Kattenberg v Repatriation Commission

10 Pursuant to ss 120A(3) and 120A(4), unless the Authority has neither determined an SoP nor declared that it does not propose to make such an SoP in respect of the kind of disease contracted by a person, a hypothesis connecting the disease contracted by a person with the circumstances of any particular service rendered by the person will be reasonable only if there is in force, in respect of the relevant disease, an SoP that upholds the hypothesis.

The tribunal's decision 11 Before the Tribunal, the Veteran contended that he was entitled to a pension under the Act in respect of incapacity from diseases that he claimed are war caused diseases, being: · lumbar spondylosis and cervical spondylosis; · intevertebral disc prolapse; · depressive disorder.

Each of those diseases was said to have resulted, to a greater or lesser extent from the fall while on HMAS Yarra. There was an SoP in force in relation to each of those diseases. Accordingly, it was incumbent upon the Tribunal to consider whether the relevant SoP upheld a hypothesis connecting the relevant disease of the Veteran with the circumstances of his operational service.

spondylosis 12 In dealing with the Veteran's claim of back pain, the Tribunal referred to the history given to a number of medical practitioners by the Veteran. It concluded that, on the material presented to the Tribunal by the Veteran and the material in the medical histories, there was "discrepancy at the edges to do with the lingering effect, or otherwise, of the impact of the injury". However, the Tribunal found that the Veteran suffers from lumbar spondylosis. It then proceeded to consider the hypothesis advanced on behalf of the Veteran that that disease was a war caused disease. The Tribunal examined the hypothesis in the light of SoP 27 of 1999. 13 For the purposes of SoP 27 of 1999, "lumbar spondylosis" is defined as meaning: "degenerative changes affecting the lumbar vertebrae and/or intervertebral discs, causing local pain and stiffness and/or symptoms and signs of lumbar cord, cauda equina or lumbosacral nerve root compression, attracting ICD-9-CM Code 721.3, 721.42 or 722.52." ICD-9-CM Code is defined by reference to the Australian version of the International Classification of Diseases as published by the University of Sydney. 14 The relevant effect of clauses 4 and 5 of SoP 27 of 1999 is that if, before the clinical onset of lumbar spondylosis, a veteran suffers a trauma to the lumbar spine that is related to any relevant service rendered by the Veteran, a reasonable hypothesis will be raised connecting the lumbar spondylosis with the circumstances of that relevant service. The term "trauma to the lumbar spine" is defined as meaning: "a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the lumbar spine. These acute symptoms and signs must last for a period of at least seven days following their onset…" 15 While the Tribunal found that the Veteran suffers from lumbar spondylosis, it was of the opinion that the material did not raise a reasonable hypothesis connecting the Veteran's lumbar spondylosis with the circumstances of his operational service. The Tribunal reached the same conclusion in relation to the Veteran's cervical spondylosis. Cervical spondylosis is the subject of SoP 31 of 1999, the terms of which are essentially identical to those of SoP 27 of 1999, except for the substitution of "cervical spine" for "lumbar spine". 16 In assessing the reasonableness of the hypothesis advanced on behalf of the Veteran, the Tribunal accepted that the Veteran suffered a discrete injury to his lumbar spine when he fell on HMAS Yarra. The Tribunal also accepted that there was a development, within twenty-four hours, of acute symptoms and signs of pain and tenderness as contemplated by SoP 27 of 1999. 17 However, in dealing with the question of whether the material supported the hypothesis that acute signs and symptoms lasted for at least seven days following their onset, the Tribunal said: "The acute signs and symptoms must last for at least seven days following their onset. This is the weakness in the applicant's case. On his own evidence to the Tribunal and various doctors, the applicant returned to pretty much normal duties almost immediately after the incident. In the Tribunal's view the applicant's own description of relevant events, signs and symptoms contributes to the total picture he is presenting as part of his hypothesis. That picture, save for his description of a pain like jabbing hot needles, seems to fall short of a continuation for at least seven days of acute symptoms and signs. The Tribunal… considers that the applicant's hypothesis does not, taken in its entirety, posit the continuation of acute signs and symptoms for seven days or more… acute pain and tenderness must be 'sharp or acting keenly on the senses'. The applicant's hypothesis, permitting him to perform his duties as it did, suggests a continuation of pain that was more tolerable and manageable over the first week than the SoP would allow." 18 The Tribunal concluded that the material before it concerning the Veteran's symptoms and his pain and tenderness in the seven days following the fall did not satisfy the requirement of SoP 27 of 1999 or SoP 31 of 1999. The Tribunal considered that, in the light of the Veteran's capacity to do his normal work after the fall, the material did not support the hypothesis that he had suffered altered mobility or range of movement.

disc prolapse 19 The Veteran's complaint in respect of lower back pain included a claim of intervertebral disc prolapse. The Tribunal recorded in its reasons that the Veteran was content to accept that the date of clinical onset of intervertebral disc prolapse was 8 December 1988, being the first evidence of the condition. The Tribunal considered that there was no basis for accepting an earlier date of onset. The Veteran contended that his intervertebral disc prolapse was war caused by virtue of a war caused smoking habit. The Veteran's case was that his cigarette smoking increased as a result of his operational service and that his intervertebral disc prolapse was related to his smoking history. 20 SoP 130 of 1996 deals with intervertebral disc prolapse, which is defined as: "Protrusion, herniation or rupture of an intervertebral disc of the cervical, thoracic or lumbar spine, causing local pain and stiffness, and/or pain and paraesthesia radiating into the upper limbs, in the case of cervical disc prolapse, or into the lower limbs, in the case of lumbar disc prolapse, attracting ICD Code 722.0, 722.1, 722.2, 722.3 or 722.7." Clauses 4 and 5 of SoP 130 of 1996 relevantly have the effect that, where smoking of at least 30 pack years of cigarettes before the clinical onset of intervertebral disc prolapse is related to any relevant service rendered by a person, a reasonable hypothesis will be raised connecting the intervertebral disc prolapse with the circumstances of the relevant service. Under clause 7 of SoP 130 of1996, "pack year" means 7,300 cigarettes. 21 The Veteran contended, in effect, that, as a consequence of his operational service, his consumption of cigarettes increased and that, but for that increase, he would not have smoked thirty pack years of cigarettes before the clinical onset of intervertebral disc prolapse. Accordingly, so it was said, the smoking of that quantity of cigarettes was related to the Veteran's operational service. 22 The Veteran claimed that he first smoked after he joined the Navy, when he smoked between five and ten cigarettes per day. In 1965, when he left for his first trip away, he increased his smoking habit to between twenty-five and forty cigarettes per day. The reasons were a combination of peer pressure, cigarettes being much cheaper at sea, plus the need to be awake for many hours, which was helped by smoking. He said that he continues to smoke but that over the previous 10 years, he had reduced to between fifteen and twenty per day. 23 In the course of evidence before the Tribunal, the Veteran said that he had a few cigarettes in recruit school but that that was nothing. He started smoking proper when on HMAS Yarra in September 1964, smoking eight to ten cigarettes a day. That increased in April 1965 to twenty at first and then to thirty and forty a day. The increase to twenty was gradual and the Veteran asserted that it resulted from stress and pressure. He increased consumption to forty because cigarettes were available and cheap. Increasing stress engendered a rise in consumption. He continued to smoke around forty per day for the rest of his time in the Navy, reducing when he left the Navy in 1973 to fifteen or twenty per day. 24 The Tribunal made a calculation that suggested that the Veteran had smoked in excess of 219,000 cigarettes between September 1964 and November 1998. Accordingly, the Tribunal was satisfied that the Veteran had smoked at least thirty pack years of cigarettes before 8 December 1998, the date of clinical onset of his intervertebral disc prolapse. The question, however, was whether there was a reasonable hypothesis that the smoking of those thirty pack years of cigarettes was related to the operational service of the Veteran within the meaning of SoP 130 of 1996. 25 The Tribunal formed the opinion that the material did not raise a reasonable hypothesis connecting the intervertebral disc prolapse with the circumstances of his operational service because only about twenty cigarettes a day during the period from June 1965 to May 1973 could be taken into account. That totalled 58,300 cigarettes, which was well short of the 219,000 cigarettes that would make up thirty pack years of cigarette smoking.

depressive disorder 26 Both parties accepted before the Tribunal that the Veteran suffers from depressive disorder. Both accepted that clinical onset of the disorder occurred when the Veteran was fifteen years of age. The Veteran relevantly claimed that he later recovered and did not suffer any similar episodes similar to those suffered when fifteen years of age until after he was disciplined for apparently avoiding duties because of his back pain following his fall on the stairs of HMAS Yarra. 27 The Veteran claimed that he tried to take it easy about two days after his fall but was caught resting. He was given extra duties but could not do them. As a consequence he was put on a charge for refusing duty. Such a charge could have led to imprisonment. The Veteran was subsequently transferred to HMAS Sydney and went to Vietnam. On the first or second day he was in such pain he disobeyed an order by a PT trainer to do push ups and exercises. He was charged with disobeying a direct order and "had to front the Commander". 28 All submissions to the Tribunal were in written form. The Veteran contended in his written submissions that his depressive disorder was aggravated by his war service. It was submitted that the Veteran's illness had improved on his joining the Navy but that, after the disciplinary problems, he subsequently developed the full range of symptoms and also became withdrawn and more likely to worry. Reliance was placed on his evidence of having had feelings of helplessness and of not caring what may happen to him at age fifteen and again after the 1965 incidents. He said that, between the two periods, he had recovered, feeling "pretty happy", being away from the "bad vibes" and having had "plenty of friends", but that, after the 1965 incidents, "everything changed" and he became and remained "a loner" and that, unlike the age fifteen incident, he "just didn't care about anything". Accordingly, so the Veteran submitted, the Tribunal could not be satisfied beyond reasonable doubt that the depressive disorder was not aggravated by his operational service. 29 Although no mention was made of SoP 65 of 1996 in the Veteran's written submissions, the Commission, in its written submissions in response, referred expressly to that SoP, which deals with depressive disorder. Clauses 4, 5 and 6 of that SoP relevantly provide as follows: "Factors that must be related to service" 4. Subject to clause 6, the factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by that person. Factors 5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder… with the circumstances of a person's relevant service are: ……………………… (c) having a psychiatric condition within the two years immediately before the clinical onset of depressive disorder; or ……………………… (e) experiencing a severe psycho-social stressor or stressors within the two years immediately before the clinical worsening of depressive disorder; or (f) having a major illness or injury within the two years immediately before the clinical worsening of depressive disorder; or ……………………… (h) inability to obtain appropriate clinical management for depressive disorder. Factors that apply only to material contribution or aggravation 6. Paragraphs 5(e) to 5(h) apply only to material contribution to, or aggravation of, depressive disorder where the persons depressive disorder was suffered or contracted before or during (but not arising out of) the persons relevant service…" The term "severe psychosocial stressor" is relevantly defined as meaning: "an identifiable occurrence that evokes feelings of substantial anxiety in an individual or which is perceived as stressful…" 30 The Commission's written submissions pointed out that the Veteran had not raised in his written submissions any of the factors listed in clause 5 of SoP 6 of 1996. The Commission submitted that there was no evidence that the Veteran's depressive disorder was made permanently worse by the threat of disciplinary action in 1965. It contended, inter alia, that, regardless of which clinical worsening factor in clause 5 the Veteran relied upon, there was no evidence that the Veteran's depressive disorder was made worse within two years of the threat of disciplinary action in 1965. Thus, it was submitted, there was no evidence that the Veteran's depressive disorder was made worse by the events of 1965 than it was in childhood. 31 The Commission's written submissions referred expressly to factors 5(e), (f) and (h) of clause 5 and contended that the material before the Tribunal did not point to those elements but rather left the connection between depressive disorder and operational service open as a possibility. The Commission contended that, given that none of the factors listed in clause 5 of SoP 65 of 1996 had been satisfied, there was no basis on which a reasonable hypothesis could be raised under s 120(3) of the Act. 32 In the Veteran's written submissions in reply, his counsel said: "I apologise for not having spelt out the aggravation factors on which the applicant relied in the case of depressive disorder. As advised to the [Commission] by telephone, they are factors 5(e) (the disciplinary problems), and/or 5(f) (the back injury), and/or 5(h)." In its reasons, the Tribunal noted that the Veteran's representative had clarified "that she was relying on factors 5(c), (f) and (h) of SoP 65/96". The Tribunal then dealt with the equivalent of those factors in SoP 58 of 1998. For present purposes, it is unnecessary to consider which SoP was applicable, since the language of the two SoP's was, for present purposes, relevantly the same. 33 Factor 5(c) of SoP 65 of 1996 is concerned with the having of a psychiatric condition within the two years immediately before the clinical onset of depressive disorder. The Tribunal observed that the Veteran's hypothesis "does not reflect this requirement", since the Veteran's depressive disorder had its technical onset when he was aged fifteen, well before his operational service began. The Tribunal concluded that the Veteran's hypothesis in relation to depressive disorder failed to meet the requirements of SoP 65 of 1996. Accordingly, the Tribunal found that the material before it did not raise a reasonable hypothesis connecting the Veteran's depressive disorder with the circumstances of his service.

the grounds of appeal 34 The Veteran's Notice of Appeal relies on three separate grounds. Each relates to a different one of the 3 diseases identified above. I shall deal with each ground separately.

spondylosis 35 The first ground of appeal is as follows:

"In determining what hypotheses were raised by the evidence the Tribunal was required to determine whether "the material points to some fact or facts ('the raised facts') which support the hypothesis". The Tribunal did not do this. It looked to and evaluated all the Applicant's evidence in its entirety to form a view about what hypotheses were raised by the material before it. It erred by misconceiving this aspect of its tasks."

36 The Veteran contended that, in so far as his hypothesis required the development of acute symptoms and signs of pain and tenderness within twenty-four hours of the injury being sustained and for such symptoms and signs to last for seven days, there was material before the Tribunal that supported that hypothesis. The Veteran relied on his evidence to the following effect: · for the next week or more after the fall he was struggling to do his duties because of stiffness and pain; · he found it difficult to go up and down the ladder and had to rely more on pulling himself up with his hands; · he had trouble going down on his knees and getting up again in order to do scrubbing; · he moved more slowly because of pain which he described as "like jabbing a hot needle into oneself"; · his back was "pretty bad" for two or three weeks.

37 The Veteran contended that the Tribunal erred in trying to arrive at a "total picture" of the hypothesis advanced on behalf of the Veteran, by taking into account, not only facts that were consistent with SoP 27 of 1999, but also those that were inconsistent with it. It was said that the Tribunal should have considered only that part of the material that supported the hypothesis because it would be sufficient if some of the facts raised by the material before the Tribunal gave rise to a reasonable hypothesis, even if other material raised facts inconsistent with the hypothesis. The Veteran contended that the question was whether some or all of the material before the Tribunal raised one or more facts that gave rise to a hypothesis containing a factor or factors required by the relevant SoP. He contended that, in reaching its conclusion as to whether there was material that gave rise to a hypothesis consistent with SoP 27 of 1999, the Tribunal erred by having regard to material inconsistent with that hypothesis. 38 In considering, under s 120(3), whether the material raises a reasonable hypothesis, the Tribunal should not be concerned with conflicts in the material, whether they be of opinion or fact. The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts ("the raised facts") which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. The Tribunal is bound to have regard also to material that is opposed to the material that supports a veteran's claim for the purposes of examining the validity of the reasoning that supports the claim that there is a connection between the incapacity and the service. However, a hypothesis may still be reasonable although it is unproved and is opposed to the weight of the evidence. The use of the terms "the material" and "raise" suggest that s 120(3) is not concerned with the proof or satisfaction of a claim, but whether there is some "material" that calls for a determination under s 120 - see Bushell v Repatriation Commission (1992) 175 CLR 408 at 413-415. 39 The Veteran's contention is inconsistent with the explicit language of s 120(3). In order to determine whether or not a hypothesis is reasonable, it is necessary for the Tribunal to look at all the material, not just some of it. It is not entitled to find facts or reject matters. The Commission must consider the whole of the material before it - see Bull v Repatriation Commission [2001] FCA 1832 at [21]. 40 The Tribunal did that and concluded, from the whole of the material that, because the Veteran was able to continue his duties, the continuation of pain was more tolerable and manageable over the following seven days than would satisfy SoP 27 of 1999. Moreover, the Tribunal concluded that the whole of the material before it did not raise the hypothesis that the requirement that the Veteran suffered from altered mobility or range of movement of the spine during that period of seven days. There was no error in the approach of the Tribunal. The first ground of appeal fails.

disc prolapse 41 The second ground was formulated as follows:

"A "factor" in a Statement of Principles will be related to service if, for example, it was contributed to or aggravated by that service s196B(14)(d). In order to satisfy the Statement of Principles concerning intervertebral disc prolapse the Applicant had to meet the factor "smoking at least 20 pack years of cigarettes before the clinical onset of intervertebral disc prolapse". The Applicant's case was that he had smoked before his operational service but increased his smoking as a result of that service. The Tribunal erred by only having regard to the cigarettes smoked as a result of that service and not asking whether his total cigarette consumption had contributed to by his service."

42 An SoP is brought into existence in order to comply with s 196B. The terms of SoP 130 of 1996 purport to comply with the requirements of s 196B(2) by referring to the requirement that "factors must be related to any relevant service". That is the language used in s 196B(2)(e). It is appropriate to construe that language, when used in SoP 130 of 1996, as having the same meaning as is given to the same language in s 196B. That entails reading into the language of the SoP the language of s 196B(14). 43 Thus, smoking at least thirty pack years of cigarettes will be related to relevant service rendered by a veteran (see para [9] above), if the smoking of that quantity of cigarettes: · arose out of, or was attributable to, that service; · was contributed to in a material degree by, or was aggravated by, that service; or · would not have occurred but for the rendering of that service by the person.

Accordingly, the requirement of SoP 130 of 1996 that the relevant factor be related to the Veteran's service will be satisfied if there is shown to be a causal or contributory relationship between the specified number of pack years and service, or if the factor would not have occurred but for the rendering of that service. 44 The Tribunal did not approach the construction of SoP 130 of 1996 in that way. The Tribunal construed the SoP as requiring that the smoking of at least thirty pack years of cigarettes be wholly attributable to the service. The Tribunal did not examine the possibility that the smoking of the requisite number of cigarettes was contributed to in a material degree by the service or that it would not have occurred but for the rendering of the service. Accordingly, it fell into error in its application of SoP 130 of 1996. The second ground of appeal is therefore made out.

depressive disorder 45 The third ground of appeal is related to the apparent misreading by the Tribunal of that part of the Veteran's written submissions in reply that dealt with the claim based on aggravation of the Veteran's depressive disorder. It was expressed as follows: "The Applicant's submissions in reply stated that, in respect of depressive disorder, the Applicant relied on "factors 5(e) (the disciplinary problems)". That was a reference to factor 5(e) of the Statement of Principles concerning depressive disorder, Instrument No. 65 of 1996. That factor was "experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical worsening of depressive disorder". The Tribunal misread the submissions in reply as relying on factor 5(c) and erred by failing to address factor 5(e)." 46 Factor 5(e) refers to occurrences within the two years immediately before the clinical worsening of depressive disorder rather than before the clinical onset of depressive disorder. Clearly, factor 5(c) could have nothing to do with a claim that the Veteran's depressive disorder had been aggravated by relevant service. That follows from the terms of clause 6 of SoP 65 of 1996. The Tribunal therefore misapprehended the Veteran's submission. The question is whether the submission was one advanced to the Tribunal by the Veteran that was worthy of serious consideration and that was not dealt with by the Tribunal - see Dennis Wilcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 FCR 267. 47 In his written submissions in chief, the Veteran referred expressly to aggravation of his depressive disorder by relevant service. No reference was made to any particular provision of the SoP. It is significant that the first reference to factor 5(e) was made in the Commission's written submissions. That was then taken up in the Veteran's written reply, by way of spelling out the aggravation factors mentioned in SoP 65 of 1996. 48 The Tribunal relevantly dealt with the aggravation submission as follows: "70. The Veteran's own version of the recurrence of his depressive condition on the HMAS Sydney and at HMAS Narimba was to the effect that, when confronted with the discipline charges on the Sydney, he would not have cared if they had thrown him over the side. He did not care what happened to him. "They could have done anything they liked." "[T]hat was my first episode of - first of three episodes over a couple of years where I - for what reason I don't know - I had these weird things happening to me"... However, the Veteran then insisted that he was not suicidal. Rather, he said, he was at a very low point. The Tribunal takes this to mean that he would not have cared if he had died but he was not going to take steps to bring that about. 71. Asked if he had been like that before joining the HMAS Yarra the Veteran said that when he was 15 he "had a serious bout of - of really bad depression…which he did not recognise as such at the time, and which was caused by his \father. 72. He then said that he was "pretty happy" up until the Yarra. He had friends in the navy. However, after the "first incident on the Yarra", which was apparently when he was charged with disobeying a direct order, a charge that was later dropped, he became "a bit of a loner". He gave an Occupational Therapist further details about this period which seemed to extend for quite some time. 73. The Tribunal finds, despite the commission's submissions, that the Veteran has asserted that his depressive disorder did worsen in the navy. The version of the condition that he says afflicted him during operational service appears to have become entrenched for a lengthy period. In its earlier manifestation the disease had lifted after about a year. This would appear to constitute a clinical worsening. 74. Factor 5(c) of SoP 58/98 requires that the [Veteran] had a "clinically significant psychiatric condition" within the two years immediately before the clinical onset of depressive disorder. The [Veteran's] hypothesis does not reflect this requirement. The [Veteran's] depressive disorder had its clinical onset when he was aged 15 well before his operational service began." 49 Thus, the Tribunal concluded that the material before it suggested a clinical worsening of the Veteran's depressive disorder in the Navy. However, the Tribunal proceeded to deal with factor 5(c), which was concerned, not with clinical worsening, but with clinical onset. The Veteran's claim was that, when he was charged with disobeying orders, he experienced a severe psychosocial stressor, namely, an occurrence that evoked feelings of substantial anxiety or which was perceived as stressful, being on occurrence that was related to his operational service. The charges, if they constituted relevant stressors, occurred within the two years immediately before the clinical worsening, which, on the hypothesis, occurred while the Veteran was on operational service in the Navy. 50 The Tribunal did not consider whether the Veteran had experienced a severe psychosocial stressor. The Tribunal failed to give any consideration to the possibility that the charges laid against the Veteran while on HMAS Yarra and on HMAS Sydney constituted such a stressor. The Tribunal clearly misunderstood the Veteran's contention on aggravation in concluding that his hypothesis did not reflect the requirements of factor 5(c), since it apparently reached that conclusion because the depressive disorder had its clinical onset when the Veteran was aged fifteen. That, of course, had nothing to do with whether factor 5(e) was applicable. 51 The Commission contended that the failure of the Tribunal to consider the submission concerning the application of factor 5(e) was of no consequence, because it had no merit. It said that, even if the disciplinary charges constituted severe psychosocial stressors, the Veteran's description of his reaction to the charges could not support a finding that he experienced feelings of substantial anxiety, or perceived them as stressful. 52 However that was a matter for the Tribunal. I am not persuaded that it was not open to the Tribunal to find that factor 5(e) may have been made out, if it had considered that question. I consider, therefore, that the Tribunal erred in failing to deal with the Veteran's submission. The third ground of appeal therefore succeeds.

conclusion 53 It follows that the appeal should be upheld. The order of the Tribunal should be set aside. The matter should be remitted to the Tribunal for reconsideration, according to law, of the following hypotheses advanced on behalf of the Veteran: · The Veteran's intervertebral disc prolapse is connected with his relevant service because the smoking by him of thirty pack years of cigarettes before 8 December 1988 was contributed to in a material degree by, or was aggravated by, that service, or would not have occurred but for the rendering of that service; · The Veteran's depressive disorder is connected with his operational service because the disciplinary charges laid against the Veteran during the course of that service constituted the experiencing of a severe psychosocial stressor within two years of the clinical worsening of that depressive disorder. The Commission should pay the Veteran's costs of the appeal.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Solicitor for the Applicant: Legal Aid Commission of NSW

Solicitor for the Respondent: Australian Government Solicitor