ZHBH and Military Rehabilitation and Compensation Commission (Compensation)
[2022] AATA 3549
•13 October 2022
ZHBH and Military Rehabilitation and Compensation Commission (Compensation) [2022] AATA 3549 (13 October 2022)
Division:VETERANS' APPEALS DIVISION
File Number:2020/4643
Re:ZHBH
APPLICANT
AndMilitary Rehabilitation and Compensation Commission
RESPONDENT
Decision
Tribunal:Member D Mitchell
Date:13 October 2022
Place:Brisbane
The Tribunal affirms the decision under review.
...............................[SGD].................................
Member D Mitchell
CATCHWORDS
VETERANS’ AFFAIRS – claim for acceptance of liability – mental health conditions – diagnosis – date of onset – contributed to, to the required degree by military service – decision under review affirmed
LEGISLATION
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth)
STATEMENT OF PRINCIPLES
Statement of Principles concerning Anxiety Disorder (No 103 of 2014)
Statement of Principles concerning Bipolar Disorder (Balance of Probabilities) (No 54 of 2018)
Statement of Principles concerning Personality Disorder (Balance of Probabilities (No 18 of 2018)
Statement of Principles concerning Schizophrenia (Balance of Probabilities) (No 84 of 2016)
CASES
Abrahams v Comcare (2006) 93 ALD 147
Australian Postal Corporation v Bessey [2001] FCA 266; (2001) 32 AAR 508
Bailey v Broadsword Marine Contractors Pty Ltd (2017) 257 FCR 549
Canute v Comcare (2006) 226 CLR 535
Comcare v Laidlaw (1999) 89 FCR 141
Comcare v Sahu-Khan (2007) 156 FCR 536
Comcare v Stefaniak [2020] FCA 560; (2020) 170 ALD 262
Dustan v Comcare [2006] FCA 1655; (2006) 93 ALD 390
Kennedy v Comcare (2014) 63 AAR 100
McKenzie and Military, Rehabilitation and Compensation Commission [2010] AATA 275
Military, Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Walters and Comcare [2021] AATA 14
Whitlock and Comcare [2020] AATA 1353
REASONS FOR DECISION
Member D Mitchell
13 October 2022
By way of an application for review of decision dated 29 July 2020, ZHBH (the Applicant) sought review by the Tribunal of a decision made by the Respondent on 2 July 2020 in relation to her claim for acceptance of liability for bipolar type II disorder and posttraumatic stress disorder (PTSD).[1]
[1] Exhibit 1, T Documents, T1, pages 1-6, Application for Review.
On 2 July 2020, the Respondent decided to affirm the determination dated 18 March 2020 to:[2]
(a)accept the Applicant’s claim in respect of aggravation of pre-existing alcohol use disorder with effect from 14 October 2019; and
(b)decline her claim for bipolar type II disorder and PTSD under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act1988 (Cth) (the DRCA).
[2] Exhibit 1, T Documents, T27, pages 345-347, Reviewable Decision.
background
The Applicant joined the Royal Australian Army on 5 April 1982, shortly before her 18th birthday and was discharged on 14 May 1984.[3]
[3] Exhibit 1, T Documents, T11.4, pages 220-223, Statement of Service including extract of service records.
On 21 June 2019, the Applicant sent an undated statement to the Department of Veterans’ Affairs (DVA) outlining her recollection of sexual harassment she alleges occurred in 1983 during her service.[4]
[4] Exhibit 1, T Documents, T6, pages 189-192, Email chain between the Applicant and DVA and T6.1, pages 193-194, Statement of the Applicant.
On 14 October 2019, the Applicant lodged claims with DVA seeking acceptance of liability for:
(a)
borderline personality disorder,[5] she said the condition occurred on
1 December 1983 due to her commanding officer sexually harassing her.[6]
(b)PTSD,[7] she said the condition occurred on 1 December 1983 due to having been sexually harassed during her military service.[8]
(c)alcohol and drug dependence,[9] she listed that she started noticing the symptoms in December 1983.[10]
[5] Exhibit 1, T Documents, T11, pages 208-213, Claim for borderline personality disorder.
[6] Exhibit 1, T Documents, T11, page 210, Claim for borderline personality disorder.
[7] Exhibit 1, T Documents, T12, pages 224-228, Claim for PTSD.
[8] Exhibit 1, T Documents, T12, page 226, Claim for PTSD.
[9] Exhibit 1, T Documents, T13, pages 229-233, Claim for alcohol and drug dependence.
[10] Exhibit 1, T Documents, T13, page 231, Claim for alcohol and drug dependence.
In support of her claims, the Applicant attached:
(a)a diagnosis form completed by Dr Sadasivan, psychiatrist, dated 4 October 2019;[11]
(b)a statement of her mother dated 5 July 2019;[12]
(c)an undated personal statement;[13] and
(d)a statement of Service including extract of service records.[14]
[11] Exhibit 1, T Documents, 11.1, page 214, Diagnosis form completed by Dr Sadasivan.
[12] Exhibit 1, T Documents, 11.2, page 215, Statement of the Applicant’s mother.
[13] Exhibit 1, T Documents, 11.3, pages 216-219. Statement of the Applicant.
[14] Exhibit 1, T Documents, 11.4,pages 220-223, Statement of Service including extract of service records.
On 18 March 2020, the Respondent made a determination accepting the Applicant’s claim for aggravation of alcohol use disorder with effect from 14 October 2019, however declined the Applicant’s claim for bipolar type II disorder and PTSD.[15]
[15] Exhibit 1, T Documents, T22, pages 327-332, Determination – aggravation of alcohol use disorder, bipolar II disorder and PTSD.
In relation to the Applicant’s claim for PTSD, the Respondent was not satisfied that she suffered an injury or disease within the meaning of section 5A of the DRCA.[16]
[16] Exhibit 1, T Documents, T22, pages 330-331, Determination – aggravation of alcohol use disorder, bipolar II disorder and PTSD.
In relation to the Applicant’s claim for bipolar type II disorder, the Respondent was not satisfied that her military service contributed to the disease to a significant degree.[17]
[17] Exhibit 1, T Documents, T22, page 331, Determination – aggravation of alcohol use disorder, bipolar II disorder and PTSD.
On 15 April 2020, the Applicant sought review of that decision[18] and provided a statement of her ex-fiancé dated 14 April 2020.[19]
[18] Exhibit 1, T Documents, T24, pages 335-337, Email chain between DA and the Applicant regarding request for reconsideration.
[19] Exhibit 1, T Documents, T24.1, pages 338-339, Statement of Applicant’s ex-fiancé.
On 2 July 2020, the Respondent affirmed the determination of 18 March 2020, determining that:[20]
(a)the Applicant did not have a confirmed diagnosis of PTSD and therefore, no confirmed injury or disease existed within the meaning of section 5 of the DRCA to answer the claim;
(b)the evidence from both an independent specialist and the Applicant’s treating psychiatrist both provided that her bipolar type II disorder had no relationship to her military service;
(c)the evidence on file in regard to the Applicant’s borderline personality disorder showed that the condition had no relationship to her military service; and
(d)consequently, despite obtaining new evidence from the Applicant’s treating psychiatrist, there were no grounds to alter the determination in any way.
[20] Exhibit 1, T Documents, T27, pages 345-347, Reviewable Decision.
On 29 July 2020, the Applicant lodged an application for review with the Tribunal of the decision dated 2 July 2020.[21]
[21] Exhibit 1, T Documents, T1, pages 1-6, Application for Review.
On 4 January 2021, the Applicant lodged a claim with DVA seeking acceptance of liability for major depressive disorder.[22] The Applicant said that the condition occurred on
1 September 1983 due to:[23]Severe sexual harassment from the [RSM] at a survival exercise Have a witness statement to prove my intense fear as he came after shooting his rifle Later tried to get me onto a bus full of drunken male soldier including himself out of revenge for refusing to have sex with him. I was the only 19 yr old sober girl to get on that bus. I was terrified of him after that survival camp. He charged me for not getting on that bus. A totally unfair charge because other soldiers didn’t get on that bus. One was [CS]. I waved at two others. [DP and JP] advised me to return home with them for my safety. I went awol to seek help from the govt which I succeeded with however [the Col] lied to cover for the RSM stating that there was no sexual harassment. [CH] is also witness to this event.
[22] Exhibit 3, Supplementary T Documents, ST6, pages 372-378, Claim for major depressive disorder.
[23] Exhibit 3, Supplementary T Documents, ST6, page 374, Claim for major depressive disorder.
The Applicant provided a number of documents in support of her application.[24]
[24] Exhibit 3, Supplementary T Documents, ST6, page 375, Claim for major depressive disorder.
On 24 May 2021, the Respondent accepted the Applicant’s claim for major depressive disorder with effect from 1 October 2020.[25] On 23 November 2021, the Respondent varied that determination to the extent that the acceptance of liability for the condition was varied to 1 October 1996.[26]
[25] Exhibit 4, Supplementary T Documents, ST9, pages 381-385, Determination – major depressive disorder.
[26]On 16 February 2022, the Respondent varied the determination dated 18 March 2020 in relation to the claim of aggravation of alcohol use disorder to the extent that the date of effect of the acceptance of liability for the condition was varied to 28 June 2019.[27]
[27] Exhibit 2, Supplementary T Documents, ST1.1, pages 357-359, Reviewable decision, varying determination dated 18 March 2020 with regard to date of onset of aggravation of alcohol use disorder.
A Hearing was conducted in relation to the Applicant’s application to the Tribunal on 13 and 14 September 2022. All parties appeared by MS Teams. The Applicant was represented by Mr Bruce Turner, Senior Advocate RSL State Branch, Victoria. The Applicant gave evidence under affirmation. The Respondent was represented by Ms Sarah Wright of Counsel being instructed by the Australian Government Solicitor (AGS).
Issues
The issue before the Tribunal is whether liability exists under section 14 of the DRCA for the Applicant’s claimed conditions of borderline personality disorder and PTSD, or for any other mental health conditions.
In considering this issue, the first step is for the Tribunal to determine the appropriate diagnosis and onset of the conditions forming part of the Applicant’s claim.
The next step is for the Tribunal to consider whether those conditions or an aggravation thereof were contributed to the required degree by the Applicant’s military service for the purpose of the DRCA, noting the required degree of contribution will be impacted upon by the date of onset.
legislative overview
The DRCA applies in relation to the Applicant’s application. In the present matter, as the Applicant’s military service predates the commencement of the DRCA on 1 December 1988, and the claimed date of onset of her claimed conditions may predate changes made to the requirements for the required degree of service contribution to an ailment from April 2007 in the DRCA, transitional provisions may apply.
Specifically, as would apply to conditions with a date of onset prior to 1988, section 124(1A) of DRCA provides that a person is only entitled to compensation if it was or would have been payable to them in respect of the injury under the (now repealed) Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act). The term “injury” in the context of section 124(1A) of the DRCA has the meaning assigned to it under the 1971 Act.[28]
[28] See section 123A of DRCA.
The relevant requirements that must be met pursuant to the 1971 Act in this matter include sections 29 and 37 and the definitions found in section 5 of the 1971 Act. In summary, under the 1971 Act, the requirements for a disease to be a compensable injury have been confirmed by Finn J in Comcare v Laidlaw (1999) 89 FCR 141 at 145 as being that the disease must:
(1)be causally contributed to by the employment; and
(2)result in incapacity for work.
The Full Federal Court in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 considered the causal contribution and stated at 323:
… the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the conditions complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once a link is established, however, it matters not that the contribution be large or small.
The DRCA from 1988 and presently, provides that pursuant to section 14, the Commonwealth is liable to pay compensation in accordance with the DRCA in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment.
Section 5A of the DRCA relevantly provides that:
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
…….
The parties, with whom the Tribunal agrees, submitted that in this matter, the conditions to which the Applicant’s claim relates would be considered diseases for the purposes of the DRCA.[29]
[29] Transcript, pages 69 and 71.
Section 5B of the DRCA provides that:
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
Section 4 of the DRCA defines ailment to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
Section 4 of the DRCA defines aggravation to include “acceleration or recurrence”.
Under the DRCA, an ailment is only compensable if there is the required degree of service contribution to that ailment. In relation to the required degree of service contribution under the DRCA, the Respondent provided the following submissions with which the Tribunal considers to be an accurate and relevant summary of the position:[30]
[30] Exhibit 5, Joint Tribunal Book, R1, pages 66-67, Respondent’s Statement of Facts, Issues and Contentions, paragraphs 64-71.
64.……. In terms of contribution:
- A ‘material contribution’ requires careful consideration of all relevant contributing factors and satisfaction that employment did, in fact, make a substantial or considerable contribution to the ailment in question: Comcare v Sahu-Khan [2007] FCA 15. This is the required degree of contribution to an ailment suffered between 1 December 1988 and April 2007.
- Significant degree is defined to mean a degree that is ‘substantially more than material’. This is the required degree of contribution to an ailment after April 2007.
65.Generally, when the DRCA speaks of ‘the employment’ as a contributing factor it refers not to the fact of being employed, but to what the worker does in their employment i.e. something relating to or incidental to the performance by the employee of their duties: Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626.
66.Assessing service contribution requires consideration not only of service related matters but also such things such as any predisposition of the employee to the injury, activities not related to employment and any other health related matters (McKenzie and MRCC [2010] AATA and s 5B(2) of the Act).
67.The relevant causal connection between the applicant’s service and any condition must be established on the balance of probabilities (see Comcare v Sahu-Khan (2007) 156 FCR 536 at [67]).
68.In considering whether an aggravation of an ailment has been suffered, in summary, an aggravation of an ailment requires that there have been identifiable psychiatric change: Canute v Comcare (2006) 226 CLR 535 (Canute) and Military, Rehabilitation and Commission v May (2016) 257 CLR 468 (MRCC v May).
69.The existence and presentation of symptoms alone is not sufficient to constitute an aggravation, even where the symptoms may become somewhat more severe due to work: Australian Postal Corporation v Bessey [2001] FCA 266 at [12].
70.In Canute and MRCC v May the High Court emphasised that the discernment of a frank injury against a backdrop of pre-existing disease depends upon the existence of some identifiable physiological change or disturbance which, in turn, necessitates a 'fact by fact' analysis of the nature and incidents of what occurred in the body of the claimant employee.
71.This reasoning has been applied in Walters and Comcare [2021] AATA 14 in which the Tribunal found that Ms Walters experienced no physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind (MRCC v May at [57]). See also Bailey v Broadsword Marine Contractors Pty Ltd (2017) 257 FCR 549, FCAFC 219, Comcare v Stefaniak [2020] FCA 560 and Whitlock and Comcare [2020] AATA 1353.
The legislative test that applies in relation to the degree of contribution of military service to any diagnosed ailments in this matter hinges on the date of onset of those conditions.
APPLICANT’S case
Mr Turner outlined the Applicant’s case at the Hearing to rest on what is contained in the Diagnostic and Statistical Manual of mental disorders, volume 5 (DSM-5). Mr Turner contended that the DSM-5 is compiled and shortened in the issuing of Statements of Principles by the Repatriation Medical Authority and that while they are not binding for the purposes of claims under the DRCA, they are used as a guideline. Mr Turner submitted that the Applicant relied totally on the Statement of Principles.[31]
[31] Transcript, page 6.
Mr Turner submitted that the Applicant’s case did not rely on the colourful lifestyle of her past, it relied on the fact that she has two accepted disabilities, being major depressive disorder with the clinical onset of 1 October 1996 and an aggravation of alcohol abuse disorder with a clinical onset of, either 1984 or October 2019.[32]
[32] Transcript, page 6.
That submission was consistent with the Applicant’s Statement of Facts, Issues and Contentions as amended[33] and the provided Statement of Principles (SoPs).[34]
[33] Exhibit 5, Joint Tribunal Book, A1, pages 1-3, Applicant’s Statement of Facts and Contentions and Exhibit 6, Applicant’s amended Statement of Facts and Contentions.
[34] Exhibit 5, Joint Tribunal Book, A1.4, pages 13-30, Statement of Principles concerning Bipolar Disorder (Balance of Probabilities) (no 54 of 2018); A1.5, pages 31-45, Statement of Principles concerning personality disorder (Balance of Probabilities (no 18 of 2018) and Exhibit 7, Statement of Principles concerning Anxiety Disorder (No 103 of 2014) and Statement of Principles concerning Schizophrenia (Balance of Probabilities) (No 84 of 2016).
Mr Turner contended that the correct diagnosis of the Applicant’s conditions is that provided by Dr Burchgart as the only psychiatrist trusted by the Applicant.[35] Those conditions being complex PTSD, substance use disorder (alcohol), borderline personality disorder, anxiety and schizoaffective disorder.[36]
[35] Exhibit 6, Applicant’s amended Statement of Facts and Contentions.
[36] Exhibit 6, Applicant’s amended Statement of Facts and Contentions and Transcript pages 2 and 68 – noting that the Applicant submitted that Dr Burchgart has said that the schizoaffective disorder has taken over the bipolar disorder type 1.
Mr Turner contended that each of those conditions falls within a factor set out in the relevant Statement of Principles due to the Applicant’s accepted conditions of either or both aggravation of alcohol use disorder and/or major depressive disorder of which materially contribute to each of those diagnosed conditions.[37]
[37] Exhibit 6, Applicant’s amended Statement of Facts and Contentions and Transcript, pages 68-69.
Mr Turner contended that Dr Reddan agreed that psychiatry is not an exact science and as such, regardless of how learned one may be, it is still a matter of opinion in psychiatry.[38]
[38] Transcript, pages 67 and 78.
APPLICANT’S EVIDENCE
There are a number of statements written by the Applicant that have either been submitted directly to the Tribunal by the Applicant or that form part of the summonsed medical evidence. The Tribunal has had regard to those statements.
At the Hearing, under affirmation, the Applicant:[39]
[39] Transcript, pages 10-15.
·Confirmed her name, address and date of birth.
·Confirmed that she had spent two years in the military.
·She said that part of the time was disturbing for her and that to nullify some of her concerns, she went AWOL (being absent without leave).
·She explained that:
I was charged for not getting on a bus when I knew that other soldiers didn’t get on that bus as well, so I felt the charge was very unfair. It brought - it caused me to just go into shock and fear, and I was getting bullied by the RSM, he was ganging up on me. The soldiers on the bus were more than disorderly, drunk, vomiting and throwing bottles, and I didn’t get on the bus for my own safety, and I packed my bags to go home to do the charge. And I just was crying my eyes out and I was scared. I just felt alone and I wanted help, and normally you go to your boss for help, but it was my boss that was after me and hurting me. It was just - I drove halfway back to the base to do the charge and then I pulled over and I just - I couldn’t do it because I just felt it was all so unfair, and I was just confused and frightened and then I just ran, you know, I turned the car around and just took off and went to my brother’s place because he was the closest relative for help. And from there it was a matter of contacting my parents.
·Confirmed that as a result of the traumatic events, the Respondent had accepted, as being related to her service, the conditions of aggravation of alcohol abuse disorder and a major depressive disorder.
·Said that for the past five years, she had been receiving counselling and help from a counsellor, a GP or a psychiatrist, for the conditions she was now claiming and suffering from.
·
Outlined that she recalled having hallucinations where she experienced a man almost every day having sex with her and that prior to her consultation with
Dr Burchgart, she had been speaking to her father and brother who had both passed away. She knew, however, no one was having sex with her at those times and her father and brother were not there.
·Said that her brother who had passed away had schizophrenia and he had told her that he had experienced people trying to have sex with him, when they were not, which was before it had happened to her.
·Said that the images and visions to her were as real as if someone was there. She firmly believed that they were there and that she was talking to them. They answered and she knows it was not her because she knew the tone of the voice was different.
·Said that it was only after she had been seeing Dr Burchgart and took the medication she prescribed, also the Zeldox that she was put on previously after she experienced all those things, that they tend to block it. She can no longer access her father and brother.
·Said she did not stick with the medication in the past because she was not able to sleep.
·Said she told Dr Burchgart about the hypersexuality, which was incredibly uncomfortable and very strong and it was not until she put her on medication that she has not had it happened again.
·Said there are different symptoms that come up at different times and a diagnosis is correct at the time of seeing her.
·Said that knowing the medications she has been on, there is definitely anxiety, bipolar, schizoaffective disorder. She goes by the medications and the symptoms that she has had.
·Said that Dr Reddan did not ask her any questions about the symptoms but rather she only went by her colourful lifestyle and by the briefing questions.
·Said it is the little details that make the story completely different, but she did not get the chance to explain herself, she was just bombarded with questions to make her look bad.
·Explained what happened during the period her son was taken off her.
·Said that she is very close with her son.
·Said that her conditions had been explained to her son so that he could see the conditions as something separate to her.
·Said she had no problems when she went into the military in 1982 and passed the psych test. She did not remember any problems, psychiatric wise, at all when she was in the Army.
·When asked if it was not until the last little bit of her service, the bus incident that she described that started it all, said:
Yes, my memory is very little of the bush camp, the exercise; I partly put that down to trauma as well as being very, very weak and tired. As a civilian you don’t know how you feel after a week of not eating, you know. I remember not being able to eat much after it all and certainly not drink either. And my memory is very little of that situation, but my memory is very strong of the bus and the unfairness of seeing other soldiers not get on that bus. It was not like it was a strict order that all the soldiers had to get on the bus. It was provided so that you could have a drink after the ceremony, yes.
On cross-examination, the Applicant:[40]
[40] Transcript, pages 15-39.
·Outlined the medication she was taking for her claimed conditions and said that she had been taking all medication Dr Burchgart had prescribed in accordance with the directions.
·Said that since she had seen Dr Burchgart, she had been taking Zeldox regularly because she had “brilliant results from it” and it is the most normal that she had felt in her entire life and she does not have any side effects form it, she is clear thinking and focused.
·Was unable to explain why the records in relation to the scripts she had been issued and the scripts she had filled indicated that she had not been taking the Zeldox between September 2021 and April 2022 in accordance with the prescribed dosage. She said that she had been taking it morning and night as directed.
·When put to her that what she had told Dr Reddan in August/September 2021 was correct – that she did not take Zeldox every day but she took it on and off, said that before she saw Dr Burchgart she was on and off it, partly because her psychiatrist changed it.
·Confirmed the details of a document that she had written in 2019, in particular that:
oin year 10, a girl introduced her to drinking and smoking drugs and that every weekend she was drinking and roaming the streets;
oshe was sexually assaulted in her first job around when she was 17;
oshe was strangled in a nightclub and thrown across the room smashing into chairs; and
oat 17, she had overdosed and vomited during the night and never told anyone.
·Said when she referred to smoking drugs, she meant cannabis and that she only did so for 6 months and had stopped prior to joining the Army.
·Said she does not actually remember the psychological testing from when she joined the Army, however if the papers say she passed then she did.
·Said she cannot remember if she told the Army that she had been smoking cannabis for about six months or about drinking and roaming the streets.
·Agreed that Dr Reddan had asked her about why she had left various psychiatrists and that she had given her lots of information.
·Agreed that Dr Reddan had asked her about her diet and alcohol cravings and whether she was able to experience pleasure.
·Agreed with Dr Reddan’s reporting that she did not know when her mood was low.
·Agreed that she spoke to Dr Reddan about her sleep pattern when she moved to her present town.
·
When asked if she thought that in discussing sleep pattern, appetite and mood with Dr Reddan, whether she considered those things to be symptoms, said
Dr Reddan questioned her for 11 hours and asked a lot of questions and she does not remember all of the details.
·Said that Dr Reddan did not ask her about the hallucinations.
·When asked about her discussing having visuals of being stuck with her boss who sexually assaulted her, waking startled and having flashbacks from the past when someone talks about nursing with Dr Reddan, said they were not hallucinations.
·Said she did not talk about hallucinations with Dr Reddan as she had not asked.
·
When asked if she discussed hallucinations in the 6 sessions she had with
Dr Burchgart before her report of August 2021, she said she cannot remember as when she is stressed or traumatised, she does not remember everything later on.
·When put to her that Dr Burchgart said in her August 2021 report that she had seen her six times at that point and that she had denied any perceptual disturbances suggestive of psychosis and that she was not observed responding to internal stimuli and it was suggested that she had actually denied any perceptual disturbances to Dr Burchgart, said that was not true as she knew about the sexual disturbance.
·Said that unless she is asked about the past, she will not bring it up.
·Said she had not told Dr Agilan in 2019 that she developed mood swings from her early teens, he made that up.
·When asked if Dr Burchgart, in August 2021 talked to her about what she thought had caused her to have bipolar type II disorder, complex PTSD, substance use disorder, alcohol and borderline personality disorder, said “Trauma”.
·When asked if it was correct that Dr Burchgart did not think that her Army service had caused any of those four conditions, said “No, she didn’t say that.”
·Agreed that she had been sexually harassed in the Army, however had not been sexually assaulted while in the Army.
·When asked if she was aware that DVA had offered to pay for Dr Burchgart to give evidence at the Hearing, said that she did know that.
·
When it was put to her that her advocate had explained that she did not want
Dr Burchgart to come so that it would not damage her treating relationship, said she did not say that. Said she agreed with both her advocate and Dr Burchgart that because she had so much trouble trusting people, Dr Burchgart would not be asked to give evidence.
·When it was suggested that she was seeing Dr Burchgart more for support for her case rather than for treatment, said:
No, she’s the one that helped me do the swimming course, she’s the one who got me back working; no, she doesn’t actually discuss much of the case at all in her sessions, no, she doesn’t. She works on how I’m going, how’s work going, how’s relationships with people forming; yes, she doesn’t really talk about the case. It’s me that practically ends with more the case than her, but she’s aware that - I would say that she doesn’t bring it up because she knows that it’s been traumatising me enough, so she doesn’t want to focus on that.
·When asked again whether she was seeing Dr Burchgart for her legal case, said no she saw her when she was not well and she had no psychiatrist.
·Agreed that her appointments with Dr Burchgart are all paid for by DVA regardless of what they talk about.
·Said she did not realise that Dr Burchgart was providing the report of August 2021 or the permanent impairment paperwork.
·Said she did ask Dr Burchgart to fill in the claim forms for anxiety and schizoaffective disorder.
·When asked about her claim for the disability support pension, said that it was her psychiatrist that filled it out.
·Said she did not remember that the paperwork said that her problems were caused by family abuse.
·When put to her that the claim for DSP had no reference to anything that happened in the Army, said that the reason was that she did not tell people she was in the Army because if she told them that she went to jail, then they would assume she did something wrong.
MEDICAL EVIDENCE
There is a large volume of medical evidence before the Tribunal in relation to the Applicant’s mental health dating back to 1996.
By Mr Turner’s own description, the Applicant has lived a very colourful life.[41] At the outset of the Hearing, it was submitted that the Applicant’s colourful life was not relevant to the mental health conditions she suffers today and to which her claims before the Tribunal relate.
[41] Exhibit 6, Applicant’s amended Statement of Facts and Contentions and Transcript, page 6.
Having reviewed the documentary evidence before it, the Tribunal acknowledges the difficulties that the Applicant has faced throughout her life, however given the medical evidence before it, disagrees that they have no bearing on the Applicant’s present mental health and the diagnosis of her mental health conditions.
The Applicant has seen a number of different medical professionals over the years with the first documented consultation for a mental health related issue before the Tribunal, being in August 1996 by Dr Douglas Scott, psychiatrist.[42] Over the period of 1996 up until the Applicant’s claims dated 14 October 2019, the various diagnoses proffered by a range of treaters included schizoaffective disorder, schizophrenia, bipolar disorder, cyclothymic disorder, PTSD, personality disorder and borderline personality disorder.
[42] Exhibit 5, Joint Tribunal Book, R2, page 96, Report of Dr Reddan.
At the date of claim, the Applicant’s treating psychiatrist was Dr Asha Sadasivan.[43]
Dr Sadasivan reported on 28 June 2019 that:[44][The Applicant] was diagnosed with Bipolar Affective Disorder Type 2. It is likely that those episodes were from recreational drug use. [The Applicant] had had multiple suicide attempts with overdoses. Her first episode was when she was 16 and has been admitted to hospital a few times. [The Applicant] did not present currently with any psychotic symptoms or manic symptoms.
In my opinion she is presenting with symptoms suggestive of Post-Traumatic Stress Disorder on a background of Borderline Personality Disorder. However the personality disorder would need to be confirmed with longitudinal assessment.
[43] Exhibit 1, T Documents, T17.1, pages 279-281, Report of Dr Sadasivan.
[44] Exhibit 1, T Documents, T17.1 page 280, Report of Dr Sadasivan.
In a DVA Diagnosis form dated 4 October 2019, Dr Sadasivan stated that the basis of her diagnosis of borderline personality disorder, PTSD and alcohol and drug dependence was:[45]
High interpersonal sensitivity, impulsive behaviour, nightmares and flashbacks of past traumatic experiences including trauma experienced in childhood and that during her service in Army, mood swings. History of suicide attempts, alcohol use ongoing. History of polysubstance abuse in remission.
[45] Exhibit 1, T Documents, T11.1, page 214, Diagnosis form completed by Dr Sadasivan.
In assessing the Applicant’s claim, an independent medical examination was sought.[46] In a report dated 12 December 2019,[47] Dr Jatheesh Pala Valappil, consultant psychiatrist, noted that the Applicant reported to him, that:[48]
[46] Exhibit 1, T Documents, T16, pages 253-269, Letter from DVA to Dr Valappil requesting medical report.
[47] Exhibit 1, T Documents, T18, pages 290-314, Report of Dr Valappil.
[48] As summarised by the Respondent at Exhibit 5, Joint Tribunal Book, R1, pages 55-56, Respondent’s Statement of Facts, Issues and Contentions, paragraphs 17-18.
·when travelling in Singapore when she was 23 she was involved in a stealing incident which she described as an ‘irresistible urge to steal’ and could not control her actions
·when she was in Canada, she was held captive and raped by a man for seven hours
·she drinks 3 bottles of wine on weekends
·she quit smoking at the age of 33
·she stopped using cocaine when travelling overseas
·she started smoking cannabis at the age of 16 and started drinking alcohol around the same time but not regular use
·her alcohol use and cannabis use increased after she was dismissed form the Army
·she did not have any psychiatric illness prior to joining the Army
·she has had three loss of pregnancies due to a miscarriage, an abortion and a stillbirth
·she has a family history of mental illness and drug and alcohol abuse in her first-degree relatives
·while living in Tasmania, her son was removed from her care but was returned a week later.
Dr Valappil opined that the:[49]
·Applicant suffered from bipolar type II disorder and that he was unsure of the date of onset.
·Applicant suffered from alcohol use disorder with onset being in 1984.
·Applicant’s bipolar affective disorder was genetic, due to family history of mental illness and was not caused or aggravated by her service.
·Applicant’s alcohol use disorder was impacted upon by incidents involving her senior officer and being arrested by the military police and placed in solitary confinement.
·Applicant’s two incidents of rape, drug and alcohol abuse, three losses of pregnancies, chaotic lifestyle and substance abuse have a relationship to her bipolar and it is possible that the condition itself could have predisposed her to those life events.
[49] Exhibit 1, T Documents, T18, pages 290-314, Report of Dr Valappil.
In a diagnostic assessment dated 5 May 2020,[50] completed by Dr Siva Agilan, psychiatrist, the Applicant’s then treating doctor, the Applicant was diagnosed with bipolar affective disorder type II and borderline personality traits. Dr Agilan stated that the borderline personality traits were due to early developmental traumas and the bipolar had biological causes.[51]
[50] Exhibit 1, T Documents, T 26, page 344, Diagnostic Assessment completed by Dr Agilan.
[51] Exhibit 1, T Documents, T 26, page 344, Diagnostic Assessment completed by Dr Agilan.
In a DVA diagnosis form dated 15 August 2020, Dr Agilan confirmed his earlier diagnosis of bipolar affective disorder type II and borderline personality traits and stated that:[52]
[The Applicant] is a patient with long history of traumas and BPAD – type II. She [indecipherable] vulnerable to get used by people. [The Applicant] claims she was used and sexually approached by Army fellows, which affects her current day to day living and relationships.
[52] Exhibit 1, T Documents, T28.1, page 350, Diagnosis Form completed by Dr Agilan.
In a treating psychiatrist report dated 18 August 2021,[53] Dr Burchgart, psychiatrist, provided that she had received a referral from the Applicant’s general practitioner on 7 May 2021 to provide ongoing psychiatric care to the Applicant. Dr Burchgart stated that at the time of the initial assessment conducted on 25 May 2021 via Telehealth, she was unaware of the Applicant’s previous DVA assessments or approved conditions, the history of which became apparent in the weeks following the initial assessment.[54]
[53] Exhibit 5, Joint Tribunal Book, A2, pages 46-51, Report of Dr Burchgart.
[54] Exhibit 5, Joint Tribunal Book, A2, page 46, Report of Dr Burchgart.
In relation to the initial assessment of the Applicant on 25 May 2021, Dr Burchgart outlined:[55]
[55] Exhibit 5, Joint Tribunal Book, A2, pages 49-50, Report of Dr Burchgart.
Mental State Examination:
[The Applicant] was assessed via Telehealth (videoconference). She was on time for the appointment and presented as neatly groomed and appropriately dressed for the context. Her behaviour was agitated throughout but she maintained good eye contact and was polite. Her mood was labile and [the Applicant] was easily distressed by her narrative. Speech was pressured, with increased prosody and pitch throughout the assessment, which escalated during episodes of emotional distress. Her thought form was tangential and some redirection was required at regular intervals to remain on topic. She was a nonlinear historian and was over-inclusive of detail, with paranoid themes of conspiracies of bureaucratic staff from various agencies colluding with her psychiatrists and GPs to prevent her from accessing care and justice. She denied any perceptual disturbances suggestive of psychosis. She was not observed responding to internal stimuli. Cognition was intact for orientation to time, place and person but concentration and attention were impaired due to her distress and lability of mood. Insight and judgement were partial, significant for attempts to access care for her mental illness but compromised by her paranoia and rapid disengagement from previous clinicians, resulting in under-treatment of her illness due to a loss of continuity to care. No acute risk issues were identified with respect to suicidality or harm to others. Risks were largely associated with reputational harm and misadventure due to episodes of erratic behaviour.
Impression:
1. Bipolar Disorder, Type 1
·characterised by rapid onset & offset of mood instability including hypomania and reduced need for sleep, followed by a depressive episode
·mood instability sustained for periods of up to 7-10 days
·associated with paranoia and risk taking behaviours including excessive spending and hyper-sexuality
·co-morbid with alcohol use disorder
·predisposed by biological vulnerability in first degree relation (father)
2. Complex PTSD
· characterised by reliving experiences, flashbacks, nightmares, agitation and dissociation
· predisposed due to multiple traumas over time including prejudicial childhood experiences, multiple sexual assaults and bullying and the loss of a child through stillbirth
· complicated by alcohol abuse and underlying bipolar illness
3. Substance Use Disorder (alcohol)
· characterised by episodes of uncontrolled drinking, use despite harm and tolerance
· contemplative stage of change with view towards abstinence
4. Borderline Personality Disorder
·characterised by interpersonal sensitivity, impulsivity, dysthymia and emotional instability secondary to conflict and perceived rejection or abandonment by significant others
·predisposed due to prejudicial childhood and trauma
·perpetuated by trauma in adulthood
Recommendations:
1. Naltrexone 50mg OD PO for alcohol use disorder
2. Ziprasidone as mood stabiliser, with doses 40-80mg BD expected to replace seroquel
3. Continue lamotrigine unchanged
4. Consider trial of prazocin
5. Ongoing psychiatric care and later involvement with psychologist for trauma informed psychotherapy, once stabilised.
In relation to the progress of treatment as at the date of the report, Dr Burchgart outlined:[56]
[56] Exhibit 5, Joint Tribunal Book, A2, pages 50-51, Report of Dr Burchgart.
Progress of treatment:
Medications
1. Naltrexone
·for alcohol use disorder
·early efficacy identified, dose of 50mg OD PO with no identified side effects
·alcohol intake reduced as now finds alcohol less enjoyable to consume
·occasional binge drinking in context of an acute stressor
2. Lamotrigine
·for BPAD
·200mg OD PO
·continues to be effective, no further depressive episodes
·no side effects
3. Ziprasidone
·for BPAD
·recommenced at 20mg BD, then titrated to 40mg BD with improvement in emotional lability and paranoia identified
·[the Applicant] reported reduced in impulsive behaviours e.g. compulsive stealing ceased
4. Prazocin
·for PTSD related agitation, anxiety and nightmares
·commenced at 1mg nocte and titrated to effect at 2mg nocte + 1.5mg mane
·utilises this during the day, to replace previous use of valium 5mg
·had improved nightmares and day-time distress and able to function more effectively as less agitated.
·no adverse effects
Mental State:
·Early treatment phase significant for:
oepisodes of intense panic and anxiety in relation to email/other correspondence from DVA, resulting in distress and help-seeking behaviours including contacting TSC admin staff to help guide her through a panic attack on at least once occasion.
oincreased contact with TSC staff over a 3 week period which required psychiatrist to implement boundaries on engagement with TSC staff.
ocorrespondence emailed to TSC staff and psychiatrist. At least 15 emails of unsolicited documentation received from 21.0.21 - 6.8.21. Boundaries required to reduce volume of correspondence sent with some lessening of volume and frequency observed.
·Clearer and more focussed on medication regimen
oless triggered overall and no longer as reliant on alcohol or valium.
oable to function more consistently and process paperwork and emails with less distress.
ofeels personality and "intuition" not blocked as per previous treatments
okeen to continue current treatment
·ongoing reports of cover-ups and prejudicial treatment from DVA and AAT case managers and corruption within the services, continues to feel triggered by these interactions
·ongoing concerns that AAT and triage will attempt to interfere with psychiatrist’s report.
·ongoing attempts to access medical records in relation to inpatient treatment when pregnant and delivered stillborn child
·when very distressed by interactions with AAT staff, uses alcohol to manage but drinking less by volume and over fewer days e.g. 1/2 bottle of wine over two nights
Psychotherapy/Other:
·started seeing a psychologist as a result of boundaries set in relation to distress tolerance, with good effect.
·uses piano and music to soothe and distract herself when anxious but not effective for severe anxiety
·keen to engage in EMDR for trauma
Mental State Examination:
Overall improvements in distress and lability of mood observed. Behaviour is less agitated overall and [the Applicant] is always on time for her appointment, well groomed, polite and pleasant. Speech remains slightly pressured at times. Mood is largely euthymic, with episodes of agitation when relating a difficult interaction or correspondence. Thought form remains mildly disordered despite medication. Improvements in tangentiality observed on treatment, and [the Applicant] is able to be redirected more easily back to topic. Content remains over-inclusive of detail with themes of conspiracies and corruption prominent. No perceptual disturbances identified. Cognition has not been formally assessed but appears intact for orientation, with reasonable working memory and concentration observed. Insight and judgement is improving, with [the Applicant] more open to delegate some tasks to others due to the known effects of these tasks on her mental state. Motivational stage of change with respect to alcohol is action stage. No acute risks have been identified. Risk to reputation and relationships remains but to a lessened degree overall.
Impression:
1. Bipolar Affective Disorder, good response to dual mood stabilisers
2. Complex PTSD, good response to both psychology and prazocin for symptomatic control of nightmares and anxiety. Residual symptoms remain and she will require a lengthy period of trauma informed psychotherapy.
3. Substance Use Disorder (alcohol), with good response to anti-craving medication to reduce overall consumption, with intermittent relapses secondary to psychological stressors.
4. Borderline Personality Disorder, remains symptomatic, with high rejection sensitivity and reduced interpersonal effectiveness observed. Psychotherapy in early stages and improvements expected over time assuming adequate therapeutic engagement.
At the request of the Respondent,[57] the Applicant underwent an independent medical examination by Dr Jill Reddan, psychiatrist, who provided a report dated 14 March 2022[58] and gave oral evidence under affirmation at the Hearing.
[57] Exhibit 5, Joint Tribunal Book, R2, pages 110-124, Briefing and supplementary briefing letters to Dr Reddan.
[58] Exhibit 5, Joint Tribunal Book, R2, pages 69-109, Report of Dr Reddan.
Dr Reddan’s report was detailed and outlined that she had been provided with all documents that were at that time before the Tribunal.[59] It outlined that Dr Reddan interviewed the Applicant on 4 occasions between 25 August 2021 and 15 September 2021, once via a Zoom connection and three times by telephone.[60]
[59] Exhibit 5, Joint Tribunal Book, R2, pages 69-70 and 109, Report of Dr Reddan.
[60] Exhibit 5, Joint Tribunal Book, R2, page 69, Report of Dr Reddan.
Dr Reddan extensively outlined the Applicant’s history both leading up to and subsequent to her discharge from the Army, current circumstances and treatment, past medical, surgical and psychiatric history and undertook a mental state examination.[61] Dr Reddan provided that in formulating her opinion, she had taken into account the Applicant’s self-report, the mental state examination and the accompanying material.[62]
[61] Exhibit 5, Joint Tribunal Book, R2, pages 70-99, Report of Dr Reddan.
[62] Exhibit 5, Joint Tribunal Book, R2, page 99, Report of Dr Reddan.
With regards to Dr Reddan’s mental state examination of the Applicant, she reported:[63]
Mental state examination revealed a reasonably well-groomed and well-dressed woman of middle years. Her social skills improved as the evaluation progressed and she was, for the most part, pleasant and engaging and she made comments about the interviewer.
[The Applicant] was very loquacious and she freely described her longitudinal history with considerable emotion and at times hyperbole. [The Applicant] was willing to state when her memory for events was unclear, although at times she offered a history which was not entirely consistent with the material provided. However, in view of the historic nature of much of [the Applicant’s] history, this is what could be expected as memories and attributions change over time. In view of her tendency to offer a dramatic, diffuse and impressionistic history and observations, and it became clear that [the Applicant] is also very suggestible, it was necessary to pay careful attention to the interview style and questioning format. Her speech was of normal volume and she tended to speak quite quickly but her speech was not pressured.
Her affect, that is, the observable range of her emotional expression, was somewhat rapidly shifting. She became tearful when describing a number of events, (for example, [the Applicant] sobbed when describing her reaction to the birth of her younger brother) but her affect was very reactive. She displayed considerable anger in her mood, but she was not irritable with the interviewer. She was not pervasively depressed and her mood was not pervasively elevated.
[The Applicant] tended to at times be somewhat extravagant with her gestures, but there was no evidence of psychomotor retardation. There was no evidence of a tendency to startle reactions nor any evidence of clear hyperarousal.
Her thought form was at times disorganised, but this was not marked and when she distracted herself and got off topic, she was easily brought back to the matter at hand. There was no evidence of formal thought disorder. Her thought stream was circumstantial at times and she was preoccupied with themes of persecution (particularly bullying) and sexual harassment, with [the Applicant] reporting that at most places she has worked or attended for other reasons, including social media, she has been subjected to unwanted sexual attention, at times amounting to sexual assault and sexual harassment. Her thought content was highly persecutory and somewhat sexualised in nature and her thought content indicated that [the Applicant] readily jumps to conclusions about the intent and meaning of others’ behaviours, including from the passing expressions on others’ faces.
There was no evidence of any abnormality of her thought possession and no evidence of any hallucinatory phenomena, but she described imaginative experiences related to past events which phenomenologically were not typical of flashbacks. She also described experiences suggestive of reexperiencing (for example she reported experiences of feeling as if she was having sexual intercourse or engaging in sexual activity with men). These descriptions may at times in the past have had the quality of hallucinatory experiences and/or been understood as such by mental health personnel.
Her attention and concentration was reasonable. She tended to distract herself, however, [the Applicant] could be brought back to the matter at hand and she acknowledged a tendency to ramble in her speech. She appeared to be of average intellect.
She displayed a superficial insight into the nature of her psychological functioning. Her judgement for day-to-day matters is likely to be very variable and dependent on her passing emotional state and her perception of the meaning and intent of others.
[63] Exhibit 5, Joint Tribunal Book, R2, pages 98-99, Report of Dr Reddan.
Dr Reddan provided that in considering the Applicant’s longitudinal history and her presentation, it is her opinion that the Applicant’s primary diagnosis is that of a personality disorder with mixed traits (borderline and histrionic personality traits). Dr Reddan provided that individuals with the style of personality the Applicant manifests often attract a variety of diagnoses over time, particularly when they are assessed cross-sectionally rather than longitudinally and where they are assessed during a crisis or during an acute emotional disturbance.[64]
[64] Exhibit 5, Joint Tribunal Book, R2, page 100, Report of Dr Reddan.
The opinions and observations provided by Dr Reddan in her report dated
14 March 2022 were summarised by the Respondent[65] as follows:[66][65] Having reviewed the report and its associated documents, the Tribunal considers this summary to be an accurate reflection of the report.
[66] Exhibit 5, Joint Tribunal Book, R1, pages 57-58, Respondent’s Statement of Facts, Issues and Contentions, paragraphs 25-27.
25. Dr Reddan’s opinion was that:
25.1. the applicant’s primary diagnosis is that of a Personality Disorder with mixed traits (borderline and histrionic personality traits)
25.2.it would be reasonable to assume that the onset of any mood disorder was around August 1996 when the available material suggests the applicant first consulted with a psychiatrist (Dr Scott), but the applicant’s Personality Disorder has been an evolving disorder from childhood and adolescence
25.3.the applicant’s Personality Disorder was not caused or contributed to by the applicant’s military service, and this condition was almost certainly developing and manifest to some degree before she joined the Army
25.4. the applicant does not suffer from PTSD or Bipolar Disorder, either 1 or 2
25.5. the applicant probably manifested a Cannabis Use Disorder, Alcohol Use Disorder and a Stimulant Use Disorder in the past, but these have long since remitted
25.6. the circumstances of the applicant’s discharge may have temporarily contributed to or influenced her Cannabis Use Disorder, but this did not have an enduring effect.
26.Dr Reddan also considers that the applicant did not meet the criteria for Alcohol Use Disorder at the time of her assessment.
27. Dr Reddan also observed that:
27.1.individuals with the applicant’s personality style often have a variety of diagnoses over time, including Bipolar disorder, particularly when assessed cross-sectionally in the context of a crisis or acute emotional disturbance rather than longitudinally
27.2.the applicant’s personality style is often associated with:
27.2.1. complicated relationships with adverse events
27.2.2.difficulty differentiating between subjective perceptions and more objective information
27.2.3.rapidly reacting to perceptions of what others are thinking or feeling with difficulty reflecting on this, meaning they often jump to conclusions about the nature and meaning of others’ behaviour in an often rigid, self-absorbed manner
27.2.4.a focus on sexual matters and a tendency for persecutory rather paranoid thinking
27.2.5.a preoccupation with past events and appear to others to exaggerate the nature of their involvement in those events
27.2.6.experiencing considerable anxiety and preoccupation with the past/mode and expression of anxiety that often leads to a perception of PTSD when this is not the primary pathology
27.3.it would not have been apparent when the applicant joined the Army that she had significant evolving personality problems
27.4.despite this, the applicant describes a number of sexual assaults (unrelated to service) which may have resulted in acute distress and anxiety, but which have not resulted in enduring PTSD
27.5. it is likely that the applicant reacted to some events during her service with considerable emotional expression and anxiety which was of a temporary limiting nature, but the events during service did not lead to any change in the natural history of her condition.
In a DVA Medical Certificate dated 16 August 2022, Dr Burchgart diagnosed the Applicant with anxiety, providing that the Applicant first consulted her for this injury or disease on
25 May 2021 and that its date of onset was “2011 – Based on G.P. Notes” and “2016 –
Dr Chowdrey Notes”.[67] Dr Burchgart provided the following basis for diagnosis:[68]Initially diagnosed in 2016 by Dr Chowdery social anxiety sub-type present. Ongoing condition at time of transfer to my care on 25/5/21. Characterised by anxious cognitions, catastrophising cognitions, arbitrary inference in social settings, particularly with unfamiliar people/settings. Associated with symptoms of tremor, palpitations and racing thoughts. Anxiety complicates social and occupational functioning. Anxiety is also a symptom of her Post-Traumatic Stress Disorder.
[67] Exhibit 3, Supplementary T Documents, ST 7, page 379, Medical Certificate.
[68] Exhibit 3, Supplementary T Documents, ST 7, page 379, Medical Certificate.
In a further DVA Medical Certificate dated 16 August 2022, Dr Burchgart diagnosed the Applicant with schizoaffective disorder, providing that the Applicant first consulted her for this injury or disease on 25 May 2021.[69] Dr Burchgart did not provide a date of onset and noted the following basis for diagnosis:[70]
Diagnosed May 2021. Schizoaffective Disorder (SZA) is characterised by co-existing psychotic disorder along with a bipolar mood disorder. Each condition contributes equally to symptomatology during a relapse. Psychotic symptoms are mood congruent. E.g. when manic, psychotic experiences are grandiose in nature; when depressed, psychotic experiences are derogatory/persecutory. [The Applicant] described symptoms of both bipolar mood dysregulation along with persistent paranoia. She presented initially with mood disturbance, thought form disorder and mood congruent delusions. SZA replaces bipolar disorder.
[69] Exhibit 3, Supplementary T Documents, ST 8, page 380, Medical Certificate.
[70] Exhibit 3, Supplementary T Documents, ST 8, page 380, Medical Certificate.
The Respondent confirmed that ahead of the Hearing, Dr Reddan was provided with the medical certificates dated 16 August 2022.[71] Dr Reddan confirmed this at the Hearing.[72]
[71] Transcript, page 45.
[72] Transcript, page 49.
At the Hearing, Dr Reddan gave evidence under affirmation and in response to questions asked by the Respondent:[73]
[73] Transcript, pages 48-58.
·Confirmed her full name, business address and qualifications.
·Confirmed that she had reviewed her report dated 14 March 2022 and did not wish to make any changes, corrections or clarifications and that the contents of that report were true and correct to the best of her knowledge.
·
Confirmed that she was provided with briefing letters from AGS dated 2 June 2021 and 17 February 2022 and that she was provided with and had read the 74 sets of documents listed between pages 114 and 117 of the Joint Tribunal Book as well as the subsequent documents provided to her including the forms dated
16 August 2022 signed by Dr Burchgart in relation to anxiety and schizoaffective disorder.
·Said that the material she was provided with was quite important in forming her opinion because a lot of it was longitudinal material over quite a few years and there were a number of assessments or communications by colleagues that she took into account.
·Confirmed that she is a trained psychiatrist, is on the Queensland Mental Health Court and has done quite a lot of work for the Queensland Coroners Court as a psychiatrist.
·Said she trains psychiatrists and has been a medical practitioner for over 40 years and been a psychiatrist for 33 years of that time.
·
Said she spoke to the Applicant for nearly 8 hours across 25 and 31 August and
8 and 15 September 2021.
·When told that the Applicant had given evidence that she had not asked her questions about her symptoms and asked if that was correct, said that it was not correct.
·Said that she stands by her report that states that the Applicant reported she had been taking Ziprasidone for two to three months but stated that she takes it on and off.
·Explained the purpose and doses of the medication outlined by Dr Burchgart as having been prescribed to the Applicant.
·Said that there were no medications prescribed that were specific to schizoaffective disorder and that schizoaffective disorder is a somewhat controversial diagnosis as some psychiatrists do not believe it exists while others believe it is an appropriate diagnosis where they cannot distinguish between schizophrenia or bipolar disorder.
·When asked for her interpretation on what Dr Burchgart was referring to in her report under mental state information where she said, “She denied any perceptual disturbances suggestive of psychosis”, said that she thinks Dr Burchgart is referring to hallucinatory phenomena and that the Applicant denied any hallucinatory phenomena.
·Said that the next sentence in Dr Burchgart’s report is her own observation that the Applicant did not appear to be experiencing any hallucination.
·When asked her opinion on what was meant when that report by Dr Burchgart is compared with the form completed in August 2022 about schizoaffective disorder, said that what Dr Burchgart was saying in the form was that the Applicant has coexisting psychotic disorder along with bipolar mood disorder and that she has got psychotic symptoms which are congruent and refers to derogatory persecutory, which she thinks Dr Burchgart meant that the Applicant was reporting hallucinations or voices.
·Explained that delusions and hallucinations are not the same.
·Said that:
… delusions are disorders of thought, and people can have even quite strange ideas about necessarily delusions. Delusions are, by definition, are false beliefs that are held with absolute conviction, they cannot be swayed even for, you know, a few seconds, and they’re usually bizarre and they are usually arrived at in the absence of any evidence for the belief. Some commentators on them have talked about delusions as whether they’re understandable or un‑understandable. When they’re un‑understandable they’re much more obviously delusions and sometimes understandable beliefs can be more difficult to tell. But it’s not just the nature of the belief, it’s also the conviction with which it’s held and the way in which the delusion is arrived at.
·Said that delusions or hallucinations are necessary for a diagnosis of schizoaffective disorder as psychotic symptoms are necessary for such a diagnosis.
·Said that:
Now, hallucinations of course are perceptions without an external stimulus, and hallucinations can occur in every sensory modality, such as there are some hallucinations that are very rarely seen, and some hallucinations are indicative of other conditions other than psychiatric disorder. The commonest in psychiatric disorder would be auditory hallucinations, and again one has to distinguish between those and what might be sometimes interpreted by an individual as a hallucination, but is in fact their own thoughts, and that can at times be difficult to distinguish.
·Said that dreams are not hallucinations, they are due to electrical activity in the brain.
·Said that feeling like you are talking to someone who has passed away would not be a hallucination and that often in a context of bereavement, it is more often about memory, it is common for individuals to have vivid recollections for example discussions with someone that has died.
·Said that the Applicant’s reported feeling like someone was having sex with her, because of the way in which it was described and the context, it was not a hallucination but was more likely to either be like a recollection of earlier experiences or a fantasy about earlier experiences. She did not interpret that as hallucinatory in nature.
·When asked to provide a summary of her conclusions as to the diagnosis in the matter, said:
Well, as I set out in my report, I think [the Applicant] has attracted quite a number of different diagnoses over the years, many of which are quite understandable, but I think in considering the longitudinal history and her presentation, that those various different diagnoses, which do have a consistent theme though, and one of those themes is common mood instability, perhaps distress or misinterpretation of what others intend or mean; it’s really consistent with her longitudinal personality functioning. Now, she’s attracted diagnoses that aren’t significantly different from what I think is the major problem here over time, but my view is that [the Applicant’s] diagnosis is most consistent with that of a personality disorder with various traits, and she’s attracted diagnosis of personality disorder on quite a number of occasions.
But the particular type of personality vulnerability that [the Applicant] has is certainly consistent with mood instability, and it’s also consistent with a tendency to be prone to persecutory thinking, to misinterpretation, or a heightened interpretation of what others are intending or how they communicate with her, and it’s also not uncommon to see at times substance use problems with this because often individuals with this personality style do suffer a fair bit from their mood instability, and from their difficulties in dealing with others and getting on with others.
I’ve described also [the Applicant’s] presentation is that she tends to be somewhat impressionistic, somewhat dramatic; that’s been commented on in other contexts. Dr Burchgart mentioned, and I think some of the other psychiatrists mentioned the case of tendency at times towards grandiose thinking, and I can understand why that might’ve been interpreted as due to hypomania or mania in bipolar disorder, but I think it’s an inherent part of her personality style.
I think often when people - when we treat people we initially tend to see them in cross‑section, and we don’t have a lot of other material provided, so it’s difficult sometimes to be certain about diagnoses in that situation. And as I pointed out, all psychiatric disorders, the diagnoses are really provisional in nature. There’s no external validating tools. I also pointed out that the boundary between normal and mental or emotional functioning and a disorder is often not well demarcated.
Some people as well in a case like [the Applicant’s] where there’s been childhood problems and difficulties within the family and a strong family history of psychiatric disorder, would refer to [the Applicant’s] difficulties as arising from what’s called complex PTSD. And that isn’t actually a diagnosis that’s offered by all of the standard nosologies, but it’s usually referring to someone who’s very disturbed from childhood factors, and in particular emotional or physical, and/or sexual abuse in childhood, and that’s another diagnosis that I think has been offered in this case.
My own view is, putting it altogether longitudinally and based on her presentation, that the most appropriate diagnosis is really that of a personality disorder with borderline and histrionic traits, because that I think encompasses the emotional instability, the interpersonal difficulties and at times, although it’s not been an enduring substance use disorder, the tendency to substance use disorders as well.
·
Said she does not agree that anxiety is a separate condition in the way that
Dr Burchgart had explained for the following reasons:
If you consider that [the Applicant] had schizoaffective disorder, for example, that’s a major mental illness, that’s neurodevelopmental in nature, and you would expect to see anxiety in that condition, so you wouldn’t diagnose that as a separate condition. It’s a symptom of schizoaffective disorder.
And in terms of hierarchy of diagnoses, schizoaffective disorder would trump an anxiety disorder. You would expect to see anxiety in schizoaffective disorder, but you would also expect to see anxiety, significant problems with anxiety in a personality disorder as well. And one of the features, for example, of the sort of borderline histrionic spectrum of personality problem is in fact what has been described by some authors as what we call pan‑anxiety, so they have a lot of anxiety. And that anxiety will of course vary in its severity at times.
The way Dr Burchgart says there, she says, “Medical diagnosis, anxiety”. Anxiety’s a symptom, it’s not a diagnosis on its own, and as I said, you would expect a fair bit of anxiety in all of these diagnoses.
At the Hearing, on-cross examination by Mr Turner, Dr Reddan:[74]
[74] Transcript, pages 58-62.
·Confirmed that schizophrenic disorder was in the DSM-5 but that does not mean it was not controversial. What she meant when she said it was controversial was not that it is a whacky diagnosis or an odd diagnosis but rather its inclusion in DSM-5 was heavily debated before it was included because not everyone agrees that it exists.
·Agreed that psychiatry is not an exact science as it does not have external validating tools.
·Said it is an exact science in some areas more than others, but in the diagnostic area, there can be genuine variability.
·Agreed that DSM-5 is not a validating tool and said it is also not an investigatory tool, it is what psychiatrists call a nosology.
·Said a nosology is a form of classification of disorders and is used so that people can communicate with each other and is used for research purposes.
·When asked about her view of the Statement of Principles and given the example of where someone had a personality disorder, then by having a clinically significant disorder of mental health, as specified within the five years before the clinical onset, meaning that if you have a major disorder of mental health already accepted, then other disorders can follow on from that, said that is more of a legal and administrative matter.
·Said psychiatrists would not express it in that way - that was a legal or administrative interpretation rather than a clinical one.
·Said that in formulating her report, she did not use the Beck depression test or other memory tests to assess the Applicant as she did not think they are useful in a setting where the obligation is to the court, they are useful sometimes in research settings but not useful in this setting.
·Said that she did not use DSM-5 while she was interviewing the Applicant, however she did look at it in formulating her report.
·Said she does not believe that DSM-5 is the last word in anything. It is a useful nosology, but it is not the last word or a bible.
In response to questions asked by the Tribunal, Dr Reddan:[75]
[75] Transcript, pages 59-62.
·When asked if, in her report, the reference to August 1996 being a reasonable date of the onset of any mood disorder was also a reference to the date of onset for the personality disorder, said that is a difficult question to answer.
·Said, however, she based that statement on the premise that if the Applicant had a mood disorder and she could have developed a mood disorder as part of a personality disorder, it seems she first saw a psychiatrist around that time. She believed it seemed to be a reasonably objective matter, but generally by convention, most psychiatric disorders are not diagnosed before an individual turns 18, and often when individuals have personality disorders, it will be a gradual development and psychiatrists would not diagnose them until they are over 18. It would have been a gradual development usually from childhood. It is hard to determine a specific date of onset.
·Said that most personality disorders arise from circumstances, factors that are constitutional and childhood. They are often not apparent until much later on.
·Said that it was the history that the Applicant gave her together with the material she was provided with that helped her reach her diagnosis.
·Said: “It’s both, it’s not just one or the other because you have to look at these people longitudinally, not just a cross-section.”
·When asked if that is because in general, people may not tell each doctor everything each time they see them, said that it is part of the reason and also that people present differently over time.
·Said it is not uncommon for people with personality disorders to either experience mood disorders or to present as if they have got a mood disorder. She considers the Applicant’s primary diagnosis to be a personality disorder.
·Explained that a mood disorder is, for example, a major depressive disorder, particularly if it is with melancholia or even a chronic mild depression might be called a mood disorder, or something like mania or bipolar disorder are major mood disorders.
·When asked if it was the case that she had not seen evidence of a mood disorder throughout her examinations of the Applicant and was that why she had not diagnosed any such conditions, said:
Not as a primary condition, no. When I saw her she presented somewhat differently, but mood instability, without it necessarily being a mood disorder, is an inherent part of the kind of personality vulnerably or difficulty that she’s got.
·When asked how she treats personality disorder with mixed traits (borderline and histrionic personality traits), said:
Yes, a very good question. Well, basically, it depends on the individual but it is - some people prescribe medication but I think medication is just symptomatic in nature, it’s not a definitive treatment. Really the best treatment is psychotherapy and it depends very much on the type of psychotherapy that’s offered. But primarily the development of a long‑term therapeutic alliance and therapeutic relationship in psychotherapy’s the best treatment for it. And often individuals do tend to improve as they age. It’s not uncommon that they do. Sometimes they don’t and they will present a little bit differently over the lifecycle, as most psychiatric disorders do. But the primary treatment would really be psychotherapy, and any prescription of medication is really symptomatic in nature.
·Confirmed that her view was that the Applicant’s personality disorder was not contributed to by her military service and that there had been no aggravation of that disorder due to her service.
On re-examination by the Respondent, Dr Reddan:[76]
·When asked to expand on what she meant when she said that sometimes people with a personality disorder can present like they have a mood disorder, said:
Well, sometimes when they’ve experienced some vicissitudes, difficulties, stressors, they can react strongly, more strongly than others, and so they can appear to be depressed, or they can appear to be very anxious, but what’s driving that is the personality problem. So they can appear in cross‑section and because there’s an inherent move in stability they can certainly appear in cross‑section to have a mood disorder as a primary problem.
·When asked if there is a difference between borderline personality disorder and her diagnosis of personality disorder with mixed traits (borderline and histrionic traits), said that:
So what I’m saying is the problem - Mr Turner asked some questions about DSM-5 before and one of the problems, and one of the difficulties with our gnoseological categories is that they’re what we call categorical, they assume that people fit into a category and that they’re distinct from people in another category, that’s actually not how we find people in real life. We find particularly in the area of the personality disorders, that categorical diagnostic systems are somewhat misleading. So usually, most people with personality problems have mixed trays, that’s what you’d expect, so with - in [the Applicant’s] type of problem, they will often have the mood instability, the somewhat - use of somewhat primitive psychological defences, but she’s also - when I say histrionic, she’s rather dramatic in her presentation. And this was - is (indistinct) in her communication style, it tends to be impressionistic, someone diffuse, rather than specific. She puts a lot of focus on the look on other people’s faces, their tone of voice, the way they might shift their eyes, and that’s quite common in the individual with those kind of personality traits. I might mention though, that histrionic traits are very common and indeed, in the past, women were generally seen by psychiatrists as more histrionic than men were. I think that was perhaps not entirely true, but it was certainly the way, culturally, it was seen. But I think in [the Applicant’s] case, she has a flare for the dramatic. And indeed, she is - this - she’s attracted to, for example, performance. Like music, et cetera. And that’s where someone with a somewhat histrionic personality can actually be quite adaptive. It can be a useful way of adapting those traits to something that can be very useful for the individual and for others. But so, it’s not just that she’s got a borderline personality disorder, it’s a little bit different to that. There’s also this histrionic quality to her as well. So I prefer the term personality disorder with mixed traits because I think that incapsulates how most individuals present, they don’t present as a category, really, well, that would be rare.
[76] Transcript, pages 62-63.
At that point in Dr Reddan’s evidence, an adjournment was taken to allow the Applicant an opportunity to talk to Mr Turner so that he might put further questions to Dr Reddan.[77]
[77] Transcript, pages 64-65.
Upon resumption of the Hearing, Mr Turner told the Tribunal that the Applicant was concerned that Dr Reddan indicated that her hallucinations were not real. Mr Turner told the Tribunal that the Applicant believed they were extremely real and she opined that being on a low dose of medication does not indicate that there is not much wrong with her. In response, Dr Reddan said that was not what she had said, that this was a misinterpretation and perhaps the Applicant was jumping to conclusions similar to what she mentioned in her report.[78]
[78] Transcript, page 66.
The Tribunal asked Dr Reddan whether the dose of medication usually equate to what the medical practitioner deems to be suitable and necessary in order to assist the patient.
Dr Reddan said that was correct and she did not think that a great deal can be inferred from doses of medication.[79][79] Transcript, page 66.
When asked by the Tribunal about the evidence she had given in relation to the Applicant’s reports about having experiences of having the sensation or feeling like someone was trying to have sex with her or hearing voices of her father and brother would seem very real to the person experiencing it, even if her view is that they were not hallucinations, Dr Reddan said:[80]
Yes, that is correct. Your interpretation is quiet right, Member, it is a – it – when people talk about an experience, we should not necessarily jump to the conclusion that it is a hallucination which, by its very definition, is not real, it is a perception without a stimulus. An experience is not necessarily a hallucination.
[80] Transcript, page 66.
respondent’s submissions
At the Hearing,[81] the Respondent sought to rely on its Statement of Facts, Issues and Contentions[82] and provided closing written submissions.[83]
[81] Transcript, pages 70-77.
[82] Exhibit 5, Joint Tribunal Book, R1, pages 53-68, Respondent’s Statement of Facts, Issues and Contentions.
[83] Exhibit 9, Respondent’s Closing Submissions.
The Respondent provided the following summary of its contentions:[84]
[84] Exhibit 9, Respondent’s Closing Submissions, pages 1-2, paragraphs 2-4.
2.Dr Reddan’s opinion and oral evidence ought to be accepted in preference to any other expert. Dr Reddan is exceptionally qualified and experienced as a psychiatrist with an unparalleled understanding of medico legal issues, noting her position on the Queensland mental health court and as an expert relied on by the Queensland Coroner’s court. Dr Reddan’s written report (see Ex 5, R2) is thorough, considered and convincing. Dr Reddan was an impressive witness.
3.Dr Reddan is the only expert who:
3.1.Was briefed as an expert with an overriding duty to be impartial and to assist the Tribunal.
3.2. Appeared and gave oral evidence and was cross examined.
3.3.Considered all relevant history and material, including all other medical reports, taking all material into account in forming conclusions, the basis of which is explained in compelling detail. This gives a longitudinal history and picture across decades, rather than a cross sectional viewpoint. Dr Reddan also spent about 8 hours examining the applicant across a number of sessions.
4. Dr Reddan’s opinion is:
4.1.The applicant has a Personality Disorder with mixed traits (borderline and histrionic personality traits). This has been an evolving disorder from childhood and adolescence. The applicant’s Personality Disorder was not caused or contributed to by the applicant’s military service.
4.2. The applicant’s anxiety is part and parcel of her personality disorder and not a separate ailment.
4.3. The applicant does not suffer from PTSD or Bipolar Disorder, either 1 or 2. If bipolar was present “Her defence force service could not have caused her” to develop it.
4.4The applicant does not suffer from SZA.
The Respondent contended that while the Applicant’s medical history since about August 1996 when she commenced seeing Dr Scott has involved a search for the correct diagnostic label, such a label is important from a treating perspective, however, is less important when considering liability under the DRCA. The Respondent submitted that the DRCA enables progressive and evolving decision making, with the ability to take into account new scientific evidence as confirmed in Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253.[85]
[85] Exhibit 9, Respondent’s Closing Submissions, page 3, paragraphs 11-12.
The Respondent submitted that the parties agree that the review can encompass the five claimed conditions, being borderline personality disorder, PTSD, bipolar disorder, anxiety and schizoaffective disorder as the Tribunal must determine if the Applicant suffered from any compensable disease in addition to the accepted major depressive disorder (MDD) and aggravation of alcohol use disorder conditions.[86]
[86] Exhibit 9, Respondent’s Closing Submissions, page 3, paragraph 10.
The Respondent contended that to the extent that the Tribunal may have regard to the SoPs being relied upon by the Applicant, the evidence does not establish that the SoP criteria are met and/or they do not assist because a specified disorder has not been accepted under the DRCA at all, or in the relevant time period.[87]
[87] Exhibit 9, Respondent’s Closing Submissions, pages 5-6, paragraphs 22-23.
The Respondent contended that there is no persuasive evidence before the Tribunal that the Applicant suffered from any ailment at the time of her military service, apart from a developing personality disorder, which was pre-existing and not aggravated by service.[88] In support of that contention, the Respondent provided:[89]
[88] Exhibit 9, Respondent’s Closing Submissions, pages 7-8, paragraph 38.
[89] Exhibit 9, Respondent’s Closing Submissions, pages 8-11, paragraphs 41 and 45-58.
…..
41.As Dr Reddan and Dr Burchgart explain, the applicant also has biological predisposing factors because of her family’s psychiatric history.
…..
45. Dr Reddan confirmed there was no aggravation of the PD. She explained that the reaction to the usual vicissitudes of life may be dysfunctional and can be interpreted as mood disorders or other conditions when the person is in distress. After time, the person will usually revert to their usual level of functioning. Dr Reddan also confirmed that people with PDs can present like they have a mood disorder at other times. Usually this is because of mood instability inherent in the PD. The longitudinal history enabled Dr Reddan to see the common themes over time of mood instability and distress. This is consistent with a PD.
46.Dr Burchgart at Ex 5, A2 said the applicant reported a list of symptoms to her (p 47) that do not include hallucinations or delusions. Dr Burchgart then states at p 49 “She denied any perceptual disturbances suggestive of psychosis. She was not observed responding to internal stimuli.”
47.There is no persuasive evidence from an expert with a full longitudinal history that the applicant has suffered from bipolar, PTSD, SZA or any condition besides those identified by Dr Reddan.
48.In 2020 the applicant’s then treating psychiatrist, Dr Agilan, diagnosed bipolar and BPD, see Ex 2, R3 p 135-6 and 155-8. The first clinical presentation of the conditions was said to be on 23 November 2019. Dr Agilan opined that the bipolar has biological causes and the BPD is due to early developmental traumas.
49.In August 2021 the applicant’s treating psychiatrist, Dr Burchgart, completed the assessment documentation for permanent impairment and activities of daily living. Her opinion then was that there is no MDD, and that aggravation of alcohol use disorder and bipolar are the correct diagnoses.
50.In the letter of 18 August 2021, Dr Burchgart relevantly diagnosed bipolar, complex PTSD and BPD. Dr Burchgart has not confirmed whether or not she has been provided with the full documentary history. Although DVA offered to fund her attendance to give evidence in the Tribunal, the applicant chose not to make Dr Burchgart available for cross examination. There is no criticism of this choice, but the consequence is that the Tribunal only has Dr Burchgart’s written material and it does not support finding liability, even before Dr Reddan’s opinion is factored in.
51.In the letter of 18 August 2021 addressed to DVA, Dr Burchgart never provides her own opinion that Army service caused any conditions. Dr Burchgart records the applicant’s self-reports as to causation on page 2 of her letter. These self-reports emphasise the contribution of Army service. There are also references to the Army on page 3 in the substance use history given by the applicant. The references on pages 3-4 under Developmental History appear to be a mix of self-report and opinion, for example, after discussing the applicant’s service, the report states “This was the first of many perceived betrayals…and established an early mistrust of others.”
52.The passages which reveal the most about Dr Burchgart’s opinion on causation are under the heading Impression on page 4. None of the remarks reflect an opinion that there has been any defined level of contribution by the applicant’s service. For instance, the multiple traumas said to predispose the applicant to complex PTSD include “prejudicial childhood experiences, multiple sexual assaults and bullying and the loss of a child through stillbirth”. In relation to BPD, the reference to trauma in adulthood is to perpetuating the BPD. It is childhood experiences that are described as predisposing. In relation to bipolar, biological vulnerability is listed as pre-disposing.
53.The forms at Ex 3, ST7-8 by Dr Burchgart on 16 August 2022 concern alternative diagnostic labels. In respect of anxiety, this is said to have been diagnosed by Dr Chowdery in 2016 and is described as “Anxiety is also a symptom of her [PTSD].”. SZA is said to have been diagnosed in 2021 and “replaces” bipolar. Only one paragraph is provided by Dr Burchgart for each symptom/condition. Neither paragraph includes an explanation of causation.
54.Further, Dr Burchgart’s reference to “psychotic symptoms” directly contradicts what she said in her letter of August 2021 after seeing the applicant on six occasions. The respondent asks the Tribunal to infer that the applicant is providing Dr Burchgart with information which the applicant perceives may support the acceptance of conditions from time to time. This includes evolving reporting regarding hallucinations and providing Dr Burchgart with misinformation about her medication usage i.e. that taking certain medications on a regular basis has assisted with certain symptoms. The prescription history at Ex 5 R5 and Ex 8 are inconsistent with information provided to Dr Burchgart and told to Dr Reddan. The respondent does not suggest this is deliberate. As noted by Dr Reddan, the applicant’s personality traits operate so that she can be a vague historian and be very impressionistic.
55.Dr Reddan explains why this is all consistent with a personality disorder and also says:
A complicating factor in some of her treatment seeking has been that [the Applicant] has been very focused on obtaining reports to support her in various legal or administrative endeavours which sometimes seems to have put her at odds with her treaters.
She has also at various times consulted with public mental health services, but she has not generally been treated over a lengthy period of time by such services. These have mostly been in the context of perceived crises and visits to emergency departments.
56.Dr Reddan specifically addresses the statutory questions and criteria. However, as noted above, even absent use of that language, or regard to the relevant tests, it is still not possible to conclude that Dr Burchgart holds the opinion that there has been a material or significant contribution by service to the conditions she diagnoses.
57.Dr Reddan’s confirmed her earlier opinion that SZA is not an appropriate diagnosis here. If it did exist, Dr Reddan said it is neuro developmental in nature. Dr Reddan opined that ‘Anxiety’ as described is not an ailment, but rather an expected symptom for someone with PD.
58.As for BPD, both Dr Reddan and Dr Burchgart agree that there is a Personality Disorder. Both agree that causation was likely in childhood. The respondent asks the Tribunal to make factual findings that the applicant suffers from the ailment of a Personality Disorder that is not a disease under DRCA.
CONSIDERATION
At the outset, it is important to make clear that the Tribunal acknowledges the difficulties faced by the Applicant throughout her life and has no reason to doubt the psychological episodes that she has described.
It is noted that the Respondent does not dispute the Applicant’s evidence that she was sexually harassed in the Army by a more senior officer and that the incident should not have happened.[90]
[90] Exhibit 9, Respondent’s Closing Submissions, page 8, paragraphs 42.
The Tribunal accepts that the Applicant has a mental health condition of which has affected her life for a very long time. In order to consider whether or not the Respondent is liable to pay compensation in relation to any such mental health condition pursuant to section 14 of the DRCA, the Tribunal must consider whether or not any such condition or conditions can be considered an injury pursuant to section 5A of the DRCA. The Tribunal agrees with the parties and finds that any such mental health condition would be considered a disease for the purposes of establishing whether or not an injury pursuant to section 5A of the DRCA exists, further requiring consideration of section 5B of the DRCA.
As such, the question for the Tribunal to consider is whether the Applicant suffers from an ailment or an aggravation of such an ailment that was contributed to by her military service to the required degree.
In considering the appropriate diagnosis and onset of the conditions (which are referred to as ailments in section 5B of the DRCA) forming part of the Applicant’s claim, the Tribunal has had regard to the large volume of evidence placed before it.
The Tribunal agrees with the proposition that it has jurisdiction to consider whether liability under section 14 of the DRCA exists for what is reasonably encapsulated in the claim form, which may extend beyond a listed condition.[91] The Tribunal, therefore, concurs with the parties that the claim before it includes the 5 conditions being claimed by the Applicant.
[91] See Dustan v Comcare [2006] FCA 1655 at [38]-[40]; Abrahams v Comcare (2006) 93 ALD 147 and Kennedy v Comcare (2014) 63 AAR 100; FCA 82.
In this matter, the Tribunal notes that since at least 1996, diagnosis of the Applicant’s mental health conditions has been evolving.
If the opinion of Dr Reddan is to be accepted, the evolving and changing nature of the diagnosis of the Applicant’s mental health conditions is not unusual given the manifestation and presentation of a personality disorder with mixed traits (borderline and histrionic personality traits), if the diagnosing practitioners were not provided with a longitudinal history.
There are reports from a number of treating medical practitioners before the Tribunal. It is, however, noted that the Applicant sought to rely on the opinion provided by Dr Burchgart, as her current treating psychiatrist. The Applicant contended that the Tribunal should prefer the opinion of Dr Burchgart on the basis that she trusts her.[92]
[92] Exhibit 5, Hearing Book, A3, page 52, Applicant’s statement in preferred psychiatric report.
The Respondent, on the other hand, sought to rely on the opinion provided by Dr Reddan. For the reasons outlined above at paragraph 73, the Respondent contended that the Tribunal should prefer Dr Reddan’s evidence to that of Dr Burchgart.
The Tribunal notes that the report of Dr Reddan dated 14 March 2022 was extremely detailed and engaged with the totality of the evidence before the Tribunal up to that date. The report was clearly written and set out the reasons for the opinions formed by Dr Reddan in a logical and persuasive manner.
It is important to note that at this juncture, there is no evidence before the Tribunal that any other medical practitioner of whose reports are before the Tribunal, including
Dr Burchgart, had been provided with the Applicant’s full historical medical information as was considered by Dr Reddan.
Consequently, there is no evidence before the Tribunal that any diagnoses made other than those by Dr Reddan, were made having considered a longitudinal history. This is clearly important where there is evidence of personality disorder. This is evident in
Dr Sadasivan’s report of June 2018, where she provided an opinion that the Applicant was presenting with symptoms suggestive of PTSD on a background of borderline personality disorder, however indicated that the diagnosis of personality disorder would need to be confirmed with longitudinal assessment.
At the Hearing, Dr Reddan outlined her extensive and impressive experience as a psychiatrist and responded in a thoughtful and clear manner to all questions put to her. As set out above in paragraphs 64-67, Dr Reddan set out how and why she reached the diagnosis of personality disorder with mixed traits (borderline and histrionic personality traits), taking into consideration all of the information before her, which included that provided directly to her by the Applicant and consideration of the DSM-5. In doing so,
Dr Reddan also addressed the basis on which she opined that the Applicant did not have PTSD, bipolar disorder, anxiety (as a standalone condition) or schizoaffective disorder.
While both Dr Reddan and Dr Burchgart expressed the view that they did not consider the Applicant has MDD, the acceptance of that condition by the Respondent is not before this Tribunal. The Tribunal does however note that the basis on which the Applicant sought that liability be accepted for MDD as set out in paragraph 13 above is materially the same as the basis she presently seeks to have liability accepted for additional mental health conditions (as per paragraph 5 above).
At the Hearing, Dr Reddan explained her opinion in relation to diagnosis and that the Applicant’s personality disorder with mixed traits (borderline and histrionic personality traits) was almost certainly developing and manifest to some degree before the Applicant’s military service and why it was not aggravated by her service. Dr Reddan, in both her report and evidence provided at the Hearing, clearly stated that in her opinion, the Applicant’s personality disorder with mixed traits (borderline and histrionic personality traits) was a result of factors that are constitutional and arose from childhood and were not in this case a result of, contributed to or aggravated by the Applicant’s military service.
Both Dr Reddan and Dr Burchgart explained that the Applicant had biological predisposing factors to the conditions they respectively diagnosed due to her family’s psychiatric history.
Dr Reddan provided:[93]
In my opinion, [the Applicant’s] service from 5 April 1982 to 14 May 1984 did not contribute to her Personality Disorder.
It is likely of course that she reacted to some events during her service with considerable emotional expression and anxiety which was a temporary limiting nature.
The events during her service did not lead to any change in the natural history of her conditions.
[93] Exhibit 5, Joint Tribunal Book, R2, page 107, Report of Dr Reddan.
Dr Reddan explained that individuals with significant personality disorders may well present in crisis due to an adverse event and that the way in which their emotional reactions manifest themselves will vary. Dr Reddan provided that their emotional reactions may appear to be considerably greater or be manifested by regressed behaviour or acting out behaviour. Dr Reddan explained that this is not really an aggravation as such, as the actual condition is the major influencing or determining factor and it is more realistic to view an intense or abnormal reaction as presenting the natural history of the personality disorder.[94]
[94] Exhibit 5, Joint Tribunal Book, R2, page 107, Report of Dr Reddan.
Whilst making mention of the Applicant’s military service and what had been reported to her, the Tribunal concurs with the Respondent’s observations set out above that
Dr Burchgart’s opinion as to causation of the conditions she diagnosed the Applicant to be suffering did not provide any defined level of contribution by the Applicant’s military service. Dr Burchgart rather made reference in relation to the conditions she diagnosed to the Applicant having been predisposed by biological vulnerability in a first degree relation, having experienced a prejudicial childhood and trauma and as having been perpetuated by trauma in adulthood.[95]
[95] Exhibit 5, Joint Tribunal Book, A2, page 49, Report of Dr Burchgart.
In providing the report of 18 August 2021 and completing the forms dated 16 August 2022,
Dr Burchgart did not indicate that she had been provided with the Applicant’s full documented medical history. This is despite the Applicant having had access to that material at that time.
Further, despite Dr Reddan’s report dated 14 March 2022 likely having been made available to the Applicant well before 16 August 2022 when Dr Burchgart completed the forms relating to anxiety and schizoaffective disorder, there is no indication that the report had been provided to her for her consideration. There is certainly no evidence before the Tribunal in relation to Dr Burchgart’s view of the diagnosis or opinions proffered by Dr Reddan.
The Tribunal notes that Dr Burchgart was not made available to provide evidence at the Hearing and as such, the Respondent was not able to cross-examine her nor was the Tribunal able to put questions to her. The Respondent submitted that DVA was prepared to cover the costs involved in Dr Burchgart giving evidence at the Hearing.[96]
[96] Exhibit 9, Respondent’s Closing Submissions, page 10, paragraph 50.
Mr Turner submitted that Dr Burchgart was not called to give evidence to protect the relationship between patient and client, which they felt was very important.[97] The Applicant, on the second day of the Hearing, raised concerns in relation to Dr Burchgart not being called at the Hearing. Mr Turner explained that he and Dr Burchgart had agreed that it was in the best interests of the Applicant if she was not called to give evidence. Mr Turner told the Tribunal he understood that Dr Burchgart had discussed the matter with the Applicant and she had agreed. The Applicant confirmed that to have been the case but said she thought someone could just phone Dr Burchgart outside of the Hearing.[98]
[97] Transcript, page 3.
[98] Transcript, pages 45-46.
The Respondent brought to the Tribunal’s attention that the opportunity for Dr Burchgart to provide further evidence in writing had been made available to the Applicant and was discussed at earlier directions hearings.[99]
[99] Transcript, page 46.
The Applicant told the Tribunal that she agreed with Mr Turner and Dr Burchgart because she does not trust very easily, however she was stating how she felt and that to her, it felt that the case was one-sided.
Tribunal process and the principles of procedural fairness dictate that evidence provided in Tribunal proceedings upon which a party seeks to rely is provided to both parties for their consideration, subject to confidentiality or other security related issues. The Tribunal does not, in the absence of such issues, contact treating practitioners, experts or other witnesses outside of the Hearing process and certainly not without the parties being present.
It is both the Applicant’s and Respondent’s prerogative as to how they seek to run their case. In this matter, Mr Turner as the Applicant’s advocate, has, in conjunction with
Dr Burchgart, provided advice to the Applicant of which she readily admitted that she understood and agreed to follow.Consequently, the Tribunal considers that the extent of evidence of Dr Burchgart before it has been limited by how the Applicant has chosen to run her case and as such, there has been from the Tribunal’s perspective, no denial of procedural fairness or inherent unfairness directed to the Applicant in that regard.
While Dr Reddan readily said that psychiatry was not an exact science and Mr Turner correctly stated that means that diagnosis comes down to opinion, the Tribunal must consider which opinion it accepts or prefers based on the evidence before it.
In the present circumstances, based on the evidence before it, the Tribunal prefers the opinion and evidence provided by Dr Reddan over that provided by Dr Burchgart. The Tribunal accepts Dr Reddan’s diagnosis of the Applicant, being that the ailment that she suffers from is personality disorder with mixed traits (borderline and histrionic personality traits), with the date of onset being difficult to pinpoint, however that almost certainly it was developing and manifest to some degree before the commencement of her military service, and that the condition was not caused by, contributed to or aggravated by the Applicant’s military service.
The Tribunal has reached this conclusion for the reasons outlined above and having had regard to:
·Dr Reddan’s impressive qualifications and experience in psychiatry;
·Dr Reddan’s opinion being formed having had regard to the full suite of evidence available with regards to the medical history of the Applicant together with a substantial examination of the Applicant;
·Dr Reddan’s opinion being formed and provided with consideration to the guidelines for persons giving expert opinion evidence; and
·the evidence provided by Dr Reddan by MS Teams at the Hearing and the manner in which she responded to and maintained her opinions during examination in chief, cross examination and questions from the Tribunal.
The Tribunal considers that Dr Reddan formed her opinion objectively and presented as a creditable and informative expert witness.
Further, the Tribunal considers that preferring the opinion of Dr Reddan is not of itself totally inconsistent with the opinions expressed by Dr Burchgart. Dr Burchgart also opined that the Applicant has a personality disorder, was predisposed to mental health conditions and noted traumas and other contributory factors to the conditions she diagnosed. Despite knowing that the Applicant would be relying on her reports in relation to claims being made to DVA and her application to the Tribunal, Dr Burchgart did not make a clear link to the Applicant’s military service and causation of the conditions she diagnosed her as presently having.
For the reasons set out above, having accepted the opinion of Dr Reddan with regards to the cause and development of the Applicant’s personality disorder with mixed traits (borderline and histrionic personality traits), the Tribunal finds that based on the evidence before it, the Applicant’s personality disorder with mixed traits (borderline and histrionic personality traits) was an ailment that was not caused by or contributed to in any degree by the Applicant’s military service.
Further, for the purposes of considering whether the Applicant’s military service had contributed to in any degree an aggravation of her personality disorder with mixed traits (borderline and histrionic personality traits), it is noted that the existence and presentation of symptoms alone is not sufficient to constitute an aggravation, even where the symptoms may become somewhat more severe due to work.[100]
[100] Australian Postal Corporation v Bessey [2001] FCA 266 at [12].
Further, an aggravation of an ailment requires that there has been a psychiatric change such that a condition has been made worse by employment, rather than just become worse.[101]
[101] Canute v Comcare (2006) 226 CLR 535 and Military Rehabilitation Commission and May (2016) 257 CLR 268.
The Applicant did not agitate that she sought liability be accepted for aggravation of the ailments she claimed she suffered, rather she argued that they were contributed to or resulted from her military service.
The Tribunal does not consider there to have been a point of aggravation of the Applicant’s personality disorder with mixed traits (borderline and histrionic personality traits) identified.
As such, for the reasons set out above, having accepted the opinion of Dr Reddan with regards to the Applicant’s military service having not resulted in any change in the natural history of the Applicant’s personality disorder with mixed traits (borderline and histrionic personality traits), based on the evidence before it, the Tribunal finds that the Applicant’s personality disorder with mixed traits (borderline and histrionic personality traits) was not an ailment that had been aggravated by her military service.
Based on the findings of the Tribunal set out above, it is not necessary to delve into the different tests relating to contribution of service pursuant to the DRCA and associated transitional provisions.
For completeness, the Tribunal notes that Mr Turner’s contentions in relation to the application of the SoPs to any finding of contribution of the Applicant’s military service to the claimed conditions. Relevant to the diagnosed condition accepted by the Tribunal, Mr Turner contended in the Applicant’s amended Statement of Facts and Contentions that:[102]
4. The Statement of Principle for Personality Disorder allows for the acceptance of this condition via Factor (4) having a clinically significant disorder of mental health as specified within the five years before the clinical onset of personality disorder.
5. As the date of the clinical onset of the accepted, service-related condition of Major Depressive Disorder is the 1st October 1996 (Attachment 2) and the claimed condition has been diagnosed well after that date, the borderline personality disorder can be accepted as related to service.
[102] Exhibit 6, Applicant’s amended Statement of Facts and Contentions.
Noting that it is accepted that the SoPs are not binding in relation to assessments made under the DRCA, given the opinions provided by both Dr Reddan and Dr Burchgart in relation to the Applicant’s MDD diagnosis and the uncertainty around the date of onset of the Applicant’s personality disorder with mixed traits (borderline and histrionic personality traits), the Tribunal considers that any consideration of the SoP would be of no assistance to the Applicant’s case.
Based on the evidence before it, the Tribunal finds that the Applicant’s diagnosed condition of personality disorder with mixed traits (borderline and histrionic personality traits) is not a disease for the purposes of section 5B of the DRCA. As such, it follows that the Tribunal finds that the Applicant’s diagnosed condition of personality disorder with mixed traits (borderline and histrionic personality traits) is not an injury for the purposes of section 5A of the DRCA.
It would be remiss for the Tribunal not to acknowledge the respectful, supportive and professional manner in which Mr Turner has assisted the Applicant in progressing her application throughout the Tribunal process and particularly at the Hearing. Likewise at the Hearing, Ms Wright presented the Respondent’s case and cross-examined the Applicant in a manner that clearly showed an appreciation of the Applicant’s condition and her distress in relation to the proceedings. The Tribunal is grateful for the helpful assistance provided to it by both Mr Turner and Ms Wright (together with her instructors).
DECISION
For the reasons set out above, the Tribunal finds that:
(a)the correct diagnosis of the Applicant’s claimed mental health condition is personality disorder with mixed traits (borderline and histrionic personality traits);
(b)the date of onset of the Applicant’s personality disorder with mixed traits (borderline and histrionic personality traits) is unclear, however likely to have been from late childhood and prior to the commencement of her military service;
(c)the Applicant’s personality disorder with mixed traits (borderline and histrionic personality traits) was not caused or contributed to in any regard by her military service;
(d)the Applicant’s personality disorder with mixed traits (borderline and histrionic personality traits) was not aggravated by her military service; and
(e)consequently, the Applicant’s personality disorder with mixed traits (borderline and histrionic personality traits) condition does not constitute an injury for the purposes of section 5A of the DRCA.
As such, the Tribunal finds that liability does not exist under section 14 of the DRCA in relation to the Applicant’s claims made on 14 October 2019 with regards to borderline personality disorder or PTSD, or any of the subsequently labelled mental health conditions.
Accordingly, the decision under review is affirmed.
| I certify that the preceding 125 (one hundred and twenty-five) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell |
.........................[SGD]............................
Associate
Dated: 13 October 2022
Date of Hearing:
13 and 14 September 2022
Advocate for the Applicant: Mr Bruce Turner Counsel for the Respondent:
Solicitor for the Respondent:
Ms Sarah Wright
Ms Fiona Dempsey
Australian Government Solicitor
Exhibit 5, Joint Tribunal Book, A1.2, pages 8-10, Reviewable decision, varying determination dated
24 May 2021.
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