Tirris and Repatriation Commission (Veterans’ entitlements)

[2016] AATA 272

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2015/1167
Veterans' Appeals Division  )

Re: Peter Tirris
Applicant

And: Repatriation Commission
Respondent

CORRIGENDUM

TRIBUNAL:              Deputy President Bernard McCabe

DATE:   3 May 2016

PLACE:                    Brisbane

The Tribunal DIRECTS the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application:

1.Remove the words ‘2 November 2015’ from the dates of hearing.

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Deputy President

Tirris and Repatriation Commission (Veterans’ entitlements) [2016] AATA 272 (29 April 2016)

Division	VETERANS' APPEALS DIVISION
File Number	2015/1167
Re	Petros Tirris
APPLICANT
And	Repatriation Commission
RESPONDENT

Decision

Tribunal	Deputy President Bernard McCabe Dr M Sullivan, Member
Date	29 April 2016
Place	Brisbane

The decision under review is set aside and the Tribunal finds the applicant's depressive disorder is defence-caused. The Tribunal remits the matter to the respondent for reconsideration of the applicable rate of pension.

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Deputy President Bernard McCabe

Catchwords

VETERANS’ AFFAIRS – whether depressive disorder is defenced-caused – whether incidents occurring during service contributed to major depression -  whether chronic pain contributed to chronic depression – decision under review set aside and remitted to the respondent

Legislation

Statement of Principles concerning depressive disorder No 28 of 2008

Statement of Principles concerning depressive disorder No 84 of 2015

REASONS FOR DECISION

Deputy President Bernard McCabe

Dr M Sullivan, Member

29 April 2016

1. Mr Petros Tirris served in the Royal Australian Air Force (RAAF) between 1983 and 2005. He now experiences a number of health problems that he attributes to his defence service. The Repatriation Commission has accepted liability for cervical spondylosis, rotator cuff syndrome in the right shoulder, lumbar spondylosis and hearing problems. On that basis, Mr Tirris received a pension paid at 80% of the general rate. But Mr Tirris has a number of other conditions, including depressive disorder, chronic pain, obesity, hypercholesterolaemia and ischaemic heart disease. In order to satisfy the requirements in s 24 of the Veterans’ Entitlements Act 1986 (Cth), the applicant needs to establish he is incapable of work as a consequence of his defence-related conditions on their own. The depressive disorder in particular is likely to be a factor in his reduced work capacity.

2. We are satisfied the applicant’s depressive disorder is connected with the circumstances of his service. We explain our reasons for that conclusion below.

   What happened?

3. Mr Tirris joined the RAAF in 1983. He worked principally as an electronic technician. He spent a significant amount of time at Tindal, in the Northern Territory, although he also served at Richmond, near Sydney, and at Butterworth in Malaysia.

4. The applicant referred to a number of incidents that took place in the course of his service. He referred to a number of incidents in the material filed before the hearing. Those references were generally not detailed: see, for example, his statutory declaration dated 14 May 2015. His evidence at the hearing tended to focus on a smaller number of incidents. Those included two bicycle accidents that occurred while Mr Tirris was stationed at Tindal and a motor vehicle accident that occurred while he was stationed at Richmond.

5. At the hearing, Mr Tirris recalled the first accident occurred on or about 12 May 1998 when he was riding his bike to work. Mr Tirris said he was a keen cyclist at the time and rode his racing bike to and from the base – a round trip of approximately 36 kilometres each day. (He said he also undertook three 40 kilometre rides each week as part of a triathlon training program.) On the morning in question, it was still dark and Mr Tirris was cycling along one of the back roads between the base and his home in Katherine. He estimated he was travelling at 49 km/h. He said he noticed a dark shape emerge from the gloom. He thought it was a kangaroo but conceded it might have been a buffalo. He collided with the shape and was thrown from the bike. He said he clearly remembered going up in the air but then he lost consciousness and woke up on the tarmac. He said he sustained an injury to his right shoulder and left knee, with abrasions to the right knee. He also said he hurt his lower back and elbows. Mr Tirris said he made it to the base several hours later and sought medical assistance. He recalled he did not receive adequate treatment from medical staff in the immediate aftermath of the accident.

6. The applicant said in his oral evidence that he experienced ongoing pain following the accident, although he also said he continued to exercise. He said he took regular pain-relief medication (Panadol, and occasionally Panadeine forte) after long bike rides or sessions in the gym, for example. He said his shoulder injury made it difficult for him to complete at least one aspect of his fitness test.

7. Mr Tirris said the second accident also involved a kangaroo colliding with him as he rode his bike on a track. He recalled that incident occurred in 2000 or 2001. He said he aggravated his knee injury, twisted his ankle and re-injured his lower back and right shoulder.

8. The applicant was posted to Richmond in 2003. He was involved in a car accident on a work trip during the course of that year. His vehicle was struck from behind with sufficient force to propel his vehicle into the rear of the vehicle in front. In his statement dated 14 May 2015, he said he was “left….with permanent injuries to my back, knees an[k]les and neck”.

9. Mr Tirris also described a range of stressors that arose during his service. Some of them are difficult to verify: for example, he claims he uncovered evidence of a pornography ring at Tindal that was brought to the attention of his superiors and the police in 1998. He claimed he was threatened with disciplinary action by his superiors in relation to that incident because he should not have approached the civilian authorities. He said word got out that he had made a report and he was thereafter subject to reprisals. He claimed he was ostracised by other personnel. He also claimed he witnessed two motorbike accidents in Butterworth in the early part of his service. In one of those accidents, he said the bike rider was decapitated and in the other he saw passengers killed.

10. As it happens, we do not need to reach a concluded view about what occurred in Malaysia. There is no reason to doubt the applicant’s evidence that he was injured in the course of two bicycle accidents and a motor vehicle accident. We also have no reason to doubt the applicant’s evidence that he experienced a high degree of conflict in the workplace. During the course of his oral evidence, he referred to conflict with at least one of the NCO’s conducting his fitness assessments, with other medical staff, with senior officers and other colleagues. He said he was ostracised – because he was a whistle blower who reported bad behaviour when he saw it in a variety of different workplaces, because of his ethnicity and, importantly for present purposes, because he came to experience significant difficulty in meeting the fitness requirements as he became obese. Mr Tirris appears to have had long-term issues with his weight, and we note his evidence that he was exercising at a high level in 1998 at the time he had his first bike accident. We also note there is evidence that tends to corroborate his claim that he was the focus of agitation from his co-workers about his failure to meet fitness standards: see exhibit one at p 17.

    The medical evidence

11. Mr Tirris’ claim that his major depression is service-related is supported by his treating psychiatrist, Dr Tom Hogan. Dr Hogan prepared reports on Mr Tirris dated 6 May 2011 and 30 September 2014. He also gave oral evidence at the hearing. He said Mr Tirris had suffered both psychological and physical problems whilst serving in the RAAF.

12. The medical records show Mr Tirris initially attended a community psychiatric clinic after his discharge from the RAAF but he was not seen by a psychiatrist nor was he prescribed any anti-depressant medication. The applicant’s general practitioner subsequently referred him to Dr Hogan.  In his report dated 6 May 2011, Dr Hogan said that he made a diagnosis of major depression and was treating Mr Tirris with antidepressant medication. Dr Hogan wrote in that report (at p 32 of exhibit one):

    …he fulfils the criteria of this condition and has had this condition for at least 2-3 years prior to leaving the Force in 2005…

13. Dr Hogan explained (at pp 37 and 38 of exhibit one):

    Mr Tirris has many of the criteria needed to obtain a diagnosis of Major Depression. He has depressed mood and irritable mood. He has neuro-vegetative features in the form of altered appetite, decreased energy, poor sleep and he has prominent cognitive symptoms in the form of difficulty of concentration, disorganisation and forgetfulness etc. He has told me that these symptoms commenced when he was in service in the RAAF. He described a number of incidents that were by their nature very stressful, but which also led to estrangement and stigmatisation by other members of the Air Force. He describes feeling increasingly isolated and he at that stage began to drink alcohol heavily and smoke cigarettes heavily. This was the start of his weight gain and this weight gain continued over many years.

    In many ways the two conditions of Obesity and Major Depression accentuated each other. It is not uncommon for people with Major Depression to become obese. It is also not uncommon for obese patients to become depressed. If depression is present, Obesity certainly extenuates the difficulties due to the problems of decreased energy, decreased mobility, obstructive sleep, apnoea (sic) etc.

14. On the question of causation, Dr Hogan suggested in his first report:

    The issue of causation of his illness is complex. The depression has been present for many years. The depression did start whilst he was in the service and appeared to start around about the time of very stressful issues as I have outlined above. He has never had any active treatment whilst in the service and stated that this was because of the stigmatisation that the depression at that stage had whilst serving in the Armed Force…

    And at p 39:

    As I have outlined above, I do believe there is a link between his period of military Service and the development of his depression.

15. Dr Hogan wrote another report on Mr Tirris dated 30 September 2014. In that report Dr Hogan refers to a decision dated 18 July 2011 wherein the Department of Veterans’ Affairs decided Mr Tirris’ depressive disorder was not related to service. Dr Hogan commented:

    I have read the various Statements of Principles pertinent to his case. These include:

    ·     Morbid Obesity

    ·     Depressive Disorder

    ·     Ischaemic Heart Disease

    In looking at Mr Tirris’ case, I believe that he does suffer from a Major Depression and his illness does fulfil the Statement of Principles necessary to fulfil the criteria for Veterans Affairs requirements. In particular, page 3 of Instrument No. 28 (for Major Depression), he does fulfil five or more of the symptoms necessary to fulfil a diagnosis…

    As well as these, he also fulfils the criteria for B, C, D and E sections in the Statement of Principles on page 4, Instrument No. 28.

16. In oral evidence, Dr Hogan recounted Mr Tirris’ history of being ostracised by other service personnel in his workplace and felt these experiences were pertinent to, but not solely responsible for, him developing major depression. Dr Hogan was confident that Mr Tirris was a credible historian although we have been unable to verify all of the incidents that were said to result in tension.

17. In his report, Dr Hogan also draws attention to the two accidents Mr Tirris witnessed whilst he was at Butterworth Air Force Base and were part of what Dr Hogan regarded as historical stressors for Mr Tirris. When Dr Hogan gave oral evidence at the hearing, he indicated he thought Mr Tirris had suffered from “a drip feed of stressors both psychological and physical to produce major depression.” He felt Mr Tirris had an accurate memory with reference to his history and gave us an example of Mr Tirris’ map of the Butterworth Base in Malaysia when he was describing the fatal motor scooter accident outside the Base.

18. As well as psychosocial factors being important in the etiology of Mr Tirris’ major depression, Dr Hogan said physical pain made a strong contribution. In oral evidence, Dr Hogan said pain and obesity were very commonly found in the same patient and Mr Tirris was an example of a patient who had suffered the detrimental effect of obesity and major depression. Dr Hogan explained that as weight increased sleep apnoea was highly likely. Airway obstruction then occurs depriving the brain of oxygen which increases the risk of major depression and decreases pain tolerance.

19. Dr Hogan said he thought the chronic pain Mr Tirris had suffered due to his two bicycle accidents and the motor vehicle accident contributed significantly to his major depression. He noted that when Mr Tirris first consulted him he was on Oxycontin daily and Paracetamol and Codeine Phosphate for pain. Dr Hogan also stated at the hearing that “pain is a potent cause of depression and depression can be a cause of more pain”. He drew a strong connection between Mr Tirris’ pain history and his escalating weight.

20. Mr Tirris was able to provide evidence in support of his claim that he experienced a long history of pain throughout his time in the Defence Force. In his Service Medical Record it is noted on 11 August 2003 (at p 119 of exhibit two) that he was seen for neck pain and right shoulder pain. The author of the note observed: “Currently taking Panadol for pain with minimal effect”. The notes confirmed he was seen again the following week for neck pain. Of particular interest is an entry in the Service Medical Record (at p 116) on 8 September 2003 noting Mr Tirris was suffering from “(i) tension headaches (ii) obesity and (iii) ?depression” and was prescribed Endep (Amitriptyline) 20mg at night. Endep is a tricyclic antidepressant sometimes prescribed for chronic pain.

21. In his Service Medical Records outpatient clinical record (at p 81, exhibit two) there is an entry on 1 April 2005 noting:

    … presents to OPD [complaining] of 1) Back spinal pain 2) R [right] 5^th finger and footwear issues - painful right foot...

    1. Previous injury approx 18 months ago, seen by physio pain on/off for last 18 months, unrelieved 1/7 presented to sick parade, restricted ROM, R [right] sided clavicle/thoracic area, relieved by stretching/hot showers - unable to relieve at this stage.

22. In his Member’s Health Statement (at p 13 of the exhibit two):

    I have in the pasted (sic) combated pain (from my injuries) with eating, triggering my weight problem. 3 CSH Physiotherapy Section, HPP and Mrs Lockey (Dietitian) have help (sic) me to take control in loosing (sic) weight and overcoming the pain through exercise and stretching. I have daily consulted with 386ECSS PTI’s in the progress of the exercise program provided by them. Resulting in positive strengthening of my hip, lower back and shoulder. Although weight loss and passing the PFT is still my primary goal.

23. In the Discharge Health Statement of July 2005, the applicant also noted constant pain from his lower back ranging from “mild to crippling” as well as constant pain in the right hip and acute pain in the right shoulder and right elbow: exhibit one at p 90.

24. On 7 June 2005 - just prior to discharge - a physiotherapist assessment noted:

    Sgt Tirris presented to physio with an acute thoracic spine, joint + muscle dysfunction. Petros was treated twice… 5/04 + 8/04/05 Rx included stretches, joint mobilisation, massage and heat.

25. The records are not entirely consistent, to be sure: Mr Williams, for the Commission, pointed out most of the interactions recorded in the medical records in 2002 seemed to relate to the applicant’s weight, which was becoming a more serious issue. But even in some of those reports, the focus on obesity is accompanied by references to chronic pain that complicated the applicant’s exercise program: see, for example, the physiotherapist’s report dated 20 May 2002.

26. The records referring to ongoing pain are contemporaneous with other records reflecting concern about the applicant’s weight issues.  Medical records show that whilst he always had trouble being overweight (for example his weight in January 1998 was 96kg) he started to put on weight after his bike accident on 12 May 1998. His medical notes record that by October 1998 his weight had increased to 105kg although there was some weight loss by November 2000. Mr Tirris’ weight did seem to significantly increase until 2005 when his discharge weight was 127.5kg, meaning he had a BMI of 43. Some of the medical records exhibit a sense of exasperation at Mr Tirris’ progress, and hint at the pressure that was being applied – including pressure exerted by the applicant’s workmates. For example, a Workplace Disability report ([3] at p 17 of exhibit one, dated 22 June 2004) notes:

    “As previously stated, the appearance of SGT Tirris has not changed in the eighteen months he has been on strength at 1CCS. It is also obvious that his condition did not happen “overnight” and as such he has not complied with Air Force employment and deployability standards for some time. This has a detrimental effect for Squadron management when they have to apply standards across the workforce, with many members working hard to maintain their own physical condition. It has been stated by troops on a number of occasions in reference to SGT Tirris - “why should the RAAF have standards if they can’t enforce them”.

27. In his Medical Employment Classification Review Record dated 4 December 2003 from his Service Medical Records (at p 27 of exhibit two), for example, the author notes:

    SGT Tirris initially underwent a UMECR to effect MEC 303 on 21 May 2003. The member has variously been referred to the PTIs for a remedial PT/weight loss program, seen the HPP cell at 3CSH for dietary advice and also been referred to a dietician. In addition, he was trialled on Xenical.

    Despite the use of a multidisciplinary approach the members BMI has increased from 37.4 to 41.0 over a twelve month interval. The member has intimated that he intends to discharge in the latter half of 2004.

28. Interestingly, this report also states that the date of onset for obesity is 20 May 2003, although we note the applicant struggled with his weight for some time before that. The report confirms that in or about 2003 Mr Tirris’ weight continued to balloon at the same time Dr Hogan pinpoints the onset of Mr Tirris’ major depression – which is also a time when the applicant continued to experience ongoing pain and social isolation as a result of conflict in the workplace.

29. The possibility of a connection between the obesity condition – or at least the RAAF’s response to the condition – and the depression is apparent in the documents. We are satisfied we should accept the central thrust of Mr Tirris’ evidence that was corroborated, namely that he felt alienated from his fellow serviceman, and that he was under pressure from them and from his superiors in relation to his weight.

30. At the hearing, Mr Williams for the Commission argued there was scant evidence for Mr Tirris developing a depression prior to his discharge. Mr Williams pointed out the Medical Employment Classification advice on 7 July 2005 does not disclose any emotional condition suffered by the applicant at that time. Mr Williams also referred to the Comprehensive Preventative Health Examination (dated 14 June 2005) where there was no mention of any emotional difficulties – but we note there were hints. Although he did not describe himself as depressed in the Comprehensive Preventative Health Examination prior to discharge (at p 6 of exhibit two), Mr Tirris responded to the question:  “How often do you feel that your present lifestyle is putting you under too much stress?” by answering “sometimes”. To the question: “During the past two weeks how much stress have you experienced?” he answered “moderate amount of stress”. We also note the medical Officer Dr Stephenson (at p 8 of exhibit two) commented that “Mbr finding D/C process difficult - stress”.

1. The absence of references to depressive symptoms in the Service Medical Records was put to Dr Hogan. Dr Hogan pointed out the notes in the Service Medical Records were only of a cursory nature. Dr Hogan explained it was necessary to take a detailed psychiatric history to appreciate the litany of stressors over time. That was never done at the time. Those criticism seem fair enough. We accept Mr Tirrris and his medical examiners were likely to be focused on the urgent and measurable problem of his escalating obesity, or his painful musculoskeletal injuries rather than his psychiatric health. The failure to explore his psychiatric health might also be understandable given his own limited insight into his condition and the evidence he gave of his sensitivity to what he regarded as a hostile workplace, including hostile superiors.

2. In summary, Mr Tirris’ treating psychiatrist argues that the applicant’s depression condition was service-related. Dr Hogan says the depression condition is associated with chronic pain. That pain is associated with the service-related bike and motor vehicle accidents, and Mr Tirris’ obesity was exacerbated by a diminished capacity to exercise following those accidents. Those factors were compounded by social isolation and workplace conflict. We note Dr Hogan’s opinion about the connections between obesity and pain are consistent with the observations of a Department of Defence dietician who stated on  2 April 2003 (Service  Medical Records at p 134):

   …he often wakes with hip pain at 1am and eats to relieve pain. He may not sleep again until 5am. Consequently he is very tired by mid afternoon. Suggested speaking to Dr and physiotherapist re pain prevention to break this broken sleep cycle.

3. We accept Dr Hogan’s opinion that the applicant experienced symptoms of depression as early as 2002-2003, albeit that the condition was not diagnosed until sometime later. We also have no sufficient reason to doubt Dr Hogan’s opinion that the applicant’s depression was most likely multi-factorial in origin. The chronic pain and pressures associated with responding to his obesity condition and workplace conflict and disharmony all played a role in the onset of the condition. We are satisfied the medical and other evidence establishes the applicant experienced chronic pain as a consequence of injuries he sustained in the bicycle and motor vehicle accidents, the last of which occurred at around the date of onset of the depression condition. We are also satisfied the evidence establishes the ongoing pain associated with those injuries made it harder for the applicant to maintain the high level of exercise he had been undertaking which was necessary to keep his weight in check – and that pressure from the authorities to do something about his weight was a significant source of stress. We also accept the applicant experienced workplace conflict and disharmony in the form of antagonistic relationships with some of his superiors and workmates, most obviously in relation to his failure to meet fitness standards.

   Application of the statement of principles

4. Our next task is to identify and apply the relevant statements of principles. There are potentially two statements that deal with depression: No 28 of 2008 and No 84 of 2015. (We note that since the date of the hearing a new statement of principles in relation to depressive disorder – No 30 of 2016 – has amended the 2015 statement. As it happens, none of the amendments are relevant to Mr Tirris’ case).

5. We will deal firstly with statement no 84 of 2015, which was in force when Mr Tirris made his claim. There are potentially two factors that are applicable here:

   ·factor 9(1)(e), which refers to experiencing a category 2 stressor within the six months before the clinical onset of depressive disorder; and

   ·factor 9(1)(k), which refers to having persistent pain of at least six months duration at the time of the clinical onset of depressive disorder.

6. A category 2 stressor is defined to include negative life events experienced on an ongoing basis, including:

   having concerns in the work or school environment including on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful workloads, or experiencing bullying in the workplace or school environment;

7. We have already indicated we accepted the applicant experienced ongoing disharmony and conflict in the workplace over a long period of time. We have also found the applicant experienced ongoing pain for at least six months preceding the date of onset of his depressive disorder in 2003.

8. In the circumstances, we do not need to consider the provisions of statement No. 28 of 2008.

   Conclusion

9. We are satisfied the applicant’s depressive disorder is related to his defence service. It may be that is the last issue which remains to be resolved before he can be entitled to a pension paid at the special rate. It was not clear from the evidence whether other factors made a contribution to his inability to work (or, indeed, the extent of his inability): the hearing focused instead on whether the Commission should accept liability for the depressive disorder. We set the decision under review aside and remit the matter to the respondent for consideration of the applicable rate of pension in accordance with these reasons.

I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe and Dr M Sullivan, Member 

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Associate

Dated 29 April 2016

Dates of hearings	17 November 2015; 26 November 2015
Solicitors for the Applicant	Peter Black, Black and Co Lawyers
Advocate for the Respondent	Bruce Williams, Department of Veterans’ Affairs