Stewart and Repatriation Commission
[2003] AATA 1174
•21 November 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1174
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/1117, Q2003/233
VETERANS' APPEALS DIVISION ) Re PETER STEWART Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr I R Way, Member Date21 November 2003
PlaceBrisbane
Decision (a) The Tribunal affirms the decision of the Repatriation Commission that Peter James Stewart’s asthma, chronic bronchitis and cervical spondylosis are not defence-caused within the meaning of section 70 of the Veterans’ Entitlements Act 1986.
(b) The Tribunal sets aside the decision under review in respect of PTSD and depressive disorder and in substitution therefor determines that Peter James Stewart suffers from anxiety disorder and depressive disorder and that neither one of these disorders is defence-caused within the meaning of section 70 of the Veterans’ Entitlements Act 1986.
....................(Sgd).....................
IR Way
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – whether the veteran’s conditions were caused by his defence service - cervical spondylosis - chronic bronchitis - PTSD
Veterans’ Entitlements Act 1986 (Cth) ss 70, 120B
Repatriation v Smith (1987) 7 AAR 17
Langley v Repatriation Commission (1993) 17 AAR 498
Briginshaw v Briginshaw (1938) 60 CLR 336
Holthouse v Repatriation Commission (1982) 1 RPD 287
Roncevich v Repatriation Commission (2001) 66 ALD 105REASONS FOR DECISION
21 November 2003 Mr I R Way, Member 1. This is an application by Peter James Stewart for review of two decisions of the Repatriation Commission, namely:
· First Decision (Q01/1117)
(i)On 10 March 2000, the Repatriation Commission decided, inter alia, that cervical spondylosis and asthma are not defence-caused within the meaning of section 70 of the Veterans’ Entitlements Act 1986 (“the Act”);
(ii)On 14 August 2000, the Commission decided that chronic bronchitis and emphysema (“CBE”) is not related to service;
(iii)On 10 October 2001, the Veterans’ Review Board (“VRB”) affirmed both decisions.
· Second Decision (Q03/233)
(i)On 13 March 2001, the Commission, relevantly, determined that depressive disorder is not related to service;
(ii)On 18 December 2002, the VRB, relevantly,
· varied the decision by amending the diagnosis of depressive disorder to post traumatic stress disorder (“PTSD”); and
· affirmed the decision under review as varied in respect of PTSD.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 as follows:
· Matter Q2001/1117 – T1-T6
· Matter Q2003/233 – T1-T6
Other documentary evidence before the Tribunal was as follows:
Exhibit A1 Applicant’s statement dated 4 April 2002
Exhibit A2 Applicant’s supplementary statement (undated)
Exhibit A3 Applicant’s statement re questionnaires dated 16 May 2003
Exhibit A4 Applicant’s letter with attachments dated 22 April 2003
Exhibit R1Dr Mulholland psychiatric medico-legal report dated 26 June 2003
Exhibit R2Port Macquarie Base Hospital report dated 6 July 1999 (1st page handwritten)
Exhibit R3Letter by Dr Nolan of Port Macquarie Medical Imaging dated 28 June 1999
Exhibit R4Veteran’s Claim for Disability Pension and Medical Treatment dated 29 March 1988
Exhibit R5VRB – Transcript of proceedings dated 10 October 2001
Exhibit R6VRB – Transcript of proceedings dated 18 December 2002
3. The applicant was self-represented and gave oral evidence. Dr P Mulholland, Psychiatrist, also gave oral evidence. The respondent was represented by Mr J Stoner, Advocate.
4. The applicant was born on 8 October 1948 and served in the permanent RAAF from 26 July 1966 to 25 July 1986. For the purposes of the Act, the applicant’s service from 7 December 1972 until 25 July 1986 constitutes eligible defence service.
5. At the hearing the applicant informed the Tribunal and the Tribunal accepted that he did not wish to press his claim in respect of asthma. The Tribunal therefore affirms the respondent’s decision that the applicant does not suffer from defence caused asthma. The respondent conceded and the Tribunal accepts that the applicant suffers from cervical spondylosis and chronic bronchitis. The first issue before the Tribunal is whether one or both of these conditions are defence caused within the meaning of the Act.
6. The second issue before the Tribunal is whether the applicant suffers from a psychiatric condition and if so what is this condition and is any such condition defence caused within the meaning of the Act.
Legislative Framework
7. The Act relevantly provides:
“70 Eligibility for pension under this Part
(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;
…
(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;
…
(7)Where, in the opinion of the Commission, the incapacity of a member of the Forces or member of a Peacekeeping Force was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered defence service or peacekeeping service, as the case may be, or but for changes in the member’s environment consequent upon his or her having rendered any such service:
(a)if the incapacity of the member was due to an accident—that incapacity shall be deemed to have arisen out of the injury suffered by the member as a result of the accident and the injury so suffered shall be deemed to be a defence-caused injury suffered by the member; or
(b)if the incapacity was due to a disease—the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a defence-caused disease contracted by the member, for the purposes of this Act.
…
120BReasonable 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.”
8. The standard of proof in this matter is set out in sub-section 120(4) of the Act and requires the Tribunal to determine this matter to its reasonable satisfaction, that is on the balance of probabilities (see Repatriation v Smith (1987) 7 AAR 17).
9. The applicant’s claim was lodged on 1 June 1994 and the Tribunal is therefore to determine this matter pursuant to section 120B of the Act.
10. There is no disagreement between the parties and the Tribunal accepts that the following SoPs may have application in this matter.
· Cervical Spondylosis – Instrument No 57 of 2002 (as amended by Instrument No 64 of 2002) and Instrument No 32 of 1999
· Chronic Bronchitis and Emphysema – Instrument No 74 of 1997
· Post Traumatic Stress Disorder – Instrument No 3 of 1999 (as amended by Instrument No 54 of 1999)
· Anxiety Disorder – Instrument No 2 of 2000
· Depressive Disorder – Instrument No 59 of 1998
The relevant parts of the applicable SoPs are dealt with later in these Reasons for Decision.
11. The applicant’s accepted disability is malignant neoplasm of the lung. His non-accepted disabilities are:
· Cervical spondylosis
· Asthma
· Malignant melanoma
· Urolithiasis
· Migraine
· Duodenal ulcer
· Refractive error
· Chronic bronchitis and emphysema
· Cluster headache syndrome
· Depressive disorder
12. The applicant is currently in receipt of disability pension at 100% of the General Rate.
Applicant’s Contentions and Evidence
13. It is convenient in these Reasons for Decision to deal with each of the applicant’s claims in turn. Firstly, in respect of his claim for chronic bronchitis.
14. The applicant told the Tribunal that when he was serving in Tengah Air Base in Singapore he was exposed to aviation gas fumes daily for 2½ years while working in the combined OR/Sergeant’s Mess as a Corporal Steward. He said the Mess was adjacent to the aircraft operations and the fumes came straight into the Mess where he worked. He said he also suffered irritation to his bronchial tubes as a result of being exposed to coffee/flour in the kitchen.
15. It was the applicant’s evidence that he was a heavy smoker and also was required to operate in a smoke haze in the various Messes where he worked. The applicant said he thought that service-caused smoking had a great deal to do with his bronchial condition.
16. Instrument No 74 of 1997 relevant provides:
“Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, chronic bronchitis and/or emphysema or death from chronic bronchitis and/or emphysema is connected with the circumstances of a person’s relevant service are:
(a) for chronic simple, chronic mucopurulent or asthmatic bronchitis only,
(i) being exposed to airborne irritants resulting in acute respiratory symptoms occurring within the 48 hours immediately after that exposure, within the 30 days immediately before the clinical onset of chronic bronchitis; or
(ii) smoking at least 15 pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis, and, where smoking has ceased, the clinical onset has occurred within one year of cessation; or
(iii) being exposed to airborne irritants resulting in acute respiratory symptoms occurring within the 48 hours immediately after that exposure, within the 30 days immediately before the clinical worsening of chronic bronchitis; or
…..
(b) smoking at least 15 pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema; or
…..
Other definitions
7. For the purposes of this Statement of Principles:
‘pack-year’ means 7 300 cigarettes, or 1 460 cigars, or 7.3kg of pipe tobacco;”
17. In this case the respondent has conceded that the applicant fits that part of the SoP template which requires the applicant to have smoked 15 pack years prior to the clinical onset of bronchitis. In view of this, and on the material before it, the Tribunal accepts that the applicant smoked at least 15 pack years of cigarettes before the clinical onset of chronic bronchitis.
18. The question then before the Tribunal is whether the applicant’s smoking habit is causally connected to his eligible defence service.
19. The applicant has given inconsistent accounts of his smoking habit.
20. The respondent in a Statement of Facts and Contentions dated 12 August 2003 has set out the various accounts given by the applicant about his smoking in the following terms:
“8.…..
(a)in a smoking questionnaire dated 14 February 2000, associated with a claim for pension in respect of CBE (T-documents No Q01/1117, folio 22), the applicant said:
(i)he began to smoke in 1966 at a rate of 20-30 cigarettes per day;
(ii)this was due to peer pressure and the availability of cigarettes;
(iii)he increased to 30-40 per day in 1982 when promotion brought increased responsibilities; and
(iv)he ceased smoking in 1995.
(b)in a smoking questionnaire dated 18 January 2001, in the context of his appeal to the VRB (folio 59), the applicant said:
(i)he began to smoke in 1972 at a rate of 20-30 cigarettes per day;
(ii)this was because of peer encouragement, the easy availability of discount cigarettes, and the stress of service-related employment;
(iii)he increased to 40 cigarettes per day in 1977 because of work change and responsibilities; and
(iv)he ceased smoking in 1995.
(c)in a statement seeking to explain his prior inconsistent statement (folio 58), the applicant said:
(i)he smoked 3-4 cigarettes a day from 1966; and
(ii)
he increased to 20-30 per day in 1972 when he was posted to
Darwin and work procedures were different.
9.Before the VRB, the applicant testified that he falsified his smoking history because ‘I thought that increasing the amount that I smoked would possibly get me through’: VRB transcript, Nos Q00/0568 and Q01/0371, 10 October 2002, page 22 lines 19-24.
10.In the course of his application for review, the applicant made two further statements which are now Exhibits 1 and 2:
(a) in a statement dated 4 April 2002 (Exhibit 1) the applicant said:
(i)he smoked 5-6 cigarettes a day prior to Cyclone Tracy1; and
1 24 December 1974
(ii)after the cyclone he increased to 40-50 per day:-
but in his oral evidence before the Tribunal he has amended the figure of 5-6 to 20-30 (AAT transcript, page 6 lines 23-27); and
(b)in a statement undated (Exhibit 2), the applicant said:
(i)he smoked 3-4 cigarettes a day when he went to Darwin (in June 1972);
(ii)he increased to 30-40 per day from boredom; and
(iii)after Cyclone Tracy he increased to 40-50 a day:-
but in his oral evidence before the Tribunal he has amended the figure of 3-4 to 20-30 (AAT transcript, page 8 lines 15-19).
11.Since the hearing of Application No Q01/1117 was adjourned on 4 March 2003, the applicant has made two further statements:
(a)on 22 April 2003, he wrote to the Tribunal stating that:
(i)he smoked 20-30 cigarettes per day from 1966;
(ii)he increased to 30-40 a day in 1982 and 50-60 in 1995; and
(iii)he ceased smoking in 1996; and
(b)on 16 May 2003, he wrote to the Tribunal advising that the initial questionnaire was completed truthfully and honestly, and that at the time he was unaware that his eligible service only runs from December 1972; and that after his advocate informed him that there were difficulties with that statement (being difficulties, presumably, with satisfying the legislation), he tailored his subsequent smoking statements to the requirements of the Statement of Principles.
12.Other statements made by the applicant, which tend to confirm the original smoking questionnaire at folio 22, include:
(a)he apparently told Dr Mulholland that he smoked 50-60 cigarettes per day from 1966 to 1995 (report, supra, at [16.2]); and
(b)in a claim for pension in respect of ulcer and eye conditions dated 29 March 1988, he said he stated [sic] smoking in 1966 at a rate of 35-40 cigarettes per day and that his smoking habits did not change greatly over time.”
21. In cross-examination, the applicant was taken to his various statements and in answer to questions put to him by the respondent about changes he had made in his various statements, said that he had, in effect, made the changes on the advice of RSL Advocates so that he would conform with the requirements of the relevant SoP. He said that he had not lied and falsified his claim in order to obtain a benefit but had relied on professional people to guide him. The applicant ultimately agreed that he smoked regularly and heavily from 1966 to June 1995 and that prior to this he had smoked “a few” cigarettes.
22. The Tribunal notes that the respondent has accepted that the applicant’s malignant neoplasm of the lung is service-related and in so doing has stated:
“The Statement of Principles states that cigarette smoking is a factor contributing to malignant neoplasm of the lung. I am satisfied that Mr Stewart meets this factor and I find that it is casually related to his service. I have therefore decided that malignant neoplasm of the lung is service related.”
23. The applicant has drawn the Tribunal’s attention to this decision (Exhibit A4) and submitted that as smoking has been accepted as service-related, his claim for chronic bronchitis should also be accepted.
24. Turning then to the applicant’s claim for cervical spondylosis.
25. Dr K Nolan, Port Macquarie Medical Imaging, reported in June 1999 that the applicant suffered degenerative spondylosis at C5-6 and in so doing raised the possibility of old trauma.
26. The applicant’s contention is that he suffered a service-related trauma to his cervical spine in the early 1980s, such that he satisfied factor 5(g) of the relevant SoP, Instrument No 51 of 2002. He also claimed to have suffered spinal problems as a result of repetitious heavy lifting with twisting and turning, loading, unloading and stacking beer kegs weighing approximately 100 kg and stacking cartons above head height with weight greater than 10 kg.
27. Instrument No 51 of 2002 (as amended by Instrument No 64 of 2002) relevantly provides:
“Factors
5.The factors that must exist before it can be said that, on the balance of probabilities, cervical spondylosis or death from cervical spondylosis is connected with the circumstances of a person’s relevant service are:
…..
(g)suffering a trauma to the cervical spine within the 25 years immediately before the clinical onset of cervical spondylosis; or
…..
(i)carrying loads of at least 25 kg on the head while upright to a cumulative total of 120 000 kg within any 10 year period, before the clinical onset of cervical spondylosis, and where such physical activity has ceased, the clinical onset of cervical spondylosis has occurred within the 25 years immediately following such activity; or
…..
Other definitions
8. For the purposes of this Statement of Principles:
‘trauma to the cervical spine’ means a discrete injury to the cervical spine that causes the development, within 24 hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the cervical spine. These symptoms and signs must last for a period of at least 10 days following their onset; save for where medical intervention for the trauma to the cervical spine has occurred, where that medical intervention involves either:
(a)immobilisation of the cervical spine by splinting, or similar external agent; or
(b)injection of corticosteroids or local anaesthetics into the cervical spine; or
(c) surgery to the cervical spine.”
28. The Tribunal notes that Instrument No 32 of 1999 does not contain any factor or definitions which might be more favourable to the applicant than those factors and definitions set out above.
29. It was the applicant’s oral evidence that early in 1984 while he was serving as a bar steward at Williamtown, he was stacking beer kegs in a cool room when one fell and when he tried to stop the keg falling he hurt his left arm, shoulder and the upper part of his spine. He said this incident happened at 2 pm and he then went to the Base medical section where he was examined; and he then went back to work on the same day until he finished work at 10 pm. He said that he was sore and tender but was able to continue at work as it was quiet in the Sergeant’s Mess, where he was working.
30. He said that the following morning he attended sick parade and the medical officer who saw him put him on light duties and referred him to a specialist. He said that x-rays were taken the following day. He said his left arm was in a sling for two weeks and he was prescribed anti-inflammatory medication. He said it was three weeks before he was back to full duties.
31. In cross-examination the applicant was taken to clinical notes (Folio 4 Q01/1117) where it was recorded that in August 1982 he suffered cervical pain and was referred to a physiotherapist. The applicant agreed that this entry was related to the incident of lifting kegs that he described earlier to the Tribunal as occurring in 1984 and that the “specialist” he had mentioned was a physiotherapist who he saw within 24 hours of the referral and that he had had two sessions with the physiotherapist.
32. The Tribunal notes that the VRB records the applicant as saying:
“Ms Cowdroy: It would be somewhat unusual, I would have thought not to have someone report there that you had an injury.
Mr Stewart: You’re talking about a ground incident report?
Ms Cowdroy: Something of that – or even just a comment there that, you know, ‘injured today lifting keg’ or something like that.
Mr Stewart: Yes. No, there was no ground incident report implemented. No, there – as a matter of fact, as soon as this happened, I went straight down to Medical Section and my doctor too [sic] it from there. He – he didn’t think it was feasible for me to have an X-Ray but sent me to a – what are they called?
Ms Cowdroy: Physio.
Mr Ward: Physio.
Mr Stewart: Physiotherapist, yes.
Ms Cowdroy: Did you tell the doctor that referred you to the physio that you - - -
Mr Stewart: What happened?
Ms Cowdroy: What had happened in terms of the keg?
Mr Stewart: Yes, I did, yes.
……
Ms Cowdroy: Did you have any time off work? It looks like there is a notation made on folio 6, something like three 7’s which is three days.
Mr Stewart: That’s right.
Ms Cowdroy: I’m not quite sure what they’re saying.
Mr Stewart: Yes, I had three days off after the incident.
Mr Ward: Did you go back to your normal duties after those three days?
Mr Stewart: That’s correct, yes.”
33. In his written statement dated 4 April 2002 (Exhibit A1) the applicant said:
“15.In relation to my neck, I had an incident in August 1982 when a keg which I was stacking, slipped from it’s position and I grabbed the keg, attempted to avoid causing considerable breakage and loss of stock, took the full weight of the keg, fell, and suffered considerable trauma to my shoulders and to my neck at that time.
16.I reported this condition to the base medical officer and arranged for a referral to a doctor at New Castle.
17.It should be noted that the symptoms that appeared at that time of the incident were stiffness which limited my movement of my neck and pain.
18.It should be noted that those symptoms at that time persisted on a continuing basis well in excess of 2 weeks.
19.It should also be noted that even though the immediate symptoms abated after a period of treatment with physiotherapy in a period of 2 weeks that they still came back from time to time.
20.As time went on, the amount of times that these symptoms returned in my neck were more often and were more severe when they returned.
21.There is no doubt in my mind that the conditions of service in relation to shifting this [sic] kegs in confined areas, putting undue strain upon the ligaments of my shoulders and neck were the forerunner of all of my problems in relation to my neck which still is with me today.”
34. The Tribunal is mindful that apart from what might be inferred from the clinical note referred to above, there is no medical or service report about the keg accident described by the applicant. The Tribunal also notes that the applicant, in lodging a report in respect of his claim for cervical spondylosis in February 2000 (T4, folio 18/19 Q01/1117), made no mention of the keg incident in 1982 when describing how his injury occurred.
35. The applicant was not able to explain the discrepancies in his evidence other than to indicate some difficulty in remembering exactly what happened so long ago. He said he was trying to establish what happened as honestly as he could.
36. In respect of the applicant’s psychiatric condition, the applicant said he was not suffering from post traumatic stress disorder (PTSD) at this stage, rather he suffered from chronic anxiety and depression as diagnosed by Dr Mulholland. He said this condition was service-related and in respect of service-related causal connection blamed the repetitive training he was required to undergo to meet the service employment requirements of a steward and to undertake ground defence duties. He also referred to suffering bastardisation and verbal abuse.
37. He told the Tribunal that he hated being a steward. However, this changed when he became a Mess Supervisor at Williamtown in 1984. The Tribunal notes that the applicant was promoted to Corporal and Sergeant and finally Flight Sergeant. He served twenty years in the regular RAAF and then took DFRDB pension in 1986, continuing in the RAAF Reserve for a further ten years. He said he had tried to change his mustering in the RAAF to photographer. However, he had not been successful in carrying out photographic duties until he joined the Reserves, when he also became 25 Squadron Photographer, as well as Mess Supervisor. Apart from working long hours in repetitive work as a Mess/Bar Steward, the applicant said he loved the RAAF and thought he had carried out his duties efficiently and satisfactorily.
38. The applicant, in his written statements, also referred to the trauma he experienced during Cyclone Tracey. In his statement dated 4 April 2002 (Exhibit A1) the applicant said:
“5. I was in Darwin when Cyclone Tracey struck on 24 December 1974.
6.Immediately after Cyclone Tracey which was quite horrendous and was the most traumatic incident of my life, I discovered that we were left with no decent clothing whatsoever as all that I had was a pair of shorts that I was wearing at that time.
7.It should be noted that quite a few of us were being evacuated to the South, but I was left in Darwin and had to continue on it assisting in the clean-up that followed that horrendous event.
8.It should be noted that we were left without any form of protection.
9.We were given the job of cleaning up which we attempted to do and we were working long hours; up to 14 hours in a day.
10.Because of the stress of Cyclone Tracey and the long hours that we were working, I discovered that my smoking habit spiralled upwards very quickly until I was smoking 40 to 50 cigarettes per day.
11.I was not vacated from that area until February 1975.
12.By that time, my smoking habit had been well established at a much higher rate than what it was before Cyclone Tracey and continued on from that until I gave the cigarettes away in 1995.
13.It should be noted that at present I am being treated by Dr Scott Jenkins of Bundaberg who treats me extensively for my depression.
14.There is no doubt in my mind that whatever anxiety state that I suffer from, and my depression kicked in when I was in Cyclone Tracey and in the aftermath thereof.”
39. Instrument No 2 of 2000 relevantly provides:
“Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, anxiety disorder or death from anxiety disorder is connected with the circumstances of a person’s relevant service are:
(a) for generalised anxiety disorder or anxiety disorder not otherwise specified, only
(i) experiencing a severe psychosocial stressor within one year immediately before the clinical onset of anxiety disorder; or
(ii) having a clinically significant psychiatric condition within one year immediately before the clinical onset of anxiety disorder; or
(iii) having a major illness or injury within one year immediately before the clinical onset of anxiety disorder; or
(iv) experiencing a severe psychosocial stressor within one year immediately before the clinical worsening of anxiety disorder; or
(v) having a major illness or injury within one year immediately before the clinical worsening of anxiety disorder; or
(vi) having a clinically significant psychiatric condition within one year immediately before the clinical worsening of anxiety disorder; or
Factors that apply only to material contribution or aggravation
6. Paragraphs 5(a)(iv) to 5(a)(vi) and 5(c) apply only to material contribution to, or aggravation of, anxiety disorder where the person’s anxiety 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.
Other definitions
8. For the purposes of this Statement of Principles:
‘severe psychosocial stressor’ means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
40. Instrument No 59 of 1998 relevantly provides:
“Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, depressive disorder or death from depressive disorder is connected with the circumstances of a person’s relevant service are:
(a)experiencing a severe psychosocial stressor or stressors within the one year immediately before the clinical onset of depressive disorder; or
(b) having a clinically significant psychiatric condition within the one year immediately before the clinical onset of depressive disorder; or
(c) having a major illness or injury within the one year immediately before the clinical onset of depressive disorder; or
…..
(e) experiencing a severe psychosocial stressor or stressors within the one year immediately before the clinical worsening of depressive disorder; or
(f) having a major illness or injury within the one year immediately before the clinical worsening of depressive disorder; or
Other definitions
8. For the purposes of this Statement of Principles:
‘severe psychosocial stressor’ means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
41. In answer to questions in cross-examination the applicant told the Tribunal that he had emotional difficulties in his first marriage until his divorce in 1976. He said he and his first wife were both employed in the Mess, she as a civilian stewardess. After the divorce from his first wife, the applicant remarried in 1977 and his second wife accompanied the applicant at the hearing before the Tribunal. The applicant told the Tribunal that his relationship with his father was “pretty bad”.
42. The Tribunal notes that on 22 March 1976, J Alcock, RAAF Psychologist, interviewed the applicant and reported (Folio 17, Q03/233):
“1. CPL Stewart left his wife 2 months ago and is living in RAAF single quarters at FBN. Although their marital relationship has not been good for several years, CPL Stewart’s wife did not want the separation to occur.
2. CPL Stewart is a steward at BSFBN (Sergeants Mess) and his wife is employed as a civilian stewardess at BSFBN (Officers Mess). This situation, along with the fact that most of their friends and acquaintances are serving members at FBN, along with the knowledge that CPL Stewart left his wife, has produced a difficult social environment for their airman.
3. The gossip about his behaviour and negative attitudes of those he knows is such that CPL Stewart has sought medical assistance and has subsequently been referred to myself.
4. In interview, CPL Stewart was emotionally labile, almost breaking down in tears on several occasions. The stress produced by the domestic situation described above is such that he is in a state of anxiety, is suffering severely from tension headaches and is on the point of an emotional breakdown. Further stress has been added by the demands of his present duties (shift work, extra shifts due to manning shortage and extra responsibility due to absence of NCO IC).
5. His emotional state is such that leave is recommended. (SMO for decision).
6. There is another, just as important, aspect of the psychological health of this member that should be considered. CPL Stewart’s parents live in Riverwood, Sydney. CPL Stewart says that his father is not in good health after having suffered a stroke and having a condition involving hardening of the arteries. At present CPL Stewart is driving to Sydney every second weekend to be with his parents. Stewart believes that his father needs him. Since he left his wife he has come to need his parents for emotional support, especially given the present stress situation he finds himself in at present.
7. The two issues are interdependent. If CPL Stewart is not posted from the Canberra area he will have an emotional breakdown and become non-effective. If he is not posted to the Sydney area where he can give the assistance to his parents that he perceives they need as well as gain the emotional support he needs, then he is just as likely to have severe psychological problems.
8. In my opinion, if CPL Stewart is not posted to the Sydney area as soon as possible his psychological health will suffer to the extent that he will not be capable of efficiently performing his duties.
9. Because of the time required to administratively deal with such a case as this and to preclude the possibility of a nervous breakdown during this time I recommend that CPL Stewart be attached to the Sydney area.”
Medical Evidence
43. Dr SM Jenkins, Psychiatrist, assessed the applicant on 10 January 2001 and provided a written report dated 2 March 2001 (Folio 71-73, Q03/233). Dr Jenkins was of the opinion that the applicant did not have sufficient symptoms for a diagnosis of PTSD and made the following final diagnosis:
“Peter Stewart is a 52 year old man who suffers from DSM IV Major Depression with secondary anxiety. This is probably been of at least 30 years duration. At times his anxiety symptoms predominate where as at times he presents a more depressive picture. He certainly needed treatment for the condition while he was in the Air Force.
He currently requires ongoing treatment with Aurorix as it provides benefit for both his depressive and anxiety symptoms.
In addition to this he has numerous physical conditions which contribute to his ongoing disability.”
44. Dr JN Gibson, Consultant Psychiatrist, examined the applicant and provided a written report dated 5 July 2002 (Folio 81-85, Q03/233). Dr Gibson opined:
“Diagnostically I feel he meets the DSM-IV criteria for post traumatic stress disorder. There also appear to be number of symptoms of comorbid obsessive-compulsive disorder. There is a past history of alcohol abuse, now in remission. The onset of his condition appears to coincide with his experience of Cyclone Tracy. I would regard his past history of alcohol abuse and current symptoms of obsessive-compulsive disorder as a secondary consequence of his post traumatic stress disorder.”
45. Dr P Mulholland, Psychiatrist, interviewed and examined the applicant on 28 May 2003 and provided a written report dated 26 June 2003 (Exhibit R1). In his written report Dr Mulholland opined:
“25.1The features are generally consistent with his having longstanding generalised anxiety disorder and longstanding dysthymic disorder.
25.2Recently there has been a focus on the notion that he has a post-traumatic stress disorder attributable to Cyclone Tracey. Frankly I feel that this is very much an after-the-event misattribution via readily understandable mechanisms of displacement.
25.3I suspect that the real problem is that this veteran has longstanding problems of anxiety and depression which are primarily related to constitutional/early developmental/personality characteristics and whilst there probably would have been some aggravation from the circumstances of Cyclone Tracey, that is not the primary cause.
25.4He has a past history of alcohol abuse which in part could have been related to chronic features of anxiety/depression and also simply a function of exposure and availability. Long term excessive intake of alcohol would in turn have aggravated his emotional state.
25.5This man has also had a lot of ill health over the years and especially recently and this also inevitably aggravates his emotional state.
25.6In summary, whilst this man does have some features of post-traumatic stress disorder and potentially a diagnosis of PTSD could be made, although such a diagnosis I would regard as being distinctly arguable, the real problem is that he has chronic anxiety/depression which for the most part is basically due to constitutional factors.
…..”
46. In his oral evidence Dr Mulholland, in reference to his comments in paragraph 25.3 of his report, said that Cyclone Tracey while being a severe stressor at the time of the cyclone would only have had a temporary effect lasting two or three years and not having any permanent effect. In respect of severe psycho-social stressors (as defined in the relevant SoP) Dr Mulholland said that the applicant’s marriage breakdown and his lung cancer as well as Cyclone Tracey would need to be considered. Dr Mulholland expressed the opinion that the applicant’s anxiety and depression had a clinical onset in the early 1970s.
Respondent’s Submissions
47. In respect of the respondent’s acceptance of the applicant’s claim for lung cancer the Tribunal was referred to Langley v Repatriation Commission (1993) 17 AAR 498 and it was submitted that following that decision the Tribunal must reconsider all of the facts before it and determine whether it was reasonably satisfied that the applicant’s smoking habit was service-related. It was submitted that the respondent’s decision about the applicant’s lung cancer was neither here nor there in respect of the Tribunal’s consideration of the application before it.
48. It was the respondent’s submissions that the Tribunal could not be satisfied that the applicant’s smoking habit was service-related and the respondent drew the Tribunal’s attention to the considerable inconsistencies in the applicant’s evidence and his admission of having altered his evidence in an attempt to bring himself within the statutory provisions.
49. In its scrutiny of the applicant’s evidence about his smoking habit, the Tribunal was referred by the respondent to Briginshaw v Briginshaw (1938) 60 CLR 336, and it was submitted that the Tribunal could not be persuaded that the applicant had a service-related smoking habit.
50. In respect of cervical spondylosis, the respondent submitted that once again the applicant had provided inconsistent evidence about the duration of the symptoms he suffered from the keg incident and that the weight of the evidence before the Tribunal did not support the applicant’s contention that he suffered symptoms and signs of pain, tenderness and either altered mobility or range of movement of the cervical spine for a period of at least ten days following the keg incident.
51. It was submitted that none of the factors listed in paragraph 5 of Instrument No 51 of 2002 (as amended by Instrument No 64 of 2002) existed. Mr Stoner submitted that any accrued right that the applicant had in respect of consideration of his cervical spondylosis pursuant to Instrument No 32 of 1999 did not provide any assistance to the applicant and, indeed, the definition of “trauma to the cervical spine” in Instrument No 32 of 1999 provided a more constrained test than that provided under Instrument No 51 of 2002.
52. It was therefore submitted that the applicant’s cervical spondylosis was not service-caused.
53. In respect of the applicant’s psychiatric condition, it was submitted that the opinions of Dr Mulholland and Dr Jenkins should be preferred to that of Dr Gibson. As such, it was submitted that the applicant is correctly diagnosed as suffering from anxiety and depression and that he has so suffered for some thirty years.
54. It was further submitted that in looking at the issue of “severe psycho-social stressors” that the applicant suffered, clearly his marital breakdown in 1976 could be so categorised. However, it could not be said that this was service-related. Likewise, the applicant’s lung cancer clearly falls within the examples given in the definition, namely “major illness”. However, this occurred well after the clinical onset of his psychiatric condition and therefore did not fit the template of the SoP. Nor is there any evidence to show that there has been a clinical worsening of the applicant’s anxiety disorder subsequent to his suffering lung cancer.
55. In respect of Cyclone Tracey, the respondent in the first instance submitted that as far as the applicant was concerned this was not an event that satisfies the definition of “severe psycho-social stressor” in the relevant SoP and, furthermore, the experience the applicant had at the time Cyclone Tracey struck occurred while he was not rendering service and, therefore, there can be no causal link between any distress suffered by the applicant and his service.
56. In considering this aspect of the case, the respondent referred the Tribunal to Holthouse v Repatriation Commission (1982) 1 RPD 287 and Roncevich v Repatriation Commission (2001) 66 ALD 105.
57. It was submitted that the Tribunal should affirm the respondent’s decision that the applicant does not suffer from defence-caused cervical spondylosis, chronic bronchitis and emphysema and asthma. Furthermore, it was submitted that the Tribunal should affirm the respondent’s decision that the applicant suffers from depressive disorder and that this disorder is not related to his service.
Consideration
58. In this matter the respondent has brought into question the applicant’s credit.
59. The Tribunal is troubled by the significant inconsistencies in the applicant’s evidence about his smoking habit and about the effects of the beer keg incident in the early 1980s.
60. In respect of the applicant’s smoking, the Tribunal accepts the respondent’s account of the various inconsistencies in the applicant’s evidence, as set out in paragraph 20 above.
61. The respondent submitted that the applicant’s evidence about smoking needed to be carefully scrutinised. In so doing, the respondent submitted that the Tribunal should be mindful of what Dixon J said in Briginshaw v Briginshaw (supra):
“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.” [at 361/362]
62. Clearly, the applicant’s evidence was not only inconsistent, but also, on his own evidence, he had changed his evidence to bring his smoking history within the statutory provisions of the relevant SoP and the Tribunal is satisfied that he did this to bolster his claim.
63. The Tribunal accepts that some allowance must be made for the applicant’s memory lapse about historical events. The Tribunal also accepts that the applicant has changed his smoking history after consultation with RSL Advocates. However, the Tribunal is of the view that the applicant’s conduct in changing his smoking questionnaire cannot be excused on either of these grounds, and taking into account all of the material before it about the applicant’s smoking history (and the concessions made by the respondent), the Tribunal is not persuaded that the applicant’s smoking habit did not commence before 1972. The Tribunal is reasonably satisfied that the applicant, in 1966, was smoking 30 cigarettes a day, that he had commenced smoking some time prior to 1966 and that by 1972 his smoking habit was well-established. As such, the Tribunal finds that there is no causal connection between the applicant’s smoking habit and his eligible defence service.
64. In arriving at this finding, the Tribunal is mindful of the respondent’s decision dated 25 March 2002, where the respondent accepted the applicant’s claim, lodged on 6 December 2001, for “squamous cell carcinoma of the lung”.
65. The respondent’s delegate determined that the applicant’s neoplasm of the lung is service-related and in so doing stated:
“The Statement of Principles states that cigarette smoking is a factor contributing to malignant neoplasm of the lung. I am satisfied that Mr Stewart meets this factor and I find that it is causally related to his service. I have therefore decided that malignant neoplasm of the lung is service related.”
66. In respect of the impact of this decision on the Tribunal’s consideration of the applicant’s bronchitis, Mr Stoner submitted that the Tribunal is not bound by the respondent’s decision of 25 March 2002 and that it must reconsider all of the relevant facts before it about the applicant’s smoking habit and form its own view as to whether the applicant’s smoking habit is causally related to his service. It was submitted that the decision of the respondent with respect to lung cancer had no relevance in this matter and, in so submitting, Mr Stoner referred the Tribunal to Langley v Repatriation Commission (supra) where the Full Federal Court expressed the opinion that:
“… there is no prohibition on a decision-maker in considering afresh a new claim for a different condition by reason of an earlier determination.
There is a fundamental difference between the consideration of a fresh claim for a pension in respect of incapacity from an injury or disease that is different from an injury or disease the subject of a prior determination of the Commission, though involving some facts and circumstances common to both the earlier determination and the later claim. Subject to specific statutory provisions enabling it to do so (see s 31 of the Act) the Commission cannot review the earlier determination; but it may consider afresh the facts which underpinned the earlier determination where it is necessary do so, so that it may discharge its statutory function of determining the later claim. The later determination does not affect any entitlement of the veteran arising from the earlier determination.”
67. The Tribunal accepts Mr Stoner’s submission and is satisfied that in considering the question of the cause of the applicant’s bronchitis, it must consider afresh all of the material before it related to the applicant’s smoking habit. In being so satisfied, the Tribunal is mindful that the respondent’s delegate provides no reasons in her decision of 25 March 2002 for a finding that the applicant’s smoking is related to his service.
68. In respect of the applicant’s claim for bronchitis, the Tribunal has also considered the applicant’s evidence of being exposed to aviation fuel fumes, coffee/flour in the kitchen and cigarette haze in the Messes in which he worked. The Tribunal is satisfied that none of these factors fits the template in the relevant SoP.
69. It follows from the above findings that the Tribunal is satisfied that the applicant does not suffer from service-related bronchitis.
70. Turning then to the applicant’s claim for cervical spondylosis. The crucial question in respect of this claim is whether the applicant suffered a trauma to his cervical spine within the 25 years immediately before the clinical onset of cervical spondylosis.
71. In the first instance, accepting that the applicant suffered an accident involving a beer keg in 1982, as he has described, the question is whether this fits the definition of “trauma to the cervical spine” as set out in the relevant SoP. The respondent has submitted that the applicant does not meet the definition in that he did not have symptoms and signs of pain, and tenderness and either altered mobility or a range of movement of the cervical spine for a period of at least 10 days following their onset.
72. Again, the Tribunal is faced with the difficulty of the applicant’s inconsistent evidence.
73. After careful consideration of all of the evidence and all of the material before it, the Tribunal is not persuaded that the applicant meets the statutory definition of “trauma to the cervical spine”. The Tribunal is satisfied that the applicant did not suffer symptoms and signs of pain and tenderness and either altered mobility or range of movement of the cervical spine for a period of at least 10 days following the accident.
74. In respect of the applicant’s claim for cervical spondylosis, the Tribunal has also considered the applicant’s evidence about carrying loads and is satisfied that factor 5(i) does not exist in this case.
75. It follows from these findings that the Tribunal is satisfied that the applicant does not suffer from defence service-caused cervical spondylosis.
76. In respect of the applicant’s psychiatric condition, the Tribunal, after careful consideration of all of the material before it, prefers the diagnostic opinions of Dr Mulholland and Dr Jenkins, namely, that the applicant suffers from anxiety disorder and depression and that he has so suffered for some 30 years; and the Tribunal so finds.
77. The Tribunal accepts Dr Mulholland’s opinion that the applicant suffered severe psycho-social stress, within the meaning of this term, as defined in the relevant SoP, as a result of his marriage breakdown; as a consequence of his lung cancer; and during the evening when Cyclone Tracey struck. The Tribunal is not satisfied, however, that any of the events experienced by the applicant during the day after the night Cyclone Tracey struck, and subsequently, fall within the definition of severe psycho-social stressor.
78. There is no evidence that the applicant’s marriage breakdown is service-related and the Tribunal finds accordingly.
79. In respect of the applicant’s lung cancer, clearly this illness occurred many years after the clinical onset of anxiety or depression and therefore does not fit the template in the SoPs. Nor is there any evidence that the applicant’s anxiety or depression has clinically worsened in recent years.
80. The Tribunal is therefore satisfied that the only factor that needs to be considered in determining the applicant’s claim for a psychiatric condition, is that of Cyclone Tracey on the evening of 24 December 1974.
81. Dr Mulholland has expressed the view that any effect of Cyclone Tracey would be a temporary worsening of the applicant’s condition and would not result in the condition being permanently worse.
82. Putting aside this opinion for the moment, the more relevant issue is whether the event of Cyclone Tracey on the evening of 24 December 1974 and its effects on the applicant can be said to be related to his service.
83. The respondent submitted that although Cyclone Tracey was, at the time it struck Darwin, a traumatic event, it could not be said that the event was one that the applicant experienced in connection with his defence service. In so submitting, the Tribunal was referred to Holthouse v Repatriation Commission (supra) where his Honour Justice Davies held that there is a distinction between matters which are purely personal or private in nature and matters connected with service. In Holthouse the Court was dealing with the provisions of section 107M(2) of the Repatriation Act 1920. In respect of section 70(7) as set out above, the Tribunal was further referred to Roncevich v Repatriation Commission (supra) where von Doussa J, at 110, said:
“[19]. The provisions of s 70(7) are in material respects similar to s 107M(2) of the Repatriation Act 1920 (Cth) considered in Holthouse v Repatriation Commission where Davies J concluded, after a review of relevant authorities, that the provisions of s 107M92) did not abrogate the ordinary principles of causality or dispense with the requirement that the defence service be a contributing cause to the incapacity or death: at 290-1.”
84. In Holthouse Davies J referred to comments made by Denning J as follows:
“The cases show when the cause of the death or disablement lies in the man’s own personal or domestic sphere, and the war service does no more than provide the circumstances in which the cause operated, it is not attributable to war service.”
85. It was submitted by the respondent that at the time Cyclone Tracey struck the applicant was at home and the events he suffered at that time lie within the sphere of his personal life; and his service in the RAAF did no more than provide the circumstances in which the events took place. It therefore could not be attributable to his defence service.
86. The Tribunal is satisfied that the events arising from Cyclone Tracey during the first night of its onset at Darwin occurred while the applicant was engaged in personal affairs and, following the reasoning given above, any effect that these events had on the applicant cannot be said to have arisen out of or been attributable to his defence service. Nor can it be said in respect of the events on the evening when Cyclone Tracey struck that the applicant suffers from a psychiatric condition that would not have been contracted but for his having rendered defence service or but for changes in his environment consequent upon his having rendered such service.
87. The Tribunal is therefore satisfied that the applicant does not suffer from defence-caused anxiety or depression.
88. The Tribunal affirms the decision of the Repatriation Commission that Peter James Stewart’s asthma, chronic bronchitis and cervical spondylosis are not defence-caused within the meaning of section 70 of the Veterans’ Entitlements Act 1986.
89. The Tribunal sets aside the decision under review in respect of PTSD and depressive disorder and in substitution therefor determines that Peter James Stewart suffers from anxiety disorder and depressive disorder and that neither one of these disorders is defence-caused within the meaning of section 70 of the Veterans’ Entitlements Act 1986.
I certify that the 89 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member
Signed: Denise Burton
Administrative AssistantDate/s of Hearing 15 October 2003
Date of Decision 21 November 2003
The Applicant appeared In Person
Counsel for the Respondent Mr J Stoner, Departmental Advocate
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