Williams and Repatriation Commission
[2000] AATA 743
•31 July 2000
DECISION AND REASONS FOR DECISION [2000] AATA 743
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1998/852
VETERANS' APPEALS DIVISION )
Re EDWIN john williams
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date31 July 2000
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N1998/852
)
veterans' appeals DIVISION )
Re: EDWIN JOHN WILLIAMS
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date 31 July 2000
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision namely:
THAT the Applicant, Edwin John Williams, is entitled to pension, pursuant to the Veterans' Entitlements Act 1986, for the war-caused diseases of Specific Phobia – Enclosed Spaces and Chronic Bronchitis as and from the 28 day of February 1995;
AND THAT this matter is remitted to the Respondent in order that it might assess the rate of pension to be paid for all war-cause injuries and diseases suffered by the Applicant.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Claim for epilepsy and bronchitis. Diagnosis of not epilepsy but specific phobia. Tribunal entitled to consider that condition. Reasonably satisfied condition initiated by war service. Chronic bronchitis contributed to by war-caused smoking habit.
Veterans' Entitlements Act 1986
Thompson v Repatriation Commission [2000] FCA 939
Repatriation Commission v Smith (M J) 15 FCR 327
Repatriation Commission v Tuite 17 AAR 158
Repatriation Commission v Law 47 FLR 57
Re Foulger and the Repatriation Commission 1 RPD 23
McGlynn v Repatriation Commission 1 RPD 210
Dell v Repatriation Commission 2 RPD 427
Bramwell v Repatriation Commission 158 ALR 623
REASONS FOR DECISION
Senior Member M D Allen
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Signed: Kwai-Ling Wong
....................................................................................Associate
Date of Hearing 31 July 2000
Date of Decision 31 July 2000
Counsel for the Applicant Mr C CorborneSolicitor for Applicant Mr B Williams, Vardanega Roberts
Advocate for Respondent Mr S Modder, Department of Veterans' AffairsDRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N98/852
By MR M.D. ALLEN, Senior member
And MEMBER DR J.R. VALLENTINE
EDWIN JOHN WILLIAMS
And REPATRIATION COMMISSION
SYDNEY, MONDAY, 31 JULY 2000MR ALLEN: Well, in this matter the applicant pursuant to an application lodged 6 July 1998, seeks review of a determination by the respondent made on 1 March 1996 and affirmed by the Veterans Review Board on 10 March 1998, that the conditions which he made a claim for under the name of possible epilepsy and lung problems were not caused or contributed to by his service in the Australian Army during the second World War.
The applicant was enlisted into the Australian Army and on 18 August 1941 looking at his Army number it would appear that he was called up for military service. His number does not bear the X notation indicating that he was a member of the second AIF, ie a volunteer. His period of military service was very short. The document at page 9 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 states that he was discharged on 19 September 1941. Document T3 at page 8 bears the notation, MU, epilepsy, which can be treated as the abbreviation for medically unfit.
Certainly in these proceedings the applicant gave evidence and it was not disputed that whilst undergoing training as a member of the Royal Australian Engineers, one day in a mess hut he suffered a form of fit in that he became unconscious. He says that he was told that he was left unconscious for some two hours before regaining consciousness and being removed to a military hospital. After some two weeks in that institution he was discharged from the Army, the statement that he had suffered an epileptic fit. That diagnosis seems to have pursued him down through the years and no doubt explains why in his initial claim he sought pension for what his medical practitioner described as epilepsy with a reference "in medical documents".
There is also a claim for lung problems. Following the applicant's claim the condition was further investigated. The first of those investigations is a report from a consultant neurologist, Dr Crimmins, which is found at document T6. The report dated 4 September 1995 to the respondent, concludes as follows:
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©Auscript Pty Ltd 2000At this stage the diagnosis with this gentleman is somewhat unclear. I am not entirely convinced that epilepsy is the diagnosis in this setting. One has to consider a functional episode or disease relating to his chronic anxiety and depression. Certainly the fact that his collapse did occur in the context of a stressful situation and he clearly remembers this, makes it highly likely.
At document T7 is a further report from Dr Crimmins following an EEG and the conclusion there is that that EEG is within normal limits. Now, of course it's pointed out all that mitigates against a diagnosis of epilepsy. Exhibit R4 is a report by Dr Lorentz, consultant neurologist, dated 26 April 2000 addressed to the Department of Veterans' Affairs. After reviewing the documents and consultation with the applicant and including seeing the reports of Dr Crimmins and Dr Graham, Dr Lorentz opined the correct diagnosis for the condition complained of by Mr Williams:
It is unlikely that Mr Williams suffers from epilepsy. There does not appear to be any cause for the epilepsy in the past or as a result of war service, although in 1961, which is 20 years after war service, he suffered from a head injury which could be possibly followed by epilepsy. However, the blackouts have preceded the head injury.
The description of the attacks is vague and there is no eye witness account. However, there has been no mention anywhere of tongue biting, incontinence or injury. Furthermore, EEG's taken in 1995 by Dr Crimmins and Dr Braham in 1998 were normal as was apparently a previous EEG. At no stage was anti-convulsant medication started. Therefore it is unlikely that Mr Williams suffers from epilepsy.
Mr Williams appears to have specific phobia mainly as far as enclosed spaces are concerned. This is a psychiatric condition. It can be associated by hyperventilation and it could possibly lead to blackout. I would suggest that a diagnosis of specific phobia be considered to be a psychiatric condition which it is. I would accept that a specific phobia is related to his blackouts.
It is possible that the date of onset of the specific phobia was during war service in 1941.
I am in substantial agreement with Dr Geoffrey Miller's report of the 21st September 1999 as well as Dr Malcolm Dent's report of the 25th October 1999.
I also agree with Dr Crimmins's report of 4th September 1995.
The report referred to by Dr Dent is dated 25 October 1999 and became exhibit A3 in this matter. The applicant is interviewed by Dr Dent and part of the history taken was, the applicant said regarding tunnels and being enclosed:
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©Auscript Pty Ltd 2000I break out into a sweat after being there. Back at Seymour we were having lunch and I broke out in a sweat and collapsed.
Dr Dent continues. I asked Mr Williams to be very careful in describing to me the onset of his symptoms. He told me that the tunnel was:
… "like a bloody big pipe thing – we had to go up and down them – crawl up them, they were one chain long, it was dark and they were one man wide. I remember feeling I would suffocate, I was feeling frightened and panicky and a fear of being smothered".
This is a very clear description of a panic state, which I believe has become the clear genesis of Specific Phobia regarding enclosed spaces, or Claustrophobia as it was called in previous terminology prior to DSM IV.
Mr Williams says that now even when he sits in a car or in a room he will become anxious, unless the windows and doors are wide open. For similar reason, he can not bear being near a heater since it will also make him anxious that he can't breathe.
He told me that the second time he was obliged to go in to a tunnel in his training as a engineer "I blacked out when I came back to the Mess and I was Discharged because of that turn – they said I was too dangerous for my mates" whereby his training was not completed.
Whereby his training was not completed Dr Dent also took the history that after war service the applicant worked as a fettler out in the open with the Railways. He said to Dr Dent:
… "I picked jobs where it was not a problem, I had a job in a club in Wagga in cleaning but it was a big area".
Dr Dent's diagnosis is that of specific phobia, enclosed spaces. I mention Dr Dent's report later in more detail, but it seems to me, and Dr Dent confirmed this in his evidence today, that the more specific diagnosis of the applicant's condition is that of a specific phobia. As Dr Dent says at page 5 of his report:
The favoured terminology now under DSM IV is of DSM 300.29 Specific Phobia of Situation or Type.
Now, although I am informed there is no Statement of Principles currently in force or in force at the time when the Repatriation Commission made its original decision relating to specific phobia of
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©Auscript Pty Ltd 2000situation or type, being DSM IV's classification 300.20. Similarly, as an aside, it seems clear that the applicant has chronic bronchitis and there is again no Statement of Principles that was in force at the time the respondent made its original decision. That being so the decision of his Honour, Madgwick J, in Thompson v Repatriation Commission, 2000, FCA, 939, results that there is no SOP which is to be applied in this matter and the standard of proof is simple that laid down by subsections 1 and 3 of section 120 of the Veterans' Entitlements Act 1986.
It will be remembered that subsection 1 of section 120 states inter alia that the Commission shall determine that a disease was war caused unless it is satisfied beyond reasonable doubt there is no sufficient ground for making that determination. Subsection 3 provides ---
RECORDED : NOT TRANSCRIBED
Mr Allen: What it is then is that this is a matter, because the applicant only served with Australia it is standard of proof set forth by subsection 4 of section 120, namely that of to the Tribunal's reasonable satisfaction. As has been pointed out by the Full Court of the Federal Court in Repatriation Commission v Smith (M J) 15 FCR 327, the term reasonable satisfaction imports the civil standard of proof, that is to say proof on balance of probabilities.
So far as diagnoses are concerned I am also satisfied on the balance of probabilities that the correct diagnosis is specific phobia. In reaching that decision I would simply – having referred to the report of Dr Dent – refer to the report of Dr Lee, Exhibit R2, who on 27 March 2000 in his report to the respondent stated inter alia:
Mr Williams displayed no objective evidence of anxiety or depression. However, his history was consistent with generalised anxiety disorder and phobia of enclosed spaces.
At page 7 of his report he says:
On the basis of the history given I would agree with Dr Dent's diagnosis of a phobic disorder.
He does add:
I would not agree with his comments regarding causation, that of course is a different matter.
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©Auscript Pty Ltd 2000I notice that Dr Lee then goes on to talk about Statements of Principles and it seemed that he might be confusing one condition with another because as stated there is no Statement of Principles relating to phobic disorder.
In evidence to the Tribunal today, Dr Dent was confident that it was the incidence of the applicant's service namely being forced into the tunnel which caused the phobic disorder. As he said it had to be a very specific event that triggers it off and in this case he said it was the tunnel. Dr Dent is completely confident that the events in the Army led to the phobia as stated above although there are elements of a generalised anxiety disorder he prefers the more specific description and diagnosis under DSM IV, phobic disorder.
The second condition complained of by the applicant is a chronic bronchitis. Exhibit A2 is a report by Dr Miller, consultant physician, dated 21 September 1999. He states in that report at page 4:
In my opinion he suffers from chronic bronchitis but his spirometry is not accurate enough to make a diagnosis of chronic airwaves limitation.
Similarly, Dr Breslin, a consultant thoracic physician in his report dated 24 April 2000 to the respondent which is Exhibit R3 opines:
1.Mr Williams has chronic bronchitis with mild airflow limitation. In Instrument 74 of 1997 on chronic airflow limitation this is within the category of chronic bronchitis with pulmonary obstruction.
I would only interpose that of course that instrument does not apply in this case however it is significant that Dr Breslin considers that the applicant is within the parameters of that instrument. Dr Breslin continues thus his diagnosis is chronic bronchitis with pulmonary obstruction, this is his respiratory diagnosis. Importantly, he adds:
His chronic bronchitis is due to his cigarette smoking.
Page 5 of his report he says:
Certainly he smoked for at least 15 pack years before the onset of his symptoms and therefore he most certainly has smoking induced chronic bronchitis of that I have no doubt.
The diagnosis with chronic bronchitis with airflow limitation was diagnosed some time after 1995, in Dr Duggan's lung function tests in 1995 there was no airflow limitation but he certainly has that now.
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©Auscript Pty Ltd 2000I only mention for the completeness sake that as far as Dr Lee's report is concerned I find it confusing to this extent that he states his history was consistent with a phobia of enclosed spaces and he states that he agrees with Dr Dent's diagnosis, all right, he disagrees as I said with causation that he seems confused as to that, stated I am more persuaded by Dr Dent's report. There is one other report which should be mentioned and that is by Dr Maclean, Psychiatrist. Dr Maclean states in that report:
Certainly he seems to have suffered from grand mal and that is the only primary diagnosis that can be made.
Well, of course, that is a diagnosis which has now been dismissed by the experts in the case, namely, the neurologists. So that it strikes me that Dr Maclean's report cannot be relied upon and I should prefer the late more up-to-date report of Dr Dent, who is aware that epilepsy is not a factor. So far as the applicant's chronic bronchitis is concerned it seems to be accepted by the experts and that I refer to Dr Miller and Dr Breslin, that it is smoking induced. The question therefore arises whether the applicant's smoking of itself can be attributed to his war service.
In coming to a consideration of that question I would simply make a reference to what is the term attributable to. In Repatriation Commission v Tuite 17 AAR 158 at 162 Burchett and Einfeld JJ refer to the decision of the Full Court of the Federal Court in Repatriation Commission v Law 47 FLR 57 where the Full Court states:
The cause need not be the sole or dominant cause, it is sufficient to show attributability if the cause is one of a number of causes provided it is a contributing cause.
Tuite's case also refers to the circumstances in which a smoking habit can be engendered whilst on service. I would also refer to the decision of this Tribunal in the matter of Re Foulger and the Repatriation Commission 1 RPD 23 at 40. There the Tribunal presided over by its then president, Davies J, said:
Nevertheless it's beyond question that war service did have an adverse effect upon some servicemen, not only through the trauma of combat but also through the conditions of their service including the discipline and barrack style living which war service required.
Now, in this matter it's interesting Dr Lee's report states the applicant said:
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©Auscript Pty Ltd 2000He was generally frightened of having to go to war but no more than his colleagues. He was sent by train in Seymour. He said conditions were, "bloody terrible", sleeping on straw next to his rifle and bayonet. He was also not used to being with a lot of people as he had grown up on a farm.
The applicant, himself, gave evidence today that he was not really a smoker, that he had at times had the odd cigarette before he had enlisted but generally ended up throwing it away. If he had bought tobacco he ended up handing the packet to his father. He started in the Army as everyone else was smoking and that increased to 20 a day as a habit. Of course, this Tribunal does not need to take any evidence as to the addictive nature of cigarette smoking.
As he said:
In the Army everyone else was having a go at it.
He said:
I think everybody was uptight up a bit, smoking made you feel better.
I might add it's probably also an inference but it would seem that in the Army this applicant was probably in receipt of money for the first time in his life. Apparently before enlistment he was one of seven children working on his father's farm and if I noted it correctly his father was somewhat mean. That being so, even if he did have the odd cigarette, as was pointed out in McGlynn v Repatriation Commission 1 RPD 210 at 213, a war-caused increase in smoking habit is sufficient to found an attributability.
As stated the applicant's original application was for epilepsy but it wasn't argued that the claim could not be met by the diagnosis of the phobic disorder. In any event it would seem to me that the decisions of the Federal Court in Dell v Repatriation Commission 2 RPD 427 at 433 and also Federal Court in Bramwell v Repatriation Commission 158 ALR 623 make it clear that although one condition may be applied for, the investigation carried out by the respondent as its statutory duty leads to a more correct diagnosis and that is the condition which is to be considered by this Tribunal.
I reiterate that I am move convinced by Dr Dent's report in this matter and by his evidence and I am reasonably satisfied that the applicant's phobic disorder was caused by the events of his service in the Royal Australian Engineers and in particular being required to go into a tunnel. So far as his chronic bronchitis is concerned, again I am
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©Auscript Pty Ltd 2000reasonably satisfied that the events surrounding his service, brief though they may have been in the Army, were sufficient to cause a habituation to smoking, which in turn of course led to his chronic bronchitis.
The decision under review will therefore be set aside and the Tribunal substitutes in lieu thereof its decision that the applicant's phobic disorder and chronic bronchitis are war-caused incapacities and that he is entitled to pension for incapacity as and from 28 February 1995. This matter is remitted to the respondent Repatriation Commission in order that it might assess the amount of pension to be paid.
RECORDED : NOT TRANSCRIBED
MR ALLEN: Specific phobia – enclosed spaces will be the condition and if there is any dispute about it let it also be said that it is pursuant to DSM 300.29 in volume 4 of the Diagnostic and Statistical Manual.
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