Smith and Repatriation Commission
[2003] AATA 900
•12 September 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 900
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V02/27
VETERANS’ APPEALS DIVISION ) Re MARGARET JEAN SMITH Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date12 September 2003
PlaceMelbourne
Decision The decision under review is affirmed. (Sgd) J Handley
Senior Member
VETERANS’ ENTITLEMENTS; Widows application; death by cerebrovascaular accident in 1999; deceased discharged from service in 1946; whether hypothesis and sub-hypothesis of either panic disorder, generalised anxiety disorder, depression or PTSD satisfies Statement of Principles for cerebrovascular accident; decision affirmed.
Veterans’ Entitlements Act 1986 s135, s175, s120A
Administrative Appeal Tribunal Act 1975 s29
Statement of Principles No.52 of 1999
Statement of Principles No.9 of 1999
Statement of Principles No.58 of 1999
Statement of Principles No.1 of 2000
Repatriation Commission v Hancock [2003] FCA 711
Benjamin v Repatriation Commission [2001] FCA 1879
Repatriation Commission v Deledio (1998) 49 ALD 193
Robertson v Repatriation Commission (1998) 20 ALD 668
Repatriation Commission v McKenna (1998) FCA 787
McKenna v Repatriation Commission (1999) FCA 323
REASONS FOR DECISION
12 September 2003 Mr J Handley, Senior Member 1. The applicant applies as the widow of the late Henry Smith who died on 22 November 1999.
2. The late Mr Smith was a member of the Australian Army between 15 December 1941 and 4 July 1946. He served overseas and the whole of his service therefore constitutes operational service.
3. The cause of death was certified as “Aspiration Pneumonia – 2 weeks; Posterior Circulation 2 Cerebrovascular Accidents – two weeks; Type 2 Diabetes Mellitus - years”.
4. The hearing of the application commenced in Bendigo on 2 April 2003 and concluded in Melbourne on 29 May 2003. Mr Furness appeared on behalf of Mrs Smith and Mr Douglass appeared on behalf of the respondent. A number of documents were received as evidence and will be referred to in these reasons.
5. Dr O’Dwyer the deceased’s treating general practitioner gave evidence as did the applicant, her son and Mr Kilgour, a family friend. Dr Walton gave evidence on behalf of the respondent in Melbourne.
6. At the date of his death, Mr Smith was in receipt of service pension. He was not in receipt of disability pension from the respondent.
7. In 1994 the late Mr Smith made an application upon the respondent for disability pension for the condition of “depression”. In January 1995 the respondent decided that it rejected the claim upon the basis that it could not establish a connection between service and “depressive disorder”.
8. Mr Smith did not lodge any appeal against that decision with the Veterans’ Review Board. It does not appear that any other application was made by Mr Smith in his lifetime.
9. In a Statement of Facts and Contentions lodged by Mr Furness prior to the commencement of the hearing, it was submitted that a connection existed between the service of the deceased, his subsequent depression and the causes of his death. It was submitted that the respondent was in error in its decision of January 1995 rejecting the claim by Mr Smith for depression. Additionally, it was submitted that the decision to reject the claim for depression should be set aside because the veteran was not then competent to lodge an appeal and the respondent ignored medical evidence that was available to it which supported the connection between service and injury.
10. Mr Furness submitted there was an onus on the part of the respondent under the principles of “natural justice” or “natural law” to “correct” the decision of 1995. He contended that the respondent had a duty to assist veterans, that it should not have relied on medical evidence that it then had and should have enquired of the deceased whether he intended to challenge its decision. He submitted the respondent was then negligent.
11. On the basis that depression should have been accepted as war-caused, it would have, on the submissions, entitled Mr Smith to pension at the Extreme Disablement Adjustment rate. This would have given Mrs Smith a consequent entitlement to widow’s pension upon his death. These proceedings could therefore be avoided however Mrs Smith, he submitted, now needed to satisfy Statement of Principles causing her to be disadvantaged.
12. The submissions of Mr Furness, both written and oral, were a spirited and valiant attempt to secure a posthumous acceptance of depression as war-caused. I am satisfied this is not permitted.
13. Section 135 of the Veterans’ Entitlements Act 1986 provides that a review of a decision of the respondent is to be conducted by the Veterans’ Review Board. Section 175 of that Act provides that decisions of the Veterans’ Review Board (“the VRB”) are reviewable at the Administrative Appeals Tribunal (“the AAT”) (subject to s29 of the Administrative Appeals Tribunal Act). In the case of pension entitlements, the AAT can only review decisions of the VRB. So far as the 1995 decision is concerned, the VRB has not made a decision. There is nothing therefore capable of review in these proceedings other than the decision made by the VRB on 16 October 2001 in the appeal lodged by Mrs Smith.
14. The decision of 16 October 2001 affirmed a decision by the respondent to deny a claim by Mrs Smith for widow’s pension. It is only that decision which can be reviewed in these proceedings. I know of no legal basis to adopt “natural justice” or “natural law” to remedy the omission by Mr Smith to challenge the decision made in 1995. The above provisions of the Veterans’ Entitlements Act and the Administrative Appeals Tribunal Act certainly prohibit review in these proceedings of that decision.
15. It would appear from the documents lodged that the deceased was exposed to some horrific episodes during service. From the documents lodged, the deceased observed the death of service colleagues. He also suffered agoraphobia which was associated with his detention on a boat travelling to New Guinea in the presence of enemy air raids.
Margaret Jean Smith
16. Mrs Smith is the widow of the late Mr Smith. She completed a proof of her evidence dated 26 March 2003 which was received into evidence and is reproduced as follows:
I Margaret Jean Smith of 54A Orr Street Shepparton in the State of Victoria Widow state as follows –
I knew my husband Robert Henry Smith before he enlisted on the 27 January 1940. I can describe him as an ordinary person. His main sporting interest was running and was a member of the Shepparton Harriers Club with Mervyn Pottenger my brother.
After my husband enlisted I corresponded with him and when he went overseas he did not write about the war. Before he was discharged on the 4 July 1946 he was posted to Tatura as a prison guard on the 1 October 1945. I saw him frequently between 1945 and 1947 and during this period he talked frequently about the war. He was a reader and read anything to do about the war. My son Roger noticed that he was an avid reader of war publications and he concentrated in particular on the areas he had served in.
I noticed he had become a worrier and he kept his feelings bottled up, he also suffered from nightmares. He became very depressed. My husband had become a very different person. We were married on the 10 of April 1948.
On the morning he suffered from a stoke we (were) about to go shopping, he said to me I don’t feel well enough to go shopping but I will be all right. He kept losing his balance eventually an Ambulance arrived. In October 1999 we went to Lorne. On this trip he asked me to drive. I stated no unless you want me to. He wanted to be taken to a hospital and he became very frightened of what he might do.
On a trip to New Zealand in an aircraft he got into a state and tried to open the door of the aircraft telling me that he wanted to get out. He told me about the flight from New Guinea during the war in an old Douglas aeroplane, which he believed, was not safe, it took on fuel but was not checked. He had seen planes land and crash.
When we went to Church on Sunday he would sit on the end of the seat near the door. We were invited to our friend’s 40th wedding anniversary in Melbourne in 1994. Although we were going to be driven by friends he panicked and would not go without a lot of persuasion.
I can see and hear him now sitting on the bed saying, “I could kill myself”. He would get into a state and be concerned about what he might do.
One night he was upset about the news relating to the funeral of a girl who had been murdered. He said, “I felt it could have been me that killed her”.
I believe my husband suffered from stress and had many panic attacks.
17. In evidence Mrs Smith said that when her husband returned to Australia he was a guard at the Tatura Internment Camp until his discharge in 1947. She noted that he had changed remarkably and was a reserved and quiet person. She recalled that her husband did speak to her about events in New Guinea including colleagues being killed in a mortar explosion and being confined in a boat travelling to New Guinea whilst enemy planes were flying overhead.
18. Mrs Smith said that her husband suffered many panic attacks and episodes of stress in his lifetime. She recalled that he became withdrawn, unable to assert himself or make decisions and was without energy. She said that he frequently would sit alone and look into space. She recalled an occasion where he attempted to exit an aeroplane whilst on route to New Zealand and on other occasions he would occupy a seat at the end of a row closest to the exit door of a church where she and he worshipped on Sundays. These episodes were described as indicative of his agoraphobia.
19. In cross-examination Mrs Smith said that her husband was diagnosed with diabetes in 1985 but it was controlled with diet and exercise and weight loss.
Roger David Smith
20. Mr Smith is the adult son of the late veteran who completed a statement on 26 March 2003 which was received into evidence and is reproduced as follows:
I Roger David Smith of 42 Orr Street Shepparton in the State of Victoria state as follows: -
I am the son of Robert Henry Smith and Margaret Jean Smith. I was born on the 2 November 1950. I have read my mothers Statement and in so far as the matters contained therein are within my knowledge they are true and correct.
I remember my fathers’ panic attacks and what I can only describe his terrible balance problem. I believe Ron Fink who is married to my sister Christine filled in the application form for his acceptance of Anxiety State.
My father would not have been in a fit mental state to lodge an appeal from the decision of the Delegate of the Repatriation Commission and would not have understood the contents of the decision. My father did not inform my mother he had made an application for a disability pension.
21. In evidence Mr Smith said that his relationship with his father was “remote”. He recalled his father having panic attacks from the mid-1960’s and recalled also that his father was incapable of making decisions or accepting responsibility. Indeed it was suggested that his father rejected an offer of promotion in employment because he would have been unable to cope with management responsibility.
22. In cross-examination Mr Smith said that his father also suffered from “balance problems” for which he was prescribed medication.
Don Kilgour
23. Mr Kilgour was a friend of the late Mr Smith. He prepared a statement dated 20 March 2003 which was received into evidence and is reproduced as follows:
I knew Harry Smith for 30 years after first meeting him at Wesley Church Shepparton.
Harry and I served on the Property Committee at Wesley for approximately 15 years and we got to know one another very well. I became a close friend of the Smith’s and regularly had lunch at their home.
Harry confided to me about his behavioural problems on numerous occasions. He did not like to be in confined areas. He was uncomfortable and somewhat frightened in large crowds. He often felt inadequate and unfortunately had to suffer taunts and embarrassment in the workplace. Pranksters particularly troubled him when he worked at Stuart’s Bacon Factory. Some of the staff were aware of Harry’s dislike of confined areas and on occasions locked him in the coolroom and laughed at his distressed state when he was let out.
I talked to him regularly about his problem and he always said that his paranoia commenced during his Army days but he wouldn’t burden me with the full story. This led me to believe that something happened during his Army service that changed him as a person.
Harry also found it hard to attend functions or places where he didn’t know many people. On one occasion I was due to drive Harry and Margaret to Melbourne to a birthday party for a former Wesley Church minister. Margaret phoned me about 1 hour prior to me picking them up to say that Harry couldn’t face going to the party and the trip to Melbourne.
It took me some time to persuade Harry that he wouldn’t be in danger and that I would look after him. Finally he agreed to come but he was apprehensive for much of the day.
I often took time to chat to Harry about his problem and he always advised me that he wasn’t like that as a young man but the problem first occurred during his war service and, when he thought back to those times he became agitated and wanted to hide away from everyone.
Interestingly, Harry always repeated those reasons over the years whenever I spoke to him, even when I visited him in hospital just prior to his death.
Harry was a troubled man but his troubles went a long way back and were not caused by his marriage or his financial situation.
24. In evidence, Mr Kilgour said that Mr Smith was a compliant person who obtained the nickname “Harry the seconder”. This name was given to Mr Smith after he and Mr Kilgour had served for many years on the property committee of the local Wesley Church. Mr Kilgour said that nobody could recall Mr Smith ever moving any motion in committee but that he had always been the person who would second the motion of another person.
Paul Desmond O’Dwyer
25. Dr O’Dwyer is a general practitioner in Shepparton and was the doctor with whom the deceased consulted from 1986. By reference to his notes, Dr O’Dwyer observed that the first consultation was with respect to diabetes. The deceased’s first presentation for anxiety was on 16 January 1990. He noted that the deceased was about to travel to New South Wales and was anxious because he was travelling into a “unfamiliar situation”.. Anxiety was then diagnosed and was regarded as being moderate. Medication was prescribed.
26. Thereafter Dr O’Dwyer consulted with Mr Smith on many occasions and learnt that the deceased was distressed about episodes which occurred during his military service. He noted that service colleagues of the deceased had been killed and on another occasion Mr Smith had been confined in a boat during enemy air attacks. He noted that the deceased was “very frightened” during his service and he regarded the events suffered by Mr Smith as being a “major psychiatric disturbance for him which led to chronic anxiety and frank episodes of depression and he was prone to panic attacks”.
27. Dr O’Dwyer was asked to distinguish between a “panic attack” and a “panic disorder”. He said that a “panic attack” is suffered by a person who is extremely anxious in a number of situations and who is unable to function properly. This was manifested by a “paralysing effect” together with sweating, dizziness and palpitations. He said that a person suffers from a “panic disorder” when there is ongoing anxiety with a number of panic attacks.
28. Dr O’Dwyer said that the deceased did suffer from panic disorder. He said that he was not surprised that it was not recorded as a cause of death because the doctor certifying the death would not necessarily have been aware of it.
29. In cross-examination, Dr O’Dwyer acknowledged that he did not ever diagnose the deceased as suffering from a panic disorder but said on review that the symptoms with which the deceased presented would be consistent with that diagnosis. Dr O’Dwyer said that he was in the best position to make this diagnosis because of the frequency of his contact with Mr Smith and said that he was “not surprised” that Drs Walton and Percival did not support the diagnosis. Additionally it was his understanding of DSM-IV that “panic disorder” is excluded if a more appropriate diagnosis can be found. He said that the diagnosis of “post traumatic stress disorder” as made by Dr Percival would have been made for that reason. It was his opinion that the deceased first suffered from panic disorder in 1971. Dr O’Dwyer made this finding by reference to medical records relating to treatment of the deceased in the early 1970’s and by reference to medical reports of Dr Russell and Dr Murray who previously treated at the Ambermere Hospital. Dr O’Dwyer was confident in his opinion of the deceased suffering from a panic disorder – having regard to the frequency of his contact with Mr Smith – despite Dr Murray and Dr Russell not having recorded in their reports that that diagnosis had been made.
Dr Lester Walton
30. Dr Walton is a consultant psychiatrist who provided two reports at the request of the respondent on 31 July 2002 and 8 November 2002.
31. In his first report Dr Walton concluded on the history then available to him and from other documents provided by the respondent that the deceased suffered from “infrequent panic attacks”. It was his opinion that the predominant feature of the presentation by the deceased to his doctors was of “agoraphobia” and “reactive anxiety and depression”.. Dr Walton reported that “the panic attacks are better accounted for by an alternative mental disorder in particular a depressive disorder”.
32. By his report of 8 November 2002 Dr Walton reported on his observations of the notes of the Goulburn Valley Area Mental Health Service (formerly Ambermere Hospital) and a report of Dr Percival of 10 September 2002. Dr Walton agreed with the comments made by Dr Percival that the late Mr Smith probably did suffer a “psychosocial stressor” having observed a service colleague being killed and being a passenger in an aircraft of “doubtful air worthiness”.
33. Dr Walton noted that Dr Percival had reported that the Statement of Principles with respect to cerebrovascular accident had a factor referring to suffering a panic disorder within 48 hours of the clinical onset of cerebrovascular accident. He noted that Dr Percival was of the opinion that the Statement of Principles should refer to suffering from a panic “attack” rather than a panic “disorder”.On balance Dr Walton was of the opinion that whilst an amendment to the Statement of Principles might be appropriate, its interpretation in the manner suggested by Dr Percival, was “a legal rather than a medical question”.
34. In evidence Dr Walton said that from the information that he had read it was difficult to obtain any information as to the frequency of “panic attacks” which would permit a diagnosis of “panic disorder”. He said it was not possible to determine from the notes how many panic attacks the deceased had suffered and said that it would be unsafe to make a diagnosis of “panic disorder”.
35. Dr Walton was aware that the Statement of Principles entitled “Panic Disorder” in its definition of “panic disorder” characterised the condition by the experience of recurrent unexpected panic attacks and the experience of at least four panic attacks in four weeks. He said in practice that he would not be that rigid but would be looking for panic attacks that were recurring in order to make a diagnosis of panic disorder.
36. He was aware that the late Mr Smith did react to flying in an unsafe aircraft, and thereafter had ongoing fear of flying. Dr Walton was of the opinion that the symptoms arising from these episodes would not amount to a panic disorder but would probably amount to a “phobic anxiety”.
37. On balance Dr Walton was satisfied that the prominent symptoms of the deceased were depression with lowered mood. He noted that the deceased avoided social interaction and whilst he said this was a feature of a number of different psychiatric disorders, it was a “hallmark feature” of depressive disorder.
38. Dr Walton had read the reports of Dr Murray who treated the late Mr Smith at the Ambermere Hospital and said that had the deceased suffered from panic attacks it would have been recorded in his notes and in his reports.
39. In cross-examination Dr Walton said that a panic attack was a reference to a single episode whereas a panic disorder was a diagnosis given after there had been recurring panic attacks in a person who suffers intense anxiety with marked physiological symptoms. When he learnt that Mrs Smith, the applicant in these proceedings, had given a statement to Dr Percival referring to her husband suffering panic attacks on a number of occasions, Dr Walton said that he was unaware of that statement and said that it possibly could amount to a diagnosis of panic disorder being made.
40. In re-examination Dr Walton said that suffering a panic attack “once every few years” would not permit a diagnosis of “panic disorder”. He agreed that there was nothing which pointed to a diagnosis of “panic disorder” in 1946 (being the year of the deceased’s discharge from service).
41. With respect to the observations of Mrs Smith as recorded in her statement to Dr Percival, Dr Walton said that a diagnosis of panic disorder could only be made dependent on the frequency of the panic attacks and the “quality of her observations”.
Clinical Documents
42. A number of medical records and other clinical data was received into evidence being the notes of Dr O’Dwyer, the file of the Ambermere Hospital (containing reports of Dr Murray and Dr Russell) and reports from Dr Percival, Dr Walton, Dr O’Dwyer and Professor Cade.
43. Dr Murray, a consulting psychiatrist in Shepparton reported in August 1991 that the late Mr Smith was “distinctively too self effacing, lacking in confidence and depressed. Medication was prescribed”. On 27 August 1992 Dr Murray reported that the diagnosis applicable to Mr Smith was “chronic depressive illness with even more longstanding elements of anxiety in his personality makeup and experience”. Dr O’Dwyer noted in one of his reports that in a letter he had received from Dr Murray it was reported that the late Mr Smith suffered from “chronic anxiety” which was related to his experiences in New Guinea during service. Dr Murray also noted that the deceased had taken his “religious beliefs excessively seriously” and regarded “all issues of right and wrong painfully scrupulously”. In a further report of 1 March 2002, Dr Murray reported that his war-time experiences “contributed to if not actually totally caused his claustrophobic and anxiety symptoms”. He also reported that “it is certain that his experience of being present when mates were killed at least added to his symptomatology”.
44. On 21 April 1992 Dr Russell reported that the deceased had “undoubted depression”. On 14 May 1992 he reported that the late Mr Smith “has impaired concentration and lacks motivation. At this age, a depressive condition does require careful scrutiny”. On 19 May 1992 Dr Russell reported that the deceased was “miserable and chronically unmotivated despite medication” and he recommended in-patient psychiatric care including ECT.
45. In November 1990 Dr O’Dwyer reported that he was concerned that the deceased’s “edginess” had its origin in early dementia. He noted a long history of agoraphobic symptoms and later reported that he was suffering from stress “and had many panic attacks”. On 16 January 1992 Dr O’Dwyer reported that the deceased “had another panic attack yesterday…… becoming depressed, long history of agoraphobic symptoms (age related?). Gets panic attacks at the thought of unfamiliar situations”.. Dr Sterling, a partner of Dr O’Dwyer, reported in February 1992 that the deceased was anxious with elements of agoraphobia and obsessivism. At 6 April 1992 Dr O’Dwyer noted the deceased was suffering from obsessive intrusive thoughts, a lowering of self esteem, continued agitation and suicidal ideation. In a claim form completed by Dr Dwyer on behalf of Mr Smith on 6 July 1992 it was noted that the deceased suffered severe recurrent anxiety/depression. On 26 November 1992 Dr O’Dwyer reported the deceased suffered chronic anxiety with fear of confined spaces and meeting people. He reported that “powerful tranquilisers” had been prescribed in high dosage with referral to hospitalisation for electro-convulsive therapy.
46. In a report completed by Dr Christopher Percival, following an interview with Mrs Smith, he reported a history of the late Mr Smith being present during service when a service colleague was killed by an exploding mortar. He also recorded a history of anxiety whilst on guard duty, returning from an operation in an aircraft which was either damaged or low on fuel, being petrified whilst a passenger on an aeroplane returning to Melbourne which was believed to be in a damaged state and being a person who had “changed” subsequent to service. In his report of 10 September 2002 Dr Percival concluded that he agreed with an opinion expressed in a report of Dr Walton that the deceased “could not be recognised as meeting the relevant Statement of Principles in relation to panic disorder”. He concluded (by reference to the Statement of Principles) that the appropriate diagnosis was post traumatic stress disorder (“PTSD”). He later concluded that as a “secondary consequence” of PTSD the deceased “later developed a major depressive disorder”.
47. At the conclusion of his report Dr Percival reported that a diagnosis of panic disorder was not appropriate having regard to the DSM-IV diagnostic criteria and by reason of that criteria, a diagnosis of panic disorder was appropriate only if “panic attacks are not better accounted for by another mental disorder”. In those circumstances PTSD was suggested as the appropriate psychiatric disorder.
48. In a report of 7 August 2002 Dr Cade, the Director of Intensive Care at the Royal Melbourne Hospital reported that on his examination of the clinical data, the primary cause of death of the late Mr Smith was cerebrovascular disease “with consequent multiple serious cerebrovascular accidents (strokes)”.. Dr Cade was asked to comment on whether there was any association – so far as he could determine by reference to Statements of Principles – between the fatal cerebrovascular accidents and the deceased having suffered from either a “severe stressor”, a “panic disorder”, “depression” or “chronic anxiety”. He concluded “I have been unable to identify any factors in the available documentation which would support the criteria required to formulate a plausible hypothesis linking his service with his death from stroke over 50 years later”.
Hypothesis
49. When the hearing commenced in Bendigo, Mr Furness submitted that the hypothesis between service and the death of Mr Smith by cerebrovascular accident would be established by the deceased either having “experienced a severe stressor” or from “generalised anxiety disorder” or “post traumatic stress disorder” or “panic disorder” or by “diabetes”.. Diabetes was subsequently withdrawn as a factor linking service with the circumstances of death.
50. By reason of the date upon which the claim of Mrs Smith was issued, consideration must be given to Statement of Principles issued by the Repatriation Medical Authority. This is because s120A of the Veterans’ Entitlements Act provides that any claim made after 1 June 1994 relating to operational service, where a Statement of Principle has been issued by the Repatriation Medical Authority, will only have a hypothesis deemed to be reasonable if the Statement of Principle upholds the hypothesis.
51. In order to identify the applicable Statement of Principle there must be a preliminary enquiry to identify the “kind of death” (refer Repatriation Commission v Hancock [2003] FCA 711). The cause or identification of the death must be made. In the present circumstance it is beyond controversy that the late Mr Smith died from the effects of a cerebrovascular accident. The only applicable Statement of Principle with respect to cerebrovascular accident within the assessment period is No.52 of 1999 (as amended by Instrument No.30 of 2002 but which for these purposes is not relevant).
52. Because this application concerns a sub-hypothesis (refer later) it is necessary to identify the “kind of injury” suffered by the deceased in his lifetime (refer s120A of the Veterans’ Entitlements Act 1986). I am satisfied that the injury suffered by the deceased in his lifetime was “panic disorder”.. On the balance of probabilities it seems to me, having regard to the evidence of Dr O’Dwyer, particularly, the observations of Mrs Smith and her son and the opinion of Dr Walton that this is the most appropriate diagnosis. It appears that Dr Percival was also of the opinion that the late Mr Smith suffered from panic disorder but chose a “more appropriate” diagnosis of PTSD. He did so because in his opinion panic attacks were “better accounted for by another mental disorder”. In reaching these conclusions Dr Percival had regard to the Statements of Principles when deciding whether a diagnosis of panic disorder could be made. Without any disrespect to Dr Percival this is impermissible. The diagnosis of a condition is not to be made by reference to a Statement of Principle (refer Benjamin v Repatriation Commission [2001] FCA 1879).
53. Instrument No.52 of 1999 provides a number of factors “that must as a minimum exist before it could be said that a reasonable hypothesis has been raised connecting cerebrovascular accident or death from cerebrovascular accident with the circumstances of a person’s relevant service”.. For the purposes of this application the only applicable or relevant factors are factors 5(b) and (c) namely:
(b)experiencing a severe stressor within the 48 hours immediately before the clinical onset of cerebrovascular accident; or
(c)suffering from panic disorder before the clinical onset of cerebrovascular accident.
54. Having identified an applicable Statement of Principle it is then necessary to determine whether the four stages of analysis as prescribed by the Full Federal Court of Repatriation Commission v Deledio (1998) 49 ALD 193 at 206 apply namely:
1.The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B (2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B (2) (d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4.The tribunal must then proceed to consider under s 120 (1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
55. In regard to stages 1 and 2 above, it is clear that the material does point to a hypothesis connecting death with the circumstances of service and a Statement of Principles does apply. At this stage of the analysis, fact finding is not required.
56. Stage 3 is critical because the hypothesis will only be reasonable if it is consistent with the template found within the Statement of Principle. That is to say, the hypothesis as raised must contain one or more of the factors determined by the Repatriation Medical Authority as existing and as published in a Statement of Principles. Those factors, if existing as a minimum, must also be related to service.
57. The late Mr Smith suffered his cerebrovascular accident in November 1999 and succumbed to it also in that month. There is no material which points to him having “experiencing a severe stressor” within 48 hours immediately before the clinical onset of the cerebrovascular accident. Paragraph 4 of the Statement of Principle provides that the factors in paragraph 5 must be related to “any relevant service rendered by the person”. That is to say, the factors within paragraph 5 must be related to service by the deceased. “Experiencing a severe stressor” is defined at paragraph 8 of Instrument No.52 of 1999 as:
means the person experienced, 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.
In the setting of service in the Defence Forces or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i)threat of serious injury or death; or
(ii)engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence.
58. In so far as this factor is concerned, it could not be said, on the material, that the deceased “experienced a severe stressor” as defined within 48 hours immediately before the clinical onset of cerebrovascular accident. This hypothesis therefore is not “reasonable” because it is not consistent with the template found within the Statement of Principles. Because the hypothesis fails to fit that template it is deemed not to be “reasonable” and the claim in so far as this hypothesis is concerned will fail.
59. The remaining hypothesis concerned paragraph 5(c) of Instrument No.52 of 1999, namely whether the late Mr Smith suffered from a “panic disorder” before the clinical onset of cerebrovascular accident.
60. The “clinical onset” of the cerebrovascular accident was in November 1999 when it was sustained. “Clinical onset” occurs “either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present” (refer Robertson v Repatriation Commission (1998) 20 ALD 668).
61. There is a Statement of Principle with respect to “Panic Disorder” namely No.9 of 1999 (as amended by No.58 of 1999 but which is not relevant for these purposes). These Instruments are the only Instruments with respect to panic disorder within the assessment period.
62.
The hypothesis concerning service giving rise to a panic disorder, giving rise to cerebrovascular accident, which was the cause of death, involves a
“sub-hypothesis”where the Instrument with respect to panic disorder must also be satisfied.
63. In Repatriation Commission v McKenna (1998) FCA 787 Goldberg J decided that a “hypothesis has to point to a connection which starts with the disease in respect of which the application is made and ends with the service. That connection will comprise a number of links or factors each of which must be upheld by a Statement of Principles and, if need be, by more than one Statement of Principles”. A Full Federal Court upheld an appeal against the decision of His Honour in McKenna v Repatriation Commission (1999) FCA 323.
64. It follows therefore that Mrs Smith must also have this hypothesis fit or be consistent with the template found within the Statement of Principles for cerebrovascular accident by satisfaction also of the template found within the Statement for Principles for panic disorder.
65. Instrument No.9 of 1999 has three factors only, where one must exist as a minimum before it could be said that a reasonable hypothesis has been raised connecting panic disorder with the circumstances of service namely:
(a)Experiencing a severe stressor within the two years immediately before the clinical onset of panic disorder; or
(b)Experiencing a severe stressor within the two years immediately before clinical worsening of panic disorder; or
(c)Inability to obtain appropriate management for panic disorder.
66. “Experiencing a severe stressor” as that phrase is found within factors 5(a) and (b) above is identical in definition to that which appears in the Statement of Principles for cerebrovascular accident (refer earlier).
67. Findings of fact need only be made at stage 4 of the Deledio analysis however in order to “complete” stage 3 it is necessary to make findings with respect to the “clinical onset” or “clinical worsening” of panic disorder. I previously decided on the probabilities that the deceased did suffer from panic disorder. However I am satisfied that the clinical onset of it was not until the mid-1960’s (at the earliest) as was the evidence of Mr Smith or from 1971 (at the latest) as was the evidence of Dr O’Dwyer. There is no material which points to the deceased experiencing a severe stressor, as defined, either within two years before the clinical onset of panic disorder or within two years before the clinical worsening of panic disorder. (It is not known when there was a clinical worsening of panic disorder, but it must have been after its onset, therefore either after the mid-1960’s or 1971). Additionally there is no material which points to the deceased having an inability to obtain appropriate clinical management for panic disorder. In deed the reverse would appear to be the case, having regard to the extent of his treatment.
68. Accordingly I cannot be satisfied that the factors within Instrument No.9 of 1999 fit the “template” of that Instrument. As was the case in the analysis above concerning the Statement of Principles for cerebrovascular accident, the factors in paragraph 5 must be related to service rendered by the deceased. In the event that the deceased did experience a severe stressor in service it could not be said, noting that the deceased was discharged from service in 1946, that the severe stressor was experienced within two years before the clinical onset or clinical worsening of panic disorder.
69. Accordingly it could not be said that the hypothesis advanced is consistent with the “template” of the sub-hypothesis of panic disorder. The hypothesis is not in those circumstances “reasonable”.
70. In these circumstances it is not necessary to make findings with respect to the alternative diagnosis advanced by the doctors in the deceased’s lifetime namely, depression or anxiety or agoraphobia. None of those conditions fit within the factors under the Statement of Principles for cerebrovascular accident save that Instrument No.1 of 2000, being the Statement of Principles with respect to “Generalised Anxiety Disorder” (therefore again requiring an analysis of this as a sub-hypothesis) contains factors concerning the “experiencing a severe psychosocial stressor” or “having a clinically significant psychiatric condition”, either of which within two years immediately before the clinical onset or clinical worsening of anxiety disorder. The condition of anxiety disorder had – on the evidence – been existing for many years. I cannot however find that this condition of anxiety disorder has relevance to the hypothesis being made up of a number of links concluding with cerebrovascular accident because that condition does not exist as a factor within any of the factors in Instrument No.52 of 1999. That is to say, in the absence of anxiety disorder being a factor within paragraph 5, I could not find as a sub-hypothesis that it has relevance to these proceedings. Additionally I would need to find (which is not relevant but for the sake of completing this review the following must be stated) that even if generalised anxiety disorder had relevance to these proceedings there would need to be a finding of the deceased having experienced “a severe psychosocial stressor” or “having a clinically significant psychiatric condition” because it would require a finding of either of those conditions having occurred within two years immediately before the clinical onset of the anxiety disorder. There is no material in the present proceedings which would permit any finding on the balance of probabilities of the occasion of the clinical onset of the anxiety disorder.
71. I also note, in conclusion that paragraph 2 of Instrument No.1 of 2000 excludes adopting the Instrument if a veterans’ anxiety disorder is properly diagnosed as panic disorder.
72.
Having regard to s120(1) of the Veterans’ Entitlements Act and stage 4 of Deledio I have no alternative, for the above reasons, to be satisfied beyond reasonable doubt that the death of the late Mr Smith was not
war-caused.
I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Handley,
Senior Member.Signed: Elsa Genovese
Personal AssistantDate/s of Hearing 2 April (Bendigo) & 29 May 2003 (Melbourne)
Date of Decision 12 September 2003
Solicitor for the Applicant Mr P Furness
Counsel for the Respondent Mr R Douglass
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