Todd and Repatriation Commission

[2008] AATA 264

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 264

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q200600367

VETERANS’ APPEALS DIVISION		)
Re		Gordon Todd

Applicant

And  Repatriation Commission

Respondent

DECISION

Tribunal

Senior Member Bernard J McCabe

Dr G Maynard, Member

Date2 April 2008

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

........................[Sgd]......................

SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – whether psychiatric condition defence-caused – whether applicant meets statement of principles – decision affirmed

Repatriation Commission v Milenz [2006] FCA 1436; (2007) 93 ALD 107, applied

REASONS FOR DECISION

2 April 2008	Senior Member Bernard J McCabe
Dr G Maynard, Member

1.      Gordon Todd was diagnosed with a lung condition in 2002. The Repatriation Commission accepts the lung condition is related to the applicant’s military service. He has also been diagnosed with a psychiatric condition. These proceedings arise out of Mr Todd’s claim that his psychiatric condition is defence-caused because it was either brought on or worsened by the stress associated with his defence-caused lung condition.

2.      We are not satisfied Mr Todd’s psychiatric symptoms are attributable to the conditions of his service. It follows his application must fail. We explain our reasons below.

The background facts

3.      Mr Todd served in the Navy between 1966 and 1975. He rendered operational service in Vietnam for 12 days in 1969 and five weeks in 1972. His service in the period from 7 December 1972 until discharge was defence service.

4.      The applicant was diagnosed in 2002 as suffering from a range of respiratory conditions, including pleural plaques, asbestosis and emphysema. Pleural plaques and asbestosis were accepted as being related to his service as a result of the applicant’s exposure to asbestosis aboard naval vessels. Emphysema was accepted on the basis of the applicant’s smoking habit.

5.      Mr Todd has been receiving psychiatric care for some time. His treating doctor diagnosed post traumatic stress disorder (“PTSD”) and alcohol abuse in 1999. Mr Todd’s subsequent application for a disability pension was rejected: see Todd and Repatriation Commission [2002] AATA 658; Todd and Repatriation Commission [2004] AATA 81. The Tribunal concluded the applicant had not established he was exposed to a “severe stressor” within the meaning of the relevant statements of principles.

6.      The applicant gave evidence at the hearing in these proceedings. He agreed he had been experiencing anxiety symptoms since the 1990s. Mrs Todd, the applicant’s wife, confirmed the applicant had been experiencing problems for many years. But the applicant says things became markedly worse in 2002, after he was diagnosed with pleural plaques. Mr Todd says he had heard reports of people with pleural plaques subsequently developing mesothelioma, which he understood to be fatal. He testified that he felt like he had a death sentence hanging over his head.

7.      Mr Todd says his mental state deteriorated when he was subsequently diagnosed with asbestosis and emphysema. He said he became withdrawn and angry. He said he experienced panic attacks, lost confidence, stopped fishing and going out amongst crowds. He also said he quit his job, albeit after he had taken a long period of leave.

8.      Mr Stoner, for the Commission, asked Mr Todd about when the anxiety symptoms he described started to manifest themselves. The applicant agreed during cross-examination that the panic attacks, anxiety and withdrawal pre-dated 2002. He also agreed the emergence of those symptoms about 10 years ago explained his withdrawal from a range of community activities at the time.

9.      Mrs Todd acknowledged in the course of her evidence the applicant has experienced problems for about 10 years. She referred to a personality change during the 1990s. In cross-examination, she added that she thought Mr Todd’s symptoms might have worsened since 2002.

The medical evidence

10.     The applicant provided a number of reports from his treating psychiatrist, Dr Likely. Dr Likely also gave evidence at the hearing. Dr Likely told the hearing that he was satisfied the applicant continued to experience symptoms of PTSD that he has been experiencing since at least the 1970s. He also diagnosed generalised anxiety disorder due to general medical conditions. The medical conditions in question were pleural plaques, asbestosis and emphysema. Those conditions were diagnosed by Dr Allen in 2002. Dr Likely says the generalised anxiety disorder emerged at that point or soon after. He increased the applicant’s medication at around this time, presumably in response to his observation that the clinical symptoms had worsened.

11.     Dr Likely’s evidence was unsatisfactory in several respects. His oral evidence was presented in a disorganised fashion. He also contradicted his own written report of 22 January 2007. In that report, he said he had changed his longstanding view that the applicant suffered from PTSD—yet at the hearing he repeated the view that PTSD was an appropriate diagnosis. While we do not criticise a clinician for changing his view in a considered way, we were unable to clearly discern the basis for Dr Likely’s change of mind in this case. We formed the impression that Dr Likely’s objectivity may have been affected by his longstanding relationship with his patient.

12.     The respondent tendered two reports by Dr Mulholland. The second report was a short clarification of matters referred to in his original report. Dr Mulholland says the applicant suffers from generalised anxiety disorder which pre-dates the diagnosis of the respiratory conditions. We were impressed with the opinions offered in Dr Mulholland’s reports for two reasons. Firstly, Dr Mulholland is an independent expert who has seen and apparently considered all of the material. His objectivity has not been compromised by a treating relationship with the applicant. Secondly, his reports are clear and demonstrate careful and consistent analysis.

13.     We note the applicant gave evidence suggesting he was experiencing anxiety symptoms prior to 2002. He said during the late 1990s he became anxious and withdrawn and avoided friends and crowds, he had difficulty controlling his anger and experienced difficulties driving long distances. His evidence was difficult to follow in parts because he had a poor memory for times and dates. Mrs Todd explained during her evidence that she observed changes in her husband’s personality over 10 years ago. Her evidence is consistent with much of Mr Todd’s, although she suggested at the conclusion of her oral evidence that she thought the applicant was worse after the diagnosis of the lung condition in 2002.

14.     We are satisfied that the applicant was experiencing significant anxiety symptoms from at least the late 1990s. We note Dr Mulholland opines that the anxiety condition had its onset at about this point.

15.     Given the shortcomings in the evidence of Dr Likely, we prefer and accept the evidence of Dr Mulholland. It follows we accept the applicant suffers from generalised anxiety disorder (not otherwise specified) and depression, and that those conditions had their onset prior to the diagnosis of the lung condition in 2002.

16.     In those circumstances, Mr Todd can only succeed in his application if we can be satisfied the pre-existing psychiatric condition was aggravated by news of the diagnosis of the service-related lung condition in 2002.

17.     The Federal Court’s decision in Repatriation Commission v Milenz [2006] FCA 1436; (2007) 93 ALD 107 says aggravation is assessed having regard to the diagnostic criteria set out in the relevant statement of principles. The parties agreed the relevant statement of principles is that relating to generalised anxiety disorder (No 102 of 2007). Mr Stoner, for the respondent, conceded the statement of principles in relation to depression (No 18 of 2007) was also formally relevant. We understand it was accepted by both parties that the applicant’s claim would stand or fall on the strength of the anxiety statement of principles. Mr Stoner also pointed out there was an accrued right to be considered under the earlier statement of principles if the applicant was unsuccessful under the most recent iteration. The parties nonetheless agreed that it would be unnecessary to go that far since the most recent statements of principles were more generous from the applicant’s point of view.

18.     We acknowledge Mr Todd’s wife said the applicant was “worse” following the 2002 diagnosis, and we note Dr Likely increased his medication at around that time. We also acknowledge Dr Mulholland’s report of 8 May 2007 says (at [18.5]):

“It is likely that concerns over asbestosis related conditions is significantly aggravating his current and recent psychiatric condition…”

19.     Dr Mulholland addressed this issue in his further report dated 11 July 2007. Dr Mulholland was aware of Mrs Todd’s views about her husband’s state following the 2002 diagnosis. He was also aware of Dr Likely’s views. Yet he concluded:

“I am not convinced that his psychiatric condition is any worse since the asbestos issue has developed. What is different is that the asbestos issue becomes a focus for his psychiatric condition however in general terms the severity of his psychiatric condition is probably no better or no worse subsequent to the asbestos issue.”

20.     The apparent inconsistency between the two observations we have quoted is troubling. Even so, we are inclined to accept the view expressed in Dr Mulholland’s report of 11 July 2007. We have already explained our reasons for preferring the evidence of Dr Mulholland. His opinion in any event accords with our analysis of the evidence. While there is some evidence pointing to a worsening of the applicant’s symptoms after the 2002 diagnosis, there is also evidence that the applicant had been experiencing most if not all of these symptoms for some time and that they have not varied in intensity since 2002.

21.     Mr Todd has been experiencing psychiatric symptoms for almost a decade, if not longer. He thinks he has found an explanation for why he feels the way he does. We cannot be sure of the cause of his conditions, but we are not reasonably satisfied that his condition has worsened since 2002 in the sense referred to in Milenz.

Conclusion

22.     Given our conclusions on the medical evidence, we do not think Mr Todd can satisfy the relevant statement of principles. It will therefore be impossible for him to establish a causal link between the circumstances of his service and his current psychiatric condition. The decision under review must therefore be affirmed.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe and Dr G Maynard, Member.

Signed: ......................................[Sgd]...............................................
  Michael Buckingham, Associate

Date of Hearing  18 December 2007
Date of Decision  2 April 2008
Counsel for the applicant          Mr R Clutterbuck
Solicitors for the applicant        Haney Lawyers
Solicitor for the respondent     Departmental advocate