Anderson and Repatriation Commission [2009] AATA 23 (15 January 2009)

Last Updated: 19 January 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 23

ADMINISTRATIVE APPEALS TRIBUNAL No 2007/0647

VETERANS' APPEALS DIVISION		No 2008/2877
	Re		TRACEY ANDERSON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Mr RG Kenny, Member

Date 15 January 2009

Place Brisbane

Decision

The Tribunal affirms the decisions under review.

..............[Sgd]................................
Member

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements - disability pension – defence service with Australian Regular Army – application of Statements of Principles – appropriate diagnosis of psychiatric conditions –– major depressive disorder and morbid obesity diagnosed – conditions not attributable to defence service – decision affirmed.

VETERANS’ AFFAIRS – assessment of rate of pension – decision affirmed.

Veterans’ Entitlements Act 1986 (Cth) – ss 14, 68, 70, 120, 120B, 198B
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Keeley [2000] FCA 532; (2000) 60 ALD 401
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331
Youngnickel v Repatriation Commission [2004] FCA 1691
Cunningham and Repatriation Commission [2007] AATA 1790

REASONS FOR DECISION

15 January 2009

Mr RG Kenny, Member

BACKGROUND

1. The applicant, Mrs Tracey Anderson, served in the Australian Regular Army (ARA) from 15 July 1986 to 14 July 1989. She lodged three claims with the Repatriation Commission (the Commission), in accordance with s 14 of the Veterans’ Entitlements Act 1986 (Cth) (the Act), for a disability pension for incapacity from conditions she contended were related to her ARA service. On 23 July 2002, the claim was for cervical spondylosis, thoracic spondylosis and lumbar spondylosis. On 28 February 2005, the claim was for morbid obesity. On 7 June 2007, the claim was for depressive disorder.
2. On 31 January 2003, the Repatriation Commission determined that lumbar spondylosis was related to Mrs Anderson’s ARA service and assessed pension for incapacity at 40% of the general rate. The Commission determined that thoracic spondylosis and cervical spondylosis were not related to her service. On 5 March 2004, the Veterans’ Review Board (the Board) affirmed those decisions. On 1 August 2005, the Administrative Appeals Tribunal (the Tribunal) affirmed the decision in relation to cervical spondylosis but determined that thoracic spondylosis was related to Mrs Anderson’s service and remitted the matter of assessment of incapacity to the Commission. On 14 October 2005, the Commission assessed pension at 90% of the general rate. On 4 December 2006, the Board set aside that decision and assessed pension at 40% of the general rate from 23 April 2002 and at 100% of the general rate from 21 April 2003. Mrs Anderson has sought review of the assessment decision by the Tribunal.
3. On 2 March 2005, the Commission determined that morbid obesity was not related to Mrs Anderson’s service. In its decision of 4 December 2006, the Board affirmed that decision. Mrs Anderson has sought review of that decision by the Tribunal.
4. On 12 March 2008, the Commission determined that depressive disorder was not related to Mrs Anderson’s service. On 22 May 2008, the Board affirmed that decision and Mrs Anderson has also sought review of that decision by the Tribunal.
5. The following conditions have been accepted by the Commission as being related to Mrs Anderson’s service:

chondromalacia patella right knee

contact dermatitis both feet

peroneal brevis tendon injury right ankle

thoracic spondylosis

lumbar spondylosis

anxiety with depressed mood

sensorineural hearing loss left ear and

bilateral tinnitus.

SERVICE AND LEGISLATION

6. Mrs Anderson’s service with the ARA is a period of defence service in accordance with s 68 of the Act. The standard of proof for determining diagnostic matters, issues of causation for defence service and matters of assessment is set out in s 120(4) of the Act. This provision requires that such matters be determined to the Tribunal’s reasonable satisfaction. This imports the civil standard of proof so that matters must be determined on the balance the probabilities[1]. The application of that provision to matters of causation is affected by the terms of s 120B of the Act. This provides that, where a relevant Statement of Principles has been published by the Repatriation Medical Authority (RMA), a decision-maker may be reasonably satisfied that a condition is defence-caused only if the Statement of Principles upholds the contention that the condition is, on the balance the probabilities, connected with that service.
7. Subsection 70(1) of the Act provides that, where a member of the Forces is incapacitated from a defence-caused injury or disease, the Commonwealth is liable to pay pension to the member by way of compensation for incapacity associated with that injury or disease. The term “disease” is defined in s 5D(1) of the Act to mean “any physical or mental ailment, disorder, defect or morbid condition ...” Subsection 70(5) of the Act sets out criteria of causation. Accordingly, the disease is taken to be defence-caused if it arose out of, or was attributable to, any defence service of Mrs Anderson.

CONTENTIONS

8. Mr Cockburn, for Mrs Anderson, submitted that Mrs Anderson suffered chronic pain, for the period required by the relevant Statement of Principles, from her accepted orthopaedic conditions and that this led to the development of depressive disorder in 1993 or 1994. In turn, he submitted, this led to the development of an eating disorder and then morbid obesity.
9. Alternatively, Mr Cockburn submitted that Mrs Anderson suffered from a major illness or injury within the one year immediately before the clinical onset of depressive disorder
10. In relation to assessment, Mr Cockburn submitted that, if depressive disorder were accepted as being service-related, pension should be assessed at the special rate under s 24 of the Act. He also conceded that, if that condition was found to be unrelated to service, an earnings-related rate of pension would not be payable and that the current general rate of pension would continue
11. Mr Zeilinga, for the Commission, submitted that depressive disorder was not service-related because the chronic pain and major illness/injury requirements of the Statement of Principles were not satisfied. However, he conceded that, if it were determined to be service-related, morbid obesity would also be so related and that, for assessment, Mrs Anderson would meet the requirements of s 24 of the Act for payment of pension at the special rate.

EVIDENCE

Mrs Anderson

12. Mrs Anderson’s evidence was that she experiences constant pain from her lumbar and thoracic spondylosis with radiating leg pain, her right knee and right ankle. She described the level of pain as gradually increasing since her injuries were first incurred during her ARA service.
13. Since being discharged from the ARA in 1989, Mrs Anderson served in the Army Reserve until 1992 where she was a medic, which involved the same types of functions as performed in civilian life as an enrolled nurse. She only attended army reserve parades when her husband, who was also in the ARA, drove her. They lived in Sydney with their daughter, who was born in 1990, until the end of 1995 when they moved to Adelaide. In 1999, Mrs Anderson and her family moved to Hervey Bay in Queensland.
14. From 1991 until 1993, Mrs Anderson worked for K-Mart in customer service, which involved dealing with customer enquiries and complaints, and security. In the latter capacity, she was involved in apprehending persons stealing from the store and reporting them to the security officer. She worked from 8.30am until 12.30pm for 5 days per week. Mrs Anderson lived about 4 kilometres from her workplace and alternated between travelling by bus and by bicycle. The bus stop was only 20 metres from her home and the bus took her to the centre where K-Mart was located.
15. In 1993, Mrs Anderson and her family moved to another Sydney suburb. From 1993 until early 1995, she was an aged care worker in a high care nursing home. She was allocated up to eight patients and was responsible for feeding, showering, lifting and turning them in their beds. Her schedule required her to arrange the showering of four patients in one hour. Mrs Anderson said that the Home had difficulty in filling vacant positions and this meant that she had to do much showering and lifting of patients on her own. Initially, she worked from 7am until 3.30pm for five days per week. She had difficulty with that amount of work and changed to the night shift from 10pm until 7am for three days per week. When she was on the day shift, Mrs Anderson’s husband drove her to work and she travelled home by bus and had to walk the two kilometres to her home. When she was on the night shift, she would walk the two kilometres to the bus stop to travel by bus and, after her shift, would be driven home by her husband. Her daughter was taken to pre-school by a neighbour and, in the afternoons, Mrs Anderson would travel by bus to collect her. This required Mrs Anderson to walk a distance, each way, of three kilometres to and from the bus stop which was on a route different from the one that she used to travel to work.
16. Before moving to Adelaide in 1995, Mrs Anderson also worked in customer service with Target for about three months. She worked for three hours per day as a shelf-filler. She began to experience problems with standing and lifting at that time. She walked to and from the Target store which was three kilometres in each direction from her home.
17. After moving to Adelaide, Mrs Anderson worked for a nursing agency but ceased after only two shifts because of her back problems. She was not in employment in 1996 but, from 1997 to 1999, she worked as a telephone and computer hygienist. This involved her in attending various corporate offices to clean telephones and computers. She was able to control her hours in this employment and, when she experienced more pain than usual, she would stay at home. Here, she had to walk four kilometres each way for the bus. Mrs Anderson said that, while her mother had visited her from time to time while she was in Sydney, she received no such visitations from her extended family or friends in Adelaide.
18. In 1999, Mrs Anderson and her family moved to Hervey Bay in Queensland. By then, Mr Anderson was no longer in the army and he was available to transport their daughter to and from school. This was because he was not employed for the first 3 months at Hervey Bay and then had a position with flexible hours. At Hervey Bay, Mrs Anderson was employed until February 2000 as a personal aged care worker and laundry assistant in a retirement village. She was required to lift patients manually. With laundry work, she was involved in loading and moving trolleys.
19. Mrs Anderson said that she had always been the prime carer of her daughter. This was particularly the case in Adelaide because her husband’s responsibilities included inspection of rifle ranges throughout Australia and he was frequently away from home.
20. In a statement made by Mrs Anderson, she said that she weighed 62 kg on enlistment to the ARA and was 67kg on discharge. She said that in the early 1990s she had problems exercising and weighed 72 kg in 1993. In the later 1990s, she felt depressed because of the effects of her orthopaedic problems and developed a binge eating pattern such that, by 1999, she weighed 90.5 kg. Her weight continued to increase and she weighed 98 kg in 2003 and 103 kg in 2005. She said that, in more recent times, her weight ranges from 103 to 108 kg. In a further statement, dated 17 May 2005, Mrs Anderson said that she became more inactive after 1993 because of her knee and ankle and began to feel depressed.

Dr Jennifer Lockwood, psychiatrist

21. Dr Lockwood completed a report dated 27 June 2006, having seen Mrs Anderson earlier that month. Dr Lockwood outlined her work history which included being a telephone hygienist for two years in Adelaide. Dr Lockwood described a long history of psychiatric disorder including obsessive compulsive disorder at age 15 which settled before she joined the ARA. Dr Lockwood also described episodes of depression while Mrs Anderson was in the army in the context of physical injuries and frequent miscarriages and to a period of about three years after discharge when symptoms had settled. She noted that depressive symptoms in 1992 were resolved after treatment by a psychiatrist at that time. Dr Lockwood considered that Mrs Anderson’s current major depressive disorder began in 1993 or 1994 and, unlike the earlier discrete episodes which resolved, has become chronic.
22. Dr Lockwood gave evidence that depressive disorder is not the same as mixed anxiety with depressed mood or adjustment disorder with depressed mood. She said that, unlike the other conditions, major depressive disorder usually does not require a particular triggering event. However, she also said that a clear distinction between the two conditions is not always made. She conceded in cross examination that it was possible that the condition which was diagnosed as anxiety with depressed mood or adjustment disorder with depressed mood could have been a major depressive disorder which was misdiagnosed at the time, or that the earlier condition developed into major depressive disorder.
23. Dr Lockwood was of the opinion that Mrs Anderson also satisfies the DSM IV criteria for binge eating disorder which was directly and causally related to her chronic depression. She considered that its clinical onset was also in 1993/4 and that the major depressive disorder preceded it with symptoms of sleep disturbance, headaches, irritability, fatigue and low motivation. Further, Dr Lockwood’s opinion was that the weight gain experienced by Mrs Anderson was directly related to the eating disorder.
24. At the time of completing that report, Dr Lockwood had not seen reports prepared by psychiatrist Dr Robert Athey. She was supplied with those documents and, on 1 August 2006, provided a further report in which she said that her opinions were not changed and that, rather, she read Dr Athey’s reports as confirming her own opinions.
25. In her evidence, Dr Lockwood expressed the opinion that recurrent pain is a contributory factor to Mrs Anderson’s major depressive disorder.

Dr Robert Athey, psychiatrist

26. In his report, dated 31 October 2003, Dr Athey diagnosed anxiety disorder with depressed mood. He also wrote that Mrs Anderson satisfied 7 of the 9 criteria in DSM IV for major depressive disorder and noted that only 5 were required in order to enter a diagnosis of that condition. He referred to back pain as being causally associated with the adjustment disorder and noted that Mrs Anderson ceased work in 2000 because of her back condition and that this event dramatically increased her symptoms of anxiety and depression.
27. In his further report, dated 10 October 2004, Dr Athey described a four year history of significant depression but also noted that symptoms of depression dated back a number of years before 2000. In that report, he diagnosed major depressive disorder. He referred to earlier diagnoses of adjustment disorder and wrote that this amounts to very much the same condition. His opinion was that Mrs Anderson’s physical injuries and deterioration in her ability to control pain as well as subsequent loss of employment, were causally associated with the condition.

Dr Catherine Oelrichs, psychiatrist

28. In her report, dated 21 March 2007, Dr Oelrichs diagnosed major depressive disorder and she implicated Mrs Anderson’s chronic back and leg pain in its causation. She recorded Mrs Anderson as telling her that she had depression in late 1989 and early 1990, and commenced antidepressants in 1993 which “levelled [her] out”. Dr Oelrichs described recurrent episodes with her current condition having become chronic.

Dr Michael Leong, psychiatrist

29. In his report, dated 11 July 2005, Dr Leong recorded a history provided by Mrs Anderson. This included that she had not received any psychiatric or psychological treatment while she was in the army and first received such treatment in 1992. He recorded her as having taken medication for depression in 1996 and having difficulty in finding work at that time because of her back problem. He also referred to her work history, noting that she returned to geriatric nursing in 1997.
30. Dr Leong wrote that Mrs Anderson’s ankle and back conditions started to trouble her more in late 1996. He described her as having constant back pain since 1997 but as being fully independent in all activities of daily living of self care including dressing, showering, toileting, feeding and mobilising as well as in most other instrumental activities of daily living. In that regard, he included cooking, light mopping, washing, folding clothes, shopping occasionally and travelling by bus, but not vacuuming, hanging washing, ironing or gardening. He also referred to her reference to a gradual worsening of her back condition since leaving the army and to her being constantly in pain.
31. Dr Leong diagnosed major depressive disorder but concluded that she was capable of performing light sedentary work, such as a shop assistant, for 16 to 20 hours per week.

Dr Jeff Taylor, psychiatrist

32. Dr Taylor, in his report of 30 August 2005, described Mrs Anderson as having suffered significant depression, especially since 1998 with worsening since 2002. He referred to her being treated as an in-patient for depression in 1987.

Dr HJK Khursandi, orthopaedic surgeon

33. Dr Khursandi completed a report on Mrs Anderson on 2 October 2002. He referred to her lumbar and thoracic spine conditions and wrote that the symptoms associated with those conditions were not such as to interfere with her home and social activities or her ability to work. In a further report, dated 1 October 2003, he wrote that, on physical examination, Mrs Anderson walked with a normal gait, was able to toe-walk and heel-walk, could jog on the spot, squat and negotiate steps with no obvious discomfort. He described a full range of movement in her lower limbs with no muscle wasting.

Dr John Sowby, specialist in occupational medicine

34. Dr Sowby, in his report of 14 May 2008, recorded Mrs Anderson as telling him that the onset of her current depression was in the late 1990s, with medication prescribed in 1996. He considered that Mrs Anderson’s physical disabilities would not prevent her from working for 8 to 20 hours per week.

Other Evidence

35. Jo Chandler, occupational therapist, completed a rehabilitation report on 12 October 2006. It describes Mrs Anderson as being largely independent with activities of daily living but as needing occasional assistance from her daughter or husband to dress her lower limbs due to back pain. She also referred to Mrs Anderson’s inability to maintain the household in an adequate manner and having to seek assistance, particularly with ironing.
36. Ms Chandler also completed a report dated 9 December 2006. Therein, Mrs Anderson’s employment history is outlined. It includes the activities she described in her evidence and her break in employment from 1995 to 1997.
37. Mrs Anderson’s service medical records were in evidence. These included medical history questionnaires dated 16 June 1989, completed by Mrs Anderson on discharge from the ARA, and 28 June 1990, completed by her on entry to the army reserve. They describe Mrs Anderson as having normal emotional stability, having an “ankle injury” and a “back injury” and no “knee injury” and no “other joint injury”. Mrs Anderson’s weight is recorded at 67.4kg and 67 kg, respectively. Her records refer to her feeling depressed at various times during her ARA service. On 1 and 2 April 1987, this is in the context of treatment for her back and neck and she is noted to be feeling much better 7 days later. On 19 April 1988, it is in the context of her miscarrying during pregnancy which occurred on four occasions before her daughter was born in 1990.
38. Dr Daniel Rajasooriar is Mrs Anderson’s treating medical practitioner. Clinical notes from his practice were in evidence. A note in May 1996 described “? masked depression”; “Discussion re depression possibility”; “Admits to being a little depressed”. In July 1997, a note described her as feeling “run down” and his entry reads: “discuss depression”. A week later, a note described her as being “depressed” and reference is made to the antidepressant Zoloft. Dr Rajasooriar provided a report, dated 13 October 2003, that she had been on medication for depression for over 6 years. The clinical notes also record Mrs Anderson advising in May 1996 that she had moved to Adelaide and was looking for work and stating that she felt that she could do checkout work.

DIAGNOSIS OF CONDITIONS

39. It is not disputed by Mr Zeilinga and I am satisfied, on the basis of the medical evidence, that Mrs Anderson’s entitlement claims are answered by the diagnoses of major depressive disorder and morbid obesity.

RELEVANT STATEMENTS OF PRINCIPLES

40. The RMA has published Statements of Principles for depressive disorder, with Instrument No 59 of 1998 which was successively repealed and replaced, respectively, by Instruments No’d. 18 of 2007 and 28 of 2008. The matter of depressive disorder is to be considered, initially, under the latest Instrument but, in the event that its requirements are not met, it is then to be considered under the repealed Instruments[2]. The Statement of Principles for morbid obesity is Instrument No 32 of 2003. A further Statement of Principles referred to in the hearing was Instrument No 48 of 2008 for eating disorder.
41. The factors in the Statements of Principles for major depressive disorder, morbid obesity and eating disorder relevant to Mrs Anderson’s claim and relied upon by Mr Cockburn, with their respective definitions, read:

Depressive disorder
Instrument No 59 of 1998
“5. ...
(c) having a major illness or injury within the one year immediately before the clinical onset of depressive disorder; or
(d) suffering from chronic pain of at least six months duration at the time of the clinical onset of depressive disorder; ...

9. ...

‘chronic pain’ means continuous or almost continuous pain, which may or may not be ameliorated by analgesic medication and which is of a level to cause interference with usual work or leisure activities or activities of daily living; ...
‘major illness or injury’ means a serious illness or injury, that is life threatening, or seriously disabling”.

Instrument No 18 of 2007
“6. ...
(g) having a medical illness or injury which is life-threatening or which results in serious physical or cognitive disability, within the two years before the clinical onset of depressive disorder; or
(h) having chronic pain of at least six months duration at the time of the clinical onset of depressive disorder; ...

9. ...

‘chronic pain’ means continuous or almost continuous pain, which may or may not be ameliorated by analgesic medication and which is of a level to cause interference with usual work or leisure activities or activities of daily living”.

Instrument No 28 of 2008
“6. (a) ...
(vii) having a medical illness or injury which is life-threatening or which results in serious physical or cognitive disability, within the two years before the clinical onset of depressive disorder; or
(viii) having chronic pain of at least six months duration at the time of the clinical onset of depressive disorder; ...

9. ...

‘chronic pain’ means continuous or almost continuous pain, which may or may not be ameliorated by analgesic medication and which is of a level to cause interference with usual work or leisure activities or activities of daily living”.

Eating disorder
Instrument No 48 of 2008
“6. ...
(e) having a clinically significant psychiatric condition as specified, within the one year before the clinical onset of eating disorder; ...
9. ...
‘a clinically significant psychiatric condition as specified’ means any of the Axis I mood disorders, anxiety spectrum disorders, substance abuse or substance dependence disorders, or attention-deficit and disruptive behaviour disorders of mental health that attract a diagnosis under DSM-IV-TR and is sufficient to warrant ongoing management. The ongoing management may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner”.

Morbid obesity
Instrument No 32 of 2003
“5. ...
(c) suffering from a binge-eating disorder at the time of the clinical onset of morbid obesity; ...
8. ...
‘binge-eating disorder’ means a psychiatric condition meeting the following description (derived from DSM-IV):
A. Recurrent episodes of binge eating. An episode of binge eating is characterised by both of the following:
(1) eating, in a discrete period of time (e.g., within any 2-hour period), an amount of food that is definitely larger than most people would eat in a similar period of time under similar circumstances;
(2) a sense of lack of control over eating during the episode (e.g., a feeling that one cannot stop eating or control what or how much one is eating).
B. The binge eating episodes are associated with three (or more) of the following:
(1) eating much more rapidly than normal;
(2) eating until feeling uncomfortably full;
(3) eating large amounts of food when not feeling physically hungry;
(4) eating alone because of being embarrassed by how much one is eating;
(5) feeling disgusted with oneself, depressed, or very guilty after overeating.
C. Marked distress regarding binge eating is present.
D. The binge eating occurs, on average, at least 2 days a week for 6 months.
E. The binge eating is not associated with the regular use of inappropriate compensatory behaviours (e.g., purging, fasting, excessive exercise) and does not occur exclusively during the course of Anorexia Nervosa or Bulimia Nervosa”.

DEPRESSION

Clinical onset

42. Each factor in all three Statements of Principles for depressive disorder requires a determination that the clinical onset of depressive disorder must have occurred within a particular time-frame. The term “clinical onset” has not been defined by the RMA but the requirement will be met if symptoms have been described to a medical practitioner who is then able to state that the presence of those symptoms at a particular time indicates that the condition was present at that time[3]. All of the symptoms of the disease need to be shown within the relevant time-frame[4]. Clearly, acceptance of that opinion will depend on the correctness of the symptoms related to the medical practitioner.
43. Contributing to some difficulty in finding the clinical onset in this matter is the difference in accounts that Mrs Anderson has given to various doctors. She told Dr Oelrichs that medication was taken for depression in “approximately” 1993. Dr Athey recorded a dramatic increase in symptoms of anxiety and depression when she was no longer able to continue work in 2000. Mrs Anderson gave Dr Lockwood 1993 as the year of a recurrence of depressive symptoms which have been with her for much of the time since. The history recorded by Dr Sowby was a commencement in the late 1990’s with medication commencing in 1996. Mrs Anderson told Dr Taylor she had suffered significant depression since 1998. She told Dr Leong that she had not received any psychiatric or psychological treatment while she was in the army and first received such treatment in 1992. In her claim form for depression, completed on 31 May 2007, Mrs Anderson referred to treatment commencing in 1996.
44. It is not disputed that Mrs Anderson suffered from depressive episodes during her service. Dr Lockwood conceded that there was a possibility that the condition diagnosed earlier could have been a major depressive disorder which was misdiagnosed at the time or that the earlier condition developed into major depressive disorder. However, on the balance of probabilities, I accept Dr Lockwood’s opinion that these earlier episodes were resolved and that Mrs Anderson developed her major depressive disorder during the 1990s. Despite that, I do not accept Dr Lockwood’s opinion that 1993 or 1994 was the time of clinical onset of Mrs Anderson’s present major depressive disorder. Mrs Anderson may have had a recurrent episode of depressive symptoms then. A continuing major depressive disorder from that time is not consistent with the clinical notes from Dr Rajasooriar’s practice. As noted above, masked depression and possible depression are described in those notes in May 1996 and medication is first referred to in July 1997. Consistent with that, Dr Rajasooriar reported on 13 October 2003, that Mrs Anderson had been on medication for depression for over 6 years. Also, Dr Taylor, Dr Athey and Dr Sowby have placed the clinical onset later than 1993/4.
45. On the balance of probabilities, I am satisfied that the clinical onset of major depressive disorder was in mid 1997.

Medical illness or injury

46. Factors 6(a)(vii) of Instrument No 28 of 2008 and 6(g) of Instrument No 18 of 2007 require the presence of a medical illness or injury which is life-threatening or which results in serious physical or cognitive disability, within the two years before the clinical onset of depressive disorder, i.e. from mid 1995 to mid 1997. Factor 5(c) of Instrument No 59 of 1998 requires a major illness or injury within one year before clinical onset, i.e. from mid 1996 to mid 1997. A “major illness or injury” is defined to mean a serious illness or injury that is life threatening, or seriously disabling. Mrs Anderson’s accepted disabilities are listed above and include an anxiety-related condition, a range of orthopaedic conditions and hearing related conditions. It has not been argued that any of these is life threatening and I am satisfied that they are not. They cause a degree of incapacity but I am satisfied that this is not to a level which resulted in serious physical or cognitive disability. In particular, I note that, during that two year period, Mrs Anderson was working or attempting to find work, was fulfilling the primary care needs for her daughter and was walking significant distances.
47. On the balance of probabilities, I am satisfied that factors 6(a)(vii) of Instrument No 28 of 2008, 6(g) of Instrument No 18 of 2007 and 5(c) of Instrument No 59 of 1998 are not met.

Chronic pain

48. Factors 6(a)(viii) of Instrument No 28 of 2008, 6(g) of Instrument No 18 of 2007 and 5(d) of Instrument No 59 of 1998 require the presence of chronic pain of at least six months duration at the time of the clinical onset of depressive disorder. The term “chronic pain” means continuous or almost continuous pain, which may or may not be ameliorated by analgesic medication and which is of a level to cause interference with usual work or leisure activities or activities of daily living. The descriptor “chronic” is a reference to the longstanding nature of the condition and not to its intensity[5]. Accordingly, the definition describes at least six months duration of the continuous or almost continuous pain at a level to cause interference with the nominated activities. With clinical onset being mid 1997, the relevant period is from late 1996 to mid 1997.
49. In 1996 and 1997, Mrs Anderson was living in Adelaide. She did not work for much of 1996. Her evidence to the Board was that this was due to her back pain and also to the travel schedule of her husband. That is consistent with Mrs Anderson’s evidence to the Tribunal that her husband travelled frequently while based in Adelaide. Nonetheless, the clinical notes from Dr Rajasooriar’s practice refer to her looking for work in that year. Her usual work in 1997 was as a telephone and computer hygienist cleaning telephones and computers in corporate offices. Her evidence was that she had control over her working hours and chose not to work on days when her pain was more severe. Nonetheless, her work days required, in addition to whatever physical activity was involved in moving from place to place and engaging in the cleaning process, a walk to and from her home for a distance of four kilometres. I am satisfied that this does not equate with continuous or almost continuous pain at a level to interfere with her work. Also, it is not consistent with the evidence of orthopaedic surgeon Dr Khursandi or specialist in occupational medicine Dr Sowby. Their respective examinations took place after mid 1997 but, given Mrs Anderson’s evidence of continued worsening of her pain, an ability to function in the manner they describe does not point to severe problems in earlier times.
50. Dr Khursandi referred to Mrs Anderson’s lumbar and thoracic spine and wrote that the symptoms associated with those conditions were not such as to interfere with her home and social activities or her ability to work, that she was able to walk with a normal gait, was able to toe-walk and heel-walk, could jog on the spot, squat and negotiate steps with no obvious discomfort and had a full range of movement in her lower limbs with no muscle wasting. Dr Sowby considered that Mrs Anderson’s physical disabilities would not prevent her from working for 8 to 20 hours per week. Also, the notes from Dr Rajasooriar’s surgery from late 1996 to mid 1997 record nine consultations. The majority of these relate to complaints about and treatment for a range of conditions other than Mrs Anderson’s accepted conditions, including dyspnoea, irritable bowel syndrome, breast pain, headache and chest pain. Again, this is not consistent with continuous or almost continuous pain from her accepted disabilities in early 1997.
51. During the time when Mrs Anderson was in Adelaide, her evidence was that she did not receive assistance from family or friends and was able to complete her domestic tasks herself, even though her husband was absent for periods of a week at a time. This does not reflect continuous or almost continuous pain at a level to cause interference with usual leisure activities or activities of daily living.
52. On the balance of probabilities, I am satisfied that factors 6(a)(viii) of Instrument No 28 of 2008, 6(g) of Instrument No 18 of 2007 and 5(d) of Instrument No 59 of 1998 are not met.
53. The decision under review in relation to major depressive disorder is affirmed.

MORBID OBESITY

54. The Statement of Principles for this condition is set out above. The contention for Mrs Anderson was that this condition was related to her army service because of an eating disorder which, in turn, developed because of Mrs Anderson’s major depressive disorder. As I have determined that the major depressive disorder is not service-related, neither eating disorder nor morbid obesity can be related to Mrs Anderson’s service by that means. Indeed, this was conceded by Mr Cockburn. The decision under review in relation to morbid obesity is affirmed.

ASSESSMENT

55. Mr Cockburn conceded that, if Mrs Anderson’s major depressive disorder was found to be unrelated to her army service, she would not meet the requirements for an earnings-related rate of pension under s 23 or s 24 of the Act. Mr Zeilinga agreed with that concession. This was because of the role played by Mrs Anderson’s major depressive disorder in causing her to cease employment in 2000. I am satisfied that Mr Cockburn’s concession was properly made and the decision under review in relation to assessment is affirmed.

DECISIONS

56. The decisions under review are affirmed.

I certify that the preceding 56 paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

Signed: .....[Sgd].......................................................

Jacqui Woods, Associate
Date/s of Hearing 11 and 12 December 2008
Date of Decision 15 January 2009
Solicitor for the Applicant Mr A Cockburn
Representative for the Respondent Mr B Zeilinga

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[1] Repatriation Commission v Smith (1987) 15 FLR 327 at 335.
[2] Repatriation Commission v Keeley [2000] FCA 532; (2000) 60 ALD 401 at 415, 422.
[3] Re Robertson and Repatriation Commission (1998) 50 ALD 668 at 670 and Repatriation Commission v Cornelius [2002] FCA 750.
[4] Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331 and Youngnickel v Repatriation Commission [2004] FCA 1691.
[5] See Cunningham and Repatriation Commission [2007] AATA 1790 at [11].