SJCL and Repatriation Commission
[2008] AATA 688
•6 August 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 688
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/267
VETERANS’ APPEALS DIVISION ) & 2006/2600 Re SJCL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal M J Carstairs, Senior Member Date 6 August 2008
Place Brisbane
Decision The Tribunal decides as follows:
In application No. Q2004/267, the Tribunal affirms the decision under review.
In application No. 2006/2600, the Tribunal sets aside those parts of the decision under review as they relate to post traumatic stress disorder; depressive disorder; and irritable bowel syndrome and substitutes the decision that these conditions are defence-caused.
With respect to the claim for panic disorder, the Tribunal affirms the decision under review.
The Tribunal affirms the decision that pension remains payable at 100% of the general rate.
...................[Sdg]...........................
SENIOR MEMBER
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – diagnoses of conditions – whether conditions are related to applicant’s defence service – if so, whether applicant is entitled to pension at special rate
Veterans’ Entitlements Act 1986 (Cth), ss 70, 120
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Law (1981) 147 CLR 635
Deledio v Repatriation Commission (1997) 47 ALD 261
Mines v Repatriation Commission (2004) 86 LD 62
Wiegand v Comcare (2002) 72 ALD 795
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
McKenna v Repatriation Commission (1999) 86 FCR 144Repatriation Commission v Hendy [2002] FCAFC 424
REASONS FOR DECISION
6 August 2008 M J Carstairs, Senior Member 1. The applicant had two periods of service in the Royal Australian Navy. She served within Australia, between 1982 and 1986, and then from 23 November 1987 to 9 May 1990. At the end of the first period of her service she took voluntary discharge. At the end of the second period she was discharged on medical grounds.
2. The applicant’s service, being within Australia, is defence service under the Veterans’ Entitlements Act 1986 (the Act). Defence service attracts the provisions of s 70 of the Act (when assessing a person’s eligibility for pension). The standard of proof which applies here is that of “reasonable satisfaction” and is found in s 120(4) of the Act.
3. As is indicated by the separate reference numbers, there are, broadly speaking, two matters under review. In application 2006/2600, the claim relates to a number of psychiatric conditions, and irritable bowel syndrome. According to the applicant, all these conditions stem from incidents or events that occurred during her two periods of defence service. The claim[1], as it was reviewed and taking into account the medical evidence, was for:
§ posts-traumatic stress disorder;
§ depressive disorder;
§ panic disorder with agoraphobia; and
§ irritable bowel syndrome[2].
[1] Exhibit R 2 at 233-244.
[2] Exhibit R2 at 203.
4. I mention the content of the claim, and the diagnoses referred to by the delegate and by the Veterans' Review Board, because the respondent now presses consideration of the question of whether the applicant has a “personality disorder”. It was not, however, any part of the applicant’s case that she suffers a personality disorder.
5. The respondent has accepted that there is some connection between the applicant’s psychiatric health and her defence service, paying her pension with respect to the condition of “anxiety disorder”. It is not suggested that the past acceptance of this condition was based upon error.
6. The pension paid to the applicant – for conditions of anxiety state, wrist problems, and reflux – is paid at 100% of the general rate (the highest of the general rates of payment). However, in her first application to the Tribunal (that is, Q2004/267) the applicant sought an increase in pension to “special rate” of pension, a rate higher than the general rates. But, special rate is payable only where a person, by reason of defence-caused conditions, and not other reasons, has lost their ability to earn from employment.
ISSUES
7. The issues which I must decide require identifying:
§ the diseases/injuries that the applicant suffers;
§ the relationship, if any, that exists between these conditions and the applicant’s defence service; and
§ whether she is entitled to payment at the special rate.
BACKGROUND
8. The applicant was 21 when she first joined the Navy. Having left school at the age of 15, she worked as an invoicing clerk prior to enlistment. She married in 1985 at the age of 24, during the first period of her service. She separated from her husband early in 1989, during the second period of her service. She now has a school-aged son, whom she teaches at home.
9. The applicant trained in the Navy as a steward and rose from Junior to Senior WRAN Steward[3]. Her work included mess and dining room duties and other general steward duties. From 1988 she was promoted to assistant mess clerk, a position which involved significant administrative duties. It was in this role that she started to voice her complaints about its stressful workloads as well as about excluding behaviour on the part of other staff.
[3] Exhibit A4 (Applicant’s Statement dated 29 July 2004).
10. The applicant took a medical discharge in May 1990, having effectively ceased work the previous November. This was not long after Navy doctors diagnosed her with an anxiety state with reactive depression. Since leaving the Navy the applicant has continued to be unwell. There was solid agreement in the medical reports that she is unable to work at all. Her attempts at retraining, have failed. She failed to complete studies in a Bachelor of Business in Tourism (1995); a journalism course (1999); an art portfolio course (2000); and a writing course (2002)[4].
[4] Exhibit A4.
11. The applicant attributes the state of her mental health to a number of stressful incidents that occurred during her two periods of service. The main incidents, most frequently reported to doctors, can be briefly stated as follows:
§ An incident that involved a swimming test in recruit training. This incident, in 1982, involved a test in which the recruits were required to jump from a height and then swim fully clothed underwater over a distance. During the exercise the applicant felt she was dragged down by the wet clothing. She panicked and believed she would drown.
§ Sexual assault in 1983. Medical records the next day describe her as agitated and having sustained lacerations. The matter was investigated by civilian police; it had taken place at home when she was living off-base. A Navy doctor prescribed medication, and referred her to a social worker and chaplain. The applicant went home to her family on leave. At a medical review four months later the doctor recorded that she was “better now”, and there was no obvious psychological disturbance[5]. The applicant’s extensive written statements suggest otherwise.
§ Motor vehicle accident. This was reported in service medical records[6] as occurring on 4 July 1985, during the applicant’s service in Darwin at HMAS Coonawarra. A car driven by an RAAF serviceman hit her pushbike while she was riding to work. She landed on the road with oncoming traffic heading towards her and she described being in fear of her life, before managing to crawl to the side of the road. She sustained abrasions, bruising, and was ordered to rest.
§ Harassment while serving as an assistant mess clerk at HMAS Kuttabul. This incident appears to have played out over a number of months. The applicant made complaints at the time. A fuller understanding of the nature of the incidents can be gained from her contemporaneous statement, dated 15 December 1989:
My condition due to stress was first noticed when placed in the Bar…. I was always given a very long work list that made it very hard to finish on time. The real problem was when I took over another senior WRAN’s job, which she resented. That's when the harassment started. The atmosphere was very hostile and I can account numerous occasions when I was made to feel not a part of the team. There was a lot of work placed on me, more than anyone could handle…. the situation became unbearable in November 1989. I consulted my divisional officer and told him that I was very unhappy… I asked him to be moved to another base, but nothing came of it. After having nightmares about work and nights when there was broken sleep I sought help. After being on sick leave for five days I had to go to work every two days to see the doctor. I went back to work, I was confronted by another (WRAN) about a trivial matter and I went to pieces…[7].
[5] Exhibit R13 at 203.
[6] Exhibit R13 at 136.
[7] Exhibit R13 at 11.
12. It should be noted that of the four matters above, three gain some confirmation in the applicant’s medical records. In that regard, I was particularly assisted by the comprehensive service medical records and the medical reports in the applicant’s workers’ compensation and veterans’ entitlements claims (both of latter lodged by the applicant the soon after being medically discharged from the Navy). The police records relating to the assault however were not available. The naval historian’s report prepared for the hearing[8] indicated that the Navy had no records of the assault or its investigation, naval police not needing to be involved, as the incident occurred off the base. As I understand the evidence, no charges were laid, the applicant being unable to identify her assailant.
[8] Exhibit R11 at 7-9 of (Report of Commodore A Brecht (retired)).
13. As to the matters raised by the applicant with respect to what she describes as harassment in 1989, those issues seem to have culminated towards the end of 1989. She was complaining to her doctor about feeling depressed, and was agitated about perceived treatment by other staff members[9]. She requested a change in her posting. A report of Dr S Fox, Lieutenant Commander RAN, dated 13 November 1989, reveals that she gave a history of “work stress over 11 months”. She was attending him every couple of days and he had prescribed Tryptanol to her. But, she reported that she still felt panicky. She was given a week’s sick leave but then was hospitalised and referred to a psychiatrist, Dr P Whetton. Dr Whetton took a history of the applicant having personal problems, her marriage having broken down a year or so earlier. In addition of but it of relevant of the applicant was finding she was unable to cope with work-related stress. She again described feelings of panic to him. Dr Whetton described the applicant as a pleasant woman who was genuinely depressed about her state. On the other hand, a warrant officer at HMAS Kuttabul, asked to file a report at the time, observed that the applicant was “paranoid”, believing that others were talking about her behind her back.
[9] Exhibit R13 at 142.
14. On 15 December 1989 the applicant made a claim upon the respondent for depression related to harassment and victimisation at work[10], and notified her injury for workers’ compensation purposes[11]. With respect to this period, the applicant later prepared a written statement in which she said that her medical problems had become common knowledge amongst those with whom she worked, and she was the centre of gossip about what had happened to her. She described feeling stressed and embarrassed about needing to attend naval doctors every two or three days.
[10] Exhibit R13 at 123-124.
[11] Exhibit R13 at 121.
15. Once the diagnosis of an anxiety state[12] was made (another diagnosis being “situation reaction with depression”[13]), the applicant’s case was referred to a Medical Board, with a view to her discharge from the Navy. The applicant accepted their recommendation. The Medical Board concluded that the applicant’s disability was aggravated by her naval service[14].
[12] Exhibit R13 at 115.
[13] Exhibit R13 at 28.
[14] Exhibit R13 at 28.
16. The applicant has remembered other incidents during the course of the review of her claim, including those reported to Dr J Lockwood, clinical psychiatrist, as outlined in her report[15]. However, these other incidents do not appear to be of the severity of the four identified above, and in my view, serve to complicate an understanding of the case. They have not been regarded as relevant stressors by the doctors who have examined the applicant, whereas the other incidents, to a greater or lesser degree have.
[15] Exhibit R6 at 7-11.
17. With that background, I now turn to the first question that I must decide, namely, which diagnoses should be ascribed to the applicant’s medical conditions.
ISSUE 1: DIAGNOSIS
18. This question is decided on the reasonable satisfaction standard of proof under s 120(4) of the Act[16] and must be addressed during the “assessment period”. The assessment period is a term defined in s 19 of the Act and in this case starts at the date of the claim on 29 October 2004.
[16] Benjamin v Repatriation Commission (2001) 70 ALD 622, at [54]–[55].
19. The respondent conceded, by reference to the medical evidence that the applicant suffers from generalised anxiety disorder, depressive disorder, panic disorder, and post traumatic stress disorder. That concession is plainly right, in view of the broad agreement concerning diagnostic questions expressed by both Dr M Scurrah, the applicant’s treating psychiatrist, and Dr J Lockwood, consultant psychiatrist, commissioned by the respondent to report on the applicant’s condition and on questions of their cause(s). Both gave oral evidence at the hearing and were subjected to intensive cross-examination.
20. Dr Lockwood did not observe the applicant as suffering depressive symptoms when she carried out her examination, but confirmed, nevertheless, the likelihood the applicant has suffered recurrent episodes of major depressive disorder in the past[17]. Dr Lockwood also confirmed in oral evidence her opinion that the applicant was suffering symptoms of post traumatic stress disorder (which in her opinion arose as a result of the sexual assault in 1983) at the end of 1989. Dr Lockwood expressed the view in her written report that the applicant had post traumatic stress disorder for some 25 years and generalised anxiety disorder for around 18 years. Taking into account the date of Dr Lockwood’s report, this took matters back to about the date of the sexual assault with respect to the first condition, and to the workplace issues in 1989 with respect to the second.
[17] Exhibit R10 at 24.
21. It was also Dr Lockwood’s opinion that the applicant’s post traumatic stress disorder worsened after the motor vehicle accident, which she referred to in her written report as taking place in 1988[18]. Dr Lockwood was taken to the service records which showed conclusively that the motor vehicle accident occurred on 4 July 1985, a matter to which I will return in the discussion with respect to the claimed panic disorder. Altering the date of the incident did not, of course, affect the view that Dr Lockwood held about the importance of the incident in the history of the applicant’s post-traumatic stress disorder.
[18] Exhibit R10 at 25.
22. Dr Scurrah’s and Dr Lockwood’s reports were supported in important ways by the very thorough report of Dr Byth, consultant psychiatrist, dating from 1994. The applicant had told Dr Byth that she had troubling symptoms from about 1988/1989 when she was experiencing stress due to perceived workload pressures and interpersonal conflict in the workplace. Dr Byth diagnosed her in 1994 as having a chronic state of mixed anxiety and depression, which “appeared to have been precipitated in response to stress in her work in the Armed Forces and which had followed a chronic ongoing symptomatic course over the last five years”[19]. Dr Scurrah was asked for his comment on Dr Byth’s failure to diagnose post traumatic stress disorder at that time, and observed that the disorder can “fly under the radar” unless the correct questions are asked when interviewing a patient.
[19] Exhibit R5 at 14.
23. This is not to say that there are no medical opinions offering competing diagnoses amongst the numerous available medical reports. In that context Mr G Purcell, counsel for the respondent, submitted that a diagnosis of personality disorder ought to be made and that I ought to consider whether this condition was related to service, in ways set out in factors in the Statement of Principles for personality disorder – Instrument No 144 of 1995.
24. It is commonly reported that the applicant exhibits a constellation of symptoms, which at different times, will present one disorder more prominently than others, and the overlap of symptoms makes more difficult the task of diagnosis in the applicant’s case. Some reports indeed alluded to the possibility of a personality disorder. However I would observe firstly that the reports which mention that as a diagnosis are in the minority, and are not expressed in the temperate language expected of a considered opinion. Some doctors clearly believe the applicant to be over-involved in her case, and few share her interest in alternative therapies as treatment.
25. I would also observe that no doctor who diagnosed the applicant as having a personality disorder was called to give oral evidence. It is true that as early as August 1990 Dr G Robbie, psychiatrist, had made oblique reference to “personality vulnerabilities” but he concluded in that regard that as “the navy has more or less accepted her case…anything said now about the personality vulnerabilities is irrelevant”[20]. Dr Robbie’s formal diagnosis, however was that the applicant had dysthymia (a depressive disorder), as an anxious/depressive reaction to the work situation.
[20] Exhibit R2 at 82.
26. Having considered the limited evidence before me on the question of “personality disorder”, I was satisfied that the doctors who have taken the more comprehensive histories (Dr Scurrah, Dr Lockwood, and Dr Byth in 1994) have all ruled out that diagnosis, expressly or by implication. Dr Scurrah expressly rejected the diagnosis. He observed, based on his personal experience as a defence services medical practitioner that it was unlikely that the applicant would have been accepted twice into the Defence Force if she indeed had a personality disorder, because defence force screening was diligent in that respect. He also observed that there was no history of the applicant having problems in her teenage years, when borderline personality issues become manifest.
27. I note that Mr Purcell did not question Dr Lockwood about personality disorder, but it can reasonably be inferred from Dr Lockwood’s very thorough report, in preparation of which she was provided with the all the medical commentary available upon the applicant’s case, that Dr Lockwood did not consider that the applicant suffers from a personality disorder. At the end of the day there is limited evidence supporting such a diagnosis. I do not accept that the applicant suffers from personality disorder.
28. Finally, I note the respondent’s concession that if the applicant were to succeed on any of the claims for psychiatric disorders, acceptance of irritable bowel syndrome would follow as a matter of course.
ISSUE 2: THE LAW ABOUT RELATIONSHIPS WITH SERVICE
29. The legislative tests involved in cases concerning defence service, so far as is here relevant, is set out at s 70(5)(a) and s 70(5)(d) of the Veterans’ Entitlements Act 1986 as being whether:
(a) the death, injury or disease, …, arose out of, or was attributable to, any defence service…
and
(d) the injury or disease….was contributed to in a material degree by, or was aggravated by, any defence service….
30. Section 70(5)(a) of the Act provides that injury or disease will be taken to be defence-caused if it “arose out of or was attributable” to that service. The term “attributable” in the subsection is not limited to a single cause, nor need the cause be the sole or dominant cause[21].
[21] Repatriation Commission v Law (1981) 147 CLR 635.
31. Questions of causation of this kind are examined by applying Statements of Principles, formulated by the Repatriation Medical Authority. Statements of Principles are designed to set out the possible connections with service, expressed as factors, which describe the medically recognised links between injury/disease and service. The factors expressed in Statements of Principles have been described as statute-backed declarations of what is proved or known scientific fact[22].
[22] Deledio v Repatriation Commission (1997) 47 ALD 261 at 275, per Heerey J.
32. The applicant’s claim was not clearly articulated in this way at the start of the hearing. So, I gave Mr Thompson, National Coordinator of the Australian Patriot Movement, who represented the applicant, the opportunity to refine the case by more clearly identifying the factors he relied upon, by identifying them within the applicable Statements of Principles. I mean no criticism of Mr Thompson for the way he responded to that task, but I observe that he then proceeded to expand the bases of the claims, and identified nearly all factors in each of the applicable Statement of Principles for the applicant’s conditions. I will confine my task to the examination of only those factors that are reasonably raised by the evidence and for which some support can be found in the medical evidence and contemporaneous records.
33. In the applicant’s case, bearing in mind the diagnoses, I now must consider the following Statement of Principles:
§ For post traumatic stress disorder, Instrument No 6 of 2008 (which replaced Instrument No 4 of 1999 which was in force at the time of the claim).
This Statement of Principles, at factor 6(a) allows for a connection with service where a person experiences “a category 1A stressor before the clinical onset of posttraumatic stress disorder”.
A category 1A stressor includes experiencing “a life-threatening event”.
§ For depression, Instrument No 28 of 2008, it being the current Statement of Principles which must provide the primary focus for determining the matter. In terms of the applicant’s evidence in this case, there are two relevant factors:
At 6(a)(i): experiencing a category 1A stressor within the two years before the clinical onset of depressive disorder; and
At 6(a)(v): experiencing a category 2 stressor within the six months before the clinical onset of depressive disorder; and
A category 1A stressor means a severe occurrence as in a person experiencing a “life threatening event”.
A category 2 stressor is defined as meaning “one or more of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry”. The Statement of Principles then particularises:
(c) having concerns in the work or school environment including: on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful work loads, or experiencing bullying in the workplace or school environment;
§ For panic disorder, Instrument No 10 of 1999 which provides, at factor 5(a) - in terms rather similar to those in the Statement of Principles for post traumatic stress disorder, - that a person must have experienced “a severe stressor within the two years immediately before the clinical onset of panic disorder”.
§ For irritable bowel syndrome: Instrument No 104 of 1996, which provides for the presence of psychiatric disorder within the 6 months before the onset of the condition.
34. It will be observed, from the above, that several of the applicant’s claims rely upon stressful events. Broadly speaking, the claims refer either to severe stressful events (category 1A stressors and “severe stressors”) in particular this is the tenor of the first three incidents upon which the case relies; or they raise matters clearly referable to a “category 2 stressor”. For the claim as it relates to post traumatic stress disorder and panic disorder the events must be of a severe and traumatic kind; the occasion of significant fear and threat.
35. Turning then to the claimed conditions I will consider firstly the claim as it relates to post traumatic stress disorder.
§ is post traumatic stress disorder defence caused?
36. As the evidence of Dr Lockwood and Dr Scurrah revealed, a diagnosis of post traumatic stress disorder requires that there be an event of a particular character that gives rise to particular symptoms. Using words taken from the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) at paragraph 309.81, what is required is that:
The person has been exposed to a traumatic event in which both of the following were present:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or threat to the physical integrity of self or others
(ii) the person’s response involved intense fear, helplessness, or horror…
37. Thus, as a matter of diagnosis, there must be both a traumatic event, which answers the quoted description, and a response of the required intensity. It is relevant to note the decision of Gray J in Mines v Repatriation Commission where his Honour said[23]:
If the question is posed as whether a veteran has suffered PTSD as a result of a traumatic event said to have occurred during the veteran’s…service it must be answered by saying that the decision-maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PTSD.
[23] Mines v Repatriation Commission (2004) 86 ALD 62 at [48].
38. Of course the diagnosis here is agreed, based on Dr Scurrah’s and Dr Lockwood’s reports. The question then becomes whether the condition is attributable to defence service, a question in large measure answered by attentive regard to the definition of category 1A stressor in the Statement of Principles. Dr Scurrah observed that the nature of the applicant’s traumas, the period of time over which they occurred, and the time that had elapsed since made it difficult to disentangle symptoms and diagnoses. He noted that the applicant had been the victim of two incidents of sexual interference during her childhood. The applicant maintains that these incidents had not been the source of ongoing concern to her. Dr Scurrah did not suggest that the applicant’s post traumatic stress disorder resulted from incidents in her childhood.
39. Dr Scurrah’s view was that 3 incidents during the applicant’s service could meaningfully be described as “traumatic events” (category 1A stressors) as required by the diagnostic criteria for post traumatic stress disorder: the swimming exercise as a recruit when she thought she was drowning; the sexual assault; and the motor vehicle accident.
40. Dr Lockwood considered that of these, only two – the sexual assault and the motor vehicle accident - were of sufficient severity to meaningfully meet the criterion of a traumatic event. Mr Purcell questioned Dr Lockwood about whether the motor vehicle accident had the necessary qualities, as in that incident, danger quickly passed. However Dr Lockwood maintained that the applicant was in fear of her life in the incident and satisfied the requirement.
41. It can be seen from their reports that both doctors attribute special significance to the sexual assault. So indeed does the applicant. When Dr Scurrah (who had been her treating psychiatrist from 2004) asked the applicant which incident was the most traumatic for her, the applicant had nominated the assault.
42. It is a requirement clearly stated in Statements of Principles that except to the extent allowed for cases based upon aggravation, the factors set out as providing connections between injury or disease and service, must be related to service rendered by the person (clause 6). As the evidence unfolded, however, it was sufficiently clear that the sexual assault, despite its adverse impact upon the applicant’s psychiatric well being, took place off-base and therefore cannot be related back to service. Even if, as is claimed, the assault was perpetrated by another serving member of the defence force, this does not make the assault a matter related to the applicant’s service.
43. Other evidence with respect to the sexual assault does not suggest any other sufficient relationship with service – in particular I do not consider that a case is made out that the applicant had an “inability to obtain clinical management” (factor 6(1)(f) of the Statement of Principles). The applicant was medically attended, followed up, and appropriately referred[24].
[24] Exhibit R13 at 203-204.
44. However both Dr Scurrah and Dr Lockwood cite the motor vehicle accident as a sufficiently severe event to qualify as a traumatic event and, hence, one contemplated as coming within the definition of “a category 1A stressor” as being a “life-threatening event”. Mr Purcell questioned the severity of the incident and submitted that it did not come within the definition, but neither Dr Scurrah nor Dr Lockwood agreed with that suggestion.
45. In submissions Mr Purcell raised various decision of the Federal Court to submit that I should not regard the circumstances of the motor vehicle accident as sufficiently severe as to be described as life-threatening. However I do not agree, taking into account the nature of the incident, the risk she faced with oncoming traffic and applicant’s feelings of fear and abandonment. I would agree with the both doctors’ opinions and accept that the incident was a “category 1A stressor”.
46. I would also note however, that where the agreed medical opinion is to the effect that the applicant already had post traumatic stress disorder as a result of the sexual assault, this evidence suggests that the applicable factor is factor 6(e): “experiencing a category 1A stressor before the clinical worsening of posttraumatic stress disorder” rather than factor 6(a). In reaching that conclusion I accept Dr Lockwood’s opinion that the applicant’s post traumatic stress disorder was “worsened” in the circumstances of the motor vehicle accident.
47. Accordingly I would allow the claim for post traumatic stress disorder.
§ is panic disorder defence-caused?
48. It will be recalled that the factor here is the experience of a severe stressor. That cannot be the assault on the applicant that took place in 1983[25] because the assault was not related to defence service. With respect to all the other events relied upon as stressors, none occur within two years of the clinical onset of panic disorder.
[25] Exhibit R13 at 204.
49. The medical evidence points to the onset of panic symptoms in 1989. In that respect I had the quite extensive medical records including reports of Dr Whetton (November 1989), and Dr Morse[26], and Dr Byth[27] (who in 1994 took a history from the applicant that she had experienced panic attacks for some five years).
[26] Exhibit R 5 at 9.
[27] Exhibit R5 at 13.
50. The medical evidence from service records indicated that medical practitioners who were dealing with her considered that work-related stressors were the cause of her panic symptoms. This makes sense and is reasonable. There are no grounds upon which it could be suggested that these workplace stressors had the character of severe stressors, as provided for in the definition. The “severe stressors” contemplated in the Statement of Principles for panic disorder entail threats to physical integrity, whether to self or others. Such are not raised by the applicant’s workplace circumstances, however distressing those circumstances were to her psychiatric well-being.
51. Even assuming an onset of panic symptoms earlier that year (the applicant having referred to experiencing symptoms for some 11 months before the matters came to a head in November 1989), the evidence does not point, as required by the Statement of Principles, to clinical onset within 2 years of “experiencing a severe stressor” in which she “witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity”. The motor vehicle accident has been confirmed as occurring in 1985, so the applicant cannot satisfy the timing for onset set out in factor 5(a) of the Statement of Principles. Accordingly I affirm the decision as it relates to panic disorder.
§ is depressive disorder defence-caused?
52. I would answer this question “yes”. As the wording of paragraph 6 of the Statement of Principles for depression requires, the applicant can point to evidence that suggests on the balance of probabilities that her depressive disorder is connected with her defence service.
53. In that regard it seems to me that the Statement of Principles gives expression to what has long been recognised medically and in compensation law generally, that disharmony in a workplace and “perceived lack of support,” and stressful workloads can be linked to psychiatric injury. It is worthy of particular note that the Statement of Principles emphasises the persons perception, so there is no question that there is a subjective, experiential dimension to assessing a category 2 stressor.
54. Mr Purcell conceded that the applicant experienced problems with a Senior WRAN at HMAS Kuttabul and these lead to depression and anxiety. But, he submits that the matters described in the definition of “a category 2 stressor” in the Statement of Principles ought to be interpreted “objectively and with an eye to reality”[28]. If by that submission it is intended to suggest that the test is an objective one, I doubt that can be so, given the context, and the definitional emphasis on the person’s feelings, and their perceptions.
[28] Respondent’s Written Submissions (filed 27 May 2008) at [3.13].
55. What stands out prominently is that this is not a fresh claim, unsupported by contemporaneous evidence. There is ample evidence that the applicant was affected by the circumstances of her workplace and became unwell because of her perceptions of it. She believed that the disharmony she was experiencing was the result of her seeming to be favoured in the promotion to assistant mess clerk; she believed that her workload was excessive; and she believed that she was being harassed and the subject of unfavourable comment from others behind her back. Doctors at the time accepted that workplace factors contributed. Doctors since have agreed.
56. There is strong confirmation of the truth of much of this in the report prepared by Commander R H Old, dated 8 April 1991, for the Department of Defence (Navy Office), apparently with respect to the applicant’s workers’ compensation claim[29]. Commander Old observed that on taking up her duties the applicant was enthusiastic and efficient, but in November 1988 she ceased to be “the fun-loving enjoyable personality previously observed”. He noted about this time, that her relationship was breaking down, but he also noted that she was taking extra work at home under an agreement that she could have extra time off, but this had not always been honoured. He also commented that there was disharmony amongst the wardroom staff, who envied the applicant her position as assistant mess clerk.
[29] Exhibit R9 at 25.
57. However Mr Purcell submitted[30] that the applicant’s difficulties in the workplace arose from her own idiosyncratic and personal perceptions of the events and not from the actual events themselves.
[30] Respondent’s Written Submissions (filed 27 May 2008) at [3.17].
58. In workers compensation law connections of the kind that the applicant seeks to have recognised have a long history of acceptance. In Wiegand v Comcare[31] von Doussa J observed that all that was required was that the employee was exposed to an incident in the course of the performance of his or her duties to which he or she would not otherwise have been exposed and which was a contributing factor to the ailment or to its aggravation. In that regard Mr Purcell’s submission that the workplace was merely the setting in which her problems emerged, misconceives the test.
[31] Wiegand v Comcare (2002) 72 ALD 795 at 795-796 referring to Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626.
59. In my view the evidence points to a connection on the balance of probabilities because it points to the applicant experiencing a category 2 stressor within 6 months before the clinical onset of depressive disorder. The medical evidence at the time indicated that the applicant had been a good natured and happy person and this changed, for reasons connected with her work and her experiences at HMAS Kuttabul.
60. The evidence reveals that in February 1990 Warrant Officer Warburton provided a report[32] on the work situation, when the applicant was being considered for medical discharge. In that report he stated that the applicant had approached him in October and November 1989, seeking a transfer, because she was “depressed and agitated by other staff members”. She was told that she would have to wait, but then she took sick leave, followed soon after by the period of hospitalisation. Warrant Officer Warburton confirmed in his report that comments from other staff members upset the applicant when she was carrying out the role of assistant mess clerk. He confirmed that there had been personality clashes, observing, however, that this was not unusual in a large group working together. Unusual or not, this is evidence supporting the applicant’s evidence that she was experiencing problems at work, of the kind indentified in the Statement of Principles definition of a category 2 stressor.
[32] Exhibit R13 at 132.
61. Dr Byth, provided two reports in 1994, to the DFRDB Authority, in which the applicant was recorded as giving a five year history of depressed moods, panic attacks, hyperventilation, and difficulty coping. He diagnosed anxiety and depression, which he said were chronic and ongoing and present for some years[33], dating 18 months prior to the applicant’s discharge, when she described over-work and inter-personal conflict at work.
[33] Exhibit R2 at 99 (Report dated 11 August 1994).
62. It should also be observed that in the circumstances of this case, where the applicant has a condition – already accepted as due to her defence service, namely anxiety state – she might reasonably rely on the further factor, expressed at 6(a)(vi), of “having a clinically significant psychiatric condition within the one year before the clinical onset of depressive disorder”. I am mindful that for chain of causation cases, the Statement of Principles for anxiety disorder would need to be met[34]. However I am comfortably satisfied that it is, and she can rely on experiencing a “category 2 stressor” within 6 months of the clinical onset of anxiety disorder, identified when she was hospitalised in November 1989 (“category 2 stressor” is identically defined). The evidence therefore points to a connection of depression with her defence service because she had a clinically significant psychiatric disorder (anxiety), itself connected to defence service, within a year of the clinical onset of depressive disorder.
[34] McKenna v Repatriation Commission (1999) 86 FCR 144.
63. The claim for depressive disorder therefore succeeds on either ground.
§ is irritable bowel syndrome defence caused?
64. The Statement of Principles for irritable bowel syndrome provides as a factor that will connect the condition with defence service, suffering a specified psychiatric condition within the six months immediately before the clinical onset of irritable bowel syndrome. Anxiety and depressive disorders are included in the definition of specified psychiatric conditions.
65. In my view the claim for irritable bowel syndrome ought to succeed. My view is based upon the evidence of Dr Delaney, general practitioner, who diagnosed the condition as dating from 1989, based on the applicant’s complaints of relevant symptoms dating from that time, with a history of generalised anxiety and depression since 1989[35].
[35] Exhibit R2 at 210-212.
66. Accordingly the applicant’s claim with respect to irritable bowel syndrome should be granted, following as it does from the acceptance of her anxiety, post traumatic stress disorder, and depressive conditions.
ISSUE 3: DOES THE APPLICANT QUALIFY FOR “SPECIAL RATE”?
67. According to her written submission, the applicant was seeking payment of special rate of pension in respect of both herself and her school age son. No entitlement to special rate of pension arises for dependents under the legislation. That payment is reserved for those who themselves have undertaken war or defence service and whose particular disabilities result in an inability to work.
68. The question of the applicant’s entitlement is relevantly raised in circumstances where all medical practitioners agree that she is unable to work at all, by reason of her psychiatric disabilities. That however is but one part of the test.
69. As to the other parts of the test, I find myself in agreement with the Veterans' Review Board that the applicant cannot satisfy all the requirements of s 24 of the Act, despite satisfying the requirement that she cannot work 8 hours per week by reason of war-caused disease or injury: s 24(1)(b) of the Act.
70. That however is but one part of the test. The part that the applicant cannot satisfy appears in s 24(1)(c) of the Act, read with s 24(2)(a) of the Act. The chief reason for the applicant being unable to satisfy the requirements of this subsection is this is that she cannot show that it is defence-caused injury or disease alone that accounts for her not being in remunerative work in the assessment period. The applicant effectively has not worked since about 1991. Her last part-time work was briefly in 1996. She is now engaged in home-schooling her teenaged son. It seems to me an inescapable conclusion that having some been, on the most generous view of things, some 10 years out of the workforce at the start of the assessment period, it means that there are other reasons that impact upon her not being in remunerative work in the assessment period – that is reasons other than her accepted conditions.
71. In addition, the applicant’s case panic disorder, which is a condition that is not related to her defence service, contributes to the applicant not continuing in remunerative work. The two specialists who have addressed the claim agree that the applicant suffers a constellation of psychiatric symptoms, which fluctuate in severity but remain distinct disorders. When I asked Dr Lockwood for her comment on which of the conditions would contribute most to the applicant’s inability to work, she ventured the opinion that it was her panic disorder and agoraphobia, because they prevent her from leaving her safe haven[36]. However she fully acknowledged that other disorders contributed markedly as well.
[36] Transcript 22 April 2008 at 120.
72. Once it is appreciated that the applicant has several psychiatric disorders, not all of which are attributable to her defence service it cannot be said that she satisfies the test in s 24(1)(c), as expanded upon in s 24(2)(a) of the Act. As the Federal Court observed in Repatriation Commission v Hendy[37], “the decision-maker is required to take into account any factor that plays a part or contributes to a veteran’s being prevented from continuing to engage in remunerative work”.
[37] Repatriation Commission v Hendy [2002] FCAFC 424.
73. For these reasons the claim with respect to special rate of pension fails. Pension is appropriately paid at 100% of the general rate.
74. For completeness I would also note that the applicant made a number of submissions in relation to outcomes she id seeking in this review that are not available under the Act or to this Tribunal in review. She seeks compensation for pain and suffering, said to have been suffered by her and by her son as a result of negligent handling of her claims by the Department of Veterans Affairs, by the respondent, and by the Department of the Defence. I would simply note that claims based upon negligence are beyond the scope of reviews undertaken by this Tribunal.
75. In addition she requested backdating of her pension entitlements to 1982. That is not possible: dates of the effect under the Act are linked to the date of claims, not to the events upon which the claims may rely.
DECISION
§ In application No. Q2004/267, the Tribunal affirms the decision under review.
§ In application No. 2006/2600, the Tribunal sets aside those parts of the decision under review as they relate to post traumatic stress disorder; depressive disorder; and irritable bowel syndrome and substitutes the decision that these conditions are defence-caused.
§ With respect to the claim for panic disorder, the Tribunal affirms the decision under review.
§ The Tribunal affirms the decision that pension remains payable at 100% of the general rate.
I certify that the 75 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member
Signed: .............................[Sgd]........................................................
Joan Torbey, AssociateDates of Hearing 26 February 2008, 22 April 2008, 23 April 2008
Date of Decision 6 August 2008
Advocate for the Applicant Mr K Thompson, Australian Patriot Movement
Counsel for the Respondent Mr G Purcell
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