Phillip Bagnall and Repatriation Commission
[2012] AATA 720
•17 October 2012
[2012] AATA 720
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/4121
Re
Phillip Bagnall
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Member Dr I S AlexanderDate 17 October 2012 Place Sydney The decision under review is affirmed.
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Senior Member A K Britton
CATCHWORDS
VETERANS' ENTITLEMENTS — pensions — anxiety disorder not otherwise specified — whether defence–caused — date of clinical onset — whether experienced a category 2 stressor — serious physical disability — chronic pain — no link to service
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 70, 120(4), 120 B(3),196B(14),
CASES
Lees v Repatriation Commission (2002) 125 FCR 331; [2002] FCAFC 398
SECONDARY MATERIALS
Statement of Principles concerning Anxiety Disorder No.102 of 2007
REASONS FOR DECISION
Senior Member A K Britton
Member Dr I S Alexander
Mr Phillip Bagnall applies for review of the decision made by the Repatriation Commission, affirmed by the Veterans’ Review Board, to refuse his claim for pension for incapacity from anxiety disorder. The stated reason for that decision was that Mr Bagnall’s anxiety disorder was not “defence–caused”. The Commonwealth will be liable to pay a pension by way of compensation to Mr Bagnall in respect of his anxiety disorder if he is incapacitated from a “defence–caused injury or defence–caused disease” (s 70 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”).
Mr Bagnall served in the Australian Army from January 1969 to 1974. His period of service between 7 December 1972 to 28 March 1974 constitutes “defence service”.
It is agreed that Mr Bagnall suffers from an anxiety disorder. The sole issue in dispute is whether that condition was “defence–caused”. That issue must be determined to our reasonable satisfaction (s 120(4) of the Act). Neither party bears an onus of proving any matter that is, or might be, relevant to that issue (s 120(4) of the Act).
Was Mr Bagnall’s anxiety disorder defence–caused?
Section 120B(3) provides:
In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person …was … defence-caused only if:
(a) the material before the Commission raises a connection between the injury, disease … of the person and some particular service rendered by the person; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease … of the person is, on the balance of probabilities, connected with that service.
There is no argument that there is in force a relevant Statement of Principles determined under s 196B(3), namely the “Statement of Principles concerning Anxiety Disorder No.102 of 2007” (the SoP) and, that Mr Bagnall’s condition constitutes an “anxiety disorder” for the purpose of that SoP.
At least one of the factors listed in cl 6 of the SoP must exist before it can be said that, on the balance of probabilities, Mr Bagnall’s anxiety disorder is connected with the circumstances of his relevant service (cl 5 of the SoP). Mr Bagnall relies on cl 6(a)(iv),(vi) and (viii):
(iv) experiencing a category 2 stressor within the six months before the clinical onset of anxiety disorder;
(vi) having a medical illness or injury which is life-threatening or which results in serious physical or cognitive disability, within the two years before the clinical onset of anxiety disorder; or
(viii) having chronic pain of at least six months duration at the time of the clinical onset of anxiety disorder.
Date of clinical onset
Central to each of the factors relied upon by Mr Bagnall is the date of clinical onset of his anxiety disorder. It is settled that there is “clinical onset” of a disease, when a person becomes aware of some features or symptoms which enable a doctor to say that the disease was present at that time, or a finding is made on investigation which is indicative to a doctor that the disease is present: Lees v Repatriation Commission (2002) 125 FCR 331, [13].
Mr Bagnall has been assessed by psychiatrists Drs Anthony Dinnen and Robert Kaplan for the purpose of his claim. Each prepared reports for, and gave oral evidence in, these proceedings. Each holds the opinion that clinical onset of Mr Bagnall’s anxiety disorder occurred in or around the mid-1990’s when he first sought treatment for anxiety. Their opinion is uncontradicted and consistent with the evidence Mr Bagnall gave to the Tribunal and the history he gave to each expert. We accept the experts’ opinion on this issue.
Did Mr Bagnall experience a category 2 stressor within the six months before the clinical onset of anxiety disorder?
A category 2 stressor is defined by cl 9 of the SoP to mean one or more of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry:
(a) being socially isolated and unable to maintain friendships or family relationships, due to physical location, language barriers, disability, or medical or psychiatric illness;
(b) experiencing a problem with a long-term relationship including: the break-up of a close personal relationship, the need for marital or relationship counselling, marital separation, or divorce;
(c) having concerns in the work or school environment including: on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful work loads, or experiencing bullying in the workplace or school environment;
(d) experiencing serious legal issues including: being detained or held in custody, on-going involvement with the police concerning violations of the law, or court appearances associated with personal legal problems;
(e) having severe financial hardship including: loss of employment, long periods of unemployment, foreclosure on a property, or bankruptcy;
(f) having a family member or significant other experience a major deterioration in their health; or
(g) being a full-time caregiver to a family member or significant other with a severe physical, mental or developmental disability.
Mr Bagnall testified that he has suffered from anxiety “for at least the past 35 years”. There is no evidence that he experienced any of the events listed above in or around the mid-1990’s. It follows that cl 6(a)(iv) has no application.
Did Mr Bagnall have a medical illness or injury which was life-threatening or which resulted in serious physical or cognitive disability, within the two years before the clinical onset of anxiety disorder?
There is no evidence that Mr Bagnall suffered from a medical illness or injury which was “life-threatening” or which resulted in “serious cognitive disability”. Nor does the evidence support a finding that he suffered from a “serious physical disability” within the relevant period — two years before the clinical onset of anxiety disorder — which for present purposes, we will treat as being, 1990 to 1995. At its highest Mr Bagnall’s evidence is that throughout this period he suffered from chronic pain but continued to work full-time (or the equivalent) performing physically demanding work. That evidence is inconsistent with a finding that he suffered from a serious physical disability throughout the relevant period.
Therefore cl 6(a)(vi) does not apply.
Did MrBagnall have chronic pain of at least six months duration at the time of the clinical onset of anxiety disorder?
“Chronic pain” is defined by the SoP to mean “continuous or almost continuous pain, which may or may not be ameliorated by analgesic medication and which is of a level to cause interference with usual work or leisure activities or activities of daily living”.
For broadly the same reasons given in relation to cl 6(a)(vi), this factor does not assist Mr Bagnall because the evidence does not suggest that he experienced pain to “a level to cause interference with usual work or leisure activities or activities of daily living” for at least six months prior to the date of clinical onset of his anxiety disorder.
Even if the evidence did support such a finding we are unable to be satisfied on balance that this factor was “related to” the service rendered by Mr Bagnall (s 196B(14)). It was contended for Mr Bagnall that his experience of chronic pain was caused, or contributed to, at least in part by his accepted defence–caused conditions, namely lumbar spondylosis and osteoarthritis in both knees. There is no material before us to indicate that either condition pre-dated the onset of Mr Bagnall’s anxiety disorder. Indeed the best evidence is that the accepted back and knee conditions did not develop until 2000 and 2005, respectively.
Having scrutinised the material we are unable to see any other evidence to suggest that the pain experienced by Mr Bagnall between 1990 and 1995 is “related to” the service he rendered.
Conclusion
While we accept that Mr Bagnall suffers from an anxiety disorder on the material before us we are not reasonably satisfied that the condition was “defence–caused”. The decision under review must therefore be affirmed.
18.
19. I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton and Member Dr I S Alexander
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Associate
Dated 17 October 2012
Date(s) of hearing 10 October 2012 Solicitors for the Applicant Mr Paul Jones, Legal Aid Commission of NSW Solicitors for the Respondent Mr Ken Rudge, Repatriation Commission
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