Zerner and Repatriation Commission
[2014] AATA 310
•16 May 2014
[2014] AATA 310
Division Veterans' Appeals Division File Number(s)
2013/4166
Re
Robert Zerner
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 16 May 2014 Place Brisbane The decision under review is affirmed.
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Senior Member Bernard J McCabe
CATCHWORDS
VETERANS’ AND MILITARY COMPENSATION – Applicant diagnosed with generalised anxiety disorder – Several accepted service-related conditions – Requirement that applicant experienced chronic pain for at least six months prior to date of onset – No medical evidence of chronic pain during relevant period – reviewable decision affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
Statement of Principles concerning anxiety disorder No. 102 of 2007
REASONS FOR DECISION
Senior Member Bernard J McCabe
16 May 2014
Mr Robert Zerner was diagnosed with generalised anxiety disorder in 2012. He asked the Repatriation Commission to accept the condition for the purposes of the
Veterans’ Entitlements Act 1986(Cth) (“the Act”) because he argues it arose out of his defence service with the Royal Australian Air Force (RAAF). He alleges specifically that the condition was brought on by chronic pain that he experiences as a result of accepted service-related injuries to his right shoulder and right knee.
The parties agree I must be satisfied Mr Zerner experienced chronic pain from his service-related conditions for at least 6 months before the date of onset of his anxiety condition if he is to succeed in his claim. That requirement is set out in the Statement of Principles concerning anxiety disorder (“SoP”), which is No 102 of 2007. Mr Williams, for the Repatriation Commission, agreed the date of onset was during the course of 2010.
The evidence establishes Mr Zerner is currently experiencing chronic pain, most likely as a result of his accepted shoulder and knee conditions (although he has other health problems as well). That much is clear from the evidence of Dr Pretorius, his treating orthopaedic surgeon, and from the prescription painkillers Mr Zerner consumes each day. But I must focus on his situation in early 2010, or perhaps late 2009.
MR ZERNER’S EMPLOYMENT HISTORY
Mr Zerner worked as an electrician. He served in the RAAF between 14 July 1969 and 13 July 1981. The period from 7 December 1972 until the date of discharge qualifies as eligible defence service for the purposes of the Act: s 69.
Mr Zerner left the RAAF on 13 July 1981 and commenced work as an electrician in the mines. He worked on heavy equipment. His right knee and right shoulder were a problem, and he developed a left shoulder condition in due course. He could not undertake some of the physical aspects of the job. He left the mine he was working at because of his health in 2002 but soon after landed another job at a mine in central Queensland. It was less of a “hands on” role: he had a number of subordinates whom he supervised who were able to do most of the heavy work.
The applicant was using cannabis with increasing frequency during this period.
He continued doing so even after his employer commenced a drug screening program for employees. He left the employ of that company in 2006. He worked as an electrical maintenance officer at a resort in central Queensland for two years before being employed to assist in the establishment of a retirement community on the coast near Rockhampton. He and his partner effectively retired to live on Great Keppel Island in 2010.
MR ZERNER’S MEDICAL HISTORY
Mr Zerner has several service-related disabilities, including:
·osteoarthritis of the right glenohumeral and AC joint;
·rotator cuff syndrome of the right shoulder; and
·osteoarthritis of the right knee.
The applicant also has a number of conditions that have not been accepted as being related to his service, including bipolar disorder, alcohol dependence and cannabis abuse (both in remission), and generalised anxiety disorder. His partner, Ms Gearin, said she noticed the applicant’s bipolar disorder in the early 2000s. Once the condition was identified, it took some time for the doctors to identify the right medication to treat the condition. That task may have been complicated by the fact Mr Zerner was using cannabis regularly. He said the cannabis helped him to deal with his emerging anxiety issues and with the pain from his shoulder and knee conditions.
Mr Zerner is right-handed. He says he cannot lift that arm above the horizontal. If he raises it, he experiences shooting pain in the shoulder. The pain settles quickly once he ceases the movement but he said in his oral evidence that the shoulder is constantly painful. He has to nurse the shoulder in order to keep the pain under control. He also says he has no grip strength or power in the limb. His knee condition causes more pain.
When the knee condition flares up, he cannot walk. Even at the best of times, he cannot place all of his weight on his right leg, which makes it impossible to climb a ladder or stairs. He said in his oral evidence that the pain is constant but he also experiences acute episodes which are intensely painful. When asked at the hearing, he suggested the pain from the knee was the most serious problem.
Dr Rofe, the applicant’s psychiatrist, offered a diagnosis of generalised anxiety disorder in his report of 21 September 2012 (Exhibit 1 p 83). Dr Rofe suggested those symptoms emerged over the preceding two years, which suggests a date of onset in mid-2010.
He referred to the physical limitations and pain associated with the knee and shoulder conditions – although of course that opinion is based on the applicant’s self-reporting of symptoms. I note the medical records obtained from the general practitioner do not highlight knee or shoulder symptoms during that period, although there are a number of references to anxiety (including anxiety in connection with a criminal prosecution after the applicant was charged with possessing cannabis in 2009).
There is evidence suggesting the applicant is currently experiencing chronic pain from his accepted knee and shoulder conditions. The medical records obtained from
Mr Zerner’s general practitioner confirm the applicant now takes prescription painkillers on a daily basis. Dr Pretorius also opined in a medical statement dated 17 October 2013 that the applicant has been suffering chronic pain in the shoulder since 2010 and in the knee since 2007 – although it should be noted Dr Pretorius has only been treating the applicant since 2012. It is also unclear whether Dr Pretorius was offering a diagnosis of chronic pain, which might fall outside his area of specialty, or simply opining as to the onset of symptoms. I note Dr Pretorius’ original report dated 13 February 2012 observed that the applicant had experienced degeneration in the knee over the previous five years “that is starting to give him some problems. Certainly the knee is too good to consider a knee replacement.” Dr Pretorius also referred to the applicant’s claim “he has had some problem with the right shoulder for the last two years…”. That evidence does not suggest the applicant was debilitated by pain in the relatively recent past.
The picture is complicated by other aspects of the applicant’s health and lifestyle. He said in his evidence that the pain from his shoulder in particular would keep him awake at night, but Ms Gearin said Mr Zerner is also a heavy snorer who has difficulty sleeping on his back. Mr Zerner said he would deal with the pain by taking heavier doses of his
anti-psychotic medication which would “knock him out” but which had other undesirable side effects. He was also consuming cannabis regularly prior to 2010 – to cope with the anxiety and pain, he said. But those matters, together with the applicant’s psychiatric history, make it difficult to untangle precisely what was going on with his health (and with the pain emanating from his shoulder and knee in particular) in or around 2010. There is no doubt he had serious health problems – especially mental health problems – but it is difficult to know what to make of the applicant’s recollection that he was suffering chronic pain in 2010. I note he said in his oral evidence that he was taking regular prescription painkillers at that time, but that is not consistent with the records of the general practitioner. Ms Gearin recalls the applicant took over-the-counter analgesics regularly during this period, but there may have been a variety of motivations for that practice. (I note he had an established track record of substance abuse, and there is evidence of other compulsive behaviour in his medical records.) The fact he was regularly consuming painkillers he acquired over-the-counter – if that is what occurred – does not conclusively establish he was experiencing “continuous or almost continuous pain” of sufficient intensity “to cause interference with usual work or leisure activities or activities of daily living”: clause 9 of the SoP.
WHAT THE LEGISLATION REQUIRES…
In order to succeed in this application, I must be satisfied Mr Zerner’s anxiety condition is related to his service. He says the anxiety condition is the product of pain associated with his accepted conditions. To assess that claim, I must have regard to the SoP.
Factor 6(a)(viii) of the SoP refers to “having chronic pain of at least six months duration at the time of the clinical onset of anxiety disorder”. Given the anxiety condition appears to have manifested itself in mid-2010, I need to be satisfied the applicant experienced chronic pain within the meaning of clause 9 of the SoP from his service-related conditions in the period between late 2009 and early 2010.The contemporaneous medical records of the general practitioner do not support a finding of chronic pain in the period in question. The opinions of Drs Pretorius and Rofe rely on the applicant’s recollection of symptoms. Even Ms Gearin’s evidence necessarily relied on what her partner told her: pain is, after all, a subjective experience. I accept the applicant experienced episodic pain from his accepted conditions but he has a variety of health problems that may have had the effect of clouding his perception and insight into the source and intensity of particular problems.
I am not satisfied the applicant experienced continuous or almost continuous pain (as opposed to episodic pain) from his accepted conditions during the period in question.
CONCLUSION
The decision under review is affirmed.
I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe. ........................................................................
Associate
Dated 16 May 2014
Date of hearing 8 May 2014 Advocate for the Applicant Mr A Hornby Advocate for the Respondent Mr B Williams
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