Robert Mewett and Repatriation Commission
[2013] AATA 277
[2013] AATA 277
Division Veterans' Appeals Division File Numbers
2012/3535
2012/4499
Re
Robert Mewett
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 8 May 2013 Place Brisbane (heard in Townsville) The decision under review related to depressive disorder is set aside and varied. The decision under review related to ischaemic heart disease is affirmed.
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Senior Member Bernard J McCabe
CATCHWORDS
VETERANS' AFFAIRS – Pensions and benefits – Pension at special rate – Date of onset of depressive disorder – Ischaemic heart disease – Category 1A stressor – Decision related to depressive disorder set aside and substituted – Decision related to ischaemic heart disease affirmed
LEGISLATION
Veterans’ Entitlements Act 1986
SECONDARY MATERIALS
Statement of Principles, No. 28 of 2008
Statement of Principles, No 90 of 2007
REASONS FOR DECISION
Senior Member Bernard J McCabe
Robert Mewett suffers from a depressive disorder and a heart condition. He says those conditions are a result of his work as a bomb disposal technician while serving in the RAAF between 1981 and 2006. He has asked for a pension paid at the special rate under s 24 of the Veterans’ Entitlements Act 1986. The hearing which has led to this decision focused on whether it was possible to establish a link between the conditions and the applicant’s defence service.
In order to succeed in his claim for depressive disorder, Mr Mewett must satisfy the requirements imposed by the applicable Statement of Principles (SoP) published by the Repatriation Medical Authority, No. 28 of 2008. As a practical matter, that means he must establish he was exposed to a category 1A, category 1B, or category 2 stressor in the two-year period before the onset of his depressive condition. To succeed in his claim for ischaemic heart disease, he must satisfy the requirements of the SoP applicable to that condition, which is No. 90 of 2007. The applicant can satisfy the requirements of that SoP if he can establish his depressive disorder:
(a) was defence-caused, and
(b) the depressive condition had a date of onset prior to early 2001. (Factor 6(m) in the ischaemic heart disease SoP refers to the presence of a clinically significant psychiatric disorder for at least 5 years before the date of onset of the heart condition.)
The applicant provided a good deal of evidence about his experience as a bomb-disposal technician. He had difficulty remembering some events. His recollection of dates and the detail of some specific events was especially vague. Even so, I am satisfied he was doing his best to assist the Tribunal. I accept he was a credible witness and I have no reason to doubt what he said at the hearing or in his statements. I accept his evidence.
Mr Mewett told a number of stories about hair-raising experiences he had as a bomb-disposal technician. He was routinely required to handle unexploded munitions. That often occurred in a controlled environment which limited the risk – although Mr Mewett told stories about how some of his colleagues were not as careful as they should have been, leading to a number of dangerous incidents. Disputes with his colleagues over some of these issues led to conflict in the workplace, which he claimed amounted to a category 2 stressor. There was also uncontested evidence that the applicant was called out to assist civilian authorities dealing with suspected explosives on a regular basis throughout the late 1990s up until he left the RAAF in 2006. Mr Mewett said he was on call continuously over an eight or nine year period for this purpose. He said he might be asked to deal with suspicious packages, improvised explosive devices and unexploded bombs. Many of them were fakes or turned out to be miss-identified, but that could only be determined after a careful inspection. Some of the devices were real and represented a clear threat to his life and the lives of others. The calls for assistance were sporadic; he said he might not get a call for a week or so then he would receive a rush of calls.
I am satisfied the calls to assist civilian authorities dealing with suspicious or dangerous packages and devices in the period between 1998 and 2006 qualify as category 1A stressors for the purposes of the SoP in relation to depressive disorder. Each call exposed the applicant to what appeared to be (and in many cases was) a life-threatening event. I do not think I need to refer to each and every incident here, as there is no dispute as to the nature and frequency of those calls in the relevant period.
The more challenging question for present purposes is the date of onset of the applicant’s depressive disorder. He was formally diagnosed as suffering from recurrent major depressive disorder in 2009, but the respondent agreed the date of onset was earlier. Mr Williams, for the Repatriation Commission, suggested there was evidence that could have provided the basis for a diagnosis of depressive disorder in 2004/2005. The applicant agreed a diagnosis could have been made then, but argued the date of onset was even earlier – sometime around 1998-1999. The difference in dates is important because the applicant’s claim in respect of ischaemic heart disease cannot succeed if his (admittedly defence-related) depressive disorder took hold less than five years before the diagnosis of ischaemic heart disease in early 2006. (I note there is some uncertainty in the evidence as to precisely when the heart condition was diagnosed. Some of the documents showed the diagnosis being made in 2006 or even 2007, while other evidence suggested it was in late 2005. I will assume it occurred in 2006 but it makes no difference to the outcome of the case, for reasons that will become apparent.)
In order to determine the date of onset, I must identify the point at which a properly briefed medical practitioner could have made a diagnosis according to appropriate diagnostic criteria.
The applicant relied on the report of Professor Baune, a well-credentialed psychiatrist. Professor Baune also gave evidence at the hearing. Professor Baune acknowledged it was difficult to specify the date of onset in a case like this. Mr Mewett’s recollection was poor, and the documentary evidence was incomplete. Professor Baune’s report (exhibit one at p 204) indicated the condition had certainly been present from at least 2004-2005 but in his evidence at the hearing he agreed it was possible the date of onset was as early as 1998-1999. He drew that inference from evidence the applicant had been to see a psychiatrist at that point because of stress. Mr Honchin, for the applicant, argued I should draw the same inference. The practitioner in question was a psychiatrist, so Mr Mewett was presumably provided with a referral – which means someone (I assume a general practitioner) must have thought the symptoms Mr Mewett was exhibiting were serious enough to justify specialist treatment. Mr Williams argued the absence of a formal diagnosis following those sessions suggests precisely the opposite: if Mr Mewett was experiencing depression, the treating psychiatrist would have made such a diagnosis, especially given the nature of the applicant’s work.
While Professor Baune was willing to countenance the possibility Mr Mewett was ill with depression from as early as 1998 or 1999, I am not persuaded the evidence is such that a diagnosis could be made at that point. I mean no disrespect towards Professor Baune in making that finding: determining a precise date of onset is not necessarily something that would ordinarily matter to a doctor treating a patient like Mr Mewett. In any event, I do not think Professor Baune’s oral evidence on this question was expressed with such conviction that I could be reasonably satisfied a diagnosis of depression could be made in 1998/1999, even if some of the symptoms of depression were beginning to manifest at that early point. We simply do not know enough about the interaction with the psychiatrist in 1998 or 1999 and the circumstances which surrounded it to reach a firm conclusion.
CONCLUSION
The decision in relation to the applicant’s claim in respect of depressive disorder is set aside. I decide in substitution that his depression condition is related to his defence service. I remit the question of assessment to the respondent for further consideration. The decision in relation to the applicant’s ischaemic heart disease is affirmed.
I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.
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Associate
Dated 8 May 2013
Date of hearing 27 March 2013 Date final submissions received 14 March 2013 Counsel for the Applicant Darin Honchin Advocate for the Applicant Michael P. Purcell Advocate for the Respondent Bruce Williams
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