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 disorderREASONS FOR DECISION
Miss E A Shanahan, Member
10 August 2016
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).
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.
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.
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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- Case
- [2016] AATA 587
- Decision Date
CaseChat Overview and Summary
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
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Full text does not contain this section.
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.