Paul Van Draanen and Military Rehabilitation and Compensation Commission

[2014] AATA 880

[2014] AATA 880 

Division	Veterans' Appeals Division
File Number	2013/4901
Re	Paul Van Draanen
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	26 November 2014
Place	Brisbane

The decision under review is set aside.

The Tribunal decides in substitution that the respondent is liable to compensate the applicant for his major depressive disorder condition.

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Senior Member Bernard J McCabe  

CATCHWORDS

COMPENSATION – Accepted diagnosis of applicant’s condition – Dispute as to date of onset – Characterisation of condition as ‘injury’ or ‘disease’ – Medical evidence establishes date of onset in early 1990s – Finding that condition is ‘disease’ – Older legislation applicable – Employment made material contribution to onset of disease – Liability not excluded – Decision under review set aside – Decided in substitution respondent liable to compensate applicant for disease.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A; 5B

Veterans’ Entitlements Act 1986 (Cth)

CASES

Von Stieglitz and Comcare [2010] AATA 263

REASONS FOR DECISION

Senior Member Bernard J McCabe

26 November 2014

1. Mr Paul Van Draanen was diagnosed with major depressive disorder in 2010. He says the condition arose as a consequence of events that occurred in 1990 while he was an officer in the Australian Regular Army. He has sought compensation under the

   
   Safety, Rehabilitation and Compensation Act 1988

   (Cth) (“the Act”). The Military Rehabilitation and Compensation Commission (“the Commission”) has denied liability. It says that if there was a workplace contribution to Mr Van Draanen’s current condition, it came in the form of reasonable administrative action.

2. There is an argument about whether the condition is properly characterised as an injury or disease for the purposes of the Act. There is also a dispute as to the date of onset of the condition which has implications for the Commission’s argument over the reasonable administrative action exclusion. I will explain my conclusions and the reasoning on these points in due course.

   WHAT HAPPENED?

3. Mr Van Draanen enlisted in the Australian Regular Army in 1978. (He had previously served in the New Zealand Army.) He worked in a variety of support and administration roles in the Royal Australian Corps of Transport and was ultimately promoted to the rank of major.

   The reporting process in 1989

4. The applicant was the subject of regular performance appraisals. He received negative feedback in an Evaluation and Development Report completed in September 1989 that had been conducted by his superior at the time, Lt Colonel Hollins. The appraisal suggested (exhibit one at p 74):

   This year he has worked at the minimal acceptable standard with several lapses in performance indicating that he has reached his ceiling rank.

5. The report concluded by saying (exhibit one at p 75) “[h]e has not demonstrated further potential for promotion”. Mr Van Draanen was recommended for a “routine staff appointment” (exhibit one at p 75). He protested against the report (exhibit one at

   
   

   pp 78-84). He alleged the reporting officer was “heavily biased” against him (exhibit one at p 79), and said the reporting officer’s assessment was “negative and emotive”.

   
   

   Mr Hollins refused to change the report (exhibit one at p 85) and it was formally accepted in the Annual Career Assessment report dated 1 February 1990: exhibit one

   
   

   at p 89. I note the report acknowledged a “personality clash” between Mr Van Draanen and his reporting officer.

6. Brigadier Hartley of the Office of the Military Secretary wrote to Mr Van Draanen on

   
   

   4 December 1989 (exhibit one at p 86). Mr Hartley said it was most unlikely the applicant would be promoted beyond the rank he had attained, and that he should expect to retire as a major when he reached the statutory retirement age for officers holding that rank.

7. Mr Van Draanen said in his evidence he was untroubled by the formal advice from the Army that he had reached his terminal rank. He explained he wanted to remain in Brisbane for personal reasons: his son was undertaking schooling here, and he had commenced a relationship. He said a promotion would take him away, most likely to Canberra – and he did not want that. He insisted he was happy to serve out his time as a major in a staff posting in the Brisbane area. He denied he was troubled by the letter, although I note he was clearly agitated by the negative comments in the appraisal that preceded (and may have informed) the decision to advise him he should not expect further promotion.

8. Ms Van de Hoef, the applicant’s partner at the time, gave evidence at the hearing. She confirmed in cross-examination the applicant was not troubled by the news in late 1989 that he was unlikely to be promoted. She said she had the impression he was happy being a major and accepted he would remain at that rank. I note the relationship ended unhappily in mid-1990 when the applicant’s behaviour changed dramatically:

   
   

   Ms Van de Hoef said her relationship with Mr Van Draanen had been “very loving and stable” (exhibit one at p 178) before he was posted to Victoria Barracks in 1990, but that all changed shortly after the beginning of the year.

   Mr Van Draanen comes into contact with Lt Colonel Goldman

9. The applicant took up a posting at Victoria Barracks at the end of January 1990 (see the applicant’s statement in exhibit one at p 172). He was a Staff Officer Grade 2. His office provided personnel services to all the soldiers in Queensland. He was one of several majors in the office, and effectively second in command. His immediate superior officer was Lt Colonel Goldman.  Mr Van Draanen said Mr Goldman made his dislike for him clear from the start of their relationship. In his statement (exhibit one at p 172),

   
   

   Mr Van Draanen said “my first interview and briefing with him was very distant and brusque”. The relationship went downhill from there, I was told.

10. Mr Van Draanen explained in his statement (exhibit one at p 173):

    Over the period of my time with Lieutenant Colonel Goldman, I recall continued criticisms, sniping, and loud verbal abuse, within the hearing of my subordinates. I was exposed virtually to daily embarrassment and humiliation.

11. In his oral evidence, the applicant explained Mr Goldman would routinely bawl,

    
    

    “Van Draanen! Get in here!” from his office whenever he wanted to speak with the applicant. Mr Van Draanen explained – and I accept – there is an established practice of officers in the Australian Regular Army addressing their subordinates by their first names, or by their rank. Referring to a subordinate by his or her last name alone would, at a minimum, indicate the individual was in trouble. In most cases, it would be regarded as discourteous. I was told it would be particularly remarkable for a senior officer to refer to an officer of Mr Van Draanen’s rank in this way in front of other, more junior officers and staff. Even Mr Goldman acknowledged the convention – and he insisted in his evidence that he abided by it.

12. Mr Van Draanen appeared to qualify some of his complaints under cross-examination. He agreed he did not recall Mr Goldman saying in his presence that he (Mr Goldman) threatened “to get rid of me” as alleged in the applicant’s statement: exhibit one at p 173. But Mr Van Draanen stood by the bulk of his claim that he was the subject of bullying and harassment at the hands of his superior officer during 1990.

13. There was also some evidence provided by friends and colleagues of Mr Van Draanen. Mr Archer recalled visiting the applicant in his office one afternoon when a senior officer appeared at the door. Mr Archer said the officer – whom he subsequently realised was Mr Goldman – did not acknowledge him but referred to some work he required the applicant to perform. The applicant said he was late for a touch football game. There was a heated exchange which concluded with the senior officer instructing the applicant to “do as you’re fucking told”. I note Mr Archer did not include the expletive when he recounted the incident in his statement (exhibit one at pp 188-90); when asked about that during cross-examination, he said he was circumspect about using bad language.

    
    

    He added he felt very uncomfortable witnessing such a heated exchange.

14. Other witnesses gave evidence as to Mr Goldman’s use of bad language. Mr Wild said he recalled the applicant interrupting Mr Goldman in the officers’ mess with news of a telephone call. Mr Goldman became exasperated and instructed the applicant to “either deal with the matter yourself or tell [the caller] to fuck off”. Mr Wild recalled in his statement (exhibit 4) that Mr Goldman freely shared his negative assessment of

    
    

    Mr Van Draanen on that occasion, which Mr Wild thought was unprofessional and offensive (exhibit 4 at p 2). He agreed in cross-examination he could not be sure when this occurred.

15. I was provided with evidence from several other witnesses who did not directly observe the interaction between Mr Van Draanen and Mr Goldman. Mr Weiland, for example, offered a negative character assessment of Mr Goldman (exhibit 8): Mr Weiland said his fellow officer was capable of aggressive outbursts. (The two men had clashed in the past.) Mr Sanders gave evidence to similar effect: exhibit one at p 182. Mr Searl also spoke of Mr Goldman being a difficult, abrasive and bad-tempered officer: exhibit one

    
    

    at p 185. Mr Searl recalled a discussion with Mr Van Draanen in 1990 in which

    
    

    Mr Van Draanen revealed he was planning to leave the Army. Mr Searl said he was told (exhibit one at p 186):

    His reasons involved disappointment with the way his career was proceeding. He did not expressly mention Lt Col Goldman, but I assumed that he was having serious difficulties with his boss.

16. After all the evidence of Mr Goldman’s capacity for aggressive and abusive behaviour and his animosity towards Mr Van Draanen, it was obviously important to hear from

    
    

    Mr Goldman. He gave evidence at the hearing and provided a statement (exhibit 11).

    
    

    He had recently undergone a medical procedure, and appeared to be in some discomfort. He presented as a calm individual who spoke in a precise and measured tone.

17. Mr Goldman said in his oral evidence he did not know Mr Van Draanen before the two of them worked together in 1990. Mr Goldman said he was unaware of

    
    

    Mr Van Draanen’s reputation, and he had not seen Mr Van Draanen’s previous Evaluation and Development Reports. He said the Evaluation and Development Report he completed in September 1990 (exhibit one at pp 90-103) was the worst report he had ever completed: he said it was the only time he had ever checked the box indicating he did “Not Want” an officer working for him (see exhibit one at p 100).

18. He denied that he bullied and harassed Mr Van Draanen. He denied in particular that he routinely referred to the applicant using his surname in a discourteous way, or that he berated him in front of subordinates. He accepted he may have used direct language during counselling sessions, but denied that it was inappropriate to do so. He did not recall the incident described by Mr Archer and rejected the suggestion he had clashed with Mr Weiland. He did not recollect several other incidents that did not involve

    
    

    Mr Van Draanen which were put against him, including an altercation he supposedly had in the officers’ mess with another individual. He did recall an incident during a sporting tournament where he had come to blows with a player but explained that was a lapse which was understandable given the circumstances. (I was told the other antagonist had behaved badly towards one of the female players on Mr Goldman’s team.)

19. Importantly, Mr Goldman agreed in cross-examination that he did refer to the

    
    

    “Peter Principle” in connection with Mr Van Draanen in the officers’ mess in front of subordinates. That incident had been described earlier by Mr Wild. Mr Goldman agreed that was an unprofessional lapse. I am satisfied this evidence tends to confirm the claim Mr Goldman held the applicant in a measure of contempt, and that he was prepared to let that contempt show.

20. The evidence of Mr Wild and Mr Archer in particular tends to confirm

    
    

    Mr Van Draanen’s account of an abrasive relationship between the applicant and

    
    

    Mr Goldman. Mr Wild and Mr Archer were credible witnesses. Mr Goldman did not recollect a number of the incidents that were described, and he conceded that at least one of them occurred. I accept he honestly did not perceive he had engaged in bullying behaviour, but I am satisfied the preponderance of the evidence establishes

    
    

    Mr Van Draanen was experiencing undue stress at work at the hands of Mr Goldman during the course of 1990.

    The reporting process in 1990

21. Mr Searl’s evidence (that the applicant experienced “disappointment with the way his career was proceeding” in 1990) tends to confirm Mr Van Draanen was aware the Evaluation and Development Report due at the end of 1990 was likely to be critical to his future. That must have been clear after the poor report he had received from Mr Hollins the preceding year. The consequences of further bad reports were spelled out by

    
    

    Colonel Fowles, the Head of Corps, on 14 September 1990. Mr Fowles recorded in his notes (exhibit one at p 104) that he:

    Advised [the applicant] to lift his game significantly if he wants to remain in Bne or even in the Army. He continues to blame RO/SRO for his reporting history – everyone but himself. Told him that his 1990 EDRO will be critical for his future….His aim seems to be to remain in Army as long as possible….

22. Those notes confirm the applicant was under significant pressure in relation to his performance. Even if he did not expect promotion, Mr Fowles’s remarks make it clear there was a serious question over whether Mr Van Draanen would be allowed to achieve his stated aim of remaining in the Army in a Brisbane posting. But the note also tends to confirm the Army was aware Mr Van Draanen was experiencing personal difficulty with Mr Goldman even before the next report was completed.

23. Mr Goldman completed the Evaluation and Development Report with respect to the applicant on 24 September 1990. The report was very critical of Mr Van Draanen’s performance and qualities. It suggested the applicant was unable to discharge his duties “in either an effective or efficient manner” (exhibit one at p 100). The report went on to note (exhibit one at p 100):

    The officer has frequently been counselled and admonished and invariably responds in an unhealthy and defensive manner. He is reactive rather than proactive and still does not fully appreciate the breadth and consequences of his responsibilities. His work frequently requires checking and amending and I find myself in the personally unique position of not trusting a subordinate officer. He fails to appreciate that counselling is designed to benefit him.

24. The report also included the observation (exhibit one at p 102) that: “It is my belief that the officer would best serve his own interests by seeking employment away from the Services.”

25. Mr Van Draanen made submissions dated 2 November 1990 with respect to the report. He said (exhibit one at p 107):

    It is my belief that this report is more a reflection of a personality clash between myself and Lieutenant Colonel Goldman than an accurate assessment of my work performance during the seven month assessment period. The fact that the Reporting Officer has little respect or liking for me has been evident from the time I took up the posting of Staff Officer Grade 2 – P4. From the beginning he has spoken to me infrequently and has not to date, for example, briefed me on any occasion when he has been away from the Headquarters. This lack of communication and the Reporting Officer’s terse and brusque manner have brought about a conflict of personalities. It is my view this conflict has resulted in an unfair and inaccurate report.

26. Colonel Hunter from the Office of the Military Secretary wrote to Mr Van Draanen on

    
    

    2 November 1990. The letter referred to the poor report in 1989 and underlined the importance of receiving a better report in 1990 – an outcome which the applicant must have realised was unlikely. The letter went on to suggest it was unlikely Mr Van Draanen would be favoured with appointments in Brisbane after December 1991, although even that outcome was said to be “subject to you producing satisfactory results”.

27. Brigadier Harris wrote a minute to Mr Van Draanen on 22 November 1990 advising that the report completed by Mr Goldman would stand: exhibit one at pp 115-116.

    
    

    The minute concluded with the following response to Mr Van Draanen’s allegation of a personality clash leading to bias (exhibit one at p 116):

    Finally, in regard to the alleged personality clash between yourself and LTCOL Goldman, I have spoken with LTCOL Goldman and directed that this not be an influencing factor in the preparation of your next EDRO. This should not be construed that the alleged personality clash was an influencing factor in the preparation by LTCOL Goldman of [the report dated 24 September 1990].

28. It was a limp response, but Mr Harris did not leave it at that. He arranged for

    
    

    Mr Van Draanen to be posted to a new role in Brisbane under the command of

    
    

    Lt Colonel Jones. In a minute dated 4 December 1990 (exhibit one at pp 117-118),

    
    

    Mr Harris instructed Mr Jones to provide additional counselling and support for

    
    

    Mr Van Draanen. Mr Jones was also instructed that he was to complete a special Evaluation and Development Report at the end of March 1991.

29. That report was completed and dated 5 June 1991: exhibit one at pp 119 ff. Mr Jones acknowledged the applicant had “tried hard” (at p 128) but the overall report was negative. Lt Colonel Tracey, who reviewed the report on 20 June 1991, concluded

    
    

    Mr Van Draanen’s performance had not improved to the point that his retention in the military was justified. Mr Tracey recommended the applicant’s appointment be terminated (at p 132), and Mr Van Draanen tendered his resignation on 19 July 1991. That resignation took effect on 24 January 1993 following a period of leave.

    The claims for compensation foreshadowed at the time of discharge

30. Mr Van Draanen’s medical discharge documents do not refer to a psychiatric complaint or other evidence of depression or anxiety or emotional difficulties. The applicant did complete a claim for disability pension and medical treatment on 18 October 1991 foreshadowing compensation claims in respect of various physical conditions at the time (see exhibit one, pp 136ff), but there was no mention of psychiatric claims.
    He subsequently made claims under the Veterans’ Entitlements Act 1986 (Cth) in respect of his various physical complaints: the assessment documentation relating to those claims include reports dated 4 July 2007 (exhibit one at pp 144ff) and 28 July 2010 (exhibit one at pp 157ff). The first claim in respect of a psychiatric condition was made on
    15 December 2011 (exhibit one at pp 18ff). The applicant said he was suffering from major depressive disorder as a consequence of the behaviour of his superior officer.
    (In his statement accompanying that form, Mr Van Draanen inexplicably alleged he remained under the supervision of Mr Goldman for 15 months, but that was inaccurate.)

    The medical evidence

31. Mr Van Draanen was referred to Dr Hargreaves, a consultant psychiatrist, who saw him on 16 July 2010 (see exhibit 7 at pp 1-8). In his report dated 16 August 2012,
    Dr Hargreaves confirmed he began treating the applicant for major depressive disorder in July 2010 (see exhibit one at p 40), and concluded the condition was directly referable to the applicant’s treatment while in the military (see exhibit one at pp 38-39).
    Dr Hargreaves said the applicant had been depressed since 1990, although in his oral evidence Dr Hargreaves said the applicant had been continuously depressed since 1991. (I note the applicant attributed whatever poor performance observed in 1991 to the fact he was already depressed. His performance was inhibited as a consequence, he said.)
    In his oral evidence, Dr Hargreaves confirmed his view that a diagnosis could have been made by the early 1990s. He said he was not aware of any other facts or circumstances that might have been factors in the onset of the condition.

1. Mr Clark, who appeared for the Commission, questioned Dr Hargreaves in some detail about the history Mr Van Draanen had provided. Dr Hargreaves recalled
   Mr Van Draanen had said the bad reports prepared by Mr Goldman had come out of the blue. That is not what happened, as I have explained. But Dr Hargreaves held fast in his evidence that the date of onset was in the early 1990s, and that symptoms had been apparent as early as 1990. I note Mr Van Draanen’s partner in 1990, Ms Van de Hoef, also reported dysfunctional behaviour at the time which led to the breakdown of their relationship. That evidence is consistent with that of Mr Van Draanen and
   Dr Hargreaves. I also note other witnesses (e.g., Mr Searl, in the course of his oral evidence) spoke of Mr Van Draanen’s obsessive and apparently dysfunctional focus on Mr Goldman’s behaviour in the years that followed.

2. The Commission accepts the diagnosis of major depressive disorder but says there is no record of the applicant seeking medical assistance with respect to depression or emotional problems before he was referred to Dr Hargreaves. It says the date of onset of the condition was in 2010, when Mr Van Draanen first sought treatment.

3. While Mr Clark managed to identify some shortcomings in the history that was provided to Dr Hargreaves, the doctor did not resile from his opinion. His view that symptoms were in evidence from the early 1990s is supported by other witnesses. I accept there is no other record in the medical evidence suggesting the applicant had sought assistance for psychiatric issues prior to 2010, but Dr Hargreaves opined that was not uncommon for individuals like Mr Van Draanen who did not have the insight to recognise the source of their problems. I think I am constrained to accept Dr Hargreaves’s evidence as to diagnosis and date of onset in circumstances where it is plausible, and has not been contradicted by an alternative medical explanation.

   THE LAW AND ITS APPLICATION

4. The applicant’s major depressive disorder pre-dates the amendments to the Act in 2007. Those amendments effectively excluded liability where the condition in question – whether an “injury” simplicter, or a “disease”, was partly or wholly the product of reasonable administrative action. It follows I must have regard to the Act as it was before the amendments were made.  

5. The pre-amendment definition of injury in s 4 provided:

   A disease suffered by an employee; or

   An injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment;…

   …but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment[.]

6. The pre-amendment definition of disease referred to an ailment “that was contributed to in a material degree by the employee’s employment”.

7. Two observations can be made about these provisions compared to the post-2007 amendments. Firstly, the post-2007 provision requires that the disease – if that is what we are talking about – is only compensable where the employment made a significant contribution to the condition: s 5B. Under the old law, one need only identify a material contribution from employment. The second important difference is the expansion in 2007 of the exclusionary provision. The old provision was narrowly drawn to cover reasonable disciplinary action and the loss of benefits: s 5A of the current Act refers to the broader concept of reasonable administrative action.

8. Mr Anforth, for the applicant, urged me to accept the condition in this case amounted to a mental injury rather than a disease.  He urged me not to follow the reasoning of the Tribunal in Von Stieglitz and Comcare [2010] AATA 263. In that case, the Tribunal concluded an adjustment disorder with symptoms of anxiety and depression was properly regarded as a disease. SM Creyke and Dr Miller explained (at [23]):

   …an ‘injury’ may be either a ‘physical or a mental injury’. This secondary meaning of 'injury' is much narrower and in this context, 'injury' bears its well-established common law meaning as discussed in Comcare v Etheridge of 'a sudden or identifiable physiological change including a change internal to the body'. Given the conjunction of ‘physical’ with ‘mental’ in the expression ‘physical or mental injury’, there is no reason to doubt that ‘injury’ bears this meaning in relation to both kinds of injury. This interpretation has the effect of limiting ‘mental injury’ to conditions involving sudden or identifiable physiological change to the mind, such as an epileptic fit. That leaves mental disorders which are not due to physiological change but are psychological in nature to be covered by the definition of ‘disease’.

   [Original footnotes omitted.]

9. That reasoning makes sense to me. It suggests the condition in question is properly regarded as a disease. I am satisfied in light of the evidence from Dr Hargreaves and the other witnesses I have discussed that the applicant’s employment – specifically, his troubled interactions with Mr Goldman – made a material contribution to the onset of his disease.

10. I do not think the narrowly drawn exclusion in the pre-2007 legislation assists the Commission. The evidence from Mr Van Draanen, which was supported by the evidence from Ms Van de Hoef, confirms he was not upset at the prospect of never being promoted. He had not been denied a transfer or other benefit during the course of 1990 (although he may well have been denied a benefit – namely, a continued posting in Brisbane – if he had remained in the Army over the longer term). The pre-2007 legislation excludes reasonable disciplinary action, but that does not describe the nature of the interactions between Mr Van Draanen and Mr Goldman which gave rise to the applicant’s condition. Mr Van Draanen was certainly the subject of administrative action within the meaning of s 5A of the current Act, but that exemption did not apply before 2007. In those circumstances, I do not need to grapple with the question of whether the action in question was reasonable.

    CONCLUSION

11. Mr Van Draanen’s employment made a material contribution to the onset of his major depressive disorder which developed in 1990 or 1991 and was finally diagnosed in 2010. The decision under review is therefore set aside. I decide in substitution that the Commission is liable to compensate the applicant for his major depressive disorder condition.

I certify that the preceding 42 (forty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

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Associate

Dated 26 November 2014

Dates of hearing	15-17 September 2014
Counsel for the Applicant	Mr A Anforth
Solicitors for the Applicant	Watt & Severin Solicitors
Counsel for the Respondent	Mr C Clark
Solicitors for the Respondent	DibbsBarker