s condition of spondylolisthesis to its reasonable satisfaction in accordance with any SoP issued by the Repatriation Medical Authority or any relevant determinations or declarations under the Act. The relevant SoP has been identified above as Instrument No 15 of 1997.
72. Based on the evidence and material before it, the Tribunal finds that:
A.Mr Richard James Palmer served in the Royal Australian Navy from 31 January 1958 to 25 April 1978.
B.Mr Palmer rendered operational service on various dates from 26 March 1959 to 11 August 1966.
C.Mr Palmer rendered defence service from 7 December 1972 to 25 April 1978.
D.Mr Palmer lodged a claim with the Repatriation Commission on 17 July 2000 for various conditions comprising “back (lumbar), hearing, lungs, anxiety state”.
E.The Repatriation Commission accepted liability in respect of lumbar spondylosis, bilateral sensorineural hearing loss with tinnitus and chronic bronchitis and emphysema.
F.The Repatriation Commission declined to accept liability in respect of adjustment disorder, alcohol dependence or alcohol abuse and spondylolisthesis and spondylosis.
G.Mr Palmer sought review from the Veterans’ Review Board (VRB). On 13 February 2002, the VRB amended the diagnosis concerning lumbar spondylosis by including a diagnosis of spondylolisthesis and spondylosis, affirming the amended decision under review concerning spondylolisthesis and spondylosis, affirming the decision under review concerning adjustment disorder and alcohol dependence of alcohol abuse and set aside the decision under review concerning lumbar spondylosis and substituted its decision that the lumbar spondylosis is war-caused.
H.From the VRB, Mr Palmer appealed to this Tribunal on 2 April 2002.
I.Mr Palmer suffers from lumbar spondylosis and spondylolisthesis and these conditions arose out of his operational service.
J.Mr Palmer previously suffered from alcohol dependence or alcohol abuse which is currently in remission.
K.Mr Palmer suffers from anxiety disorder but this is not war-caused.
The date of effect is 17 April 2000.
Tribunal’s Conclusion
73. Based upon the material before it, and for these Reasons, the Tribunal concludes that the applicant’s condition of spondylolisthesis is war-caused within section 9 of the Veterans’ Entitlements Act 1986. The Tribunal is not satisfied that the applicant’s condition of anxiety disorder is related to his war service. The Tribunal is not satisfied that the applicant’s condition of alcohol dependence or alcohol abuse is presently existing or recurrent.
Tribunal’s Order
74. The Tribunal decides:
(a) to vary the decision of the VRB where it amended the diagnosis concerning lumbar spondylosis by including a diagnosis of spondylolisthesis and spondylolysis by amending that diagnosis to one of spondylolisthesis; and
(b)to vary the diagnosis of the VRB of adjustment disorder to anxiety disorder; and
(c)to affirm the decision of the VRB in relation to denying liability for the conditions of adjustment disorder and alcohol dependence or alcohol abuse; and
(d)to set aside the decision under review concerning spondylolisthesis and spondylosis and substitutes its decision that the condition of spondylolisthesis is war-caused; and
(e) the date of effect is 17 April 2000.
I certify that the 74 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S C Fisher, Member
Signed: Denise Burton
Administrative AssistantDate of Hearing 15 October 2004
Date of Decision 4 January 2005
Counsel for the Applicant Mr R Clutterbuck
Solicitor for the Applicant Gilshenan and Luton
For the Respondent Mr M Smith, Departmental Advocate
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