Gilmour and Repatriation Commission [2002] AATA 7 (10 January 2002)

Last Updated: 11 January 2002

DECISION AND REASONS FOR DECISION [2002] AATA 7

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1998/1170

VETERANS' APPEALS DIVISION )

Re NEVILLE WILLIAM GILMOUR

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member DW Muller Brigadier IRW Brumfield, Member Dr KP Kennedy, Member

Date 10 January 2002

Place Brisbane

Decision The Tribunal affirms the decision to reject the applicant's claim for disability pension pursuant to the provisions of the Veterans' Entitlements Act 1986, for Depressive Disorder.

(Sgd) DW MULLER

SENIOR MEMBER

CATCHWORDS

VETERANS' AFFAIRS - depressive disorder - whether due to service-related shoulder injury or events occurring many years after service.

REASONS FOR DECISION

10 January 2002 Senior Member DW Muller

1. This is an application to review a decision to reject the applicant's claim for disability pension for Depressive Disorder.

2. The applicant claims that he suffers from a Depressive Disorder which has been caused by ongoing pain and disability due to an injury to his right shoulder which he suffered while playing rugby for an Army team. The respondent has conceded that the applicant suffers from a depressive/dysthymic disorder but that it arose from a series of traumatic incidents which the applicant experienced in civilian life more than ten years after he left the Army.

3. The history of the matter up until the applicant was discharged from the Army may be conveniently summarised as follows:

(i) Neville William Gilmour, the applicant, was born on 17 November 1956.

(ii) He joined the Australian Regular Army on 11 September 1978.

(iii) On 16 August 1979 he dislocated his right shoulder whilst playing rugby in an Army team. He was admitted to 4 Camp Hospital, Townsville. He was noted to have "dislocated right shoulder with degenerative joint disease".

(iv) On 17 November 1979 he married his first wife. The marriage produced a son born on 1 October 1980.

(v) Between December 1980 and April 1981 he complained of shoulder pain. He was treated with physiotherapy, cortisone, local anaesthetic, ultrasound and short-wave therapy.

(vi) On 14 August 1981 he dislocated his right shoulder for the second time.

(vii) On 18 November 1981 he dislocated his right shoulder for the third time.

(viii) On 3 December 1981 he was operated on by Dr R Gibberd at Townsville General Hospital - he had a "Bristow procedure".

(ix) On 13 July 1982 he dislocated his right shoulder for the fourth time.

(x) On 9 September 1982 he had a second operation by Dr Gibberd. In post-operative consultation, Dr Gibberd advised the applicant to avoid body contact sports and forceful movements.

(xi) On 16 March 1983 x-rays reported shoulder as "normal".

(xii) On 8 September 1983 a Medical Board re-classified him from FE to CZE with restrictions on using upper limbs above shoulder height.

(xiii) On 24 August 1984 he had two right shoulder operations by Dr Sharwood.

(xiv) On 11 September 1984 he was discharged from the Army at his own request. He had concluded that his promotion prospects would be very limited in the Army because of his medical down-grading.

4. Upon discharge from the Army, Mr Gilmour obtained work as a linesman with Telecom. He dug trenches, did general maintenance, pulled cables through pipes and worked on fixing cables to poles. He ceased work with Telecom in November 1986 because he was having trouble with his shoulder. (He had a further operation on his shoulder by Dr Stabler in September 1986.)

5. Mr Gilmour's wife had been working at a pottery at Springbrook. Mr Gilmour got a job at the pottery. His job was fairly undemanding. He had to supply the potters with clay. They were making small objects such as coffee mugs. Unfortunately, the owner of the pottery closed the business in 1989 and all of the employees lost their jobs.

6. After the closure of the pottery, Mr Gilmour decided to convert his Defence Compensation Pension to a lump sum. He used the proceeds to purchase a screen printing business on Bribie Island. His wife was a graphic artist. She operated the business. He assisted by doing sales work, picking up materials and delivering stock to customers. The business was well-established and doing well by 1995.

7. In 1995, Mr Gilmour had some very traumatic experiences:

(i) His nephew (sister's son) was hospitalised following an attempt at suicide.

(ii) His sister was killed in a motor vehicle collision on the way to hospital to see her son.

(iii) His sister had been involved in a hostile divorce and her former husband threatened to disrupt her funeral. Mr Gilmour had to hire security guards for the funeral.

(iv) Six months later his next door neighbour attempted to commit suicide by disembowelling himself and attempting to cut off his hands. Mr Gilmour saw what was happening and rescued his neighbour. The neighbour now harbours great resentment towards Mr Gilmour for stopping his suicide. The neighbour is now in psychiatric care.

8. About three weeks after the neighbour incident, Mr Gilmour attended a psychiatrist, Dr Jenkins. In a report dated 22 June 1998, Dr Jenkins said (among other things):

"On 31.10.1995 Mr Gilmour told me that he could not get to sleep and had formed a habit of staying up until he was absolutely exhausted so that he would sleep when he went to bed. He did not complain of any nightmares of the traumatic incident with his neighbour. Nor did he complain of any intrusive recollections although he was having some flashbacks of the sight of the neighbour.

He said his short term memory had become very poor and he was forgetting important things he had to and also names and telephone numbers. His concentration was very poor and these impairments in his memory and concentration were affecting his ability to run his own business. Mr Gilmour at that time had no problems with his temper and he said his appetite was good. His libido was unchanged. Mr Gilmour said that his mood was generally depressed but without any suicidal ideation and he also had recurring vague but very real anxieties that his neighbour might do him harm, that gentlemen having expressed considerable hostility towards Mr Gilmour who prior to the incident was a good friend."

9. Since October 1995, Mr Gilmour has had psychiatric assistance from Dr Jenkins and from other psychiatrists and a psychologist. He was advised by a Dr Lendering, psychiatrist, in October 1997, to stop work at the screen printing business because he was having "problems with customers".

10. Mr Gilmour separated from his wife in September 1997.

11. The Tribunal accepts that Mr Gilmour's shoulder problems have been a source of considerable pain, discomfort and inconvenience to him over the years. The Tribunal also accepts that his shoulder problems have caused him to be depressed from time to time. However, the Tribunal does not accept that his shoulder problems have been the cause of his current psychiatric illness. The Tribunal finds that the traumatic events of 1995, described in paragraph 7 above, and which led to his first visit to a psychiatrist, caused the psychiatric illness from which he now suffers.

12. The Tribunal affirms the decision that the applicant's depressive/dysthymic disorder is not related to his Army service.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member DW Muller, Brigadier IRW Brumfield and Dr KP Kennedy, Members

Signed: Denise Burton

Secretary

Date/s of Hearing 14 December 2001

Date of Decision 2 January 2002

Counsel for the Applicant Mr J McGhee

Solicitor for the Applicant Messrs Streeting Haney

Solicitor for the Respondent Mr B Williams, Departmental Advocate