Rowe and Repatriation Commission
[2004] AATA 662
•25 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 662
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/58
VETERAN'S APPEALS DIVISION ) Re TREVOR JOHN ROWE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Brigadier R D F Lloyd, Member Date25 June 2004
PlacePerth
Decision Pursuant to s 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides:
(a) to set aside the Veterans’ Review Board (“VRB”) decision under review of 14 November 2002 in so far as it rejected Lumbar Spondylosis and to accept that condition as being war-caused with effect from 1 June 1999;
(b) to affirm the VRB decision under review in so far as it rejected the conditions of Anxiety Disorder and Psoriasis as being war-caused; and
(c) to remit the matter of assessment of incapacity from the now accepted Lumbar Spondylosis, together with all other accepted conditions, to the respondent.
............(sgd R D F Lloyd)....................
Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ entitlements – ex RAN with operational service WWII – claims anxiety disorder, psoriasis and lumbar spondylosis– anxiety disorder and psoriases rejected as hypotheses did not fit template of SoPs – lumbar spondylosis accepted on basis of lifting of weights/weight bearing to cumulative total of 120,000 kg – assessment of incapacity remitted to respondent.
Veterans’ Entitlements Act 1986 (Cth) ss 120, 120A, 196B (2)
Repatriation Commission v Deledio (1998) 83 FCR 82
Kattenberg v Repatriation Commission [2002] FCA 412
Stoddart v Repatriation Commission [2003] FCA 334
Repatriation Commission v Gosenwinckel [1999] FCA 1273
Cornelius v Repatriation Commission [2001] AATA 890
Statement of Principle Concerning Anxiety Disorder (Instrument No 1 of 2000)
Statement of Principle Concerning Lumbar Spondylosis (Instrument No 46 of 2002 as amended)
Statement of Principle Concerning Psoriasis (Instrument No 56 of 2002)
REASONS FOR DECISION
25 June 2004 Brigadier R D F Lloyd, Member 1. This is an application before the Administrative Appeals Tribunal (“the Tribunal”) by Trevor John Bowden Rowe (“the applicant”) for a review of the VRB decision of 14 November 2002 which:
(a)affirmed the decision of the Repatriation Commission (“the respondent”) of 19 January 2000 insofar as it determined that the conditions of Lumbar Spondylosis and Psoriasis were not war-caused;
(b)affirmed the respondent’s decisions of 30 October 2001 insofar as it was determined that the conditions of Anxiety Disorder and (again) Psoriasis were not war-caused, and that disability pension be paid at 40% of the General Rate.
2. The applicant attended the hearing and was assisted by his advocate Mr C Hammal. The respondent was represented by Mr C Ponnuthurai. The Tribunal had before it the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”). In addition, the following documents were taken into evidence:
(a)Tendered by the respondent:
·Exhibit R1: The transcript of VRB proceedings re T Rowe of 14 November 2002;
·Exhibit R2: Letter to Mr Rowe from Mr Ponnuthurai dated 25 September 2003, with attachment of two pages of the publication titled “War at Sea in the Iron Clad Age” by R Hill.
(b) Tendered by the applicant:
·Exhibit A1: Statement prepared by T Rowe providing details concerning HMAS St Giles of 14 pages, dated 23 March 2004.
3. The applicant’s advocate advised, at the commencement of the hearing, that Mr Rowe did not wish to pursue the matter of assessment of pension.
4. The applicant gave oral evidence, was questioned by the Tribunal and cross-examined by the respondent’s representative. Mr Rowe gave his evidence in a forthright manner and the Tribunal regards him as an honest witness and as reliable in his accuracy as one would expect in recollecting matters dating back nearly 60 years ago.
Applicant’s Service and Related Matters of Law
5. Mr Rowe served in the Royal Australian Navy (“the RAN”) from 29 March 1945 to 17 December 1946. Although the prescribed end date of the period of hostilities in World War 2 is 29 October 1945, the full 21 months (approximately) of Mr Rowe’s service is accepted, under the Act, as being operational service as defined. Consequently the matter before the Tribunal is to be determined in accordance with ss 120(1) and 120(3) of the Act. Under these provisions the Tribunal is required to decide whether, on the material before it, there is raised a reasonable hypothesis to connect the claimed conditions relevantly with this service. If so it must determine, based on the facts before it, that the conditions are war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
6. Additionally, as the claim was lodged after 1 June 1994, by virtue of s 120A of the Act, the Tribunal is required to assess the matter in accordance with any relevant Statements of Principle (“SoP”) issued by the Repatriation Medical Authority (“the RMA”).
7. The Tribunal’s consideration of the applicant’s claim for acceptance of the three conditions involved follows the process set out in Repatriation Commission v Deledio [1998] 83 FCR 82.
Diagnosis of Claimed Conditions
8. As the initial step in this review process the Tribunal must be relevantly satisfied as to the appropriateness of the diagnosis and description of the claimed conditions. The standard of proof in this regard is that of reasonable satisfaction, ie. the Tribunal must be satisfied on the balance of probabilities concerning the diagnosis and description of the conditions involved in the applicant’s current claim.
9. Whilst Mr Rowe, in his claims to the respondent dating back to September 1999, had described his claimed conditions in various ways, as a result of medical examination those which are relevant to the matter now before the Tribunal have been diagnosed and described as Anxiety Disorder, Psoriasis and Lumbar Spondylosis. This is common ground for the two parties and based on the documented medical evidence before it, the Tribunal is reasonably satisfied as to the appropriateness of the diagnosis/description of each of these conditions also.
Applicant’s Contention Re Claimed Conditions
10. Mr Rowe contends that his Lumbar Spondylosis should be accepted as being war-caused it having been caused by, or contributed to in a material degree by the activity that was required of him in the process of re-coaling the ship of which he was a member – HMAS St Giles – at Moratai during his operational service.
11. The applicant contends that his Anxiety disorder has come about as a result of his Navy service and in particular of him witnessing at close hand what he regarded at the time as unwarranted physical beating of Japanese prisoners of war (POW) during these same re-coalings of HMAS St Giles. This distressed him then and still does. Consequently he maintains that his Anxiety Disorder should also be accepted as war caused.
12. It being generally accepted that Psoriasis can develop as a consequence of an anxiety-type condition, the applicant contends that his Psoriasis should be accepted as war-caused as a sequela of his Anxiety Disorder. In this regard it was accepted by the respondent’s representative at the hearing that should the Anxiety Disorder be determined as being war-caused and that the psoriasis condition be shown to have first occurred after the onset of that disorder, then it too should be accepted as being war-caused.
13. Having first considered the relevant material before it concerning these contentions, but without making findings of fact, the Tribunal is satisfied that the material adequately points to a hypothesis connecting each of the claimed conditions with the applicant’s war service.
Statements of Principle
14. There are SoP’s in force, determined by the RMA, dealing with all three claimed conditions. These are as follows;
(a)Lumbar Spondylosis: the current SoP is Instrument No 46 of 2002 (as amended). As at the time of the respondent’s January 2000 decision it was Instrument No 27 of 1999.
(b)Anxiety-Disorder: the relevant SoP throughout the period is Instrument No 1 0f 2000.
(c)Psoriasis: the current SoP is Instrument No 56 of 2002. As at the time the respondent’s October 2001 decision it was Instrument No 21 of 1998.
15. The Tribunal is required, in the first instance, to assess the matter using SoPs now current. Should it not find in favour of the applicant as a result, then the applicant has an accrued right for the matter to be assessed using the SoPs current at the time of the respondent’s decision.
16. It is common ground and agreed by the Tribunal that the current SoPs concerning Lumbar Spondylosis and Psoriasis are more beneficial to the applicant. Hence it was agreed it would be pointless to pursue these aspects using the previous SoPs, should the Tribunal not find in favour of the applicant using the current version. The SoP for Anxiety Disorder used by the respondent previously remains current.
Evidence
17. Lumbar Spondylosis. Mr Rowe’s contention in regard to his back condition – Lumbar Spondylosis – is based on the physical work he was required to do in re-coaling the ship of which he was a member. The relevant times of this activity are restricted to those which occurred when the ship was based at Moratai. On other occasions during his service when HMAS St Giles needed re-coaling, Mr Rowe was not involved in the same hands-on manner and therefore are not relevant. His descriptions of the seven Moratai re-coalings are provided in considerable detail in the documented evidence before the Tribunal and as given orally by him (Transcript of Tribunal hearing refers). However the main aspects of relevance in relation to his contention and the hypothesis raised are as follows:
(a) It is common ground that despite the lack of authoritative and specific evidence, the applicant, as a member of the ship’s working party during manual re-coalings, would probably have personally dealt with/moved some 120,000 kg or more of coal whilst on operational service. The respondent’s representative emphasises that this figure is however a speculative one (transcript of Tribunal hearing and Exhibit R2);
(b) The process by which the coal was loaded onto St Giles at Moratai involved manually filling jute-type bags in the hold of the collier ship then moving each filled bag 4 or 5 yards to a point where the bags were then transferred to St Giles by crane. The weight of the filled bag Mr Rowe estimates was in excess of 25kg. Again however the respondent’s view is that this figure is also speculative (transcript of Tribunal hearing and Exhibit R2);
(c) The applicant’s evidence is that the bag when filled with coal had to be lifted then carried to a point in the hold of the collier ship where they were hoisted by crane. He maintained that, because of the uneven state of the surface of the coal over which the bags had to be moved, it was not possible for them to be dragged – as the respondent’s representative maintained in his submissions was more likely to have occurred (Exhibit R2 also refers);
(d) Mr Rowe’s evidence is that he was not involved in any heavy lifting/carrying after his discharge from the Navy and in the latter years of his employment his work was largely clerical;
(e) The documentary evidence indicates that Mr Rowe began to suffer significant back pain in the 1950’s. In the T documents at T5 page 38 Dr Quinlivan records the date of onset as being in 1955.
18. Anxiety Disorder: Mr Rowe’s contention in regard to this condition is based on a number of what he considers were stressful activities or events during service in HMAS St Giles. These are covered in documented evidence in the T documents (particularly T11) and in Exhibit A1. However the main event concerned the times during re-coaling of St Giles when at close range he observed Japanese POW in a work party being physically beaten/bashed by Indian Army (Sikh) soldiers. Although others were briefly mentioned it was this event on which the applicant concentrated during the Tribunal hearing. The main aspects of relevance concerning this and Mr Rowe’s contention in relation to the question of the Anxiety Condition and the hypothesis raised are as follows:
(a)The applicant, as part of the work party involved in the re-coaling of St Giles in Moratai, states that he witnessed the unwarranted striking of Japanese POW by Sikh soldier guards with what he recalls an implement akin to a shovel or mattock handle.
(b)Mr Rowe states that as the group of 10 POW passed, one of the Sikh soldiers “…just tapped the last Jap on the shoulder and brought him out in the open and…just gave him about three or four welts right across the kidney…with the mattock handle…” This was done with sufficient force to bring the POW to his knees and was repeated again and again throughout the day to each one in the group. Mr Rowe says he heard the same hitting going on with the other group of 10 POWs on the collier ship.
(c)The activity described above was said to have been observed by an Australian sergeant who Mr Rowe says took no meaningful action to stop it. So also did a Navy Midshipman who “…simply walked away from the scene” – according to the applicant’s evidence.
(d)These beatings greatly distressed Mr Rowe at the time and the event he says has remained in his mind over time. It was not alleviated by one of the Sikh soldiers saying to Mr Rowe “…very bad men…kill plenty Dutch…” He offered the mattock handle to Mr Rowe in order that he could inflict similar treatment on the Japanese. He maintains that he declined the offer. (Transcript of Tribunal hearing – in particular pages 47 to 50.)
(e)On another occasion when re-coaling there were no Sikh guards and Mr Rowe was placed in charge of 10 of the POW work party. He was provided with a loaded pistol and was on his own. This scared him as he thought the POW may try to attack him. He had not been given any instructions and did not think he could escape from the ship’s hold in time if they attempted to do so.
(f)Mr Rowe states that he had a stressful time on discharge from the Navy in 1946. Adjustment was difficult – which the Tribunal notes it was for many, if not most, discharged servicemen.
(g)There is some support for Mr Rowe’s contention concerning his overall time with HMAS St Giles being stressful which is provided by a fellow seaman – Mr B Horner. His letter to the applicant dated 12 October 2001 is at T22 pages 134 and 135.
(h)Mr Rowe believes that the stressful events during his service, in particular the Japanese POW incidents, in total left him in a state of anxiety by the time he was discharged and he has remained so.
(i)His Service medical documents do not record any mental/anxiety disorder during his time in the Navy, nor at the time of discharge.
(j)The applicant maintains that, what he believed was delayed post-traumatic stress disorder (“PTSD”), was evident around 1947/1950. However he did not consult his doctor (Dr R. Quinlivan) until 2001 in relation to this condition (T16 pages 113 and 114), when he was referred to a specialist.
(k)Dr Fellow-Smith’s (specialist) report on T15 pages 109 and 110 of 28 May 2001 specifically excludes a diagnosis of PTSD and advises that Mr Rowe has an Anxiety Disorder, which he opines is due to the applicant’s wartime service but does not sufficiently describe the basis for that conclusion.
19. Psoriasis: The applicant’s skin condition became sufficient of a problem by 1948, that Mr Rowe sought medical treatment and the condition was diagnosed by a dermatologist in that year as Psoriasis (T5 page 37). He states he has been treated continuously ever since. Mr Rowe’s statement at T11 and Exhibit A1 also refer.
Requirements of Relevant SoPs
20. Lumbar Spondylosis (SoP Instrument No 46 of 2002 as amended)
The relevant factor for the hypothesis raised is factor 5 (j), which states as follows:
“(j) manually lifting or carrying loads of at least 25kg while weight bearing to a cumulative total of 120,000kg within any 10 year period before the clinical onset of lumbar spondylosis; or”
21. Anxiety Disorder (SoP Instrument No 1 of 2000)
(a)The relevant factor for the hypothesis raised is factor 5(a)(ii), which states as follows:
“(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or”
(b)The term “severe psychosocial stressor” is defined in the same SoP in paragraph 8 as follows:
“…means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
(c)The meaning of the term “generalised anxiety disorder” is contained in this same SoP, but as the diagnosis of Mr Rowe’s psychiatric condition is not in contention in this matter the SoP’s wording will not be spelt out in these Reasons.
22. Psoriasis (SoP Instrument No 56 of 2002)
(a)the agreed relevant factor for the contention raised is factor 5(e). This being the basis of the agreed automatic acceptance of this condition as a sequel to Anxiety Disorder – should that condition be accepted as a pre-cursor (paragraph 12 of these Reasons refers). Factor 5(e) states as follows:
“(e) suffering from a clinically significant anxiety disorder or a clinically significant depressive disorder at the time of the clinical onset of Psoriasis; or”
(b)This clearly depends on the Tribunal’s yet to be determined times of clinical onset of Psoriasis and the anxiety condition. A further possibility, not raised by the applicant so much as the respondent’s representative, is that the psoriasis condition could have been itself a result of a relevant event or events – distinct from the Anxiety Disorder. In that respect it was agreed the only relevant factor in the same SoP, is factor 5(f) – which states as follows:
“(f) experiencing a severe psychosocial stressor within 30 days immediately before the clinical onset of Psoriasis; or”
(c)The term “severe psychosocial stressor” is defined in paragraph 8 of this same SoP. The wording is identical to that set out in the SoP for Anxiety Disorder, referred to in paragraph 21(b) of these Reasons.
Preliminary Conclusions and Findings – Re Clinical Onset of Claimed Conditions
23. To better enable the Tribunal to reach its decisions in this matter, to allow these Reasons to hopefully be understood more readily, and because the question of times of clinical onset of Mr Rowe’s claimed conditions are critical to it’s decision-making in this instance, the Tribunal chooses to divert somewhat from the sequence of procedure set out in Deledio in this regard.
24. Lumbar Spondylosis. It is common ground and it is agreed based on the evidence before it (paragraph 17 of these Reasons refers), that Mr Rowe first had diagnosable symptoms of Lumbar Spondylosis in the mid 1950’s. From the medical reports by Dr Quinlivan and also the applicant’s oral evidence, the Tribunal is satisfied beyond reasonable doubt that the clinical onset (as defined) of his low back condition as claimed was in the mid 1950s. Mr Rowe’s statement of evidence at T11, as well as Exhibit A1, also refer.
25. Anxiety Disorder. The relevant aspects are as follows:
(a)The applicant’s evidence, as restated orally at the hearing, is that his anxiety condition resulted from his service in, and from the events whilst a member of HMAS St Giles in 1945 (paragraph 18 of these Reasons refers). He emphasises in particular the events relating to Japanese POW with which he was involved. Mr Rowe believes that his claimed anxiety condition, subsequently diagnosed as Anxiety Disorder, manifested itself at about that time (1945) and has been with him ever since.
(b)There is no indication in his Service records before the Tribunal of such a condition being evident or reported whilst Mr Rowe was in the Navy. In his oral evidence Mr Rowe confirmed that he made no such reports concerning any form of anxiety during his service – nor on his discharge. His Navy discharge medical documents indicate that he suffered from no persisting disability (T4 pages 25 and 26).
(c)The applicant’s 2001 DVA claim form, completed by him and by his general practitioner (GP) Dr Quinlivan, is at T16 page 113. Here Mr Rowe states that he “… first became aware of the signs and symptoms of the disability [PTSD/Depression/Anxiety Disorder …in] 1947/1950”. Also on the same document at page 113, Dr Quinlivan states that Mr Rowe first consulted her for “Delayed PTSD … [over] the last few months”. The document concerned is signed by Dr Quinlivan on 1 August 2001. The Tribunal concludes from this that while Mr Rowe maintains in his evidence that his anxiety condition began almost immediately after his discharge (or earlier), Dr Quinlivan who, according to the records had been Mr Rowe’s GP since the early 1960s, was not consulted by him for anxiety until some time in early to mid 2001.
(d)There is no evidence before the Tribunal to indicate that Mr Rowe consulted any other medical practitioner about his anxiety condition until he saw Dr Quinlivan in 2001. And then it was for the specific purpose of lodging a claim to DVA for that and other conditions. As far as I am aware from the evidence presented, Mr Rowe did earlier see a doctor in Mt Barker – but that was for psoriasis and was soon after his 1946 discharge. He was given ointment, which was unsuccessful. He then later began seeing Dr Quinlivan for his skin which she records in the 2001 claim form that he first consulted her for that condition “ … years ago”. Hence, at this stage, we are still left with the documented evidence on the clinical onset of Anxiety Disorder as being early to mid 2001 – in terms of diagnosis and consultation.
(e)The first and only psychiatric specialist seen by Mr Rowe was when he was apparently referred to Dr Fellows-Smith in May 2001. This would tie in with him having been first seen by Dr Quinlivan some months earlier than August that year – at which time she had diagnosed “Delayed PTSD”. Dr Fellows-Smith’s 28 May 2001 report is at T15 pages 109 and 110. He excludes PTSD and diagnoses “Generalised Anxiety Disorder”. He opines that the anxiety condition was “… service related …” without relevant justification and gave no indication as to clinical onset in this or his subsequent report, although be believed that “… some who were familiar with Mr Rowe before the war apparently noticed that he had become more withdrawn and more irritable on his return …”.
(f)Dr Fellows-Smith also made the point in his 28 May 2001 report that Mr Rowe’s wife had recently died (2000). This was a matter of relevance to the examining specialist at the time in relation to Mr Rowe’s anxiety condition, and is now to the Tribunal also – because of its recorded significance and on-going impact on Mr Rowe.
26. From the above aspects, as well as the other relevant evidence before it, the Tribunal reaches the conclusion, in respect to Mr Rowe’s Anxiety Disorder, that its clinical onset was no earlier than the late 1990s and probably in the early 2000s That is allowing for a gradual build-up of his anxiety condition culminating in him seeing Dr Quinlivan then Dr Fellows-Smith in 2001. His wife had died unexpectedly in 2000 and the impact of that loss on him and especially his mental health must have been enormous. His own evidence, both documented and oral, supports that conclusion.
27. Having said that, the Tribunal wishes to emphasise that this is not to say that Mr Rowe did not feel anxious when on HMAS St Giles in 1945. More than that, I am sure he was afraid at times. Many that I know of, at his age, in those circumstances, felt just that. Similarly as an ex-serviceman, younger than most, I am sure there were times that Mr Rowe felt lost and helpless in the period after his discharge. Not infrequently were ex-servicemen left unassisted or not treated as they should have been. I am well aware that many in Mr Rowe’s circumstances suffered considerably post war but in the end were not as fortunate as he was to finally make a break-through to get worthwhile jobs and places to live. Clinical onsets of some conditions, particularly psychiatric ailments, are difficult to assess – for the reasons I have outlined and often for a lot of other complex non Service reasons as well.
28. Psoriasis. The relevant aspects in this regard are as follows:
(a)In Mr Rowe’s DVA claim form at T5 page 37, he states that he first became aware of his skin condition in June 1947 and that: “…this most embarrassing skin disease appeared shortly after Service discharge in 1946; remaining continuously over the years, often chronically…”. Dr Quinlivan records on the same form that “… diagnosis made by appearance of rash and confirmed by dermatologist – Dr Alli … Date of Onset 1948”.
(b)Mr Rowe believes his Psoriasis is the result of the stress, anxiety and living conditions which he contends he suffered during his service in HMAS St Giles (T11 pages 64 and 65).
29. In this instance there is little or no conflict in the time of onset evidence. The clinical onset of Psoriasis is clearly late 1947/early 1948.
30. Summary of Findings Re Clinical Onsets. As a result of the evidence summarised above and its conclusions, the Tribunal is satisfied beyond reasonable doubt that the clinical onset of each of the claimed conditions was as follows:
·Psoriasis – late 1947/early 1948
·Lumbar Spondylosis – mid 1950s
·Anxiety Disorder – late 1990s/early 2000s
31. These dates, because of their relative importance in the sequence of considering this matter – as previously foreshadowed – the Tribunal regards as findings of fact, albeit these being earlier than in the normal Deledio process.
Are The Raised Hypotheses Reasonable?
32. In accordance with the Deledio approach, and having established there are relevant SoPs in force concerning the claimed conditions (and in this case having determined their dates of clinical onset), the Tribunal must then form an opinion whether the hypotheses raised are ‘reasonable’ in terms of the Act. It will do so if each hypothesis fits, that is to say is consistent with the ’template’ to be found in the SoP. The hypotheses raised must each contain one or more of the factors listed in the relevant SoP, and be appropriately related to the applicant’s eligible service.
33. The relevant factor(s) in each of the SoPs is as already determined by the Tribunal (paragraphs 20 to 22 of these Reasons).
34. It is of assistance at this stage to set out in as simple terms as possible the respective SoP requirements (required time gaps, sequence, or time span etc), against the already determined times of clinical onset of each condition:
Condition claimed Clinical Onset SoP Required Gap/
Sequence Etc
·Lumbar Spondylosis Mid 1950s Prescribed weight bearing (lifting) within any 10 year period before the clinical onset
·Anxiety Disorder Late 1990s Experiencing relevant stressor within 2 years of clinical onset
·Psoriasis Late 1957/early - Suffering anxiety condition at 1958 time of onset; or
- Experiencing relevant stressor
30 days before time of clinical onset
35. On the basis of the material set out above, the Tribunal is of the opinion as to the reasonableness of the hypotheses raised, as follows:
(a)Lumbar Spondylosis – hypothesis reasonable, subject to final findings of fact concerning weights and method by which Mr Rowe moved the bags of coal.
(b)Anxiety Disorder – hypothesis not reasonable as it does not fit the SoP template, in that the clinical onset (1990s) was more than 2 years after experiencing the relevant stressor(s) in 1945.
(c)Psoriasis – hypothesis not reasonable because:
·The relevant stressor(s) occurred in 1945, well before the required 30 days prior to the clinical onset of the condition (1947/48)
·Alternatively, the clinical onset of the Psoriasis was 1947/48 and this is prior to (not after) the clinical onset date of the Anxiety Disorder (late 1990s).
Tribunal’s Final Conclusions
36. Anxiety Disorder and Psoriasis
(a)The Tribunal accepts that Mr Rowe’s evidence concerning stresses he experienced whilst a member of HMAS St Giles on operational service in 1945 as being quite plausible. Some, for example the witnessing of Japanese POW being physically beaten with a wooden instrument, no doubt upset him at the time. I would also acknowledge from my own experience in war that he may from time to time have some unhappy memories of such events.
(b)However, based on my conclusions as summarised in these Reasons, drawn from the evidence provided, the material before it and my own war time experience, I am satisfied beyond reasonable doubt that in the end result the 1945 incidents described by the applicant occurring during his operational service neither singly nor in combination sufficiently meet the descriptors that define the meaning of a “psychosocial stressor” as required by the relevant SoPs.
(c)In view of that determination by the Tribunal, neither of the claimed conditions of Anxiety Disorder nor Psoriasis can succeed on the basis of their direct reliance on a relevant stressor, That being the case the claim for Anxiety Disorder as being war-caused in terms of the Act must fail, as does Psoriasis on that same direct reliance on a stressor basis.
(d)As discussed earlier, and which is common ground, the condition of Psoriasis could succeed if that condition was a sequela to a war-caused anxiety condition. However, that claim using this wording must also fail as the anxiety condition relied upon has been found not to be war-caused. As well, it has been determined that the clinical onset of Mr Rowe’s Anxiety Disorder was after that of Psoriasis – thus making the sequela argument doubly impossible.
37. Lumbar Spondylosis
(a)The Tribunal finds from the evidence that Mr Rowe during re-coaling of HMAS St Giles in Moratai in 1945 did in fact fill bags of coal to the weight in excess of 25 kg each. The total weight of coal bags filled is speculative, however the Tribunal is relevantly satisfied that over the five days involved a total amount in excess of 120,000 kg moved in bags by the applicant was not an unreasonable estimate.
(b)Each of the bags in the collier had to be moved by one man over 4 to 5 yards. Based on the description of heaped coal over which the bags had to be moved, the Tribunal is satisfied that they would have had to be lifted, and not dragged – as was the view of the respondent.
(c)Whilst acknowledging that the weights involved in this hypothesis and as contended by the applicant are speculative, the Tribunal is satisfied on the limited evidence available that the weight bearing/lifting requirement of the SoP is met. Furthermore, it meets the SoP requirement of being “ …within any 10 year period …”. The Tribunal thus is relevantly satisfied that all aspects of the SoP are met. Furthermore the activity was carried out by Mr Rowe whilst on operational service.
Conclusion
38. From its findings as outlined and reasons as summarised above, the Tribunal is satisfied beyond reasonable doubt that:
(a)Mr Rowe’s Lumbar Spondylosis was contributed to in a material degree by his war service.
(b)Mr Rowe’s conditions of Anxiety Disorder and that of Psoriasis are not related to his war service in terms of the Act.
(c)The effective date of acceptance of Mr Rowe’s condition of Lumbar Spondylosis is 1 June 1999.
Decision
39. Pursuant to s 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides:
(a)to set aside the VRB decision under review of 14 November 2002 in so far as it rejected Lumbar Spondylosis and to accept that condition as being war-caused with effect from 1 June 1999;
(b)to affirm the VRB decision under review in so far as it rejected the conditions of Anxiety Disorder and Psoriasis as being war-caused; and
(c)to remit the matter of assessment of incapacity from the now accepted Lumbar Spondylosis, together with all other accepted conditions, to the respondent.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Brigadier R D F Lloyd, Member
Signed: ...............(sgd V Wong)..........................
AssociateDate/s of Hearing 23 March 2004
Date of Decision 25 June 2004
Counsel for the Applicant Mr C Hammal
Counsel for the Respondent Mr C Ponnuthurai
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