Donna
Marie Gilbert and Repatriation Commission AAT No 13211 [1998] AATA 654 (25
August 1998)
Last Updated: 26 August 1998
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S96/78
VETERANS’ APPEALS DIVISION )
Re DONNA MARIE GILBERT
Applicant
And REPATRIATION COMMISSION
Respondent
Decision No 13211
DECISION
Tribunal Senior
Member J.A. Kiosoglous MBE
Date 25 August
1998
Place Adelaide
Decision The
Tribunal, pursuant to s.43 of the Administrative Appeals Tribunal Act 1975 ,
sets aside the decision under review and in substitution therefor decides that
the applicant’s condition of 
chronic
fatigue syndrome
is defence-caused, within the meaning of s.70 of the Veterans’ Entitlements Act 1986 , and remits
the matter to the respondent for assessment of pension in accordance with this
decision.
(Signed)
J.A. KIOSOGLOUS
(Senior Member)
CATCHWORDS
VETERANS’
AFFAIRS - veterans’ entitlements - disability pension - medical treatment - chronic
fatigue syndrome - depressive disorder - whether defence-caused - eligible
defence service in Royal Australian Navy from 1982 to 1994 - whether chronic
fatigue syndrome
was aggravated by an inability to obtain appropriate clinical management
Veterans’ Entitlements Act 1986 ss.70, 120(4), 120B
Statement of
Principles, Instruments No. 287 of 1995; No. 66 of 1996
Johnston v
Commonwealth (1982) 150 CLR 331
REASONS FOR DECISION
25 August 1998 Senior Member J.A. Kiosoglous MBE
1. This is an
application by Ms Donna Marie Gilbert (“the applicant”) for review of a
decision of the Veterans’ Review Board (“VRB”) dated 9 February 1996 (T4) which
rejected the applicant’s claim that her diagnosed conditions of chronic
fatigue syndrome
and depressive disorder were caused by or related to her eligible defence
service within the meaning of the Veterans’ Entitlements Act 1986 (“the Act”).
In so doing, the VRB affirmed the decision of a delegate of the respondent
dated 11 May 1995 (T2) in respect of those conditions.
2. The Tribunal
received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T10),
together with four exhibits lodged by the applicant (Exhibits A1-A4) and five
lodged by the respondent (Exhibits R1-R5). In addition the Tribunal heard
evidence from the applicant; Dr F. Kette, specialist physician; and Dr D.S.
Kelly, psychiatrist, on behalf of the applicant and Dr J.B. Truman,
psychiatrist, and Professor D. Wakefield, specialist physician, on behalf of
the respondent. The applicant was represented by Mr G. Hemsley and the
respondent by Ms R. Bevan, a departmental advocate.
3. The issue
before the Tribunal is whether either or both of the diagnosed conditions of chronic
fatigue syndrome and depressive disorder were caused by or related to the
applicant’s eligible defence service within the meaning of s.70 of the Act. The applicable standard of proof is
that of the reasonable satisfaction of the Tribunal, pursuant to sub-s.120(4)
of the Act, and since the claim was lodged after 1
June 1994 any relevant Statement of Principles (SoP) applied, pursuant to
s.120B of the Act. It was agreed by the parties that the
relevant SoPs are, in relation to chronic fatigue syndrome,
Instrument No. 287 of 1995, and in relation to depressive disorder, Instrument
No. 66 of 1996 (subject to amendments not relevant to issues in these
proceedings imposed by Instrument No. 182 of 1996). The parties are in
agreement that all relevant time limits have been complied with and so that, if
the application is successful, the earliest date from which benefits may run is
9 March 1994, being three months prior to the date of lodgment of the claim.
4. In relation
to her claim in respect of chronic
fatigue syndrome,
the applicant relies on the sole factor in Instrument No. 287 of 1995 which
states, at paragraph 1(a):
“inability to
obtain appropriate clinical management for chronic
fatigue syndrome”
where the chronic
fatigue syndrome
was contracted before a period, or part of a period, of service to which the
factor is related, and also is linked to the particular service in accordance
with, inter alia, paragraph 70(5)(d) of the Act (SoP paragraph 3). The relevant part of s.70 states:
“(5) For the
purposes of this Act, the death of a member of the Forces (other than a member
to whom this Part applies solely because of section 69A) or member of a
Peacekeeping Force shall be taken to have been defence-caused, an injury
suffered by such a member shall be taken to be a defence-caused injury or a
disease contracted by such a member shall be taken to be a defence-caused
disease if:
...
(d) the injury
or disease from which the member died, or has become incapacitated:
(i) was suffered
or contracted during any defence service or peacekeeping service of the member,
but did not arise out of that service; or
(ii) was
suffered or contracted before the commencement of the period, or the last
period, of defence service or peacekeeping service of the member, but not
during such a period of service;
and, in the
opinion of the Commission, the injury or disease was contributed to in a
material degree by, or was aggravated by, any defence service or peacekeeping
service rendered by the member, being service rendered after the member
suffered that injury or contracted that disease; ...
...
but not
otherwise.”
5. In relation
to her claim in respect of depressive disorder, Mr Hemsley, counsel for the
applicant, submits that it is a condition caused by chronic
fatigue syndrome or, alternatively, is a symptom of that condition and submits
that its acceptance is contingent upon the Tribunal’s finding in respect of
chronic fatigue syndrome.
6. The applicant
served in the Royal Australian Navy from her enlistment at the age of 21 years
on 25 January 1982 to her discharge on medical grounds on 4 September 1994. She
receives disability pension at 30 percent of the General Rate in respect of the
accepted conditions of headache, sprain or strain of the back, rotator cuff syndrome
of the left shoulder and backache, unspecified. A condition of bronchitis was
rejected by the respondent (T2) and is not in issue in these proceedings.
DONNA MARIE
GILBERT
7. The applicant
was born on 23 December 1960 and grew up in Adelaide where she attended
Salisbury North High School. She completed Year 11 before working in several
jobs then decided to return to school to complete Year 12 as an adult student.
She applied to join the Navy and, expecting to be taken into the Navy fairly
soon, discontinued her Year 12 studies. However, she did not enter the Navy
until 25 January 1982, when she enlisted for six years as a trainee chef with
the rank of WRAN Star.
8. As a trainee
chef she was first assigned to a cafeteria-style mess, preparing meals for up
to a thousand sailors at a time, then to a senior sailors mess and then to a
ward room. The applicant stated she was keen to do well and obtained valuable
experience through working in all three galleys at her base which at that time
was HMAS Albatross, the formal name for the Nowra Naval Base.
9. Although
firmly convinced that her career was to be in the Navy, she felt that a career
as a chef was not quite what she wanted and decided to move into
communications, primarily because she felt that there was a better attitude
towards women in the communications section. She did a little of her own
research on communications and also knew some of the communications staff. She
requested the change of category prior to 11 December 1983.
10. On 11
December 1983 the applicant was involved in a motor vehicle accident, as a
result of which she sustained serious concussion and facial injuries. She
suffered ongoing problems such as headaches, dizziness, memory loss and
feelings of pins and needles in her forehead for a period of time. She was
given a month’s sick leave followed by a month’s annual leave to assist her
recovery.
11. She
commenced the communications course in April 1984.
12. The
applicant stated that the symptoms of the accident persisted and she felt that
the headaches and the tension were aggravated by the new course of study and
the new skills that she was required to learn such as typing and
administration. Her typing performance was mostly poor in the afternoons but
improved after weekends when she felt more rested.
13. Upon
completing the course she was sent to HMAS Harman, which is the Naval Support
Base for Canberra, and a short time later to HMAS Kuttabul, where she began
working in the Communications Centre. There she worked eleven-hour day shifts
and thirteen-hour night shifts. During this time her health was affected by
colds, flu and sore throats and she attended the doctor regularly. This
continued until August 1986 when she became more seriously ill, developing a
bout of virus-related illnesses that she was unable to get the better of.
Finally she contracted what she described as “a real bad one” and was very weak
and tired. On attendance at the sick bay she was given aspirin and throat
lozenges, but no antibiotics. She become worse and went to the hospital.
14. At about
this time the applicant married. She said that because she was very weak and
slow her husband had to help her get dressed. She took herself to a civilian
doctor who prescribed double strength Bactrim. The doctor told her to go home
to bed and advise him if her condition worsened. By that afternoon she was
worse. The muscle weakness had moved from her legs up to her bladder and she
was unable to urinate. She phoned the civilian doctor who wanted to admit her
to hospital. As she did not want to be admitted to a civilian hospital, she
presented herself to the hospital at HMAS Penguin.
15. For several
days the medical staff at HMAS Penguin could not detect what was wrong with
her, gave her temporary catheters and sent her home. Finally she was admitted
and then diagnosed as having Guillain-Barre syndrome,
which is caused by a virus which affects the body in a secondary stage of
infection by attacking the nervous system, which in turn shuts off the muscles.
She stated that in her case she was very fortunate because the attack which
affected her legs and then her stomach area, causing urinary retention, was a
mild one. She suffered severe flu-like symptoms with a lot of body pain. The
pain also extended to her hands and arms and she was unable to work with her
hands. She felt short of breath, faint and giddy. She also suffered unbearable
headaches and could not tolerate noise. She stated that as a result of the Guillain-Barre
disease whenever she got tired her legs and arms would ache.
16. The
applicant stated that she fought off the virus with much bed rest and because
she was a fit and healthy young woman. After spending a short time in hospital
she went home to recover. Having been initially placed in category 8, for those
in hospital under direct medical supervision, she was downgraded after her
discharge from hospital to category 7, as being still under medical
supervision. She remained in category 7 until about May 1987. Category 1 is
classified as fit for sea duty. She stayed on at HMAS Penguin and became one of
its depot staff members, looking after people immediately upon release from
hospital as part of a convalescent programme.
17. In about May
1987 when she was about ready to return to work, she had a pap smear which was
abnormal and was diagnosed as having cancer, CIN III, in the very early stages.
She was operated on and, after recovering, felt it was time to move back to the
communications area “where she could put in effort into the real Navy instead
of just being a person at Penguin”. She returned to work at HMAS Kuttabul as a
personal secretary where her “boss was fantastic”, recognising that she was a
good worker and allowing her to work as a day hand from 8.00 am until 4.30 pm
rather than doing shiftwork.
18. In February
1988 she returned to HMAS Harman in Canberra and returned to shift work. She
stayed there until about December 1990 when she applied for and got a much
sought-after position as a field recruiter in Adelaide.
19. Between
leaving HMAS Penguin and applying for the position in Adelaide she worked
full-time, although she needed a lot of rest as a result of the Guillain-Barre
and the post-viral infection. She dealt with recurring sore throats by looking
after herself and resting.
20. At this time
she separated from her husband and ultimately divorced.
21. Whilst in
Adelaide she experienced further symptoms of the Guillain-Barre, such as
constant sore throats, viruses and feeling tired. A graze she sustained while
playing indoor cricket with the Navy recruiting team became poisoned. She would
work during the week and spend weekends resting and recovering. She did not
seek regular medical treatment as there was nothing that could be done. She
just kept an eye on herself and if she felt a need for antibiotics she would
see a doctor. She kept in close contact with Dr Alderman, a local doctor, who
provided medical services to the Naval base under contract, as there was no
sick bay due to a gradual winding up of the base.
22. When asked
whether little could be done for her with respect to a primary virus or
suchlike, the applicant replied (ts p.22):
“Exactly, and as
proven over the years and seeing doctors they’d give me a day off, or two days
off, and I’d come back bright-eyed and bushy tailed. And sometimes it would
actually shock them and they’d say: Right, you obviously respond very well to
that. So therefore—and I’ve proven to myself that that was the only way to look
after myself too.”
23. The
applicant stated that she became more seriously ill in late 1991 with a sore
throat and urinary infection and went to Dr Alderman who did a test and found
that she had small blood particles in her urine. He referred her to an Adelaide
specialist, Dr Andrew Black, whom she saw in November 1991, and later to Dr
Fitzgerald, physician and immunologist, whom she saw in about October 1992.
When asked about the intervening period between November 1991 and October 1992,
the applicant stated (ts p.24):
“... [Dr
Alderman] told me that his diagnosis was correct and that I had chronic
fatigue syndrome
and that he prescribed gammaglobulin needles, injections, and he explained that
they were given—they are a very old medicine and that they were given to people
who had glandular fever and my illness was very similar to glandular fever. Not
too sure whether you could get benefit but that it was worth a go because we
were running out of options.”
She could not
recall when in 1992 she had received the injections and could not recall
receiving any other form of treatment from Dr Alderman. She was not given a
copy of Dr Black’s report and stated that it was not Navy procedure for service
personnel to have or to see their own medical documents.
24. In late 1992
Dr Alderman referred the applicant to Dr Fitzgerald. She stated that she saw Dr
Fitzgerald on only one occasion and that her second appointment with him was
cancelled, due to her being sent to hospital at HMAS Penguin.
25. She
described her symptoms in 1992, prior to being sent back to HMAS Penguin, as
essentially the same as her previous symptoms but more severe. She had
difficulties with her speech and with concentration, had to go to the toilet
frequently, needed to take breaks often and was not coping with her work. She
stated that she had stamina for the mornings but “was just a mess by the end of
the day”. She recalled being so lethargic that on one occasion she could not
help herself from walking into a wall in the presence of her boss. Because the
Navy needed someone in recruitment with no problems, she was moved first to
additional staff at HMAS Encounter in Adelaide and then to HMAS Penguin in
Sydney, due to her worsened health and her need for specialist medical care.
26. The
applicant went to HMAS Penguin on 2 November 1992 where she saw a Professor
Lawrence who consulted Professor D. Wakefield, a Sydney specialist in chronic
fatigue syndrome. From 2 November 1992 to about March 1993 she was
significantly unwell and was assessed as having chronic fatigue syndrome
and placed under the care of Professor Wakefield.
27. The
applicant stated that Professor Wakefield placed her on a program which
included more and, she thought, stronger gammaglobulin injections, Tai Chi for
relaxation and meditation, and a gentle walking program. After March 1993 the
progress of her recovery was slow and gradual. She saw a doctor every week. She
would be better one day and worse the next. She remained on sick leave for a
long period and then returned to work in South Australia at HMAS Encounter,
under the Executive Officer of the base. At this time the applicant was on a
staged return to work programme recommended by Professor Wakefield, with the
expectation that if she was able to work through the programme successfully she
could then return to full-time work. She continued to see Dr Alderman once a
week.
28. In October
1993 she was posted back to HMAS Kuttabul in Sydney where an assessment was to
be made as to whether it was worthwhile keeping her in the Navy. She was
initially placed in the Communications Centre doing administration work rather
than communications. However, she was unable to cope because of her health and
after “a couple of weeks” was moved to a finance area at Maritime Headquarters
where she remained for some eight to nine months until her discharge in
September 1994 on medical grounds. She stated that during that time she was
unable to follow the programme set by Professor Wakefield, although she
attempted to. She felt very tired and could not drive because of this. She
could not continue with her exercise program except on those weekends when she
felt capable. She stated that she asked a couple of times about stress
management recommended by Professor Wakefield but never attempted this because
she was considered unready. She never undertook a stress management course
whilst in the Navy.
29. Upon her
discharge in September 1994 she returned to live in Adelaide and continued to
see Dr Alderman who referred her to Dr Kette, physician and immunologist, and
Ms A. Williams, a psychologist.
30. Ms Williams
saw the applicant quite regularly for about eighteen months and helped the
applicant through a stress management programme. Dr Kette prescribed Zoloft 50
mg which the applicant stated “really sorted out the depression straight away”.
She felt the effect within a week or two. The illness had affected her mental
state but this was greatly improved by the medication.
31. The
applicant has improved since leaving the Navy, with the treatment provided by
Dr Kette as well as the programme undertaken through Ms Williams. She hopes to
continue to improve.
CROSS-EXAMINATION
32. The
applicant stated that she experienced a lot of illness compared to other people
in the Navy, with her Guillain-Barre and chronic
fatigue
problems.
33. She stated
that she was involved in a motor vehicle accident on 11 December 1983 in which
she suffered severe concussion. She saw Dr Rail, a neurologist, in Sydney and
had an ECG which showed a slight abnormality. Her headaches and nervous tension
were related to the accident. She also had bronchitis and an ear infections
following the accident, which resulted in some hearing loss. As well, she spent
four or five days in hospital with pneumonia.
34. Whilst
serving at HMAS Cerberus she injured her back in the galley whilst lifting
water. She saw Dr Alwyn, a consultant, whilst in Canberra in 1985 because of
recurrent headaches since the motor vehicle accident.
35. She stated
that some doctors thought she had Guillain-Barre whilst others did not agree. Some
also felt she did not have chronic
fatigue syndrome.
36. During the
year following the diagnosis of chronic
fatigue the applicant had many gynaecological problems. The applicant stated
that fortunately these had been detected in the early stages and were
treatable. She stated that one doctor had remarked to her that it was not
normal to have three operations and said that the applicant’s previous medical
history may have been influencing her recovery. She stated that the worst thing
was her reaction to anaesthetics, which goes hand in hand with chronic fatigue
syndrome,
and that sufferers have a low tolerance to medication.
37. The
applicant stated that 1990 was quite a good year but she still had colds and
sore throats which she had learnt to manage by resting. She stated that at this
time a girlfriend had said that it was not right for her to sleep so much,
saying something like “You sleep your life away”.
38. In November
1991, while the applicant was in Adelaide with the field recruitment section,
Dr Alderman sent her to Dr Black, neurologist. When asked if she remembered her
conversation with Dr Black, the applicant said that she was always asked about
her family history and that her sister was diagnosed as a twentieth century
sufferer. She stated, “And as far as me going and seeing an immunologist, that’s
not up to me. The Navy has to send me to an immunologist” (ts p.38). She stated
that she has never said no to anything in the way of treatment. She stated that
seeing Professor Wakefield was a “glorious relief” for her.
39. She was
unable to say when her depression was first diagnosed but it was after the
motor vehicle accident in 1985. Anti-depressants were prescribed. The applicant
was not sure if the doctor she saw was Dr Alwyn, nor could she recall if he
prescribed Fiorinal.
40. The
applicant was medically discharged in 1994. She has not worked since her
discharge nor has she sought any work as she wants to get well and be healthy
again.
41. The
applicant agreed that when Professor Wakefield saw her on 9 November 1992 he
recommended as part of her treatment programme that she resume working and that
in his report dated 7 June 1993 he had recommended that she continue with
full-time work. She stated that after some convalescent leave she went back to
work part-time at HMAS Encounter (in Adelaide) and subsequently returned to
work full-time at eight hours a day. She stated that within those eight hours
she had lots of rests and would sit down and put her feet up whenever she
wanted to. Professor Wakefield reviewed her a year later on 6 June 1994 and
reported (T3/118) that he had spoken with her as to the best way for her to
manage her problems and that she would be well advised to leave the Navy. The
applicant stated that throughout this whole time she was on medication to help
her cope on a day-to-day basis. She further stated that the side effects of the
medication were really annoying and that Professor Wakefield had told her that
the medication she was taking was not good for a chronic
fatigue
sufferer and all it was doing was helping her get through the day. This
medication (Tryptanol) had been prescribed by Navy doctors at HMAS Penguin and
Professor Wakefield agreed that she should not have been taking it. In his
report (T3/118) Professor Wakefield wrote that she would be better off stopping
Tryptanol as far as her energy level was concerned. She believed that she
started taking it in 1991, whilst with the recruiting section.
42. The
applicant stated that she felt run down during her Naval career from 1986
onwards when she suffered with the Guillain-Barre bout. She felt that 1986 was
a turning point and that she was a different person, as she had contracted an
illness and her immune system was not the same. The problems prior to 1986, for
example, as a result of the serious motor vehicle accident, had been overcome.
DR F. KETTE
43. Dr F. Kette,
specialist immunologist and physician, has completed a doctorate in
neuro-immunology which encompassed studies in psychology, psychiatric disease
and immunological dysfunction. He has been the applicant’s treating specialist
since November 1994, seeing her at roughly six-monthly intervals in relation to
her chronic
fatigue
condition. The Tribunal received into evidence two reports prepared by Dr
Kette, dated 14 December 1995 (T3/124-125) and 19 November 1996 (Exhibit A2).
44. Dr Kette
stated that the condition now known as “chronic
fatigue syndrome” has had a number of different diagnostic labels over the
years, such as “viral asthenia” and “myalgic encephalomyeolitis”. Its present
label focuses on the principal symptom without ascribing to it a cause or any
underlying pathology. Hence the principal symptom is chronic fatigue that is
defined as “fatigue
variously and somewhere between more than 50 to 70 percent of the previous
level of health and persisting for at least six months”. He said (ts p.49),
“... it’s as
though each individual has a certain amount of energy they can utilise in a
week and once that is expended they get their fatigue,
and activities have to be structured and doled out over a week to minimise the
impact of fatigue.”
45. He stated
that there is a variety of other symptoms which may accompany the fatigue.
These may vary from recurrent sore throats, fevers, glandular enlargement and
problems with concentration and memory, some visual disturbances and bone pain.
Later he stated that symptoms may include forgetfulness and poor memory,
changes of mood, panic or anxiety, intolerance to heat or cold, night sweats
and muscle pain without tenderness. In essence, this variety of symptoms is
common to many disorders and one of the principal undertakings in assessing
someone with chronic fatigue syndrome is to be able to exclude other potential
causes to similar symptoms. Dr Kette stated that he would read the term “viral
asthenia”, used by Dr Black (T3/56), as referring to chronic fatigue syndrome.
He stated that in most circumstances he would also read the term “post-viral
syndrome” as chronic fatigue syndrome,
depending upon the context in which it is used.
46. Dr Kette
stated that the diagnosis of Guillain-Barre syndrome
in 1986 was a reasonable diagnosis to make in relation to the applicant’s
symptoms in the short term. He stated that an alternative diagnosis could have
been transverse myeolitis, based upon the unusual features. He said that
residual symptoms after Guillain-Barre are uncommon, though not unheard of, and
that whilst such residual symptoms might be termed “post-viral syndrome” this
would be different to chronic fatigue syndrome. He stated that there is some
uncertainty now about the Guillain-Barre diagnosis although he would not say it
was incorrect. Dr Kette stated that he knew of no studies demonstrating
Guillain-Barre as an initiating event for chronic fatigue syndrome
and would not stand by that proposition as being probable.
47. In relation
to the recommendation of Dr Black in November 1991 that the applicant see an
immunologist (T3/56), Dr Kette stated that although there is no absolute
requirement that chronic
fatigue syndrome be treated by an immunologist it has been the practice
Australia-wide to refer patients to immunologists. He stated that he did not
know whether Dr Fitzgerald, a physician to whom the applicant was referred in
October 1992, was involved in the treatment of chronic fatigue syndrome
cases in Adelaide.
48. In relation
to intramuscular gammaglobulin injections, Dr Kette stated that initial trials
with gammaglobulin—especially by intravenous injection which was only available
in major teaching hospitals—had been encouraging but that this treatment is no
longer used as problems had become evident at the time of the trials in the
early 1990s. He stated that, as most doctors with reasonable experience of chronic
fatigue syndrome were of the view that there was little disease, the most
appropriate treatment was the management of symptoms so as to enable patients
to live within the constraints imposed by the condition. Thus a patient would
be put on a program involving graded physical exercise, graded returns to work
and dealing with associated physical problems or depression. Attempts would be
made to negotiate flexibility in the workplace for patients who were employed.
The overall aim would be to even out symptoms over the year to enable a patient
to learn to cope and not experience the major exacerbations of fatigue
that tend to punctuate the illness. When asked if he would have instituted such
a program, Dr Kette said that initially he would have had to negotiate with
employers about structuring time and that this would have been important. He
said that this would have occurred in the 1980s.
49. Dr Kette
stated that there are education programs to help patients of chronic
fatigue syndrome to understand and accept their condition and learn to get on
with their lives, but that in the case of chronic fatigue syndrome and some other
chronic conditions there has been a certain degree of non-acceptance in the
medical community which has not helped patients at all. He likened chronic
fatigue syndrome to diabetes in the sense that neither disease is curable and
both are managed by modifying lifestyle. He stated that, in the case of chronic
fatigue syndrome,
treatment is more difficult because there is no comparable diagnostic test to
that of blood sugar level for diabetes.
50. Dr Kette
stated that it was likely that the applicant would have been able to cope
considerably better with the deterioration she experienced in late 1992 had she
been placed on a treatment program for chronic
fatigue syndrome at the time of her treatment by Dr Alderman in 1992. However,
he would not say that the deterioration would have been prevented. He stated
that at that time the applicant was being treated by Dr Alderman there were
certainly signposts pointing to chronic fatigue syndrome
and there was potentially more that was able to be offered but he was not sure
that Dr Alderman should have known of these other options. He stated that, had
the applicant seen a specialist at that time, in all likelihood a program would
have been introduced earlier.
51. When asked
by Mr Hemsley about the relationship between stress and a person’s ability to
manage the “symptom complex”, Dr Kette stated that stress clearly exacerbates chronic
fatigue syndrome and can impair a patient’s ability to cope with symptoms.
Stressful events may vary from simple physical stress or activity to emotional
stress and low grade chronic stress. He stated that, given the applicant’s
evidence of her difficulties in coping with the twelve-hour shifts and the time
it took her to recover, it was conceivable that the stresses associated with
her employment as a recruiting officer in 1992 had contributed to her inability
to cope with her symptoms. He stated that this history as given by the
applicant was quite typical of patients with chronic fatigue syndrome.
52. In relation
to the applicant’s return to full-time work in October 1993 at HMAS Kuttabul,
Dr Kette stated that in his opinion it was possible that more frequent
intervention by Professor Wakefield could have enhanced the applicant’s ability
to cope with her symptoms and maintain the rehabilitation program. Dr Kette
could not say if the applicant had seen Professor Wakefield between June 1993
and June 1994, which appears not to be the case from the documentary evidence.
Dr Kette stated that the applicant’s treating doctors also may have been able
to do similar things to ensure that the rehabilitation program was maintained
rather than it being left as a second priority to the day’s work.
53. In relation
to depression, Dr Kette stated that it is very difficult to say whether this is
a symptom of chronic
fatigue syndrome or a separate condition. He said that there are many aspects
of the applicant’s history which suggest an independent illness influenced in
turn by the difficulties she experienced in her work environment on account of
her chronic fatigue syndrome but that it was an extraordinarily difficult
distinction to make. He stated that he regards chronic fatigue syndrome
as a serious illness and that he has observed evidence of depression in the
applicant. He stated that when he first saw the applicant in November 1994 she
reported that she had been taking anti-depressants for six months and felt
considerably better whilst being on the anti-depressants. He said that it was
difficult to judge whether the anti-depressants caused the improvement or
whether her condition would have improved anyway, but stated that he prescribed
Zoloft in place of the anti-depressant she was taking because of side-effects.
Dr Kette assumed that if the applicant had been on amitriptyline in 1992 it
would have been for symptoms of depression.
54. In
cross-examination, Dr Kette stated that, whilst the applicant’s level of fatigue
may be in part coloured by depression, he believed that the bulk of her fatigue
was due to chronic fatigue syndrome rather than to depression. He had no doubt
that the applicant suffered from chronic fatigue syndrome.
In relation to her hypothetically being placed on a rehabilitation program a
year earlier, Dr Kette was of the opinion that it was impossible to say for
certain whether her symptoms would not have deteriorated to the level they did
at the end of 1992 but that she may have had an improved quality of life for at
least a year more than she did have. Dr Kette stated that rehabilitation will
not arrest the disease but that, like most forms of symptomatic treatment, it
does influence the way in which patients cope with their disease and can enable
them to live a good life in spite of the illness. When asked if he believed
there were periods when the applicant’s health was “up to par”, Dr Kette stated
that Professor Wakefield had noted periods when it was almost 100 percent and
other times of protracted and marked symptomatology. He stated that the use of
gammaglobulin (as by Dr Alderman in 1992) was very uncommon in the community
and is usually limited to some immuno-deficient disorders. He stated that
gammaglobulin injection was an appropriate treatment at the time but that the
rationale behind its use was significant and it may have been introduced in an
inappropriate manner. He did not agree that it was reasonable not to refer the
applicant on to a specialist at that time because symptoms may have been
alleviated by the injections.
55. In relation
to depression, Dr Kette stated that this is generally not the dominant symptom
of chronic
fatigue syndrome. He stated that the diagnosis of depression was a separate
diagnosis and that he did not know which condition had arisen first. He
disagreed that the depression had flowed from the chronic fatigue syndrome.
56. Dr Kette
stated that although chronic
fatigue syndrome
was not life-threatening or involved damage to the physical body it was a
significant illness, having an impact on a person because of its effect upon
his or her mental state and sense of personal well-being. When asked if it was
an illness of the mind as distinct from the body, he stated that the
alleviating effect of anti-depressants implies that there is a physical basis
to the depression.
57. Dr Kette
stated that, whilst the applicant is still significantly affected by chronic
fatigue syndrome,
she is improving and he is hopeful of future further improvement and return to
work.
DR D.S. KELLY
58. Dr D.S.
Kelly, psychiatrist, saw the applicant on one occasion in 1996 and prepared a
report dated 26 March 1997 (Exhibit A3).
59. In his
report Dr Kelly stated that the results of questionnaires he administered to
the applicant showed that she had a treated depressive condition which was not
then active. On the information given, he related her depressive disorder
directly to the motor vehicle accident in 1983. He stated that there is a
variety of possible associations between depressive disorder and chronic
fatigue syndrome, the most obvious being that chronic fatigue syndrome is part
of the symptomatology of depression, although the converse might also be true.
Finally, he stated that the presence of depressive disorder might heighten
susceptibility to viral infections, increasing the likelihood of the
development of a chronic
post-viral state.
60. In his oral
evidence, Dr Kelly stated that depressive disorder refers to a number of
different conditions, the main one being that defined in the Diagnostic and Statistical
Manual of the American Psychiatric Association, 4th edition,
commonly referred to as DSM-IV. He disagreed that it was necessary to have two
or more major depressive episodes before a connection can be established
between a service-related event and depressive disorder, as is required by the
relevant SoP, Instrument No. 66 of 1996. He stated that although a major
depressive disorder can be triggered by a one-off event it can also run as a
recurrent episode or as a severe chronic
disorder, fluctuating according to treatment, and may be present over a long
period, even a lifetime. He stated that this requirement of the SoP would
preclude a significant proportion of patients who suffer from depressive
illnesses.
61. Dr Kelly
described the symptoms of depression as depressed mood, problems with
concentration and attention, disturbed sleep patterns or appetite, decrease in
sense of energy, sexual drive and performance, recurrent thoughts of death or
suicide, weight loss, and fluctuations in mood levels during the day. Although
the dominant symptom is depressed mood, some patients are more inclined to
present with symptoms of anxiety while others concentrate more on physical
symptoms such as sleep, appetite, energy levels which give a clue to an
underlying depressive disorder. In such cases, treatment of those symptoms is
achieved by treatment of the depression.
62. As for chronic
fatigue syndrome, Dr Kelly stated that there is no simple answer to its relationship
with depression. He accepted the diagnosis of chronic fatigue syndrome
made in the applicant’s case by Dr Kette and Professor Wakefield. He stated
that the history provided to him by the applicant was consistent with her
suffering a depressive disorder in the mid-1980s, whether 1986 or earlier. He
stated that he could not identify any specific symptoms of depression in the
period 1986 to 1990.
63. When asked
if there was any evidence of a depressive condition in its own right in the
period from 1990 onwards, as distinct from being a symptom of chronic
fatigue syndrome,
Dr Kelly stated that her being on anti-depressants would have influenced the
presence of symptoms at the time and that all he could say was that the
applicant had responded to medication. His questionnaires in 1996 were in no
way helpful in a retrospective sense.
64. In
cross-examination, Dr Kelly stated that, on account of the inadequacy of the
documentation, it was difficult to say with certainty whether there had been at
least two depressive episodes in the 1980s. He stated that the information
definitely points to depression in the 1980s and possibly again in the 1990s,
as Zoloft is a treatment for depression not for chronic
fatigue syndrome.
He stated that one could not be sure when the clinical onset of depression had
occurred. He also stated that, on reviewing the chronology, the applicant had
associated the onset of her symptoms of depression with a bout of bronchitis in
April 1984. When asked if the applicant had suffered any “major illness or
injury” which met the criteria of the SoP of being “life-threatening” or
involving “damage to the body” (paragraph 7 of Instrument No. 66 of 1996), he
stated that the applicant’s loss of consciousness in the motor vehicle accident
in 1983 was clinically significant. He stated that as far as he is aware she
does not suffer from any other psychiatric condition. He said that his best
guess for a date of onset was in April 1984, since the applicant had linked
depression to her bronchitis which occurred then.
DR J.B. TRUMAN
65. Dr J.B.
Truman, psychiatrist, saw the applicant on 8 September 1994 and again on 25
June 1997 and prepared two reports, dated 8 September 1994 (T3/102-103) and 30
June 1997 (Exhibit R5).
66. In his
report dated 8 September 1994, Dr Truman noted that some doubt existed about
the original diagnosis of Guillain-Barre syndrome.
He stated that the applicant apparently developed symptoms of chronic fatigue
syndrome in 1986 with secondary emotional symptoms of anxiety and depression,
which are not uncommon with chronic fatigue syndrome
and were observed by Professor Wakefield. He also noted that the applicant was
on “a very low dose” of 75 mg of Tryptanol at the time of examination.
67. In his
report of 25 June 1997, Dr Truman noted that the applicant’s memory was vague
about the history of her mood state following the motor vehicle accident in
1983. He noted that he went through the medical chronology supplied by Ms Bevan
(Exhibit R4), and that the applicant had stated that there were significant
parts missing from the records, although she did not contact him later with
information to cover any gaps. Dr Truman stated that the dosage of 25 mg of
Tryptanol, prescribed by Dr Colin Andrews in 1985, is “quite useless clinically
for depression” but is often used for tension headaches. He noted that at the
time of his first examination in September 1994 the applicant’s general
practitioner, Dr Starkey, had had her on a “reasonable dose” of 75 mg of
Tryptanol for four or five months to which she had responded consistently with
depressive disorder, showing no clinical signs of depression then. He concluded
that no data was consistent with a diagnosis of major depressive disorder
within twelve months of the stressor, namely, the motor vehicle accident on 11
December 1983, as required by the SoP.
68. In his oral
evidence, Dr Truman stated that he had treated only one patient who had been
diagnosed with chronic
fatigue syndrome but he accepted that the condition probably exists. When asked
whether depression can co-exist with chronic fatigue syndrome or whether
depression was a symptom of chronic fatigue syndrome,
Dr Truman thought either was possible.
69. In relation
to whether the applicant suffered depression after the motor vehicle accident,
Dr Truman stated that according to the records she had no undue emotional
reaction in January 1984 and that in February 1984 she was reported to have
nervous tension and headaches which she controlled. It was not until a year
later, in May 1985 that she was prescribed a very low dose (25 mg) of Tryptanol
by Dr Andrews for tension headaches. He agreed that his own notes relating to
that period dated 30 June 1997 (Exhibit R5) were consistent with a diagnosis of
depression.
70. In relation
to the period when Guillain-Barre was diagnosed in 1986, Dr Truman stated that
50 mg of Tofranil, of the same family as Tryptanol but less sedative, was still
a sub-therapeutic dose for depression. He stated that in his opinion the
applicant suffered from depression for a period after the Guillain-Barre
episode as a natural consequence of it. He said that the first explicit
reference to “depression” in the medical records was not until 11 August 1993
but he was not aware of any data on the applicant’s mental state between 1988
and 1991. He stated that he did not have any information to assist in
identifying whether the applicant then suffered depression prior to the formal
diagnosis of chronic
fatigue syndrome
by Professor Wakefield in June 1994.
71. When asked
if he would accept depression in 1991 or 1992 as being one of the symptoms of chronic
fatigue syndrome, Dr Truman stated that he could not say whether this was so or
whether any depression was a condition in its own right. He stated that he had
not treated sufficient patients with chronic fatigue syndrome to make sensible
comment on whether there is a connection between chronic fatigue syndrome and
depression, but believed that anti-depressants were not very effective with
chronic fatigue
sufferers.
72. In relation
to the SoP, Dr Truman stated that he did not agree with the requirement that
there be two or more depressive episodes before a connection can be raised with
a person’s service. He agreed that one single event of comparatively short
duration, or a single long-running episode of depression would be sufficient.
PROFESSOR D.
WAKEFIELD
73. Professor D.
Wakefield, physician, has been a consultant immunologist for fifteen years and
is currently Professor of Medicine and Head of the School of Pathology at the
University of New South Wales. He has a major interest in psycho-immunology and
immunology of chronic
fatigue
and several other diseases.
74. Professor
Wakefield initially examined the applicant on 9 November 1992 and subsequently
on 1 March 1993, 7 June 1993 and 6 June 1994 . He prepared reports dated 9
November 1992 (T3/71-72), 1 March 1993 (T3/67), 7 June 1993 (T3/77), 6 June
1994 (T3/118), 17 June 1994 (T3/120), 30 July 1996 (Exhibit R2), 6 January 1997
(Exhibit R3) and 10 March 1997 (T7), in the three latest of which he commented
upon the medico-legal issues.
75. In his
report dated 30 July 1996, Professor Wakefield stated (Exhibit R2 page 2):
“I reviewed all
the documentation supplied and am satisfied that Mrs Donna Gilbert had the
treatment that had been recommended, which I feel was appropriate, although not
successful. To the best of my knowledge she was given all the treatments that I
outlined including following a rehabilitation program and general supportive
psychological help. She was also transferred to Adelaide to be closer to her
family. Therefore it would appear from the evidence before me that she was not
prevented from obtaining clinical management for her Chronic
fatigue syndrome.”
He stated in the
same report that in his opinion work-related stress had exacerbated the
applicant’s chronic
fatigue and continued service in the Navy had impeded her recovery. He also
questioned the appropriateness of the SoP criterion as “quite an unusual
principle to set out for any condition” (page 4), and expressed his concern
that it is unjust and discriminatory in relation to chronic fatigue syndrome
sufferers.
76. In his
report of 6 January 1997 (Exhibit R3), Professor Wakefield stated:
“It is possible
that a civilian who was suffering the type of symptoms demonstrated by Donna
Gilbert would probably have sought help earlier and more likely would have been
referred to a clinical physician expert in chronic
fatigue.
Thus it is possible that her service employment would have delayed her
obtaining adequate treatment.”
He went on to
say that there was insufficient scientific evidence to show whether or not
earlier treatment would have altered the course of her condition and prevented
its worsening.
77. In his
report of 10 March 1997 (T7), Professor Wakefield stated that the treatment
received by the applicant in August 1986 appears to have been appropriate and
her subsequent recovery indicates this (paragraph 2). He stated that, although
details of her treatment at that time are lacking, it was more likely than not
that she received rehabilitation and psychological support (paragraph 6). In
reference to her treatment in 1991, he states (paragraph 9):
“Your referral
to Dr Black, Neurologist on 20th November, 1991 a fortnight after Ms
Gilbert had suffered the urinary tract infection was appropriate. His diagnosis
of postviral astheniae and Chronic
fatigue syndrome would also appear to have been appropriate. Thus it was
appropriate at that stage given the evidence from preliminary studies that
gammaglobulin was effective in the treatment of Chronic fatigue syndrome
also to consider this form of therapy. It would usually have been ascertained
whether or not the patient was immunodeficient before commencing such
treatment. To my knowledge this was not attempted.
The history that
I obtained from Ms Gilbert indicated that she had had an eighteen month history
of chronic
fatigue
prior to seeing me. I assumed the reason that she had not remembered the
precipitating event was because of the difficulty she was having at that stage
with her memory and concentrating ability. She had also had trouble with
depression over the twelve months prior to seeing me.
The main issue
revolves around whether or not Ms Gilbert was asymptomatic between November
1991, following the gammaglobulin treatment, and October, 1992 when she was
referred to Dr Fitzgerald and subsequently Professor Lawrence. From the history
that I obtained it appears that she was unwell during this period of time and
there was a time lag between her onset of symptoms and her being seen in
consultation. It appears that when she had sought consultation within the Navy
that the Navy had responded appropriately. I am unable to say whether or not
the reason for lack of consultation during these periods where Ms Gilbert told
me she was unwell was due to her not seeking attention or other factors of
which I am unaware.
It is difficult
to comment as to whether or not Ms Gilbert’s treatment was inappropriate. The
reason for this is outlined in previous correspondence. In essence it involves
the ongoing difficulty with this disease, that there is no curative treatment
and therefore there is no therapeutic benchmark. Having said this most
physicians would agree that any form of management for this disease should
incorporate regular assessment, exclusion of other diseases, attention to
exacerbating factors, engagement in a rehabilitation program and psychological
support.
The issue as to
whether or not Ms Gilbert should have obtained treatment earlier and whether or
not this treatment would have been appropriate revolves around the period
between November, 1991 and October, 1992. On the evidence before me I can only
assume that the reason for no treatment being instigated during the period of
time was because Ms Gilbert did not seek such treatment. This should be
verified with Ms Gilbert and with a review of her medical records.”
78. In his oral
evidence, Professor Wakefield said that the saw the applicant on the invitation
of medical staff at HMAS Penguin. He confirmed that the applicant suffers from chronic
fatigue syndrome and stated that he made that diagnosis after eliminating other
possibilities as a matter of course. He accepted the description of the
condition as a “symptom complex”, and later agreed that the symptoms represent
a measure of the illness. He stated that he is satisfied that the applicant’s
primary illness is chronic fatigue syndrome and not depression, which he
described as a secondary emotional disturbance. He stated that he was sceptical
about the diagnosis of Guillain-Barre made in 1986 and preferred that of
chronic fatigue syndrome. He agreed that the treatment given at that time was
essentially bed rest and a graded return to work and stated that in a case of
chronic fatigue
he would give similar treatment, with graded rehabilitation, a graded exercise
program and a gradual return to work, consistent with managing a symptom
complex.
79. Professor
Wakefield stated that the diagnosis of chronic
fatigue syndrome was available in 1986, albeit under a different name, such as
myalgic encephalomyelitis. He agreed that a treatment program would normally
have included psychological support, including education into the effects of
the condition and stated that such support is not included in the history given
to him, but that not having been there he could not be sure what was done. He
stated that, whilst studies of approaches to treatment of chronic fatigue
syndrome
are only recent, the basic principles of treatment for such diseases, along the
lines of symptomatic treatment, general support, patient information and
rehabilitation, are long-established.
80. When asked
about the history of lingering and occasional complaints from 1987 to 1990, he
stated that such a history or relapses and remissions is quite a common pattern
with chronic
fatigue.
81. On being
referred to Dr Black’s report (T3/56-57), Professor Wakefield agreed that the
diagnosis of viral asthenia was another name for chronic
fatigue syndrome. He agreed that, on the evidence available to him, it would
have been appropriate for Dr Alderman to have referred the applicant to an
immunologist within a reasonable period of time—“up to a month or so”—and that,
on the evidence, this had not occurred. He stated, that to his knowledge, Dr
Alderman’s treatment had consisted of two gammaglobulin injections given in
January 1992. Professor Wakefield also stated that, upon diagnosing chronic
fatigue syndrome,
he had instituted a rehabilitation program immediately as a matter of
necessity.
82. Professor
Wakefield stated that he recommended her return to Adelaide to be near her
family as an important part of her treatment. When asked if he had been
consulted about the applicant’s subsequent posting to HMAS Kuttabul in Sydney,
Professor Wakefield indicated that the only correspondence he had had with Dr
Alderman consisted of the two reports dated 7 June 1993 and 6 June 1994, in the
latter of which he had reiterated recommendations with regard to her graded
exercise program, sleep regulation and energy management principles but not
about returning to work. He stated that he would be concerned if the pressures of
a return to work had been such that she could not continue with her exercise
program. He said that the preferred method for staging a return to work is
through a graded program of work, supervised by a case manager and based upon
sound physical and psychological management concepts, in order to maintain a
positive, supportive approach and encourage a gradual return to full duties. He
agreed that, in retrospect, the applicant’s problems probably should have been
identified and referred to himself sooner, rather than waiting the twelve
months between appointments.
83. Professor
Wakefield was asked to clarify what he meant in his report to the naval medical
officer, Dr Parrish, on 17 June 1993 (T3/120) where he stated:
“I feel that her
illness has been exacerbated by her continued service and that the stress
associated with her job has also contributed to her inability to cope.”
He said (ts
p.105):
“Well, when I
reviewed her prior to writing this letter it was obvious that she’d had
worsening of her fatigue.
She is having emotional problems and become—be quite upset and become anxious,
despondent and started on some treatment so, yes, she basically wasn’t coping
with her job or with her illness at all at that stage and this was associated
with worsening of fatigue
and tiredness and basically she was unable to rest, sleep or do any of the
other planned rehabilitative type programs that we’d previously discussed and
she found that in the situation she was in at that stage she really just couldn’t
function and I thought that there was no way that we could actually
rehabilitate this woman while she was still in that situation and she needed a
change of environment to facilitate her treatment program.”
84. Professor
Wakefield stated that, based on his clinical experience, he did accept the
proposition that earlier intervention would more likely than not have modified
the course of the applicant’s condition, although it was very difficult to
substantiate on hard scientific evidence due to lack of studies. He stated
that, on the basis of her relatively rapid recovery after the 1986 episode, one
could reasonably assume that earlier intervention might have brought about an
earlier recovery. He said that it was possible that the applicant’s symptoms
would have been less severe with earlier treatment in 1991 and 1992 but would
not agree that those symptoms probably could have been avoided. He said that,
based upon his experience of clinical care, observations and trials, there can
be no assurance against relapse. For this reason, he said, an unequivocal
statement that the applicant would still be able to work, had she received
earlier treatment, could not be made. However, he stated that it was more
likely than not, given the applicant’s previous response, that an improvement
in 1991 and 1992 would have been quicker and more advanced if rehabilitative
intervention had occurred at that time.
85. In relation
to depression and chronic
fatigue syndrome, Professor Wakefield stated that depression is not an uncommon
secondary phenomenon in the same way as with other chronic debilitating
illnesses such as kidney failure or chronic
heart failure, where 30 to 40 percent of patients are depressed at any given
point of time.
CONTENTIONS
86. Mr Hemsley,
counsel for the applicant, contends that the applicant failed to get
appropriate clinical management of her condition of chronic
fatigue syndrome
when it was diagnosed in 1991 until she saw Professor Wakefield in November
1992; that there was no rehabilitation, no staged return to work, no exercise
program and no counselling during this period. He contends that, since the
problem had been identified by Dr Black, referral to an appropriate specialist
was required as a matter of course. He further contends that even after this,
when the applicant was posted back to HMAS Kuttabul in late 1993, there was a
delay in her treatment and recognition of her symptoms. Since she had responded
very quickly to treatment in 1986, Mr Hemsley contends that it is reasonable to
assume that earlier intervention at these later times would also have resulted
in her speedier recovery and a return to work. Hence, he submits, the
requirement of the SoP that aggravation result from the inability to obtain
appropriate clinical treatment is met.
87. In relation
to depressive disorder, Mr Hemsley submits that it is difficult to make out a
primary case because of a lack of records but that nevertheless it is open to
the Tribunal to consider whether depression is a condition in its own right
under the relevant SoP. Nevertheless, Mr Hemsley requests that, should it so
find, the Tribunal record the fact that depression is a symptom of the primary
condition of chronic
fatigue syndrome
so that no doubt can exist in relation to claims in respect of future
treatment.
88. Ms Bevan,
for the respondent, contends that, since Dr Black discussed the question of a
referral to an immunologist with the applicant, she cannot now say she was
willing to be referred but that it was not up to her to arrange those
appointments. Ms Bevan submits that the applicant was then 30 years of age and
could have taken initiatives to that end. Thus, any failure to have her
referred to a specialist cannot be said to be due to her Naval service.
89. Ms Bevan
further contends that the requirement that there be aggravation of her symptoms
is not met. She contends that the decision of the High Court in Johnston v
Commonwealth (1982) 150 CLR 331 means that the “inability to obtain
appropriate clinical management” factor can only apply where a disease should
have been diagnosed and was not. In this case, she submits, the applicant knew
that she should see an immunologist and did not do anything about it. Ms Bevan
further contends that, since there is no cure for the condition and relapses
occur in spite of all the right treatments, it cannot be said that lack of
rehabilitation during 1991 would have prevented its worsening. She contends
that notwithstanding any alleviation of symptoms the underlying disease would
not have been helped.
90. In relation
to depressive disorder, Ms Bevan contends that there is no record of depression
within twelve months of the motor vehicle accident in December 1983, as
required by factor 5(a) of Instrument No. 66 of 1996 and there is also no “major
illness or injury” as defined by the SoP within a relevant period, as neither
bronchitis (rejected as being defence-related) or chronic
fatigue syndrome
satisfy the criteria. Furthermore, she submits that the applicant does not meet
the definition of “depressive disorder” in paragraph 2 of the SoP, which
requires two or more major depressive episodes, as defined by DSM-IV, separated
by an interval of at least two months.
91. Mr Hemsley
contends that Johnston (supra) does not assist the respondent since the
legislative test to be met is contained in the SoP. He submits in reply that
the argument that Mr Johnston should have sought his own medical advice in the
face of ongoing problems was rejected and that the same argument should be
rejected in Ms Gilbert’s case. He contends that she should be entitled to rely
on decisions made in respect of her health by her Navy doctor and that no
evidence of what was said to her by Dr Black is before the Tribunal.
92. Mr Hemsley
further contends in reply that, since chronic
fatigue syndrome is defined by its symptoms, those symptoms cannot be separated
out from the condition itself. He said that the consequence of the respondent’s
argument is that all cases of chronic fatigue syndrome
must fail because it is not possible to aggravate the condition, being one of
unknown cause. He referred again to Johnston where the majority states
(at 339):
“... treatment
could have been given which would have been effective in slowing down, if not
entirely stopping, the ‘natural and fatal course’ of the disease.” [Tribunal’s
emphasis]
DISCUSSION AND
FINDINGS
INABILITY TO
OBTAIN APPROPRIATE CLINICAL MANAGEMENT FOR CHRONIC
FATIGUE SYNDROME
93. The Tribunal
was impressed by the evidence of both Professor Wakefield and Dr Kette but
where necessary prefers the opinion of Professor Wakefield, in view of his
considerable experience and eminent qualifications in the field of chronic
fatigue syndrome.
The Tribunal found the applicant to be a witness of truth.
94. The Tribunal
has considered the evidence and is satisfied that the crux of the issue in
relation to the applicant’s chronic
fatigue syndrome is whether she was able to obtain appropriate clinical
management for her condition in the period after her health deteriorated in
1991. Although it is satisfied on the evidence of Professor Wakefield that the
diagnosis of Guillain-Barre syndrome in 1986 was a misdiagnosis and that the
applicant suffered chronic fatigue syndrome
as early as 1986, the Tribunal is also satisfied that there is evidence that
treatment given to her at that stage was effective. Precise details of a
grumbling low-grade condition, which the applicant states she continued to
experience throughout the late 1980s, are lacking and on the medical evidence
her recovery appears to have been reasonably satisfactory until her relapse in
1991. The later period after 1991, therefore, deserves the greater attention.
95. In his
report dated 30 July 1996 (Exhibit R2), Professor Wakefield stated that he was
satisfied that the applicant had not been prevented from obtaining appropriate
clinical management. He appears to modify this position in his report of 6
January 1997 where, in response to a specific question which is not contained
in the evidence, he states that a civilian in the applicant’s position would
probably have sought specialist advice earlier and that it was possible that
the applicant’s service delayed her obtaining adequate treatment. In his oral
evidence, Professor Wakefield agreed that it would have been appropriate for
the applicant to have been referred to a specialist, as suggested by Dr Black
in November 1991, within a month or so after that consultation.
96. In relation
to the later period when the applicant’s treatment was being conducted under
his general direction, he also stated that in retrospect she should have been
referred to him sooner than the twelve months that in fact elapsed. The
evidence points to the applicant having been transferred to Sydney in November
1993 without reference to Professor Wakefield. She was unable to cope with this
posting to the Communications Centre, having to be moved within only a few
weeks.
97. Upon
considering all of the evidence, the Tribunal is satisfied that the applicant
was not able to obtain appropriate clinical management of her condition of chronic
fatigue syndrome in the period after it was first identified by Dr Black in
November 1991 until her referral to Professor Wakefield in November 1992, and
so finds. In coming to this conclusion, the Tribunal puts particular weight on
the evidence of Professor Wakefield and Dr Kette in relation to the appropriate
treatment for chronic fatigue syndrome
and on the evidence as to what the applicant was experiencing during this
period. The Tribunal is swayed by the evidence of Dr Kette and Professor
Wakefield that there was more that could have been done to help the applicant
during this period and by the fact of Dr Black’s suggestion for further
specialist consultation which was not taken up. It accepts Professor Wakefield’s
evidence that a reasonable time to effect the referral would be about a month.
In fact no referral was made for a further eleven months. The applicant stated
that her symptoms in 1992 were similar to those previously experienced but more
severe. Even given some alleviation in her symptoms following the gammaglobulin
treatment by Dr Alderman, the evidence clearly points to a general and steady
decline in her health during 1992, leading to her hospitalisation at HMAS
Penguin. The Tribunal is satisfied that the kind of rehabilitation measures
recommended by both specialists and immediately put into place by Professor
Wakefield were not provided to the applicant or made available to her during
this period.
98. Having made
this finding in relation to this prior period, the Tribunal finds it
unnecessary to consider whether or not the applicant was unable to obtain
appropriate clinical management after November 1992 and up to the time of her
discharge.
AGGRAVATION OF CHRONIC
FATIGUE SYNDROME
99. The Tribunal
does not accept the respondent’s contention that some responsibility lay with
the applicant to ensure that a referral to an immunologist was obtained if she
so desired it and that therefore the condition cannot be said to be
defence-caused. It notes that the High Court in Johnston (supra)
rejected a similar submission in that case, stating the issues there as simply
being whether the disease was aggravated because of the failure to diagnose,
and whether that failure was directly related to employment (page 341). The
Tribunal is of the view that when dealing with a SoP under the present Act the
issues to be addressed are of a very similar nature to those identified by the
High Court in Johnston; namely, was the applicant able to obtain
appropriate clinical management; and, did such an inability aggravate her
condition? Murphy J explicitly shunned any hair-splitting, over-technical
approach to compensation legislation as being out of accord with its remedial
nature (page 343). The majority stated, “in the ordinary course of events
servicemen were expected to use [Naval medical] facilities rather than to seek
medical attention outside the service” (page 340).
100. Dr A.
Black, neurologist, in his report of 20 November 1991 addressed to Dr Alderman
the general practitioner under contract to the Navy at HMAS Endeavour, states
(T3/56):
“I have
reassured Donna that she is not developing symptoms of Guillain-Barre Syndrome
and I have pointed out to her that I do not believe that she ever had this
condition. She does however, have very typical symptoms of post viral asthenia
and I imagine that she will continue to have symptoms of this sort with
recurrent infections, though hopefully she will improve as time goes on.
I discussed with
her whether she might usefully see an Immunologist who might be about the only
person who could unravel her situation further. In response to this she told me
that her only true sister is extremely unwell and is said to be allergic to the
twentieth century.”
101. It appears
that Dr Alderman subsequently instituted a short program of intramuscular injections
of gammaglobulin and the Tribunal has found that other clinical management
measures appropriate to chronic
fatigue syndrome were not effected until late 1992. The Tribunal does not have
the benefit of evidence from Dr Alderman as to any discussions he may have had
with the applicant about possible referral to an immunologist, as Dr Alderman
is now deceased, but it is satisfied that nothing appears in Dr Black’s report,
just quoted, which indicates any reluctance on the part of the applicant to see
an immunologist. In any case, the Tribunal holds the view that, as a member of
the Navy, the applicant was justified in accepting the treatment offered to her
by her Naval doctor, Dr Alderman, and was under no obligation, implied or otherwise,
to ensure that she was referred to an immunologist sooner. The applicant stated
that she was not given a copy of Dr Black’s report and was not supposed to have
access to her own medical records. In his report of 10 March 1997 (T7),
Professor Wakefield refers to problems the applicant was experiencing with
memory and concentration and also to her depression. Her apparently passive
course during 1992 could well be explained by these kinds of difficulties,
typical to chronic fatigue
sufferers, and is of no legal significance in the opinion of the Tribunal.
102. Both
Professor Wakefield and Dr Kette acknowledged the difficulty of predicting what
course chronic
fatigue syndrome might take, however both gave evidence that, had the applicant
received treatment in late 1991 and during 1992, her condition would probably
not have been as bad as it was. A difficulty which presents itself due to the
accepted nature of the condition, that is, as a symptom complex which is
measured according to the severity of symptoms at a particular time, is whether
a temporary worsening or alleviation can truly be said to reflect the course of
the disease. In fact, the term “course of the disease” appears to have been
given a slightly different meaning by the medical witnesses at different points
in the evidence. The Tribunal notes the submissions made by Mr Hemsley and Ms
Bevan upon this point. While acknowledging the logic in Ms Bevan’s submission,
the Tribunal is nevertheless struck by the fact that, as pointed out by Mr
Hemsley, its acceptance would appear to exclude all chronic fatigue syndrome
sufferers from obtaining compensation because of the inherent unpredictability
of the disease. Such a result would be out of keeping with the intention behind
the Act. In the Tribunal’s opinion, the only
workable solution is to take a very literal and straightforward approach to the
requirements of the SoP.
103. The
Tribunal is satisfied that the weight of the evidence supports the finding that
the inability which the applicant suffered in obtaining appropriate clinical
management was a factor in the worsening of her condition of chronic
fatigue syndrome.
In so finding, it has been mindful of the unequivocal opinion of Professor
Wakefield in his letter of 17 June 1994 (T3/120) that the applicant’s defence
service was related to her deterioration and was a factor militating against
her recovery.
DEPRESSIVE
DISORDER
104. The
relevant SoP for depressive disorder is Instrument No. 66 of 1996. Under this
SoP, “depressive disorder” means, inter alia, that “the person has had two or
more major depressive episodes, as defined in DSM-IV, separated by an interval
of at least two months” (placitum 2(b)(A)). The relevant factors in paragraph 5
are:
“(a)
experiencing a severe psychosocial stressor or stressors within one year
immediately before the clinical onset of depressive disorder; or
...
© having a major
illness or injury within one year immediately before the clinical onset of
depressive disorder; or
...
(e) having a
major illness or injury within one year immediately before the clinical
worsening of depressive disorder; or
...”
105. The
evidence of both Drs Kelly and Truman was that at the time of examination the
applicant was not exhibiting strong symptoms of depression and both concluded
that her medication was effectively treating any depressive disorder suffered
by her at the time. Dr Kelly stated that the applicant’s history was consistent
with depressive disorder in the mid-1980s whilst Dr Truman was of the opinion
that the low doses of anti-depressants prescribed during some of this period
were clinically useless for treatment of depression and must have been
prescribed for other reasons. As to whether any depression suffered by the
applicant was a condition in its own right, neither psychiatrist positively
affirmed this to be the case. Dr Truman acknowledged that his experience with chronic
fatigue sufferers was limited to a single patient and both he and Dr Kelly
accepted the diagnosis of chronic fatigue syndrome. While Dr Kelly was positive
that the applicant had suffered depression in the 1980s, he would not say
whether any depression was separate from chronic fatigue syndrome
from 1990 onwards.
106. In relation
to the SoP, the Tribunal is satisfied that the applicant does not meet the
basic requirement of having had two or more major depressive episodes, as
defined in DSM-IV, separated by an interval of at least two months, due to a
lack of specific evidence of depression as such in her service medical records.
The Tribunal is also not satisfied that Dr Kelly’s assertion, that the applicant
suffered a major injury in the motor vehicle accident of December 1983 which
precipitated depressive disorder, is supported by the evidence or, in turn,
meets the criterion of clinical onset within twelve months. Neither do the
applicant’s episode of brochitis or her condition of chronic
fatigue syndrome
satisfy the criteria for “major illness” in the SoP which requires that such an
illness is “life-threatening, or involves damage to the body”. In short, there
is no case supported by the evidence that can meet the requirements of the SoP
in relation to depressive disorder.
107. The
Tribunal is, however, satisfied that depression is and has been a symptom of
the applicant’s chronic
fatigue syndrome
from time to time. In so finding, the Tribunal has taken into account the
evidence of her use of anti-depressants over a long period, during some of
which it is satisfied that therapeutically significant doses have been
prescribed, and the evidence of Professor Wakefield that the applicant’s
depression is a secondary condition. It notes Dr Kette’s disagreement but
prefers the opinion of Professor Wakefield for the reasons stated above.
108. Although
not relevant to the outcome in this case, the Tribunal notes that both
psychiatrists, Drs Kelly and Truman, agree that there is no medical
justification for the requirement of Instrument No. 66 of 1996 that in order to
have the condition of “depressive disorder” recognised for the purposes of the Act a person must have had two or more major
depressive episodes, as defined in DSM-IV, separated by an interval of at least
two months.
DECISION
109. For the
reasons stated above, the Tribunal, pursuant to s.43 of the Administrative Appeals Tribunal Act 1975 ,
sets aside the decision under review and in substitution therefor decides that
the applicant’s condition of chronic
fatigue syndrome
is defence-caused, within the meaning of s.70 of the Act, and remits the matter to the respondent
for assessment of pension in accordance with this decision.
I certify that
this and the thirty-four (34) preceding pages are a true copy of the decision
and reasons for decision herein of Senior Member J.A. Kiosoglous MBE
Signed:
.....................................................................................
Personal
Assistant
Date/s of
Hearing 13/14 August 1997
Date of Decision
25 August 1998
Counsel for the
Applicant Mr G. Hemsley
Solicitor for
Applicant -
Counsel for the
Respondent Ms R. Bevan
Solicitor for
the Respondent DVA