Street and Repatriation Commission
[2004] AATA 234
•9 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 234
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/479, Q2002/480
VETERANS’ APPEALS DIVISION ) Re MICHAEL ANDREW STREET Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr IR Way, Member Date9 March 2004
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution determines:
(a) that the Applicant’s depressive disorder is related to his defence service; and
(b) that the Applicant’s rate of pension is assessed at the Special Rate with date of effect being 29 February 2001.
................. (Sgd).................
IR Way
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – special rate pension – Applicant suffering from depressive disorder – whether depressive disorder causally related to defence service.
Veterans’ Entitlements Act 1986 ss 24, 70, 120B
Repatriation v Smith (1987) 7 AAR 17
REASONS FOR DECISION
9 March 2004 Mr IR Way, Member 1. This is an application by Michael Street for review of two decisions of the Repatriation Commission.
2. The first decision is dated 19 May 2000 and determined that the Applicant’s pension should be increased to 80% of the general rate. On 18 April 2002 the Veterans’ Review Board (VRB) set the Commission’s decision aside and in substitution determined that the Applicant’s pension be assessed at 100% of the general rate. In so doing the VRB determined that the Applicant was not eligible for payment of pension at the special rate or the intermediate rate.
3. The second decision is dated 8 August 2001 and determined that the Applicant’s depressive disorder was not defence service caused. This decision was affirmed by the VRB on 18 April 2002.
4. In these two matters the Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act1975, as follows:
§ Assessment - Q2002/479 (T1-T6)
§ Entitlement - Q2002/480 (T1-T6)
5. Other documentary evidence before the Tribunal was as follows:
§ Exhibit A1 Statement of Karyn-Lee Street, dated 16 December 2003
§Exhibit A2 Statement of Michael Andrew Street, dated 25 August 2002
§ Exhibit A3 Bundle of Army documents
§ Exhibit A4 Summonsed Documents of Dr Gary Whittaker
§Exhibit A5 Statement of Kerry Graeme Crossingham, dated 13 February 2004
§ Exhibit R1 Report of Dr Malcolm Foxcroft dated, 15 November 2002
§ Exhibit R2 Report of Dr Peter Grant, dated 28 March 2003
§ Exhibit R3 VRB Transcript of Hearing, dated 18 April 2002
§ Exhibit R4 Bundle of Documents relating to Applicant Claim in 1995
6. The Applicant was represented by Mr A Harding, instructed by Gilshenan and Luton and the Respondent was represented by Mr M Smith, a Departmental advocate.
7. The Applicant, the Applicant’s wife, Mr Crossingham, Dr Foxcroft and Dr Grant gave oral evidence. Major (retired RTD) Kirkman, Dr Rees, Ms Crossingham and Dr Whitaker gave evidence by telephone.
8. At the commencement of the proceedings it was agreed by both parties that should the Applicant’s claim for depressive disorder succeed, he would be eligible for payment of pension at the special rate, pursuant to section 24 of the Veterans’ Entitlements Act1986 (“the Act”). In view of this and on all of the material before it the Tribunal accepts that if the Applicant’s depressive disorder is defence service caused, then his level of pension should be increased from 100% of the general rate to the special rate.
9. There is no dispute between the parties that the Applicant suffers from depressive disorder with a clinical onset in January 1995 and in view of this and on the material before it the Tribunal so finds.
10. The Applicant was born on 5 September 1962 and served in the Australian Regular Army from 19 March 1980 to 10 August 1995, this constituting defence service as defined in the Act.
11. The Applicant contends that his condition of depressive disorder is defence caused within the meaning of section 70 of the Act and arose out of or is attributable to the chronic pain he suffers as a result of his defence service caused right leg injuries.
12. The Applicant’s accepted service related disabilities are:
§ Fracture Right Tibia and Fibula
§ Compartmental Syndrome
§ Fusion Right Big Toe
§ Amputation Second and Third Right Toes
§ Localised Osteoarthrosis of the Right Hip
13. His non-service related disability is depressive disorder, the subject of this appeal.
Issues and Legislative Framework
14. The principal issue to be determined in this matter is whether the Applicant’s depressive disorder is causally related to his defence service. The Act relevantly provides as follows:
“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;
…
120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994;
(a)a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
(b)a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
Note 1: Subsection 120(4) is relevant to these claims.
Note 2: For hazardous service and member of the Forces see subsection5Q(1A).
(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.”
15. 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).
16. The Applicant’s relevant claim was lodged in 2001 and the Tribunal is therefore to determine this matter pursuant to section 120B of the Act.
17. Both parties agree and the Tribunal accepts that the relevant Statement of Principles in this matter is Instrument No. 59 of 1998 – Depressive Disorder.
18. This SoP relevantly provides:
“Basis for determining the factors
3. On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that depressive disorder and death from depressive disorder can be related to relevant service rendered by veterans or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, 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
…..
(d)suffering from chronic pain of at least six months duration at the time of the clinical onset of depressive disorder; or
…..
(h)suffering from chronic pain of at least six months duration at the time of the clinical worsening of depressive disorder; or
Factors that apply only to material contribution or aggravation
6. Paragraphs 5(e) to 5(j) apply only to material contribution to, or aggravation of, depressive disorder where the person’s depressive 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:
“chronic pain” means continuous or almost continuous pain, which may or may not be ameliorated by analgesic medication and which is of a level to cause interference with usual work or leisure activities or activities of daily living;
“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;”
Evidence of the Applicant
19. The Applicant provided a written statement (Exhibit A2) and gave oral evidence. Included in his written statement are the following:
“Whilst in the service I had fracture as a result of a sporting injury on my right tibia and fibula which developed as time went on into a very serious leg condition which virtually rendered me incapable of using my right leg properly and leading inextricably to amputations my second, third and fourth right toes.
The same accident also led to osteoarthosis of the right hip and has left me with a legacy of constant pain.
Not only have I got constant pain, but also very much limited in what I can do as a result of the leg.
Those conditions have been accepted by the Department of Veterans’ Affair and are of such a serious disabling nature that 100% disability pension had been granted purely for those conditions alone.
Following the unfortunate accident on the football field which resulted in my breaking my tibia and fibula, I was hospitalised for a period of 3 weeks, followed by a period of convalescence of 15 weeks.
At the end of that time, I was informed to return to full duties on the basis that the leg condition had been corrected.
Contrary to that belief, I was required to walk around on my toes curled under my foot which did not seem right to me.
I complained quite often to the RAP about my toes and requested medical attention and I was quite frustrated with the Army and medical system at that time that ignored the pain and agony and the fact that my toes were curled under my foot, which did not seem natural.”
20. The Tribunal notes that the injury to the Applicant’s leg occurred in June 1982.
21. The Applicant told the Tribunal that he had two operations on his big toe and three on his third toe in the course of the 1980s, including eventual amputation of his third toe and that he had constant pain from his toes, leg and hip; and that “usage of my leg will increase the pain with years”.
22. He said that during his Army service he strived to “get somewhere” and blocked out pain but he could not do this now and the pain was getting worse and worse.
23. In his written statement, the Applicant also commented on the limitations and frustrations he faced with respect to his employment and career prospects in the Army because of his injury.
24. In so far as medication for relief of pain and the difficulties he faced in carrying out daily activities, the Applicant stated:
“I am on 200mls of Tramadol in the morning and 200mls at night which is a slow release pain killer and plus I take 50grams of Tramadol the fast acting one as required.
I normally take the fast moving Tramadol at least once a day.
The only way I can describe the pain in my leg is like as if someone got a hot poker and placed it in and screwed it around.
A lot of the household chores, I have been unable to do ever since the accident such as the mowing of lawn or going around pulling weeds, or doing small jobs around the house which require getting up and down ladders.
Because of the constant pain and agony of the leg I cannot sit in a theatre chair for too long and therefore can’t even accompany my 15 year old daughter to the pictures where she loves to go.
Contrary to what one would believe also walking around in a pool causes constant agony to my leg or my foot and therefore I can’t even go swimming.
When I took my discharge I did have a small handy man business, which did such things as changing light bulbs, small painting jobs, little things such as that.
However it wasn’t long before this led to my being wanted in excess of the 15 hours per week which I was doing.
It was quite clear that I couldn’t hack the 15 hours per week or even half of that time.
On the advice of my counsellor, Ross Phillipson, Psychologist – I had to give it away.
As my service progressed and I became more and more frustrated with the lack of promotional courses, pain and restriction on my leg, increased restrictions on manpower in the Armed Services, I became renowned for my lack of tact when dealing with officers.”
25. The Tribunal notes that the Applicant said he was now taking 300mg of Tramadol twice a day, 50mg quick fix Tramadol as required and at least once a day and Panamax 100mg four to fives times a day and that he no longer took Celebrex as this did not seem to help.
26. In his oral evidence, the Applicant told the Tribunal that he was discharged in the rank of corporal, although he was qualified for promotion to Sergeant and had been offered a corps posting in the Pilbara Regiment.
27. The Applicant was directed to a report from his General Practitioner, Dr Whitaker, dated 30 March 2000. The Doctor reported that the Applicant ceased work in December 1998 because of excessive pain from his right leg and that he was unable to drive for two days if he worked for half-one day. The Applicant agreed to these comments. The Applicant agreed with Dr Colens comment in July 2000 that he experienced pain in his right hip when resting and the pain was constant. The Tribunal notes that Dr Colens at the same time reported that the Applicant’s walking distance without rest was restricted to 50m because of pain and pressure in his right hip. The Applicant told the Tribunal that at this time (mid 2000) he could still do things to a point but was often “stuffed next day”, particularly if he had engaged in any activities. He said he, in effect, stopped doing anything at Christmas time 2000 because even if he still tries to do anything he knows what the consequences will be. He said he finds the situation very frustrating.
28. The Applicant agreed with what was said at T479/49 in answer to the question of the cause or relationship between the difficulties he has in personal relationships and his disability, namely:
“Pain is constant and mobility is greatly reduced, severe pain from interior right hip and from lower right leg. On some mornings pain is so intense I can not get out of bed.”
29. With respect to the effects of pain he now experiences the Applicant said he can not undertake any activities with his daughter, can not go swimming or to the beach, can not use public transport, attend social functions or clubs and hardly every has sex and can not drive a car (although he does drive a van on average twice a week). He said he feels like a hermit and finds his life very limiting, distressing, frustrating and depressing. He tends to break things because of his frustration and said at one time he had ripped off a door at his home.
30. In respect of current treatment, it was the Applicant’s evidence that he was seeing Dr Rees every fortnight after being told by his GP in December 1999 that he was a very angry young man and that it was in his interests to see a psychiatrist. He said that while he had found it difficult to relate to Dr Foxcroft, he gets on “pretty well” with Dr Rees.
31. The Tribunal notes a statement signed by the Applicant on the 14 June 1995 (included in Exhibit R4) where the Applicant states;
“1. During my posting to 7 Sig Regt (EW) I have recently been diagnosed as having Severe Depression and Stress. The cause of this is as follows;
a. Over worked due to shortfalls of manpower due to the down sizing of the Army.
b. Professional advice being over looked and not considered by officers, trade supervisors and the Elements we support,
c. Equipment shortages in which I have tried to deal with in the appropriate manner, but, the right action not being taken by higher authorities to alleviate this shortage, and
d. Further to the equipment shortages it led to the pilfering of other detachments which are set aside and were not allowed to be touched, again my supervisors took no action to alleviate this problem.
2. Because of the above I have had two admissions to the New Farm Clinic for Severe Depression and Stress. I have also had (including the two admissions to New Farm Clinic) 18 weeks off work as I cannot go back to work in the Army or the Civilian Workforce. The other reason why I cannot go back to work is that I still suffer from anxiety attacks, body shakes and dramatic mood swings.
3. As a result of the above I will be medically discharged from the Army.”
32. The Tribunal notes the Applicant was admitted to 1 Military Hospital on 30 January 1995 soon after seeing Dr Foxcroft, Psychiatrist, on 27 January 1995. On admission it was noted that Applicant had problems at work and difficulty since the death of his older brother. He was discharged from hospital on 3 March 1995 with restrictions in duty until 13 March 1995 and no bush or shift work for 60 days.
33. The Applicant was re-admitted to hospital on 10 April 1995 and transferred to New Farm Clinic following a motor vehicle accident that was suspected of being an attempted suicide, although the Applicant could not recall what happened. He was discharged from hospital on 2 May 1995 with the principle diagnosis being major depression and following a period of convalescent leave he was medically discharged on 17 July 1995 because of his severe depression.
34. The Tribunal also notes that prior to psychiatric referral to Dr Foxcroft (27 January 1995) and admission to hospital (30 January 1995) Corporal Street was seen by a medical officer who recorded the following:
“Psychiatric Referral
Major problems since childhood. Aggressive towards family – eg parents and siblings.
Also treated wife/child similarly.
Brother died of brain tumour 1 year ago.
Hates his guts but death broke him up. Was with him when he died.
Since then aggressive at work. Irritable.
Flies off the handle.
Been treating wife & kid ‘like a bastard’.
Exploded at work & ordered to seek counselling.
…..Psychologist last Tuesday. Long session.
Immense relief since then with beginnings of insight.
Admits to having suicide planned & only thing stopping him is the thought of his child. Did not discuss details.
Since counselling sessions – feels lost & mind ‘as if in limbo’. Wife says he’s much calmer.
Impression. Very fit man. Good affect.
Able to express himself clearly.
Seems to be coping well with sudden change of thought.
Likes Army & wants to continue career – difficulty with authority has held him back.
Family early history appalling. Did not discuss great details – seeing Dr Foxcroft this pm.
…..”
35. In cross-examination, the Applicant said it was correct that the distance he could walk in about mid 1995 without needing to rest was 250m and after his second hospital discharge he could mow the lawn (if he took his time) with difficulty.
36. The Applicant was taken to the transcript of the VRB hearing (Exhibit R3) where it is recorded that he said that he did not mention his orthopaedic problems (including pain) to the military doctors for fear of being classed as a malingerer and this could affect his career. The Applicant reinforced this statement to the Tribunal and said he did not want his unit to be made aware of his pain, so kept his mouth shut about it, placing the blame for his problems on pressures and problems at work. He said it was all right in the Army to complain about the workplace and how it was organised, but self related problems such as pain were not mentioned for the reasons he had already explained.
37. In cross-examination the Applicant agreed that the police had forcibly taken him to Royal Brisbane Hospital on the 28 December 1996 after he “trashed our house… terrifying everyone in the house”. He told the Tribunal that as a result of this incident he totally gave up drinking.
38. It was put to the Applicant that the whole focus of the reason for the onset of his depressive disorder in 1995 was the pressure of work.. The Respondent argued it was only some years later that his orthopaedic problems got worse, and it was only now that the Applicant was attributing his psychiatric condition to chronic pain. The Applicant disagreed with this suggestion and said his pain was present whilst he was in the Army.
Evidence of Karyn-Lee Street
39. Mrs Karyn-Lee Street, the Applicant’s wife provided a written statement dated the 16 December 2003 (Exhibit A1) in which she said;
“…..
3. We first met in 1981 and were married on 18 December 1983.
…..
10.Before we were even married there were ongoing procedures and operations that Michael needed to have done associated with his leg.
11. It was quite clear that these put him in quite a bit of pain.
12.I noticed that when he had the plate done in his leg that Michael started to experience quite a bit of pain at that time.
13.It didn’t take me long to realise that Michael was, for all intents and purposes to the outside world, a very stoic person, that is that he never complained outside of the family.
…..
15.I know that he quite often went to the RAP and received pain killers. I remember at one time that he had pins inserted in his toes to try and straighten them, then they expected him to go out bush wearing boots.
16.Michael being Michael, did not complain and tried to wear the boots and go out bush as he had been ordered to do.
17.I was quite surprised and a little upset to find that his feet were covered around the toes, with sores from blistering and undue wearing.
18.To my eyes it looked quite painful and it was clear by Michael’s face that he was putting up again with the pain.
…..
25.There is no doubt also that Michael was quite self conscious of the fact that he had this disability relating to is leg.
26. Before the accident, Michael was quite obviously a very fit person.
27.After the initial accident it became clear to Michael that he could no longer keep himself as fit as he would otherwise.
28.Further it was also clear that the Army was giving him all the rubbish jobs that other people would not want to do because of the fact that he was no longer a fit soldier.
29.About 1987 it was decided because of the way that the leg had developed following all the botched operations that it would be in Michael’s best interests to remove some or part of his toes.
…..
33.There is no doubt in my mind that Michael, even though he does not complain, suffers from pain on a constant basis.
34. Whilst Michael is using the leg it becomes more and more painful.
35.I do not believe that Michael can walk or stand on that leg without the presence of pain.
36.I do not believe that Michael can use his leg, standing on it, and walking unless the pain is increasing at that time.
37.Even though Michael never complains, even to me, there is no doubt in my mind since I have been married to him, I am able to pick up when he is in pain.
38.There is no doubt in my mind also that Michael was both frustrated with the way the Army treated him and is frustrated with the way that his leg is at this stage.
Evidence of Dr Foxcroft
40. Dr Foxcroft, psychiatrist, provided two written reports one dated 12 September 1995 (T480/25-28) and one dated 15 November 2002 (Exhibit R1) and gave oral evidence.
41. In his first written report, Dr Foxcroft relevantly stated;
“…..He had found the work itself increasingly stressful and difficult to perform. He found that equipment shortages exacerbated this work stress. These work related events appeared to have created situation where Corporal Street was increasingly frustrated with work disappointed with his work performance and felt that work was not responding to his problems and needs or to his professional opinions. This appears to have created a psychological state in which he began to develop his depression. He has made a previous attempt to returning to work and this has been a considerable failure resulting in a serious motor vehicle accident and recurrent symptoms of depression and suicidal ideation.
In summary it would appear that employment factors are the major contributing factor to his symptoms of depression and unfortunately his symptoms of depression have proved rather difficult to alleviate. He continues to have symptoms of anxiety and mild to moderate depressive mood, has poor concentration, difficult sleeping, becomes easily agitated and upset. He has had some recurrent suicidal thinking but avoids acting on this by thinking of his family especially his young daughter. He has no other significant stresses in his life at present, his marriage is quite good with no major marital problems with disharmony he has a good relationship with his young daughter and has no other significant stresses in life. Despite this he has ongoing symptoms.
Premorbidly Corporal Street had a personality which although being quite normal was quite typical of many army personnel involving a high degree of self reliance and self control. This perception of self control was important to his self esteem and the loss of this control the development of a major mental illness has been a severe blow to his ego and self esteem. He sees himself as a failure and has been largely unable to come to terms with the fact that he has developed a serious depressive illness. Thus the effects of his stresses that contribute to him developing have continued and appeared to be of a reasonably permanent nature.
The personality factors I referred to should not be regarded as a problem or stressor but would rather be consistent with someone who is a good soldier under normal circumstances and a reliable and trust worthy NCO. Corporal Street did not have any major personality problems or defects but rather the type of person that he is has meant that once he has developed serious illness and loss of his perceived health particularly his mental health he has found this very difficult to recover from. Thus I believe his symptoms are still likely due to employment factors.
At present he requires ongoing treatment with antidepressants and major tranquillisers. He currently takes Prozac 20mg per day and Melleril 50mg at night. Doses of the tranquilliser may vary according to his sleep patterns and level of agitation. He also would require ongoing supportive therapy and cognitive therapy at present Corporal Street is not capable of work. He made some attempts at study at Tafe but has been unable to concentrate in these courses. He finds work and the prospect of work invokes severe anxiety symptoms have been quite slow to respond to treatment.”
42. In his report dated the 21 November 2002 Dr Foxcroft made it abundantly clear that at no time during his examination and treatment of Corporal Street, including examination on his two admissions to hospital by a General Practitioner, is it recorded that the Applicant reported chronic disabling pain. Nor could Dr Foxcroft find any reference to pain in the hospital nursing notes. Dr Foxcroft stated that prior to receiving a letter from the Department (dated the 13 September 2002), with respect to the Applicant suffering from chronic muscular skeletal pain, he had no knowledge that the Applicant reported suffering such pain.
43. In his oral evidence, Dr Foxcroft said that the Applicant was referred to him on 22 January 1995 by the Applicant’s RMO. He had symptoms of a major depressive illness. After the Applicant’s admission to hospital on 31 January 1995, he saw him every two or three days until his discharge from hospital on 3 March 1995. He said that likewise, after the Applicant’s re-admission to hospital on the 10 April 1995, he or his locum saw the Applicant on a regular and frequent basis. Dr Foxcroft said he could not recall the Applicant in person and based his comments on his and hospital’s clinical notes and records. Dr Foxcroft expressed surprise that the Applicant had not raised significant pain with any of the medical staff who were counselling or treating him.
44. In cross-examination Dr Foxcroft agreed that an aetiology generally emerges over time and that when he first saw the Applicant he was distressed and at risk to himself. However, he reiterated that the precipitant event he found was work related and no mention had been made of chronic pain. When asked whether the Army’s attitude to discharge for psychiatric conditions had recently changed, Dr Foxcroft said that compared with the early 1990s the Army was now less tolerant to retaining and reallocating soldiers with psychiatric conditions. He related this to the changed need for readiness and the fact that the Army could no longer afford to retain soldiers at a lower standard.
Evidence of Major Kirkman’s Evidence
45. Major Kirkman (rtd) provided a written statement T480/69 dated 20 March 2001. In this statement Major Kirkman said;
“Corporal Michael Street served in Support Squadron 7th Signal Regiment (EW) during 1993 and 1994. During this period I commanded the above squadron and came to know and respect Corporal Street. He served in the squadron communications troop and was acting troop Sergeant on a number of occasions.
Corporal Street was a motivated and skilled non-commissioned officer with a bright future ahead of him. Corporal Street was instrumental in the reorganisation of the Communications Troop to fit the changing role of the Regiment, and had the ability to produce innovative solutions to new challenges.
Corporal Street broke his leg in June 1982. Subsequently, even though the brake [sic] itself appeared to have healed, Corporal Street had on going problems with the foot of the injured leg. The problem was exacerbated by, I believe, misdiagnosis, which resulted in a number of operations, which not only did not correct the problem but made the situation worse.
In due course Corporal Street was medically downgraded, which virtually ended any hope of continuing in his chosen profession in a military field environment.
During this period physical inability, surgical operations and long periods away from work Corporal Street became very frustrated and depressed. I believe Corporal Street saw his future slipping away and, coupled with his immediate inability to work his frustration and anger increased.
During the period, described above, I witnessed the demise of a professional soldier with great potential. This case resulting from slipshod medical advice and execution, and through no fault of the soldier concerned.”
46. In his evidence by telephone Major Kirkman said he knew the Applicant well.
47. With respect to the Applicant suffering pain, Major Kirkman said the Applicant had trouble walking, required time off and was in obvious pain. He said he had been given a medical briefing on the Applicant’s injuries and ongoing problems by Major McBride and understood the Applicant’s circumstances reasonably well.
48. It was Major Kirman’s evidence that the Applicant did complain to him on a number of occasions when he, as the Applicant’s OC, interviewed the Applicant to see “how he was tracking” and to discuss operational matters that were coming up.
Evidence of Dr Rees
49. Dr G Rees, psychiatrist, provided a written report dated 3 July 2001 (T480/62-72) and gave evidence by telephone.
50. Dr Rees told the Tribunal that he has been regularly treating the Applicant since March 2000 when he was first referred to him by his GP. He stated that:
“On presentation in my rooms Mr Street presented as a man who was very angry, depressed and despondent re his physical state. He described chronic and severe pain which required significant doses of opiate painkilers to allow any movement whatsoever. He noted that the pain in his lower right leg restricted him to one or two hours of any physical activity per day. When he first saw me he told me that ‘most mornings I don’t want to get out of bed’. ‘I only live for my wife and my daughter’.
Other symptoms at this time included suicidal ideation and intermittent suicidal planing, poor motivation, anergia, almost complete anhedonia (lack of enjoyment in any usual activities) and poor concentration.”
51. Dr Rees expressed the opinion that the Applicant had a major depressive disorder (as defined in DSM-IV), with a clinical onset of early 1995. He believed the illness fluctuate between 1995 and 2000, and definitely became clinically worse in early 2000 at which time the Applicant, without question, described suffering from chronic pain. In respect of chronic pain, Dr Rees said that the Applicant had essentially suffered pain from the early 1980s as a result of his right leg injury in 1982 and that this plain fluctuated over subsequent years. The Tribunal notes that during the period 1982 to 1991 the Applicant underwent some ten operations on his right leg including amputation of toes.
52. It was Dr Rees’ opinion that there is a causal link between the Applicant’s psychiatric condition and the chronic pain he suffered because of the service related injury to his right leg. Dr Rees stated that the Applicant suffered from chronic pain for at least six months before the clinical onset of his depressive disorder early in 1995 and for at least six months before the clinical worsening of his depressive disorder in 2000.
53. Dr Rees stated that the Applicant’s psychiatric condition completely precludes him from undertaking any remunerative work.
54. In cross-examination Dr Rees was taken to his report of the Applicant attempting suicide when he was six or seven years old. Dr Rees said that while such an event might, in general, be a harbinger of things to come, children at that age could suffer from mood states which were not pervasive and such mood states did not necessarily point to a predisposition to psychological weakness. Further in cross examination Dr Rees agreed that he had no direct knowledge of the Applicant’s physical state prior to 2000. He said the Applicant was on the same anti-depressant treatment from February 1995 to December 1999 and it was possible that the Applicant was in just as bad a psychological condition back in 1995 as he was in December 1999.
Evidence of Dr Whitaker
55. Dr Whitaker, the Applicant’s GP since 1986, told the Tribunal that he assessed the Applicant as a very stoic person who tried to tough things out and this could explain his lack of complaint about pain. The Doctor’s clinical notes were available (Exhibit A4). Dr Whitaker referred to his note of commencing the Applicant on Panadeine Forte (one every six hours) for pain in March 1998 and progressively increasing his pain medication to the point where the Applicant was now taking 300mg Tramadol twice a day. He said that prior to March 1998 there had been no treatment for any defence caused condition and that between March 1998 and early 1999 there was only limited treatment for defence caused conditions, such under-treatment resulting from the Applicant’s stoicism and army “macho” attitude.
56. With respect to the Applicant’s psychiatric condition Dr Whitaker referred the Tribunal to the records showing that the Applicant underwent a number of counselling sessions with Dr Phillipson (a colleague in the same practice at the time who left the practice at the end of 1998). There is no evidence before the Tribunal from Dr Phillipson. The Tribunal notes that in early 1999 Dr Whitaker records the Applicant as saying that he “feels that counselling is complete”, that the Applicant still required anti-depressants, and that the Applicant was “going for TPI”.
57. It was Dr Whitaker’s evidence that management of the Applicant’s condition through medication became difficult in December 1999 because of brain haemorrhaging and it was at this stage that the Applicant was referred to Dr Rees for treatment.
58. It was put to Dr Whitaker, in cross-examination, that the Applicant’s pain complaints really only accelerated after early 1999 when he decided to claim TPI. Dr Whitaker reaffirmed his earlier comment about the Applicant having a “macho” attitude prior to this and that the Applicant was prepared to give more prominence and acceptance of his pain once he had decided to make a claim for TPI.
Evidence of Dr Grant
59. Dr Grant, the Department’s Senior Medical Officer Compensation, provided a written report dated 28 March 2003 (Exhibit R2) and gave oral evidence.
60. In his written report, after Dr Grant reviewed the Departmental files, service medical records and available medical reports, said he could find nothing which referred to the Applicant suffering chronic pain in 1994/95. He said that while the Applicant underwent some ten operations on his right leg during the period 1982 until early 1990, an Army Medical Board in January 1993 classified him as “fit everywhere”. It was Dr Grant’s opinion that the Applicant’s depressive disorder was not caused or aggravated by chronic pain resulting from his service-related injury. Dr Grant said he thought the Applicant’s situation “is more in keeping with Dr Foxcroft’s view that work-related stress played a role. The history of the time would suggest that Mr Street’s poor work performance related to poor function as a result of an acute exacerbation of chronic depression following the death of his brother.”
Submissions
61. It was submitted on behalf of the Applicant that the Applicant meets factors 5(d) and 5(h) of Instrument No 59 of 1998 (Depressive Disorder) namely:
“(d)suffering from chronic pain of at least six months duration at the time of the clinical onset of depressive disorder; or
…..
(h)suffering from chronic pain of at least six months duration at the time of the clinical worsening of depressive disorder; or”
62. The Tribunal notes that factor 5(h) applies only to material contribution or aggravation.
63. With respect to 5(d), it was submitted that the evidence before the Tribunal showed that the Applicant had a clinical onset of depressive disorder early in 1995. It was further submitted that he suffered chronic pain for at least six months during 1994 because of the service-related injury to his right leg (and the sequelae to this injury). It was contended that the Applicant had had constant pain because of the right leg injury since the time of injury in 1982 and this was corroborated by the Applicant’s wife and Major Kirkman, the Applicant’s OC at the time. It was Mr Harding’s submission that while the evidence of Dr Foxcroft and the military records did not support the Applicant suffering chronic pain at the relevant time, given the Applicant’s stoicism and the military culture of “anti-malingering”, and given his evidence and the evidence of his wife, the Tribunal on balance, would be satisfied that the Applicant meets factor 5(d) and therefore his Depressive Disorder is defence service caused.
64. In the alternative (and Mr Harding submitted this as a strong alternative), it was contended that the medical evidence before the Tribunal clearly showed that the Applicant’s depressive disorder clinically worsened in March 2000 and that prior to this (for at least six months) the Applicant suffered from chronic pain. It was submitted that if the Tribunal was to find that the Applicant did not meet factor 5(d), then, taking into account the SoP requirements in respect of material contribution or aggravation (paragraph 6 of the SoP), factor 5(h) was met. Therefore the Applicant’s depressive disorder would be causally linked to his defence service.
65. Mr M Smith, for the Respondent submitted in his summary that the evidence before the Tribunal does not support the Applicant’s contention that he suffered chronic pain (as defined in the relevant SoP) during the six months prior to the onset of the Applicant’s depressive disorder in January 1995. In so submitting, Mr Smith accepted that it was fairly certain that the Applicant suffers from chronic pain now and this condition commenced early in 1999. As such it was the Respondent’s contention that the Applicant does not satisfy factor 5(d) of Instrument No 59 of 1998. Furthermore, the Respondent submitted that the problems which the Applicant faced in the workplace, at the time of his hospitalisation in 1995, did not amount to severe psychosocial stressors as required by factor 5(a) of the relevant SoP. It was therefore submitted that the Applicant’s depressive disorder did not arise out of his defence service.
66. In respect of factor 5(h), Mr Smith accepted that the Applicant suffered depressive disorder before the end of his service and that the Applicant had suffered from chronic pain in recent years. However, it was submitted for there to be a material contribution or aggravation of his depressive disorder as a result of his chronic pain, the Tribunal must find that there has been a clinical worsening of the Applicant’s depression. In this case the evidence does not support such a finding. It was submitted that although Dr Rees mentioned clinical worsening in his report, he provided no evidence that it actually had worsened and the Applicant was on the same level of medication from 1995 to December 1999. Mr Smith contended that the Applicant’s condition was serious in 1995, he required hospitalisation twice and attempted suicide and it is doubtful that his depressive disorder is substantially worse now than it was then.
Consideration
67. The Tribunal has already found that the Applicant suffers from depressive disorder with the clinical onset in January 1995.
68. The first question before the Tribunal is whether the Applicant’s depressive disorder is related to his relevant defence service because he either experienced a severe psychosocial stressor within the year 1994 or suffered from chronic pain for at least a six month duration, during the second half of 1994.
69. There is no dispute between the parties that the Applicant now suffers from chronic pain, as defined in the relevant SoP, and has done so, at least, from early 1999. In view of this and on the material before it the Tribunal is reasonably satisfied that the Applicant now suffers from chronic pain and has done so from, at the least, January 1999.
70. What is not so clear is whether the Applicant suffered from chronic pain in the latter half of 1994. The Tribunal has been troubled by the lack of any medical records of the Applicant showing that the Applicant complained about chronic pain at this time. The Tribunal accepts that the Army “macho” culture can stand in the way of a soldier complaining about pain. However, Major Kirkman’s evidence was unequivocal that the soldier did complain to him about pain. In the circumstances, the Tribunal is reasonably satisfied that the Applicant’s failure to mention, at the relevant time, his orthopaedic disabilities and any associated pain to medical staff was not because of Army “cultural masking”. The Tribunal is satisfied that the Applicant was not suffering from chronic pain in 1994 or 1995 and so finds.
71. Furthermore the Tribunal, while it accepts that the difficulties the Applicant faced in the workplace because of manpower/equipment shortages could be stressful; the Applicant’s circumstances did not amount to a “severe psychosocial stressor”. The Tribunal therefore finds that the Applicant’s depressive disorder, while contracted during the Applicant’s defence service, did not arise out of his defence service.
72. The question then before the Tribunal, given the above findings, is whether the Applicant suffered a clinical worsening of his depressive disorder and if so when. If the answer to this question is in the affirmative and the date of clinical worsening occurred at or after July 1999, then factor 5(h) of Instrument No 59 of 1998 is satisfied. The Applicant’s depressive disorder can be said to have been materially contributed to or aggravated by his defence service and as such related to this service.
73. Dr Rees, the Applicant’s current treating psychiatrist told the Tribunal that in his opinion the Applicant’s depressive disorder has fluctuated between 1995 and 2000, at times not quite so severe and that his medication during this period was essentially the same. However, just prior to him first seeing the Applicant in March 2000, Dr Rees opined that there had been a definite worsening of the Applicant’s depressive disorder. Dr Rees noted that the Applicant’s ability to work reached the point in 1998 where he was not able to work for more than eight hours per day. The Tribunal notes that in cross-examination Dr Rees agreed that it was possible that the Applicant was just as bad back in 1995 as he was now. Dr Foxcroft, a psychiatrist who saw the Applicant in 1995 was not able to assist the Tribunal in respect to the Applicant’s condition post 1995. Dr Whitaker, the Applicant’s GP since 1986 was not involved directly in counselling the Applicant in respect of his psychiatric condition (while noting that Dr Phillipson had completed counselling in 1998/early 1999).. As such, he was not able to throw any light on the Applicant’s psychiatric condition other than to say that there had been in a downturn in the Applicant’s mood, and difficulties in managing the Applicant’s condition in December 1999.). This was because he could no longer take anti-depressant medication and it had been necessary to refer the Applicant to Dr Rees for treatment.
74. After consideration of all of the material before it the Tribunal, on balance, accepts Dr Rees’s opinion that the Applicant suffered a clinical worsening of his depressive disorder in early 2000. Given the Tribunal’s earlier findings that the Applicant suffered from chronic pain from early 1999, clearly the Applicant satisfies factor 5(h) of Instrument 59 of 1998 and the Tribunal so finds. The Tribunal is satisfied that the Applicant’s depressive disorder is related to his defence service and finds accordingly.
75. The Tribunal sets aside the decision under review and in substitution therefore determines:
(a)the Applicant’s depressive disorder is related to his defence service; and
(b)the Applicant’s rate of pension is assessed at the Special Rate with date of effect being 29 February 2001.
I certify that the 75 preceding paragraphs are a true copy of the reasons for the decision herein of Mr IR Way, Member
Signed: Nicca Grant
AssociateDate/s of Hearing 16 December 2003; 13 February 2004
Date of Decision 9 March 2004Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Gilshenan and Luton
For the Respondent Mr M Smith, Departmental Advocate
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