Sastre and Military Rehabilitation and Compensation Commission (Compensation)

[2016] AATA 335

Sastre and Military Rehabilitation and Compensation Commission (Compensation) [2016] AATA 335 (24 May 2016)

Division	VETERANS' APPEALS DIVISION
File Number(s)	2014/1149
Re	Viviana Sastre
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

DECISION

Tribunal	Deputy President Bernard J McCabe
Date	24 May 2016
Place	Brisbane

The decision under review is affirmed.

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Deputy President Bernard J McCabe

CATCHWORDS

COMPENSATION – liability claim for psychiatric condition – whether applicant suffered from adjustment disorder – whether related to employment in the military – Tribunal cannot be satisfied alleged events contributed to the applicant’s condition – decision under review affirmed

LEGISLATION

Safety Rehabilitation and Compensation Act 1988 (Cth) s 14

REASONS FOR DECISION

Deputy President Bernard J McCabe

24 May 2016

1. Ms Viviana Sastre enlisted in the Army in late 2003. She claims she was bullied and harassed by her supervisors and by some other recruits while she undertook basic training in early 2004. She says her treatment during that period caused her to become unwell. In 2013, she sought compensation for a psychiatric condition that was originally described as post-traumatic stress disorder (PTSD). The Military Rehabilitation and Compensation Commission denied it was liable for that condition under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). Ms Sastre asked the Tribunal to review the Commission’s reconsideration decision dated 30 January 2014.

2. For the applicant to succeed in her claim, I have to be satisfied she experienced events during basic training that would provide a basis for her perception that she was bullied and harassed. I also need to be satisfied those experiences made a material contribution to the onset or aggravation of her psychiatric condition, however it is described.

3. Medical evidence that has come to light since the claim was filed confirms Ms Sastre does not suffer from PTSD. Her own psychiatrist now says the applicant has bi-polar disorder, while the respondent’s medical expert says the applicant suffers from schizophrenia, or perhaps schizo-affective disorder. While there is some disagreement between the two experts over the precise diagnosis, either diagnosis creates a challenge for the applicant’s case because both conditions are constitutional in nature. Dr Varghese, the Commission’s expert, said neither condition was caused by - or was in any sense a response to - external stressors. Dr Colls did not offer any opinion to the contrary. The applicant’s case ultimately turns on whether it was possible she also suffers from an adjustment disorder or other anxiety condition that was a response to her treatment during basic training.

4. I am not satisfied the applicant suffers from (or suffered from) an adjustment disorder or other anxiety condition that is related to her employment in the military. I explain my reasons below.

   What happened?

5. Ms Sastre enlisted in the Australian Army in late 2003 at the age of 42. She was to be employed as a dental hygienist. She attended basic training at Kapooka in early 2004. She says things went badly there. She claimed she “suffered continuous physical and sexual abuse, including intimidation, bullying and harassment”: exhibit 2 at [5]. She gave specific examples of the abuse she suffered in her statement (exhibit 3). The incidents or behaviour she described included:

   ·Being singled out to act as a server for the officers and non-commissioned officers, which she said was humiliating. She said she was also singled out to repeat difficult physical exercises after everyone finished without explanation;

   ·A female corporal often screamed at the applicant and demanded to know why the applicant came to this country, while a male corporal accosted her on the way to the mess hall to berate her because one of her socks was too low. Ms Sastre recalled the male corporal screaming: “We have a jail for people like you”. She said she was terrified. Other corporals made fun of her or criticised her appearance in front of other recruits;

   ·Individual recruits would harass and ignore the applicant. The worst of these was a woman called Grace who spied on the applicant and stole her belongings – and then suggested to others that the applicant was neurotic when she complained. Other recruits would tease the applicant by hiding her belongings and ridiculing her distress;

   ·Being assigned a bunk that was separate from other recruits, and the least convenient desk;

   ·Being the subject of disciplinary action for not having heard or understood an instruction;

   ·Being singled out because of her religion and ethnicity. She said a priest made a hostile allusion to her presence at a meeting, and other recruits routinely made offensive and racist comments. One recruit made a point of kicking the applicant’s desk every time the recruit walked past; and

   ·Being struck from behind by another recruit during marches when she was lagging.

6. The applicant also referred to a sexual assault which she said occurred while she was participating in an exercise that required other recruits to hold her. She claimed there were other physical assaults.

7. In her oral evidence, Ms Sastre highlighted the contribution that Grace made to her distressing experience at Kapooka. The applicant also said the recruits took their lead in harassing her from the NCO’s. If that was so, it might explain why there is no record of any complaint.

8. Ms Sastre was dismissed before she completed the course at the beginning of June 2004. She said she was not given an explanation for her dismissal at the time: exhibit 3 at [13]. She said her psychiatric symptoms began a few days later. In cross-examination, she explained these included headaches, vomiting, numbness, and feeling like a zombie. The applicant said she had been psychiatrically well before she enlisted. She said the domestic violence she experienced at the hands of her second husband did not impact on her mental health. That relationship came to an end around the time she enlisted although there was evidence referred to in cross-examination that she approached Legal Aid lawyers for advice about an apprehended violence order in January or February 2004. She insisted the health problems she experienced subsequently were attributable to the bad behaviour at Kapooka.

9. The descriptions of harassment and bullying during recruit training are not inherently unbelievable. The applicant may well have been singled out and treated unfairly. She may have been assaulted. But it is difficult to be sure of her account given some of her answers to questions in cross-examination. She spoke of being monitored by the Federal Police and of conspiracies between the police, the security services and health professionals. She also referred to documents being removed from her apartment and then mysteriously replaced. She says someone broke her washing machine. A private security firm where she previously worked may also have been accessing her home, she claimed.

10. I do not have to reach a concluded view on the veracity of these claims in light of the conclusions I reach in relation to the medical evidence. I will explain why.

    The medical evidence

11. The applicant saw a number of health practitioners for treatment of psychiatric problems before her time at Kapooka. The medical records show the applicant sought treatment in June 2002 for anxiety and depression arising out of her marriage: (exhibit 7 at p 42). There were also other references to being treated for depression before that, which suggested the applicant was prescribed a drug called Sulpiride: (see, for example, exhibit 7 at p 48). The subsequent reports of Drs Segkar, Richardson and Antoce included in exhibit 7 do not include references to her military experience as a source of stress, and the report of Dr Matheson in 2009 attributed the psychiatric conditions to an abusive marriage. Dr Matheson also noted the applicant was experiencing delusional beliefs. The report did not recount a history of abuse or harassment in the military.

12. The absence of references to the applicant’s experience in the military as a source of stress is surprising. One would expect a person suffering from an adjustment disorder connected with military service to raise that possibility with her treating doctors. When asked about this in cross-examination, Ms Sastre responded that she did not think the doctors would understand her experience so she did not bother telling them. That is puzzling.

13. The principal medical experts were Dr Ian Colls, a psychiatrist who has treated the applicant in the public health system, and Dr Frank Varghese, a psychiatrist called by the Commission. I have already noted these two experts have arrived at different diagnoses, although little turns on the differences between them for present purposes. Both doctors accept the applicant is suffering from a serious psychiatric disorder that is not caused by environmental stressors like those described by the applicant. The only question that remains is whether Ms Sastre also suffers from another condition – most likely an adjustment disorder, as Dr Colls suggests – that is related to her experiences at Kapooka.

14. Dr Colls pointed out in his written report (exhibit 6: letter dated 7 August 2015) that he hesitated to take an extensive history from the applicant in relation to her experience at Kapooka because he did not think it was productive for him to do so. He also said in cross-examination that he has had to remain at arms’ length from her during her time in the public hospital system because he also sat on the Mental Health Review Tribunal. He said he needed to remain objective. He also agreed in cross-examination that he did not have access to all of the military records and had not seen all the applicant’s other records for the period prior to 2013.

15. Notwithstanding these challenges, Dr Colls opined the applicant might have developed a psychiatric condition in response to the bad experiences she described at Kapooka before the onset of bi-polar disorder. The applicant argues the adjustment disorder persists because she continues to ruminate on those bad experiences.

16. I have already noted Dr Varghese said the applicant suffers from schizophrenia, or perhaps a schizo-affective disorder. He said that condition was probably present before she was at Kapooka. He noted in particular that medical records showed the applicant had been prescribed Sulpiride in 1998. That drug was frequently used at the time in some countries – including South Africa, where the applicant resided - to treat schizophrenia. That evidence suggested the condition was of long-standing, even if it had not been fully identified until comparatively recent times.

17. Dr Varghese was perplexed by the concept of diagnosing someone with an adjustment disorder if they had schizophrenia or a schizo-affective disorder. He said the diagnosis of one of the more serious conditions makes a diagnosis of adjustment disorder difficult if not impossible. He said either of the more serious diagnoses offered a better explanation for the applicant’s history over a long period, and it was therefore impermissible to diagnose adjustment disorder in the circumstances. He also explained adjustment disorder is, by definition, a condition that lasts for a limited period. Once the stressors were removed, the condition – if it existed – should resolve within six months. He said in cross-examination that a person who continued to experience symptoms while ruminating on bad experiences was not suffering from an adjustment disorder in connection with those experiences. If the symptoms persist long after the stressors are removed, the person was either in a state of embitterment, or she was suffering from another psychiatric condition.

18. Dr Varghese agreed the events Ms Sastre described at Kapooka could trigger an adjustment disorder in a person who was otherwise well, although he added in that event he would expect the stressors to feature prominently in records of any treating doctors who were seen at the time. That did not occur in this case, and Ms Sastre’s claim that she did not raise the experiences with her doctors because they were unlikely to understand is unpersuasive.

19. I prefer the evidence of Dr Varghese. He had access to all of the applicant’s medical and service records; Dr Colls did not. Dr Varghese says the more serious diagnoses he prefers (schizophrenia or schizo-affective disorder) would explain much of the applicant’s medical history and perhaps the interpersonal conflict observed during her time at Kapooka. It is therefore inappropriate to diagnose an adjustment disorder; given his views as to the early date of onset – which I accept - I am unable to conclude the applicant experienced an adjustment disorder connected with her military service in 2004 or thereafter. While Dr Colls reached a different diagnosis and suspected the date of onset was later, he did not dispute that bi-polar disorder, schizophrenia or schizo-affective disorder would satisfactorily explain the applicant’s history if any of those conditions were present earlier than he believed.

20. If the applicant’s psychiatric condition is properly characterised as schizophrenia or schizo-affective disorder, or even bipolar disorder, there is no connection with the applicant’s work in the military. I cannot be satisfied events occurring during the applicant’s service at Kapooka in 2004 made a material (let alone a significant) contribution to the onset of her psychiatric symptoms. It follows I must affirm the Commission’s decision to refuse liability under s 14 of the Act.

    Conclusion

21. The decision under review is affirmed.

I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe

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Associate

Dated 24 May 2016

Dates of hearing	8-9 February 2016
Counsel for the Applicant	Mr B F Charrington
Solicitors for the Applicant	Viana Lawyers
Solicitors for the Respondent	Sparke Helmore