Pearson and Comcare [2003] AATA 5 (6 January 2003)

Last Updated: 5 June 2003

DECISION AND REASONS FOR DECISION [2003] AATA 5

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2002/178

GENERAL ADMINISTRATIVE DIVISION	)
	Re	BRETT AMBROSE PEARSON

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

Deputy President Don Muller

Date 6 January 2003

Place Brisbane

Decision

The Tribunal affirms the decision to refuse compensation for permanent impairment.

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

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

WORKERS COMPENSATION - psychiatric illness - whether naturally occurring - whether arising out of or in course of employment - whether result of reasonable disciplinary action

Safety, Rehabilitation and Compensation Act 1988: s 4(1)

REASONS FOR DECISION

Deputy President Don Muller

1. This is an application by Brett Ambrose Pearson to review a decision by the Military Compensation and Rehabilitation Service dated 11 January 2002 which determined that:

(i) The applicant's current psychiatric condition was not aggravated by accepted military service related incidents.

(ii) Any accepted military related aggravations affecting the applicant's psychiatric condition have ceased.

(iii) The applicant has a nil whole person impairment in relation to his psychiatric condition.

(iv) The applicant has no entitlement to permanent impairment compensation.

2. In 1992 the applicant was a sergeant in the Australian Army based at Woodside in South Australia. In 1992 or 1993, the applicant began to suffer from occasional panic attacks. He also had some episodes of major depression from that time onwards. The panic attacks have subsided over the last ten years but the applicant still has an ongoing vulnerability to depression if confronted by perceived stress.

3. The onset of the panic attacks and depressive episodes coincided with some events in the applicant's life which the applicant claims to have caused or aggravated his psychiatric illness. In 1992 the applicant had a short-lived affair with the defacto wife of an Army colleague. Two other Army colleagues also had an affair with the same woman. The affairs were conducted off the Army base. The episodes caused problems between the four Army personnel involved and for the Army administration. There were threats of violence between the men. The social environment at the married quarters became very unpleasant. Consequently, the applicant was temporarily transferred from Woodside to Keswick (an Adelaide suburb) and then to Kapooka (Wagga) for 3½ years. The applicant claims that his psychiatric conditions were either caused, or aggravated, by the way in which the Army subsequently dealt with the problems arising out of the affairs with the colleague's wife. The applicant claims that he was not given appropriate professional help. He also claims that the transfer to Wagga aggravated his condition because it did not allow him to stay at Woodside and "work through" his predicament.

4. This claim for permanent impairment was made on 6 May 1999.

5. The applicant had made a previous claim for compensation and rehabilitation in 1996. The previous claim was eventually finalised by the Administrative Appeals Tribunal on 21 June 1999 when the following decision was given by Senior Member Kiosoglous, by agreement between the parties:

"the Tribunal:

1. Sets aside the decision of the respondent dated 25 February 1998; and

2. In substitution therefor decides that:

(a) the respondent acknowledges that from the month of November 1992 to 22 February 1996 the applicant suffered from panic disorder/major depressive disorder which was aggravated by his service with the respondent;

(b) during the period mentioned in (a) above the applicant acknowledges that he did not lose any time off work and his medical accounts were paid through the respondent and he further acknowledges that he has no entitlement to compensation under the Safety Rehabilitation and Compensation Act 1988 arising out of his employment with the respondent relating to the said condition for the said period."

Mr. Clark of Counsel, for the respondent, submitted that as a result of the above consent decision, the applicant was barred from claiming any further compensation.

The applicant submitted that as a result of the consent decision the respondent was barred from denying liability. Under the circumstances I decided that the questions of liability and compensation should be litigated afresh in this review.

6. The following matters are not in dispute and the Tribunal finds as follows:

(i) The applicant was born in a country town in South Australia on 11 June 1963.

(ii) He joined the Australian Army on 12 August 1981.

(iii) He married on 2 April 1988. His wife was from the same country town in which he had grown up.

(iv) He was promoted to sergeant in 1990.

(v) He had an affair with a colleague's defacto wife from January 1992.

(vi) He was transferred from Woodside (South Australia) to Keswick for a few weeks and then to Kapooka (Wagga) in November 1992.

(vii) In June 1995 he witnessed a fellow soldier commit suicide on the rifle range. He was involved in an inquest into the death later that year.

(viii) He was transferred back to Woodside in January 1996.

(ix) He spent three months in Malaysia in early 1999.

(x) He was transferred to Brisbane in December 1999.

(xi) He completed his 20 years of Army service in 2001 and then retired from the Army.

(xii) He currently works full-time as a security officer in a relatively stressful environment.

(xiii) His wife is a secondary school teacher who has been able to obtain teaching positions at schools near each of his Army postings.

(xiv) His psychiatric conditions have not prevented him from doing his Army work but they have interfered with his family and social life.

7. In 1993, the applicant was treated for psychological/psychiatric problems at Kapooka. The contemporaneous report of the treating psychologist contains the following account (dated 16 June 1993):

"Interview

A very tense & anxious man who was quite talkative & almost tearful for most of this iv. X's prob stem back to his last posting at 16AD Regt & so it is best to do a chronological trace of the prob.

X & his wife of 5 yrs (a 27yr old relief teacher. They have 2 children B2 & G 6/12) lived in the MQ `patch' at Woodside SA. Around Jan 92 X commenced a brief affair with a fellow NCOs defacto (it was later found out that the woman was having sex æ other NCOs as well. The affair came to a head when the woman's defacto caught her æ another male - she then claimed the affair she was having æ this other man only occurred because X & other NCOs had raped & abused her. This allegation was investigated & dismissed by civ police. Due to the probs this all caused in MQ area X was sent from 16AD to 4TrgGp to work. There was no work so he was sent back to 16AD, he was moved to HG4MD but discovered the lover of the woman had also been sent there (not a happy situation) - he stayed there for several months before going to Puckapunyal. He was at Pucka for 5 days when phoned & asked if he wld like to go to 1RTB. He had good mems of his prev posting here as CPL & so said `yes'.. However, 2 days after arriving here (Nov 92) he was in the main street & saw the woman he had the affair with & the man who her defacto found her with. The man has since left the Army & unbeknowns to X moved to Wagga with the woman (her home town). Since that day X claims to have been victim of numerous threats & harassments. Claims this man has tried to run him off the road - leaves threatening notes & had verbally threatened X's wife & children. This man has also followed X to his favourite fishing spots & has tried to harass him at work. X feels he gets no respite from this man's threats & he doesn't understand why he is being threatened. He has been to the police & he is due to go to court in Sep. In the meantime there is an undertaking out on this man.

As a result of the moving around (X feels he was severely dealt with by 16AD) & the present harassment he believes he is now close to collapse. There are signs of anxiety atks (++) & some blackouts. He is experiencing insomnia (& has taken to drinking 1 x 750ml btle of claret 3ni/wk & up to 3 bottles of beer lni/wk to facilitate sleep). When he does sleep it is broken & fitful. He is losing weight 5-6kg since Nov but is still eating well. There was a mild tremor of the hands & X reporting feeling suicidal at times - also some thoughts of taking revenge on the man. The things that prevents suicide or revenge are thoughts of his children.

X is now facing the concept of being sent into a PI as PISGT - he fears this as he feels too stressed out to perform & is worried he will either strike a rec or another staff member.

Today X explained his story & I arranged for him to see SMO for some light sedation. I explained effects of alcohol on his sleep & body & also spent time speaking about anxiety & panic atks. Gave X material to read on panic atks & will see him tomorrow. I have spoken to CI about X (æ his permission) & will spk to him again tomorrow."

8. Subsequently, the Army arranged for and paid for the applicant to have extensive psychological and psychiatric assistance. The list of medical practitioners who saw the applicant contains at least the following:

(i) Army Psychological Unit: Attended to the applicant on at least 81 occasions between 9 June 1993 and 14 February 1996.

On 29 June 1993: Childhood anxiety reported on.

On 5 December 1995: The panic attacks were reported to have been more pervasive in the first 18 months due to ongoing personal problems. It was thought that the applicant had the skills to manage and control the symptoms.

On 14 February 1996: The applicant was anxious about moving from Wagga back to Woodside and he was given counselling.

(ii) Dr. John Truman (psychiatrist): Saw the applicant on 17 May 1996. Dr. Truman reviewed the applicant's history and then concluded as follows:

"Following the stress of suddenly being uprooted and posted to New South Wales from Woodside this man became distressed, depressed and developed Panic Disorder, which has persisted despite 3½ years treatment.

He appears to have developed Major Depressive Disorder in April of this year for reasons unknown, apart from the fact he was rather concerned that he has not been placed on a Warrant Officers Course to enable him to be promoted."

(iii) Astrid Usher (psychologist): Saw the applicant on five occasions in 1996, the last occasion being on 8 August 1996. She also had a telephone conversation with the applicant on 2 October 1996. Her report of 9 October 1996 contains the following:

"I last saw Sergeant Pearson on 8 August, 1996 when he had returned from a two week posting in Darwin. He reported feeling much less depressed and felt his anxiety state had decreased while he had been away. Since his return home he had experienced further "flat" feelings.

He stated there was a morale problem at Woodside which he thought may be responsible for his low feelings.

Sergeant Pearson reported he had resumed playing football, was engaging in some socialising and was moving into his new home in the next few weeks which he anticipated would keep him busy for some time.

I telephoned Sergeant Pearson on 2 October, 1996 at which time he reported feeling much better, he thought his depression had levelled out and felt he was coping with work despite being very busy.

Sergeant Pearson is still able to avoid static drill which is the area he experiences anxiety symptoms, therefore I cannot report any further on his treatment in this specific area."

(iv) Dr. Michael Clarke, psychiatrist: Saw the applicant seven times between October 1996 and 12 May 1999. Dr. Clarke thought that the applicant's coping mechanisms were adequate and that he was capable of giving effective service as an NCO. Dr. Clarke thought that the applicant's anxiety and panic attacks were probably caused by the stressful events of 1992 but that they could also have been linked to the transfer to Wagga. The applicant had told Dr. Clarke that the transfer to Wagga was against his will.

(v) Professor Goldney, psychiatrist: The applicant was referred to Professor Goldney for the purpose of assessment following upon his claim for compensation in 1996. Professor Goldney examined the applicant on 27 February 1997. Professor Goldney also had available to him the applicant's psychological and psychiatric reports received by the Department of Defence up until that time. In a report dated 4 March 1997, Professor Goldney said (among other things):

"Mr Pearson indicated that he had last been quite well in "early `92'. He said that during 1992 he "was feeling funny", and he developed "types of tingling" in his toes and they "came up through the legs...tightness in the chest". He said that "they progressively got worse", and in November, 1992 he passed out on parade. He said that that time the symptoms progressed up his body and he noted that "once it gets to your waist it rushes through you .....along with the tightness in the chest you get that sick feeling in your stomach".

It is pertinent to note that Mr. Pearson's description is that of a typical panic attack superimposed on general anxiety.

Mr. Pearson said that he had a similar passing out on parade in December, 1992 and following that he thought his symptoms might be psychological. He said that he had been seeing psychologists since that time.

Upon enquiry about what led to his problems, Mr. Pearson said that there were two main isssues. The first is that he considers that he was unfairly posted from Woodside and that that was a "total upheaval".. He acknowledged that that was related to "affairs...a group of people got into marital affairs...after that the Army mishandled it". He said that he had been "long out of it", by which he meant that his six or seven week affair with a woman had finished three or four months before the relationships that that woman had been having came out into the open. He said that he was transferred to Keswick from Woodside for an number of months and then finally to Wagga, where the passing out occurred on parade.

Mr. Pearson said that he would have preferred to have stayed at Woodside and let the "flak wash over", and he noted that when he was transferred back to Woodside in December, 1995, his symptoms became worse again as he had to "re-live a fair bit of gossip".

With regard to the second stressor, Mr. Pearson said that he had witnessed a soldier committing suicide in "early `95". He said that that "pushed things right back...I didn't believe he needed to die". He said that the soldier shot himself with about sixteen other people nearby and he said that because of that he had "lost faith in my superiors". He said that "we'd passed on enough paper work to say he shouldn't be there", and he added that psychologists had recommended that that soldier be discharged, but those recommendations had been overruled. He said that "that's when I became more bitter and twisted to the hierarchy".

Upon enquiry about his general level of activity Mr. Pearson said that he was a sergeant in a Warrant Officer's position and he had done some of his examinations towards being a warrant officer. He was in the Air Defence section of the Army, based at Woodside. He said that he believes that his emotional condition has held back his Army career. He said that he had "never taken stress leave...the moment you take stress leave they throw you on the scrap heap". He also referred to only having to complete another four and a half years to obtain an Army pension.

Upon enquiry about other activities in his life Mr. Pearson said that he played Australian Rules football and he also went fishing "a lot", usually at least once a week. He read a little, and he went cycling on occasions for "a couple of hours".

At present Mr. Pearson is using the anti-depressant, Aurorix, in a dose of 450 mgm daily and the tranquiliser, Zanax, in a dose of 0.5 mgm occasionally, now only perhaps five or six times a year as he has very few parades at Woodside. He sees a Ms. Usher, a psychologist, on a monthly basis and he also sees a Dr. Moska on an intermittent basis for his medication.

Upon enquiry about alcohol he said that his wife considered that he had been using alcohol too much and he acknowledged that he would have a "couple of bottles (of beer) a day every day...sometimes more".

Mr. Pearson said that after leaving school he applied to join the police force and was told that he would have to wait. During that period of waiting he joined the Army. He served for three months at Kapooka and then was posted to Manly for three months and then Woodside in 1982. He remained there for about five years before returning to Kapooka in 1988 and 1989. Then he came back to Woodside in 1990 until November, 1992. However, between March and November of 1992 he was "detached to Keswick" after the issue associated with the affairs came out into the open. He said that he was transferred there with another man whilst they decided what would be done with them. He said that in November, 1992 he was transferred to Kapooka and then in December, 1995 he returned to Woodside.

Upon further enquiry about his "detached" period at Woodside, he said that he was "left hanging...I didn't know what was happening..I would've been better at Woodside...I'd been left swinging".. He said that whilst there he was helping in the gymnasium and he also did a ten week course towards his Warrant Officer promotion at Manly.

Upon further enquiry about his time at Keswick, he said that the other man who was posted there with him, a Danny Haines, threatened him in relation to the affair and the other woman. Indeed, that other man left the Army and went to Wagga as a civilian with the woman who had been at the centre of the affair. Mr. Pearson said that that man started "stalking" him and his wife when they were in Wagga and he said that messages were left under his windscreen wipers on his car and finally police were involved and a restraining order was taken out. The harassment must have been quite considerable, as Mr. Pearson indicated that on one occasion Mr. Haines had attempted to run him off the road whilst Mr. Pearson was riding his bike. Mr. Pearson observed that Mr. Haines had since rejoined the Army and was now in Queensland. Upon enquiry about when Mr. Pearson had become aware of Mr. Haines being in Wagga, he said that that had been after the passing out on parade.

Mr. Pearson's behaviour during the interview was unremarkable.

Mr. Pearson's conversation was that of an introspective man and there was no disorder suggestive of a psychotic condition.

Mr. Pearson's affect or mood was that of an anxious man and in addition he gave a convincing description of depression.

There was no abnormality of perception.

It is pertinent to make comment on the appended documents. It is evident that Mr. Pearson has had a considerable degree of psychological support and the clinical records of the psychologists are quite comprehensive. I note in the record of interview on the 16^th of June, 1993 that the issue of the affairs was perhaps more complicated than Mr. Pearson indicated to me. Thus it is noted that it had been alleged that he and other non-commissioned officers had raped and abused the woman in question, although that investigation was dismissed by civilian police. Nevertheless, that would have been a significant stressor. It is also recorded that only two days after arriving at Wagga Mr. Pearson saw the woman in question and the man with whom she was then living, the man referred to above who had threatened him and who subsequently engaged in stalking of both Mr. Pearson and his wife.

It was also recorded in the notes of the 29^th of June, 1993 that on further history taking Mr. Pearson acknowledged that there had been "numerous incidences of anxiety" in the past. That had been not only in relation to his Army training, but also during his teenage years. That is not uncommon history in a person who subsequently develops panic attacks.

SUMMARY AND CONCLUSIONS

Mr. Pearson has a typical history of a gradually evolving panic disorder/major depressive disorder. As noted immediately above, these conditions often co-exist. Not uncommonly there is a history of anxiety which ante-dates the sudden onset of an acute episode of panic, which occurred in Pearson in November, 1992.

Whilst is it probable that he would have developed such a condition even without having his Army service, it is difficult to avoid postulating that the events of 1992 would have been significant stressors for him. Those stressors are the exposure of his affair with the woman in question; the apparent allegations of rape against Mr. Pearson and his colleagues, allegations which were dismissed; and I have no doubt that the transfer of Mr. Pearson to Keswick, where he had a period of uncertainty about his career and the first threats from Mr. Haines, would also have been distressing for him. Within two days of arriving in Wagga he saw the woman in question and Mr. Haines there, following which there were episodes of "stalking" against both Mr. Pearson and his wife. Quite clearly Mr. Pearson was in an invidious situation.

There have also been other stressors, including illness in his older child, and there was a suicide of a soldier in 1995. With regard to the latter, I have no doubt that that was distressing to Mr. Pearson, particularly in view of his thoughts that the Army had not taken appropriate measures about the soldier who died.

At present Mr. Pearson's condition is not fully controlled. Thus he is experiencing episodes of attenuated panic up to two or three times a week. I took the liberty of suggesting that he may wish to pursue alternative medication with his local doctor.

In response to your specific questions I tender the following:

1. Mr. Pearson has a combination of a panic disorder and a major depressive disorder. As noted before, these conditions often co-exist.

2. This question asks on the balance of probabilities, as distinct from possibilities, was his condition either caused or contributed to by his employment. I consider that his psychiatric condition has been contributed to by a number of incidents which have been noted above. These incidents relate to the affair and its sequelae, including the allegations of rape and also the subsequent threats and stalking. It is also pertinent to note that I have no doubt that Mr. Pearson found it frustrating being posted to Keswick for a number of months whilst his future was being decided. Whether that is fair and reasonable in terms of administrative action I am not in a position to state. It is also pertinent to note that with the history documented by a psychologist of Mr. Person having had anxiety even before these events, then it is evident that he was predisposed to developing the more severe syndromes which have emerged. However, it is more likely than not that they would have emerged irrespective of his service, although on the balance of probabilities the incidents referred to above would have contributed to their earlier onset.

3. His psychiatric conditions are partly related to the issues which occurred during the course of his employment, though whether those issues are strictly speaking part of his employment, or related to reasonable administrative action, is a matter for others to judge.

4. The above noted stressors are of a temporary nature, but they have almost certainly brought forward the time of onset of his condition. Once established the panic disorder/major depressive disorder is a condition which tends to relapse and remit and one speaks more in terms of "control" of symptoms, rather than cure."

(vi) Dr. Morgan, psychiatrist: Dr. Morgan saw the applicant on 23 September 1999 for the purpose of assessing the degree of permanent impairment caused by his psychiatric illness. Dr. Morgan proceeded on the basis that the Military Compensation and Rehabilitation Service (MCRS) had accepted the aggravation of the applicant's condition since 1992 as being related to his Army service and he assessed the applicant's degree of permanent impairment due to that aggravation as 10%.

(vii) Dr. Jill Reddan, psychiatrist: Dr. Reddan saw the applicant on 29 August 2000, at the request of the MCRS, for the purpose of preparing a medico-legal report. Dr. Reddan had the assistance of a case summary which included the previous medical reports. She obtained a history of events from the applicant similar to that in the material supplied to her. In particular, she made the following points (among a lot of others):

"Sergeant Pearson reported that his difficulties commenced in 1992. He was then living and working in Adelaide. He stated that in late 1991 or early 1992 he commenced an extra-marital affair with another soldier's wife and there was quite a lot of upheaval. He stated that he was posted out of his unit to Kapooka and was not "supported" at that time. He stated that in March 1992 he experienced some symptoms as he felt sick at times and did not want to go to work. He stated that he did not want to leave home and had vague thoughts of suicide. He described depersonalisation experiences, a loss of appetite and a loss of concentration. He stated that around that time he considered going on "stress leave". He reported that his first episodes of panic or anxiety attacks occurred in November 1992.

Sergeant Pearson reported that at the end of 1995 he left Kapooka and went back to his usual unit. He stated that earlier on he had wanted to stay at Woodside to ride through the flak arising out of the affair and all that had occurred. He stated that when he returned to Woodisde in early 1996 rumours and gossip all started again. Snide remarks were made and his wife was approached negatively by others. He stated that the group at Woodside are "a small inbred unit" and he believed that these remarks would never end whilst he was stationed at Woodside.

Sergeant Pearson reported that he continued to regularly consult with the psychologist but during 1995 a soldier suicided on the range by shooting. He stated that earlier, he and a lieutenant in the unit had recommended that the soldier be discharged from the military but these recommendations were not followed by more senior officers. Sergeant Pearson stated that he did not actually see the soldier suicide. At the time he was the ammunition non-commissioned officer and was 100 metres away. He stated that as soon as it occurred, however, he ran down to the range where a number of other soldiers were attempting to treat or resuscitate the soldier who had shot himself, as the soldier did not immediately die. He stated that he saw a bit of the soldier's scalp on the mantelet but that this did not really affect him. He stated that he was with a civilian police officer when he observed it. He stated that after the soldier was taken to hospital the whole group went back to training that day, and he stated that he attended the range the next day. He stated that he handled the actual incident itself well.

Sergeant Pearson reported that he was not able to attend a warrant officer's course in 1996 because "they short-circuited me". He stated that once he was designated as the signal sergeant, his performance reviews were satisfactory, but he was not recommended for a promotion. He stated that in early 1998 he was the most senior sergeant in the regiment but was still not getting onto the warrant officer's course, however he stated that he then began to resign himself to it.

Sergeant Pearson reported that during 1998 and 1999 he went to Malaysia where he was a training sergeant. He stated that his commanding officer was willing to give him the benefit of the doubt, and he found the experience excellent. He reported that when he returned to Woodside he was sent to a reserve unit at Keswick Barracks where he was a training sergeant. He reported that during 1999 his performance reviews were good and showed a big improvement, and he was recommended for promotion, however, no warrant officer's courses are available. He stated that when he realised that he perhaps was not going to make Warrant Officer, he accepted a position offered to him in Brisbane in July or August 1999 and reported that he had been working at the recruiting office in town, mostly office-based hours. This posting is for three years.

Sergeant Person reported that at times he gets agitated with his family. He stated that when he gets home he needs some space and time but "everyone is in my ear". He stated that he slams doors and gets "very verbal", but he denied ever being physically violent. He stated that after "exploding", he rapidly settles, but his wife, Jo, holds on to it longer. He reported that they have a reasonable relationship. He stated that he does not particularly like going out on family outings. He stated that he takes his son to the football and his daughter to netball.

He stated that he goes fresh water fishing occasionally and likes to lift weights. He stated that he rides his bicycle every day and owns both a road and a mountain bike. He stated that he finds physical exercise very relaxing and he reported that he rides his pushbike to and from work. He stated that he takes a great deal of pride in his fitness and having "a reasonable looking body". He reported that he no longer has enough time to play Australian Rules Football.

He reported an ongoing anger at the Army. "I've been pushed from pillar to post. I've been treated badly". He stated that he still believes that he has the capability to be a warrant officer.

He stated that in 1992 his alcohol consumption increased to the point where he was blacking out and he described some binge drinking. He stated that gradually, over time, his alcohol consumption increased. He stated that he began drinking during the day and he was drinking two to three bottles of beer per day, as well as the occasional glass of spirits. He stated that his blood pressure increased and he put on a lot of weight, rising to 96 kilograms. He stated that he realised that his alcohol consumption had increased significantly when his wife showed him the bottles in the bin and his son made some comments. He stated that he had refused to admit his alcohol abuse until recently. He reported that he now limits himself to "a social" drink on Fridays and Saturdays, when he shares a bottle of wine with his wife. He stated that he also occasionally has a few beers. He stated that there has been one episode of excess alcohol consumption this year at a function. He stated that he uses alternative strategies to keep away from alcohol and he reported that he does not drink every day.

On 9 June 1995 the psychologist he was seeing spent one and a half hours with him following the suicide of the young soldier, and it was noted that he appeared to be managing quite well and that he did not believe these recent events had set him back. There was little further mention of the matter until 6 November 1995, when he wished to talk about the soldier, as the coronial inquiry was occurring that week. He was noted to not be anxious, but "reality seems to have set in".. He reported feeling confident about the inquiry. On 13 November 1995 he was noted to have experienced little anxiety about the coronial inquiry and he reported being positive about the experience. On 12 December 1995 the psychologist he was seeing wrote a summary as he was going to see another psychologist in Adelaide.

He presented on 14 February 1996. He was thought to have been a bit more anxious due to the move to Adelaide. On 27 March 1996 he presented very agitated and reported feeling overwhelmed by stress, with severe stress headaches. A number of stressors were documented, including family problems, awaiting a house loan, and being understaffed and overworked in his workplace. On 24 April 1996 he reported marked anxiety. He was noted to be filling a warrant officer's position and he expressed concerns about achieving the rank of warrant officer. On 1 May 1996 he presented again and related in a tense but happy manner, and he reported that he was improving. The psychologist decided to refer him for some hypnotherapy. I note the report dated 17 May 1996 by Dr. John Truman. Dr. Truman reported that Sergeant Pearson had been depressed on moving to Kapooka, but that in April of 1996 he became more depressed. He noted his history of panic attacks. Dr. Truman expressed the opinion that he had developed a Major Depressive Disorder in April of 1996 "for reasons unknown" apart from his concern that he had not been placed on a warrant officer's course.

It is my opinion that Sergeant Pearson developed Panic Disorder (Diagnostic and Statistical Manual of Mental Disorders - Fourth Edition - Text Revision) in late 1992 or early 1993. I think it likely that he also developed Major Depression (DSM-IV-TR) of mild to moderate degree in 1993. The Major Depression at that time spontaneously resolved and although the longitudinal history would suggest that his panic attacks substantially resolved, he continued to experience persistent concern about them. His longitudinal history would also suggest that a diagnosis of Alcohol Abuse (DSM-IV-TR) was appropriate. It is unclear whether he ever developed Alcohol Dependence (DSM-IV-TR).

These conditions developed in the setting of a man who was prone to anxiety and who may have suffered from a chronic low grade anxiety disorder. In addition, there is evidence of some interpersonal behaviours and attitudes which would have both predisposed him to the development of Panic Disorder and Major Depression and also tended to perpetuate the condition. (He has obsessional and some narcissistic traits. He is thus a rather rigid, controlling individual who has high expectations of himself and others).

I think it likely that in the first half of 1996 he experienced a recurrence of Major Depression which resolved with treatment and the passage of time. It is my opinion that this recurrence was precipitated by a variety of stressors; in particular, his failure to gain the promotion that he had hoped for. The ongoing alcohol abuse probably also was a precipitant. It think it likely, based on the contemporaneous records, that the suicide of the soldier in early 1995 was not a precipitant to the recurrence of his Major Depression. His subsequent involvement in various investigations later in 1995 and early 1996 may have had some role in aggravating his condition, but I think that the role of these investigations was minor.

In any event, Sergeant Pearson has not experienced a recurrence of Major Depression since, and the Panic Disorder is now in significant remission. He describes some anxiety symptoms and he is prone to irritability. He is likely to experience withdrawal symptoms when he ceases Aropax, which he may mistake for a recurrence of the original condition. Such withdrawal symptoms are quite common with this particular drug because of its pharmacokinetics. He has, of recent times, taken steps to reduce his alcohol intake, and he should reduce it further, as he will find that his anxiety symptoms will substantially lessen and it will lessen the chance of any recurrence of his condition.

There is little evidence of any substantial occupational impairment and there is no evidence that he is currently suffering any impairment due to any psychiatric disorder."

Dr. Reddan was the only medical person to give evidence at the Tribunal hearing. She said that in her opinion, the applicant has a "constitutional personality style" or a "biological predisposition" to develop panic disorder. She believes that the panic attacks arose spontaneously "uncued" and that it is quite common for sufferers to lay the blame, or attribute a cause, for panic attacks to events which occurred at the same time as the first onset of panic attacks.

Dr. Reddan also said that the stress surrounding the applicant's extra-marital and extra-Army activities in 1992, 1993, could have triggered an episode of major depression.

(viii) Nicole Detering, psychologist: She provided the applicant with regular psychological counselling fortnightly from November 2000 to late January 2001. She said that:

"The member sought counselling because of his apparent inability to cope with a series of personal and work-related events. These events included:

* Unwanted attentions by a co-worker. SGT Pearson indicated that a female co-worker made suggestive and unwanted comments. Rather than address the woman directly, the member sent a series of messages on the (workplace) electronic mail system. This action contravened workplace regulations and accordingly the member was charged and disciplined (militarily). SGT Pearson incurred a $500.00 fine.

* Recent advice from SCMA indicated that SGT Pearson has reached his ceiling rank. Understandably the member is disappointed with this advice, as he had always hoped to go beyond the rank of SGT.

* Wife's employment situation SGT Pearson's wife is a qualified teacher and has recently gained permanent tenure with Education Queensland. As a result, she is not keen to pursue further postings with the member. SGT Pearson is now forced to consider his employment options outside of the military system. Whilst he has ambitions to apply for the Fire or Ambulance Services, his psychiatric history may preclude his acceptance into either area.

* Son's emotional status. The member's nine-year old son is currently undergoing counselling for "behavioural problems". The member believes that he is responsible for his son's condition and subsequent behaviour.

* Altered living arrangements. SGT Pearson and his wife are now responsible for the care and welfare of an aged (92 year-old) relative with physical limitations and significant health issues. Generally, the member has not responded well to this altered living arrangement and as a result, has spent less time with the family."

(ix) Dr. Janis Carter, pscyhiatrist: Dr. Carter treated the applicant on ten occasions between 9 February 2001 and 9 October 2001. Her focus, as treating psychiatrist, has been on the maintenance of the applicant's mental health, not on the possible causes of his problems as they relate to whether or not his Army service caused or contributed to his psychiatric condition. Her report of 9 October 2001 contains the following observations (among others):

"It seems as though he does suffer from a depressive disorder, and that his drug treatment with the SSRI antidepressant Aropax, at 40mg a day, does seem to control his depression.

When he thinks about taking other jobs apart from the Army, he always considers embarking on inappropriately stressful occupations, such as the fire department, the rapid response police force, and the ambulance service. All these occupations, for which a soldier is actually quite well pre-trained, do involve a lot of stress, and would in fact be difficult for him to work in, because of his previous mental history. It does seem to me that his substance abuse, secondary to his major depressive disorder, is the area of his disability which is causing the most problems for him at the moment, rather than the major depressive disorder per se. This type of substance abuse is symptomatic substance abuse, and is not the primary substance abuse that some sufferers have.

Mr. Pearson now suffers from major depression. One of the features of this depression is some degree of agitation, which may be described by others as anxiety, but I describe it as an agitated major depression. This is complicated by symptomatic alcohol use or abuse. This does not occur all the time, but he uses alcohol, as many people with major depression do, as a drug of treatment for the condition, which is not appropriate. Recently he has got into trouble for some of his bad behaviour under the influence of alcohol, for which he has been reprimanded. I do not see him as suffering from entrenched alcoholism. It is mainly a by-product of his depression. I believe the condition of major depression is permanent. I believe the situation of alcohol misuse is dependent on his depression and its treatment. I believe the condition of major depression became permanent around mid-1994. This first bout of major depression started because he foolishly had an affair with someone, and the Army behaved in a way to transfer him abruptly to another area of Australia, and this interfered with his career progression. He was not able to cope with this, and spun into major depression. He has never recovered completely from this.

However, I do believe he continues to be vulnerable to depression in the future if pressure is put on him. On the balance of probabilities, I believe the transfer that the Army did to him when he had an affair precipitated the first bout of depression.

I believe that the illness condition is now well entrenched, and that the condition has become permanent. In answer to your specific question about the whole person impairment, in terms of his level of impairment I would describe him as 25 points of impairment, in that he reacts to the stressors of daily living, and his job has had to be modified, and there are modifications in his daily living patterns. There have been marked disturbances in his thinking, and definite disturbances in his behaviour."

9. The applicant gave evidence at the Tribunal hearing. He denied that the affair with his colleague's defacto wife ever involved any suggestion of rape. He denied that the South Australian civilian police were ever involved. He claimed that after the affair became common knowledge he was given no counselling by the Army and that he was transferred to Kapooka against his will. He claimed that he would have been better off if he had remained at Woodside. He said that he had not suffered personally as much as his family. His wife had been subjected to ridicule by other Army personnel and their wives for remaining loyal to him. His children had to bear the brunt of his bad moods and antisocial behaviour. He agreed that he had also experienced non-Army related stressors such as financial problems, mortgage repayments and raising children. However, his main problems have been the stigma of the affair, lack of promotion prospects and the fear of not being able to complete 20 years of service to qualify for the DFRDB pension.

10. I accept that the applicant's transfer to Kapooka in late 1992 had some unfortunate consequences in that initially unbeknown to the applicant, the woman with whom he had the affair and one of the men involved in the affair were living in Wagga and ultimately caused problems for the applicant. However, I do not accept that the applicant was transferred to Kapooka against his will. When he was interviewed by an Army psychologist on 16 June 1993 he said he was at Puckapunyal when he was telephoned and asked if he would like to go to Kapooka. He replied that he had good memories of his previous posting there as a corporal and so he agreed to the transfer. It was not until he got to Wagga that he discovered the other two people were there (see quote in paragraph 7 above).

11. I reject those psychiatric assessments which have attributed causation or aggravation to the applicant's Army service based on the notion that the applicant suffered stress because he was transferred to Kapooka against his will and that he would not have been so stressed had he been allowed to remain at Woodside.

12. I find that the Army authorities acted reasonably in 1992 in order to maintain peace and discipline within the group involved in the affair when they transferred the applicant to Kapooka after consultation with him. The unfortunate events involving the applicant and the woman with her male friend at Wagga had nothing to do with the Army.

13. I also note that the applicant told Dr. Reddan that he first began to feel the beginnings of his panic problems in March 1992. That was at about the time when the affair or the problems arising from it, were going on, and six months before he was transferred to Kapooka.

14. I reject the submissions made on behalf of the applicant that he was given inappropriate treatment by the Army after he had the affair, or after he began to experience panic attacks and depression. He was provided by the Army with a massive amount of professional psychiatric and psychological assistance.

15. The matter of the soldier committing suicide on the range in 1995 was an unpleasant experience for the applicant but he apparently handled the incident well. It does not seem to have been regarded by the applicant or by his treating psychiatrists as a cause or an aggravation of his condition.

16. It is clear from the psychiatric and psychological reports that the applicant has some ongoing stress relating to his lack of promotion prospects in the Army. Any psychiatric problems arising from this fact are not compensable (see definition of "injury" in s.4(1) of the Act).

17. I do not accept that the applicant's psychiatric injury arose out of, or in the course of his service in the Army. His injury either occurred as part of his constitution, arose out of the extra-marital affair or out of some other factor not known to the Tribunal.

18. I do not accept that there was any compensable factor in the applicant's service which aggravated his mental injury. Any aggravating factors were either outside Army activities and influences, or non-compensable.

19. The decision under review is affirmed.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed: .......................................................................................

C. O'Donovan, Associate

Date/s of Hearing 30 October 2002

Date of Decision 6 January 2003

Applicant Mr. Pearson, himself

Counsel for the Respondent Mr. C. Clark

Solicitor for the Respondent Phillips Fox