Pickering and Repatriation Commission

[2003] AATA 1296

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1296

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/261

VETERANS' APPEALS DIVISION		)
Re		DENYS PICKERING

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member KL Beddoe

Date18 December 2003   

PlaceBrisbane

Decision The Tribunal decides:
(a)      the decision under review is set aside;
(b)      the condition Depressive Disorder is a defence-caused condition;
(c)       the matter is remitted to the respondent for assessment; and
(d)      liberty to apply is reserved to the applicant in the event that the            parties cannot agree on the date of effect.

..................(Sgd).......................

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – disability pension – entitlement – whether applicant’s depressive disorder caused by his war service – reasonable hypothesis established connecting condition with service – decision set aside

Veterans’ Entitlements Act 1986, ss 70, 120A, 120B

REASONS FOR DECISION

18 December 2003  Senior Member KL Beddoe          

1.      By a notice dated 14 March 2001 the respondent refused the applicant’s claim for Depressive Disorder to be accepted as a service-related disability.  By a decision notified on 15 February 2002, the Veterans’ Review Board affirmed that decision.  The applicant then sought review in this Tribunal.

2. At the hearing Mr Griffiths appeared for the applicant and Mr Kelly represented the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the “T” Documents and further documents were tendered as follows:

Exhibit A       Report by Dr Lawford dated 20 February 2002

Exhibit B       Applicant’s statements dated 15 October 2002

3.      Oral evidence was given by the applicant, and Dr Lawford, a Consultant Psychiatrist.

4.      The applicant’s only accepted disability is Tinea.  He is also accepted as eligible for treatment for Depressive Disorder – the condition in issue in these proceedings.

5.      I make the following findings of fact:

(a)      the applicant was born on 31 March 1950 and is now 53 years of age;

(b)he entered the Royal Australian Navy on 12 January 1967 and was discharged on 27 August 1974 at his own request;

(c)he had operational service in South Vietnam on HMAS Brisbane from 16 March 1971 to 11 October 1971;

(d)he also had eligible defence service from 7 December 1972 to 27 August 1974;

(e)the applicant served as an artificer on HMAS Brisbane, being mainly involved on watch-keeping duties in the engine rooms of the ship (including fire rooms);

(f)HMAS Brisbane was employed along the naval gunline providing gunfire support for friendly forces ashore and also adopted other roles while deployed in South Vietnam waters; on one occasion the ship being fired upon while close in-shore;

(g)the applicant was in a relationship with a woman in the years preceding his operational service.  He expected that relationship to be formalised by marriage after his return from operational service, but just before that return he received a letter which he described as a “Dear John” letter and the relationship was terminated upon his return to Australia; and

(h)on discharge the applicant stated that he had the following overseas service on HMAS Brisbane:

Vietnam1971

Hawaii1972

Philippines               1972

Singapore1972

Japan1972

6.      In his written statement (Exhibit B) the applicant sets out alleged fears while on operational service, including that he could not swim and fear of the ship being shot at while it was close in-shore.  He also refers to the breakup of the relationship with his girlfriend and claims that he was suicidal following that breakup.

7.      In his oral evidence he said that the relationship was terminated after he returned to Australia and saw his girlfriend at her place of employment.

8.      After a further romantic interlude the applicant married his wife in June 1973.

9.      In his statement he seems to blame each relationship on the fact of his being in the Navy.

10.     In his statement the applicant also refers to an incident in September 1973 when he was engaged in defence exercises (RIM Pack 73).  The applicant was advised that his wife had been admitted to hospital for exploratory surgery for what was eventually described as a “phantom pregnancy”.

11.     The applicant asserts that he was refused leave to go to Sydney to see his wife in hospital.  He asserts, with reasons, to the effect that if he had been on HMAS Melbourne he would have been sent to Sydney. The applicant was also remonstrated with by the Captain of Brisbane because he failed to write to his wife while she was in hospital.

12.     The applicant eventually got 10 days leave in Sydney and while there applied for discharge on compassionate grounds.  That request was refused and his wife subsequently made political representations at the end of 1973 which resulted in a renewed application for discharge (Exhibit B) and eventually discharge.

13.     The second application for discharge is dated 11 April 1974 and sets out the following summarised reasons for seeking discharge:

(a)      wife’s health deteriorates when applicant absent on duty at sea;

(b)      dislike of current working conditions;

(c)interest in air-conditioning and refrigeration – seeking job satisfaction with private company;

(d)emotionally unsuited to Naval life; and

(e)discharge is in best interests of Navy and the applicant.

14.     The applicant’s superior officer supported discharge but on the ground that he was unsuitable for naval service.  A psychologist’s report included:

“…is unable to cope with the demands of service life and is a serious management problem.”

15.     Subsequent to the application for discharge, the applicant says his wife made an attempt at suicide because he was absent on board ship at Garden Island.  Relatives took the wife to hospital but she was not admitted and went home with the relatives.

The Medical Evidence

16.     In a report dated 2 March 2001 and addressed to the Department of Veterans’ Affairs, Dr Lawford (Consultant Psychiatrist) diagnosed Major Depressive Disorder, Recurrent (T4/22-29).  On the basis of the history recorded by Dr Lawford, he attributed the condition to the breakup of the applicant’s relationship with his partner while he was on operational service.  No mention appears in the recorded history of any stressor during operational service.

17.     Exhibit A is a further report by Dr Lawford dated 20 December 2002 addressed to the applicant’s solicitors.  In that report Dr Lawford identified the two psychosocial stressors which are said to have occurred during eligible service.  Dr Lawford describes them as follows:

“The first occurred when he was on the Brisbane enroute to Hawaii for RAMPAC 73 exercises.

After two to three weeks at sea Mr Pickering states he received a message ‘Wife is undergoing exploratory surgery no need for sailor to worry’.  Mrs Pickering was admitted to hospital for laparoscopic abdominal examination to an ectopic pregnancy which is a serious medical condition.

Mr Pickering only had information she was undergoing surgery and was not able to find out her condition or what hospital she was in.

He states that he was told to carry on and don’t worry.  He has no further information to his wife’s condition or location for two weeks after receiving this message.  He was worried about what condition she had and was it life threatening.

The second incident occurred in 1974.  Mr Pickering was aboard ship in Garden Island on a Sunday.  He received a phone call from his wife Sylvia Pickering requesting that he come home.  He replied that he couldn’t as there was no one to replace him and she informed him that she had just taken an overdose of tablets.

Mr Pickering asked his wife to ring her cousin who took her to Marrickville Hospital where she was treated.  According to her cousin, Gayle Smith, Mrs Pickering was very depressed at this time.  Despite his wife being suicidal he was not able to leave the ship for 24 hours.

We therefore have two incidents that are ‘severe psychosocial stressors’ ie Serious illness of a close friend or relative (his wife).”

18.     Dr Lawford then referred back to the breakup of the applicant’s relationship while he was on operational service.  He also referred to a report by a naval psychologist which is not before this Tribunal.  The psychologist apparently reported to the effect that the applicant had served in a satisfactory manner for the first six years of his naval service (1967-1972) but then his general attitude and interest had diminished. Apparently he was vocal about his dissatisfactions, requesting discharge, showing little interest in the service, and unable to accept criticism of his own conduct or job performance.

19.     Dr Lawford then continued as follows:

“This behaviour could not have been due to his irritability as reported by the Psychologist as a person cannot be mature for 6 years and suddenly become immature.

It is far more likely, and totally consistent with, the development of a depressive disorder.  Furthermore in a second report by the same Psychologist Mr Pickering’s ‘negative attitude’ is expected to be a threat to group morale.

The Psychologist’s report identifies the time of the clinical onset of Depressive Disorder being in 1973.  In October 1973 the Psychologist stated that Mr Pickering’s job performance attitude and training progress had all deteriorated ‘quite recently’.

This is consistent with a clinical worsening of his disorder following the ‘exploratory surgery’ incident.”

20.     Dr Lawford noted that the applicant has had a number of depressive episodes.  He identified three stressors:

(a)      the “Dear John” letter;
(b)      the incident of his wife requiring exploratory surgery; and

(c)       suicide attempt by wife.

21.     Dr Lawford said in his oral evidence that none of these stressors were specifically related to the applicant’s naval service but his service aggravated the circumstances of the stressors.

Consideration

22.     I accept and find, on the basis of Dr Lawford’s evidence, that the applicant suffers from Recurrent Major Depressive Disorder which comes within the definition of Depressive Disorder (SoP 58 of 1998).

23.     I also accept Dr Lawford’s hypothesis that it is likely the condition was triggered by the “Dear John” letter which the applicant received while on, but towards the end, of his operational service.

24. There is no dispute that the relevant Statement of Principles to be applied to Dr Lawford’s hypothesis, as required by section 120A of the Veterans’ Entitlements Act 1986 (“the Act”), is Instrument No 58 of 1998.

25.     In determining whether the hypothesis is consistent with the terms of the Statement of Principles, the hypothesis raised by Dr Lawford in relation to the operational service must contain at least one of the factors as set out in clause 5 of the Statement of Principles.

26.     Relying on Dr Lawford’s report of 2 March 2001, I am satisfied that the clinical onset of Depressive Disorder occurred some time after the applicant’s period of operational service; that is, after he confirmed, on return to Australia, that his relationship with his girlfriend had terminated, but before the events of 1973 and 1974 when the condition became symptomatic.

27.     The applicant relies on two particular incidents whereby he experienced a severe psychosocial stressor or stressors within the two year prior to the clinical onset of the condition.  Those events are the HMAS Brisbane being fired upon from the shore by small arms and mortar and the “Dear John” letter.

28.     A “severe psychosocial stressor” is defined to mean 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), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.

29.     The applicant says the HMAS Brisbane was “fired upon” which he describes in Exhibit B as “tracers coming towards the ship”..  In no sense can it be said that the applicant was being shot at.  Tracers coming towards the ship does not connate any serious danger to the ship likely to engender feelings of substantial distress.  I am not satisfied that the incident, as explained by the applicant constitutes a “severe psychosocial stressor” as defined.

30.     In relation to the “Dear John” letter and accepting, for the moment, that the applicant was distressed by the contents of the letter, the loss of the relationship did not occur until the applicant met his girlfriend on return to Australia.  I have taken into account the applicant’s expectation of engagement and marriage but those expectations were not blotted out until he had the meeting with his girlfriend after his return from operational service.

31.     Furthermore, I am not satisfied that a loss of expectation of engagement and marriage is something that can be described as a severe psychosocial stressor as defined.  Even if it can be accepted that the loss of expectation is within the terms of the definition, I am not satisfied that the loss of expectation can be said to be related to the operational service merely because there is a temporal connection between the receipt of the “Dear John” letter and the operational service.

32.     In any event, relying on the evidence of the applicant, any stressor occurred after the end of operational service and before eligible defence service, that is, immediately after the return from operational service.

33.     It follows I am not satisfied that the circumstances of the applicant’s case, as asserted by the applicant, satisfies the terms of Instrument No 58 of 1998.

34.     In relation to the applicant’s eligible defence service there is no dispute that the relevant Statement of Principles is Instrument No 59 of 1998.

35.     The two incidents relied upon by the applicant are the matter involving exploratory surgery for his wife in 1973 and the suicide attempt by his wife in 1974.

36.     Relying on the evidence of Dr Lawford, I am satisfied, on the balance of probabilities, that these incidents occurred after the clinical onset of Depressive Disorder.  Neither of those events satisfies the definition of severe psychosocial stressor.  I am satisfied that clause 5(e) does not therefore apply.

37. I am satisfied that clause 5(g) applies because the Depressive Disorder, triggered initially by the applicant’s loss of expectation of engagement and marriage after his operational service, was a clinically significant psychiatric condition (Dr Lawford says so in effect) still present at the time of the 1973 and 1974 incidents. Those incidents, which occurred during eligible defence service, resulted in the clinical worsening of the depressive disorder as evidenced by the report of the psychologist dated 22 October 1973. Although the reporter does not say so, I am satisfied that the report of maladjustment and difficulty coping with naval requirements, which had not been a problem in earlier years, is evidence of exacerbation or clinical worsening of the Depressive Disorder.. I am satisfied, on the balance of probabilities, that factor 5(g) is satisfied so that the exacerbation of the Depressive Disorder is related to the applicant’s eligible defence service within the terms of section 120B of the Act. Insofar as it is asserted that the applicant was a malcontent, I am satisfied his unsatisfactory service was a manifestation of the Depressive Disorder.

38.     It follows I am reasonably satisfied that the applicant satisfies the requirements of Instrument No 59 of 1998.  I am also reasonably satisfied that the applicant’s Depressive Disorder is a defence-caused condition having been aggravated by his eligible defence service.

39. The decision under review will be set aside and the matter remitted to the respondent with a direction that Depressive Disorder is a defence-caused condition within the terms of section 70 of the Act.

40.     Date of effect is uncertain on the material before me.  In the event that the parties do not agree on the date of effect, liberty to apply is reserved to the applicant.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member KL Beddoe

Signed:         Sarah Oliver
  Associate

Date of Hearing  4 June 2003 
Date of Decision  18 December 2003       

Counsel for the Applicant         Mr Griffiths
Solicitor for the Applicant          Sciacca's Lawyers
For the Respondent                  Mr J Kelly, Departmental Advocate