Wootton and Repatriation Commission

[2008] AATA 355

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 355

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q 200600883

VETERANS’ APPEALS DIVISION		)
Re		THOMAS WOOTTON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Deputy President P E Hack SC

Associate Professor J B Morley RFD, Member

Date2 May 2008

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..............Signed................

Deputy President

CATCHWORDS

VETERANS’ AFFAIRS – disability pension – depressive disorder and irritable bowel syndrome – relationship between service and events leading to disorder – whether hypothesis reasonable – question of when the clinical onset occurred –  hypothesis not reasonable – no clinical onset of disorder within 12 months of claimed stressor – decision under review affirmed.   

Veterans’ Entitlements Act – ss 9, 13, 120, 120A

Bushell v Repatriation Commission (1992) 175 CLR 408

Eastv Repatriation Commission (1987) 16 FCR 517

REASONS FOR DECISION

2 May 2008 Deputy President P E Hack SC
Associate Professor J B Morley RFD, Member

Introduction

1.The applicant, Mr Thomas Wootton, suffers from depressive disorder and irritable bowel syndrome. He contends that those conditions are the result of his service in the Royal Australian Air Force (RAAF) and that, as a result, he is entitled to a pension assessed upon the basis that those conditions are war-caused.

2.The respondent, the Repatriation Commission, accepts that Mr Wootton suffers from the conditions but contends that they are not related to his service.

Factual Background

3.Mr Wootton joined the RAAF in March 1958 when he was aged 18. He trained as an airframe fitter. In December 1963 he was posted to the RAAF Base in Butterworth, Malaya. His wife and two young children travelled with him and the family lived in a house off the base. Mr Wootton and his family returned to Australia from Malaya in June 1966 when Mr Wootton was posted to Townsville.

4.Whilst Mr Wootton was at Butterworth he had two periods of service, each of about 6 weeks, at a United States Air Force (USAF) base in Ubon, Thailand. His family remained in Malaya during those postings. Mr Wootton continued his trade of airframe fitter during this service but during two weeks of each period of service at Ubon he was rostered to the Operational Readiness Post (ORP). Whilst there he (and others) was required to remain on the flight line in order to prepare a Sabre fighter for immediate takeoff in the event of any attack on the USAF Phantom bombers that were taking off for, and returning from, bombing missions in Vietnam.

5.During the first of the periods of service in Ubon, between 22 March 1964 and 20 May 1964, attendance at the ORP was required only at two times each day, when the planes took off and when they returned. On Mr Wootton’s return to Ubon, between 1 July 1965 and 26 August 1965, the USAF was engaged in “Operation Rolling Thunder” which involved flying continuous bombing missions with the result that those involved in the ORP were at a high level of alert for much of each day rather than on two occasions each day as had been the case on the first period of service.

6.Mr Wootton said that he found ORP duty to be stressful, particularly on the occasions when a plane returned with a bomb that had failed to release, but there were no occasions during Mr Wootton’s service in Ubon when the potential for harm ever translated into reality.

7.In about November 1964, that is, in the period between the postings to Ubon, Mr Wootton’s unit was sent to Singapore during the “Indonesian confrontation” and was based at the Royal Air Force base at Changi. Whilst there, and towards the end of a posting of about 2 weeks, Mr Wootton was hospitalised for what appears to be dengue fever. Mr Wootton is adamant that he was told at the time of his hospitalisation that that was the diagnosis, but the medical records of the hospital admission do not show such a diagnosis; they record a diagnosis of pyrexia (fever) of unknown origin and a “viral infection”. There is no reason to doubt that Mr Wootton contracted dengue fever; subsequent serological testing, not available in 1964, demonstrates that that is so. But there is reason to wonder whether Mr Wootton is correct when he says that he was given a diagnosis of dengue fever at the time. In any event we need not decide that issue.

8.Mr Wootton was discharged from hospital on 24 November 1964. His unit had returned to Butterworth some days earlier. When Mr Wootton eventually returned to Butterworth, and his family, his wife confronted him with the accusation (which was plainly false) that he had been confined to hospital in Singapore for treatment of venereal disease. She had, apparently, been told this by one of his workmates as the explanation for Mr Wootton’s delayed return from Singapore. His wife was angry and would not then, nor subsequently, accept Mr Wootton’s denials of the allegation and his explanation of the hospitalisation. As Mr Wootton put it, “my whole marriage fell to bits at that time”.

9.According to Mr Wootton his marriage never recovered from this event. He and his wife remained together until the children left school and Mr Wootton moved out of the marital home in about 1981.

10.Mr Wootton says that, after the events of his return from Singapore, his wife’s behaviour caused him to withdraw from social relationships. He did not feel he could trust his colleagues and his work relationships became more difficult.

11.Mr Wootton and his family remained in Butterworth until June 1966 when he was posted to Townsville. He remained in the RAAF until July 1978 by which time he had completed 20 years service. At the time of his discharge Mr Wootton held the rank of Flight Sergeant, having been promoted over the years from Leading Aircraftsman, the rank he held in November 1964. Mr Wootton’s decision to leave the RAAF in 1978 was influenced, in part, by his view that he had not been given the promotion to Warrant Officer that he considered he deserved.

12.After his discharge from the Air Force, Mr Wootton obtained civilian employment in a variety of different jobs until he retired in 2001 at the age of 60, when he was eligible to receive a service pension.

13.Mr Wootton commenced a de facto relationship in about 1994 and that relationship continues. Mr Wootton and his de facto spouse act in loco parentis to his spouse’s granddaughter as a consequence of the death of the mother of the child in 1999 and the imprisonment of the father of the child. Mr Wootton’s de facto spouse obtained custody following bitter, but quite short, custody proceedings in the Family Court involving the gaoled father of the child.

14.In about 1988 Mr Wootton’s former wife died, seemingly retaining her animosity towards him. Two of his brothers died in the early 1990’s, each within a few days of that brother’s 50^th birthday, from heart disease. Mr Wootton said that he was not unduly troubled by that somewhat unusual coincidence.

15.At various times during his RAAF service Mr Wootton underwent service medicals. On each of the occasions – May 1967, April 1969, January 1973, April 1974 and May 1978 – Mr Wootton’s psychiatric condition was recorded as normal. Dr M A Seedat has been Mr Wootton’s local medical practitioner since 1992. In July 2004 and in support of Mr Wootton’s claim for a disability pension on the basis of “anxiety disorder, depression” Dr Seedat indicated that Mr Wootton first consulted him regarding that condition that month. There is no evidence that Mr Wootton had earlier sought medical assistance for his mental condition however described.

Procedural Background

16.Mr Wootton lodged his claim for disability pension for the condition of depression, anxiety disorder, irritable bowel syndrome and dengue fever in July 2004. A delegate of the Commission considered the claim and concluded in September 2004 that there was no medical condition present to answer the claim for depression, anxiety disorder and dengue fever and that the condition of irritable bowel syndrome, while present, was not related to service.

17.That decision was affirmed in substance by the Veterans’ Review Board on 15 November 2006. The Board varied the decision by amending the description of the claimed psychiatric disorder to anxiety disorder but otherwise affirmed the decision.

18.Mr Wootton commenced these proceedings in December 2006.

The Issues

19.Despite earlier views regarding the proper diagnosis of Mr Wootton’s psychiatric condition, it is now accepted by both parties that the appropriate diagnosis is dysthymic disorder, a species of depressive disorder. That is the view of Dr Janis Carter, the consultant psychiatrist called on behalf of Mr Wootton, and of Dr Philip Morris, the consultant psychiatrist called on behalf of the Commission.

20.It is agreed by the parties that the issue here is not so much a question of diagnosis but of when a diagnosis could be made. In the language of the statutory scheme, when was the clinical onset of depressive disorder?

21.The other issue raised is whether there is a relationship between the event said, on Mr Wootton’s case, to have brought about the depressive disorder and his relevant service.

22.It is accepted by Mr Kelly, who appeared for the Commission, that if we were to conclude that depressive disorder was war-caused then it would follow that the condition of irritable bowel syndrome was also war-caused.

23.We mention, for completeness, that Mr Clutterbuck, counsel for Mr Wootton, did not press a claim for pension at either the intermediate rate or the special rate.

The Statutory Scheme

24.It is not necessary in the present case to undertake any detailed examination of the statutory scheme found in the Veterans’ Entitlements Act 1986 (Cth) (the VEA). It will suffice to mention briefly the principle features of the legislation that operates in the present case.

25.By virtue of s 13(1) of the VEA, the Commonwealth is liable to pay a pension by way of compensation to a veteran who has become incapacitated from a “war-caused disease”. A disease is, by s 9(1) of the VEA, taken to be war-caused if it resulted “from an occurrence that happened while the veteran was rendering operational service” or if it “arose out of, or was attributable to, any eligible war service rendered by the veteran”.

26.Sections 120 and 120A of the VEA deal with the question of causation and the standard of proof for determining the issue of causation. Again, it will suffice to note that by operation of the former section where, as here, the claim relates to operational service rendered by the veteran, the Commission (and this Tribunal in its stead) is required to determine that the disease is a war-caused disease unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. That conclusion may be reached if, after a consideration of the whole of the material, that material does not raise a reasonable hypothesis connecting the disease with the circumstances of the particular service.

27.The effect of s 120A is that an hypothesis connecting the disease with the circumstances of service is reasonable only if a Statement of Principles by the Repatriation Medical Authority “upholds” the hypothesis. The Statements of Principles set out “the factors that must as a minimum exist” and “which of those factors must be related to service” before it may be said that a reasonable hypothesis has been raised connecting a disease of the kind specified in the Statement of Principles and the circumstances of service.

Application of the Statutory Scheme

28.The starting point, given that there is no dispute about the diagnosis, is the identification of the hypothesis said to arise from the material. Mr Clutterbuck put forward the hypothesis that the suffering by Mr Wootton of a marital breakdown, arising as a consequence of wrong information conveyed by a third party to his wife while he was rendering operational service, caused the clinical onset of depressive disorder within a short time after that breakdown. As it seems to us, the material raises such an hypothesis.

29.There is a Statement of Principles in force in relation to depressive disorder, No 27 of 2008[1]. That being so, it is necessary to consider whether the hypothesis, by which it is said a connection is established between disease and service, is a reasonable one. That is, whether the hypothesis “fits” or is consistent with, the template in the Statement of Principles.

[1]It is common ground that earlier Statements of Principles are not materially different so far as the present issue is concerned and that our conclusions in relation to the present Statement of Principles will determine the result under earlier versions.

30.Clause 6 of Statement of Principles No 27 of 2008 sets out the factors that must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder with the circumstances of a person’s relevant service. The hypothesis put forward by Mr Clutterbuck, he submitted, satisfied paragraph 6(a)(vi) of the Statement of Principles, that is,

“experiencing a category 2 stressor within the one year before the clinical onset of depressive disorder.”

The expression “a category 2 stressor” is defined in paragraph 9 as,

“one or more of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry …”

The “following negative life events” include the break-up of a close personal relationship.

31.The difficulty that we have with the argument is that Mr Wootton’s evidence, and the histories recounted by him to Dr Carter and Dr Morris, seem to us not to speak of effects of the nature required by the second part of the definition. Whilst the material suggests that there was a degree of upset and emotional reaction to the disharmony with his wife it does not suggest that Mr Wootton was caused to feel “on-going distress, concern or worry”. Thus one element of the hypothesis relied upon is not pointed to or supported by the material before us[2]. That being so the hypothesis raised is not reasonable.

[2]        Eastv Repatriation Commission (1987) 16 FCR 517.

32.There is a further difficulty with the hypothesis, again taking the material at its most favourable for Mr Wootton. Paragraph 5 of the Statement of Principles requires the factor to be “related to the relevant service rendered by the person”. There is no relationship between Mr Wootton’s service and his marriage break-up beyond the mere temporal coincidence of the events. Whilst Mr Wootton’s admission to hospital may have had the requisite relationship with his service, the actions of the person who wrongly informed his spouse had nothing to do with his service, and the evident fragility of the marriage and the refusal of the spouse to accept Mr Wootton’s denials are equally unrelated. For this additional reason we conclude that the hypothesis is not reasonable.

33.In light of these conclusions Mr Wootton’s claim for disability pension for depressive disorder must fail, as must the claim for irritable bowel syndrome.

34.Had we been of the view that the hypothesis was reasonable it would have been necessary for us to make findings of disputed fact and to consider whether we were satisfied beyond reasonable doubt that Mr Wootton’s depressive disorder was not war-caused. That would have required us to consider the conflicting medical evidence about clinical onset of depressive disorder. Against the possibility that our earlier conclusions might be held to be affected by legal error we propose to examine that evidence and make findings on it.

35.It will be recalled that the hypothesis was said to satisfy the factor that required that the veteran had experienced “a category 2 stressor within the one year before the clinical onset of depressive disorder”. The medical controversy in the present case concerned the time of clinical onset of the depressive disorder.

36.We have two differing views on that question. Dr Morris, who saw Mr Wootton in August 2007, referred to “a 10 year history of chronic depression”. He concluded,

“The dysthymic disorder does not seem to be related to his military service. The condition developed many years after his leaving the RAAF and the circumstances at the time it developed were not related to his military service.”

37.For her part, Dr Carter,

“would date the onset of the dysthymic disorder to the time when his marriage started to get into trouble and its continuation through the long number of years he stayed with his wife, when effectively the marriage had broken down, for the sake of the children. Therefore, I believe the genesis of the dysthymic disorder was the marriage break-down.”

38.We have no hesitation in accepting the view of Dr Morris and rejecting that of Dr Carter. Dr Morris’ opinions impressed us as being logically and soundly based and, importantly, objective. The diagnostic criteria for dysthymic disorder require, amongst other matters, a depressed mood with particular symptoms for at least two years. Like Dr Morris, we cannot see, in the evidence given by Mr Wootton or in the histories recorded by either Dr Morris or Dr Carter, a description of symptoms of that nature at or about the time of the return from Singapore or its aftermath, or, indeed, for a number of years thereafter.

39.Dr Morris’ diagnosis of recent clinical onset is consistent with (and that of Dr Carter inconsistent with) the career of Mr Wootton in the Air Force post-Singapore, his working life thereafter, the absence of any signs or complaint of mental illness in Air Force medical examinations, the establishment of a new relationship with extended family responsibilities and the absence of complaint to his treating general practitioner.

40.Mr Kelly urged us to conclude that Dr Carter was partial in giving her evidence in that her conclusions varied as matters required to be demonstrated for pension eligibility varied. There is much to support the view that Dr Carter lacked desirable objectivity in her reports and in giving her evidence. Her reports are indeed argumentative and give the impression that she is seeking to make a case rather than reporting objectively on clinical findings and their cause. By way of example, her reports frequently contain references to what might have been a “stressor” for the purpose of the application of the statutory scheme. This tendency to argue the case carried over into her oral evidence. But we need not determine whether Dr Carter was indeed partial in order to reject her evidence; it is sufficient for us to say that we have a very clear preference for the evidence of Dr Morris. We are satisfied beyond reasonable doubt by the evidence of Dr Morris that clinical onset of depressive disorder did not occur until relatively recently. The evidence of Dr Carter does not cause us to doubt that opinion because we do not regard her evidence as being based upon reason.

41.We accept that the High Court pointed out in Bushell v Repatriation Commission[3] that it will be a rare case that the Tribunal would reject the opinion of a medical practitioner, qualified in his or her field, that there is a causal link, given the standard of proof that applies in these cases. This is such a case because of the view we take of the objectivity of the evidence of Dr Carter.

[3] (1992) 175 CLR 408.

42.Thus we conclude that Dr Morris is correct in his opinion that the clinical onset of Mr Wootton’s depressive disorder was of relatively recent times and was not related temporally to his service in 1964.

43.It follows that we would affirm the decision under review.

I certify that the 43 preceding paragraphs are a true copy of the reasons for decision of Deputy President P E Hack SC and Associate Professor J B Morley RFD, Member
Signed:         ..................Signed...................................................

Jacqueline Woods, Associate

Date of Hearing  9 April 2008

Date of Decision  2 May 2008  

Counsel for the Applicant         Mr R Clutterbuck
Solicitors for the Applicant        Haney Lawyers
Solicitors for the Respondent    Departmental Advocate