Schmid and Comcare - [2002] AATA 304

DECISIONS AND REASONS FOR DECISIONS [2002] AATA 304

ADMINISTRATIVE APPEALS TRIBUNAL

Nº V1999/929

GENERAL ADMINISTRATIVE DIVISION Nº V2001/301

Re: DAVID SCHMID

Applicant

And: COMCARE

Respondent

DECISIONS

Tribunal:       Mr B.H. Pascoe, Senior Member
  Dr P. Fricker, Member
Date:             3 May 2002
Place:            Melbourne

Decisions:The Tribunal affirms the decisions under review.

(sgd) B.H. Pascoe
Senior Member
COMPENSATION — chronic bipolar disorder - whether employment related – whether stresses of army service triggered or aggravated condition – whether permanent impairment – hiatus hernia, reflux oesophagitis, duodenitis, bowel or bladder - whether employment related
Safety, Rehabilitation and Compensation Act1988

REASONS FOR DECISION

Mr B.H. Pascoe, Senior Member
3 May 2002 Dr P. Fricker, Member

These are applications to review two decisions of the respondent dated 27 July 1999 and 6 March 2001. The first decision was that there was no liability for compensation under section 24 or 27 of the Safety, Rehabilitation and Compensation Act1988 ("the Act") for the claimed conditions of chronic bipolar disorder, hiatus hernia, reflux oesophagitis, low grade duodenitis, bowel or bladder. The second decision revoked liability for compensation for depressive illness. Previous determinations of 11 November 1989 and 3 August 1992 had accepted liability initially for "depressive illness" with the subsequent determination amending the description to "chronic bipolar illness".
At the hearing the applicant, Mr David Schmid, was represented by Mr I. Fehring, of counsel, and the respondent by Mr J. Lenczner, of counsel. Evidence was given by the applicant. Medical evidence was given by seven psychiatrists, Dr W. Orchard, Dr M. Lush, Dr A. Kaplan, Dr N. Rose, Dr Hogan and Dr N. Strauss; a general surgeon, Mr C. Naylor; a consultant gastroenterologist, Dr R. Hanson; a consultant physician, Dr L. Murphy; a vascular surgeon, Professor K. Myers; a general surgeon, Mr J. Chew; and a general practitioner Dr C. Payne. Other evidence was given by present and former members of the Australian Army ("the army") during the period of Mr Schmid's service: Mr J. Coulter, Mr M. Dyson, Mr M. Martin, Mr B. Seeley, Mr P. Hughes, Mr W. Gall, Mr D. Symington, Mr G. Francis, Mr A. Gray and Major Shepherd.
Mr Schmid was born in 1963 and enlisted in the army on 4 November 1980. He was discharged on 3 November 1986 with the rank of private. He completed his initial training at Kapuka then transferred to Singleton to complete basic infantry training. He then joined 3RAR at Woodside, South Australia for some eight months during which time he joined the Pipes and Drums Band. In 1982 the Battalion moved to Holsworthy, New South Wales. Later in that year he was transferred to the Second Fourth Battalion in Townsville and remained there until shortly before his discharge, apart from two weeks in Papua New Guinea in 1985 and some three months at Butterworth, Malaysia in late 1984-early 1985. After discharge from the army, Mr Schmid joined the Army Reserve in 1987 in the pipes and drums unit, continuing until May 1989.
After discharge from the army, Mr Schmid worked as a trade assistant at an automotive gas installer for some 2½ to 3 years. He said that he had difficulty with lifting because of his hernia and was advised to leave. He then worked as a detailer in a car rental business but was sacked after 4 months. In 1990 he commenced work in a vineyard and winery, involved in marketing and promotion for some 2½ years. He had a serious car accident in February 1992 but soon after returning to work the business was sold and he was made redundant. He was unemployed until 1994 or 1995 when he worked for some 7 months as a labourer in a nursery. Mr Schmid said that he felt intimidated by his employer and had physical difficulties doing the work. Subsequently, he did fruit picking a few days per week over some 2 years. For approximately 18 months in 1995 and 1996, he worked 1 to 2 hours per day on 1 or 2 days per week as a part time cleaner. He said he disliked the work but could not recall why he ceased. He has not worked since, and does not believe that he could work if offered it.
Mr Schmid said that his current daily routine is to wake at 5:00 or 6:00 a.m., get up at 7:00 a.m. and watch television until midday then drive into the bush. Sometimes he goes for a fishing trip and, on occasions stays for one or two nights. He said that he is more at ease in the bush. He said that he tends to dwell on the past issues in his life and, in particular, his experiences in the army "… don't leave my head – day or night".
Mr Schmid said that in 1986 his parents and three brothers lived in Brisbane. He takes a trip each year to Brisbane to see his family. His father died in May 1989 at home after a heart attack. Mr Schmid said that his father's death was a shock initially but it was not until the funeral that real grief set in although he did not believe that the grief was abnormal. He married in December 1987. He first met his wife in 1983 and they commenced living together in 1986. They separated in September 1989 and divorced in 1990. Mr Schmid accepted that they were both young when married and while his former wife was outgoing, he was reserved and preferred to stay at home. He maintained that he and his former wife remained friends and that the divorce was amicable.
Mr Schmid said that there was a long tradition in his family of army service and he had joined the army with high expectations and a desire to serve his country. He maintained that he was not able to continue in the army because of victimisation suffered and other events, which caused him to become disillusioned. He said that a number of health problems were not treated properly or adequately which further contributed to his difficulties and ultimate discharge. He catalogued a number of allegations of incidents during his service with the army. In a witness statement filed with the Tribunal these allegations were set out in paragraphs 4 to 28 of the statement, as follows:
…
4.        While at Kapuka undergoing initial training, in about the second or third week of the camp, I observed verbal and physical assault upon Private Sheldon by the Platoon Sergeant. This was in front of the Platoon and I was shocked to see such behaviour occur and am unable to understand why it occurred. It appeared to me that the incident involved unnecessary violence and was encouraged by a number of the onlookers, which is not something I would have expected to happen in the Army.
5.        In approximately week six of the Kapuka camp I went into the shower area and found another recruit hanging in the shower. Corporal Kirk was one of the other soldiers present and officers were called to the scene. I was told to leave the shower area once officers were present and there was never any follow up, investigation or enquiries made of me as to what happened and what I saw. I found this a very distressing incident to come across a fellow recruit who had killed himself but nothing seemed to be done about. This incident disturbed me for a considerable time and I worried about how this could happen and why the Army did not seem to investigate or take the matter seriously.
6.        While at Kapuka you are entitled to leave which enables you to get away from the base between 4:30 p.m. and midnight. On two occasions I had leave denied me because others in my Platoon had failed to carry out instructions properly, according to the Sergeant and or Section Commander. Again I did not think it was fair that I should be disciplined and have leave denied me because of others. As the years went on I quickly came to realise that the Army was prepared to collectively discipline people even when it had nothing to do with them and it was not their fault. Time and time again I found this extremely difficult to come to terms with and frustrating as I do not believe that I should be punished for what others have done or for matters in which I have not participated. Again on several occasions I was denied entitlement to attend at the boozer because of the misdemeanours or failure of others in my Platoon. At the time I was not particularly concerned about this disciplinary actions but they continued and I ultimately came to see these actions as unreasonable as far as they affected me.
7.        I was on a training run while still at Kapuka. I was under the instructions of Corporal Kirk and another one of the recruits, who I believe to be known as Conrad, collapsed on the run and couldn t continue. I was required to carry Conrad and complete the exercise which was about a run of 8-10 kilometres. There was no reason for me to do this, other than I was directed to do so by Corporal Kirk as some sort of collective punishment or desire on the part of the Army to force people out. Others were made to run around on the spot until I and Conrad got going again.
8.        After I moved to Singleton for further infantry training I was accepted along with four other recruits for training for the SAS. Shortly after my acceptance into this special training I was in my room when a number of fellow soldiers came in. They put a wet sand bag on my head and a bayonet against my throat. One of those soldiers said, If you want to be a super soldier, this is what you can expect. I understood this threat to be with respect to my recruitment to join the SAS and I found this incident very disturbing and frightening. I went to the commanding officer and informed him that I would not proceed with my SAS training. I did not report this incident as I felt the repercussions would be serious and I might well be injured if I did so given what had happened to me.
9.        While at Singleton I was required along with others to go on a parachute exercise where we were meant to land in a big lake. We were given twenty minutes training in the gym as to how to roll when you landed on the ground in the event you missed the water. We were then taken to an Army Caribou and the flight took off. There were about 33 of us in the Caribou. The exercise was a disaster and about half of the recruits suffered injuries. I landed in water and almost drowned. I had a heavy pack on and the parachute. It was difficult to get free of the parachute and the pack. At the time I thought I could very well die as a result of this exercise.
10.      After the transfer to Woodside in South Australia private Edmondson, who was a person I knew and regarded as a friend, committed suicide with a rifle. I was on guard at the time and was ordered to the building where he had committed suicide which was an accommodation hut. I saw him inside the hut and saw the extensive wounds that he had inflicted upon himself. There was blood on the doorstep and around the room and it was a very gruesome sight, particularly as I had known Edmondson and had been talking to him earlier in the day. There was a Sergeant present and I was told to go outside and not to let anyone else into the room. Again I found this a most disturbing incident and it worried me for a long time, about how it was that someone could do such a thing, but no-one seemed to care about it. Either at the time that I attended at the room where Edmondson had shot himself or later in the day the Sergeant said to me, See what happens if you can t handle it. What a wimp. You and me and the Army are better off without him.
11.      In approximately 1981 whilst posted at 3RAR at Woodside, I and a number of others were involved in an exercise at Hawker S.A. where we were deployed as the enemy for a training exercise for a company of officer cadets. The officers were all kitted out for fighting in nuclear/chemical warfare ie protective clothing and gas masks. We (the soldiers) had no protective gear. We were ordered to assault the hill position of the officers. As we did so riot gas was released. There was little or no breeze and we were trapped in a mist of gas which caused a severe reaction with our eyes watering, extreme difficulty in breathing and vomiting in some cases. The officers were amused at our distress. After this incident we were told we were not a soldier s arsehole if we could not handle a bit of riot gas. There was a mock trial to discipline those of us who had shamed the name an professionalism of the Regular Army. Two soldiers were shot with blanks from about 3-4 metres by a mock firing squad.
12.      In the same exercise, grenade simulators caused a bush fire. There was no fire fighting equipment. With only two water bottles each we had no choice but to dig in until the fire passed.
13.      After the transfer to Holsworthy Army Barracks at Liverpool I was in the Pipes and Drums Section. This required playing at ceremonies and functions and a lot of practicing as well as continuing on with your normal duties as a member of the infantry.
14.      While at Holsworthy one of the cooks at the camp went on a rampage and took a number of soldiers as hostages. I was in the room below with a lot of glass and debris raining down and the cook was in the room above me when this incident happened. I was not allowed to leave my room and one of the hostages jumped from the second floor to escape from the cook. He suffered significant injuries to his legs. Knives were being thrown and at one stage the 2IC of the Guard was exchanged for the other hostages as the cook was threatening to kill one of the other soldiers unless he got a car. I believe this incident occurred in about June 1982. A car was provided and the 2IC and the cook then left the base in the car. I was told the next day by an officer that the cook had been arrested following a car accident but the Guard Commander was safe and that criminal charges would be laid against the cook. I was provided with no other information, was not interviewed and no-one seemed to have been concerned about my safety or the risk to me during this incident.
15.      I believe it was about August 1982 when an allegation was made against me involving the smoking of marijuana on the base. The matter was investigated by [sic] no charges were ever laid. I believe that that was the reason I was transferred to Townsville and that I was removed from the 3RAR Pipes and Drums as a punishment. From that time until I went to Townsville I was repeatedly questioned by the Regimental Sergeant Major as to who was involved in drug use on the base and threatened with gaol if I didn t tell him who was using marijuana on the base. I believe that from this time onwards I was subject to repeated questioning, threats and a campaign of hostility because of the allegations about drug use.
16.      After I was posted to Townsville I was under the instructions of Pipe Major Gall. He was aware of the allegations involving drugs and was repeatedly critical of me, calling me a druggy and from time to time a loner. His comments continued over the period of time that I was in Townsville under his control. Other soldiers had obviously been informed about the allegations because I would be approached and asked Can I score from you?, they obviously thought I was a source of drugs. I couldn t understand why or how the Army had allowed these allegations to be spread around the base and it upset me considerably to be called a druggy and to be known as a drug user by other soldiers.
17.      Staff Sergeant Symington who was also stationed at Townsville was regularly critical of me from the first day I came under his supervision.
18.      Pipe Major Gall would also make reference to me as the German Gordy. I took that to mean that I was an idiot. He treated me like that from day one. He would dress me down in front of the Platoon and he threatened to assault me on a regular basis. On one occasion shortly after I arrived at Townsville he said, in front of others, I ll take you out the back and beat the hell out of you. I knew what would happen if I responded to this challenge and I did nothing and I was very upset and concerned for my safety because of this continual hostility from him.
19.      I believe it was about June 1983 when the Pipes and Drum Band had a function in North Queensland. I was badly assaulted by other members of the Army because I had become drunk and upset some civilians. I received no treatment and was simply required to return to Townsville after this assault.
20.      At the end of November 1984, just before I went to Malaysia, I was in the swimming carnival conducted by the Army when I hit my head on the pool and almost drowned. I subsequently developed pneumonia, was given no treatment and posted to Butterworth in Malaysia where the pneumonia set in and I collapsed. I was taken to the First Aid Post with significant respiratory problems and admitted to hospital for two weeks. After I was released from the hospital it was suggested that I should not be playing bagpipes for several weeks. I was ordered back to playing the bagpipes within a week of coming out of the hospital by Pipe Major Gall. He simply insisted that if I was out of the hospital I would have to play, I had no choice. Towards the end of 1984 or beginning of 1985 I was ordered to Johor Baru, which is in Southern Malaysia. We were to be there for a two week period. I had about two to four hours sleep a night because I was working in the kitchen area as well as playing in the band. Pipe Sergeant Gall continued to pick on me, to call me a druggy or a loner and criticise my playing in the band, saying that I would not pull my weight, and that I was playing as an individual. He just never let up with his criticisms of me. After the two weeks at Johor Baru we went back to Butterworth and I had been isolated from the rest of the band members from the time we arrived by Pipe Major Gall. Because of my isolation, I started mixing with the locals. I recall Pipe Major Gall criticised me and ordered me to stay away from the locals. He would say they were only monkeys and only monkeys would speak to them.
21.      Pipe Major Gall would never allowed me to have a break from playing the bagpipes if I was unwell. On a number of occasions I had difficulty breathing and he would order me to continue to play and criticise my playing if it was not up to his standard. He did this throughout the course of my years at Townsville. This was particularly so after I came back from the Butterworth Base in Malaysia, when I believe my respiratory problems and difficulties with the bagpipe were quite significant.
22.      I believe in about January 1985, when I was part of the Quick Response Force No. 1. When you are a part of this unit you have to be available for call-out 24 hours a day on short notice to provide security at the Airforce Base. You would be called out at least twice a night, either because there was a real security alert or because there was just a practice run and you are required to respond. On this particular night, the exact date I am uncertain of, we had already been called out twice, and we were then called out again. I believe it was about 2:00 or 3:00 a.m. in the morning when we were called to attend at Checkpoint KP1. When we reached the position and deployed from the vehicle we were in, we identified a person crossing the volleyball court which was poorly lit. I can speak some Bahasan and I called out to the person to stop. I called out again and he kept moving, and turned to face us. He appeared to carrying something in his hands. I released the safety catch on my weapon and called out again. I was going to fire when he raised his hands, and I did not shoot. I was a split second away from firing. The soldier next to me, who had a machine gun, would have also fired if I did. The person would have been killed for sure if we had started firing. We detained the person who was a Malaysian contractor and the security forces, and Malaysian Security were called to the site. In my present the Malaysian Security beat the man up quite badly and again I was extremely upset to see this happen, when the person was known to the Malaysians and employed on the base. At the time of the incident I had wet myself and I realised that I had almost killed an innocent civilian and I was very upset by this experience. We were then taken back to the guard post and someone discovered the round that I had chambered just before the civilian surrendered had been lost. The round was found outside the guard room and I was put on 14 days extra duties because I had lost the round. There was no discussion or debriefing about this incident and I was penalised for losing the round outside the guardroom.
23.      On another occasion, which I believe to be about January 1985, I was assaulted by Corporal Coulter, who punched me in the face when he was drunk. He came up to me and said something like, You are an outsider, something is wrong with you, and I will come down on you if you don t get it right. I said to him, I don t know what you are talking about, but I certainly don t get any help around here. He then punched me in the face and another soldier had to restrain him from continuing as I wasn t fighting back. These sort of incidents happened on other occasions but I am unable to remember any more precise details other than to say that I was continually criticised, assaulted verbally, if not physically, by other members of my Platoon or those in command over me, such as Pipe Major Gall.
24.      When the unit returned to Townsville from Butterworth I was searched and all of my equipment was searched by customs. At that time I was attached to A Company and the company was delayed two and a half hours because of the search. I was called a druggy and criticised for this, which only made things worse. Nothing was found, and I believe that this was done deliberately to humiliate me.
25.      On an occasion, the exact date is unknown to me, I was sent to Bamiga, which is in North Queensland, to play at a ceremony. I became most unwell and collapsed. I was subsequently diagnosed as having meningitis although the Army treated me as merely suffering from heat exhaustion and would not provide any medical treatment and I had to wait till I returned to Townsville. It was some days before I received any proper treatment. I was in hospital for about two weeks after this incident and again the Army did not seem to take it as important or to be concerned about what had happened to me. Shortly after being released from the hospital Pipe Major Gall again instructed me that if I was out of hospital I had to play and in front of the others in the band said, If you don t play you are weak . Again I felt that if I didn t play in the band I would be seen as weak by the others and I would just be criticised and further humiliated by them and I was desperate at this stage to keep going. I felt under constant pressure to play well so as to avoid others in the band being punished for my mistakes particularly when my physical problems impeded my performance.
26.      After this time I would not report to the First Aid Post or seek any treatment when I was having difficulties in playing the bagpipes because I felt I would just be further criticised and accused by being weak by Pipe Major Gall if I did so or sought to be excused from playing in the band. I had ongoing difficulties but I just kept going because I didn t want to be a failure.
27.      At some stage in the early part of 1986 after we were back at Townsville from Butterworth Pipe Major Gall had an idea that the band should run and play at the same time. He explained it to us, and I said it didn t seem like a good idea, particularly as I was playing the bagpipes and I could injure myself if I fell. He said words to the effect that, if you think this is dangerous, you don t know the half of it, and you don t want to get on the wrong side of me. We had to run about 200 metres while we played and then Pipe Major Gall criticised me saying you were playing like shit and other such comments. Later that day, I believe at about 1:30 p.m. Gall came into the band hut, he said Who destroyed my bike. No-one moved. I said, we ve all been here, he said It was you, I replied No. He than said, you are all to stay here until the person owns up who did this. No-one moved for about an hour and a half.
Corporal Davis then said he would go and tell Gall that he was responsible and he left the room. He came back and told us that Gall would not accept his explanation and we waited for about another hour and a half with nothing happening. Then Sergeant Gray came in and asked what we were all doing there. We explained to him what had happened, he went next door to Pipe Major Gall s office. After a few minutes he came back and told us we were to go. I had no doubt that Band Sergeant Gall wanted to hold me responsible and he was putting pressure on for me to own up or to get others to try and hold me responsible so he could further discipline and humiliate me. I think this followed from the mornings activities with the band where I challenged his authority.
28.      In late September 1986, the exact date is unknown to me, I was late for duty by about two minutes on one occasion. There had been in a car accident and I had been delayed getting to the base. In front of the whole company Pipe Sergeant Gall dressed me down and called me a liar in front of the company. He then said, You will do 14 days extra duties because you were late. You get no stand down and remember Staff Sergeant Francis is on extras. I hope you have fun. I was very upset as I was being singled out as others were late and got no similar treatment. I had previously been involved in an incident with Staff Sergeant      Francis and it was obvious that I had been given the duties so that he could further discipline and victimise me.

Mr Schmid said that he requested a move from pipes and drums on two occasions prior to 1984 but Pipe Major Gall would not approve the transfer because of a shortage of pipers. He assumed that he was naïve in accepting Mr Gall's assurances of improved conditions and promotion prospects.
Under cross-examination, Mr Schmid maintained that the incidents alleged in his statement were true. However he did provide some modifications to his descriptions. In relation to the alleged assault of Private Sheldon, he acknowledged that Private Sheldon was older and ex-navy. After a verbal quarrel, Private Sheldon invited the sergeant to go to another room and it was understood that they fought but Mr Schmid did not see any actual punches. In relation to the suicide in the shower area, he acknowledged that he was not the first person to arrive, did not know as a fact that there was no investigation, was not aware that a full enquiry was held the next day and appeared to be concerned primarily that he was not questioned. He acknowledged that he was only one of several who were required to assist Conrad on the training aid and that it was possible that he was involved in only 100 to 200 metres at a time. It was put to Mr Schmid that the records showed that he was interviewed by a member of the SAS Directorate but did not want to apply until he had experience in an infantry battalion. Mr Schmid maintained that he did apply and was awaiting the scheduling of a special training course but withdrew after the incident in his room. In relation to paragraph 10 of his statement, it was not clear in cross-examination whether Mr Schmid actually saw the deceased. He maintained that he did enter the building for a short time but referred to seeing blood on the doorstep at the building entrance and assumed it came from the boot of somebody who had stepped in blood inside the room.
Mr Schmid acknowledged that he had been involved in smoking cannabis and had been subject of an investigation at Holsworthy in 1982. He accepted also that he had grown cannabis and had smoked it intermittently after 1982.
Mr Schmid blamed his physical problems of hiatus hernia, reflux oeophagitis, duodenitis and bowel and bladder problems on the circumstances of his service with the army. He could not recall when he first sought treatment for stomach problems but said that from early 1985 he was issued with Mylanta from the RAP. He said that his minimum usage of Mylanta was a half bottle in a fortnight but, generally, used one bottle per week. He currently uses Gavascon during the day, after the evening meal and as needed. He believed that the hiatus hernia and gastric problems generally had been the result of playing bagpipes for extended periods. He said that, in 1982 after a motor vehicle accident, he was given large doses of aspirin. After his meningitis, he said he was again issued with Panadol or aspirin and on one day was issued with and consumed 34 aspirin tablets. Mr Schmid said that when he left the army he had thought his physical problems, which he described as heartburn and water brash, were related to pneumonia suffered in 1985 and not connected with bagpipe playing. However, subsequently, he noted that the more he played the greater the problem and that the symptoms eased after ceasing playing.
Mr Naylor first saw Mr Schmid on 26 April 1988 after referral by his general practitioner and saw him on a number of occasions between that date and 10 November 1989. He provided a report to the respondent dated 24 January 1990 (T43). Initially, Mr Schmid complained of indigestion, the passage of black stools and groin pain. Investigation by barium enema and barium meal showed a small sliding hiatus hernia and a small active duodenal ulcer. Biopsy of rectal tissue showed ano-rectal hyperkeratosis. Mr Naylor also confirmed gastro-oesophageal reflux. Mr Naylor blamed the hiatus hernia, reflux and peptic ulcers on aspirin medication whilst in the army and believed that the hernia had been contributed to by the bagpipe playing. Under cross-examination, Mr Naylor accepted that hiatus hernia and reflux were common in the community and that the contribution to the hernia from bagpipe playing was hypothetical.
Dr Hanson performed a gastroscopy on Mr Schmid in October 1988. This revealed a moderate sized hiatus hernia, ulcerative oesophagitis and low-grade duodenitis. Whilst he considered that hiatus hernia was primarily genetic, he believed that playing bagpipes could aggravate the hernia and the gastro-oesophageal reflux. Dr Hanson accepted that he had no direct knowledge of the effect of playing bagpipes.
Professor Myers examined Mr Schmid on 3 November 1998, 14 January 2000 and 25 May 2000. He considered that Mr Schmid had a severe disability due to oesophageal reflux, vomiting and dyspepsia as well as hypermobility of bowel function and suspected that his medications were a major factor in causing persistence of those problems aggravated, in turn, by the psychiatric disorder that required those medications. Professor Myers said that it was difficult to determine the initial causes of the conditions but felt that bagpipe playing could have aggravated the conditions by weakening part of the diaphragm. Professor Myers acknowledged that he now specialised in vascular surgery and had not been involved in gastro-intestinal surgery for over 15 years. He was not aware of Mr Schmid's current medication or desirable medication. The Tribunal had difficulty accepting Professor Myers's evidence as being expert evidence and carrying any significant weight.
Dr Murphy examined Mr Schmid on 20 June 2000 and provided a report dated 7 July 2000 (exhibit A17). He found that Mr Schmid had two gastro-intestinal conditions. The first was hiatus hernia with gastro-oesophageal reflux and some disposition to duodenal ulcer. The second was a lower bowel condition causing chronic diarrhoea associated with haemorrhoids, anal fissures, prolapse of the rectum and anal incontinence. He could see no reasonably clear indication of a bowel condition which he considered as of a surgical nature and not within his field of expertise. He was of the opinion that the cause of the hiatus hernia was a constitutional weakness and this, in turn, is often associated with irritation of the oesophagus causing reflux oesophagitis. He said that the tendency to herniate and reflux are aggravated by factors such as stooping and obesity which compress the stomach from below without altering pressure in the chest. He saw no reason why bagpipes played any part in the hiatus hernia or reflux given that wind instruments involve the respiratory muscles which exert pressure from above not below the stomach. Neither did Dr Murphy believe that the reflux was caused by Mr Schmid's psychiatric condition. He said that hiatus hernia was very common. He estimated that even for those in their 20s some 10 to 20 per cent suffered with less than 50 per cent experiencing symptoms. Dr Murphy said that he had never heard of heartburn being caused by playing a wind instrument. He considered that, if it was so caused, there would be immediate reflux and not later, as said by Mr Schmid, when the pressure of blowing was not present.
Mr Chew examined Mr Schmid and provided a report dated 30 July 2001. He diagnosed conditions of reflux oesophagitis, frequency of bowel actions, irritable bowel syndrome and frequency of urination. He was of the opinion that the army service contributed to the gastro-oesophageal reflux but may not have contributed to the intestinal condition. While he considered that the reflux was not related to Mr Schmid's psychiatric condition, he felt that the irritable bowel syndrome was so related. His attribution of the gastro- oesophageal reflux to army service was solely on the basis of the history given by Mr Schmid of the symptoms commencing in Malaysia in 1984 or 1985. Mr Chew was not aware of any studies or opinions relating Mr Schmid's condition to bagpipe playing.
There was no disagreement among the many psychiatrists who had treated or examined Mr Schmid of the diagnosis of bipolar disorder (formerly known as manic depressive disorder). The disagreement related to causation and the date of commencement of the disorder. There was agreement that there is a genetic factor in the disorder but no consensus as to whether the disorder requires a stressful or traumatic event or events to trigger the manifestation of the disorder.
Dr Orchard saw Mr Schmid on 26 and 28 May 1992 and 10 December 1992, and provided three reports dated 9 July 1992, 22 July 1992 and 3 February 1993 (T91, T93, T103). Dr Orchard said that he had difficulty obtaining a coherent history from Mr Schmid. He did not obtain a history of any major stressful events during army service, but rather one where the whole of his army service had "got him down" and that, although it was possible that the disorder was present earlier, an attempted suicide in 1982 appeared to be the most significant event which may be regarded as the commencement of his disorder. Dr Orchard attributed causation to the army service primarily as the condition appeared to have developed during that service. While accepting that there was a strong genetic component in the disorder, Dr Orchard believed that this created a vulnerability but, generally, a specific stress or trauma causes the onset of the disorder.
Dr Lush has continued to be the treating psychiatrist for Mr Schmid since April 1999 and has seen him on a reasonably frequent basis since then other than some months in the latter part of 1999 when he moved to Queensland temporarily. She does not believe that questions about the past are helpful in his treatment and concentrates on his current position. However, Dr Lush said that Mr Schmid regularly stresses the events during army service including persecution by the Pipe Major, seeing somebody killed and nearly shooting a person while on guard duty in Malaysia. Given the difficulty inherent in the disorder and the multiplicity of stressful circumstances and events in Mr Schmid's life, Dr Lush found it difficult to attribute causation. However, on balance, she believed that his problems had been materially contributed to by his army service. She said that the disorder was a predominantly genetically and biologically determined illness but that various stress factors appeared to precipitate the emergence of a clinical picture. She believed that there was not necessarily a temporal connection between stress and symptoms which can emerge years later. Dr Lush accepted that personal relationship problems such as death and divorce can be significant in the disorder and that, if the perceived stresses alluded to by Mr Schmid during army service were not actual, then it would be difficult to attribute causation to that service. Dr Lush acknowledged that the disorder could arise for no apparent reason. Dr Lush noted that she had gained the impression that Mr Schmid greatly exaggerated the extent of his gastro-intestinal symptoms.
Dr Kaplan examined Mr Schmid on 22 June 2001 and provided a report dated 23 June 2001. He was of the opinion that Mr Schmid's depression was not only related to his bipolar disorder but that, probably, he was also suffering from an adjustment disorder with mixed anxiety and depressed mood. He considered it likely that the adjustment disorder first developed during army service and that such service contributed to that condition. He believed that it was likely that the stresses experienced during that service triggered but did not cause the onset of bipolar disorder. Dr Kaplan said that bipolar disorder is characterised by periodic episodes of depression and hypermania, which tend to increase in frequency with age. He said that the condition is organically based and can manifest itself without a triggering event. Dr Kaplan acknowledged that it is difficult to know whether particular stresses, identified by the patient subsequently, had triggered the problem. Dr Kaplan accepted that Mr Schmid had relationship problems from childhood but understood that significant problems arose only after his army service. He noted that cannabis, if used chronically, can cause depression.
Dr Robinson commenced treating Mr Schmid in August 1993 following a referral from Dandenong Hospital where he had been an in-patient after a suicide attempt where he attempted to gas himself in a car. Dr Robinson continued to see Mr Schmid over the next 4½ years. Apart from a motor vehicle accident in 1982, which he understood to be attempted suicide while depressed and the incident in Malaysia, Dr Robinson did not note any other incidents during army service although had some memory of some disciplinary problems. In his report of 9 February 1998 he noted that Mr Schmid had "mainly good thoughts of pleasant memories" of army service and that Mr Schmid considered that "in the army I had purpose and meaning and more problem solving skills". However, Dr Robinson believed that the history given by Mr Schmid showed that he had periods of depression in the army and that such service and events were the precipitating causes of the bipolar disorder. He was prepared to accept that Mr Schmid had a difficult early life and was susceptible but was not aware of any prior depression. Dr Robinson accepted that the bipolar disorder condition does not always require a specific stress to trigger its onset but, on balance, believed that Mr Schmid had an underlying predisposition to the condition which was triggered by stressful event or events. He accepted also that other events such as a death of a family member or a break-up of a marriage can be such stressful events. Dr Robinson noted that patients who are depressed or paranoid can exaggerate or attribute causes for their condition in retrospect. The nature of the illness was said to be such as to result in the patient being a bad historian.
Dr Rose first examined Mr Schmid on 10 October 1994 and provided a report dated 13 October 1994. In that report Dr Rose concluded that the bipolar disorder was not caused, or materially contributed to, by Mr Schmid's army service. He believed that the disorder is predominantly genetically and biologically determined and that, while in the army, Mr Schmid may have been experiencing some early signs of the disorder. Dr Rose re-examined Mr Schmid on 18 July 2001 and was supplied by the respondent with the various medical reports and the witness statement of Mr Schmid. In his report of 23 July 2001, Dr Rose provided the following opinion:
…
With respect to the diagnosis of the applicant's psychiatric condition I now believe that the applicant is suffering from two co-morbid psychiatric conditions. Firstly, he is suffering from a bipolar affective disorder. I consider that the episodes of depression that were suffered during Army service were early manifestations of the bipolar affective disorder. It is likely that discreet episodes of depression were aggravated by stress whilst serving in the Army. The applicant is also suffering from a chronic post-traumatic stress disorder the manifestations of which are the presence of nightmares and significant and severe anxiety together with avoidance phenomena.
I have already stated in my reports of 13 October 1994 and 25 June 2001 that genetic and developmental factors have been very important in the genesis of Mr Schmid's bipolar affective disorder. However, the new information gleaned both from reading the file that you have sent me and from the second examination of Mr Schmid lead me to believe that Army service was a definite factor in the acceleration and aggravation of an emerging bipolar affective disorder. It is a moot point whether or not the bipolar affective disorder would have emerged if Mr Schmid had not served in the Army and had not been subjected to the traumatic events that he has described. However I now believe that these were sufficient to be important contributing and aggravating factors. On the balance of probabilities I would have to say that they were. Furthermore, there is no doubt that this member's post-traumatic stress disorder was precipitated, initiated and maintained by events during Army service especially the near shooting episode in Penang.

In his report, Dr Rose placed considerable stress on the witnessing of two suicides by Mr Schmid in his diagnosis of post traumatic stress disorder ("PTSD"). In his oral evidence, Dr Rose acknowledged that there were considerable differences between the accounts of these events given by Mr Schmid and other witnesses. He was of the opinion that, if Mr Schmid was not, in fact, present at the suicides and the event in Malaysia was not as traumatic as related by him, then a diagnosis of PTSD was not appropriate. However, if the history as given by Mr Schmid was accepted, then Dr Rose believed that it was a classic case of PTSD. In his opinion, a diagnosis of PTSD was essential to provide a link between army service and bipolar disorder, the symptoms of which he believed had appeared after army service. He said that the onset of bipolar disorder could not be determined by a single episode of mania or depression but requires more than one cycle of episodes of depression, mania and depression and can be only a retrospective diagnosis. Dr Rose disagreed with the diagnosis of adjustment disorder by Dr Kaplan and maintained that this was not a separate condition but part of bipolar disorders. Dr Rose accepted that life stresses or anxiety such as a marriage breakup can be a trigger for the onset of bipolar disorder. Dr Rose commented that he had wondered why there did not appear to be any history of depression or manic episodes prior to Mr Schmid seeing Dr Hogan in 1989 other than an apparent episode of depression in 1983 which was noted by an army medical officer who queried a possibility of endogenous depression.

Dr Hogan saw Mr Schmid on five occasions in August and September 1989 for assessment and treatment of his "nervous condition". In a report to the respondent of 23 October 1989, Dr Hogan concluded that Mr Schmid was "suffering from a depressive illness which has been caused or substantially caused by his physical health problems". He believed that the depressive illness could be expected to go into remission should the physical condition be treated successfully. In his report Dr Hogan noted that Mr Schmid had left his family at age 12 by requesting to go to boarding school with the reason given that he had been mocked, teased and otherwise ill-treated by local children. It was noted, also, that Mr Schmid did not return home during school holidays preferring to work on local properties. Based on interviews with both Mr Schmid and his wife, Dr Hogan formed the view that Mr Schmid "has been an unhappy and vulnerable personality". Dr Hogan stated that he had
… developed features of a biological depressive illness probably present over the last two years, which may have been intermittently in evidence earlier.

In his oral evidence, Dr Hogan said that, on the basis of the history given to him in 1989, he would not consider changing his opinion as there was no evidence then of hypomania or bipolar disorder. He said that it was conceivable for a patient to suffer from depression and, later, develop hypomanic symptoms leading to a subsequent diagnosis of bipolar disorder. Dr Hogan, while accepting that bipolar disorder was constitutional, did not accept that it becomes manifest without stress. However, in his opinion, the effect of any one stressor does not last in perpetuity and other stressors will take over. He did not regard distant episodes as a cause of the current condition. He said that it was difficult to identify the commencement of bipolar disorder and, in the case of Mr Schmid it could have been after 1989, in 1987 or earlier in 1982 or 1983. Dr Hogan said that the use of cannabis can produce paranoia and, if used in significant amounts, can increase depression and make it difficult to treat.

Dr Strauss examined Mr Schmid on 9 August 2000 and provided a report on the same date. He provided a further report dated 31 July 2001 after being provided with a copy of the report of Dr Kaplan and the witness statement of Mr Schmid. In both reports, Dr Strauss was of the opinion that Mr Schmid's employment in the army did not cause nor continued to contribute to his psychiatric problems. Dr Strauss was of the view that Mr Schmid had life long personality problems and that bipolar disorder was a combination of genetic and environmental factors. He noted that, in Mr Schmid's case, there had been a clear abuse of alcohol and cannabis. While he said that the relationship between cannabis and psychiatric disorders was debateable, it was clear that the drug can precipitate and exacerbate such disorders. Dr Strauss did not accept that Mr Schmid suffered from PTSD, particularly as it was not considered by Dr Hogan in 1989. He was of the view that any diagnosis of bipolar disorder could not have been made prior to 1989 and any trauma experienced during army service was temporal and not related to the subsequent condition.
A total of 10 current or former members of the army gave evidence in relation to the various allegations made by Mr Schmid. In the majority of cases there was either no recollection of such incidents or a direct denial by those said to have been involved. Only Mr Dyson who served with Mr Schmid gave evidence of recalling an incident in Malaysia where Mr Schmid had been upset at coming close to shooting a person. He was, however, very vague about details of other personnel involved on that occasion. On the other hand, Mr Hughes and Mr Gray who were platoon sergeants at the time had no recollection of the event and believed that they would have known if it had happened. Former Regimental Sergeant Major Martin denied categorically that he had ever questioned Mr Schmid about drugs. Both he and former Company Sergeant Major Seeley were firm that only a corporal had entered the building in which a soldier had shot himself before them. Both accepted that it may have been possible for Mr Schmid to have been one of the soldiers ordered to guard the building outside. Former Pipe Major Gall denied the accusations against him by Mr Schmid. He maintained that Mr Schmid was unreliable and often late for duty. Several witnesses recalled Mr Schmid being assaulted in North Queensland but maintained that this was after a dispute with "bikies" and either no army personnel were involved or, at best, some present were involved in assisting Mr Schmid to leave the premises. Major Shepherd was platoon commander of the "enemy platoon" referred to by Mr Schmid in paragraph 11 of his statement. He said that smoke generators were used but no gas. This may have produced thick choking smoke but would not have caused any significant distress. There was a general consensus of these witnesses that nicknames were commonly used and among those were served directly with Mr Schmid, that he had been proud of his German background and that his nickname of "German George" or "German Gordy" was not intended to be and had not appeared to be considered derogatory.
There was a considerable diversion of evidence of the practice or providing live ammunition to members of a guard in Malaysia. It ranged from ammunition being carried in the truck but not handed out except in rare circumstances, to being handed out in magazines on occasions to be retained by the soldier in a pocket, to being regularly handed out and loaded in the rifle. Like much of the evidence from the former army members, this evidence relied on memory and an understanding of what was normal army practice rather than any specific recollection of events as told by Mr Schmid.
Records from the army Soldier Career Management Agency and the Military Police confirmed the two suicides referred to by Mr Schmid but, in neither case, was there any record of an involvement by him. The records confirmed, also, the incident described by Mr Schmid in paragraph 14 of his statement involving a cook taking hostages. Again there was no reference to Mr Schmid. The evidence of Mr Schmid in relation to these incidents appeared to be directed principally at the failure to involve him in any enquiries and his perception that there was no enquiry or follow up by the army. It is clear from the records that there were appropriate and immediate enquiries, and that there was little or no need to involve Mr Schmid who, from his evidence, was solely an observer.
It is appropriate to consider first the claims for physical problems of Mr Schmid. He believed that his gastric problems generally, including the hiatus hernia, had resulted from playing bagpipes. Mr Naylor attributed the gastric problems to aspirin medication with a contribution from bagpipe playing. Dr Hanson, while accepting that hiatus hernia was constitutional, thought that bagpipe playing could aggravate the hernia and other gastric problems. Professor Myers considered that medication for psychiatric problems was a major factor and that bagpipe playing could have aggravated the condition. Mr Chew attributed the gastro-oesophageal reflux to army service because of the history given by Mr Schmid of the commencement of the problem in 1984 or 1985. Dr Murphy was quite firm in his view that the hernia and gastric problems were constitutional and in no way related to playing bagpipes. We were impressed with the evidence of Dr Murphy and prefer his opinion to that of the other medical witnesses. The relationships of aspirin medication and/or bagpipe playing suggested by these witnesses was purely hypothetical and, particularly in relation to the effect of bagpipes, was put forward with no scientific or expert knowledge support. To the extent that aspirin may have contributed, the evidence of Mr Schmid was that large doses were taken after his motor vehicle accident in 1982. There was no evidence to support that the accident had any connection with his army service. On balance we are satisfied that the hiatus hernia and gastric problems are constitutional and, if there had been any aggravation of such conditions as a result of army service, such aggravation had no relationship with the playing of bagpipes and the effect of any such aggravation had ceased prior to ceasing service with the army. Whilst Mr Schmid may well have a permanent impairment from the conditions, such impairment has not resulted from a compensable injury. There was no evidence to support any relationship between Mr Schmid's service and any bowel or bladder problems.
The second issue of chronic bipolar disorder is a complex one. As indicated earlier there is no dispute as to the diagnosis. The concerns are the time of onset of the disorder and whether army service materially contributed to the disorder. It was the general consensus of the psychiatrists who gave evidence that bipolar disorder has a strong genetic or constitutional component. Drs Orchard, Lush, Hogan and Rose considered that specific stresses are frequently needed to trigger the onset of the condition although Dr Hogan believed that the effect of any one stressful event is short lived and each accepted that it was possible for the condition to arise without any identifiable stressful event. Drs Kaplan and Strauss did not consider that stress produces the condition.
There were references by Drs Orchard and Robinson to a possible attempted suicide in 1982. Mr Schmid, in his evidence, acknowledged that he was involved in a motor vehicle accident in 1982 but denied that there was any attempt at suicide or that the note he had left behind was in any way a suicide note. It was noted that, in the service medical records of Mr Schmid, there was a record by a medical officer, Captain Miller, on 22 August 1983. While the handwriting is difficult to decipher, it appears to state:
…
Referred to me via 18 Treatment Unit when he apparently showed marked signs of anxiety while undergoing dental treatment. PTE Schmid tells me he has a lot of trouble relating to others particularly with women, and has had these problems since school. He has difficulty sleeping and is worried about his lack of interests. At times has had fantasies of crashing his motorbike. Has little contact with family particularly his father – father has been treated for "nerves".
A.Depression. ?endogenous
B.For regular review by me – I will consider psychiatric referral if no improvement.
Fit for full duty v

Apart from these two possibilities, there is no other evidence of any depressive episodes during service. If the notes of the medical officer have been interpreted correctly, there is no indication that any possible depressive condition was linked to any service or work-related matter.

Dr Strauss was firm in his view that it was not possible to have made a diagnosis of bipolar disorder prior to 1989. It is very relevant that Dr Hogan diagnosed a depressive illness caused by physical problems only in that year. He found no evidence of hypomania or bipolar disorder at that time. Dr Rose had not taken any history of depression or manic episodes prior to 1989 other than a possible episode noted by Captain Miller in 1983. The majority of psychiatrists who considered that stresses during army service may have triggered the onset of bipolar disorder did so on the basis of the history given by Mr Schmid and, generally, were those who saw him in more recent years. As those who attributed the condition to the stresses in army service accepted that it was necessary for such stresses to be real, rather than perceived for the connection to be made, it is necessary to consider the evidence of those alleged incidents. This is somewhat difficult in view of the time which has elapsed, the lack of witnesses with direct knowledge of many of the incidents and the real possibility that Mr Schmid, in seeking to find reasons for his condition, has, since 1989, allowed incidents to grow in importance in his mind.
Two of the incidents highlighted by Mr Schmid and Dr Rose were the suicides by other soldiers. There is no dispute that they occurred. However, we do not accept, in either case, that Mr Schmid found the bodies or was first on the scene. In the first instance, recalled by Mr Schmid in paragraph 5 of his statement, it seems clear that Mr Schmid was one of several soldiers in the shower area when the body was found. In the second instance of a soldier shooting himself, we accept that Mr Schmid was aware of it and may well have been in the vicinity of the building, perhaps on guard, but the inconsistencies of his evidence and the evidence of Mr Martin and Mr Seeley lead to the conclusion that he did not see the body. In both cases, Mr Schmid appeared to be more concerned about the perception of an uncaring attitude by the army and its failure to include him in any enquiry or investigations rather than the particular trauma of the death.
In relation to the alleged incident of almost shooting a civilian in Malaysia, the evidence was particularly confusing. We find it difficult to accept that, if such an incident happened that no more senior ranking soldier was aware of it. The only support for Mr Schmid's version was from a friend, Mr Dyson, who was unable to provide any other details apart from Mr Schmid's version. We are of the opinion that it is likely that Mr Dyson "refreshed" his memory of the event by discussion with Mr Schmid prior to the hearing. He said that he had not but Mr Schmid acknowledged an earlier discussion. As such, we place little reliance on the evidence of Mr Dyson. While it is accepted as possible that some incident involving a civilian may have happened when on guard duty we are unable to accept that it happened in the way stated by Mr Schmid or that it had any such traumatic effect.
We are of the view that the other incidents outlined by Mr Schmid involve a degree of exaggeration, albeit unconsciously. We do not accept as possible a parachute jump from an aeroplane with only 20 minutes of training. We accept that it was smoke not gas used in the training exercise in 1981. The alleged incident in 1983 in North Queensland appeared to be an incident between Mr Schmid and civilians at a hotel and unrelated to the army although it appears likely that fellow soldiers removed him from the scene. Mr Schmid has no real memory of the actual incident. The majority of complaints by Mr Schmid were of his treatment by Pipe Major Gill. Considering all the evidence, we accept that there may well have been clashes between the two men and considerable personality differences but do not accept that the actions of Pipe Major Gall went beyond reasonable disciplinary action in the setting of an army unit. It could be summed up that the bulk of Mr Schmid's complaints and alleged incidents were primarily complaints about the system and his perception of a lack of consideration of himself and others. It may well have arisen from his basic personality problems referred to by Captain Miller in 1983 as "trouble relating to others". We believe that the evidence of Mr Schmid's paranoia is also relevant to his criticisms and complaints.
After consideration of all of the evidence, we find that the onset of the condition of bipolar disorder was no earlier than 1989. We are satisfied that the condition is primarily constitutional and, to the extent that stressful events may trigger the disorder, we cannot be satisfied on the balance of probabilities that such stressful events were related to army service. Mr Schmid had other stresses in his life such as a failed marriage, the death of his father and constitutional physical problems which may have contributed. We consider it relevant that Mr Schmid was an acknowledged regular user of cannabis which was considered by several of the psychiatrists as productive of depression. On balance, we are not satisfied that there is a causal relationship between army service and the condition of bipolar disorder and are satisfied that the condition was not contributed to in a material degree by Mr Schmid's employment by the army.
It follows that the decision revoking liability for depressive illness or chronic bipolar illness should be affirmed and the decision denying a claim for permanent impairment from conditions of chronic bipolar disorder, hiatus hernia, reflux oesophagitis, low grade duodenitis, bowel or bladder should be affirmed also.
I certify that the thirty-six [36] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B.H. Pascoe, Senior Member
Dr P. Fricker, Member
(sgd)       Catherine Thomas
              Clerk
Dates of Hearing:  29 June 2001, 31 August 2001
  3—5 September 2002 and 4 December 2002
Date of Decision:  3 May 2002
Counsel for the Applicant:            Mr I. Fehring
Solicitor for the Applicant:           Messrs Ryan Carlisle Thomas
Counsel for the Respondent:       Mr J. Lenczner
Solicitor for the Respondent:       Messrs Tress Cocks & Maddox