Sears and Repatriation Commission
[2002] AATA 614
•26 July 2002
DECISION AND REASONS FOR DECISION [2002] AATA 614
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1998/1030
VETERANS' APPEALS DIVISION )
Re GREGORY ERNEST SEARS
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr IR Way, Member
Date26 July 2002
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
[Sgd] IR WAY
MEMBER
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – whether injuries are war-caused – bipolar disorder – whether applicant has suffered a severe stressor - whether applicant able to obtain appropriate clinical management for his condition
Veterans' Entitlements Act 1986
Repatriation Commission v Smith (1987) 7 AAR 17
Brew v Repatriation Commission [1999] FCA 1246
REASONS FOR DECISION
26 July 2002 Mr IR Way, Member
This is an application by Gregory Ernest Sears for review of a decision of the Repatriation Commission dated 19 November 1997 and affirmed by the Veterans' Review Board on 14 September 1998, which refused the applicant's claims for bipolar disorder and psychoactive substance abuse or dependence.
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6). The Tribunal also received into evidence the following documents.
·Exhibit A1: Information for Consideration by the AAT (submitted by the applicant)
·Exhibit R1: Report of Dr P Mulholland dated 28 September 2001
The applicant was self-represented and gave oral evidence.
The applicant was born on 23 March 1951 and served in the Royal Australian Air Force from 3 September 1975 until his discharge on 24 November 1995. As such, the applicant's service constitutes defence service, pursuant to Part IV of the Veterans' Entitlements Act 1986 ("the Act").
At the commencement of the hearing the applicant informed the Tribunal that he no longer intended to continue with his appeal against the respondent's decision rejecting his claim for psychoactive substance abuse and that he was now only contesting the respondent's decision to refuse his claim for service-related bipolar disorder. There being no objection from the respondent, the Tribunal accepted the course of action put forward by the applicant and proceeded to hear the matters solely with respect to bipolar disorder.
The applicant's contention is that he suffers from bipolar disorder and that this disorder can be related to his defence service within the meaning of section 70 of the Act.
Legislative FrameworkThe Act relevantly provides as follows:
"70 Eligibility for pension under this Act
(1) Where:
(a)the death of a member of the Forces or member of a Peacekeeping Force was defence-caused; or
(b)a member of the Forces or member of a Peacekeeping Force has become incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)in the case of the death of the member – pension by way of compensation to the dependants of the member; or
(d)in the case of the incapacity of the member – pension by way of compensation to the member;
in accordance with this Act.
…
(5)For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
…
(d)the injury or disease from which the member died, or has become incapacitated:
(i)was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or …
but not otherwise.
120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
(b)a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(3) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii)a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(3), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c)the kind of death met by the person;
as the case may be."
This matter is to be decided, pursuant to subsection 120(4) of the Act. This means that the matter is to be decided to the Tribunal's reasonable satisfaction or, in other words, on the balance of probabilities (see Repatriation Commission v Smith (1987) 7 AAR 17).
Furthermore, subsection 120(4) in respect of defence service is governed by section 120B which requires the application of any relevant Statements of Principles (SoPs) as may be determined by the Repatriation Medical Authority (RMA).
Insofar as this matter is concerned, the RMA has issued an SoP concerning bipolar disorder namely, Instrument No 129 of 1996. It is common ground between the parties, and the Tribunal accepts, that Instrument No 129 of 1996 is the SoP that is relevant to the consideration of this matter.
Instrument No 129 of 1996 defines bipolar disorder and sets out the factors that must exist and be related to service for the applicant's claim to be successful, namely:
"Factors that must be related to service
4.Subject to clause 6, the factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person.
Factors
5.The factors that must exist before it can be said that, on the balance of probabilities, bipolar disorder or death from bipolar disorder is connected with the circumstances of a person's relevant service are:
(a)experiencing at least one severe psychosocial stressor within the six months immediately before the clinical onset of bipolar disorder; or
(b)being within 90 days postpartum at the time of the clinical onset of bipolar disorder; or
(c)experiencing at least one severe psychosocial stressor within the six months immediately before the clinical worsening of bipolar disorder; or
(d)being within 90 days postpartum at the time of the clinical worsening of bipolar disorder; or
(e)suffering from substance abuse involving alcohol or cocaine at the time of the clinical worsening of bipolar disorder; or
(f)using a specified drug as identified in the specified list of drugs at the time of the clinical worsening of bipolar disorder; or
(g)inability to obtain appropriate clinical management for bipolar disorder.
Factors that apply only to material contribution or aggravation
6.Paragraph 5(c) to 5(g) apply only to material contribution to, or aggravation of, bipolar disorder where the person's bipolar disorder was suffered or contracted before or during (but not arising out of) the person's relevant service; paragraph 8(1)(e), 9(1)(e) or 70(5)(d) of the Act refers."
The applicant contends that he satisfies one or more of the following factors:
"5(a)experiencing at least one severe psychosocial stressor within the six months immediately before the clinical onset of bipolar disorder; or
5(c)experiencing at least one severe psychosocial stressor within the six months immediately before the clinical worsening of bipolar disorder; or
5(g)inability to obtain appropriate clinical management for bipolar disorder."
The Tribunal notes that factors 5(c) and 5(g) are subject to Clause 6 and that the SoP defines "severe psychosocial stressor" as follows:
"'severe psychosocial stressor' means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being short at, death or serious injury in a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;"
Medical Evidence
The medical evidence in the "T" Documents indicates the applicant had an onset of Acute Situational Crisis in July 1994 and Idiopathic Trigeminal Neuralgia in August 1994. The history recorded at this stage is as follows (T4/11):
"SQNLDR Sears presented with acute situational anxiety related to both domestic and work environment compounded by the participation of a new posting. Following initial evaluation, he was referred for psychological assessment and counselling. He improved remarkably well.
However, he developed unexplained facial pain in August which was investigated thoroughly and no definite cause could be found. He was labelled as being idiopathic trigeminal neuralgia, with no residual symptoms to date."Natalie Smith (Social Worker at St John of God Hospital) saw the applicant on a number of occasions in July 1994. She reported as follows (T4/9):
"Greg initially presented as a highly responsible and caring man, very competent in his job although distressed and tearful at this time. His concerns focused on enormous work pressure that had built up over many years and his current anxiety about a transfer to an even more demanding role. He appears to take on a caring responsibility for others, but has great difficulty setting limits and seeking assistance for himself when he needs it. Many of the expectations he places on himself are unrealistic. In addition he has considerable unresolved issues around grief and personal loss and has not been able to work through these appropriately. He has developed a pattern of closing down to he [sic] feelings and placing work issues before his own needs.
Counselling so far has provided him with a safe and confidential environment in which to ventilate his feelings and distress. He has also been strongly encouraged to talk more to his wife Anita about his worries and concerns. Issues such as the death of his parents and other family members as well as current concerns with one of his children are being addressed. In addition sessions have provided new coping strategies in terms of time management, setting boundaries and realistic goals as well as challenging some of this negative cognitions.
He has had the opportunity for some breaks away with family and friends and his acute stress has subsided. It is important that he resolve some of his personal issues and consolidate the gains made in terms of coping strategies at work, however, this is estimated to only require 2 or 3 more sessions. In the meantime it will be helpful for him to be able to make appropriate plans for his future career."Further Ms Smith reported in September 1994 (T4/12) as follows:
"After four sessions Greg appeared relaxed and confident and I have not seen him since 19 July 1994. His immediate issues relating to work stress appear to have subsided and he plans to do a time management course to help present problems re-occurring.
He seemed to be more in touch with his feelings and able to share these appropriately with his wife Anita.
I understand that he had been requested to contact me again as there was some indication of further difficulties, but I have not heard from him."In December 1994, clinical notes of a Specialist Psychiatrist records (T4/14):
"5-12-94 A coincidence of events over a relatively short period of time led to his feeling stressed & seeing a counsellor when confronted with a new posting in June. More recently a nephew was killed – he had a bout of Trigeminal neuralgia. His daughter, the cause of a lot of his stress because of her choice of partner & has now moved in with her children to live with him. There has been an avalanche of work – a lot of it non-satisfying or frustrating whilst he was confronted with the need to grieve."
On 26 July 1995 the applicant underwent a discharge medical examination (T4/15) where it was reported that he had no medical problems, was fit for discharge and fit for the RAAF Active Reserve.
On 19 September 1995 a RAAF Employment Standard Review (T4/24) records the applicant's medical conditions as:
___________________________________________________________________
Index Medical Conditions and Complications Date of
Number onset/injury1 Bipolar Disorder Sep 95
2 Acute Situational Crisis Jul 94
3 Idiopathic Trigeminal Neuralgia Aug 94
and a history of presentation:
"SQNLDR Sears presented in Sep 95 with a 10 day history of euphoric mood, excess energy, minimal sleep and social disinhibition. At the time he was on resettlement leave, under training as a Real Estate salesman, and was due to discharge on 06 Oct 95. He had become quite impossible to deal with at home and was admitted to 302HSF for assessment and treatment.
Prior to this presentation, in 1994, the member had been treated for acute situational anxiety, possibly due to stresses at work. He underwent psychological counselling at this time and made an apparently full recovery. He also developed unexplained facial pain diagnosed as due to trigeminal neuralgia. This subsequently settled, however, he developed ongoing headaches and in Mar 95 was referred for stress counselling with Mrs Titheridge (consultant Stress Counsellor) at 302HSF.
At the time of his presentation in Sep 95, SQNLDR Sears was diagnosed as being acutely manic perhaps as part of a bipolar (although no evidence of a depressive phase has been noted). He was seen by Dr Len Lambeth (consultant psychiatrist) and commenced on medication, but due to the extreme nature of his symptoms, it was decided that he should be transferred to 3 HOSP for further assessment and treatment. Here, he was again reviewed by a psychiatrist and admitted to St John of God Hospital, however, he subsequently discharged himself. As he had responded somewhat to the medication by this time, he was permitted to return home for outpatient care. Medications at this time were Lithium Carbonate, Thioridazine and Nitrazepam. He has made good progress since this time and is currently on Rivotril only."
On 25 September 1995, Dr Krabman, No 3 RAAF Hospital, reported (T4/29):
"SQNLDR Sears presented after returning from a two week course in Real Estate Sales in Queensland which he was undertaking as part of his plans for discharge from the RAAF after twenty years of service. He showed evidence of emotional liability, social disinhibition, pressure of speech, flight of ideas, physical agitation and insomnia.
SQNLDR Sears was seen by Dr Lambeth, psychiatrist, in Newcastle on 21 Sep 95 (notes enclosed), who diagnosed hypomania and commenced Lithium carbonate 500mg bd, Thioridazine 200mg bd and Nitrazepam 10 to 20mg nocte. He recommended inpatient treatment, and he was transferred to 3 Hospital on Friday, where he has stayed over the weekend. Lithium levels were requested by Dr Lambeth at 24 and 48 hours after commencing Lithium treatment on the evening of Fri 22 Sep 95. These were 0.3 and 0.4 mmol per Litre respectively.
SQNLDR Sears was seen by Natalie Smith from your hospital in July 1994 after a period of sick leave due to him not coping with the stresses of work. No evidence of psychosis or major mood disorder was noted during this period. In August 1994 he experienced an episode of persistent facial pain for which no cause was found and a presumptive diagnosis of trigeminal neuralgia was made. He is married with three children."Dr KG McNamara, Consultant Psychiatrist, first saw the applicant on 29 February 1996. In his written report dated 12 August 1997 (T4/39), Dr McNamara diagnosed the applicant as suffering from Bipolar Affective Disorder (DSMIV 296.4), probably first developed in 1994. Dr P Mulholland, Psychiatrist, saw the applicant on 19 September 2001 and in his written report dated 28 September 2001 (Exhibit R1) stated:
"Bipolar disorder was first diagnosed in September 1995 at which time he was manic. He had first become ill in 1994 with an episode of depressive illness which with the benefit of hindsight was the first episode of his bipolar 1 disorder."
and opined:
"17.4The difficult issue with this man is to advise regarding the origins of his bipolar 1 disorder. In this case the issue is whether he experienced a severe psychosocial stressor or not in the 6 months immediately before the clinical onset of bipolar disorder. I note that severe psychosocial stressor is defined as 'means an identifiable occurrence that evokes feelings of substantial distress in an individual, e.g. being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.
17.5It is possible that his bipolar disorder developed spontaneously and had nothing to do with his service work however it created problems in his service work once the bipolar disorder declared itself. Against the notion of a bipolar disorder developing spontaneously is there is no family history of mood disorder. Bipolar disorder is generally held to be a condition which is determined by hereditary or basic constitutional factors and the actual illness process itself is not particularly responsive to environmental factors. Having said that it is generally held at bipolar disorder can be triggered off or precipitated by significant psychosocial stressors. Approximately one half of all cases of bipolar disorder have identifiable significant psychosocial stressors in the 6 months or so preceding development of same hence recognition is given to this in the SOP. The difficult thing is deciding whether the sorts of stressor that he is experiencing can be accepted as constituting a severe psychosocial stressor or not in the sense that the sorts of stressor he was experiencing were due to chronic overwork, reorganisation piled upon reorganisation and stress associated with enquiries.
17.6Speaking as a psychiatrist I have no problems regarding these sorts of issues as being psychologically stressful. However at the end of the day whether these sorts of matters, which are exactly the same as occur in civilian situations, can be accepted as meaning a severe psychosocial stressor within the confines of the relevant legislation is up to the Tribunal to say. The essential issue is one of chronic overwork and psychiatrists readily accept this as being a stressor. However I imagine that it is not the sort of stressor that the authors of the Statement of Principles had in mind when they developed same. Hence all I can say as a psychiatrist is that I can conceptualise his chronic overall work situation as being a severe psychosocial stressor. It needs to be remembered that the circumstances that were acting upon him in 1993 and 1994 were acting upon someone who had started to deteriorate in 1985 but I do not think that he nor anyone else recognised same at that time. The picture that I perceive is that by 1994 when he became psychiatrically ill he had been slowly deteriorating for about the previous 9 years and by that point in time it could well have take only a relatively minor matter to 'kick him over the edge' and precipitate him into active psychiatric illness."
Applicant's Evidence and Submissions
In his oral evidence the applicant relied on Dr Mulholland's opinion in asserting that his bipolar disorder was related to his RAAF service.
With respect to the causal relationship between his bipolar disorder and his defence service, the applicant told the Tribunal that he was posted to No 1 Central Ammunition Depot in January 1992. In summary he described the service-related issues in this posting as follows (T5/71):
"21. After two years in the post of SADMINO/XO 1CAMD, the cumulative effect of the numerous and almost revolutionary changes which unites were being bombarded with, the frequent emotional and demanding negotiations on sensitive issues such as security, control of assets and public disturbance/safety issues, and the enormous workload presented by the many extraordinary tasks which had arisen, had all taken their toll. This situation was compounded by the emotional drain I incurred through many of the Service related issues confronting me at the time.
22. In view of the proceeding, I frequently experienced severe headaches, neck and chest pains, a sense of frustration and being unable to cope, and also sleeping difficulties. By June 1994 I had reached the point where I had become completely dysfunctional. I could not cope with the volume of work, felt completely inundated, could not think clearly and therefore could not research and evaluate problems and reach solutions. I had also lost considerable confidence in myself. In short, I was completely confused and overwhelmed by my situation and I knew that I could no longer function in my post and meet the demands placed upon me. Accordingly, as I had already been notified of a posting to RAAFSUGLEN as the Commanding Officer, I notified Air Force Office and my CO of my circumstances and advised them of my inability to remain in my present post and proceed on posting to RAAFSUGLEN. I was then referred to the CO 3 RAAF Hospital for assessment.
23. On 22 June 94 I was interviewed by the CO 3 RAAF Hospital, who assessed that I was experiencing an acute situational crisis and that I was temporarily unfit for duty. I was posted non-effective, prescribed medication, referred to a counsellor and advised to undertake activities that would assist me to relax. After about six weeks, during which time I underwent counselling, visited friends and endeavoured to relax and clear my thoughts, I was re-evaluated by the CO 3 RAAF Hospital and assessed as fit to return to work. At the time I felt that I could resume work in a non stressful environment, particular as I had recently been awarded a Certificate of Outstanding Service for my efforts at 1CAMD and felt a little more self confident as a result. However I was under no illusion that I could return to my previous unit or cope with a stressful environment. Air Force Office was notified of the foregoing and I was subsequently posted to AHQAUST pending finalisation of the end of year posting plot."
The applicant described his duties during his five months at AHQAUST at the end of 1994 as staff duties, including reports regarding re-organisation, review of an unsuitability report on a senior officer and a related application for redress of grievance. He said he found these duties very stressful and that because of this stress he suffered from trigeminal neuralgia in August 1994. He said:
"From the time of this incident through to my departure on posting to RAAF Williamtown, I was receiving medication to reduce my anxiety and shortly before departing on posting, in early December 94, I was again reviewed by a psychiatrist who assessed that I still required treatment."
In January 1995, the applicant was posted to 481 Wing RAAF Williamtown as Senior Administrative Officer. He stated:
"27. Despite my best efforts, I gradually but unavoidably became involved in matters which resurrected much of the anxiety which I had experienced during the previous several years. During this time, I was constantly under pressure to finalise the document so that it could be forwarded to higher authority. Also, in addition to the normal duties of my post, a number of relatively abnormal personnel problems were consuming much of my time. Among these was an alleged rape, an officer who was threatening to permanently absent himself without leave and an airman who had actually absented himself with the intention of not returning.
28. About two months into my posting to 481WG, I again began to suffer from inexplicable headaches, neck, chest and lumbar pains and experience anxiety when stressful situations arose. Accordingly, I consulted Medical Flight and was referred to a psychologist for stress management treatment.
The stress associated with meeting the demands of my post at 481WG appeared to have levelled out by May/June 1995, when two significant events occurred. Firstly, all flight commanders were directed to expedite RAAFQ implementation. This involved identifying tasks, reviewing all processes, documenting all procedures, seeking customer input, determining methods of measuring performance in all tasks and so on. After my experiences with RAAFQ at 1CAMD, and with the consequences of pushing myself too hard fresh in my mind, the prospect of adding RAAFQ tasks to my already full-time job at 481WG, was an alarming one.29. Shortly after the elevation of RAAFQ issues my normally balanced approach to life altered considerably. I began making irrational decisions, I was completely ignoring advice from others and my mood began to heighten. By far the most ill conceived decision which I made at that time, was to submit my application for resignation from the RAAF, on 5 June 1995. This decision was ill conceived because I had no logical reason for leaving the RAAF. Certainly, I had experienced trauma in my previous posting and I was concerned regarding the magnitude of the RAAFQ task."
In September 1995 the applicant underwent resettlement training prior to his discharge in November 1995. During this period the applicant described panic attacks and anxiety attacks he had while driving. He also described the subsequent medical treatment and difficulties he experienced at RAAF Williamtown Medical Centre, 3 RAAF Hospital Richmond, St John of God Hospital at Richmond and as an outpatient of 302 Health Services Flight (302 HSF) at RAAF Williamtown.
The applicant stated:
"36. On 10 November 1995, a medical fitness board reported that I was fit to return to duty in a non stressful environment and in a supervised capacity, that I was not fit to be deployed into a field/tactical environment and that I should have ongoing access to specialist care. The board also recommended that I be approved for discharge in accordance with my wishes. Accordingly, on 24 November 1995 I was discharged from the RAAF."
The Tribunal notes that the applicant stated that he had completed 20 years service in September 1995 and therefore would be eligible to receive a DFRDB pension, and that this was a significant factor in his decision to seek discharge from the RAAF.
Further to the above, the applicant submitted his own written assessment of the service-related stressors that he considered to be relevant to his claim (Exhibit A1).
In summary, these are:
"SERVICE RELATED
-Together with other factors detailed in my original submission, a multitude of reorganisations and newly introduced policies and procedures, particularly RAAFQ (RAAF Total Quality Management) had created a workload which I could not possibly cope with. [T5 Folios 68 – 71]
·While totally committed to meeting the workload imposed on me, I was highly anxious and often distressed because of the volume and complexity of the work and what appeared to be the impossible task of meeting my work responsibilities.
·I was often fighting battles on many fronts and I quite literally felt as though I was under attack or siege from both higher authority and other organisations attempting to force changes upon our unit or compel our unit to comply with their demands.
·I arrived at a point where I could not physically, mentally or emotionally cope with the workload and I began to rapidly fall behind.
·I became depressed and highly anxious, to the point of desperation. I experienced enormous guilt and self-doubt and performing the simplest tasks eventually became an effort. I often had to leave the unit to separate myself from the pressure and I began to contemplate suicide. I quite literally felt as though I were living a nightmare from which there was no escape.
I sought the counsel and assistance of my CO and RAAF medical authorities, to little avail. I imagine that they did not recognise the extent of my problem.
·At this point, I believe that one or more of the following acted upon me as SEVERE PSYCHOLOGICAL STR4ESSORS, caused me to cease being able to function altogether and 'pushed me over the edge' into a condition of bipolar disorder.
1.Higher RAAF authority directed units that all personnel were to devote 40% of their working day to RAAFQ activities. [Late 1993 early 1994]
This directive made me fell that higher authority either had no idea whatsoever of the unmanageable workload already faced by their people, or that they knew and did not care. This caused me to lose considerable faith in the RAAF's leaders and also served to strengthen my feeling of being under attack from the leadership of the RAAF.
The directive also caused me to lose all hope of ever being able to cope with the workload and fulfil my duties at the unit.
2.I was directed to conduct an investigation into allegations of misconduct against one of my peers (the Senior Supply Officer) [May 1994]
This task again caused me to lose faith in higher management – I was equal in rank and responsibility to the officer concerned, we had a close working relationship, and we had often consulted and relied upon each other in our highly demanding work environment. I felt that I should not have been given the task of conducting the investigation; however, my requests to be relieved of this task were unsuccessful. During my investigation into this officer and in subsequently drafting the CO's report to higher authority, I felt as though I was committing an act of betrayal. That feeling persists to this day, particularly given that the final outcome of the matter resulted in the termination of this officer's career.
3.As part of one of the numerous reorganisations, my post was changed to that of Unit Executive Officer. [March 1994]
I lost no responsibilities in this change but gained responsibility for about 70% of the Senior Supply Officer's duties. Specifically, all Catering Services, Facilities Services (eg. Power supply, roadworks, building construction and maintenance, etc.), Warehousing Services and Data Processing Services – about 80 personnel and a multitude of specialist and problematic tasks which I had no training to equip me for. This change dealt me a crushing blow in terms of making any recovery from what I already felt was an insurmountable workload situation. I can recall having felt a senior of great despair and hopelessness when this change was announced.
4.Finally, I was advised that I had been posted into a high profile position as the Commanding Officer of RAAF Unit Glenbrook. [April/May 1994]
Had this occurred several years previously I would have felt privileged to accept the posting. However, I realised that in my defeated, demoralised and mentally exhausted state I could not possibly fulfil the responsibilities of this position. Consequently, I experienced the loss of a sought after command position and considerable loss of self-esteem (and embarrassment) when notifying RAAF Command (and therefore the entire Air Force) of my inability to discharge this responsibility.
WITHIN WEEKS (AND CERTAINLY WITHIN 6 MONTHS) OF THESE EVENTS TAKING PLACE, I REACHED THE POINT WHERE I COULD NO LONGER FUNCTION.
I FELT AS THOUGH I HAD BEEN FIGHTING A CEASELESS AND FUTILE WAR – AND LOST (BADLY).
I FELT EXHAUSTED, TO THE POINT OF NO LONGER BEING ABLE TO CONTEMPLATE MY JOB, AND EMBARASSED BY MY FAILURE. I CONSIDERED THAT I HAD LET DOWN MY FAMILY, MY CO AND ALL WHO RELIED UPON ME. I ALSO BELIEVED THAT I HAD BETRAYED ONE OF MY PEERS.
I ADVISED MY CO ACCORDINGLY AND IN JUL 94 I WAS REFERRED FOR MEDICAL ASSESSMENT. I WAS SUBSEQUENTLY DIAGNOSED AS HAVING EXPERIENCED AN 'ACUTE SITUATIONAL CRISIS' AND WAS IMMEDIATELY RELIEVED OF MY DUTIES."The applicant stated that he believed the work-related psychological stressors as described above were the direct cause of his bipolar disorder and that they occurred within six months of his becoming bipolar.
He stated subsequent related events as follows:
"AUG 94 - Returned to work at a different unit.
AUG 94- Experienced Trigeminal Neuralgia (assessed as probably stress induced).
NOV/DEC 94 - Again treated for acute anxiety
JAN 95- Returned to duty in similar environment to that in which I
Experienced the acute situational crisis 6 months previous.
MAR 95- Again confronted with the requirement to implement substantial reorganisation and RAAFQ policies and
procedures, the very cause (certainly in my view at the time) of my collapse only nine months previous. I sought medical assistance and was given stress counselling.
JUN 95 (or - Entered a hypomanic state
earlier)
SEPT 95 - Entered a manic state – diagnosed bipolar"Subsequent to the hearing of this matter, the applicant made further written submissions stating:
"I regret that my lack of composure [during the hearing] resulted in me failing to provide the Tribunal with information which I believe could clarify some of the important matters in question."
There being no objection by the respondent to the Tribunal considering the additional information provided by the applicant, the Tribunal accepted the applicant's further written submission dated 7 June 2002 as Exhibit A2. The respondent indicated that there would be no further submissions from the respondent in reply to Exhibit A2.
In his further written statement, the applicant amplified the evidence he had given at the hearing. In summary, he stated:
(a)The non-service stressors related to his father's death and his daughter's circumstances did not cause "enormous stress" and they pre-dated his psychological crisis by one year. As such the applicant contended that the psychosocial stressor which acted as a trigger to his suffering bipolar disorder must have been service-related;
(b)The investigation he was required to undertake as to whether an officer (who was his colleague and of the same rank) committed service misconduct caused him to experience a considerable amount of painful and vexatious soul-searching and feelings of guilt. The applicant said that as a result of his investigation the officer in question was given an official warning for misconduct and posted to another unit. The applicant said that the officer subsequently resigned and that he felt that he "had been the instrument of her downfall" and that he had "betrayed her and caused her the loss of her career which she treasured". He said "I firmly believe that this matter caused me almost as much psychosocial stress as, say, inadvertently taking the life of another in a vehicle accident, or the like."; and
(c)That his inability to accept the posting of CO RAAF Support Unit, Glenbrook (effective July 1994) caused him immense stress and had a devastating impact, the circumstances being that he had reached such a severe state of distress and despair (as a result of duties and responsibilities as SADMINO/Exec Officer 1CAMD) that he knew he could not carry out the duties of this command position. He said that when the posting was cancelled he came to the realisation that his career in the RAAF was in all likelihood at an end. He stated "From my perspective, I did not simply lose a posting or a job, I lost a career and a future which I had strived hard to achieve and in which I took considerable pride".
The applicant finally submitted that he genuinely believed that the factors outlined in Exhibit A1, particularly the investigation into allegations of misconduct of one of his peers and the cancellation of his command posting to RAAFSUGLEN evoked feelings of substantial stress as defined in the Act and either singularly or jointly caused his bipolar disorder.
Respondent's SubmissionsThe respondent submitted that with respect to Factor 5(a) the clinical onset of bipolar disorder occurred in 1994 and the material before the Tribunal does not disclose an event related to the applicant's service which would satisfy the definition of "severe psychosocial stressor" at paragraph 5 of the SoP. It was submitted that to do so the applicant would need to demonstrate that he had experienced the requisite identifiable occurrence and that such an occurrence would need to have been experienced no later than mid-1994 and was not.
With respect to Factor 5(g) of the SoP the respondent submitted that there cannot be an inability to obtain appropriate clinical management for bipolar disorder until and unless such condition is diagnosed and the evidence before the Tribunal is that once bipolar disorder had been diagnosed the response of the RAAF was clinically appropriate.
On this basis it was submitted that the decision under review should be affirmed.
ConsiderationThere was no dispute between the parties that the applicant suffers from bipolar disorder. In light of this, and after consideration of the medical evidence before it, the Tribunal is satisfied that the applicant suffers from Bipolar 1 Disorder within the meaning of that term as set out in the relevant SoP.
The Tribunal is mindful that the applicant was first diagnosed with bipolar disorder in September 1995. However, as is often the case in matters such as this, subsequent specialist medical opinion can lead to a conclusion that the clinical onset of the disease occurs at some time predating a first diagnosis. Circumstances such as this apply in this case and the weight of specialist medical opinion before the Tribunal supports a finding that in this case the clinical onset of bipolar disorder occurred in June/July 1994. After consideration of the medical evidence before it, and the submissions of both parties, the Tribunal is reasonably satisfied that the applicant's bipolar disorder first occurred in June/July 1994.
With respect to Factor 5(c), the next question is whether there was a clinical worsening of the applicant's bipolar disorder and, if so, when.
The evidence before the Tribunal points to a clinical worsening of the applicant's condition in the latter half of 1995. However, the Tribunal is of the view that consideration of findings with respect to clinical worsening in this case are not necessary in the first instance. Accepting that the applicant was discharged from the RAAF in November 1995; that, as found above, the applicant suffered a clinical onset of bipolar disorder in mid-1994; that there is some difficulty in making precise determinations of onset dates; that the requirement of experiencing at least one severe psychosocial stressor is common to both Factors 5(a) and 5(c); and that the time factors in Factors 5(a) and 5(c) of the SoP restrict periods of consideration, the Tribunal takes the approach that it should initially consider whether the applicant has experienced at least one severe psychosocial stressor during the last two years of the applicant's service.
If the answer to this consideration is in the negative, then Factors 5(a) and 5(c) do not exist and the applicant's claim based on these two factors fails.
If the answer to this consideration is in the affirmative, then any stressor so found will need to be considered within the context of the time of clinical onset and/or the time of clinical worsening.
Turning then to the crucial question - whether the applicant experienced at least one severe psychosocial stressor during the last two years of his service.
Within the terms of the definition in Instrument No 129 of 1996 there needs to be:
(a)an identifiable occurrence;
(b)the occurrence must evoke feelings of substantial distress; and
(c)the occurrence must be of the same kind or nature as the examples given in the definition.
The evidence of the applicant needs to be tested against this definition.
The Tribunal is of the view that what is required is something of an extreme or greatly demanding nature which is an incident or an event that happens and is of the same kind and nature of the examples given in the definition.
In this case, while the duties the applicant was asked to perform were often of an extreme or greatly demanding nature, the way in which these duties progressively and gradually led to a deterioration of the applicant's health over a long period of time, slowly building up a stress pattern in the applicant until it all became too much, does not, in the Tribunal's view, fit within the meaning given in the SoP in that this pattern of developing stress is not in the nature and character of the examples of incidents or events given in that definition.
In arriving at this conclusion the Tribunal accepts that the applicant, during various periods of his service, was called upon by the RAAF to assume major responsibilities and heavy workloads and that he conscientiously performed these duties, generally with commendation. The Tribunal was impressed by the applicant's obvious dedication, commitment and achievements throughout his service in the RAAF. The Tribunal is mindful of Dr Mulholland's opinion that he was able to conceptualise the applicant's chronic overall work situation as being a severe psychosocial stressor. The Tribunal is also mindful that Dr Mulholland expressed this opinion within the context of his perception that the applicant had been slowly deteriorating since 1985 and that by 1994 it could well have taken only a relatively minor matter to precipitate him into active psychiatric illness.
After careful consideration of all of the material before it and the submissions of both parties, the Tribunal is reasonably satisfied that during the last two years of the applicant's service he did not suffer from a service-related severe psychosocial stressor within the meaning given to that term in the relevant SoP.
The Tribunal therefore is reasonably satisfied that the applicant does not meet the requirement as described in Factor 5(a) or Factor 5(c) of Instrument No 129 of 1996.
Turning then to Factor 5(g) of the relevant SoP. To satisfy this factor, the applicant's defence service must have materially contributed to or aggravated the applicant's bipolar disorder because of an inability to obtain appropriate clinical management for the disorder where the disorder was suffered or contracted during (but not arising out of) the applicant's service. The first question to be addressed is whether there was an inability to obtain appropriate clinical management for bipolar disorder. Merkel J (with whom Mansfield J agreed) in Brew v Repatriation Commission [1999] FCA 1246 said:
"25.It is well established that the Court is here concerned with beneficial legislation intended to confer significant benefits on veterans with the consequence that a beneficial, rather than a strict or narrow, approach should be taken to the construction of the legislation. In the present context that means that whether 'inability' is established in a particular case is to be approached as a matter of practical reality rather than by a theoretical approach to that issue.
26.In my view Sundberg J was quite correct in treating the meaning of 'inability' in cl (1)(e) as 'lack of ability; lack of power, capacity, means' (Macquarie Dictionary (2nd ed 1991) or 'the condition of being unable; lack of ability, power or means' (New Shorter Oxford Dictionary (1993)). The dictionary definitions embrace what may fairly be described as objective barriers such as lack of power, capacity or means or a subjective barrier such as the 'condition of being unable'. Whether the objective or subjective barrier to obtaining treatment is made out in a particular case depends upon the facts of that case."
Further, in paragraph 30:
"30.….If a veteran is subjected to any psychological or emotional circumstances which are such that, as a matter of practical reality, the veteran could not reasonably be expected to take steps to obtain appropriate clinical management for a medical condition I see no reason why those circumstances are not capable of constituting a 'condition of being unable' to obtain treatment."
With respect, the Tribunal adopts the approach as set out above.
Given that the applicant's anxiety state manifested itself clinically in June 1994, and that the applicant then and thereafter during his service with the RAAF sought and received medical treatment (with a subsequent diagnosis of bipolar disorder), the Tribunal is satisfied that the RAAF's medical response to the applicant's condition was appropriate. In arriving at this conclusion, the Tribunal has taken into account all of the medical evidence before it and the applicant's contention that he should not have been posted to 481 Wing RAAF Williamtown because of his condition and that this constitutes an inability to obtain appropriate clinical management for bipolar disorder. In this regard the Tribunal accepts the submission made by the respondent that:
"(a) there cannot be inability to obtain appropriate clinical management for bipolar disorder until and unless such condition is diagnosed; and
(b) the evidence is that the response of the RAAF, once bipolar disorder had been diagnosed, was clinically appropriate."The Tribunal therefore finds that Factor 5(g) of Instrument No 129 of 1996 does not exist in this case.
With respect to other factors set out in the relevant SoP, the Tribunal notes that the applicant has not pursued any of these factors and, on the material before it, the Tribunal is satisfied that none of these factors exist.
It follows that the Tribunal is reasonably satisfied that the applicant's contention does not fit the template of Instrument No 129 of 1996 and therefore the applicant's claim must fail.
The Tribunal affirms the decision under review.
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Mr IR Way, Member
Signed: Sarah Oliver
AssociateDate/s of Hearing 5 June 2002
Date of Decision 26 July 2002The Applicant Appeared in Person
Solicitor for the Respondent Mr J Stoner, Departmental Advocate
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