Pleming and Repatriation Commission
[2008] AATA 736
•22 August 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 736
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2007/1881
VETERANS AFFAIRS DIVISION ) Re EILEEN PLEMING Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr S. Webb, Member Date22 August 2008
PlaceWagga Wagga, NSW
Decision The decision under review is affirmed. ...............[signed].................
Mr S. Webb, Member
CATCHWORDS
VETERANS' ENTITLEMENTS - kind of death - suicide - hypotheses of war-causation - applicable statements of principles - hypotheses not reasonable - decision affirmed
Repatriation Act 1920 (Cth)
Veterans Entitlements Act 1986 (Cth) s 8, 13, 14, 19, 31, 120, 120A, 182A
Statement of Principles concerning Suicide (Instrument Number 71 of 1996 as amended by Instrument Number 177 of 1996)
Statement of Principles concerning Depressive Disorder (Instrument Number 27 of 2008)
Statement of Principles concerning Anxiety Disorder (Instrument Number 101 of 2007)
Statement of Principles concerning Post Traumatic Stress Disorder (Instrument Number 5 of 2008).
Statement of Principles concerning Depressive Disorder (Instrument Number 58 of 1998)
Statement of Principles concerning Generalised Anxiety Disorder (Instrument Number 1 of 2000)
Statement of Principles concerning Post traumatic Stress Disorder (Instrument Number 54 of 1999).
Benjamin v Repatriation Commission [2001] FCA 1879
Brickworks Ltd v The Council of the Shire of Warringah (1963) 108 CLR 568
Commonwealth v Verwayen (1990) 170 CLR 394
Connors v Repatriation Commission (2000) 59 ALD 61
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Dunlop v Repatriation Commission [2003] FCAFC 201
East v Repatriation Commission (1987) 16 FCR 517
Formosa v Secretary, Department of Social Security (1988) 46 FCR 117
Gorton v Repatriation Commission [2001] FCA 286
Langley v Repatriation Commission (1993) 43 FCR 194
Lees v Repatriation Commission [2002] FCAFC 398
McKenna v Repatriation Commission (1999) 86 FCR 144
Re Lees and Repatriation Commission [2004] AATA 583
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Codd [2007] FCA 877
Repatriation Commission v Delidio (1998) 83 FCR 82
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v O’Brien (1985) 155 CLR 422
REASONS FOR DECISION
August 2008 Mr S. Webb, Member 1. Eileen Pleming applied for a pension following the death of her husband, William Pleming, who was a World War II veteran. She says that his death was war-caused. The Repatriation Commission rejected the claim. That decision was affirmed by the Veterans Review Board. Mrs Pleming is unhappy with these decisions.
2. The matter to be decided is whether Mr Pleming’s death was war-caused. In order to properly address that matter, it is necessary to determine:
(a)the preconditions to the claim and the “kind of death”;
(b)whether an hypothesis connecting the death with the particular service is raised on the material; and if so
(c)whether Statements of Principles (SoPs) are applicable; and if so
(d)whether the raised hypothesis is consistent with the applicable SoPs and is therefore a reasonable hypothesis; and
(e)whether it is established, beyond reasonable doubt, that there is no sufficient ground for determining that the death is war-caused.
3. However, addressing these issues it is first necessary to deal with a preliminary matter concerning a previous determination of the Commission on 22 March 1985, whereby the Commission accepted that Mr Pleming suffered from an anxiety state that was war-caused.[1] As will appear, the Commission presently asserts that if Mr Pleming suffered from an anxiety disorder, it was not war-caused. Mr Winship asserts that the Tribunal is bound by the Commission’s previous determination and is estopped from making contrary findings in these proceedings.
[1] see T8 folio 28.
4. There are a number of things to say about this. First, the Commission’s 1985 determination concerning anxiety state is not presently before the Tribunal and the Tribunal has no jurisdiction to determine whether that decision should be set aside.[2] Second, the fact that Mr Pleming’s anxiety state in 1985 was accepted as war-caused under the Repatriation Act 1920 has no direct relevance to the identification of an hypothesis for the purposes of subs 120(3) of Veterans’ Entitlements Act 1986 (the VE Act) in these proceedings.[3] Third, it is incumbent on the Commission to consider all matters that are relevant to the claim for pension under s 14, including issues of eligibility (s 13) and, in this case, war causation (s 8), and for that purpose the Commission may have regard to evidence submitted after the lodgement of the claim (subs 19(1) and (2) of the VE Act). I note in passing that the Commission may review and vary an earlier decision on its own motion where an application has been made to the Tribunal, but the review has not been determined (subs 31(2) of the VE Act). Fourth, the Tribunal may exercise all of the powers and discretions conferred on the decision-maker by enactment.[4] Thus, in this case and for present purposes, the Tribunal may exercise all of the powers of the person who made the decision that is presently under review. Fifth, estoppel cannot operate to permit a public official to act contrary to his or her statutory obligations or to preclude a public authority from carrying out its statutory obligations.[5] The Tribunal is not estopped from considering a fresh claim for a different condition, in this case Mr Pleming’s death, by reason of a previous determination of the Commission.[6] No issue estoppel arises in this case. Sixth, consequent upon the coming into effect of s 120A and other amendments in 1994 (without retrospective effect to disturb previously existing determinations) the reasonableness of an hypothesis is to be decided by reference to relevant and applicable SoPs determined by the Repatriation Medical Authority.[7] An hypothesis may be upheld by more than one SoP; for an hypothesis to be upheld by a SoP, each of its sub-hypotheses must be so upheld.[8] Finally, insofar as Mr Winship’s submissions on this point may relate to equitable estoppel (and that is far from clear), no relevant or sufficient evidence was adduced to establish unconscionable conduct on the part of the Commission or any other representor. The doctrine of equitable estoppel is founded on such conduct, including inaction on the part of a representor knowing that the other party was exposing itself to detriment by acting on the basis of a false assumption.[9] However, no such estoppel is made out in this case.
[2] Repatriation Commission v O’Brien (1985) 155 CLR 422, 429; Langley v Repatriation Commission (1993) 43 FCR 194, 200.
[3] McKenna v Repatriation Commission (1999) 86 FCR 144, 151.
[4] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.
[5] Formosa v Secretary, Department of Social Security (1988) 46 FCR 117, 125; Brickworks Ltd v The Council of the Shire of Warringah (1963) 108 CLR 568.
[6] Langley v Repatriation Commission (1993) 43 FCR 194, 201; Re Lees and Repatriation Commission [2004] AATA 583, 23.
[7] Repatriation Commission v Delidio (1998) 83 FCR 82, 96, 97.
[8] McKenna v Repatriation Commission (1999) 86 FCR 144, 151.
[9] Commonwealth v Verwayen (1990) 170 CLR 394, 440.
5. Thus, the Tribunal is not ‘bound’ by the Commission’s previous decision in 1985 concerning anxiety state and is not estopped from making findings that may be inconsistent with that determination.
preconditions and ‘kind of death’
6. It is necessary to determine the preconditions for the claim, other than causation.[10] The standard of proof is the reasonable satisfaction standard, on the balance of probabilities.[11] There is no onus of proof on either party (subs 120(6)). There is no dispute and I find that:
(a)William Pleming died on 27 December 2005.
(b)Eileen Pleming is his widow.
(c)Mr Pleming had operational service within the meaning of that term pursuant to section 6A of the VE Act from 28 January 1942 to 27 October 1944.
[10] Repatriation Commission v Hancock [2003] FCA 711, [9].
[11] Subsection 120(4).
7. The next step, applying the same reasonable satisfaction standard, is for the Tribunal to determine the ‘kind of death’ Mr Pleming suffered for the purposes of s 120A of the VE Act.[12] In order to determine the ‘kind of death’ it is necessary to consider the medical conditions that caused the particular death, and there may be more than one such cause.[13] Furthermore, the Tribunal is to establish the real or operative cause of the death and not merely the medical event by which life was terminated. Whether or not a particular illness or disease can fairly and properly be considered the cause of death must be determined in the particular circumstances on the balance of probabilities.
[12] Repatriation Commission v Codd [2007] FCA 877, [33], [39].
[13] Repatriation Commission v Hancock [2003] FCA 711, [8].
8. It was common ground and I am reasonably satisfied that Mr Pleming’s ‘kind of death’ was suicide by hanging.[14] However, there may be more than one ‘kind of death’ for present purposes.
[14] Documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), T5.
9. As will appear, Mrs Pleming asserts that her late husband suffered from depression, anxiety state and post traumatic stress disorder (PTSD). Applying the reasonable satisfaction standard of proof, it is necessary to identify any and all SoPs and/or determinations under subs 180A(2) of the VE Act and any other `kinds of death' which were applicable to that death.[15]
[15] Repatriation Commission v Hancock [2003] FCA 711, [11]; Benjamin v Repatriation Commission [2001] FCA 1879, [52], [56].
10. The Commission conceded that Mr Pleming suffered from Major Depressive Disorder, Single Episode at the time of his death. That proposition is supported by the evidence of Dr Morris and Dr Lehmann. The medical report and clinical notes of Dr Lehmann point to Mr Pleming suffering from depression when he died.[16] This is supported by the evidence of Dr Morris.[17] Dr Hordern’s evidence is that the late veteran suffered from Recurrent Major Depressive Disorder and PTSD. Dr Hordern’s retrospective diagnoses are not consistent with the contemporaneous medical evidence of Dr Lehmann, or Dr Dobbie.
[16] T7 folio 24 and Exhibit R3.
[17] Oral evidence and Exhibit R1.
11. Dr Lehmann was Mr Pleming’s treating General Practitioner for many years and reported no clinical history of depression or anxiety in Mr Pleming from 1966 to March 2005. Dr Lehmann reported that “The cause of his depression [in 2005] was, in Mr Pleming’s opinion very precise, and that was his increasing blindness”.[18]
[18] T7 folio 24.
12. In 1984 Dr Dobbie examined Mr Pleming and prepared a report for the Department of Veterans’ Affairs.[19] He reported that Mr Pleming suffered from an Anxiety State, but found “no significant psychiatric disability” and “no evidence of continuing stress pattern post-war”. The doctor observed that Mr Pleming reported symptoms of “Nerves [means a bit upset in the stomach occasionally and loses his appetite and may not sleep so well during times of stress like the harvest]” “present for 6-7 years” and “said that he was a bit nervous for a while after his return from New Guinea but this passed”.
[19] T4 folio 10.
13. Mrs Pleming gave evidence that she first met her late husband in 1947 or 1948. Mrs Pleming’s evidence suggests that Mr Pleming was a person with a nervous or anxious disposition and that these characteristics were present all of the time she knew him. Her evidence is that her late husband’s psychological condition deteriorated in the early 1980s immediately before and after the sale of the family farm in 1984. She agreed that her late husband suffered from macular degeneration and increasing blindness from the early 1980s. Her evidence is that Mr Pleming was depressed at that time, but he “he pulled himself out of it” in or about 1986, but “he was always very quiet from then on”. Thereafter she and her husband took holidays and cruises together, including a trip to Port Moresby during which, by her account, they visited the Port Moresby War Cemetery. Mrs Pleming gave evidence that Dr Lehmann prescribed anti depressant medication in 2005, but the medication caused side effects and was stopped after one week. She asked for something else to be prescribed and told Dr Lehmann that “he needs something to calm him down”; the Doctor prescribed “sleeping tablets”. She said that there was “not a lot of improvement” thereafter and her husband was very quiet and didn’t want to talk in the period before his death – “he was totally different”.
14. Mrs Pinney gave evidence that she did not question her late father about his mood and behaviour as he would be dismissive and would “cover it up”. However, she observed that he appeared to be very low, anxious and upset in the 1980s before and after selling the farm – she first saw him crying at this time. She gave evidence that as a young child she recalled Mr Pleming returning home drunk and arguing with her mother. Mrs Pinney said that she moved away from the farm after she left school in 1965 and left the district when she married in 1969, after which she saw her father a few times each year.
15. Mr Pleming (the son) gave evidence that his late father was a “binge drinker” – when he drank “he drank to get drunk”. He said that his father was “always very anxious” and selling the farm in 1984 “just made it more so”. He said that his father lost interest in the farm in the early 1980s and that “he was keen on retiring – he was sick of it”. By Mr Pleming’s account his father “went through a rough patch” after selling the farm: “he missed the land a bit – it upset him”, “he was not himself… he was very different than normal”. However, “after two years he was good again”, “he never seemed happier – he was going very well”. Mr Pleming gave evidence that his father “slowed down” and experienced increasing troubles with his eyesight and knees in the years before his death. He said that his father became quieter and increasingly “tottery”, and in or about 2002 he lost enthusiasm: “he just seemed lost… he gave up… nothing we could do helped him”. By Mr Pleming’s account his father “really got old in the last six months”, “he really slipped”.
16. Dr Hordern gave evidence that his retrospective diagnoses are based, in substantial part, on information he obtained in telephone conversations with Mrs Pleming and her daughter, Mrs Pinney concerning the deceased veteran’s behaviour and symptoms over a long period. By his own account, Dr Hordern did not question Mrs Pleming or Mrs Pinney about specific diagnostic criteria for PTSD, in relation to difficulty controlling worry, fatigue, difficulty concentrating, irritability, any reduction in enjoyment of pleasurable activities, weight loss, or difficulty sleeping for example. Dr Hordern agreed that he did not take a detailed history but stated that he had made a “clinical diagnosis”.
17. Considering all of the evidence I am reasonably satisfied that Mr Pleming suffered from Major Depressive Disorder and that that disease was an operative factor in his death by suicide. The evidence does not establish, on the balance of probabilities, that Mr Pleming was suffering from PTSD at the time of his death or that PTSD was operative in his death.
is an hypothesis connecting the death with the particular service raised on the material?
18. Mrs Pleming’s representative, Mr Brian Winship, purported to raise a number of hypotheses connecting Mr Pleming’s death with his operational service for the purposes of subs 120(3) and 120A(3) of the VE Act. As I understand Mrs Pleming’s case, the hypotheses (and sub-hypotheses) of connection may be summarised as follows:
(a)Mr Pleming was suffering from (i) depression, or (ii) post traumatic stress disorder (PTSD) at the time of his suicide.
(b)The depression was caused by an Anxiety State or the PTSD.
(c)The Anxiety State or the PTSD was caused by traumatic stressors during the period of his operational service.
19. Mr Winship made submissions concerning traumatic stressors and asserted that Mr Pleming had an anxious or nervous disposition and experienced intense fear in relation to:
(i)being mobilised;
(ii)being mustered and allotted for duty in 34 Battalion;
(iii)being posted to 2/3 Infantry Battalion in Papua New Guinea;
(iv)knowledge that 2/3 Infantry Battalion was engaged in front line action and heavy fighting against the Japanese, as a result of which many casualties were suffered;
(v)‘common knowledge’ that the Japanese committed ‘atrocities’;
(vi)travelling to Port Moresby and being held in the 1 Australian Corps Reception Camp from 4 December 1942 prior to joining the main body of 2/3 Infantry Battalion;
(vii)deployment as a Bren gunner;
(viii)activities he was engaged in on or near the Kokoda Track;
(ix)witnessing a friend (possibly Colin or Charles Fletcher) being shot by a Japanese sniper; and
(x)joining his Battalion and fighting on the front line.
20. The question is whether one or more of these hypotheses connecting the deceased veteran’s death with the circumstances of his operational service is raised on the material that is before me. In order to properly address this question it is necessary to have regard to all of the material.[20] It is not necessary to reject or evaluate the weight or acceptability of the evidence or to resolve conflicts at this stage.[21] Nevertheless, a reasonable hypothesis involves more than mere possibility.[22] If an essential link in the hypothetical chain linking the death of the veteran and the circumstances of his relevant service is not pointed to or raised by the material and is merely asserted or left open, then it follows that the hypothesis of connection is not so raised and is not reasonable.[23]
[20] Repatriation Commission v Codd (2007) 95 ALD 619, [12].
[21] Repatriation Commission v Delidio (1998) 83 FCR 82, 97; Dunlop v Repatriation Commission [2003] FCAFC 201, [35].
[22] Repatriation Commission v Bey (1997) 79 FCR 364, 372, 373; East v Repatriation Commission (1987) 16 FCR 517, 522.
[23] Dunlop v Repatriation Commission [2003] FCAFC 201, [34]; Connors v Repatriation Commission (2000) 59 ALD 61, 68.
21. The evidence of Dr Lehmann, Dr Morris, Dr Hordern, Mrs Pleming, Mrs Pinney and Mr Pleming (the son) points to the late Mr Pleming suffering from depression at the time of his suicide. The evidence of Dr Hordern suggests that Mr Pleming suffered from “Chronic Major Depressive Episode, Single Episode” in 1984 and PTSD or a related anxiety disorder from the time of his operational service. Dr Morris disagreed and gave evidence that any symptoms of depression or anxiety in 1984 were not clinically significant symptoms and were not attributable to Mr Pleming’s war service. Dr Morris diagnosed a Major Depressive Episode, Single Episode in 2005. The medical report of Dr Dobbie dated 1 March 1984 suggests that Mr Pleming suffered from an Anxiety State at that time although “its relationship to the war is small”.[24] The doctor observed that Mr Pleming reported symptoms of “Nerves” “present for 6-7 years” and “said that he was a bit nervous for a while after his return from New Guinea but this passed”. It is plain enough from Dr Dobbie’s report that he considered these symptoms to be “trivial”: he reported “no significant psychiatric disability” and “disability from this condition [Anxiety State] is minimal”. Dr Lehmann reported no clinical history of depression or anxiety in Mr Pleming from 1966 to March 2005. It is not necessary to resolve these conflicts in the materials or to find facts at this stage.
[24] T4 folio 10.
22. The oral evidence of Mrs Pleming and Mrs Pinney suggests that Mr Pleming was engaged in activities on or near the Kokoda track as a Bren gunner and that he witnessed a friend (possibly Colin or Charles Fletcher) being shot by a Japanese sniper. Ms Pleming’s evidence was that she and her husband visited the war cemetery at Port Moresby in order to locate Mr Fletcher’s grave.
23. The deceased veteran’s service records point to him being mustered in New South Wales on 28 January 1942 and posted to 2/3 Infantry Battalion in Papua New Guinea: embarking on the HMTSS Duntroon at Brisbane on 19 November 1942, disembarking at Port Moresby on 4 December 1942.[25] The service records indicate that Mr Pleming was returned to Australia in January 1943, embarking on the HMTSS Both at Port Moresby on 17 January 1943 and disembarking at Cairns on 19 January 1943,[26] or embarking on 28 January 1943 and disembarking at Cairns on 30 January 1943.[27] The service records point to Mr Pleming being absent without leave on a number of occasions before and after his posting in Papua New Guinea. In Mr Winship’s submission this points to Mr Pleming being intensely fearful to the extent that he ran away.
[25] T3 folios 5-6.
[26] T3 folio 6.
[27] Exhibit R2, p12.
24. The report of Mr Hawke, Writeway Research Services Pty Ltd, points to Mr Pleming being held in the 1 Australian Corps Reception Camp at Port Moresby with reinforcements for 2/3 Infantry Battalion in the period from 4 December 1942 to 23 December or 28 December 1942.[28] Mr Hawke gave evidence that the 2/3 Infantry Battalion suffered casualties and was substantially depleted in fighting in the Popendetta region on the north side of the Owen Stanley Ranges prior to 23 December 1942, on which date the Battalion was returned to Port Moresby. Mr Hawke reported that he found no evidence to suggest that Mr Pleming saw active service on or about the Kokoda Track and suggested that Mr Pleming was based in the Port Moresby region during the entire period of his posting in Papua New Guinea. On Mr Hawke’s evidence there are no records of any Australian soldiers being shot by enemy forces in the Port Moresby region during that period.[29] The reports of Mr Tillbrook indicate that one Charles Fletcher of Merbein, mustered in Victoria in July 1942, was killed in action at Gona on 12 December 1942 while serving in the 39 Battalion and was buried at the Bomana War Cemetery (Port Moresby), and that one Colin Fletcher of Shell Harbour, mustered in New South Wales in June 1942, died on 5 February 1945 while serving in the 2/3 Infantry Battalion and was buried at the Lae War Cemetery.
[28] Exhibit R2 pp 3-5.
[29] Exhibit R2 p6.
25. Thus, as can be seen, without weighing or testing the evidence or making any factual findings, the hypothesis that Mr Pleming’s suicide was related to depression arising from an anxiety disorder or PTSD, and the anxiety disorder or PTSD were attributable to traumatic stressors during the period of operational service is raised on the material before me.
26. There is no material that points to Mr Pleming suffering from depression prior to 1984. Thus, the hypothesis that Mr Pleming’s depression was attributable to stressors during the period of his operational service is not raised on the material before me.
applicable statements of principles
27. The Repatriation Medical Authority has determined SoPs that are presently in force concerning Suicide,[30] Depressive Disorder,[31] Anxiety Disorder,[32] and PTSD.[33]
[30] Instrument Number 71 of 1996 as amended by 177 of 1996.
[31] Instrument Number 27 of 2008.
[32] Instrument Number 101 of 2007.
[33] Instrument Number 5 of 2008.
28. If one or more of these SoPs are less favourable to Mrs Pleming than the SoP that was in force on the date her claim was first determined (13 July 2006), she has an accrued right to have the matter determined by application of the more favourable SoP.[34]
[34] Gorton v Repatriation Commission [2001] FCA 286, [19], [24].
29. The SoPs that were in force on 13 July 2006 are: Suicide,[35] Depressive Disorder,[36] Anxiety Disorder,[37] and PTSD.[38]
[35] Instrument Number 71 of 1996 as amended by 177 of 1996.
[36] Instrument Number 58 of 1998.
[37] Instrument Number 1 of 2000 concerning Generalised Anxiety Disorder.
[38] Instrument Number 54 of 1999.
are the raised hypotheses reasonable?
30. For the raised hypothesis to be a ‘reasonable hypothesis’, it must be consistent with the template set out in the applicable SoPs.[39] It is necessary to consider all essential elements of the hypothesis (and each sub-hypothesis) in relation to the relevant SoPs.
[39] ss 120(3), 120A(3) of the VE Act; Repatriation Commission v Delidio (1998) 83 FCR 82, 98.
suicide
31. The SoP concerning Suicide sets out the factors that must exist before it can be said that a ‘reasonable hypothesis’ connecting suicide with the circumstances of the veteran’s relevant service is raised. As it appears to me, considering the raised hypotheses, factors 5(b) concerning depression and (c) concerning PTSD are relevant. Other factors are not pointed to by the material before me.
32. There is material (to which I have referred at [10]) that points to Mr Pleming suffering from a Major Depressive Disorder when he committed suicide (Dr Morris, Dr Hordern and Dr Lehmann). Major Depressive Disorder is within the meaning of ‘depression’ as defined at cl 6 of the SoP. Thus, this aspect of the raised hypothesis is consistent with factor 5(b) of the SoP concerning Suicide.
33. As will appear, the hypothesis concerning PTSD is not consistent with factor 5(c) of the SoP concerning Suicide.
ptsd
34. The material of Dr Hordern suggests that Mr Pleming was suffering from PTSD when he died. However, Dr Hordern’s evidence and the evidence provided by Mrs Pleming, Mrs Pinney and Mr Pleming (the son) does not point to each aspect of the definition of PTSD set out in the SoP at clause 6 or the definition of PTSD in the SoP concerning PTSD that is presently in force,[40] or that was in force when Mrs Pleming’s claim was determined on 13 July 2006,[41] or in the definitions and diagnostic criteria for PTSD set out in the Diagnostic and Statistical Manual of Mental Disorders Fourth Edition (DSM-IV).[42] There is no material before me concerning the avoidance of stimuli associated with the alleged traumatic stressors on service, although there is some material that may point to indicia concerning ‘numbing of general responsiveness’. Nor is there material pointing to Mr Pleming experiencing sufficient indicia of increased arousal as required by criterion (d) of the definition or disturbance causing clinically significant distress or impairment in social, occupational or other important areas of functioning as required by criterion (f). Thus, the material does not point to Mr Pleming having suffered from PTSD at any time as defined by the applicable SoPs concerning Suicide or PTSD. This is not consistent with factor 5(c) of the SoP concerning Suicide and it is not consistent with the SoP concerning PTSD. It follows that any hypothesis that relies in any essential part on PTSD cannot be said to be consistent with the SoP concerning PTSD that is presently in force or that was in force when Mrs Pleming’s claim was initially determined. Those hypotheses are not therefore reasonable hypotheses.
[40] cl 3(b) of Instrument Number 5 of 2008.
[41] cl 2(b) of Instrument Number 3 of 1999 as amended by Instrument Number 54 of 1999.
[42] pp435-440.
depression
35. The factors that must exist before Depressive Disorder can be reasonably said to be connected with the relevant service are set out at clause 6 of SoP No 27 of 2008. It is not disputed that Mr Pleming suffered from Major Depressive Disorder when he died. The evidence of Dr Morris is that Mr Pleming suffered from a Major Depressive Disorder, Single Episode. Dr Hordern gave evidence that Mr Pleming may have suffered from Recurrent Depression, having suffered a Major Depressive Disorder, Single Episode in 1984 that recurred in 2005. These diseases are within the defined meaning of ‘depressive disorder’ at cl 3(b) of the SoP.
36. There is no material that points to the late veteran experiencing symptoms of depression prior to the 1980s. Factors concerning the experience of stressors within a set period prior to the clinical onset of Depressive Disorder are not pointed to by the material before me. Thus, considering the raised hypotheses, the relevant factor is 6(a)(vii): “having a clinically significant psychiatric condition within the two years before the clinical onset of depressive disorder”.
37. I note that Mr Winship pressed Mrs Pleming’s accrued rights concerning the SoPs that were in force at the time her claim for pension was first determined. However differences in the form and content of the present SoP concerning Depressive Disorder and the SoP concerning Depressive Disorder that was in force on 13 July 2006[43] do not assist Mrs Pleming’s case. The disease definitions of present relevance are somewhat different in form: the relevant disease definitions in the later SoP at cl 3(b) are more detailed than those in the earlier SoP at cl 2(b). However, the earlier SoP disease definitions rely upon, but do not replicate in the body of the SoP, definitions that are set out in the DSM-IV and make reference to ICD-9-CM codes.[44] The later SoP sets out detailed diagnostic criteria in the body of the SoP that are “derived from DSM-IV-TR”. It appears that these differences in form are not substantial.
[43] Instrument Number 58 of 1998.
[44] See DSM-IV in respect of Major Depressive Disorder, Single Episode, for example, at pp 353-354 and 334-335.
38. Factor 6(a)(vii) ot the present SoP is in the same terms as factor 5(c) of the 1998 SoP concerning Depressive Disorder. However, the terms ‘clinically significant’ and ‘psychiatric condition’ are separately defined at cl 8 of the 1998 SoP whereas the term ‘a clinically significant psychiatric condition’ is defined at cl 9 of the present SoP. As can be seen, the factor on which Mrs Pleming relies in either SoP requires the presence of a clinically significant psychiatric condition within the period of two years immediately before the clinical onset of the depressive disorder.
clinical onset
39. Thus, it is necessary to consider the material pointing to the clinical onset of Mr Pleming’s depressive disorder.[45] The term ‘clinical onset’ requires the manifestation of all symptoms, in the specified degree, frequency or duration, required to satisfy the defined condition. If all of the required symptoms are not present, then the definition cannot be said to be satisfied and ‘clinical onset’ has not occurred.
[45] Lees v Repatriation Commission [2002] FCAFC 398, [13],[16].
40. Dr Lehmann reported that “Mr Pleming’s first presentation for depression was on 20/09/05” and “He gave a past history of having “depression” when he sold his farm but has had no psychiatric symptoms since then”.[46] The Doctor observed “I have reviewed Mr Pleming’s notes back to 1966 and there is no record of any anxiety or depression prior to 2005”. Dr Morris gave evidence that the clinical onset of Mr Pleming’s depression was in 2005. The Doctor accepted, on the basis of Dr Dobbie’s report, that Mr Pleming may have experienced some symptoms of depression or anxiety in or about 1984, when he sold the family farm and retired, but any such symptoms were not clinically significant. Dr Dobbie reported a six or seven year history of “Nerves”, meaning that “he gets a bit upset in the stomach occasionally and loses his appetite and may not sleep so well during times of stress like the harvest” that he described as an Anxiety State.[47] Dr Hordern gave evidence that Mr Pleming suffered from Major Depressive Disorder, Single Episode in 1984 and that this recurred in or about September 2005. In Dr Hordern’s opinion both episodes were indicative of PTSD and were multifactorial. Mrs Pleming gave oral evidence that her husband’s mood changed significantly in the period immediately before the farm was sold. She said that he was very depressed, agitated and anxious; he became very quiet and would go off by himself for hours at a time; he lost weight – “a couple of stone in 6 months”; and “he would just sit on a chair and not talk or do anything”, “he didn’t want to be involved in anything”, “he did not have much energy”. Mrs Pleming said that she took her husband to see Dr Lehmann and another doctor (possibly Dr Bhindi), but neither doctor diagnosed depression or prescribed treatment for depression or anxiety. Dr Hordern observed that Mr Pleming’s reported sleeping difficulties are not consistent with a depressive disorder, but are more consistent with PTSD. The evidence of Mrs Pleming, Mrs Pinney and Mr Pleming (the son) points to Mr Pleming becoming depressed in the early 1980s, immediately prior to and after the sale of the farm, from which he recovered in or about 1986 without medical assistance or treatment.
[46] T7 folio 24.
[47] T4 folio 10.
41. The defined meaning of ‘major depressive episode’ in SoP No. 27 of 2008 requires each of the diagnostic criteria to be satisfied, including five or more of the symptoms set out at part ‘A’ of the definition. On Mrs Pleming’s evidence symptoms at A(1), (2), (3), (5), (6) and possibly (8) were present in or about 1984. There is no contest and the material suggests that parts B, D and E of the definition are satisfied. There is no contemporaneous material indicating the presence of ‘clinically significant distress or impairment in social, occupational or other important areas of functioning’ as required by part C of the definition. The term ‘clinically significant’ is not defined in SoP No. 27 of 2008 or in the DSM-IV. However, the term ‘a clinically significant psychiatric condition’ is defined by reference to DSM-IV-TR (Diagnostic and Statistical Manual of mental Disorder, Fourth Edition, Text Revision, 2000) at cl 9 of that SoP in terms that are substantially similar to the definitions of ‘clinically significant’ and ‘psychiatric condition’ that appeared at cl 8 of SoP No. 58 of 1998:
“clinically significant” means sufficient to warrant ongoing management, which may involve regular visits (for example at least monthly), to a psychiatrist, clinical psychologist or General Practitioner;
“psychiatric condition” means any Axis 1 disorder of mental health that attracts a diagnosis under DSM-IV”
42. There are two things to say about this material. First, in relation to the issue of clinical onset of Mr Pleming’s depressive disorder, the evidence of Dr Hordern, Dr Morris, Dr Dobbie, Mrs Pleming, Mrs Pinney and Mr Pleming (the son) concerning the late veteran’s symptoms and behaviour in or about 1984 does not point to those symptoms causing ‘clinically significant distress or impairment in social, occupational or other important areas of functioning’ at that time (diagnostic criterion C for Major Depressive Episode at cl 3(b) of the present SoP concerning Depressive Disorder and at p 336 of the DSM-IV). There is simply no evidence that points to the late veteran experiencing distress or impairment in social, occupational or other important areas of functioning that were clinically significant. Second, it is not sufficient simply to assert that late veteran suffered from the depressive disorder without satisfying all of the requisite criteria set out in the SoP, or that the particular diagnostic criterion is satisfied, or that that possibility is left open. As I have said, a reasonable hypothesis involves more than mere possibility.[48] The SoP requires the presence of a number of distinct symptoms, of which ‘clinically significant distress or impairment in social, occupational or other important areas of functioning’ is but one. If the material does not point to the presence of that symptom, then consistent with the standards specified in the SoP, the depressive disorder is not present.
[48] Repatriation Commission v Bey (1997) 79 FCR 364, 372, 373; Dunlop v Repatriation Commission [2003] FCAFC 201, [34]; Connors v Repatriation Commission (2000) 59 ALD 61, 68.
43. It follows, therefore, as all of the essential diagnostic criteria for Major Depressive Episode, as defined at cl 3(b) of SoP Instrument Number 27 of 2008 and cl 2(b) of SoP Instrument Number 58 of 1998 (with reference to the relevant definitions and diagnostic criteria set out in DSM-IV at pp 348-355 and 328-336 concerning major depressive disorder), are not pointed to as present in 1984, it cannot be said that the particular depressive disorder as defined by the applicable SoP was present in 1984 or that the clinical onset of the depressive disorder occurred at that time.
44. Consistent with the Commission’s concession and the evidence of Dr Lehmann, Dr Morris, Dr Hordern, Mrs Pleming and Mr Pleming (the son), the material points to the clinical onset of Mr Pleming’s Major Depressive Disorder in the months prior to his death in December 2005. Dr Lehmann’s evidence is that Mr Pleming first consulted him in relation to depression on 20 September 2005 and at that time his symptoms required treatment. Considering the all the material before me it appears that, on that date, all of the requisite symptoms of the particular depressive disorder, consistent with the applicable SoP, were present and the clinical onset of the disorder (as defined by the SoP) can be said to have occurred at that time.
clinically significant psychiatric disorder & anxiety disorder
45. The material pointing to the presence of a clinically significant psychiatric disorder within the two years immediately preceding the clinical onset of Depressive Disorder in 2005 is the evidence of Dr Hordern and the evidence of Mrs Pleming, Mrs Pinney and Mr Pleming (the son). However, this material is not consistent with any applicable SoP concerning PTSD or Anxiety Disorder.
46. As I have said, Dr Hordern’s evidence concerning his diagnosis of PTSD is not consistent with the present SoP for PTSD or the SoP concerning PTSD that was in force when Mrs Pleming’s claim was first determined, with reference to the diagnostic criteria for PTSD that are set out in the DSM-IV.
47. Material pointing to the presence of an Anxiety Disorder in the two years prior to September 2005 is not consistent with any applicable SoP. I note that the definition of ‘clinically significant psychiatric disorder’ refers to an Axis 1 disorder (being a clinical disorder other than a personality disorder, mental retardation or a general medical condition) in the DSM-IV-TR (or the DSM-IV). While there is material pointing to the presence symptoms of anxiety or depression in the late veteran in the years preceding 2005, there is no material pointing to the presence of clinically significant symptoms or behaviours in Mr Pleming in the two years preceding 2005 that are consistent with the requisite diagnostic criteria for an anxiety disorder as defined by any applicable SoP (see, for example, the diagnostic criteria for a Generalised Anxiety Disorder as defined at cl 3(b) in the SoP concerning Anxiety Disorder, Instrument Number 101 of 2007 which replaced Instrument Number 1 of 2000, or in the DSM-IV at pp 444-448).
48. It follows that the hypotheses on which Mrs Pleming relies are not consistent with the applicable SoPs and, therefore, cannot be said to be ‘reasonable hypotheses’ for the purposes of subs 120(3) and 120A(3) of the VE Act. That being so Mrs Pleming’s claim must fail and the decision under review must be affirmed.
49. For completeness I note that even if the clinical onset of her late husband’s depressive disorder was accepted to have occurred in 1984, the case would not resolve in Mrs Pleming’s favour. The factors concerning the presence of a clinically significant psychiatric condition in the two years immediately before 1984 are not satisfied. As can be seen from the terms as defined in the present Sop and the 1998 SoP concerning Depressive Disorder, for a psychiatric condition to be ‘clinically significant’ material is required that points to an Axis 1 disorder that is ‘sufficient to warrant ongoing management, which may involve regular visits (for example at least monthly) to a psychiatrist, clinical psychologist or General Practitioner’. There is no such material. Dr Hordern’s evidence does not point to the existence of an Axis 1 disorder that was sufficient to warrant ongoing management of the character or frequency described. As I have said, Dr Hordern’s evidence does not point to each of the necessary diagnostic criteria for PTSD or an Axis 1 Anxiety Disorder as required and defined by the applicable SoPs. While Dr Dobbie’s report points to the presence of an Anxiety State in 1984, it does not point to that condition being ‘clinically significant’ to the extent that it is sufficient to warrant ongoing management. Thus, that aspect of the hypotheses is not consistent with the applicable SoPs to which I have referred.
50. That being so it is not necessary to proceed to consider the remaining aspects of the hypotheses concerning Anxiety State and the connection of that condition to stressors during the period of Mr Pleming’s operational service.
conclusion
51. Having considered all of the material before me, the hypotheses connecting Mr Pleming’s death with the circumstances of his operational service are not consistent with the applicable SoPs. It follows that the material does not raise a reasonable hypothesis for the purposes of subs 120(3) and 120A(3) of the VE Act. That being so, I am satisfied beyond a reasonable doubt that there is no sufficient ground for determining that Mr Pleming’s death is war-caused.
52. The decision under review is affirmed.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.
Signed
……….…….............................................................................
Peter Horobin
AssociateDate of Hearing 5, 6 August 2008
Date of Decision 22 August 2008
Solicitor for the Applicant Brian Winship
Winship Legal Pty. Ltd.
Solicitor for the Respondent Ben TallboysChamberlains Law Firm
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