Schubinski and Repatriation Commission
[2005] AATA 1273
•21 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1273
ADMINISTRATIVE APPEALS TRIBUNAL )
)No W2002/74, W2002/332 and W2005/122
VETERANS’ APPEALS DIVISION ) Re SIEGFRIED ROLF SCHUBINSKI Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr S Penglis, Senior Member
Brigadier R D F Lloyd, OBE, Member
Dr P A Staer, MemberDate21 December 2005
PlacePerth
Decision The Tribunal affirms the decisions under review. ...................(sgd S Penglis)...................
Senior Member
CATCHWORDS
VETRANS’ AFFAIRS - claims for general anxiety disorder, obesity and hypertension – no operational service – meaning of “severe psychosocial stressor” – meaning of “clinical onset” and “clinical worsening” – meaning of “cannot be decreased to less than 300gms per week” in Statement of Principles – applicant’s conditions not held to be service related – turns on its own facts
Bull v Repatriation Commission (2001) 188 ALR 756
Hardman v Repatriation Commission (2004) FCA 1174
Stoddart v Repatriation Commission (2003) 74 ALD 366
Repatriation Commission v Stoddart (2003) 134 FCR 392
White v Repatriation Commission (2004) 39 AAR 67
Delahunty v Repatriation Commission 92004) FCA 309
Bell and Repatriation Commission (1999) ALD 721
Lees v Repatriation Commission (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Dowd and Repatriation Commission (2004) AATA 437
Collier and Repatriation Commission (2004) AATA 1100
REASONS FOR DECISION
21 December 2005
Mr S Penglis, Senior Member
Brigadier R D F Lloyd, OBE, Member and
Dr P A Staer, Member
BACKGROUND
1. The applicant joined the Royal Australian Navy on 8 July 1964. He remained with the Navy until 7 July 1989.
2. The applicant suffers from general anxiety disorder, sleep apnoea and hypertension.
3. The applicant contends that each of these conditions is service related, entitling him to compensation pursuant to the relevant provisions of the Veterans’ Entitlement Act, 1986.
4. The respondent rejected each of the applicant’s three claims for compensation on the grounds that it was not satisfied that any of the conditions were service related.
5. It is those decisions that the Tribunal is required to review.
6. By consent, each of the three applications was heard together. Counsels’ closing submissions first addressed the applicant’s claim for anxiety disorder (W2005/122), then the applicant’s claim for sleep apnoea (W2002/74) and finally the applicant’s claim for hypertension (W2002/332).
7. These reasons will deal with the applications in the same sequence as Counsels’ closing submissions.
THE APPLICANT’S STATEMENTS OF EVIDENCE
8. For reasons which will become apparent, the manner in which the applicant’s evidence developed over time is relevant to the Tribunal’s consideration of the applicant’s evidence, and his claims. For that reason, it is necessary to set out the applicant’s evidence at some length.
9. In a letter dated 5 May 2001, the applicant wrote to the Veterans’ Review Board with respect to his claim for hypertension. In that letter the applicant stated that when he submitted his initial claim:
“I was totally ignorant of the statement of principles for hypertension, hence the argument that my hypertension was due to the stressful environment I experienced in the RAN. There is ample scientific research that shows a positive correlation with stressful environments and a person’s blood pressure. Naively I believed this to be the less tortuous path, assuming that the scientific data, which is accepted by the community at large, would also be acceptable to a government department. Other service related factors, that caused my hypertension, are:
Abusive alcoholic beverages: during the period of my eligible service I drank heavily. The cause of my heavy drinking was the pressures and upheavals of service life. My off duty hours were spent getting drunk to the extent where I became unconscious. This happened 2 – 3 days during the week (depending on my financial situation at the time) and the pattern was repeated on the weekend. I would consume approximately 8-10 schooners of beer together with half a bottle of spirits…daily, during the week. The amount would almost be quadrupled for the weekend. I was using alcohol as a social disinhibitor (sic). With my promotions came not only added military responsibilities but also increased social responsibilities and so my drinking pattern was again being reinforced.
Salt supplements: …
Obesity: an effect of my promotion to Chief Petty Officer was a less physical and more sedentary lifestyle. This coupled with my drinking habits and the fatty foods provided by RAN, caused my weight to balloon out from a base line of 75 kg to 93 kg as measured by HMAS Penguin hospital staff on 3 March 1989. I was posted to HMAS Penguin as a Nuclear, Biological and Chemical Defence instructor in 1987 for 108 weeks.
The first time that I was made aware of the fact that I was hypertensive, was when I was posted to HMAS Penguin and put on a treatment plan in an attempt to control it…”
10. On 31 August 2001, the applicant provided a signed statement for the purpose of prosecuting his application to this Tribunal. That statement, other than in so far as it deals salt supplements (which is not relevant to the matter at hand) is set out in full:
“Service
1. I joined the Royal Australian Navy on 8 July 1964 and underwent Junior Recruit training at HMAS Leeuwin for 50 weeks. Following training my service was:
·10 June 1965 – promoted to Ordinary Seaman Electrical Mechanic (Air). Posted to HMAS Melbourne, aircraft carrier for common sea training – duration 28 weeks.
·January 1966 – Posted to HMAS Albatross, shore base, home of the Fleet Air Arm. Basic air electrical category training – duration 11 weeks.
·March 1966 – Posted to HMAS Cerberus, for Electrical category training – duration 41 weeks.
·8 January 1967 – Promoted to Electrical Mechanic Air Communication 2nd Class (EMAC2).
·January 1967 – Posted to HMAS Albatross, Training School, for Aircraft category training – duration 16 weeks.
·18 April 1967 – Promoted to Electrical Mechanic Air Communication (EMAC).
·April 1967 – Posted to 723 Iroquois Squadron, 2nd Line training squadron, based at HMAS Albatross – duration 24 weeks.
·September 1967 – Posted to 817 Wessex Squadron, Front Line squadron (sea going squadron, usually based at HMAS Albatross but embarked on HMAS Melbourne as required – duration 8 weeks.
·November 1967 – Posted to 725 Wessex Squadron, 2nd Line Training squadron, based at HMAS Albatross – duration 44 weeks.
·4 September 1968 – Promoted to Acting Leading Electrical Mechanic (AC).
·September 1968 – Posted to HMAS Melbourne. Employed to maintain and service the aircraft avionic equipment – duration 112 weeks. It was in 1969 that HMAS Melbourne collided with the Destroyer, USS Frank E Evans.
·20 August 1969 – Confirmed in the rank of Leading Electrical Mechanic (AC).
·November 1979 – Posted to 723 Iroquois Squadron. Employed as Assistant supervisor of the maintenance of avionic equipment – duration 34 weeks.
·July 1971 – Posted to HMAS Albatross Air Training School. Promotion course – duration 38 weeks.
·March 1972 – Posted to 725 Wessex Squadron. Employed as Assistant supervisor maintainer – duration 94 weeks.
·23 January 1973 – Confirmed in the rank of Petty Officer Air Technical Communications.
·1 January 1974 – Confirmed in the rank of Petty Officer Air Technical Communications.
·January 1974 – Posted to 724 Tracker Squadron 2nd Line training squadron, based at HMAS Albatross – duration 114 weeks.
·April 1976 – Posted to 816 Tracker Squadron Front Line squadron. Sea going squadron, usually based at HMAS Albatross but embarked on HMAS Melbourne as required – duration 146 weeks.
·January 1979 – Posted to HMAS Albatross Avionics. Employed as Workshop Supervisor maintainer – duration 76 weeks.
·January 1980 – Posted to HMAS Kuttabul, shore base for personnel employed in the various Sydney out stations. Employed in Engineering support, avionics and anti-submarine warfare systems – duration 52 weeks.
·June 1981 – Posted to HMAS Albatross, Avionics Workshop. Employed as a supervisor maintainer – duration 168 weeks.
·September 1984 – Posted to HMAS Cerberus. Electronic familiarisation course – duration 5 weeks
·4 October 1984 – Promoted to Chief Petty Officer, Electronic Technical Systems, Skill Grade 3.
·October 1984 – Posted to HMAS Albatross, Avionics Workshop. Supervisor maintainer – duration 8 weeks.
·December 1984 – Posted to HMAS Albatross, Ground Radio Section. Employed as supervisor maintainer of the airfield navigational aids – duration 56 weeks.
·1 July 1985 – Awarded Skill Grade 4.
·January 1986 – Posted to HMAS Stalwart ship, Destroyer Tender and Fleet maintenance ship. Employed as supervisor of maintenance for electronic systems – duration 73 weeks.
·June 1987 – Posted to HMAS Penguin, RAN Hospital and School of Nuclear, Biological, Chemical and (Electrical) Damage Control. Duties included, NBCD Instructor, observer for battle problems and ships operational readiness evaluations maintain radiac instruments and nuclear sources (training purposes only) and conduct Gas Chamber practical exercises – duration 108 weeks.
·7 July 1989 – Discharged Engagement Expired.
2. My Eligible Service with the Royal Australian Navy was 7 December 1972 to 7 July 1989.
Salt Supplements
3. …
4. …
Alcohol
5. My alcohol abuse began with my promotion to ranks of senior sailor (Petty Officer). With the promotion came increased military and social responsibilities. The pressure to carry out these duties and the situations I was put in, was very stressful.
6. After just having been confirmed in the rank of Petty Officer I was posted to a fixed wing squadron from a rotary wing squadron. The Tracker aircraft and their equipment was totally alien to me, also they carried approximately three times the amount of avionics systems as the Wessex helicopters. The expectation was that I should perform as well as the other trade Petty Officers who had spent all their time on Tracker aircraft.
7. My posting to HMAS Stalwart was a similar situation. Due to down sizing of the Fleet Air Arm, I was given a trade change, promotion and posted to the general service to supervise the maintenance of ship borne electronic systems. Again, the expectation was that I would perform at the same level of the other trade Chief Petty Officers.
8. When HMA Ships were in foreign ports the various messes ie. Wardroom, Warrant Officers and Chief Petty Officers, and Petty Officers were expected to entertain members of the local population. Not feeling comfortable in social situations, I found these predicaments extremely stressful.
9. The posting to HMAS Penguin was particularly stressful. As an instructor I was required to prepare and deliver the course to class sizes, at times in excess of 40 personnel. They ranked in rank from Commander to Able Seaman. Also I was required to go to sea on the various Frigates and Destroyers to evaluate their operational readiness and as an observer for their battle problems. This job made me very anxious and as such, where ever possible I tried to avoid it. This was especially the case if it required an overnight stay on the small ship. The extra staff was usually accommodated in the overflow mess which was located in the bows of the Destroyer below the waterline. This particularly terrified me because I had visions of the after half of the USS Frank E. Evans floating past the side of HMAS Melbourne, the forward section having sunk within minutes of the collision with a loss of, in excess of, 70 American lives.
10. Another factor that caused me ongoing stress was a personality clash between myself and the 2nd in charge of the NBCD School. I had no backing from the O.I.C. of the School and if the situation was allowed to continue I could see the possibility of losing my rank thus, as I saw it, the only course of action was to leave the RAN when my current engagement expired.
11. Although I started drinking alcohol when I was first posted to HMAS Melbourne in 1965, it substantially increased due to the stressful conditions of service life that I encountered when I was promoted into the rank of Senior Sailor from 1973. The bar was handy to my accommodation and that was where I spent my off duty hours, drinking approximately 9-10 schooners a day, supplemented by approximately half a bottle of spirits (depending on the company, it would be either Bacardi, Vodka, Bourbon or Whisky). The amount would quadruple at the weekends. On special occasions such as parties I would drink myself unconscious. When at sea I would consume approximately 3-pints of beer in the mess.
12. This abuse continued after I was discharged until 1992 when I sought psychological treatment.
13. The medical consultation on 6 February 1989 was an interview and not a medical examination. I indicated that I did not have a problem with alcohol because I was being discharged in July of that year and feared that any illness would delay my discharge date until I had overcome that illness.
Weight
14. Due to the stressful situation I found myself in NBCD School, I was drinking more (the barman ran flexible bar opening times) and eating more. Food was always available in the mess and I would constantly be stuffing myself to the point where my stomach was stretched so much it caused me physical pain. Even the comments from other mess members were not enough to deter me from shovelling the food into me. This and the nature of naval cooking at the time ie fatty foods and pastries (in the form of “finger food” between the main meals) caused my weight to balloon out to 93 kg.
15. The history of my weight from my medical documents is:
· 7 July 1964 – 153 pounds (69.4 kg) – Joined RAN aged 16.
· 24 November 1969 – 161 pounds (73 kg)
·28 August 1970 – 158 pounds (71.7 kg)
·19 January 1971 – 169 pounds (76.7 kg)
·23 September – 72.9 kg
·30 January 1979 – 77 kg
·8 September 1983 – 75.0 kg
·4 November 1985 – 74.5 kg
June 1987 – joined HMAS Penguin
·22 ? 1987 – 78.3 kg
·2 September 1987 – 79.0 kg
·2 December ? – 84.5 kg – Dr Austin provided advice about diet
·24 February 1988 – 86.0 kg – Directed to lose weight by doctor
·5 May 1988 – 90.4 kg – told to watch weight and diet by doctor
·18 ? 1988 – 92.0 kg (Height 172 cm)
·3 March 1989 – 93.0 kg
·8 July 1989 – Discharged Engagement Expired
Hypertension
16. My first recorded high blood pressure reading of 160/115 was taken at HMAS Albatross on 4 November 1985.
17. On that occasion and after taking several blood pressure readings the doctor was eventually satisfied with a reading of 150/80. Apparently he determined I was not hypertensive at that time and that it was a “one off” high blood pressure reading. At no time was I informed of my high blood pressure or of the consequences, not was I given any medication for the condition.
18. I was informed that I was Hypertensive was when I was posted to HMAS Penguin in 1987. Dr Austin was concerned about hypertension and my increasing weight.
19. The history of my blood pressure from my medical records is:
·7 July 1964 – 136/76 – Joined RAN
·24 November 1969 – 136/78
·28 August 1970 – 130/70
·19 January 1971 – 125/75
·23 September 1975 – 140/85
·30 January 1979 – 125/80
·8 September 1983 – 120/80
·4 November 1985 – 160/115 – Initial reading at HMAS Albatross. Then 150/100 – lying down rested. And 150/80 – final reading.
June 1987 – Joined HMAS Penguin
·25 ? 1987 – 180/105
·2 September 1987 – 150/95
·9 September 1987 – 150/95
·29 September 198?- 145/90
·11 November 198? – 140/90 – Right arm, and 135/88 – left arm
·2 December 19?? – 150/95 – Right and 155/95 – L
·24 February 1988 – 150/100 – R, and 160/98 – L
·5 May 1988 – 145/88
·18 ? 1988 – 130/90
·3 March 1989 – 155/100
·4 March 1989 – 180/110
·21 March 1989 – 175/115
·29 March 1989 – 140/90 – Pre-discharge medical
·9 June 1989 – 172/118 – High reading, and 165/110 Low reading
·4 July 1989 – 120/75 – Recuperating in hospital after operation
·8 July 1989 – Discharge Engagement Expired
20. I reiterate that the consultation on 6 February 1989 was an interview rather than a medical examination. Dr Lui asked when I first knew that I was Hypertensive and my reply was a vague, “4 or 5 years ago I suspected something was amiss when the Sick Berth Attendant took repeated measures of my blood pressure and had to confer with the doctor.”
21. I explained to Dr Lui that I would not have known about my elevated blood pressure had I not queried the Sick Berth Attendant as to what was going on. He informed me that my blood pressure was slightly up but there was nothing to worry about.
22. From that discussion, Dr Lui presumed that 1984 was when I was informed about my hypertension.
23. When I had my interview with Dr Lui in February 1989 I was still in the RAN and as such I did not have a LMO, so I could not have been informed by “my LMO” that I had elevated blood pressure. As indicated above from my service medical documents show that my blood pressure was never taken in 1984.
24. The incident I recalled and mentioned to Dr Lui occurred during Pre-Posting medical examination at HMAS Albatross in 1985. The first time I received treatment for my hypertension was from Dr S. E. Austin when I was posted to HMAS Penguin in 1987.”
11. Almost four years later, on 16 June 2005, the applicant signed a further statement of evidence for the purpose of prosecuting his applications before the Tribunal. Again that statement is set out in full:
1. "During 1977 I witnessed an aircraft crash on the flight deck of the aircraft carrier HMAS Melbourne.
2. The aircraft involved was a Grumman Tracker antisubmarine warfare (ASW) aircraft.
3. We were deployed to the United Kingdom (UK) to participate in the Spithead Review as part of the celebrations for Her Majesty Queen Elizabeth II Silver Jubilee.
4. HMAS Melbourne departed Sydney 28 March 1977, took part in the Spithead Review on 28 June 1977 and returned to Sydney 04 October 1977.
5. I cannot remember the date or time of the accident – whether it was on the way to the UK or on the way back to Australia, but I do recall it was during daylight hours.
6. I was a Petty Officer Air Technical Communications at the time, posted to 816 Squadron (the frontline Tracker ASW squadron) and my duties included watch supervisor in charge of the maintenance of the electronic equipment fitted to the aircraft. This included radio communications (HF, VHF, UHF and intercom within the aircraft), radar (altimeter, navigational, identification friend or foe, Doppler, and homing systems), ASW systems (sonobuoy systems, and magnetic anomaly detectors).
7. The day of the crash, I was on watch, which meant I was responsible to ensure the aircraft were able to electronically, meet the mission task prior to launch.
8. I was also required to meet all incoming Tracker aircraft and debrief the aircrew regarding the performance and serviceability of the various electronic systems.
9. To facilitate my access to the aircrew and the aircraft, my maintenance team and I were stationed on the starboard side of the flight deck within the “Island”.
10. The duty crews were alerted that an aircraft was returning with nose wheel problems (it would not come down) and on its approach, the aircraft caught an arrestor wire, came to a halt and pitched nose first into the flight deck, which caused the propellers to grind their way into the flight deck.
11. My immediate concern was for the flight crew, that they be evacuated before something more drastic happened that might have further endangered their lives, such as the air craft catching on fire.
12. I felt the flight deck, fire control team were taking too long to respond to the situation, therefore when the propellers had stopped I started to run forward with the intention of opening the aircraft door to aid the aircrew’s evacuation, also to see if anyone was injured and needed assistance to get out.
13. I did not reach the aircraft because I was held back by the squadron electrical officer.
14. At that moment I felt helpless and very anxious for the aircrew and also felt my maintenance team were relying on me for instructions on what to do.
15. The electri8cal officer later explained to me that the flight deck, fire-control team did have everything under control and we would have been an obstruction to them. As it turned out no one was injured.
16. My anxiety stayed with me in the days following the accident because during the inquiry, to eliminate all possible causes, the investigation team looked at the maintenance history of the aircraft to eliminate all possible causes for the accident such as maintenance error.
17. My area of responsibility was not directly involved with the nose wheel but it was an area which at times required attention from the Air Technical Communications trades; as there were electrical looms (wiring) and electronic equipment (sonobuoys) within the wheel bay, which were my responsibility.
18. Although the accident was not caused by maintenance error (I cannot recall what the outcome of the investigation was), I still had nightmares about it, which were about being involved in the accident and having to explain my actions to the Captain of the ship and seeing my career in the navy coming to an end.
19. These nightmares would reoccur whenever I heard about an aircraft accident.”
ROSS HEWITT, NORBERT SCHUBINSKI AND LORNA GLASS
12. Ross Hewitt first met the applicant when they joined the Navy in July 1964. He described his relationship with the applicant as one of “close friends”. Mr Hewitt felt that the applicant’s personality changed “from about the time he became a Petty Officer”, which Mr Hewitt believed was in about 1974. Mr Hewitt stated that the “applicant was irritable, stressed out and cranky.”
13. Mr Hewitt said although he did not observe it directly, he believed that during this period the applicant was drinking “too much”. He said he recalled the applicant “frequently appearing to be hung over and I believe that this would have affected his work. Nevertheless, there was a culture of tolerance towards heavy drinking in the Navy at that time. I don’t recall him being reprimanded whilst I was at HMAS Albatross”.
14. Mr Hewitt left the Navy in 1976 and returned to Western Australia. Thereafter he had “no real contact” with the applicant “except occasional phone calls and occasional Xmas cards. I also saw him once or twice when he came across to WA whilst on leave”
15. A signed statement of Norbert Peter Schubinski, the applicant’s brother, was tendered. The applicant’s brother was not made available for cross-examination. Norbert Schubinski’s statement concerned his brother’s drinking and efforts on the part of himself and the applicant to build a house on land in St George’s Basin, Sanctuary Point, which was about 30 kms south of Nowra (on the south coast of New South Wales). His brother attributed the length of time taken to build the house to the applicant’s heavy drinking.
16. The applicant’s sister, Lorna Glass, gave evidence by telephone. Her evidence was to the effect that she noticed a change in the applicant during his period with the Navy. She said “he became very withdrawn; he started to stutter quite a bit and really started to drink quite heavily”. When asked whether she was able to identify when or approximately when that change occurred she answered “Yes. That was when the accident happened on the ship when the plane with the blade or nose going down and the guys tried to run to get the guys out of the plane”. In cross-examination by Mr Ponnuthurai, Counsel for the respondent, Ms Glass stated that the applicant had written about the incident in letters. When asked whether, since that time, there had been any change or further change in the applicant, Ms Glass responded “his stuttering has gotten worse and he seems to have withdrawn a lot more as well”. Ms Glass considered that her brother’s symptoms were now worse than when he left the Navy.
17. In answer to questions put to her by the Tribunal, Ms Glass stated:-
· she would not disagree with the evidence given by Mr Hewitt that the applicant’s personality changed in about 1974.
· she would not disagree with the evidence given by Mr Hewitt that, around the same time, the applicant began drinking too much. Ms Glass clarified her evidence by stating that the change around the time of the incident in 1977 was that the change in the applicant’s personality had commenced some years prior to the incident in 1977, but that it was “not as bad though…it wasn’t as bad” and that it had got worse after the 1977 incident;
· the stuttering started after the 1977 incident.
THE APPLICANT’S SIGNED STATEMENT IN SUPPORT OF A CLAIM FOR TREATMENT AND PENSION
18. On 1 December 1988 the applicant signed a document entitled “Statement in Support of a Claim for Treatment and Pension” and then caused it to be submitted to the Commonwealth Department of Veterans’ Affairs in support of his claims for compensation in respect of hypertension and fallen arches. The applicant told the Tribunal that part of the document – that part in black ink – was filled out by him, and that other parts of the document – those parts in blue ink – were filled out by someone assisting him to complete the document. With respect to the portions completed by the third party, the applicant accepted that third party would have been relying upon information provided by the applicant and that the writing had been inserted prior to the applicant signing and dating the document. Accordingly, for all intents and purposes, nothing turns on the fact that some of the handwriting on the document is that of a third party.
19. Under the heading “Alcohol Consumption” appears various questions. Those questions and the answers given thereto are as follows:
· “Have you ever been a regular drinker?” for which the “No” box was marked (in black pen).
· “When did you start drinking?” for which “1968” was written (in black pen).
· “When did you stop drinking?” for which “N/A” was written (in blue pen).
· “What is or was your daily consumption?” for which “No daily” was written (in blue pen).
· “Did your drinking habits change greatly at any time?” for which the “No” box was marked (in black pen).
20. If the applicant’s evidence with respect to his “heavy drinking”, as well as the evidence given in that respect by his brother and Mr Hewitt, is to be accepted - which the Tribunal does accept - then the answers to the questions “Have you ever been a regular drinker?”, “What is or was your daily consumption?” and “Did your drinking habits change greatly at any time?” on the “Statement in Support of a Claim for Treatment and Pension” are false. The Tribunal put this to the applicant, who admitted those answers were false. The applicant’s explanation for doing so was as follows: “because I was still in the Navy then and that would have reflected on my record if I had – if it had been officially known that I was – had a problem with drinking”. He said “I did not want that to be on my service documents”.
21. The applicant accepted that he filled out the form and submitted it to Veterans’ Affairs, knowing it to be incorrect.
THE APPLICANT SEES DR BURVILL
22. Dr Peter W Burvill, Consultant Psychiatrist, gave evidence on behalf of the respondent. He first met with the applicant on 25 and 27 September 2002, specifically in relation to his claim for benefits in respect of “stress and alcohol abuse”. In his report dated 8 October 2002, Dr Burvill detailed the applicant’s account of his history in the Navy, focusing on the stress caused to him by promotions which he did not consider himself capable of “performing to his usual high standards” and of the applicant drinking “more persistently and progressively heavily as he found that all his stresses and worries connected with his work disappeared with alcohol…”. Dr Burvill concluded that the applicant “has a generalised anxiety disorder which first began during his initial period of stressful service in the Navy in 1974 – 1975. There is a history of continued anxiety symptoms since that time up to the present. His anxiety symptoms were particularly marked in the six months up to July 2002.
23. Dr Burvill concluded that the cause of the anxiety disorder was the applicant’s “continual stress work experiences in the course his work in the Navy” as detailed in his letter. Dr Burvill stated that the applicant’s progressively heavy alcohol intake was directly from his generalised anxiety disorder.
THE APPLICANT SEES DR FELLOWS-SMITH
24. Dr Fellows-Smith gave evidence on behalf of the applicant. He met with the applicant on 3, 10 and 24 May 2004. In his written report, Dr Fellows-Smith noted that the respondent had rejected the applicant’s claim with respect to anxiety disorder “on the basis that he had not experienced a severe psychosocial stressor…”.
25. In his report, Dr Fellows-Smith wrote as follows:
“Mr Schubinski identified an increase in his level of stress as coinciding with his promotion to petty officer and transferred form the helicopter’s squadron to the fix wing squadron in late 1974 or early 1975. He hs (sic) however now recovered the memory of witnessing a tracker aircraft crash on landing in 1977 when the nose wheel failed to come down causing the nose to hit the deck and the propellers to grind into the deck. Fortunately the pilot, navigator and two aircrew were not injured nor were the personnel on the flight deck. His response to these events involved intense fear, helplessness and horror.
In his own words “I not only feared for the life of the aircrew and my watch on deck I immediately felt responsible for the malfunction.”
Mr Schubinski states that his first reaction was to run to the assistance of the flight crew however he was pulled back by the squadron electrical officer. For many years he persistently re-experienced the event in the form of recurrent distressing dreams of the event and flashback episodes should he be reminded by cues that symbolise or resemble aspects of the trauma eg: conversations about aeroplane crashes or newsreel. He describes feeling a knot in his stomach when he re-experiences the event, Mr Schubinski reported that he has actively avoided talking about his experience and has tried to put it to the back of his mind. …”
26. Dr Fellows-Smith referred to “collateral history from Ross Hewitt who knew (the applicant) before and after 1977 supports (the applicants) subjective account of the changing personality as occurring following the trauma. Ross and Siegfried joined up together in 1964. Before the crash in 1977 Ross described Siegfried as a placid person who used to visit him and his wife to look after the kids. After the trauma he became grumpy, withdrawn and didn’t visit as much. They lost contact as Siegfried chose to stay on his own more”.
27. Dr Fellows-Smith concluded that “Mr Schubinski has recovered the memory of a severe psychosocial stressor when he witnessed the near death of four aircrew and his life and the lives of others on deck were endangered when an aeroplane crashed in 1977 on HMAS Melbourne. Collateral history obtained from somebody who knew him before and after the traumatic event supports the time of onset as occurring within twelve months of the psychosocial stressor. In addition there is a history of Post Traumatic Stress symptomatology which has reduced over time however during the process of this claim his Post Traumatic re-experiencing phenomena returned. To some extent the diagnosis of Anxiety Disorder whether Generalised Anxiety Disorder as described in DSM 300.02 as diagnosed by Professor Burvill or a more specific Post Traumatic Stress Disorder as described in DSMIV 309.81 is an academic distinction. In any case it is likely that his history of heavy drinking and alcohol related problems coincided with the onset of anxiety disorder on or around 1977. I note his alcohol related problems are now in remission”.
28. In answer to a question put to him by Mr Christie on behalf of the applicant, Dr Fellows-Smith said that, when interviewing him, the applicant “became hesitant and stuttered” and that his clinical examination fitted “the observation of his sister that he – not only was he agitated and with hand wringing and sitting on the edge of the chair … but he was stuttering as well and this was unusual in veterans that I’ve seen, that they don’t generally start stuttering, given their evidence …”.
29. In the course of his evidence-in-chief, Dr Fellows-Smith made reference to obtaining a history of the applicant, not only from Mr Hewitt, but also from the applicant’s sister. It was the applicant’s sister who referred to “the onset of stammering which occurred after 1977”.
30. In cross examination, Dr Fellows-Smith stated that he was not disputing Dr Burvill’s diagnosis that the date of clinical onset of the anxiety disorder was 1974/1975, but that in his opinion there was a clinical worsening “around about 1977 supported by collateral history from his sister and she puts great emphasis on that period of time when she says that’s when she noticed that he was much worse. So, on that basis, I am more confident in making the diagnosis on or about the time of 1977”.
31. Mr Ponnuthorai, on behalf of the respondent, put to Dr Fellows-Smith the absence from any of the applicant’s service medical records of any reference to a speech impediment or hesitancy in his speech, to which Dr Fellows-Smith stated: “I think the changes are subtle in terms of the – they’re certainly apparent to his sister. And I notice that when Dr Burvill describes on a mental state examination he uses the words “he gave his evidence freely”. And to some extent I’ve also written similar but my observation was related to the dissociative changes that occurred in veterans who have post-traumatic stress disorder and how they dissociate but I have constantly observed in Mr Schubinski that he is – he has a hesitant style of speech. Perhaps he might miss one or two beats of prosody which wouldn’t amount to a diagnosis of a speech impediment, certainly not on a routine clinical examination, but I think when you take the whole picture it’s highly clinically significant without his presenting any history he gave us”.
32. The Tribunal enquired whether Dr fellows-Smith could offer any explanation as to why the applicant had not related the 1977 incident to Dr Burvill. Dr Fellows-Smith indicated that he had not explored the issue.
THE APPLICANT SEES DR BURVILL AGAIN
33. Dr Burvill interviewed the applicant in 2005 in the light of the report from Dr Fellows-Smith. Dr Burvill said that “prior to the 1977 incident, in my opinion Mr Schubinski was suffering from, anxiety symptoms, that may not have met the criteria of the new generalised anxiety disorder and as such, I feel that he fits one of the criteria of – his anxiety symptoms are becoming much worse following a definite psychosocial stressor, namely, in 1997. Because the history I obtained from Mr Schubinski was that there was a much worsening of his anxiety symptoms following that incident…”.
34. In cross-examination by Mr Ponnuthurai, Dr Burvill confirmed that on the first two occasions that he had seen the applicant, the applicant gave “no history about the 1977 incident”. Dr Burvill confirmed that, when he had initially met with the applicant, “I went through with him looking for any, as you know, precipitating, aggravating, stressful incidents progressively from 1974 onwards”, but that the applicant did not give to Dr Burvill the “history” of the 1977 incident. When asked by Mr Ponnuthurai whether, in his experience as a psychiatrist, Dr Burvill had observed that, generally speaking, people divulge information to one psychiatrist but not to another, Dr Burvill indicated that “certain items they may just well give to someone who is their therapist and they’ve got a much closer relationship with them, but I wouldn’t have expected in this type of thing – this does not fit into the category of things at all”.
35. Dr Burvill himself had asked the applicant why he hadn’t told him of the 1977 incident when they had met in 2004. When asked how the applicant had answered, Dr Burvill said: “It was a curious one actually. He told me that he had mentioned this to his advocate in Sydney prior to coming here at an earlier stage and his advocate gave him the impression or told him that that wasn’t relevant and therefore he says he did not mention that. That’s all I can say about that.”
DR BUTLER
36. Reports prepared by Dr R J Butler, Consultant Physician, dated 26 February 2003 and 15 September 2003 respectively, were tendered in evidence on behalf of the applicant. Dr Butler interviewed and examined the applicant on 5 December 2002. Both letters were addressed to the Veterans’ Advocacy Service, Legal Aid Commission of New South Wales.
37. The salient parts of Dr Butler’s reports were as follows:
· Smoking: The applicant had stated that he commenced smoking at about age 20, four years after enlisting in the Navy, and ceased in 1987 on medical advice.
· Alcohol: “He was a non-drinker on enlistment and states that he drinks socially until about 1973 when he increased his intake because of work stress. In December 1984 he had more stress because of a position where he was unfamiliar with the equipment and there was a further increase in alcohol usage. He recalled that when posted to HMAS Stalwart in January 1986 he was drinking one or two pints of beer while at sea, with spirits when on shore leave. In June 1987 there was further emotional stress related to his appointment in an Instructor’s post at HMAS Penguin. At that time he was drinking very heavily, up to 100 gms of alcohol per day.
He continued to drink heavily after his discharge from the service, but in 1992 reduced his intake substantially and now he rarely drinks alcohol.”
· Hypertension: The first record of elevated blood pressure in the applicant’s notes are dated 4 November 1985 when a level of 160/115 was recorded. This was re-checked at 150/80. No investigations or treatment were undertaken. Two years earlier, the applicant’s blood pressure was 120/80. Dr Butler concluded “Dates on the outpatient notes are unclear but I believe that the first record of confirmed hypertension is on the 2nd of May 1987, when a blood pressure of 180/105 was recorded. At this time investigations were undertaken and he was advised to lose weight and cease smoking.”
· Sleep apnoea: Dr Butler recorded that on 3 March 1989 the applicant was referred to an ENT surgeon “The record states that he had been snoring for four years, and when he lay on his back was unable to breathe. On the 18th of March 1989 the ENT surgeon has recorded “His brother had told him that he frequently stopped breathing at night for up to 5 seconds”. On the basis of this Mr Schubinski underwent uvulo-palato-pharyingoyplasty on the 15th of May 1989. This appears to have been successful…”.
· Statement of Principles: Dr Butler concluded “the diagnosis of hypertension is correct. The earliest possible time for clinical onset would be November 1985. The diagnosis was certain by September 1987.
The diagnosis of obstructive sleep apnoea is highly probable. The records do not allow accurate determination of date of onset, the first mention in the records to which I had access is in March 1989. In view of the statement that his snoring had been a problem for four years, a date of 1985 could be considered. On the other hand, there was considerable weight gained during these four years, and may not have been evident until relatively late”.
Commodore A. H. R. Brecht (RAN Retired)
38. The only witness called on behalf of the respondent was Retired Cmdr Allen Brecht. Cmdr Brecht had prepared a report into research undertaken by him as to the applicant’s record of service and the circumstances of the 1977 incident.
39. As for the applicant’s record of service, the applicant was awarded the Defence Force Service Medal on 7 July 1979, the National Medal on 21 July 1981 and the First Clasp to Defence Force Service Medal on 7 July 1984. His record shows that from 1967 through to 1996 the applicant completed and, in the main, passed numerous technical courses.
40. As for the 1977 incident, records held by the Defence Department Archives indicated that it was officially categorised as a minor incident with no injuries “in the general scale of aircraft accidents this incident would rate as relatively minor, evidenced by the fact that there was no official Board of Enquiry convened to investigate the event”. Damage to the aircraft was limited to the failed nose wheel trunnion and the port engine propeller which struck the deck during shut down.
VETERANS’ ENTITLEMENT ACT 1986
41. The applicant was never engaged in operational service. Accordingly, neither s 120 (1) or (3) apply. It therefore follows that:
· the four step procedure set out by the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 at 92 has no application to the resolution of these applications;
· the relevant standard of proof is thus one of “reasonable satisfaction”, see s 120 (4) of the Act.
42. The fact that the applicant suffers from general anxiety disorder, sleep apnoea and hypertension not being an issue, the issue for determination by the Tribunal with respect to each of the three applications is whether of not the relevant condition “is a defence-caused injury”.
FINDINGS
The claim for General Anxiety Disorder
43. The relevant Statement of Principles is Instrument No 2 of 2004 “Generalised Anxiety Disorder”. Clause 4 of the SOP provides that (subject to Clause 6, which both Counsel contended was not relevant) “at least one of the factors set out in Clause 5 must be related to any relevant service rendered by the person”.
44. Clause 5 provides the factors that must exist before it can be said that, on the balance of probabilities, anxiety disorder is connected with the circumstances of a person’s relevant service. The relevant factors to which Mr Christie, Counsel for the applicant, referred the Tribunal were “experiencing a severe psychosocial stressor within one year immediately before the clinical onset of anxiety disorder” or “experiencing a severe psycho-social stressor within one year immediately before the clinical worsening of anxiety disorder”: see Clause 5(a) (i) and (iv) respectively.
45. Mr Christie submitted that the “clinical onset” of the applicant’s generalised anxiety disorder was in 1974 upon his promotion to Petty Officer. Mr Christies submitted that there had been a “clinical worsening” of the anxiety disorder when the applicant witnessed the incident on the flight deck of the HMAS Melbourne in 1977 (“1977 incident”). Mr Christie did not submit that the promotion to Petty Officer in 1979 was capable of constituting “a severe psychosocial stressor”. Indeed, the medical evidence produced on behalf of the applicant did not suggest it was, and nor would the Tribunal have held it to be.
46. Accordingly, the matter comes down to whether it has been established to the reasonable satisfaction of the Tribunal that, by reason of the 1977 incident, the applicant had experienced “a severe psychosocial stressor” and that, within a year thereafter, there was “a clinical worsening of (his) anxiety disorder”.
47. Having carefully considered all the material before it, as we must do: (see, for example, Bull v Repatriation Commission (2001) 188 ALR 756 at [21] and Hardman v Repatriation Commission [2004] FCA 1174 at [39 – 41]), we are not persuaded, and therefore do not find, that the applicant experienced a severe psychosocial stressor or that there was a clinical worsening of his anxiety disorder within a year of the 1977 incident.
48. The term “the psychosocial stressor” is defined by Clause 8 of the SOP to mean “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 loss such as divorce or separation, loss of employment, major financial problems or legal problems”.
49. There is no doubt that the 1977 incident is “an identifiable occurrence”. However, is it one “that evokes feelings of substantial distress in an individual”?
50. It follows from the judgments of Mansfield J at first instance in Stoddart v Repatriation Commissioner (2003) 74 ALD 366 and of the Full Court on appeal in Repatriation Commission v Stoddart (2003) 134 FCR 392 that the question of whether an occurrence satisfies the definition must be judged objectively from the point of view of a reasonable person in the position, and with the knowledge, of the person experiencing the occurrence, and not by reference to a person who has full information in relation to the relevant occurrence. The relevant events must be such that they are capable of and did convey (i.e. were subjectively experienced) feelings of substantial distress.
51. In White v Repatriation Commission (2004) 39 AAR 67, in discussing a similar Statement of Principles (No. 2 of 2000), Spender J remarked at [30]:-
“In my judgment, the definition of severe psychosocial stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned”.
52. In Delahunty v Repatriation Commission [2004] FCA 309, Tamberlin J at [28] discussed the concept of a “stressor” and persons’ perceptions. His Honour said:
“While one can accept that the perception of the stressor cannot encompass a totally irrational perceptional basis apprehension, it must be borne in mind that the question is whether the stressor is severe and this recognises that there are different degrees of stress which may arise from the incident and give rise to find questions of fact and degree in any particular circumstances. This indicates that the definition must be approached in a manner which is not unduly restrictive.”
There may be cases where one person finds something extremely stressful that another person finds stressful but not extremely so. In other cases, one person may find something stressful that other persons do not find stressful at all. Considerable latitude must be extended when considering whether a person has experienced a severe stressor.”
53. Having considered the whole of the evidence, we conclude that the 1977 incident was not one which, objectively, was capable of “evoking feelings of substantial distress”. The 1977 incident was, relatively speaking, a minor one. It involved only minor damage to the aircraft involved. None of the aircrew was injured. There was no real risk of any injury to anyone on the flight deck, let alone the applicant himself. Nor was there any basis for a reasonable person in the shoes of the applicant to apprehend that the collapsing of the nose wheel could have in any way been referrable to him (a proposition that Dr Fellows-Smith described as “unreasonable thoughts” and “an irrational idea which is hard to explain”).
54. In any event, we are not reasonably satisfied on the material before us that, subjectively, the 1977 incident was in fact something which evoked “feelings of substantial distress” to the applicant. Our reasons for so finding are as follows:
·Our reasons for concluding the 1977 incident was not one which, objectively, was capable of evoking feelings of substantial distress are also relevant as to whether or not the 1977 incident was in fact something which evoked feelings of substantial distress to the applicant.
·The applicant did not mention the 1977 incident when he first met Dr Burvill, and nor did he refer to the same in any of the documentation which he prepared in connection with his claims prior to his statement dated 16 June 2005. His failure to do so was not the subject of any psychological factor which Dr Fellows-Smith, when asked, was able to point to by reference to anything other than, by his own admission, speculation. The explanation given to both Dr Burvill and the Tribunal for this was that the advocate previously assisting the applicant had told him it was not a relevant event. That an advocate would make such a statement to the applicant, whilst possible, is, by its very nature, unlikely. It was an explanation that called for corroboration: at the very least a letter from the advocate who is said to have made the statement to the applicant. No corroboration was offered on behalf of the applicant.
·The applicant has been shown to have submitted information in support of his claims knowing the same to be false. Whilst the explanation proffered by the applicant for doing so is accepted by the Tribunal, the fact that the applicant has previously been prepared to lie in connection with his claim is a factor which the Tribunal may and does take into account. Whilst of itself it would be insufficient to cause the Tribunal not to accept the applicants evidence given before the Tribunal, it is a factor which the Tribunal may and does have regard to, in addition to the factors already referred to, in concluding that the applicant’s explanation for not having referred to the 1977 incident prior to his meeting with Dr Fellows-Smith, in his evidence before the Tribunal that the 1977 incident was in fact something which caused him “feelings of substantial distress”, ought to be rejected.
·The “collateral history from Ross Hewitt” referred to in Dr Fellows-Smith report is wholly inconsistent with the evidence given by Mr Hewitt before the Tribunal. Contrary to what is stated in Dr Fellows-Smith report, Mr Hewitt’s evidence before the Tribunal was that the applicant’s personality changed in about 1974 – not after 1977. Indeed, Mr Hewitt left the Army prior to the 1977 incident after which he had “no real contact “ with the applicant. Whilst Mr Hewitt certainly gave evidence that the applicant became grumpy and withdrawn, this was in about 1974, and not “after the trauma” of the 1977 incident.
55. Whilst our finding that the applicant’s observation of the 1977 incident did not result in the applicant “experiencing a severe psychosocial stressor”, for the sake of completeness we have considered whether in any event there was any evidence to make good the applicant’s submission that there had been a “clinical worsening” of the anxiety disorder” within the year after the 1977 incident.
56. The concept of “clinical worsening” was considered in Bell and Repatriation Commission (1999) 58 ALD 721, where Deputy President McMahon held (at [15]);-
“The use of the phrase “clinical worsening” is to be regretted. By avoiding the concept of “aggravation” the authors of the SOPs have left open the question of whether any clinical worsening prescribed by the Statement may be temporary or must be permanent. Nevertheless, the SOPs cannot go beyond the terms of the Statute. Whatever is included in the Statements, the fact is that an applicant must show (relevantly) aggravation in order to succeed. That term has been widely considered in both Workers Compensation and Veterans legislation. In all cases, distinctions have been drawn between temporary worsening of symptoms and aggravation of a compensable concept.”
The Deputy President, after referring to further authorities, concluded that:
“The question to be determined is whether the pre-existing condition itself has been worsened”.
57. Having carefully considered the evidence, the only evidence of any change in the applicant within the year following the 1977 incident is the evidence of the applicant’s sister that the applicant started stuttering.
58. The first the Tribunal heard of the applicant stuttering was neither in opening by his Counsel nor even when the applicant gave his evidence. Rather, it was when Dr Fellows-Smith gave evidence on behalf of the applicant.
59. The Tribunal has carefully considered all of the evidence submitted by the parties and the transcript of the evidence given by all witnesses at the hearing. There is not one reference in any of the exhibits tendered by the parties, the applicant’s evidence, the evidence of Mr Hewitt, the evidence of the applicant’s brother or any of the medical reports of any stuttering by the applicant.
60. No stutter was apparent when the applicant gave his evidence before the Tribunal.
61. Indeed, the reference to stuttering in the course of Dr Fellows-Smith’s evidence appears to have even caught Mr Christie by surprise as the calling of the applicant’s sister – the stated source of this information – was not foreshadowed prior to the hearing, or in opening. Indeed, at the end of the first day of hearing, Mr Christie was asked by the Tribunal what other witnesses he had. He responded “Well, it may – well, Dr Burvill and the applicant’s brother Norbert Schubinski and after today’s evidence I was going to see if I could contact the sister as well”.
62. Further, when asked by the Tribunal whether Mr Christie had any statements for them, he responded, “I have a statement from Norbert Schubinski, yes. I haven’t one from the sister, I wasn’t aware of her”.
63. In all the circumstances, the Tribunal does not find there to have been any evidence of “clinical worsening” of the applicant’s anxiety disorder within the year of the 1977 incident. Given that the applicant exhibited no signs of stuttering (notwithstanding his sister’s assertion that it was worse now than it was when he was in the Navy), given that the applicant made no reference to have ever stuttered, given that none of the medical reports prepared by any of the doctors who the applicant had met noted any stuttering, the evidence is not established to the reasonable satisfaction of the Tribunal that the applicant stutters at all, let alone that he did some time in 1977/78, and that that is when it started.
64. It follows from the above reasons that the respondent’s decision with respect to the applicant’s claim for generalised anxiety disorder ought to be affirmed.
The applicant’s claim for sleep apnoea
65. The current Statement of Principles for sleep apnoea is Instrument No. 14 of 2005. Counsel for the applicant and the respondent agreed that it was more favourable to the applicant than the prior SOP (Instrument No 40 of 1997). Accordingly, it is only the 2005 SOP that the Tribunal need consider.
66. Clause 4 of the SOP provides that (subject to Clause 6, which both Counsels contended was not relevant) “at least one of the factors set out in Clause 5 must be related to the relevant service rendered by the person”.
67. Clause 5 provides factors that must exist before it can be said that, on the balance of probabilities, sleep apnoea is connected with the circumstances of a person’s relevant service. The relevant factors upon which the applicant relies are “being obese at the time of the clinical onset of sleep apnoea”, “being obese at the time of the clinical worsening of sleep apnoea” or “consuming an average of at least 50grams of alcohol a day for at least the 6 months before the clinical worsening of the sleep apnoea”: see Clause 5(b), (k) and (s) respectively.
68. The meaning of “clinical onset” was considered by the Full Court of the Federal Court in Lees v Repatriation Commission (2002) 125 FCR 331. The Court referred to the analysis of the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668, in which Senior Member Dyer concluded (at 670) that:-
“… there is a clinical onset of the disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time”.
69. That analysis was specifically endorsed by Branson J in Repatriation Commission v Cornelius [2002] FCA 750.
70. The evidence establishes that the applicant had been snoring for at least 4 years prior to his referral to an ENT surgeon on 3 March 1989. However, the mere fact that the applicant had been snoring is not sufficient evidence to enable the Tribunal to conclude that, as a matter of reasonable satisfaction, that the applicant then had sleep apnoea. Whilst snoring is almost invariably associated with sleep apnoea, the fact of snoring – indeed heavy snoring – without more does not enable a finding of the clinical onset of sleep apnoea within the meaning of that term as explained in above.
71. The record of 3 March 1989 “is a full year history of snoring with an increase in inability to breathe while lying on his back”. It is unclear whether the reference to “an increasing inability to breathe while lying on his back” means that the applicant’s inability to breathe was referrable to the whole “four year history”, or something that commenced during that term and had been “increasing” since.
72. Similarly, the fact that the applicant’s brother had noted that the applicant “frequently stopped breathing at night for up to 5 seconds” was without any reference in time.
73. The Tribunal is also cognisant of Dr Butler’s observations that “in view of the statement that his snoring had been a problem for 4 years, a date of 1985 could be considered. On the other hand there was considerable weight gained during these 4 years, and sleep apnoea may not have been evident until relatively late”.
74. It would seem probable that the applicant was suffering from sleep apnoea some time prior to being referred to an ENT surgeon in March 1989. However, the evidence does not permit the Tribunal to conclude to its reasonable satisfaction when, during that 4 year period, the “clinical onset” occurred.
75. For those reasons, on the evidence before the Tribunal, the only date in respect of which the Tribunal can conclude with reasonable satisfaction that the applicant had sleep apnoea was on 3 March 1989 when he was referred to an ENT surgeon, complaining of snoring and an increasing inability to breathe when he lay on his back.
76. Accordingly, the Tribunal finds that the date of “clinical onset” of the applicant’s sleep apnoea is 3 March 1989.
77. Counsel for the applicant was unable to point to any evidence from which the Tribunal could conclude that, at some later time, there had been a “clinical worsening” of the applicant’s sleep apnoea. The Tribunal therefore makes no such finding.
78. The Tribunal must next consider whether, as at 3 March 1989, the applicant was “obese”.
79. The SOP defines “being obese” to mean an increase in body weight by way of fat accumulation which results in a body mass index (“BMI”) of 30 or greater and that the BMI is calculated by taking the person’s weight in kilograms and dividing that by the person’s height in centimetres squared.
80. The respondent did not dispute that the evidence before the Tribunal established that, in March 1989, the applicant was “obese” within the meaning of the SOP. Accordingly, the Tribunal so finds. However that does not end the matter. The applicant must further establish that his “being obese” was service related. This was disputed by the respondent.
81. The respondent submitted that there was no evidence before the Tribunal that the applicant’s service environment encouraged excessive caloric intake or that such intake could not be compensated for by exercise. In essence, the applicant contended that the evidence before the Tribunal established that the applicant’s obesity was caused by the fact that he had stopped smoking.
82. The applicant submitted that his obesity was attributable to service on the basis the nature of his duties, fatty provided by the Navy, the quantity of food consumed given his duties and the alcohol consumption due to the stress of his work.
83. The evidence before the Tribunal with respect to the applicant’s weight gain was in the form of a report of Ms Ruth English, a dietician, as well as the applicant’s own evidence. Relevantly, the report of Ruth English recorded that the applicant had the following body weight and body mass on the following dates:
·4 November 1985: The applicant weighed 74.5 kg with a BMI of 25.2
·24 December 1997: The applicant weighed 84.5 kg with a BMI of 28.6
·2 September 1987: The applicant weighed 79 kg with a BMI of 26.7
·24 February 1988: The applicant weighed 86 kg with a BMI of 29.1
·5 May 1988: The applicant weighed 90.4 kg with a BMI of 30.6
·18 July 1988: The applicant weighed 92 kg with a BMI of 31.1
·3 March 1989: The applicant weighted 93 kg with a BMI of 31.4
·4 July 1989 The applicant weighed 83 kg with a BMI of 28.1
84. The evidence thus establishes that during the period from 1987 to 1988 continuing through to the first part of 1989 and resolving itself sometime prior to July 1999, the applicant’s weight and BMI substantially increased to a point where he became, and for over a year remained, obese. There is no evidence before the Tribunal to suggest that, during that period, there had been some change in the applicant’s duties or lifestyle, the foods he consumed, the amount of alcohol consumed or his opportunity to exercise. What did occur during that period is that the applicant, on medical advice, stopped smoking. There was thus nothing in the evidence by which the Tribunal could reasonably conclude, on the balance of probabilities, that the applicant’s weight and BMI substantially increased by reason of anything service related. In particular, there was no probative evidence to make good ( to the required degree) the applicant’s submission that “the applicant’s obesity is attributable to service on the basis of the nature of his duties, fatty food provided by the Navy, quantity of food consumed given his duties and alcohol consumption due to the stress of his work”
85. The Tribunal therefore finds that the applicant’s obesity was caused by his decision to stop smoking and his successful implementation of that decision. As neither the applicants smoking nor his decision to stop smoking were service-related, it follows that the applicant’s obesity was not one which was service-related.
86. For those reasons the respondent’s decision with respect to the applicant’s claim for sleep apnoea ought to be affirmed.
Claim for Hypertension
87. The current Statement of Principles for hypertension is Instrument No.36 of 2003 as amended by Instrument No. 4 of 2004. At the time of the decision under review, the relevant SOP was Instrument No. 26 of 1999.
88. The Tribunal must first consider the applicant’s claim under the current SOP. If the Tribunal concludes that it does not assist the applicant, then the applicant may (and does) rely on the SOP at the time of the decision under review. Unlike sleep apnoea, the applicant submits that the SOP applicable at the time of the decision under review was more favourable to the applicant than the existing SOP.
89. Dealing first with the existing SOP (as amended), Clause 4 provides (subject to Clause 6, which both counsel contended was not relevant) “at least one of the factors set out in Clause 5 must be related to any relevant service rendered by the person”.
90. Clause 5 provides the factors that must exist before it can be said that, on the balance of probabilities, hypertension is connected with the circumstances of a person’s relevant service. The relevant factors upon which the applicant relies are
“consuming an average of at least 300 gms per week of alcohol which cannot be decreased to less than an average of 300 gms per week, at the time of the clinical onset of hypertension”, “suffering from sleep apnoea at the time of the clinical onset of hypertension”, “being obese at the time of the clinical worsening of hypertension”, “consuming an average of at least 300 gms per week of alcohol which cannot be decreased to less than an average of 300 gms per week, at the time of the clinical worsening of hypertension” or “suffering from sleep apnoea at the time of the clinical worsening of hypertension”, see Clause 5 (b) (l) (n) (o) and (x) respectively.91. By reference of the report of Dr Ruth English, counsel for the applicant submitted that the applicant’s blood pressure readings on 4 November 1985 was the clinical onset of hypertension, with a “clinical worsening” in September/October 1987 and a further clinical worsening in February/March 1989.
92. Mr Ponnuthurai, on behalf of the respondent, accepted that the evidence established that the applicant had hypertension as early as 1985. Further, counsel did not take issue with the submissions on behalf of the applicant as to subsequent “clinical worsening” of the hypertension.
93. We accept the submissions of counsel on behalf of the applicant and so find that the date of “clinical onset” was November 1985, and that there was a “clinical worsening” of the hypertension in September/October 1987 with a further “clinical worsening” in February/March 1989.
94. The first question which then arises is whether, for a continuous period of, at least six months immediately any of those dates, the applicant consumed an average of at least 300 gms of alcohol “which cannot be decreased to an average of 300 gms per week of alcohol”.
95. The Tribunal is satisfied on the evidence – indeed it was not seriously contested by the respondent – that certainly by February/March 1989, if not in November 1985, and in September/October 1987, the applicant had been consuming for a continuous period of at least six months an average of at least 300 gms per week. The issue however is whether that was a consumption that “cannot be decreased to less than an average of 300 gms per week of alcohol”.
96. Mr Christie contended that the words “cannot be decreased to less than an average of 300 gms per week of alcohol” are incapable of being given a sensible construction as it is not clear what is meant by the words “cannot be decreased” nor is it clear as to when it must be established that the applicant’s consumption of alcohol “cannot be decreased”.
97. In support of this submission, Mr Christie relied upon the decisions of this Tribunal in Dowd and Repatriation Commission (2004) AATA 437 and Collier and Repatriation Commission (2004) AATA 1100.
98. In Dowd, the Tribunal did not expressly deal with the words “which cannot be decreased to less than an average of (300 gms) per week of alcohol”. However, the Tribunal did find that “the applicant developed an alcohol dependence that remained with him” and so it can be taken to have concluded that not only was the applicant in that case consuming the requisite quantity, but that the applicant could not decrease his consumption to a lesser amount. There is nothing in Dowd’s case that supports the submission contended for by Mr Christie.
99. In Collier, the Tribunal noted “in passing we must state that the wording of Factor 5 (b) is confusing. It is what is meant by the words “cannot be decreased to less than average of 300 gms per week …”. As presently drafted, that factor just does not make sense. Does it speak of the period before or after clinical onset?”
100. Having carefully considered the matter, whilst we agree that the paragraph could be better worded, we believe the relevant words are capable of a sensible construction and that they connote an element of an inability on the part of the person concerned to decrease his or her average consumption to below the average stated. In order words, we hold subclause (b) to mean that an applicant must establish that for a continuous period of at least six months immediately before the clinical onset of hypertension, the applicant was not only consuming an average of 300 gms per week of alcohol, but was unable to consume less than that average during that period. In other words, as put by Mr Ponnuthurai, the relevant words in effect refer to a compulsion to drink, not merely the fact of drinking.
101. The evidence, which was not disputed, clearly established that, when he wanted to or had to, he could drink less than the requisite average.
102. In this regard the applicant’s evidence was that he was required to and did significantly curtail his drinking when at sea. In response to a question asked by his own Counsel, the applicant agreed that “so whilst you were at sea your drinking was obviously significantly less”. The applicant gave evidence that, whilst posted to the Melbourne, he spent about fifty percent of time on the Melbourne and fifty percent of his time of shore. The applicant gave evidence that, whilst at sea, he only had a pint of beer at night, with one or two extra pints beer on occasional evenings on a rotational basis. The applicant’s evidence was that it was only when he was not at sea and “the bar was open every night“ that his excessive drinking occurred.
103. Accordingly, the applicant does not satisfy either Clause 5 (b) or (o) of the current SOP (as amended).
104. For reasons previously given, the applicant was “obese” for the purposes of the SOP – the definition in the SOP under consideration is the same as the definition of “obese” in the SOP relating to sleep apnoea from 5 May 1988 through to at least 3 March 1989. We therefore find that the applicant was “obese” for the purpose of the SOP when there was a “clinical worsening” of his hypertension in February/March 1989.
105. That, however, is not the end of the matter as, in order to make good a claim for hypertension on the basis of obesity, the applicant needs to further establish that the obesity was itself service-related. For the reasons we have given with respect to the claim for sleep apnoea, we do not find that to be so.
106. For the same reason, whilst we have found that the applicant was suffering from sleep apnoea at the time of the clinical worsening of hypertension in February/March 1989, again the applicant’s claim fails given that such sleep apnoea must be shown to have been service-related, and for reasons previously given, we have held this not to be so.
107. The Tribunal therefore finds that the applicant has not established the existence of any of the factors in the existing SOP and thus do not find, on the balance of probabilities, that his hypertension is connected with the circumstances of his relevant service.
108. Accordingly, we must now consider whether the previous SOP (Instrument No.26 of 1999) – that which applied at the date of the decision – supports the applicant’s claim. The factors in this SOP relied upon by the applicant were those in Clause 5 (b) and (o), namely, “suffering from alcohol dependence or alcohol abuse, involving consumption of an average of at least 300 gms per week of alcohol (contained within alcoholic drinks) …” either at the time of the actual determination of hypertension or at the time of the clinical worsening of hypertension.
109. Counsel for the applicant did not suggest that the evidence established “alcohol dependence”, but submitted it did establish “alcohol abuse” (as these terms are defined in Instrument No.26 of 1999
110. The Tribunal has already found that while at times the applicant drank in excess of 300 grams of alcohol per week, he also had times of drinking only 1-2 beers per day. The Tribunal has no evidence to show he drank “on average” 300 grams of alcohol per week.
111. The term “alcohol abuse” was defined in the previous SOP to mean “the presence of cognitive, behavioural or physiological symptoms indicating use of alcohol despite significant alcohol-related problems; however these symptoms have never met the criteria for alcohol dependence. Additionally, signs of tolerance or withdrawal are absent”.
112. Counsel for the applicant submitted that episodes of drinking until unconscious or being sufficiently drunk to slur one’s words are evidence of cognitive symptoms. In the Tribunal’s opinion, we would believe it is more than this and cognitive symptoms as used here would mean evidence of ongoing disordered mental processes. There is nothing in the evidence before us to indicate the applicant has any disturbed mental function. In fact when giving his evidence the Tribunal found the applicant to be an intelligent and articulate man with intact mental capacity.
113. In the same vein the Tribunal would see “behavioural symptoms” as being more than occasionally being hung over and late for work . There was no evidence of dangerous behaviour such as driving or operating machinery while drunk or of the putting others at risk or of unsocial actions.
114. There is nothing in the medical records before us (either during or after service) to indicate the applicant ever had any physiological symptoms: that is, we can find nothing to show he had any damage to his body or bodily functions because of his heavy use of alcohol.
115. The applicant had a psychiatric assessment by Dr. J.W. Shand on 15 November 2001. He took an extensive history and in his opinion “The history from the veteran qualifies a diagnosis of Alcohol Abuse/Dependence which developed during service with the RAN and until his heavy drinking stopped in 1992……. In retrospect, a diagnosis of Alcohol Abuse was probably qualified by the history. I do not have sufficient history to qualify a diagnosis of Alcohol Dependence prior to 1992, although it may well have applied. As stated above, neither of these diagnoses applies now. I have no evidence that the veteran suffers from cognitive, behavioural and physiological symptoms from the past consumption of alcohol up to 1992. From the history obtained, I do not consider that alcohol Abuse during eligible service was defence caused”
116. The Tribunal notes that Dr. Shand’s report is based on the applicant’s history and we already have commented upon the unreliability of his history. Also, even if the diagnosis of alcohol abuse is accepted, Dr. Shand says it is not defence caused.
117. The Tribunal therefore finds that while the Applicant’s excess use of alcohol could be called “abuse” in lay terminology, it does not constitute “alcohol abuse” as defined in the SOP and even if it does it was not service related.
118. It follows from all we have found that each of the three decisions under review should be affirmed.
I certify that the 118 preceding paragraphs are a true copy of the reasons for the decision herein of MR S Penglis, Senior Member, Brigadier R D F Lloyd, OBE, Member Dr P A Staer, Member
Signed: (sgd EM Jordan) .....................................................................................
Associate
Dates of Hearing 11 and 12 October 2005
Date of Decision 21 December 2005
Counsel for the Applicant Mr Henry Christie
Solicitor for the Applicant Henry Christie & Co
Appearing for the Respondent Mr Carl Ponnuthurai
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