Patterson and Repatriation Commission
[2006] AATA 994
•23 November 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 994
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2005/524
VETERANS’ APPEALS DIVISION ) Re ROBIN PATTERSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date23 November 2006
PlaceMelbourne
Decision The decision under review is affirmed. ..............................................
Senior Member
VETERANS’ AFFAIRS – Vietnam service – applicant remained enlisted until 1989 – then engaged in short term contracts overseas with humanitarian agencies – whether he suffers from generalised anxiety disorder by service – not satisfied of diagnosis or any other illness – decision affirmed
Statement of Principles Instrument No 1
Benjamin v Repatriation Commission (2001) 34 AAR 270
REASONS FOR DECISION
23 November 2006 Mr John Handley, Senior Member 1. This is an application brought by a former member of the Australian Army seeking to have the condition of generalised anxiety disorder (GAD) accepted as war‑caused. The only issue in dispute is whether the applicant does suffer that condition.
2. Mr Patterson, the applicant in these proceedings, was a member of the Australian Army between April 1967 and August 1989. He completed secondary education and initially obtained employment as a bank officer. Shortly after his enlistment he commenced officer training at Portsea and achieved the rank of Second Lieutenant. After a short period of service in army warehouses in Brisbane, he was posted to Vietnam in November 1970 where he served until October 1971. He was stationed at Vung Tau and was responsible for the management of a number of warehouses and the distribution of weapons and technical equipment. He was also responsible for approximately 40 staff comprising a Staff Sergeant, a number of soldiers and some Vietnamese staff. He was exposed to a number of upsetting and distressing incidents in Vietnam including learning of the death of a former colleague from Portsea and confronting two other close colleagues who had been seriously wounded in Vietnam. Mr Douglass, who appeared on behalf of the respondent, conceded that these events satisfied the definition of severe psychosocial stressor as found within Statement of Principle No 1 of 2000. However, the diagnosis of GAD remained in issue because it was submitted, on the balance of probabilities, that the applicant did not suffer from it.
3. Upon his return to Australia from Vietnam, the applicant remained a member of the Australian Army until 1989. He then obtained employment as a warehouse manager with Uncle Toby’s in North Eastern Victoria. He held that position for four years but was eventually made redundant. The applicant said that he experienced difficulty with the management of that corporation. He described being in a position of having to undertake “a balancing act between management . . . and looking after my people”.
4. Thereafter the applicant obtained employment under short-term contracts with the Red Cross, CARE and the United Nations – principally being engaged in logistics and distribution of humanitarian aid in Northern Iraq, The Solomons, Bosnia, Kurdistan, and New Guinea. The contracts with the above organisations ended towards the end of 2004 and the applicant has not subsequently worked. He presently receives pension at 70 per cent of the general rate for a number of other injuries and diseases which are not relevant to these proceedings. His ultimate objective is to recover special rate pension.
generalised anxiety disorder
5. This condition (GAD) is defined within paragraph 8 of Instrument No 1 of 2000. Diagnosis is not to be made by reference to a Statement of Principle (refer Benjamin v Repatriation Commission (2001) 34 AAR 270). However the criteria as defined is identical with the diagnostic criteria for GAD found within DSM-IV by diagnostic code number 300.02. That criteria is reproduced as follows:
A. Excessive anxiety and worry (apprehensive expectation), occurring more days than not for at least 6 months, about a number of events or activities (such as work or school performance).
B. The person finds it difficult to control the worry.
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 for the past 6 months). Note: Only one item is required in children.
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. sleep disturbance (difficulty falling or staying asleep, or restless unsatisfying sleep)
D. The focus of the anxiety and worry is not confined to features of an Axis I disorder, e.g., the anxiety or worry is not about having a Panic Attack (as in Panic Disorder), being embarrassed in public (as in Social Phobia), being contaminated (as in Obsessive-Compulsive Disorder), being away from home or close relatives (as in Separation Anxiety Disorder), gaining weight (as in Anorexia Nervosa), having multiple physical complaints (as in Somatization Disorder), or having a serious illness (as in Hypochondriasis), and the anxiety and worry do not occur exclusively during Posttraumatic Stress Disorder.
E. The anxiety, worry, or physical symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
F. The disturbance is not due to the direct physiological effects of a substance (e.g., a drug of abuse, a medication) or a general medical condition (e.g., hyperthyroidism) and does not occur exclusively during a Mood Disorder, a Psychotic Disorder, or a Pervasive Developmental Disorder.
6. The criteria against paragraph E above was the subject of particular attention by Mr Moore who appeared on behalf of the applicant. It was submitted that satisfaction of that part of the criteria required the anxiety, worry or physical symptoms referred to in paragraph C to cause either clinically significant distress or impairment in social, occupational or other important areas of functioning. That is to say, both clinically significant distress and impairment in social, occupational and other important areas of functioning do not need to be satisfied. Mr Douglass in response pointed to the definition of “clinically significant” as also appearing within paragraph 8 of the Instrument. (It is defined as “sufficient to warrant ongoing management by a psychiatrist, clinical psychologist or General Practitioner”). However, to the extent that it purports to form part of the diagnostic criteria, I confess that I can find no reference to a definition of those exact words in DSM‑IV except in the commentary under the sub-heading of “Diagnostic features” (of GAD) the following appears:
Although individuals with Generalized Anxiety Disorder may not always identify the worries as "excessive," they report subjective distress due to constant worry, have difficulty controlling the worry, or experience related impairment in social, occupational, or other important areas of functioning (Criterion E).
Later, under the sub-heading of “Differential Diagnosis”, the following appears:
Several features distinguish Generalized Anxiety Disorder from nonpathological anxiety. First, the worries associated with Generalized Anxiety Disorder are difficult to control and typically interfere significantly with functioning, whereas the worries of everyday life are perceived as more controllable and can be put off until later. Second, the worries associated with Generalized Anxiety Disorder are more pervasive, pronounced, distressing, and of longer duration and frequently occur without precipitants. The more life circumstances about which a person worries excessively (finances, children's safety, job performance, car repairs), the more likely the diagnosis. Third, everyday worries are much less likely to be accompanied by physical symptoms (e.g., excessive fatigue, restlessness, feeling keyed up or on edge, irritability), although this is less true of children.
7. I would also observe at this stage that the clinical features of GAD as found within paragraph 8 of the Instrument are preceded by the words “generalised anxiety disorder means a psychiatric disorder with the following features”. Those words suggest that each of paragraph A to F need to be satisfied. Those words are not found within the diagnostic criteria of DSM-IV. Part of the chapter concerning GAD within DSM-IV contains a reference to the “diagnostic features” of the condition. That part refers to, and describes, parts A to F. The language of that part of the text suggests – without specific indication – that all of parts A to F should be satisfied.
psychiatric evidence
8. Dr Wild examined the applicant on the referral of his general practitioner in April and May 1999. In a report to the respondent of 15 May 1999, he reported that the applicant suffered “relatively minor anxiety symptoms” that did not meet the diagnostic criteria for GAD. Dr Wild did not give evidence in these proceedings.
9. Dr Strauss examined the applicant in May 2006 and prepared a report which was received into evidence. He did give evidence in these proceedings. He reported that the applicant did not have GAD, any other psychiatric condition, nor any psychiatric incapacity.
10. In evidence Dr Strauss said that the applicant did not satisfy the diagnostic criteria for GAD. He said that the applicant did not satisfy criteria A because there was no evidence of the applicant suffering from an excessive anxiety and worry which occurred on more days than not for a continuous period of at least six months. He did acknowledge that the applicant was worried on occasions but not to the degree that would cause him to satisfy criteria B. He said the applicant did experience some of the features found within criteria C – and as did every other member of the community – but the features were not of a pathological level. Criteria E, in his opinion, was not satisfied because the applicant did not suffer clinically significant distress or an impairment in social, occupational or other important areas of functioning.
11. With respect to some comments within his report, Dr Strauss said the applicant’s sleep patterns were not related to any psychiatric disorder and he was not satisfied that the applicant did suffer from any reduced sleep. He did report that the applicant had perfectionist personality traits and in his experience, persons who exhibit those features are often “driven”, “busy”, “are not idle”, “find it difficult to relax” and “are prone to suffering from tension”. Nonetheless, those features are not consistent with a person who suffers from GAD.
12. Dr Strauss was given all of the documents which were received into evidence in these proceedings and read them prior to expressing his opinion. He concluded that if the applicant had suffered from an anxiety disorder whilst a member of the army, it would have been detected by the army medical officers. Additionally, it was his opinion that if the applicant had been anxious when employed by Uncle Toby’s, it would have been observed by his employers. With respect to his employment with Red Cross, Care and United Nations, Dr Strauss was of the opinion that any anxiety suffered by the applicant would have been observed and reported by his supervisors or his peers.
13. Dr Percival consulted the applicant on two occasions – upon referral from his general practitioner ‑ in March and May 2004. He provided four reports which were received into evidence. He concluded that the applicant did suffer from GAD. He concluded that the applicant did suffer from “continuous anxiety and worry” which he found difficult to control, thereby satisfying criteria A and B. He thought that the anxiety and worry were associated with muscular tension, excessive fatigue, restlessness and disturbance of sleep thereby satisfying criteria C. Criteria D in his opinion was satisfied because the focus of anxiety and worry was not confined to an axis 1 disorder and criteria E in his opinion was also satisfied because the anxiety, worry and physical symptoms caused significant distress and “to a lesser degree” impairment of social and occupational functioning. Criteria F in his opinion was also satisfied (refer report 5 May 2004, particularly at page 52).
14. Dr Percival was of the opinion that the applicant’s achievements both in the army and subsequently occurred because he had “a good solid personality structure that can function well in spite of his suffering”. He said
A reasonable analogy would be the large number of soldiers who function extremely well in battle whilst confessing they were all the time in the state of sheer terror. The trick is to do your job in spite of your terror and to use that terror at times to aid you in the job. Well, anxiety is no different. An anxious person can function very well if they are a sound effective person. A person who feels very little anxiety at all can function very badly if they have disordered and poor personality structure. I see no contradiction at all between the thing that Mr Patterson has done and the fact that he suffers from generalised anxiety disorder. (transcript p46).
15. Dr Percival was not aware that the applicant had previously been treated by Dr Wild. Additionally, he was not aware of any medical evidence pointing to symptoms of GAD occurring within two years of the conclusion of his operational service.
16. Dr Percival did not have the material that was provided to Dr Strauss nor provided to the Tribunal and received into evidence.
documents received into evidence
17. An appraisal of the applicant completed in October 1969 (T‑documents p292) records him as being “eager and energetic”, “well motivated, not afraid of hard work and is prepared to tackle any job allotted to him and to carry it out with everything he’s got. He works well without supervision and is keen to succeed. An enthusiastic young officer who is doing well”.
18. In December 1969, the applicant is report as being “an intelligent officer with an inquiring mind . . .” (T‑documents p296).
19. The T‑documents refer to a number of assessments which contain a mixture of complimentary assessments with respect to the capacity of the applicant to undertake work and other duties (including descriptions such as “enthusiastic”, “energetic” and “diligent”) but with assessments also made of him being “brusque” and “abrasive”.
20. Immediately prior to the applicant’s discharge from the army, he completed a medical history questionnaire and was examined by service doctors. In a report of 26 June 1989 (T‑documents p15), the applicant volunteered that he suffered from severe depression. A medical officer has recorded against that disclosure “depression from personal marital matter”.
21. An appraisal of the applicant completed by a supervisor within Red Cross with respect to a period of service between July and August 1999 records the applicant as being “a pleasant, joyful collaborator with a good sense of humour that makes him a good team member”. Additionally it was recorded that he would be recommended for another contract with the Red Cross.
22. The applicant was engaged in service with both the Red Cross and with CARE in locations where he was exposed to risk and a degree of insecurity prevailed. For example, in a report of 2 September 1999, a debriefing report was completed with respect to the applicant’s service in the Solomon Islands. The “general security” was described as “very fragile at the moment”.
23. A memorandum completed by an officer of CARE dated 14 December 1997 refers to the applicant’s experiences in Papua New Guinea. References were made to the applicant’s weakness in relationships with other staff and a propensity to pursue his own view of what is required in the absence of clear instructions. Yet discussions with the applicant record that he understood “the sensitivities involved in PNG and the unique dangers inherent in the current situation”. His responses to these issues was “positive”. It is also recorded “the Kurdistan experience was a pretty emotional time for him”.
conclusion and reasons for decision
24. I observed the applicant give his evidence for approximately one and a half hours in Shepparton. He impressed me as a person who was a very diligent, hardworking and conscientious person. I was also impressed that he performed meritorious service in humanitarian and aid organizations after his discharge from the Army.
25. The applicant served in Vietnam, and whilst he was largely confined to the Ordinance Depot at Vung Tau, he was exposed to some distressing episodes when he learnt of the death of a former colleague and observed the injuries suffered by two other colleagues. With CARE and Red Cross, he served in locations where he would have been at some risk, being Northern Iraq, The Solomons, Bosnia, Kurdistan and New Guinea.
26. There is no report within the multitude of documents lodged in these proceedings of any anxiety suffered by the applicant whilst in Vietnam or at all until the medical examination immediately prior to his discharge in 1989 some 17 years later. The record then of severe depression appears to be of that condition then being experienced because the medical officer has reported that the depression was by reason of a “personal marital matter”. The applicant described that medical assessment as being “a farce”, yet when he was asked in cross-examination why – if he suffered anxiety by reason of service – it was not disclosed, the applicant said “at that stage in my life all I wanted to do was get out of the army”. In my view that explanation is difficult to comprehend because 16 other illnesses or injuries were disclosed which caused the medical officer to record a number of comments. Disclosure of so many illnesses and injuries – they being all recorded – is inconsistent in my view with someone who “wanted . . . to get out of the army”. The explanation with respect to the cause of the depression then being experienced is more likely to be truthful because of its contemporaneous nature. Having regard to the multitude of other illnesses and injuries disclosed by the applicant, if he was of the belief in 1989 that he then suffered anxiety associated with his service in Vietnam, I would have expected that it would have been disclosed.
27. Dr Wild treated the applicant when litigation was not then in contemplation. The treatment arose out of a referral by the applicant’s general practitioner. A diagnosis of GAD was not then made. The only finding made by Dr Wild which remotely points to an anxiety type illness is the comment on the last page that the applicant “suffers relatively minor anxiety symptoms that do not greatly impair his lifestyle or constitute a disability”.
28. Between 1989 and 1999 (when Dr Wild was treating), the applicant had been engaged in service with CARE, Red Cross and United Nations. He served in locations described earlier. The reports on file refer to a person who demonstrated leadership, was confident, enthusiastic and diligent. There were references as to his manner on occasions of executing some of his duties and to his relationship with others. None of them, in my view points to a person who was suffering from an anxiety disorder.
29. Dr Percival referred to the ability of persons to conceal or mask symptoms of anxiety. However, in my view it is most unlikely that between 1972 and the present time – 34 years later – that symptoms of GAD would not have been observed by others. The applicant did not cease employment with Uncle Toby’s by reason of GAD or any other illness. He was selected for a number of short-term contracts with humanitarian and aid organizations to serve in volatile areas overseas. That type of service – together with the remainder of his service in the army between 1972 and 1989 – is inconsistent in my view of a person who suffered from GAD. As referred to above, the only reference to anxiety type symptoms is the disclosure by the applicant and the reporting by a medical officer in 1989 that he suffered from severe depression but associated with his marital difficulties.
30. On that issue, the applicant said that his marriage commenced to deteriorate after he returned from Vietnam. But his marriage did continue for many years and another three children were born. The applicant said that an explanation for the continued duration of his marriage was him seeking and obtaining postings away from home. That may explain the continuity of his marriage but does not in my view point to the applicant suffering from anxiety symptoms.
31. I am not satisfied on what has been heard and read in these proceedings that the applicant does satisfy the diagnostic criteria for GAD. On balance, I am not satisfied that the applicant does suffer from excessive anxiety and worry. His symptoms, as described by him and his wife, do fall within criteria C but as referred to by Dr Strauss in his evidence, the level and frequency of those symptoms were not pathological and were consistent with symptoms experienced by many other members of the community. Additionally, there is nothing which points to those symptoms being present for more days than not during “the previous six month period”. Additionally, I cannot be satisfied on the evidence heard and read that the “anxiety, worry or physical symptoms” as found within criteria C have caused the applicant “clinically significant distress or impairment in social, occupational or other important areas of functioning”, consistent with criteria E or the Commentary referred to in paragraph 6 earlier in these reasons.
32. The applicant has apparently chosen to cease employment and in recent years has been writing an autobiography which he intends to publish. It may be that he has reflected on his life events whilst completing the memoir which may have recently caused some symptoms to occur or emerge. But even if that was an explanation for the presence, now, of symptoms, it would not explain or satisfy the remaining part of factor 5(a)(ii) with respect to experiencing a severe psychosocial stressor within two years before the clinical onset of anxiety disorder. That period of time would have elapsed in 1973 and for the reasons given above, I am not satisfied that the applicant did suffer GAD before that time. For the reasons given above I am not satisfied that the applicant has at any time, including the present, suffered from GAD. Additionally, there was nothing heard or submitted by reports that would point to any other diagnosis.
33. I acknowledge that Dr Percival who supported the applicant’s case did treat him, did consult with him on two occasions and apparently developed a rapport. However he was denied the opportunity to consider a number of documents which were made available to Dr Strauss. I think the opinions expressed by Dr Strauss – and by Dr Wild – are sound and are to be preferred.
34. The decision under review is affirmed.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior MemberSigned: .....................................................................................
Personal AssistantDates of Hearing 26 October and 14 November 2006
Date of Decision 23 November 2006
Counsel for the Applicant Mr G Moore
Solicitor for the Applicant Williams Winter
Departmental Advocate Robert Douglas
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