Taylor and Repatriation Commission

[2008] AATA 318

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 318

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3546

VETERANS' APPEALS DIVISION		)
Re		PETER JOHN TAYLOR

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J G Short (Member)

Date18 April 2008

PlaceAdelaide

Decision The decision of the Repatriation Commission dated 27 September 2006, as affirmed by the Veterans’ Review Board on 10 July 2007, is affirmed.

..............................................

J G SHORT
  (Member)  

CATCHWORDS

VETERANS’ AFFAIRS – veterans’ entitlements – operational service – claim that generalised anxiety disorder was war-caused – consideration of Statements of Principles Instrument No 1 of 2000 and Instrument No 101 of 2007 –  assertion that veteran’s war-caused experience of tinnitus caused his anxiety disorder – decision under review affirmed

Veterans’ Entitlements Act 1986 ss 6, 13, 9, 120(1), 120(3), 196(2)

Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 66 ALD 27
Hardman v Repatriation Commission (2004) 82 ALD 433
Elliott v Repatriation Commission (2002) 73 ALD 377
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Lees v Repatriation Commission (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
RepatriationCommission v Cornelius[2002] FCA 750
Woodward v Repatriation Commission (2003) 75 ALD 420

Statement of Principles Instrument No 1 of 2000
Statement of Principles Instrument No 101 of 2007

REASONS FOR DECISION

18 April 2008     Mr J G Short (Member)  

1.      Mr Peter Taylor served in the Australian Army from 1 July 1965 until 30 June 1967.  He continued to serve with the Army Reserve until 30 June 1970.  Mr Taylor’s period of operational service was from 17 June 1966 until 14 September 1966, serving in Malaysia/Singapore/Borneo.

2.      Mr Taylor served as a field engineer.  He asserted that exposure to the sound of explosions had caused hearing loss and tinnitus and that his tinnitus had, in turn, caused his anxiety disorder.

3.      On 17 August 2000 the respondent (the Commission) accepted anxiety disorder and “hearing difficulties” as war-caused.  In October 2005 the Commission realised that tinnitus had not been formally accepted.  At that time the Commission also considered whether Mr Taylor’s anxiety disorder was relevantly related to service.  By decision dated 27 September 2006, the Commission determined that Mr Taylor’s anxiety disorder was not relevantly related to service.  That decision was affirmed by the Veterans’ Review Board (the VRB) on 10 July 2007.

4.      It was contended before the VRB that Mr Taylor’s anxiety disorder could be related to his service either through the experience of severe psychosocial stressors during his service, which in this case involved the use of explosives and on narrowly avoiding serious injury while Mr Taylor performed his duties.  It was also contended that Mr Taylor’s anxiety experience could have been caused by his tinnitus.  The suggestion was that Mr Taylor’s tinnitus could be considered a major illness or injury experienced within two years immediately before the clinical onset of anxiety disorder.

5.      It is appropriate that this Tribunal consider Mr Taylor’s claim in the light of the Statement of Principles (“SoP”) which is more beneficial to Mr Taylor and which either existed at the time of the decision or subsequently, but prior to this Tribunal’s determination.  At the time of the Commission’s determination, Instrument No 1 of 2000 existed and the relevant factor suggested in this case is factor 5(a)(iv):

“(iv)having a major illness or injury within the two years immediately before the clinical onset of anxiety disorder;”

A “major illness or injury” is defined in paragraph 8 of the SoP as:

“… a disease or injury that is life-threatening or seriously disabling;”

6.      Instrument No 101 of 2007, factor 6(a)(vii) refers to:

“(vii)having a medical illness or injury which is life-threatening or which results in serious physical or cognitive disability, within the five years before the clinical onset of anxiety disorder;”

7.      In this case it was conceded that Mr Taylor’s experience of tinnitus was not life-threatening.  Instrument No 101 of 2007 is confined to two types of disability, that is physical or cognitive.  It is considered by this Tribunal that the earlier SoP, which contains the wider concept of “seriously disabling”, is more favourable to the applicant.  The Tribunal has noted that the more recent SoP requires that the illness or injury exists within five years before the clinical onset of anxiety disorder whereas the earlier SoP requires that the major illness or injury exist within two years before the clinical onset of anxiety disorder.  In the particular circumstances of this case the Tribunal considers that Instrument No 1 of 2000 is more favourable to the applicant.  In any event the Tribunal would be satisfied, beyond reasonable doubt, that factor 6(a)(vii) of Instrument No 101 of 2007 is not matched by the circumstances of this case and that none of the other factors listed in that SoP exist in this case.

8.      It was common ground that Mr Taylor’s experience of tinnitus was war-caused.  Mr Taylor contended that it was his tinnitus which caused his anxiety disorder.  It was contended that factor 5(a)(iv) of Instrument No 1 of 2000 is satisfied.  This factor reads as follows:

“(iv)having a major illness or injury within the two years immediately before the clinical onset of anxiety disorder;”

9.      The applicant, while eventually suggesting that the clinical onset of anxiety disorder was in or about June 2004, nevertheless left it for the Tribunal to also consider whether factor 5(a)(ii) existed in this case.  This factor reads as follows:

“(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder;”

10.     In relation to this last mentioned factor, it appeared to have been conceded by the Commission that Mr Taylor experienced a severe psychosocial stressor during his war service and that this factor may be satisfied if the clinical onset of Mr Taylor’s anxiety disorder was within two years of experiencing this stressor (five years for factors 6(a)(ii) and 6(a)(iii) of Instrument No 101 of 2007).

11.     The Tribunal notes that anxiety disorder was first diagnosed in the report provided by psychiatrist Dr Martin Ewer on 6 June 2000.  In the light of this and the other evidence, the Tribunal is satisfied, beyond reasonable doubt, that the clinical onset of anxiety disorder did not occur within five years of Mr Taylor’s eligible service and consequently factor 5(a)(ii) of Instrument No 1 of 2000 or factor 6(a)(ii) or 6(a)(iii) of Instrument No 101 of 2007, cannot be satisfied.

issue before the tribunal

12.     The issue suggested to the Tribunal was whether, in terms of Instrument No 1 of 2000, Mr Taylor’s experience of tinnitus was, within the two years immediately before the clinical onset of anxiety disorder, of such a level as to be considered a major illness or injury so as to satisfy factor 5(a)(iv).

legislative background

13. Section 9 of the Veterans’ Entitlements Act 1986 (the VE Act) provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:

“9 War-caused injuries or diseases

(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …”

14. Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.

15. As Mr Taylor has performed operational service, as defined in s 6 of the VE Act, the determination of whether any asserted conditions are war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those sections provide relevantly as follows:

“120 Standard of proof

(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

Note: This subsection is affected by section 120A.

…

(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a)       that the injury was a war-caused injury or a defence-caused injury;

(b)that the disease was a war-caused disease or a defence-caused disease; or

(c)       that the death was war-caused or defence-caused;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

Note: This subsection is affected by section 120A.”

consideration

16. The claimed condition of anxiety disorder is the subject of SoPs. I have set out the relevant provisions of the SoPs. I note that where a SoP exists I must apply the test prescribed by s 120A(3) of the VE Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 in the following way:

“1 The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.  No question of fact finding arises at this stage.  If no such hypothesis arises, the application must fail.

2 If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3 If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one.  It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP.  The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)).  If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.  If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.

4 The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury.  If not so satisfied, the claim must succeed.  If the Tribunal is so satisfied, the claim must fail.  It is only at this stage of the process that the Tribunal will be required to find facts from the material before it.  In so doing, no question of onus of proof or the application of any presumption will be involved.”

17.     In considering whether there is an hypothesis connecting Mr Taylor’s condition with his war service, and in applying the relevant Deledio steps to that end, I must consider all of the material before me, whether or not that material supports the hypothesis, as required by such cases as Bull v Repatriation Commission (2001) 66 ALD 27 at [21], the decision of Hill J in Hardman v Repatriation Commission (2004) 82 ALD 433 at [39] to [41], and Elliott v Repatriation Commission (2002) 73 ALD 377. In the last of these cases Stone J, at [25], likened the decision-maker’s task to striking out a statement of claim as failing to disclose a cause of action, where no consideration is given to whether the facts pleaded can be substantiated.

18.     An hypothesis that (once again, after taking into account all of the material before me) could be said to be “obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous” would not be reasonable and would not point to the relevant connection with the veteran’s service (see Bull (supra) at [18], where Emmett and Allsop JJ explained the significance in this regard of East v Repatriation Commission (1987) 16 FCR 517). I refer also to Repatriation Commission v Bey (1997) 79 FCR 364 where in their joint judgment, Northrop, Sundberg, Marshall and Merkell JJ said in effect (at pages 372.9 to 373.1) that a “reasonable hypothesis” involves more than a mere possibility, and is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities.

19.     As regards the first step in Deledio, I am satisfied that Mr Taylor suffers from generalised anxiety disorder and that the material before me points to a hypothesis connecting that condition with Mr Taylor’s operational service. That hypothesis is that Mr Taylor’s tinnitus experience was, within two years (for Instrument No 1 of 2000), or five years (for Instrument No 101 of 2007), prior to the clinical onset of anxiety disorder, of such a nature as to satisfy the definition of a major illness or injury. That is, that it was life-threatening or seriously disabling. As mentioned, SoPs have been determined by the Repatriation Medical Authority pursuant to s 196(2) of the VE Act in respect of anxiety disorder. I consider that the SoP which the Tribunal should consider and which is most beneficial to the veteran is instrument No 1 of 2000. Step two is established.

20.     I now turn to the third step as enunciated in Deledio.  This entails determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoPs.  This step involves considering all of the material before me, but without making any findings of fact at this stage of the process. 

21.     Under clause 4 of the SoP, at least one of the factors set out in clause 5 must be related to the relevant service (being in this case operational service) by the veteran.  Clause (iv) then relevantly provides as follows:

“(iv) having a major illness or injury within the two years immediately before the clinical onset of anxiety disorder;”

As mentioned, a “major illness or injury” is defined as meaning:

“… a disease or injury that is life-threatening or seriously disabling;”

22.     The meaning of “clinical onset” was considered by the Full Court of the Federal Court in Lees v Repatriation Commission (2002) 125 FCR 331. The Court referred to the analysis of the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668, in which Senior Member Dwyer concluded (at 670) that:

“... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.”

That analysis was specifically endorsed by Branson J in RepatriationCommission v Cornelius[2002] FCA 750.   It was contended in final address by the applicant that the clinical onset of the veteran’s generalised anxiety disorder was at or about the time he ceased employment as a psychiatric nurse, that is, in or about June 2004.  Evidence dealing with the clinical onset of anxiety disorder was provided by psychiatrist Dr Ewer.  In his report dated 20 April 2007 (T45/170), Dr Ewer indicated that if the clinical onset of generalised anxiety disorder meant the first time Mr Taylor reported sufficient symptoms of the disorder so that he could be diagnosed as suffering from generalised anxiety disorder, then, based on the current information, that would have been some time later than two years after being subjected to stressors during his operational service.  The Tribunal notes that the first time Mr Taylor was diagnosed with generalised anxiety disorder was in the report provided by Dr Ewer dated 6 June 2000.  The Tribunal considers that the material, considered as a whole, does not point to the clinical onset of generalised anxiety disorder at any time prior to June 2000.  In order to satisfy factor 5(a)(iv) of Instrument No 1 of 2000, the material must point to an experience of tinnitus within two years (or at most five years for the more recent SoP), reaching a level at which it could be considered a major illness or injury, that is one which is life-threatening or seriously disabling.  It was conceded that the veteran’s experience of tinnitus was not life-threatening.  The Tribunal considered whether there was material before it which pointed to this condition being seriously disabling at some time prior to the clinical onset of anxiety disorder.

23.     Mr Taylor’s evidence was that tinnitus began to become significantly worse over the last 16 years, that is from about 1992.  He said that if his current symptoms rated ten out of ten in severity, then in 1992 they may have approximated four out of ten.  The material before the Tribunal includes a report completed by Mr Taylor in November 2004 (T17/72).  In that report, Mr Taylor has ticked a box indicating that his tinnitus experience at that time was:

“very severe tinnitus, present every day, causing distraction, loss of concentration and extreme discomfort, and regularly interfering with sleep.”

24.     This of course was more than four years after Mr Taylor had been diagnosed with generalised anxiety disorder.  A further tinnitus survey which appears to have been completed by Mr Taylor or at his direction in about July 2000 when he was referred for an audiogram, indicates a tick in a box indicating:

“tinnitus every day, but tolerable for much of the time.”

In addition, two characteristics are circled.  They are “causing distraction” and “regularly interfering with sleep."

25.     A report of ENT specialist Dr Paul Clark dated 11 May 2000 (T35/143) refers to:

“… a constant bilateral tinnitus for about ten years and it is particularly noticeable in quite [sic] situations although it does not disturb his sleep to any extent. …”

This report goes on to say:

“… The degree and configuration of the deafness is such that a hearing aid at the moment is not required, the deafness will be causing the tinnitus and Mr Taylor seems to be coping well with this. …”

26.     The Tribunal has considered it appropriate, in line with the decision of the full Federal Court in Woodward v Repatriation Commission (2003) 75 ALD 420 to consider the ordinary meaning of the words “serious” and “disability”.  The New Shorter Oxford English Dictionary defines “disability” as “1. Lack of ability (to do something); inability, incapacity. … 3. An instance of lacking ability; … a physical or mental condition … that limits a person’s activities or senses, esp. the ability to work.”  “Serious” is defined in that same source to include “… 3. important, grave; having (potentially) important, esp. undesired, consequences; giving cause for concern; of significant degree or amount, worthy of consideration; … high.”  Having regard to the ordinary meaning of those terms, the Tribunal does not consider that the material points to an experience of tinnitus, prior to the clinical onset of generalised anxiety disorder, which could be considered “seriously disabling”.  Even in relation to his current experience of tinnitus, Mr Taylor did not describe any serious disabilities flowing from that condition.  Rather he spoke of difficulties which appeared to be the result of his generalised anxiety disorder.  The Tribunal does not consider that Mr Taylor’s use of a radio as a masking device to help him get to sleep, satisfies the commonly accepted notion of being severely disabled.  While Dr Ewer, in his report of 6 June 2000,  referred to tinnitus as being a significant and disabling illness:

“… which is well recognized as causing psychiatric problems.  Indeed some people are so distressed by it that they become suicidal.  Consequently I believe this can be considered a ‘major illness’ which has caused Mr Taylor’s anxiety. …”

Dr Ewer did not specifically describe Mr Taylor’s experience of tinnitus.  He was clearly speaking of tinnitus per se.  Tinnitus can of course vary from mild intermittent symptoms to much more extreme symptoms.  The Tribunal is satisfied, having regard to all of the material, that the material does not point to an experience of tinnitus by Mr Taylor of such a degree as to be capable of being considered “seriously disabling or life-threatening” within two years or even five years, of the onset of generalised anxiety disorder.  Step three of Deledio is not established.

27.     If the Tribunal was wrong in its determination under step three of Deledio, it would be satisfied, in considering step four, that in the light of the evidence provided by Mr Taylor describing his condition together with that of the ENT specialist Dr Paul Clark, that Mr Taylor’s experience of tinnitus, prior to about 2000 (the clinical onset of generalised anxiety disorder) did not reach a level of severity which was capable of being considered severely disabling or life-threatening.  For these reasons the application would fail at step four in any event.

28. The Tribunal would make this finding, bearing in mind the provisions of s 120(1) of the VE Act, to the effect that the claim will succeed unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the incapacity in question was war-caused.

29.     For the above reasons, the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the condition of generalised anxiety disorder is related to Mr Taylor’s operational service.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short

Signed:         .....................................................................................
  Associate

Date of Hearing  6 March 2008
Date of Decision  18 April 2008
Solicitor for the Applicant           Mr C Swan (Swan Lawyers)
Advocate for the Respondent   Mr A Crowe (DVA)