Reid and Repatriation Commission - [2014] AATA 137

[2014] AATA 137

Division	VETERANS' APPEALS DIVISION
File Number	2012/2064
Re	William John Reid
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	G. D. Friedman, Senior Member
Date	13 March 2014
Place	Melbourne

The Tribunal sets aside the decision under review and substitutes a decision that major depressive disorder suffered by Mr Reid is defence-caused from 25 February 2010 and that Mr Reid is entitled to be paid disability pension at the special rate with effect from 25 February 2010.

........................[sgd]................................................

G. D. Friedman, Senior Member

VETERANS' AFFAIRS – veterans’ entitlements – major depressive disorder – back pain – whether defence-caused – whether eligible for pension at special rate

Veterans' Entitlements Act 1986 ss 24, 70(5), 120(4), 120B

Johnston v The Commonwealth [1982] HC 54

Kaluza v Repatriation Commission [2010] FCA 1244
Repatriation Commission v Law [1980] FCA 92
Repatriation Commission v Yates [1995] FCA 1234
Treloar v Repatriation Commission [1990] FCA 511

REASONS FOR DECISION

G. D. Friedman, Senior Member

13 March 2014

William Reid served in the Australian Army (army) from 26 January 1972 until 25 July 1973. He rendered defence service under the Veterans' Entitlements Act 1986 (the Act) from 7 December 1972 to 25 July 1973.
Mr Reid was in receipt of a disability pension at 20 per cent of the general rate as a result of lumbar spondylosis being accepted as a defence-caused medical condition. On 25 May 2010 he lodged a claim for incapacity from hearing loss and depressive disorder. Sensorineural hearing loss and tinnitus were accepted as defence-caused conditions and his disability pension was increased to 80 per cent of the general rate. The claim for major depressive disorder was refused. The Veterans' Review Board (VRB) increased his pension to 90 per cent of the general rate but affirmed the refusal to accept depressive disorder as defence-caused. Mr Reid is seeking review of the decision.
Mr Reid is also seeking an increase in pension to the higher loss-of-earnings related payment known as special rate. This requires, among other things, that a person is prevented from continuing to undertake remunerative work, and cannot work more than eight hours per week, by reason of war-caused disability. The respondent says that Mr Reid is not entitled to special rate because there were reasons other than his defence-caused disabilities that prevented him from working during the assessment period that commenced in 2010.

LEGISLATIVE FRAMEWORK

Section 120(4) of the Act requires the Tribunal to decide whether Mr Reid’s conditions were defence-caused to the Tribunal’s reasonable satisfaction. The Tribunal is also required to apply a Statement of Principles (SoP) for each condition (where one exists), as formulated by the Repatriation Medical Authority, which provides a connection to service through factors contained in the SoP. Section 120B of the Act requires the Tribunal to decide matters to its reasonable satisfaction in accordance with the SoPs.
The relevant SoP is No. 28 of 2008 concerning depressive disorder as amended by SoP No. 41 of 2010. Factor 6(a) of SoP No. 28 of 2008 states:

(a) for major depressive episode, recurrent major depressive disorder, dysthymic disorder and depressive disorder not otherwise specified only,
…
(viii) having chronic pain of at least six months duration at the time of the clinical onset of depressive disorder;
Paragraph 9 of the SoP states:
…

"chronic pain" means 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;
Paragraph 5 of the SoP states:
Factors that must be related to service
5. Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.

Section 24 of the Act makes provision for payment at rates higher than 100 per cent of the general rate of pension:
24(1)    This section applies to a veteran if:
…
(a)       either:
(i)the degree of incapacity of the veteran from war-caused injury or war‑caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force…
…
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war‑caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity…
…
(2)       For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war‑caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.

ISSUES

There was no dispute that Mr Reid suffers from major depressive disorder. The issues before the Tribunal are:
·Is major depressive disorder related to his defence service? This requires consideration of the following:
§ Did Mr Reid have chronic pain of at least six months’ duration at the time of the clinical onset of major depressive disorder? If so:
§ Was the chronic pain factor related to his defence service?
· Is Mr Reid eligible for an increase in disability pension to the special rate?

DID MR REID HAVE CHRONIC PAIN OF AT LEAST SIX MONTHS’ DURATION AT THE TIME OF CLINICAL ONSET OF MAJOR DEPRESSIVE DISORDER?

Mr Reid told the Tribunal that after leaving school he completed an apprenticeship as a mechanic with the Melbourne and Metropolitan Tramways Board. After joining the army as a National Serviceman he completed recruit training and then corps training with the Royal Australian Electrical and Mechanical Engineering Corps (RAEME). He was posted to the School of Military Engineering in Casula, New South Wales, as a mechanic carrying out repairs to vehicles and equipment. He said that before enlistment he was extremely fit and had experienced no back problems.
Mr Reid explained that in about August 1972 he hurt his lower back when he fell from a bulldozer while holding a large section of engine component (the bulldozer incident). He attended the Regimental Aid Post but took no time off work. His back was extremely painful for two weeks before it settled down, although there was some ongoing pain. In December 1972 he was transferred to Puckapunyal, Victoria, where his duties included repairing and maintaining Centurion tanks and armoured personnel carriers. He said that he was required to lift heavy objects such as engines, components and tools without the assistance of ladders, cranes or other mechanical devices. He said that these tasks caused back strain.
As an example of lower back pain Mr Reid stated that in February 1973 he strained his back severely while lifting a kitchen chair during weekend leave at his parent’s home (the chair incident). He was in extreme pain and the following day he was admitted to 3 Camp Hospital in Puckapunyal, where he spent seven days receiving treatment by way of physiotherapy and rest before returning to work. He said that after discharge from hospital on 26 February 1973 he returned to his normal duties and experienced back pain and stiffness as a result of resuming heavy lifting.
After leaving the army in July 1973 at the end of his term Mr Reid gained employment as a motor mechanic in Maryborough, Victoria where he worked on lighter vehicles, but his back pain persisted and he was taking analgesics daily. He stated that in December 1974 he resigned and in February 1975 he commenced working as a motor mechanic for a Ford dealership in Portland, Victoria but resigned in September 1976 because of intense back pain. During this period he was receiving treatment from a chiropractor, and his doctor was treating him for depression.
Mr Reid stated that in January 1977 he moved to Melbourne and found clerical work with a Ford dealership, but his back pain and depression continued. In about 1978 his depression became so extreme that his wife arranged a referral to a psychiatrist, and he has been receiving treatment since then. He resigned in February 1980 and commenced a clerical position with the Gas and Fuel Corporation, but his back pain and depression led him to resign in May 1980 and he moved back to Portland, where he obtained employment with the Portland Council in finance and accounting and remained in this employment until December 1987. From January to December 1988 he worked as a sales clerk for a surgical products company before returning to the Council as an administration officer until April 1993.
From 1993 to 1998 Mr Reid worked as a business studies computer teacher at a TAFE Institute and between 1998 and 1999 he was a computer consultant with a small business, followed by employment in 1999 as an information technology consultant advising medical practices. He said that the requirement of constant driving, plus his depression and anxiety, led him to resign in 2006. After several months of unemployment he found work in July 2006 with an earthmoving business in Portland, where he remained until 2009 when the business ceased operation. From June 2009 he resumed working on a part-time basis for the medical practices, but resigned in March 2010 because of the constant travel. He moved to Geelong in June 2010 and submitted a couple of job applications without success, and has not worked since then.
Mr Reid said that he has been attending a physiotherapist since March 2012 and takes anti-depressant medication and Panadol Osteo. He has ceased taking anti-inflammatories.
Under cross-examination Mr Reid stated that following the bulldozer incident he continued to work despite the constant pain because he needed to support his family. He explained that any reference to episodic pain in medical records refers to occasions when his back goes out, resulting in sudden and acute pain that causes temporary incapacity.
Mr R Westh, orthopaedic surgeon, stated in a report dated 6 September 2013 that Mr Reid suffered a significant low back injury in August 1972 during army service, and a further injury in February 1973 which probably aggravated the initial injury. X-rays taken in 1984 showed significant narrowing of the L5/S1 disc and slight narrowing of the L4/5 disc with changes in keeping with lumbar disc degeneration and lumbar spondylosis. Mr Westh took a history from Mr Reid that depression developed in 1976 prior to ceasing work as a mechanic.
Associate Professor P Brinded, consultant psychiatrist, stated in a report dated 21 July 2010 that he took a history of Mr Reid developing depression in 1976 because of an inability to continue working as a motor mechanic as a result of ongoing back pain that commenced after the bulldozer incident. He diagnosed major depressive disorder and said that Mr Reid has developed lifelong employment difficulties following his back injury and has suffered anxiety and depression as a consequence.
Dr P Farnbach, consultant psychiatrist, stated in a report dated 22 October 2013 that he took a history of Mr Reid experiencing back pain since the bulldozer incident and that the pain is unpredictable. The current medication is Panadol Osteo for the pain and anti-depressants. He said that Mr Reid told him that depressive symptoms were first noticed about two years after leaving the army, and that the concerns included an inability to provide for his family plus the necessity to cease working as a mechanic because of the back pain. Dr Farnbach concluded that the history provided by Mr Reid was consistent with the view that the chronic pain from the original back injury, against a background of an obsessional personality, precipitated major depressive disorder which became entrenched. The date of clinical onset was estimated to be about two years after discharge from the army.
Mr R Haig, orthopaedic surgeon, stated in a report dated 16 April 2013 that he took a history of back pain that commenced with the bulldozer incident and became worse after the chair incident. Mr Haig noted that Mr Reid told him that depression began in 1975, two years after leaving the army. Mr Haig concluded that there is difficulty in determining when Mr Reid’s lumbar spondylosis first manifested itself. He said that degenerative changes of the lower two discs occurred at some stage between 1972 and 1985. He concluded that the condition is age-related and was pre-dated by depression. He did not believe that Mr Reid satisfies the definition of chronic low back pain because of a statement in the clinical notes attributed to a Dr Yates (presumably a medical officer) on 28 November 1985 in respect of an application by Mr Reid to the Department of Veterans’ Affairs which refers to…periodic episodic back pain one or two times a year…normally response after spinal manipulation…In between bouts has low back ache. Consequently Mr Haig did not believe that there is a nexus between the lumbar spondylosis and the onset of depression.
There is no definition of the term clinical onset in the SoPs or in the Act. In Kaluza v Repatriation Commission [2010] FCA 1244 Jacobson J stated at [92] and [93]:
[92] The meaning of the expression “clinical onset” was considered by the Full Court in Lees. The effect of what their Honours (Heerey, Moore and Kiefel JJ) said at [13] was that there is aclinical onsetof a disease, either:
·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
·when a finding is made on investigation which is indicative to a doctor that the disease is present.
[93] The definition therefore emphasises the need for a determination of theclinical onsetby medical evidence. It is for the doctor to say when theclinical onsetoccurred by the presence of features or symptoms. But the clinical onset is not necessarily when the patient first sees a doctor for medical treatment.
The Tribunal takes into account Mr Reid’s evidence that he commenced treatment for depression in late 1976. This is consistent with the evidence from Professor Brinded and Dr Westh, and is broadly consistent with the evidence from Dr Farnbach, who estimated clinical onset at …about two years after discharge from the army, and Mr Haig, who took a history of depression commencing in 1975. On all the material the Tribunal is satisfied that Mr Reid developed depression in about 1976 at the time he ceased work as a mechanic, and he commenced treatment shortly afterwards. Therefore the Tribunal finds that the date of clinical onset of major depressive disorder is the last quarter of 1976.
The Tribunal accepts Mr Reid’s evidence that he experienced continuous or almost continuous pain in his lower back in the six-month period up to and including the last quarter of 1976 and he was unable to continue working as a mechanic. This is consistent with the history given to various medical practitioners and the treatment he received by way of analgesics to suppress the pain. The Tribunal prefers this evidence to Mr Haig’s evidence because the handwritten notes of Dr Yates in 1985 appear to have been made not by Dr Yates but by another unidentified person, and there is no explanation of the circumstances in which the comments were made.
For these reasons the Tribunal concludes that for at least six months prior to the clinical onset of major depressive disorder Mr Reid suffered back pain that may or may not be ameliorated by analgesic medication and which caused interference with his usual work or leisure activities. Therefore Mr Reid satisfies the definition of chronic pain in SoP No. 28 of 2008 and factor 6(a)(viii).

IS THE CHRONIC PAIN FACTOR RELATED TO MR REID’S DEFENCE SERVICE?

Mr Reid said that in respect of his admission to 3 Camp Hospital in February 1973 after the chair incident the inpatient summary in the clinical notes described the pain as back sprain - low which…Settled on bed rest…The notes stated that the Final Disposal (or outcome at the end of the seven-day admission) was RTU [Return to Unit] – Duty. Mr Reid confirmed that in his remaining period of service in the army he resumed his previous full-time duty servicing tanks and armoured personnel carriers, and that he developed back pain and stiffness from the heavy lifting involved.
On the Discharge History Questionnaire completed on 11 June 1973 Mr Reid answered Yes to Any knee, back or joint injury. The medical officer who signed the form commented on the admission to 3 Camp Hospital and noted a low back strain.
Mr Westh stated that the duties carried out between December 1972 and July 1973 would have contributed to the development of lumbar spondylosis and aggravation of the back strain suffered in the bulldozer incident.
Mr Haig told the Tribunal that, based on the available material, he doubted whether Mr Reid’s return to duty working on tanks and other vehicles after the chair incident in February 1973 would have had a significant impact on the back condition in the relatively short period before discharge in July 1973. However under cross-examination Mr Haig agreed that the work, which involved carrying heavy tools and equipment, may have exacerbated or aggravated the symptoms of any back strain or back pain but not the pathology.
Section 70(5) of the Act provides:
70 Eligibility for pension under this Part
…
(5) For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence‑caused, an injury suffered by such a member shall be taken to be a defence‑caused injury or a disease contracted by such a member shall be taken to be a defence‑caused disease if:
(a) the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
…
In Treloar v Repatriation Commission [1990] FCA 511 the Full Federal Court stated at [21]:
21. In our opinion, it follows from what is said and, indeed, from what is not said in these passages and from a consideration of the plain words that once it is established that an employee in the doing of his work was exposed to "a state of affairs to which he would otherwise not have been exposed" or to "some characteristic of or condition in which the work was to be performed" and that such exposure was in truth a "contributing" factor to the condition in respect of which he seeks compensation then it matters not whether the contribution was of any particular size or degree. The same applies, where the complaint is not one of initiation of the condition but of its aggravation, in the sense of making it worse, or its acceleration in the sense of speeding up the progress of a progressive disease. In all cases the question is whether there has been a "contribution"...All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must, in truth, be part of the cause. If they are not, then, they do not "contribute".

In Repatriation CommissionvLaw [1980] FCA 92 the Full Federal Court held:
…The expression "arisen out of" is satisfied if some less proximate causal relationship is established. Of course, a suggested relationship which is fanciful is not sufficient; and a suggested relationship may be so tenuous as to preclude its consideration as answering the description "arising out of".
…
It seems clear that the expression "attributable to" in each case involves an element of causation. The cause need not be the sole or dominant cause: it is sufficient to show "attributability" if the cause is one of a number of causes provided it is a contributing cause…
In Repatriation Commission v Yates [1995] FCA 1234 Lindren J said at [40] and [41]:
40. Incapacity, although made an essential element of the Commonwealth's liability by sub-s 70(1), is not itself the particular concern of sub-s 70(5). A defence-caused aggravation of a disease may or may not cause incapacity. Incapacity is related to "symptoms". There cannot be incapacity without symptoms but there can be symptoms without incapacity. Similarly, symptoms are related to, but not synonymous with, relevantly, disease. A disease may be, from time to time, symptom free. Likewise there can be symptoms of a disease, and a worsening of such symptoms, whether or not there has been an aggravation of the underlying disease.
41. Symptoms worsened by service activity may or may not, depending on the medical evidence, be evidence of a defence-caused aggravation of the underlying injury or disease.
In Johnston v The Commonwealth [1982] HC 54 the majority of the High Court held at [15] in relation to aggravation:
15. …Section 29 [of the Compensation (Commonwealth Government Employees) Act 1971]makes specific provision for the payment of compensation in cases of incapacity in which an employee contracts a disease or "suffers an aggravation, acceleration or recurrence of a disease", when employment by the Commonwealth is a contributing factor, by deeming the contraction of the disease or the aggravation, acceleration or recurrence to be a personal injury to the employee arising out of his employment by the Commonwealth. In this setting it is natural to suppose that Parliament intended that compensation is payable when an employee suffers an increase in the severity of a disease and his employment contributes to that increase in severity, whether the employment so contributes by actually making the disease worse or by delaying medical treatment which would arrest the natural course of the disease…
The Tribunal acknowledges that the bulldozer incident occurred before Mr Reid’s defence service and the chair incident occurred when Mr Reid was off-duty and on leave at his parents’ house. However the medical evidence supports Mr Reid’s account of his admission to hospital after the chair incident and during his defence service. In hospital he received treatment by way of rest and physiotherapy and he was discharged after seven days. His condition on discharge was described as Settled which suggests that the condition had improved to a sufficient degree for Mr Reid to be returned to his unit. In fact the disposition was for him to return to full duties repairing tanks and armoured personnel carriers, with no record of any restriction on lifting weights or on the number of hours to be worked.
The Tribunal accepts Mr Reid’s evidence that he performed his normal duties involving heavy lifting from 26 February 1973 until his discharge from the army and that he developed back pain to such a degree that at the time of his discharge he had developed chronic back pain. This is supported by the discharge medical questionnaire and the medical officer’s comments. This is also consistent with the evidence from Mr Westh that duties carried out between December 1972 and July 1973 would have contributed to aggravation of the back strain suffered in the bulldozer incident.
It is also consistent with the concession by Mr Haigh that the duties performed by Mr Reid during the period from 26 February 1973 until discharge from the army on 25 July 1973 involved heavy lifting and may have exacerbated or aggravated Mr Reid’s back strain.
For these reasons the Tribunal concludes that Mr Reid’s back condition had settled during his hospitalisation and became chronic during the period from his return to full duties (involving heavy lifting without restriction or the use of mechanical aids) on 26 February 1973 until he left the army on 25 July 1973. The Tribunal finds that this constitutes aggravation of his back condition which occurred during a period of defence service rendered by Mr Reid. Therefore the Tribunal finds that the chronic pain in the relevant period was related to Mr Reid’s defence service.
Consequently the Tribunal is reasonably satisfied that there is a causal connection between Mr Reid's major depressive disorder and the circumstances of his defence service, and finds that his major depressive disorder is defence-caused from 25 February 2010.

IS MR REID ELIGIBLE FOR AN INCREASE IN DISABILITY PENSION TO THE SPECIAL RATE?

The respondent conceded that in the event that major depressive disorder is defence-caused Mr Reid would satisfy the criteria for special rate. The Tribunal agrees and, in view of its finding that the condition is defence-caused, the Tribunal finds that Mr Reid satisfies the criteria in s 24 of the Act for disability pension at the special rate from 25 February 2010.

DECISION

The Tribunal sets aside the decision under review and substitutes a decision that major depressive disorder suffered by Mr Reid is defence-caused from 25 February 2010 and that Mr Reid is entitled to be paid disability pension at the special rate with effect from 25 February 2010.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member

..................[sgd]......................................................

Associate

Dated 13 March 2014

Dates of hearing	6 and 7 March 2014
Advocate for the Applicant	Mr D De Marchi
Solicitors for the Applicant	De Marchi & Associates
Advocate for the Respondent	Mr K Rudge
Solicitors for the Respondent	Department of Veterans' Affairs