Watt and Repatriation Commission
[2007] AATA 1536
•11 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1536
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/255
VETERANS' APPEALS DIVISION ) Re IAN WATT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member P McDermott, RFD
Dr G Maynard, Member
Date11 July 2007
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.............[Sgd]...............
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Royal Australian Navy service – application of Deledio – statement of principles – medical evidence – clinical onset – decision affirmed
Veterans’ Entitlements Act 1986 (Cth) ss 9, 70, 120, 120A, 196B
Repatriation Commission v Cooke (1998) 52 ALD 1
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 66 ALD 271
Hardman v Repatriation Commission (2004) 82 ALD 433
Elliott v Repatriation Commission (2002) 73 ALD 377Lees v Repatriation Commission (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668RepatriationCommission v Cornelius[2002] FCA 750
Bushell v Repatriation Commission (1992) 175 CLR 408
Benjamin v Repatriation Commission (2001) 70 ALD 622REASONS FOR DECISION
11 July 2007 Senior Member P McDermott, RFD Dr G Maynard, Member Introduction
1. Mr Ian Watt, who has served with the Royal Australian Navy, lodged a claim for disability pension with the Department of Veterans’ Affairs.
Decisions
2. On 23 October 2003 the Repatriation Commission (“the Commission”) determined that the conditions of adjustment disorder episodes with anxious or depressed mood and intervertebral disc prolapse are not service related.
3. Mr Watt sought a review of this decision from the Veterans’ Review Board. On 9 March 2005 the Veterans’ Review Board affirmed that part of the decision of the Commission.
4. Mr Watt now applies to this Tribunal to review the decision of the Veterans’ Review Board which affirmed the decision of the Commission.
Issues before the Tribunal
5. We have to decide whether Mr Watt suffers from the conditions of adjustment disorder episodes with anxious or depressed mood, lumbar spondylosis and intervertebral disc prolapse, and if so, whether those conditions are defence caused within the meaning of s 70 of the Veterans’ Entitlements Act 1986(“the Act”). If Mr Watt is successful, we consider that the earliest date of effect is 21 October 2002.
Background
6. Mr Ian Watt served with the Royal Australian Navy from 3 July 1964 until 2 July 1984. His eligible defence service, as defined under the Act, is from 7 December 1972 until the date of his discharge on 2 July 1984.
Evidence of the Applicant
7. Mr Watt gave evidence of his career in the Royal Australian Navy. He stated that he was promoted to the rank of Chief Petty Officer in 1972. He performed engineering related duties until 1982. In 1982 he was transferred to general duties. He was discharged in 1984.
8. Mr Watt referred to an incident in 1965 when he sustained a spinal injury. He hit his head in a diving accident. He was kept under observation after that incident. He stated that he had headaches and backaches as a result of that injury.
9. Mr Watt gave evidence of his duties in 1983 on HMAS Tobruk which was a troop carrier and landing craft. He had to perform preventative maintenance work on engines of small landing craft. This service work was conducted in a small confined space. He had to lift heavy engine parts such as cylinders, heat exchangers and water pumps. He stated that this physical work had caused him to have a sharp pain in his lower back. He remarked that this work had aggravated a previous injury. He also mentioned that he was then sick in the stomach. Because of his condition he was placed on light duties and given tablets by a first aid attendant.
10. Mr Watt was referred to his statement that he made on 27 August 1983 on his discharge from the Navy [ex. A, T4, folio 9]. That statement refers to his lower back pain.
11. In a statement dated 4 April 2006, Mr Watt had outlined his employment history after he was discharged from the Royal Australian Navy. He stated that once he was discharged from the Navy he decided to set up his own business so that he could become independent.
12. From 1984 until 1987 he was a general engineering contractor. In 1988 he commenced a bus contract with the Department of Education. In 1989 he started a tourist business when he gained an open charter licence. In 1990 he obtained passenger permits to be a bus operator in Brisbane, in the bayside for general passengers and all of Queensland for people with a disability.
13. Between 1991 and 2000 Mr Watt had a bus fleet of 10 buses operating with various permits and contracts with government departments, private companies and general passenger bus operations. His business was expanding with more work being obtained from overseas. His meetings in Thailand, Singapore, China and Taiwan were successful in obtaining new business. His bus business was closed in 1999 and 2000 due to his failing health and his inability to perform any business duties.
14. In 2001 Mr Watt established an Internet business as a general commission agent. He remarked that this business also failed due to his worsening health.
Evidence of Medical Witnesses
15. The first medical witness was Dr Alan Freed, a psychiatrist. Dr Freed has seen Mr Watt on a number of occasions. His reports were admitted in evidence: report, 16 June 2006 [exhibit A1]; report, 30 March 2006 [exhibit A7]; report, 14 March 2003 [exhibit A, T4, folio 43-45]; report, 20 May 2003 [exhibit. A, T4, folio 38-42].
16. In his report of 20 May 2003, Dr Freed concluded that Mr Watt did not suffer from DSM-IV Post Traumatic Stress Disorder. Dr Freed also then concluded that Mr Watt continues to suffer from “burst of Adjustment Disorder lasting a few weeks” [ex. A, T4, folio 39]. Dr Freed also stated that his “investigations do not support alcohol excess as reflected in his liver, blood cell and blood plasma” [exhibit. A, T4, folio 38].
17. In his report of 30 March 2006, Dr Freed opined that the clinical sequence for the anxiety of Mr Watt “is adjustment failure due to pain causing Adjustment Disorder with anxiety” [exhibit A7].
18. In cross-examination Dr Freed was questioned upon how often Mr Watt would suffer an adjustment disorder. Dr Freed thought that this would occur “a few times a year”.
19. The next medical witness was Dr John McIntyre, a psychiatrist. Dr McIntyre examined Mr Watt on 22 March 2006 for a period of one hour and 30 minutes. His report of that examination was admitted into evidence [exhibit R10].
20. Dr McIntyre gave evidence that Mr Watt does not suffer from any psychiatric illness. In his report he stated: ‘[i]n my opinion, Mr Watt does not currently suffer from any diagnosable psychiatric condition meeting the DSM-IV Axis 1 Criteria” [exhibit R10, p. 9].
21. Dr McIntyre reported that the history and available material do indicate that Mr Watt has suffered from recurrent episodes of adjustment disorder with depressed mood at times of life stress or alternatively from dysthymic disorder.
22. Dr McIntyre also reported that while Mr Watt does not fit the diagnostic criteria for a personality disorder on Axis 2, some apparent personality vulnerabilities have contributed to his difficulties. These include a sense of entitlement, a tendency to mistrust others’ motives, poor anger control and a tendency to earlier substance abuse in the form of binge drinking.
23. The final medical witness was Dr Peter Grant, Senior Medical Officer Compensation; Department of Veterans’ Affairs, who gave evidence on behalf of the respondent. Dr Grant had reported on his review of the medical evidence in his reports that were admitted into evidence: report, 9 December 2005 [ex. R8]; report, 9 February 2006 [ex. R9]. Dr Grant came to the conclusion that the date of clinical onset of lumbar spondylosis was some years before 1983. He would place onset as occurring sometime between 1978 and 1981 given the nature of the radiological changes in 1983.
24. Dr Grant opined that the L4-L5 intervertebral disc prolapse in the lumbar spine postdates Mr Watt’s defence service and most likely developed in the period from 1997 until Mr Watt saw Dr Hall in 1999. Dr Grant reported: “I am aware of other cases where a confirmed disc prolapse has resolved spontaneously (ie or without surgical intervention) over the ensuing years. The fact that the disc prolapse was not seen in 2003 on magnetic resonance scan does not preclude it having played a significant if not major role in Mr Watt’s impairment and incapacity in 1999 in my opinion” [exhibit R9, p.2].
25. Mr Watt has also been examined on a number of occasions by Dr Bruce I Hall, Neurosurgeon. His reports were admitted into evidence: report, 10 December 1999 [exhibit R2]; 22 December 1999 [exhibit R3]; 26 May 2003 [exhibit R4]; 17 September 2003 [exhibit R5]; and 26 May 2003 [exhibit R6]. The applicant did not require the attendance of Dr Hall for cross-examination.
26. When Dr Hall initially saw Mr Watt in December 1999, Mr Watt had reported that over time he has become aware of back problems which were mostly a stiff and sore lower back. Mr Watt had then stated that his back pain was usually manageable but that “about two years ago he had a very severe bout of pain resulting in him having a few weeks off work and slowly mobilising.” Mr Watt then stated that he has avoided activities which put stress and strain through his lower spine: [exhibit R2, p. 1].
27. On 22 December 1999 Dr Hall reported to Mr Watt’s general practitioner: “His MRI shows a markedly degenerate L4,5 disc and interestingly a far lateral disc prolapse stretching the L4 nerve root. He does not have any L4 nerve problems but I suspect his major underlying pathology is the degeneration of this disc. The L5,S1 disc is also mildly degenerate” [exhibit R3].
28. In 2003 arrangements had been made for Mr Watt to have a progress MRI scan of his lumbar spine at the Princess Alexandra Hospital. That MRI scan was performed on 16 July 2003. It demonstrated “[s]ome degenerative changes without other significant abnormality demonstrated” [exhibit R7, p. 3].
29. On 17 September 2003 Dr Hall reported to Mr Watt’s general practitioner: “[h]e has had an MRI scan at Princess Alexandra Hospital and this shows a very healthy picture for his spine. There is some mild degeneration in a couple of discs but little else that would be a worry. I reassured Ian that he would not require any surgery. He needs to continue with simple measures such as heat, massage and gentle manipulation for his back problems. I have not arranged to review him again and hopefully he will improve over time” [exhibit R5].
Contemporaneous Medical Reports
30. We have examined the contemporaneous medical records of Mr Watt. Some of these records are in the T-Documents [exhibit A, T4]. Some records have also been admitted into evidence as a separate exhibit [exhibit R1].
31. On 23 May 1983 there is the following entry: “Complains of low back pain, chronic condition for some years. Has difficulty lifting, also complains of acute pain (R) lower rib area – no known injury. Pain present for 4 months”.
32. On 25 May 1983, Dr Inglis, a radiologist, commented: “[o]steophytic lipping is noted at the L3-4 and L4-5 levels but there is no narrowing of any of the discs. No other vertebral or disc lesion seen”.
33. On 2 June 1983 there is an entry that Mr Watt had possible anxiety and was prescribed medication [exhibit A, T4, folio 2].
34. There is an entry in the service medical records that Mr Watt was an inpatient at One Military Hospital (Ward 2) from 3 June 1983 until 6 June 1983. That entry records that Mr Watt had experienced work related difficulties for the preceding 12 months. The entry records that he was disenchanted with his job and that he had a personality clash with his immediate superior. The entry of the medical officer records: “No alcohol abuse. No prior psychiatric history. On interview he was not psychotic or obviously depressed. Related well” [exhibit R1]. He was discharged on medication of Protriptyline.
35. On 29 August 1983 is an entry of the service medical records which mentions that Mr Watt suffers from osteoarthritis at L3-4 and L4-5. The entry also records that Mr Watt had a stress reaction in June 1983.
36. There are medical examination records on 8 December 1987 and 27 February 1990 which record that the “back-spinal system” is normal [exhibit A, T4, folio 4-7].
Legislation
37. Section 70 of the Act provides, in effect, that where a veteran has become incapacitated from a defence-caused injury or a defence-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
Consideration
38. We have to initially give consideration to whether the claimed conditions of Mr Watt have been appropriately diagnosed.
39. In considering this application we are bound by a decision of the Full Court of the Federal Court of Australia, that the issue of whether a condition exists is to be decided to the reasonable satisfaction of the decision-maker: see Repatriation Commission v Cooke (1998) 52 ALD 1 at 6. This is the standard that is prescribed by s 120(4) of the Act which is the civil standard of proof: see Repatriation Commission v Smith (1987) 15 FCR 327.
40. We are reasonably satisfied that Mr Watt has lumbar spondylosis. We accept the conclusion of Dr Grant that Mr Watt has this condition and that the date of clinical onset of lumbar spondylosis was some years before 1983.
41. We do not consider that Mr Watt has an Intervertebral Disc Prolapse. The lumbar spine condition of Mr Watt has been thoroughly investigated by Dr Hall. In 1999 an initial MRI scan of Mr Watt’s spine disclosed “a far lateral disc prolapse stretching the L4 nerve root”. The most recent MRI scan that was performed on 16 July 2003 demonstrated “[s]ome degenerative changes without other significant abnormality demonstrated” [exhibit R7, p. 3]. In these circumstances we cannot be reasonably satisfied, on the balance of probabilities, that Mr Watt now has an Intervertebral Disc Prolapse.
42. We are also not reasonably satisfied that Mr Watt suffers from the claimed condition of Adjustment Disorder episodes with anxious or depressed mood. We accept the conclusion of Dr John McIntyre, a specialist psychiatrist, who gave evidence that Mr Watt does not suffer from any psychiatric illness. In his report he stated: ‘[i]n my opinion, Mr Watt does not currently suffer from any diagnosable psychiatric condition meeting the DSM-IV Axis 1 Criteria” [exhibit R10, p. 9].
43. Dr McIntyre reported that the history and available material do indicate that Mr Watt has suffered from recurrent episodes of adjustment disorder with depressed mood at times of life stress or alternatively from dysthymic disorder.
44. Dr McIntyre examined Mr Watt on 22 March 2006 for a period of one hour and 30 minutes. We consider that his report is balanced and fair.
45. The report of Dr Freed is not comprehensive in setting out the specific diagnostic criteria for making a diagnosis of adjustment disorder as set out in the DSM-IV. We prefer to rely upon the comprehensive report of Dr McIntyre
Statements Of Principle
46. The claimed conditions of Mr Watt are the subject of the following SoPs:
· Lumbar Spondylosis: Instrument No 38 of 2005;
· Intervertebral Disc Prolapse: Instrument No 131 of 1996, as amended by Instrument No 93 of 1997;
· Adjustment Disorder: Instrument No 58 of 1996.
47. As we have found that the only claimed condition which has been proved to our reasonable satisfaction to exist is Lumbar Spondylosis, we are therefore required to consider whether the contentions of the applicant satisfy only the SoP for Lumbar Spondylosis.
48. Where a SoP exists we are required to apply the test prescribed by s120A(3) of the Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 in the following way at 97-98:
“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.”
49. In reaching this conclusion, we are required to consider all of the material before us: see Bull v Repatriation Commission (2001) 66 ALD 271 at 277; Hardman v Repatriation Commission (2004) 82 ALD 433 at [39] to [41], and Elliott v Repatriation Commission (2002) 73 ALD 377.
50. We determine that the material before us points to a hypothesis connecting the condition of Lumbar Spondylosis with the circumstances of the service of Mr Watt.
51. Having completed the first step in Deledio, we must now consider whether any SoP has been determined by the RMA pursuant to s 196B(2) of the Act in respect of the condition in question. As we have mentioned earlier we have to consider the application of the Lumbar Spondylosis SoP Instrument No 38 of 2005. This satisfies the second step in Deledio.
52. The third step as enunciated in Deledio is to ascertain whether the hypothesis complies with one or more of the factors referred to in the relevant SoP.
53. We have considered factor 6(f) of the Lumbar Spondylosis SoP, Instrument No 38 of 2005. This instrument was cited in paragraph 5.3 of the respondent’s facts and contentions of 20 September 2006. We also mention that the applicant is entitled to have his application considered in terms of the SoP which was in force at the time of his application if the terms of that SoP are more favourable to him. The relevant factor is factor 5(g) of the Lumbar Spondylosis SoP: Instrument No 47 of 2002.
54. Factor 5(g) of the Lumbar Spondylosis SoP: Instrument No 47 of 2002 (as does Factor 6(f) of the Lumbar Spondylosis SoP: Instrument No 38 of 2005) requires the veteran to have or suffer a trauma to the lumbar spine within the twenty-five years before the clinical onset of lumbar spondylosis. The 2002 SoP requires that the trauma to the lumbar spine to be within the 25 year period immediately before the clinical onset of lumbar spondylosis.
55. 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.”
56. That analysis was specifically endorsed by Branson J in RepatriationCommission v Cornelius [2002] FCA 750.
57. In this case there is evidence before us, from the opinion of Dr Grant, that the date of clinical onset of lumbar spondylosis was some years before 1983. Dr Grant would place onset as occurring sometime between 1978 and 1981 given the nature of the radiological changes in 1983.
58. The evidence of the applicant that he sustained a trauma in 1983 is the evidence of a trauma after the clinical onset of lumbar spondylosis. There is also no material before us which concerns the matters that are referred to in the definition of “trauma to the lumbar spine” in clause 8 of the Lumbar Spondylosis SoP: Instrument No 47 of 2002 and clause 9 of the Lumbar Spondylosis SoP: Instrument No 38 of 2005.
59. We accordingly do not consider that the material which has been placed before us fits the template of factor 5(g) of the 2002 SoP or factor 6(f) of the 2005 SoP.
60. We have also felt it necessary to consider the application of factor 6(o) of the 2005 SoP and factor 5(t) of the 2002 SoP. The material does not satisfy those factors.
61. The applicant does not satisfy the third step as enunciated in Deledio.
62. It is not necessary that we turn to the fourth stage of the process explained in Deledio.
63. One of the matters that were raised on behalf of Mr Watt was the withdrawal of an offer to settle which was made by the Commission. The Commission made an offer to accept the condition of lumbar spondylosis as service related. That offer was not accepted by Mr Watt. The offer to settle was later withdrawn by the Commission after a reappraisal of the circumstances of this case. At the commencement of the hearing of this application this Tribunal emphasised that in determining this application we are not bound by any concessions that have been made by any party. Being guided by the observations of Brennan J in Bushell v Repatriation Commission (1992) 175 CLR 408 at 425, our duty in arriving at what is often referred to as the “correct or preferable decision” is to base that decision on evidence that is before us.
64. We have also considered whether this veteran’s symptoms could entail some other diagnosis. We have had regard to the decision in Benjamin v Repatriation Commission (2001) 70 ALD 622 at 633 where the Full Federal Court referred to the Tribunal’s inquisitorial role. We do not consider that any other diagnosis is appropriate after an examination of all of the material including the service medical documents. We observe that Dr McIntyre also reported that while Mr Watt does not fit the diagnostic criteria for a personality disorder on Axis 2 he does have some personality vulnerabilities. We also mention that Dr Freed has concluded that Mr Watt did not suffer from DSM-IV Post Traumatic Stress Disorder or alcohol abuse.
Decision
65. For the above reasons, we affirm the decision under review.
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott, RFD.
Signed: Fiona Kamst
Legal Research OfficerDate/s of Hearing 15 February 2007
Date of Decision 11 July 2007
For the Applicant Mr B Richards and Mr P Jones, Advocates
For the Respondent Mr M Smith, Departmental Advocate
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