Willson and Repatriation Commission
[2005] AATA 431
•13 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 431
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/303
VETERANS' APPEALS DIVISION ) Re JAMES WILLSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr M A Griffin, Member Date13 May 2005
PlaceSydney
Decision The decision under review is affirmed.
[Sgd] Mr M A Griffin
Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – application to have Anxiety Disorder and Impotence attributed to the Applicant’s war service – Naval operational service – Tribunal satisfied that Applicant suffers from Anxiety Disorder and Impotence – whether Clinical Onset was within two years - hypothesis not reasonable as it fails to conform to Statement of Principles – decision under review affirmed.
Veterans’ Entitlements Act 1986 - sections 6C, 23, 24, 120, 120A
O’Neil v Repatriation Commission (2001) FCA 1492
White v Repatriation Commission (2004) FCA 633
Woodward v Repatriation Commission (2003) 131 FCR 473
Repatriation Commission v Deledio (1998) 83 FCR 82
O’Brien v Repatriation Commission (1984) 1 FCR 472
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Hancock (2003) 37 AAR 383
Benjamin v Repatriation Commission (2001) 70 ALD 622
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Statement of Principles concerning Anxiety Disorder No 1 of 2000
Statement of Principles concerning Impotence No 16 of 2002
REASONS FOR DECISION
13 May 2005 Mr M A Griffin, Member 1. By application lodged on the 15th day of March 2004, Mr Willson sought review of a decision by the Respondent that rejected his claim to have the disabilities described as “Anxiety disorder and Impotence” attributed to his operational service.
2. As Mr Willson had operational service as that term is defined in section 6C of the Veterans’ Entitlements Act 1986 (“the Act”) the standard of proof in this matter so far as relates to entitlement to pension is that prescribed by sections 120(1), 120(3) of the Act. Those subsections provide that any disease claimed by a veteran to be war-caused shall be accepted as being so caused unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal will be deemed to be so satisfied if, after consideration of the whole of the material before it, the Tribunal is of the opinion, that the said material does not raise a reasonable hypothesis connecting the disease with the circumstances of the service rendered by the said veteran. Pursuant to section 120A of the Act an hypothesis will not be a “reasonable hypothesis” unless it conforms to a so called Statement of Principles (SoP) issued by the Repatriation Medical Authority.
3. Subsection 120(6) of the Act provides that neither party to this review bears any onus of proof.
4. The manner in which the Tribunal must approach its task where a SoP exists is set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR at 97, namely:
“(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 unknown 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.”
5. The standard of proof in relation to all other matters for determination by the Tribunal is prescribed in subsection 120(4) of the Act namely, to the Tribunal’s reasonable satisfaction. In Repatriation Commission v Smith (1987) FCR 327 the Full Court of the Federal Court equated that standard to the civil standard of proof, namely that of proof on the balance of probabilities.
6. Notwithstanding the manner in which the Tribunal is required to approach the question of entitlement to pension as outlined in Deledio (supra), the first step is to ascertain the specific injuries or diseases suffered by Mr Willson: see RepatriationCommission v Hancock (2003) 37 AAR 383. In making this finding the standard of proof, as pointed out in Benjamin v Repatriation Commission (2001) 70 ALD 622 is that of the Tribunal’s reasonable satisfaction and in which the Statement of Principles (SoP) regime established by section 196(b) of the Act has no part to play.
Issues
7. The issues to be considered are:
·The correct diagnosis of Mr Willson’s conditions, if any;
·The date of onset of those conditions, if any; and
·If there is material pointing to the clinical onset being within two years of the claimed stressor(s), whether the claimed stressor(s) amounts to a sever psychosocial stressor.
8. There was common ground between the parties that Mr Willson suffers from Anxiety Disorder and Impotence.
Evidence
9. The Tribunal received oral evidence from Mr Willson and from two specialist psychiatrists, Dr Haik and Dr Dinnen and a variety of specialist medical reports contained in the T-documents and exhibits tendered by both Mr Willson and the Respondent. Mr Willson’s evidence can be summarised as follows.
10. He is 61 years old and retired. He joined the Royal Australian navy at 15½ years of age. He did an apprenticeship of four years and then joined his first ship in 1963. He had ten periods of eligible service between 1963 and 1966. During the course of those periods of eligible service he experienced four stressful incidents. The first incident involved him being trapped in a boiler on a vessel early in his career. He was working inside the boiler when his shoulder became jammed underneath a pipe. He said that he was trapped for about 20 minutes in the boiler, but was released between 30 and 60 seconds after he began calling out for assistance. He was asked about the effect of this experience. He said words to the effect of: “I’m not claustrophobic but I plan things and it made me aware of potential problems in confined spaces.”
11. The second incident arose out of his transfer from HMAS Supply to HMAS Yarra. This transfer was apparently made at short notice. Had he remained on HMAS Supply he would have been home in tme for the birth of his daughter. He said “I found that very traumatic. In those days we didn’t have mobiles, just mail and I was very concerned that she would not get the message that I had transferred. It made me realise the Navy didn’t really value individuals and I was concerned that she would not feel valued”. He was asked how this incident affected him. He said words to the effect of: “I was concerned and there was resentment about the way government treated people”.
12. The third incident occurred when his vessel HMAS Yarra was alongside in Singapore harbour. He said that there was a suspected diver in the water and ‘scare charges’ were detonated. He said “It was a rude shock. I guess I had a reasonably protected life in the oil tanker…I was not sure that people in command knew what they were doing…it made me anxious that they were not sure what they were doing and whether they would protect anyone”.
13. The fourth incident arose out of a bombardment conducted by his vessel in support of operations on land. He said words to the effect of “I thought that this is what we were here for but it became common knowledge on ship that the bombardment had impacted on an area where there would be civilians. I found it upsetting. I again felt cheated and undervalued and there had not been a clear statement of what had happened and whether there had been casualties and if so did someone look after them. It could have been handled better and created less anxiety”.
14. He was asked about the combined effect of these incidents. He said “I recall my behaviour change significantly after a short time on HMAS Yarra. On HMAS Supply I was fairly sociable but I found that after those incidents, on leave on Yarra, I used to go off by myself and hit the grog fairly heavily and I got into fights. I became a loner. I didn’t want people to see how I was reacting to what I was feeling”.
15. Mr Willson said that despite this conduct, he had no problems with the authorities or with the police. He said he did not misbehave in Australian ports or on board where he described himself as “the perfect Petty Officer”. He limited his drinking to excess and his fighting to visits to ports overseas. He said he continued to perform his job well while on ship and back in Australia.
16. In June 1969, Mr Willson was on the flight deck of HMAS Melbourne when it struck the USS Evans which then sank. Mr Willson was not on operational service at that time.
17. Mr Willson continued to serve in the Navy until 1971 when he left after 12 years of service. At that time he had been promoted to Acting Chief Petty Officer. After leaving the Navy, Mr Willson worked as an engineer at the War Memorial Hospital in Waverley for four years. He was then selected for a more senior job as Works Manager at the Prince of Wales Hospital where he remained for the next 25 years and became the Manager of Property and Building Services.
18. In the year 2000 Mr Willson became irritable and testy in his workplace and on advice from his doctor took a year of sick leave. During the sick leave he continued to work part-time as a consultant at another hospital. During this period of leave he consulted a psychiatrist and retired in July 2001.
19. Mr Willson was asked if he had problems with his sleep. He said “in general I sleep reasonably well but there are times I don’t, for example last night. That happens one or two times a week. So I cope by working really hard and go to bed late and sleep reasonably well, but other times I lay awake thinking about things to be done and other problems in our life”. He was asked when these sleep problems began. He said “After drinking and fighting I crashed and slept until woken. At sea as watch-keeper sleep was different, you slept when you could”.
20. He was asked about the effect on him as a person of the four incidents that he had described as stressful. He said “I recall my behaviour changed significantly after a short time on HMAS Yarra. On HMAS Supply I was fairly sociable but I found after these incidents, on leave on Yarra, I used to go off by myself and hit the grog fairly heavily and used to get in fights. I became a loner, I didn’t want people to see how I was reacting to how I was feeling”. He was asked “how were you feeling?” He said there was “a certain amount of anxiousness and disappointment about how things were going. Angry”. He was asked what he meant by anxiousness.He said “like being on tenterhooks to some degree, not only at sea but generally. How long was I going to get away with this drunken aggressive behaviour? Onshore only - I was the perfect Petty Officer onboard. I knew I had to behave onboard and do my job”.
21. Mr Willson was asked if he had seen a Navy doctor about his problems. He said “no”. He was asked if he had talked to his GP or a psychiatrist about his problems in the 1970’s, 1980’s or 1990’s?He said “No and I probably never saw the GP about it”.
22. He was asked about his behaviour after he left the Navy. He said “As a civilian I realised I couldn’t behave like that. I had a good job in a good area. It was not an all male area and I found that difficult and a challenge. I found it easier to blend in there”. He was asked if he ceased to be a loner. He said “yes, but not particularly part of the group I just went with it. I didn’t feel any social connection with them. I felt this was what I needed to do to be accepted. I would go off on my own after awhile and just drink by myself and try not to pick fights. I still had problems with aggression, I had that tendency but realised it was stupid and I had to control what I was doing.” Mr Willson said that he stopped drinking to excess in the mid to late 1970’s. He said that he had received something of an ultimatum from his wife and as a result they had some counselling which helped tremendously and after that he gave up the drink. He said “I probably gave the appearance of being in control but I can still be a can of worms inside. I can get really annoyed. Fairly recently I wanted to blow the Tax Office up. My wife said if you don’t let this go you will have a heart attack. Those things can still happen”.
23. He was questioned again about problems sleeping while in the Navy. He said “the grog sure fixed it and at sea watchkeeping made you exhausted and I would sleep when I could”. He was asked if he suffered from fatigue or ever fell asleep on duty. He said “No at 20 I could go on for ever”. He said later when living at Rushcutters on a shore posting it was a quieter period of his life and he was okay.
24. He was asked to describe the muscle tension. He said “a knotted stomach like today”. He was asked how often it happened or how much tension he felt. He said “Probably when something different happened, till things settled down. For example ship manoeuvres of difficulty then it would happen. He was asked if he had this tension throughout his career in the Navy. He said “Probably when changes happened. It would subside considerably when things got in routine”.
Specialist Medical Evidence
25. Doctor Dinnen said that there had been no clinical diagnosis until recently and this meant either:
(1)There was no pre-existing condition; or
(2)There was a pre-existing condition but it became worse it recent years.
26. He said that the evidence given today by Mr Willson was the missing piece of the puzzle, that is, the continuous sleeping problems and the stomach tension. He said he thought that the incident with the USS Frank E Evans very strongly acted on his condition.
27. Dr Haik there had been some stressful incidents but no ongoing anxiety following the boiler incident. He said that after the Navy, Mr Willson had a very effective work history. Dr Haik said sleep problems and the knotting in the stomach were not symptoms of the Generalised Anxiety Disorder which is a debilitating condition and it was highly unlikely that Mr Willson had that condition in the workplace. He said that up until 1977 Mr Willson had been involved in heavy drinking in a group until his wife gave him an ultimatum and they had a good marriage thereafter. He said Mr Willson had no treatment for psychiatric condition until the latter years of his working life because of the onset of the real symptoms of the Generalised Anxiety Disorder at that time. He said that it was highly likely with Mr Willson’s type of personality that as he got older he would and did develop a Generalised Anxiety Disorder. He said that after he retired his symptoms got less.
28. Dr Dinnen said that many patients with clinically significant psychiatric conditions had functioned well, probably with some reduced efficiency and reduction of potential capacity. He said that many patients typical of Mr Willson “soldier on” and manage their families and children and relationships. Dr Dinnen said that Mr Willson got over the boiler incident but the other events produced an increased level of tension and anxiety.
Submissions
29. Mr Colborne of counsel, appeared for Mr Willson. He submitted that the evidence points to the clinical onset of the Anxiety Disorder within two years of the four incidents described by Mr Willson. Mr Colborne pointed to the evidence that Mr Willson was a loner. “On the grog. Aggressive, picking fights, irritable, anxious, on tenterhooks generally not just at sea, and not socialising”. Mr Colborne referred to evidence of one or two nights a week of disturbed sleep and the problem with muscle tension. Mr Colborne submitted that Dr Haik’s view of not functioning with psychiatric condition as described was not plausible. Mr Colborne submitted that the GARP do not support this. He said like everything else there are degrees of psychiatric conditions from mild to disabling.
30. Mr Colborne referred to the Full Court of the Federal Court decision in O’Brien in which the court accepted that: “The appellant’s stress during the period of his war service was occasioned by his inability to live with his wife, who was experiencing considerable difficulty in coping with her separation from him and caring for young children in unfavourable living conditions…”. The court went onto say “it seems to us far too subtle for the purposes of the Act to submit, as the Respondent did, that although the appellant was at the time on war service, his stress and anxiety neurosis were attributable to the war but not to war service”.
31. Mr Huthnance appeared for the Respondent. He referred to the decision of White v Repatriation Commission (2004) FCA 633 wherein Giles J said (at 30):
“In my judgement, the definition of severe psycho-social stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned. Both aspects are relevant and necessary.”
32. Mr Colborne referred the Tribunal to an earlier decision of O’Neil v Repatriation Commission (2001) FCA 1492. In that case, North J said at (8) “the subject matter is the experience connected with a Generalised Anxiety Disorder. This is, obviously, something which is peculiarly personal and dependent upon subjective feelings. Indeed, ‘stressful event’ is defined as “an occurrence which evokes feelings of anxiety or stress”.
33. Mr Colborne fairly acknowledged that the decision of O’Neil was concerned with an earlier SoP which was different in its wording and, again fairly, recognised that the decision in White’s case is binding on the Tribunal.
34. Mr Huthnance referred to the evidence of Mr Willson that he was the perfect Petty Officer on board ship, that he had no drinking or aggression problems in Australia only in foreign ports and, that after leaving the Navy he had a successful career as a senior manager for some 25 years until the year 2000. Mr Huthnance referred to the opinion of Dr Haik that the clinical onset of the Anxiety Disorder did not occur until around the year 2000 when Mr Willson began to suffer problems in the workplace and sought medical assistance.
Consideration of the Issues
35. Instrument No 1 of 2000 requires as a factor connecting the disease of Anxiety Disorder to eligible service, that the veteran experienced a severe psycho-social stressor within two years immediately before the clinical onset of Anxiety Disorder.
36. The term “severe psycho-social stressor” is defined in the SoP as: “severe psycho-social stressor means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as a divorce or separation, loss of employment, major financial problems or legal problems”.
37. As to what is an identifiable occurrence evoking feelings of substantial distress, as the Full Court pointed out in Woodward v Repatriation Commission (2003) 131 FCR 473, the stressor can be subjective as long as it is based upon reasonable grounds. Mr Colborne submits that the SoP formulation does not set the bar very high, given the examples ranging from being shot at through to legal problems. In this case Mr Willson claims four incidents as severe psycho-social stressors during the period of operational service ending in 1966.
38. The SoP requires that the “clinical onset” of the disease be within two years of experiencing the stressor. The term “clinical onset” was explained in Lees v Repatriation Commission (2002) 125 FCR 331, in the following terms, “namely that there is a clinical onset of a disease either when the person becomes aware of some features or symptoms which enable a doctor to say that the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of a disease being present”.
39. In Lees (supra) the court also followed Weinberg J in Repatriation Commission v Gosewinckel (1999) 59 ALD 690 and pointed out that for a disease to exist all the symptoms (or features) given as the diagnostic criteria in the SoP must exist, not just some of them.
40. Thus to enable the Tribunal to say that within two years of Mr Willson’s return from operational service aboard HMAS Yarra he had the diagnostic criteria to enable a diagnosis of Anxiety state to be made, he would had to have had the following, namely:
“(a)excessive anxiety and worry (apprehensive expectation), which occur on more days than not for a continuous period of at least six months, about a number of events or activities; and
(b) the person finds it difficult to control the worry;
(c)the anxiety and worry are associated with three or more of the following six symptoms, with at least some symptoms present for more days than not during the previous six months period:
(i) restlessness or feeling keyed up or on edge
(ii) being easily fatigued
(iii) difficulty concentrating or mind going blank
(iv) irritability
(v) muscle tension
(vi)difficulty falling or staying asleep, or restless unsatisfied sleep; and
(d)the focus of the anxiety and worry is not confined to features of any other axis
(i) disorder; and
(e) the anxiety; worry, or physical symptoms (as described in (c) above) cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and
(f)the anxiety and worry are not due to the direct physiological effects of a substance or a general medical condition and do not occur exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder”.
41. The evidence of Mr Willson is that at no time did he seek medical attention for any such symptoms as outlined above and at no time did he come to the adverse attention of Naval or civil authorities because of any perceived failings.
42. Mr Willson said that he suffered disturbances of his sleep and difficulty going to sleep on occasions. However his evidence about these sleep disturbances was equivocal. He said that he was able to sleep onboard ship because he was exhausted from his watchkeeping duties and he said that he slept ashore because of his abuse of alcohol. However he also said that whilst he was on shore based posting, this was a quiet time in his life and there was no mention of sleep disturbance. He said that he experienced muscle tension in his stomach during his career.
43. However Mr Willson also referred to the presence of feelings of muscle tension during his training before the incidents on the Supply or the Yarra. He referred to being a loner, to incidents of alcohol abuse, to incidents of aggression and irritability. However, it is apparent that he was selective in his indulgence in this behaviour. He said he only did it when he was overseas, in foreign ports, and that his aggression was directed to the foreign locals. He said that on board he was the perfect Petty Officer and indeed his career progressed favourably so that he became an Acting Chief Petty Officer. Subsequent to leaving the Navy he had a very successful career as a middle and senior level manager and was able to give up abusing alcohol in the mid to late 70’s after receiving counselling at the suggestion of his wife.
44. There is a dispute in the psychiatric evidence in this matter. The written and oral evidence of Dr Haik is contradicted by the oral evidence of Dr Dinnen, Dr Dinnen’s written report and the reports of other specialists and doctors who have treated Mr Willson. What is clear is that there was no specialist examination of Mr Willson’s psychiatric condition before the year 2000. Where the opinions differ, the Tribunal prefers the evidence and opinions of Dr Haik. Dr Haik opined, “on closer consideration, it is implausible that these navy stressors have facilitated the development of Mr Willson’s Generalised Anxiety Disorder. This is because there is no evidence that he suffered from GAD prior to the late 1990’s. As noted above, he functioned well in the workplace and was promoted and his marriage was fulfilling and rewarding after attending the encounter group in 1977. Therefore, even using a very liberal test, it is implausible to make a case for GAD being a result of his navy stressors because there is no connection in time as correctly defined by the SoP for Generalised Anxiety Disorder. Similarly, his obsessive traits were not disabling until recent years. Understandably Mr Willson has attempted to explain, from his lay perspective, his development of anxiety symptoms when he proposed ‘I get anxious and upset about things and I think, that’s caused this. I think about it more now. We were being used by the governments’. However, his development of the anxiety symptoms is best considered a function of involutional change in the setting of his obsessive compulsive personality traits. He said ‘I know I’ve been a control freak for years’ Therefore, when matters do not go to plan, he perceives a sense of frustration and irritability and this has been disabling in his workplace beginning about five or six years ago”.
45. I do not accept, noting the equivocal nature of his evidence about it, that Mr Willson experienced sleep disturbance to the degree he has claimed in the two years after the claimed stressors. Similarly, noting the selective nature of his conduct on board ships and ashore, I do not accept that the claimed alcohol abuse, aggression and irritability were of the degree, he has claimed. Moreover, I do not accept that the degree of muscle tension and anxiety that he has claimed were present during the relevant period. The evidence is that Mr Willson continued to function well and at a relatively high level in the Navy during the relevant period and went on to achieve at even higher levels in private industry for 25 years. I accept the opinion of Dr Haik that it is implausible to link the onset of debilitating symptoms later in life with his Naval service. On the material before me I find that the clinical onset of Mr Willson’s anxiety state was not within two years of his experiencing the claimed psycho-social stressors.
46. It was agreed by the parties that the claim for Impotence depended on a finding in favour of the Anxiety Disorder because the SoP No 97 of 1996 as amended by Instrument No 16 of 2002 required that Mr Willson be suffering from a specified psychiatric condition at the time of the clinical onset of Impotence.
47. I find therefore, that whereas I am reasonably satisfied that Mr Willson has the diseases of Anxiety Disorder and Impotence and that there exists a hypothesis linking those diseases with operational service, that hypothesis is not a “reasonable hypothesis” as it fails to conform to the appropriate SoP.
48. The Tribunal is therefore deemed to be satisfied beyond reasonable doubt that the diseases of Anxiety Disorder and Impotence suffered by Mr Willson are not war-caused.
49. The decision under review is therefore affirmed.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of M A Griffin, Member
Signed: Neil Glaser
AssociateDates of Hearing 16 February 2005
Date of Decision 13 May 2005
Counsel for the Applicant Mr Colborne
Counsel for the Respondent Mr Huthnance
0
12
0