Roberts and Repatriation Commission (Veterans’ entitlements)

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Roberts and Repatriation Commission (Veterans’ entitlements) [2016] AATA 587 (10 August 2016)

Division

Veterans' Appeals Division

File Number

2015/2354

Re

Colleen Roberts

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Miss E A Shanahan, Member
Date 10 August 2016
Place Melbourne

The Tribunal affirms the decision under review.

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

Miss E A Shanahan, Member

VETERANS’ AFFAIRS – disability pension claim – accepted condition of chondromalacia patellae – aggravation by a fall in August 2000 during operational service – claim for major depressive disorder and generalised anxiety disorder arising from persistent knee pain – past and pre-service psychiatric history – failed claims for aggravation of pre-existing psychiatric disorder under the Military Rehabilitation and Compensation Act2004 – decision affirmed.

Legislation

Veterans’ Entitlement Act 1986

Cases

Repatriation Commission v Cooke (1998) 90 FCR 307

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Bey (1997) 79 FCR 364

Re A’Bell and Repatriation Commission (1999) 58 ALD 721

Repatriation Commission v Yates (1995) 57 FCR 241

Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533

Repatriation Commission v Milenz (2006) 93 ALD 107

Secondary Material
Statement of Principles Instrument No 37 of 2008 Adjustment disorder
Statement of Principles Instrument No 27 of 2008 Depressive disorder
Statement of Principles Instrument No 83 of 2015 Depressive disorder
Statement of Principles Instrument No 101 of 2007 Anxiety disorder

REASONS FOR DECISION

Miss E A Shanahan, Member

10 August 2016

  1. Ms Roberts served in the Royal Australian Air Force (RAAF) from 30 January 1991 until her separation from the force on 28 July 2013 on medical grounds. During her service, Ms Roberts was deployed to Timor-Leste (East Timor) from 31 January 2000 to 31 August 2000. It is accepted that this service is operational service within the meaning of s 6(c) of the Veterans’ Entitlement Act 1986 (the Act).

  2. On 24 July 2012, Ms Roberts lodged a claim for disability pension. Ms Roberts claimed incapacity for chondromalacia patellae of both knees, lower back problems later diagnosed as lumbar spondylosis, a depressive disorder and generalised anxiety disorder (GAD). On 26 February 2013, the Repatriation Commission (the Commission) rejected the claim on the basis that the conditions were not service related.

  3. Ms Roberts lodged an application with the Veterans’ Review Board (VRB) for review of the decision. This was initially heard on 12 November 2013 but was adjourned indefinitely, with the VRB requesting further information. On 17 February 2015 the VRB reconsidered the application and accepted that the condition of chondromalacia patellae of both knees and lumbar spondylosis were war-caused, as defined in s 9 of the Act, and that a pension was payable as from 24 April 2012. The claims for major depressive disorder (MDD) and generalised anxiety disorder (GAD) were rejected. The decision of the Commission with respect to the psychiatric disorders was affirmed.

  4. Ms Roberts lodged her application for review with the Administrative Appeals Tribunal on 8 May 2015. Ms Roberts was represented by Ms Rachael Walsh of counsel, instructed by Williams Winter…

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Details
Case
[2016] AATA 587
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review by Ms Roberts against a decision of the Repatriation Commission. Ms Roberts sought to establish a connection between a psychiatric disorder and an injury sustained during her operational service in East Timor in 2000. The Administrative Appeals Tribunal was tasked with determining whether the material before it raised a reasonable hypothesis connecting Ms Roberts's psychiatric condition to her service.

The primary legal issue before the Tribunal was whether the onset of Ms Roberts's Major Depressive Disorder (MDD) or an adjustment disorder was reasonably connected to her operational service, specifically to the chronic pain she experienced following a knee injury sustained in East Timor. This required the Tribunal to consider the relevant Statements of Principles (SoP) and, in particular, Factor 6(a)(ix) of Instrument No 27 of 2008 and the similarly stated factor in Instrument No 83 of 2015, which relate to chronic pain of at least three months duration at the time of the clinical onset of the depressive disorder. The Tribunal also had to determine, to its reasonable satisfaction, the correct diagnosis of Ms Roberts's medical condition to properly apply the relevant SoP.

The Tribunal considered evidence from three psychiatrists, including Dr White, who had seen Ms Roberts on multiple occasions. Based on this evidence, the Tribunal determined that the correct diagnosis was MDD, although Dr Kaplan had also provided a differential diagnosis of MDD alongside an adjustment disorder. The Tribunal found that while the aggravation of Ms Roberts's pre-existing chondromalacia patellae due to the knee injury was accepted as service-related, the claim for MDD or adjustment disorder was rejected because the material did not raise a reasonable hypothesis connecting these conditions to her operational service, particularly concerning the duration and impact of chronic pain as required by the SoPs.

Orders

Orders of the court

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Background

Background to the litigation

Ms Roberts lodged her application for review with the Administrative Appeals Tribunal on 8 May 2015. Ms Roberts was represented by Ms Rachael Walsh of counsel, instructed by Williams Winter solicitors. Mr Ken Rudge, a solicitor in the employ of the Commission appeared for the Repatriation Commission. The Tribunal was provided with the documents lodged by the Commission in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (T-documents). Both parties tendered further documentation a list of which is appended to this decision. Ms Roberts gave oral evidence before the Tribunal. Dr James Hundertmark, a psychiatrist, also gave oral evidence by telephone.BACKGROUND TO THE APPLICATION Ms Roberts (nee Davis) enlisted in the RAAF on 30 January 1991. She was discharged on 28 July 2013. At all times during her service she was employed in a clerical or administrative role. Throughout her 22½ years in the RAAF Ms Roberts attracted what could be broadly stated as good to very good reports regarding her work performance. She was assessed on at least an annual basis and was promoted in 1997 to the rank of corporal and in January 2004 to that of sergeant. On the RAAF scale of A to C-, Ms Roberts attracted a level of B- to B+ in her various roles. These included working in aviation operations in the peacekeeping force in East Timor and administrating the payroll for Australian Defence Force (ADF) forces at RMAF Station Butterworth while posted in Malaysia. Following her return to Australia in January 2004, Ms Roberts was posted to New South Wales so that she could spend more time with her partner, from whom she had been separated for two and a half years by virtue of her service at Butterworth. They married in 2005. Her first pregnancy was confirmed in September 2005 and maternity leave was granted from 9 January 2006 until 22 July 2006 at half pay, followed by a further four and a half months of long service leave. A second pregnancy occurred the following year and Ms Roberts was granted maternity leave from 31 August 2007 until 7 April 2008. After her return to work in 2008, Ms Roberts had reportedly taken a considerable time to settle into her new position in charge of the orderly room. Her performance was assessed in 2008 as being suitable, having previously being rated as highly suitable. She applied for and was granted a change in her days at work so that she worked nine days per fortnight from 10 November 2008 to 1 November 2009. This enabled her to spend more time with her young children. At the end of this period she was assessed as being highly suitable for her role and said to be outstanding. Ms Roberts applied for a further reduction in her working hours. Between 3 February 2011 and January 2012 Ms Roberts reduced her work to seven days per fortnight. She was involved in developing manuals and courses for clerks employed in the RAAF. Her assessment on 20 September 2011 attracted a suitable rating. She was approved for return to full time work on 9 February 2012. In March of that year, Ms Roberts returned to work at RAAF Base Wagga, although it was acknowledged she was under medical treatment and required access to pharmaceutical supplies. On 9 July 2012 Ms Roberts was posted as non-effective on medical grounds

Evidence

Evidence Before The Court

Dr White saw Ms Roberts on a fourth occasion on 26 August 2013, he having not seen her at that stage for three months. He reiterated his opinion and in particular stated that he considered that her GAD and MDD were brought on by stressors experienced in East Timor in 2000, including the knee injury. Dr White recommended Ms Roberts change her medication to Cymbalta 60 mg per day. He considered her permanently unfit for operational deployment and currently unfit for any work. Dr White recommended that Ms Roberts continue to see her psychologist and that she increase the Cymbalta to 120 mg a day in due course. ORAL EVIDENCE BEFORE THE TRIBUNALThe Applicant Ms Roberts gave evidence which, in essence, affirmed her account in her witness statement of the events that occurred in August 2000 in East Timor. The only variation was that she said that the pain in her knees continued unabated from the time of the fall and throughout her posting to Malaysia. She described the pain as a generalised ache with sharp episodes which restricted her walking on sand, her ability to run, walking any distances and driving an automatic vehicle. Stair climbing and horse riding were extremely difficult. She also stated that the pain was unaltered by the surgery undertaken in January 2002. Ms Roberts described her psychological symptoms as being very sad, feeling dark like being in a well and only able to see one metre in front of her, feeling alone and getting deeper. This she said commenced in East Timor within 10 days of the fall injuring her knees. This lowering of mood as described had, she said, stayed with her until she had surgery in January 2002. She agreed that she was concerned about her Pap smear results, but maintained her claim that knee pain was her most significant distressing symptom. Ms Roberts confirmed that she had suffered bulimia nervosa for a period for more than two and a half years in the 1990’s.She stated that this had been associated with a lowered mood. Ms Roberts also agreed that she had felt that she lacked motivation during that period, had been extremely unhappy and experienced work problems while she was posted in Canberra in the 1990s. She confirmed that she and Dr Stevens, who had seen her in relation to her bulimia, did not get on. Ms Roberts described her current psychological status as being very irritable, frequently losing her temper with her children and becoming aggressive. She said when exposed to any stress she lost the plot. She said she had never been like that before the fall. Currently her social life was zero, she did not indulge in any sport and remained depressed. Ms Roberts confirmed that she had postnatal depression after the birth of her second child. In cross-examination by Mr Rudge, Ms Roberts said that the difficulties she had experienced with her mother and grandmother as reported in 1995 were minor communication stuff. She agreed that she had been very worried by the results of her Pap smear and left iliac fossa pain in 2001. She disagreed with Dr Menon’s report of 21 March 2002, which stated that Ms Roberts had recovered well from her knee surgery and was upbeat and doing well.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Mr Rudge submitted that the Tribunal could find could find that the material did not raise a reasonable hypothesis and therefore Step 1 of Deledio was not satisfied. It was further submitted that based purely on the material, the Respondent considered the onset of Ms Roberts’s psychiatric disorders as being 1995. Although the symptoms, waxed and waned, there was no worsening of the underlying condition in the period of 2001 to 2002.TRIBUNAL’S DELIBERATIONS Ms Roberts claim under the Act arises from her operational service of seven months between 31 January 2000 and 31 August 2000, when she was deployed to East Timor. On 12 August 2000 Ms Roberts suffered a fall, injuring her knees. This resulted in an aggravation of her bilateral chondromalacia patellae, a condition that had been well documented in her RAAF medical file since 1991. The diagnosis had been confirmed by x-ray on 30 September 1998, which had shown a developmental anomaly of increased lateral tracking, resulting in repeated subluxation and dislocations of both patellae in their relation to their articulation with the femur. As a result, Ms Roberts had chondral irregularity and degenerative changes in the patellae. The VRB accepted that this was an aggravation of the pre-existing condition, occurring as a result of Ms Roberts’s operational service. The claim to be reviewed by this Tribunal relates to the development of a psychiatric disorder said to have arisen from the injury to the knees in August 2000. The claim relies on the SoP Instrument No 83 of 2015 or, in the alternative, Instrument No 27 of 2008 in relation to a depressive disorder. Factor 6(a)(ix) of Instrument No 27 of 2008 identifies a causative factor as being chronic pain of at least three months duration at the time of the clinical onset of the depressive disorder. Ms Roberts’s claim is based on the Factor 6(a)(ix) or the similarly stated factor in Instrument No 83 of 2015, relating to chronic pain of three months duration. The VRB accepted the claim for aggravation of chondromalacia patellae. It rejected the claims for MDD or, in the alternative, an adjustment disorder on the basis that the material before it did not raise a reasonable hypothesis connecting the condition to Ms Roberts’s operational service. Before proceeding to consideration of the hypothesis the Tribunal must determine, to its reasonable satisfaction pursuant to s120(4) of the Act, the diagnosis, or at least the nature of the medical condition on which the claim is based (Repatriation Commission v Cooke (1998) 90 FCR 307). This is also of importance, as the Tribunal must determine the actual diagnosis in order to apply the relevant SoP. Based on the evidence of three psychiatrists, Dr White who saw Ms Roberts on four occasions over a period of 18 months and Dr Kaplan and Dr Hundertmark, both of whom saw her on one occasion only, the Tribunal determines that the correct diagnosis is that of a MDD. While Dr White also made a diagnosis of GAD, this was not supported by his descriptions of the symptomatology. Dr Kaplan’s diagnosis of an adjustment disorder with depressed and anxious mood was certainly attracted by the claimed psychiatric disorder being secondary to the physical injury. Dr Kaplan had also provided a differential diagnosis of a MDD.