Ulrich and Repatriation Commission [2011] AATA 679 (30 September 2011)

Last Updated: 30 September 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 679

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2011/0397

VETERANS' APPEALS DIVISION		)
	Re		KARIN ULRICH

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Mr R G Kenny, Senior Member

Date 30 September 2011

Place Brisbane

Decision

The Tribunal affirms the decision under review.

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

CATCHWORDS

VETERANS’ AFFAIRS – Defence service with Royal Australian Air Force – Claim for pension by dependent - Death from suicide – Application of relevant Statements of Principles – No diagnosis of posttraumatic stress disorder or depressive disorder - Death not defence-caused – Decision under review affirmed

Veterans’ Entitlement Act 1986 (Cth) ss 5E, 11, 14, 68, 70, 120, 120B

Repatriation Commission v Smith (1987) 15 FCR 327

REASONS FOR DECISION

30 September 2011

Mr R G Kenny, Senior Member

BACKGROUND

1. Walter Ulrich (“the veteran”) died on 23 July 2009 at the age of 77 years. On 10 September 2009, Karin Ulrich, his widow and dependant, as those terms are defined in ss 5E and 11, respectively, of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), lodged a claim, under s 14 of the Act, for a pension. This was on the basis that the veteran’s death was defence-caused in accordance with s 70(1) of the Act. That claim was rejected by the Repatriation Commission (“the respondent”) on 26 February 2010 and, in turn, by the Veterans’ Review Board on 6 December 2010. Mrs Ulrich seeks review of that decision by the Administrative Appeals Tribunal.

SERVICE

2. The veteran served in the Royal Australian Air Force (“RAAF”) from 11 August 1969 until 1 September 1986. It is common ground that his RAAF service from 7 December 1972 until his discharge constitutes defence service in accordance with s 68 of the Act.

ISSUES AND LEGISLATION

3. In order for the death of the veteran to be accepted as being defence-caused, it must have arisen out of, or be attributable to, that service in accordance with s 70(5)(a) of the Act. Subsection 120(4) of the Act provides that diagnostic matters and issues of causation for defence service must be determined to the Tribunal’s reasonable satisfaction. This imports the civil standard of proof so that matters must be determined on the balance of 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”.^[2]
4. Before applying the provisions of the Act relating to causation, it is necessary to determine the “kind of death” applicable to the veteran. The veteran’s death certificate was in evidence and it is not in dispute that the veteran took his own life or that the kind of death is suicide.

SUBMISSIONS

5. Mrs Ulrich contended that the veteran’s RAAF service had a detrimental impact on him because he was subjected to torment and bullying by his peers due to his German heritage, his age and his unwillingness to engage in social activity involving alcohol consumption. She believed that, because of this and because of his defence-caused hearing loss, he suffered from depression which caused him to take his own life.
6. Bruce Williams, for the respondent, submitted that the kind of death of the veteran was suicide. He also submitted that there was no evidence to support any of the factors listed in the Statement of Principles for suicide. He submitted that there was no medical evidence to support the contention that the veteran suffered from depression or posttraumatic stress disorder sufficient to meet the requirements of the Statement of Principles for those conditions. In the absence of such factors, he submitted that the veteran’s death was not defence-caused.

EVIDENCE

7. The veteran was born in Germany in 1931 and came to Australia in 1953. Before enlisting in the RAAF in 1969 he worked in various capacities, including in a spinning mill for four years and with the Victorian Railways for five years. After his discharge from the RAAF, he worked in a spinning mill for about a year and then retired. Although he was proficient in English, he retained a strong accent. Mrs Ulrich’s evidence was that, because of this and, in particular, his German heritage, he was taunted by other RAAF members. He was also older than most of his peers and he found it difficult to socialise with them, especially because he did not consume alcohol and did not participate in mess sessions with them. She said that he tended to keep these things to himself. She also believed that he was troubled by his hearing loss, which had developed because of exposure to noise from aircraft during his service.
8. Mrs Ulrich suffers from depression and has been treated by a psychiatrist, Dr Graham Gartrell, since 1996. The veteran accompanied her to consultations with Dr Gartrell and participated in joint therapy sessions, especially after 2001. Dr Gartrell described the veteran as a “proxy patient”.
9. Dr Gartrell completed a report on 21 October 2010 and also gave evidence. He had not made a formal diagnosis of depression in the veteran but believed that, although he masked it, the veteran had suffered from that condition. He described the veteran as a “man of few words, almost stereotypical German, blunt, to the point and not one to discuss emotional issues”. Dr Gartrell said that the veteran did not describe any significant depressive symptoms or anxieties to him, and that he considered this to be “typical of his personality and cultural make-up”. The veteran had not gone into his own emotional issues and Dr Gartrell saw nothing to alert him to the veteran’s depression. Nonetheless, Dr Gartrell wrote that the veteran had been able to describe “anger, sadness, intrusive distressing thoughts”. He conceded that he had not witnessed these emotions himself, but noted that reference to them was included in a document, dated 17 July 2002, bearing the signature of the veteran’s treating doctor, Dr Ken Wilkie.
10. Dr Gartrell noted that the veteran had been in a single vehicle accident in 2008 and his opinion was that this had been an attempt by the veteran to commit suicide. He concluded that the veteran suffered from “concealed depression” and “internal distress” which he believed “almost certainly provided the basis for his suicide”. Dr Gartrell considered that this “could well have started and been exacerbated by his period of Service [sic]”. He described the triggering factors for this as:

...verbal harassment by fellow workers, feelings of abandonment and subsequent resentment directed inwards to result in a chronic depressive illness which became increasingly distressing for him as he tried to deal with age related illnesses and hearing loss.

11. Despite that, Dr Gartrell conceded that he had not seen evidence of depression. He noted that the veteran had been treated for bladder cancer for about 10 years and was the subject of periodic review for that condition. Dr Gartrell also considered that the veteran may have suffered from posttraumatic stress disorder because of his service experiences. However, he conceded that he did not satisfy criterion A of the diagnostic criteria, derived from the DSM-IV-TR, for posttraumatic stress disorder in the relevant Statement of Principles for that condition.
12. In evidence was the report of Dr Wilkie, dated 17 July 2002, which was referred to by Dr Gartrell. It formed part of a claim form lodged, on 30 July 2002, by the veteran for acceptance, by the respondent, of “emotional and behavioural disorders”. Dr Wilkie also completed a report dated 21 January 2008. In that report, he listed the medications with which the veteran had been prescribed. Dr Gartrell was referred to these and he conceded that they did not include medication relating to a psychiatric condition. In his 2008 report, Dr Wilkie stated that the veteran told him he wasn’t “depressed now”. Dr Wilkie also noted that there were “no prior episodes of depression”.
13. Dr John Chalk, psychiatrist, completed a detailed report, dated 3 October 2002, after seeing the veteran in relation to a claim for acceptance, by the respondent, of a psychiatric condition. Dr Chalk concluded that the veteran did not suffer from any Axis I psychiatric disorder.

STATEMENTS OF PRINCIPLES

14. The Statements of Principles relevant in this matter are Instrument No 6 of 2008 for posttraumatic stress disorder, Instrument No 28 of 2008^[3] for depressive disorder, and Instrument No 12 of 2010 for suicide.
15. The first of those lists criteria which must be satisfied in order to establish a diagnosis of posttraumatic stress disorder. This includes criterion A which reads:

(A) the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to physical integrity of self or others; and
(ii) the person’s response involved intense fear, helplessness, or horror;
...

16. The Statement of Principles for suicide lists the following factors and associated definitions of potential relevance in this matter:

6 ...
a) having a psychiatric disorder as specified at the time of the suicide or the attempted suicide; or
...
(f) experiencing a category 2 stressor within the two years before the suicide or the attempted suicide; or
...
(j) having a medical illness or injury which has resulted in, or where the prognosis involves, a severe level of disability at the time of the suicide or the attempted suicide; or
...

9. ...
"a psychiatric disorder as specified" means one of the following Axis I or Axis II disorders of mental health listed below:
...
(h) depressive disorder; or
...
(l) posttraumatic stress disorder; or
...
that attract a diagnosis under DSM-IV-TR and are severe enough to warrant ongoing management. The ongoing management may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner;
"a severe level of disability" means needing help with some or all activities of daily living (communication, mobility and self-care). This definition includes, for example, individuals with serious spinal injury, motor neurone disease, or a disseminated malignancy;

17. The Statement of Principles for depressive disorder lists the following factors and associated definitions of potential relevance in this matter:^[4]
    6. ...
    1. ...

(i) experiencing a category 1A stressor within the two years before the clinical onset of depressive disorder; or
(ii) experiencing a category 1B stressor within the two years before the clinical onset of depressive disorder; or
...
(v) experiencing a category 2 stressor within the six months before the clinical onset of depressive disorder; or
...
(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
...

9. ...
"a category 2 stressor" means one or more of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry:
(a) being socially isolated and unable to maintain friendships or family relationships, due to physical location, language barriers, disability, or medical or psychiatric illness;
(b) experiencing a problem with a long-term relationship including: the break-up of a close personal relationship, the need for marital or relationship counselling, marital separation, or divorce;
(c) having concerns in the work or school environment including: on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful work loads, or experiencing bullying in the workplace or school environment;
(d) experiencing serious legal issues including: being detained or held in custody, on-going involvement with the police concerning violations of the law, or court appearances associated with personal legal problems;
(e) having severe financial hardship including: loss of employment, long periods of unemployment, foreclosure on a property, or bankruptcy;
(f) having a family member or significant other experience a major deterioration in their health; or
(g) being a full-time caregiver to a family member or significant other with a severe physical, mental or developmental disability;

CONSIDERATION

18. I am satisfied that the kind of death in the veteran’s case was suicide.
19. In relation to posttraumatic stress disorder, Dr Gartrell conceded that there was no evidence that the veteran experienced a criterion A stressor as listed in the Statement of Principles. I am satisfied that this concession was properly made and, in the absence of that criterion, a diagnosis of posttraumatic stress disorder may not be made.
20. For depression, each of the factors listed above from the Statement of Principles requires a period of time referable to the clinical onset of depression. However, in the veteran’s case, there is no evidence of such clinical onset. Dr Chalk was unable to make a diagnosis in 2002. Dr Wilkie was unable to do so in 2008 and he also advised there had been no earlier episodes of depression. Dr Gartrell made no such diagnosis during the veteran’s life-time but, in retrospect, believed that the veteran had been suffering from a depressive disorder. He relied on the reference to “emotional and behavioural disorders” and to “anger, sadness, intrusive distressing thoughts” in the claim form signed by Dr Wilkie on 17 July 2002.
21. Mr Williams submitted that the references to the emotions in the report dated 17 July 2002 appeared not to have been written by Dr Wilkie. Certainly, those words appear to be in a different hand from the diagnostic data written by Dr Wilkie, in another part of that same document, in relation to a claim by the veteran for emphysema. I accept as correct the submission of Mr Williams. However, the more significant feature of the document is that Dr Wilkie did not include any psychiatric diagnosis in the claim form. That absence of diagnosis is consistent with his medical report, dated 21 January 2008, where he denied episodes of depression at that time or previously. It is also consistent with the report of Dr Chalk. Significantly, Dr Gartrell’s evidence was that he had not seen any demonstrations of emotion by the veteran, that the veteran had not gone into his own emotional issues and that he saw nothing to alert him to depression in the veteran. I am satisfied that, on the material before me, no diagnosis of depression may be made and, accordingly, the Statement of Principles for that condition is not satisfied.
22. The Statement of Principles for suicide includes, as a factor, having, at the time of the suicide, a psychiatric disorder as specified which includes depressive disorder and posttraumatic stress disorder. As noted above, a diagnosis of either of those conditions cannot be made in the veteran’s case. There is no evidence of the veteran experiencing a category 2 stressor within the two years before his suicide. Factor (j) refers to “having a medical illness or injury which has resulted in, or where the prognosis involves” at the time of the suicide, “a severe level of disability”. That term is defined in the Statement of Principles in terms that the veteran would have needed help with some or all activities of daily living, including communication, mobility and selfcare. The veteran suffered from hearing loss but there is no evidence that the condition impacted on him to the degree defined. He also suffered from bladder cancer but there is no evidence that this was related to his defence service.
23. Clearly, the death of the veteran was a tragic event. However, for this to be related to his service, the statutory requirements outlined above must be met. On the basis of the material before me, I am satisfied, on the balance of probabilities, that the criteria in the Statement of Principles for suicide are not made out. Accordingly, the veteran’s death by that means did not arise out of, and is not attributable to, his defence service.

DECISION

24. The Tribunal affirms the decision under review.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.

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

Research Associate

Date of Hearing 15 September 2011

Date of Decision 30 September 2011

The applicant was not represented

The Respondent was represented by Bruce Williams, departmental advocate

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^[1] Repatriation Commission v Smith (1987) 15 FCR 327 at 335 per Beaumont J.
^[2] Veterans’ Entitlement Act 1986 (Cth) s 120B(3).
^[3] As amended by Instrument No 41 of 2010, which is not relevant in this matter.
^[4] Instrument No. 28 of 2008 as amended by Instrument No. 41 of 2010.