Allen Greenwood and Repatriation Commission
[2013] AATA 316
[2013] AATA 316
Division Veterans' Appeals Division File Number(s)
2011/5529
Re
Allen Greenwood
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Ms G Ettinger, Senior Member
Dr M Couch, MemberDate 17 May 2013 Place Sydney Decision
The Tribunal affirms the decision under review.
........................................................................
Ms G Ettinger, Senior Member
CATCHWORDS
VETERANS AFFAIRS - General Rate of pension - Special or Intermediate Rate of pension - Whether totally and permanently incapacitated from war-caused injury or disease or both - Degree of incapacity from war-caused injury or disease - Totally and permanently incapacitated for work in employment for which one is suited - Whether prevented from continuing to participate in remunerative work due to accepted conditions alone - Whether a loss of salary, wages or earnings is suffered - Whether incapable of undertaking remunerative work for periods aggregating more than eight hours a week - The Tribunal affirms the decision under review.
LEGISLATION
Veterans' Entitlements Act 1986 ss 23(1)(b), 24 (1)(a), 24(1)(b), 24(1)(c), 24(2A), 24(2)(a), 28, 120(4)
CASES
Repatriation Commission v Smith (1987) 74 ALR 537
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Hendy [2002] FCAFC 424
Repatriation v Connell [2011] FCAFC 116
Leane v Repatriation Commission [2004] FCAFC 83DECISION
The Tribunal affirms the decision under review.
REASONS FOR DECISION
Ms G Ettinger, Senior Member
Dr M Couch, Member17 May 2013
Mr Allen Greenwood was almost 66 years old at the date of the hearing before this Tribunal, and served his country on operational service pursuant to the Veterans’ Entitlements Act 1986 (the Act), in the Royal Australian Army between 1968 and 1969. He has a number of accepted war-caused disabilities, and is receiving 100% of the General Rate of pension.
Mr Greenwood worked with the Sydney Water Board, (the Water Board), later Sydney Water, initially as a labourer, from the age of 18 in 1965, until he was called up for service. He rejoined as a plant operator after his return from Vietnam 1969, and then moved into various managerial roles. He told the Tribunal that he suffered back injuries, but that following surgery in 1999, and after having injections in his spine, he managed to do his work well. There were quite a number of workers’ compensation claims in regard to Mr Greenwood’s back in the documents before the Tribunal.
Mr Greenwood told the Tribunal that in the late 1980s or 1990s he noticed, however, that his moods were fluctuating, and his temper and tolerance for problems reduced. He says that as a result he was moved around various work locations, and complained that in the Blue Mountains posting, his last, whereas previously he had held a managerial supervisory role, he had menial duties to perform. He did not like that.
In 1999 he put his name forward for redundancy, which appears to have been delayed until final settlement of his workers’ compensation claims. At the insistence of his friends and former colleagues (a safety officer in particular) Mr Greenwood was referred to Dr K Reinhardt at St John of God Health Services (St John of God) for diagnosis of a psychiatric condition in December 2002. Dr Reinhardt diagnosed posttraumatic stress syndrome (PTSD). This condition has now been accepted as war-caused.
Mr Greenwood claims that he is totally and permanently incapacitated for work in employment for which he is suited. He says further that he is prevented by his war-caused conditions alone, from participating in remunerative work, and has suffered a loss of earnings as a result. He claims that he is eligible for the Special Rate of pension, or at least the Intermediate rate.
We considered all the evidence before us, and decided that it was not Mr Greenwood’s war-caused conditions alone which have stopped him from participating in remunerative work. We have found that he is therefore not eligible to receive pension at the Special or Intermediate Rate. We have affirmed the decision of the Veterans’ Review Board. Our reasons follow.
ISSUES BEFORE THE TRIBUNAL
The Tribunal must decide whether the Applicant is entitled to a pension at either the Special or Intermediate Rate, and notes that whenever it refers to a relevant period, it takes into account the assessment period which dates from 16 September 2010 to the date of this Decision.
We are satisfied that Mr Greenwood meets the tests in section 24(1)(a) of the Act in that his degree of incapacity from war-caused injury or disease has been assessed as 100%. He is receiving pension at 100% of the General Rate.
Accordingly we must decide with reference to the assessment period:
·Whether Mr Greenwood is totally and permanently incapacitated for work in employment for which he is suited;
·Whether he is prevented, (taking into account the assessment period), from continuing to participate in remunerative work due to his accepted conditions alone; and if so,
·Whether he is, as a result, suffering a loss of salary, wages or earnings.
LEGISLATION
Section 24(1) of the Act applies to a veteran if:
…
(a) either:
(i)the degree of incapacity of the veteran from war‑caused injury or war‑caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war‑caused injury or war‑caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war‑caused injury or war‑caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity;
…
(2) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war‑caused injury or war‑caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war‑caused injury or war‑caused disease, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
…
The standard of proof is pursuant to section 120(4) of the Act, which is on the balance of probabilities. The Assessment period is from 16 September 2010 to the date of publication of this decision, (section 19 of the Act). The earliest date of effect would be 16 June 2010.
The legislation requires that the material before the Tribunal must positively persuade the Tribunal (Repatriation Commission v Smith (1987) 74 ALR 537) in relation to the Applicant’s satisfaction of a number of tests.
BACKGROUND
We noted that Mr Greenwood left school when he was 14 years of age. He told us the circumstances of leaving, that he was a fiery kid, and that he had been stealing. Since leaving school he has held down a variety of jobs. The most significant was that he joined the Water Board, now Sydney Water, as a labourer in 1965, then left for military service, and returned in 1969.
By 1988, Mr Greenwood had advanced from being a labourer and machine operator to supervisory positions at water maintenance and sewage treatment plants. Mr Greenwood said that after working in several managerial positions, problems arose after 1992, and he was labelled a devil’s advocate and vexatious litigant. In 1994 he was demoted to Project Unit Manager for water, which he says was a mundane job. He said that came about because he had been arguing with people at work. Most recently, in 2002, he was deployed to a position in the Blue Mountains which covered a large area, but was, according to him, a mundane job. Mr Greenwood said that he had pride in his work, so felt belittled by the demotions, and by decisions of management which looked good, but were not right as far as where money needed to be spent. Mr Greenwood told us that all of this affected him, and his health. He said that he felt anxious, and was argumentative, but did not know at the time that he had PTSD which was affecting his behaviour. He said that before he went to Vietnam he did not drink a lot, and he got on well with people.
Mr Greenwood said that a defining moment was when he applied for systems manager in the late nineties, and was not appointed to that position. He said that the sheer frustration of the job prompted him to apply for a redundancy. Mr Greenwood told us that he received an initial offer of redundancy in 1999, but that it took till 6 August 2002 to come into effect. He agreed he had a number of workers’ compensation claims ongoing during that period.
He said that on 6 August 2002, he received a settlement of his workers’ compensation claim for his back, and his manager told him his redundancy had been approved by head office. He was then aged 55. Mr Greenwood said that his back played no part in the decision regarding redundancy and that his back did not prevent him from working. A summary of Mr Greenwood’s accidents as given in Exhibit R6/9 us discussed below. There is no mention of psychiatric or psychological injury.
Mr Greenwood told us that he had surgery in 1999 for his back. He said that in 2007, he had a weekly massage and physiotherapy for his shoulders and knees. The Applicant also said that he had surgery for his left shoulder in 2008, and could now lift his left arm. He said that his right shoulder was all right. Mr Greenwood said that he had what he called a pinched nerve, four or five years ago, (in approximately 2009), for which he had an injection of cortisone.
When asked how long he would have worked, but for his medical conditions, Mr Greenwood said that when he bought a block of land in the 1990s, his aim was to develop it in 10 years, in line with his retirement. He said however that he had not been actively planning retirement in the 1990’s because of the stock market crash.
When asked whether he would now, but for his accepted disabilities, and at age 66, be working, Mr Greenwood said that the reason for ceasing work was his war-caused disabilities. He added that he would have continued working unless he had won the lottery.
Mr Greenwood said that after leaving Sydney Water he applied for other jobs on approximately ten occasions five or six years ago. He said that he was unsuccessful on each occasion because he was quite open about disclosing his disabilities. He said that he did not keep evidence relating to the job applications, adding that in approximately 2004, Dr Reinhardt advised him to cease applying.
Following his redundancy Mr Greenwood was referred to Dr K Reinhardt at St John of God. We noted at Exhibit R2, the referral from Dr Chandler, Mr Greenwood’s general practitioner dated 5 December 2002 in which the practitioner stated:
Mr Greenwood is a Vietnam veteran & is putting in a pension claim. He needs to have PTSD diagnosis for the claim …
We moved then to consider the application of section 24(1) of the Act section
Section 24(1)(a) of the Act
As already stated above, we are satisfied that Mr Greenwood meets the tests in section 24(1)(a) of the Act in that his degree of incapacity from war-caused injury or disease has been assessed as 100%. He is receiving pension at 100% of the General Rate. That is not in dispute.
Mr Greenwood has a number of accepted disabilities as follows:
·Acquired cataracts in both eyes
·Diabetes mellitus
·Posttraumatic stress disorder
·Bilateral tinnitus
·Hypertension
·Prostatic interepithelial neoplasia
·Osteoarthrosis of the left hip
·Atherosclerotic peripheral vascular disease affecting both legs
·Patellofemoral arthritis of the right knee
·Psoriatic arthropathy of both feet
·Osteoarthrosis affecting both feet
Section 24(1)(b) of the Act
We next had to consider whether the Applicant is (taking into account the assessment period which commenced on 16 September 2010) totally and permanently incapacitated from war-caused injury or disease or both, and further, that those injuries or diseases are such that they alone render Mr Greenwood incapable of undertaking remunerative work for periods aggregating more than eight hours per week.
In order to do that, we had before us Mr Greenwood’s evidence and that of Drs Dinnen, Chandler, Roberts, Ma, Reinhardt and Rosenthal.
Commencing with Mr Greenwood, we noted that
·Following work at Sydney Water in managerial positions in the 1980s and 1990s, he was demoted to his last post in 2002, which was in the Blue Mountains. He said it was because he could not get on with people, and was argumentative. He found the Blue Mountains job to be a menial and belittling job. Looking back, Mr Greenwood attributes that state of mind to the PTSD, he did not, at that time, know he had.
·We were mindful of a performance appraisal conducted for Mr Greenwood on 9 February 1998 in which the findings were as follows:
Allan is a competent officer who has performed his duties in an effective and professional manner.
He has shown dedication and perseverance in managing provision of Rouse Hill infrastructure, particularly given the administrative and contractual constraints associated with the Rouse Hill Stage 1 Contract.
In the document, Mr Greenwood made comments about salary, and concluded: I agree with this assessment. There were of course other performance reviews in the documents before us, as they were conducted annually, but this one has been commented on because its date of 1998 coincided with times during which Mr Greenwood told us that he was not getting on well, and by 1999 was asking for a redundancy. His statements regarding not getting on well because of the PTSD yet to be diagnosed, are contradicted by the performance review.
·Mr Greenwood said that he had back surgery in 1999, and that his back did not give him too much trouble after that, although he had several epidural injections for it. Dr M Pell, the neurosurgeon who conducted the operation stated in a letter of 18 January 1999, that:
… he has had a long history of back problems dating back 20 years. … CT scan of 29/9/1998 showed spinal canal stenosis at the L4/5 level, mainly from marked facet joint hypertrophy on the right side.
·A letter of Dr J Harrison an orthopaedic surgeon dated 5 November 2011 concerned a consultation regarding Mr Greenwood’s feet. There was no mention of any psychological or psychiatric problems.
·We are mindful that at Exhibit R6, Annexure B, page 9, and as part of the workers’ compensation settlement of 6 August 2002, there is a summary of accidents Mr Greenwood incurred dating back to 1966. Relevantly, there had been accidents reported in 1978 of his back and left shoulder, left knee and pain in the back in 1988, and in 1992, and 1998, pain in the lower back. There were also entries in 1982 for a sprained right ankle, 1986, for strained feet, and in 1988, pain in both feet. This was confirmed in a letter of Dr L Pierides (occupational medicine specialist) dated 17 December 1998 who referred to the history of back injuries the Applicant had suffered, noting that:
… his back had never quite been 100 percent since 1982, but that he had managed work. He did not have any other health problems, although he did say he had pain in his feet which had been diagnosed …
·We also noted from Exhibit R7, which was Mr Greenwood’s application to Centrelink for Disability Support Pension made in August 2002, that the reports he appended included medical reports which referred to his back and foot problems, but not to any psychiatric or psychological problems.
·A further indication that Mr Greenwood’s back was his major problem over some 20 or more years was given in a notice of injury to his employer dated 20 February 2001 in which he stated that the date of original injury to his back was on 17 September 1998, and that at 12 February 2001, it was ongoing. He also stated: I have never recovered from lumbar laminectomy operation.
·He sought redundancy in 1999/2000, but it was not until August 2002, with the finalisation of his workers’ compensation claims for his back, that redundancy was offered and finalised. A letter of 16 June 1999 to Mr Greenwood from management, informed him that his position had been declared redundant, adding: This decision is in no way a reflection on you or your work.
·A report of an examination of Mr Greenwood by Dr R Herlihy, Medical Consultant for Australian Water Technologies, dated 23 November 1998 was held in connection with the Applicant’s back problems. Dr Herlihy opined that:
Mr Greenwood’s story is consistent with a diagnosis of constitutional lumbar spine degeneration with a number of work related exacerbations. … The current exacerbation from 17 09 98 has not yet regained the pre-exacerbation status of fairly constant but tolerable background of low back discomfort. … He is giving some consideration to accepting an offer of voluntary redundancy …
·The reason for termination given on the document at Exhibit R6, dated 2 September 2004, was: His position was made redundant. The document also recorded Mr Greenwood’s employment from 1999 to the date of termination as Production Unit Manager (Water).
·In a statement dated 7 October 2011, which Mr Greenwood said he made when asked by his advocate to give a brief outline of his last ten years at Sydney Water, the Applicant stated relevantly:
… my then manager … stated to me in confidence that Sydney Water would offer myself a package to accept redundancy along with my claim for pain and suffering. This would solve both problems of Sydney Water not wanting me and me walking away with something to live on until I found another job …
·Mr Greenwood said that he felt anxious during his later years at Sydney Water, but did not know at the time that he had PTSD. He said that he did not know until it was diagnosed by Dr Reinhardt in December 2002 after he had left Sydney Water.
·He said that before he went to Vietnam he did not drink a lot, and he got on well with people, but following Vietnam his consumption of alcohol was problematic, and that he drank after work six days a week. He said that his liver function tests indicated high alcohol consumption in 1975, but that he managed to disguise it by not drinking for periods before being tested. Mr Greenwood said that his marriage also broke down in 1999, and that this was at least partly due to his drinking. We noted that Dr Roberts recorded Mr Greenwood told him the reason his marriage broke down was because Mr Greenwood was involved with another woman. Dr Roberts also recorded that although both he and Dr Dinnen took a history of heavy drinking from the Applicant, Mr Greenwood’s liver function tests did not suggest substantial alcohol consumption. In that regard we also noted Mr Greenwood’s explanation which was that he ceased drinking some days before testing was due.
·When referred to paragraph 12 of his statement in which he stated that he seldom left home, Mr Greenwood accepted that the statement there was inaccurate, and told us that he played some golf, but struggled to walk because of his feet, (and not because of his back).
·We noted that Mr Greenwood also attends his club twice a week, and has travelled frequently. He did not disclose his quite extensive and prolonged travel in his statement. In his oral evidence he did not deny that he has been to Vietnam two or three times, to Tibet, China and Japan. He said that his last trip which lasted 10 – 12 weeks, was to Cambodia, and that he was currently planning another trip. Mr Greenwood told us that he had taken trips of two to three months at a time in recent years. He said that be managed his pain by simply taking his tablets along.
·Mr Greenwood told us that he assists at the RSL with their exercise program, and that he had been the coordinator, of the Governor King Day Club for five years. A newsletter dated 2011 tendered in regard to the Club, which was before us as Exhibit R5, indicated he was the coordinator of the Club.
·When asked how long he would have worked but for his war-caused medical conditions, Mr Greenwood said that when he bought a block of land in the 1990s, his aim was to develop it in 10 years, in line with his retirement. He said however that he had not been actively planning retirement in the 1990s because of the stock market crash.
·When asked whether he would now, but for his accepted disabilities, and at age 65 be working, Mr Greenwood said that the reason for ceasing work was his war-caused disabilities. He added that he would have continued working unless he had won the lottery.
We then moved to consider the medical evidence in regard to section 24(1)(b) of the Act which is whether (during the assessment period), Mr Greenwood is totally and permanently incapacitated from war-caused injury or disease or both, and further, whether those injuries or diseases are such that they alone render Mr Greenwood incapable of undertaking remunerative work for periods aggregating more than eight hours per week.
Dr K Reinhardt, psychiatrist, reported on 13 February 2003 that she had seen Mr Greenwood on referral from Dr Chandler on 5 December 2002 for consultation and ongoing treatment. She wrote that Mr Greenwood satisfies DSM IV Criteria for war-caused chronic PTSD, and that due to his disability he was not able to work more than eight hours a week, and was not suitable for retraining. She opined that the symptoms and signs he demonstrated had been present for many years, and had caused him significant distress and impairment in social, recreational and occupational functioning.
We noted at Exhibit R2, the referral from Dr Chandler, Mr Greenwood’s general practitioner to Dr Reinhardt, dated 5 December 2002 in which the practitioner stated:
Mr Greenwood is a Vietnam veteran & is putting in a pension claim. He needs to have PTSD diagnosis for the claim …
Our attention was also drawn to correspondence attached to Exhibit R2, being a letter of Dr Reinhardt to Dr Chandler based on an assessment carried out on 17 December 2002. In it the doctor included in the introduction, the sentence: The referral indicates that Mr Greenwood is putting in a pension claim, and is seeking a diagnosis of PTSD. Curiously, in a letter to the Department of Veterans’ Affairs dated 13 February 2003, Dr Reinhardt omitted that sentence.
We noted further that in her letter of 17 December 2002, Dr Reinhardt concluded with: It has been suggested to him that he consider attending an introductory programme at some point in the future. We noted from the evidence that Mr Greenwood did eventually, some years later, attend a program at St John of God from 12 January 2009 to 30 January 2009.
Dr A Dinnen, psychiatrist whose report dated 8 August 2012 was before the Tribunal as Exhibit A3, gave oral evidence by telephone. He opined that Mr Greenwood’s PTSD had caused him to struggle for approximately three years before the diagnosis was made by Dr Reinhardt (in 2002). He indicated Mr Greenwood had been assigned a low level position at Sydney Water with which he was unhappy, and that this had occurred because of his irritability and conflict with his colleagues over a period of years.
Dr Dinnen said that most of the emphasis in his examination of Mr Greenwood was in relation to his employment, and agreed that he had taken no history of Mr Greenwood’s overseas travel, which included Vietnam and other places in South East Asia. When told about it, Dr Dinnen said that this did not impact on his opinion, stating that he saw a lot people who were not in good health when he himself travelled. We noted that Dr Dinnen recorded Mr Greenwood telling him about concerning events in Vietnam in which Mr Greenwood had been involved. Dr Dinnen had recorded in his report that Mr Greenwood told him reminders of service in Vietnam would affect him, such as: little Asian kids would get to me because they reminded him of the war. We did not think that sat well with Mr Greenwood’s extensive programs of travel to Vietnam and other Asian countries.
When asked as to how he reconciled the diagnosis of PTSD with the travel, Dr Dinnen said that he had extensive experience with Vietnam veterans, who suppressed their problems, and were in denial and avoidance.
Dr Dinnen emphasised Mr Greenwood had struggled with alcohol for years, and that his marriage had broken down as a result. He opined that although Mr Greenwood had not been seeing a psychiatrist at the time he ceased work, the advice he would have received if he had, would have been to cease on medical grounds. He also noted that Mr Greenwood has been in psychiatric care for the past ten years, and opined that he is permanently unfit for work.
Dr T Rosenthal, occupational physician whose report was before the Tribunal as Exhibit A2, provided a report dated 9 August 2012. He was unavailable to give oral evidence. Dr Rosenthal commented on Mr Greenwood’s various conditions, and opined that he had minor back injuries dating back to 1999 and did have a laminectomy… Dr Rosenthal noted that Mr Greenwood had 5 – 6 epidural injections, and that the back injury was a workers’ compensation injury. He noted that Mr Greenwood had returned to work on normal duties with restrictions on lifting, adding:
He did not believe he was restricted at the time he was made redundant, but did have a payout for permanent impairment. He gets an occasional twinge in his back now, but no treatment. He did have some sciatica about 4 years ago.
As to Mr Greenwood’s reasons for leaving work; Dr Rosenthal wrote that he:
… believed that he [Mr Greenwood] stopped work essentially because of his mental state at the time in 2002 and because a redundancy was offered … he stated he was clashing with supervisors and was getting fed up with many decisions being made at work.
Dr Rosenthal was asked to outline the usual types of employment the veteran had undertaken, and whether he was capable of being able to continue in that type of employment. He replied that:
The last job was more administrative and supervisory, although there was still a lot of walking involved and some climbing of ladders. He was unable to continue in that type of employment because of his medical conditions which are affecting his standing, walking and upper and lower limb function.
A further question was whether Dr Rosenthal agreed that Mr Greenwood’s chronic back pain was a major condition contributing to his incapacity for work at the time of ceasing employment. Dr Rosenthal replied that based on the reports of Drs Lloyd and Parameswaran, there was some impact by Mr Greenwood’s back on his work such that he required restrictions on lifting and the avoidance of ladder work. Dr Rosenthal also noted that Mr Greenwood had a permanent impairment rating assigned for his back.
As to whether Mr Greenwood was precluded by his accepted disabilities alone from working more than eight hours or 20 hours; Dr Rosenthal replied as follows:
The problems in his feet and his peripheral vascular disease are making it difficult for him to walk. The hip arthritis and the knee arthritis doesn’t appear to be having any major impact on him, and it appears, based on the information that his posttraumatic stress disorder has a significant impact on his ability to work. Taking all this into account he is precluded from working more than 8 hours a week due to his accepted disabilities alone.
Notwithstanding this reply, Dr Rosenthal, when asked what effect Mr Greenwood’s PTSD had on his work capacity at the time of the redundancy in 2002, replied that it was a question not for him, but a psychiatrist.
Dr R Chase, occupational physician, produced a report dated 23 August 2012, and gave oral evidence before us. As to functional loss due to his PTSD, Dr Chase noted that:
Mr Greenwood reports that there was substantial difficulties at work though this is not actually supported by any of the documents from Sydney Water. Most of the issues appear to be related to his feet and back.
Dr Chase stated that if Mr Greenwood had been suffering PTSD, it could have impacted on his work, but he said that the evidence, including that of the rehabilitation providers, did not point to that, but rather that it was a straightforward claim for his back.
One of the questions asked of Dr Chase which he answered in his written report was whether if Mr Greenwood was not able to work, or could only work in a limited part-time capacity, that was due to his accepted disabilities. Dr Chase replied that he believed it was due to a combination of his accepted and other disabilities. He also stated:
In particular I note the long history of low back pain that culminated in spinal surgery [in 1999]. He made a good recovery from that spinal surgery but despite his statement to the contrary it is evident from the supplied documentation that he has had increasing problems with his back … and has imaging which shows very significant degenerative changes in his low back.
Dr Chase also reported that Mr Greenwood was describing good day to day function manifest by his activities with various organisations and his regular attendance at exercise, and golf. He added that if Mr Greenwood could undertake those, he would be capable of working in some capacity, more than eight but less than 20 hours a week. Dr Chase noted that Mr Greenwood had had epidural injections for his back pain, and had limitations on walking, standing and carrying weights. He opined however, that Mr Greenwood would be able to do tasks that involved administration, or supervisory activities. He noted that in the period 1990 – 1994 Mr Greenwood had been supervising some 50 persons.
Dr Chase admitted he did not ask Mr Greenwood about his overseas travel, adding that in his experience, people with significant health issues would find travel difficult. That would include someone with a back problem, as they would have to sit for many hours in a plane, but could obtain assistance with transporting luggage. When asked how persons with anxiety fared with travel, Dr Chase opined that holidays taken alone if suffering an anxiety condition would be difficult, and that accordingly, a person travelling a lot would have to have a reasonable level of functioning.
Dr Chase commented both in his written and oral evidence on the documentation from Sydney Water stating that there was mention of Mr Greenwood’s back condition, and his feet. He added:
What is perhaps notable in the context of this report, is that there is no reference to any psychological, psychiatric or psychosocial factors in Mr Greenwood’s various presentations and rehabilitation.
Dr J Roberts, psychiatrist, provided a written report dated 25 September 2012 and gave oral evidence. Commenting on the diagnosis of PTSD which Dr Reinhardt made, Dr Roberts opined that the activities Mr Greenwood attends such as: the RSL Day Club; volunteering at the Vietnam Veterans; and, travelling to Vietnam, were inconsistent with indicia of PTSD which indicate avoidance of such stimuli. He also said that Mr Greenwood’s lengthy trips to Asia were not consistent with anyone suffering significant incapacity.
Dr Roberts noted that in response to his questions to Mr Greenwood regarding attendance upon psychiatrists, psychologists or other medical personnel concerned with mental health, Mr Greenwood told him he had attended upon his general practitioner in the 1970s for a mid-life crisis – breakdown, and consulted Dr Reinhardt in 2002. Dr Roberts reported Mr Greenwood telling him that he has been under psychiatric care since that time.
Dr Roberts also noted that Mr Greenwood had a history of workers’ compensation claims for his back. When asked whether Mr Greenwood’s problems at work 10 – 12 years ago may have been as a result of the then undiagnosed PTSD, Dr Roberts stated that had it been so, symptoms would have been evident at that time. Dr Roberts does not (as certain other psychiatrists do) subscribe to the theory that PTSD may have a late onset, that is years after the stressor which causes it.
We noted that Dr Roberts also asked Mr Greenwood about his medication, and commented that although both he and Dr Dinnen took a history of heavy drinking from the Applicant, Mr Greenwood’s liver function tests did not suggest substantial alcohol consumption.
As to the breakdown in his marriage; Dr Roberts recorded Mr Greenwood telling him that the breakdown occurred because he had an involvement with another woman. Mr Greenwood’s evidence was that it was because of his drinking problems.
Dr Roberts noted that PTSD had been accepted as war-caused, but said that he was, as a result of his examination and interview, unable to confirm the presence of PTSD. He added that in his experience, PTSD does nor render a person incapable of working. Dr Roberts added that, as he could find no evidence of a psychiatric condition, the impact of a psychiatric condition on the Applicant’s ability to work did not arise for him.
Dr D Chandler, who has been Mr Greenwood’s general practitioner since 2000, wrote a letter to the Respondent on 21 September 2011 in which he referred to his earlier correspondence in 2004. Dr Chandler stated that in 2004, he had indicated as follows: Mr Allen Greenwood had to leave work because of several illnesses including a painful back condition. He then referred to the 1999 surgery Mr Greenwood had for his back, and stated that following the surgery, there had been:
… little trouble with his back and currently [September 2011], his back would not stop him from resuming work. He is in fact now unfit for work because of the major disability which is posttraumatic stress disorder.
The Tribunal’s conclusions regarding section 24(1)(b) of the Act
Based on the evidence referred to above, our conclusion in relation to section 24(1)(b) of the Act, is that on the balance of probabilities, Mr Greenwood’s back (which is not an accepted disability) was giving him substantial trouble during his time at Sydney Water. We find that Mr Greenwood’s back was at least one of the major reasons he sought, and was granted, a redundancy. That redundancy was granted on the same day as the finalisation of his workers’ compensation claim for his back. In coming to a decision we took into account the assessment period.
We based our conclusions on the following:
·Dr Chandler’s report of 2 September 2002, which forms part of the bundle of documents marked Exhibit R7, (and was submitted to Centrelink in regard to Mr Greenwood’s application for Disability Support Pension), and gives a diagnosis of back pain. The clinical features were said to be: has continuing back and buttocks pain despite surgery… with the date of onset being 1985. The claim was lodged shortly after Mr Greenwood’s redundancy in August 2002, and before the claim for Special Rate pension on 16 September 2010.
·In response to question 17, being: How well can the person lift, carry and move objects? Dr Chandler ticked the box which indicated: unable to lift, carry and move objects. Further on in Exhibit R7, in regard to a question regarding whether Mr Greenwood had (at 19 September 2002), a thoraco-lumbar spine condition, Dr Chandler answered yes, and wrote:
musculoligamentous strain – spinal stenosis. He also wrote: for > 20 years 4 injuries at work. Back strain. Last injury ’98. Acute back pain in a meeting …. CT – spinal canal stenosis. Operation ’99. Decompression and laminectomy … Had epidural injections to back for pain control. Aggravating back pain after physical work …
·In a letter of September 2011, Dr Chandler referred to his 2004 statement regarding Mr Greenwood, which was temporally proximate to Mr Greenwood’s redundancy, and where he stated that Mr Greenwood had to leave work because of several illnesses including a painful back condition. In 2011, Dr Chandler referred to the 1999 surgery Mr Greenwood had for his back, and stated that following that, there had been:
… little trouble with his back and currently [September 2011], his back would not stop him from resuming work. He is in fact now unfit for work because of the major disability which is posttraumatic stress disorder.
As Dr Chandler has been Mr Greenwood’s general practitioner since 2000, we prefer the 2004 opinion as it is more temporally proximate to the redundancy in 2002.
·Dr Reinhardt opined that due to his PTSD, Mr Greenwood could not work more than eight hours a week, and was not suitable for retraining. She opined that the symptoms and signs he demonstrated had been present for many years, and had caused him significant distress and impairment in social, recreational and occupational functioning. She diagnosed PTSD, now an accepted disability, following a request from Dr Chandler dated 5 December 2002 in which he stated:
Mr Greenwood is a Vietnam veteran & is putting in a pension claim. He needs to have PTSD diagnosis for the claim …
·Dr Dinnen who saw Mr Greenwood for medico-legal purposes and once only, in 2012, speculated that Mr Greenwood’s PTSD had caused him to struggle for approximately three years before the diagnosis was made by Dr Reinhardt (December 2002). Dr Dinnen opined that although Mr Greenwood had not been seeing a psychiatrist at the time he ceased work, the advice he would have received if he had, would have been to cease on medical grounds, speculation to which we attribute little weight. He indicated that the low level position in which Mr Greenwood was working before the redundancy was assigned to him due to his irritability and conflict with his colleagues over a period of years, which was a manifestation of the PTSD. Dr Dinnen noted that Mr Greenwood has been in psychiatric care for the past ten years, and opined that he is permanently unfit for work.
·Dr Rosenthal wrote that he:
believed that he [Mr Greenwood] stopped work essentially because of his mental state at the time in 2002 and because a redundancy was offered … he stated he was clashing with supervisors and was getting fed up with many decisions being made at work … The last job was more administrative and supervisory, although there was still a lot of walking involved and some climbing of ladders. He was unable to continue in that type of employment because of his medical conditions which are affecting his standing, walking and upper and lower limb function.
·As to whether Mr Greenwood was precluded by his accepted disabilities alone from working more than eight hours or 20 hours; Dr Rosenthal replied as follows:
The problems in his feet and his peripheral vascular disease are making it difficult for him to walk. The hip arthritis and the knee arthritis doesn’t appear to be having any major impact on him, and it appears, based on the information that his posttraumatic stress disorder has a significant impact on his ability to work. Taking all this into account he is precluded from working more than 8 hours a week due to his accepted disabilities alone.
Notwithstanding this reply, Dr Rosenthal, when asked what effect Mr Greenwood’s PTSD had on his work capacity at the time of the redundancy in 2002, replied that it was a question not for him, but a psychiatrist.
·Dr Chase noted as to functional loss due to Mr Greenwood’s PTSD:
Mr Greenwood reports that there was substantial difficulties at work though this is not actually supported by any of the documents from Sydney Water. Most of the issues appear to be related to his feet and back.
Dr Chase stated that if Mr Greenwood had been suffering PTSD, it could have impacted on his work, but he said that the evidence, including that of the rehabilitation providers, did not point to that, but rather that it was a claim for his back.
·Dr Chase opined that any limitation of full or part-time work was due to a combination of Mr Greenwood’s accepted and other disabilities. He also stated:
In particular I note the long history of low back pain that culminated in spinal surgery [in 1999]. He made a good recovery from that spinal surgery but despite his statement to the contrary it is evident from the supplied documentation that he has had increasing problems with his back … he has imaging which shows very significant degenerative changes in his low back.
He opined that Mr Greenwood would be able to do tasks that involved administration, or supervisory activities as he had previously done.
·Dr Chase commented both in his written and oral evidence on the documentation from Sydney Water stating that there was mention of Mr Greenwood’s back condition, and his feet. He added:
What is perhaps notable in the context of this report, is that there is no reference to any psychological, psychiatric or psychosocial factors in Mr Greenwood’s various presentations and rehabilitation.
·Dr Roberts said that Mr Greenwood’s lengthy trips to Asia were not consistent with anyone suffering significant incapacity, noting that Mr Greenwood who has had psychiatric care for the past ten years, had not consulted a psychiatrist before (December) 2002. Dr Roberts also noted that Mr Greenwood had a history of worker’s compensation claims for his back. As to the breakdown of his marriage; Dr Roberts recorded Mr Greenwood telling him that the breakdown occurred because he had an involvement with another woman. Dr Roberts noted that PTSD had been accepted as war-caused, but said that he was, as a result of his examination and interview, unable to confirm the presence of PTSD. In addition, he added that in his experience, PTSD does not render a person incapable of working.
·Dr W Ma, Medical Adviser of Health Services Australia, wrote a letter dated 19 September 2002, in which he reported on examining Mr Greenwood in relation to the claim for Disability Support Pension. Dr Ma reported:
… he left work in August 2002 because of redundancy. He reported that he had injured his back at work 4 times in the past and he had received the compensation settlement last month. He reported that he was still able to cope with his work despite his back condition and he would continue working if he was not offered the redundancy. He reports that he has had chronic back pain for over 20 years. In 1998 he was found to have spinal canal stenosis at the lumbar region of the spine with symptoms of sciatica. … Medically he is fit for light sedentary work on a full time basis.
Dr Ma noted that Drs Giblin, Hughes and Wallace, all orthopaedic surgeons, and Dr Pell, who conducted the surgery on Mr Greenwood agreed that he was fit for light sedentary work. A report of Dr L Pierides, a specialist in occupational medicine, dated 22 December 1998 also referred to work related spinal canal stenosis.
A further form informing of medical details, (part of Exhibit R7), and dated 29 August 2002, indicated Mr Greenwood’s diagnosis to be chronic back pain as well as other conditions. Mr Greenwood filled in the part of his form which asked:
Is there any other information you feel we need to know about your disabilities, illnesses of injuries?
By stating:
I have had back injuries for over twenty years - was forced to be operated on in 1999 (spinal canal stenosed) - my painful feet have been for over 15 years …
In deciding whether Mr Greenwood is totally and permanently incapacitated and is prevented from continuing to participate in remunerative work due to his accepted conditions alone, we must take into account Mr Greenwood’s evidence and that of the doctors whose opinions we have noted above. It is not an exercise of simply aggregating who was for, or who was against Mr Greenwood.
Mr Greenwood’s main arguments for leaving work are canvassed in the paragraphs above. Mr Greenwood told us that it was because he had become argumentative, and was not able to get on with people because of the PTSD, which he did not know he had until after he had left Sydney Water in August 2002 and was diagnosed by Dr Reinhardt in December of that year. However, the evidence before us indicates that Mr Greenwood’s work at the time he first sought a redundancy in 1999, (which he was granted in 2002), took account of his physical limitations being his back, (not an accepted disability) and his feet, because that was what was concerning Mr Greenwood most at the time.
As noted above, the documents before the Tribunal indicate that Mr Greenwood’s notifications to his employer were mainly about his back which he said had been giving him trouble for more than 20 years. In line with Dr Chase’s findings we have noted that the documents before the Tribunal which have been commented upon in the paragraphs above, do not refer to any psychiatric or psychological problems, and are mainly concerned with Mr Greenwood’s back for which he also sought workers’ compensation.
Drs Reinhardt and Dinnen opined that Mr Greenwood could not work for more than eight hours per week. We are mindful that the request from Dr Chandler was to Dr Reinhardt requesting a diagnosis of PTSD. We are mindful also that in 2002 Dr Reinhardt recommended Mr Greenwood do an introductory course at St John of God, which he eventually undertook in 2009.
We are also mindful of Dr Dinnen’s speculation to which we give little weight, that if Mr Greenwood had been diagnosed with PTSD earlier, he would have been advised to leave work.
Dr Rosenthal said he was satisfied that Mr Greenwood is precluded from working more than eight hours a week due to his accepted disabilities alone, but then when asked what effect Mr Greenwood’s PTSD had on his work capacity at the time of the redundancy in 2002, the doctor replied that it was a question not for him, but a psychiatrist. His answers are therefore somewhat equivocal. Dr Chandler’s evidence is similarly equivocal, because in 2004 he wrote that Mr Greenwood had to leave work because of several illnesses including a painful back condition. Then in 2011, Dr Chandler modified that opinion to note that Mr Greenwood’s back would not stop him from resuming work, and that he was unfit for work because of the major disability, being PTSD.
We are satisfied on the basis of Mr Greenwood’s evidence and the opinions of Drs Chandler, Chase, Roberts and Rosenthal (which we prefer) that he was not totally and permanently incapacitated for work in employment for which he is suited, from war-caused injury or disease or both alone. Further, we are satisfied that those injuries or diseases are such that they alone do not render Mr Greenwood incapable of undertaking remunerative work for periods aggregating more than eight hours per week. We are mindful that Dr Roberts told us he could not diagnose PTSD, and are mindful also that PTSD is an accepted disability. We note further Dr Roberts’ opinion that a lot of the people he sees with PTSD are able to work, and do so.
We are satisfied that Mr Greenwood ceased work because he wanted a redundancy, and was granted one. His work restrictions at the time were physical, and his back, notwithstanding surgery in 1999, followed by epidural injections, had been causing problems for over 20 years. There was no mention in the Sydney Water documents of psychiatric or psychological problems.
We note by way of completeness that Mr Greenwood has engaged in many activities including: exercise classes; golf; acting as coordinator for the Club for five years; and, extensive travel. They are all indicators of a person who is not greatly disabled by PTSD.
We are therefore satisfied that Mr Greenwood was undertaking administrative work which took into account his physical limitations at the time of his redundancy, and would be able to work more than eight hours a week. We are satisfied that Mr Greenwood was not totally and permanently incapacitated and not prevented from continuing to participate in remunerative work for which he is suited due to his accepted conditions alone in the assessment period.
Section 24(1)(c) of the Act
A consideration of section 24(1)(c) of the Act entails deciding whether Mr Greenwood is, by reason of incapacity from his war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that he was undertaking, and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that he would not be suffering if he were free of that incapacity.
In considering this third test, the Full Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1 said that the following questions should be asked:
1. What was the ‘relevant remunerative work that the veteran was undertaking’ within the meaning of s 24(1)(c) of the Act?”
2. Is the veteran, ‘by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?’
3. If the answer to question 2 is yes, is ‘the war-caused injury or war-caused disease, or both, the only factor or factors preventing [the veteran] from continuing to undertake that work?’
4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran, ‘by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?’
Consideration must also be given to section 24(2)(a) and section 24(2)(b) of the Act. If the answers to any of questions 2, 3 or 4 is no, the special rate of pension is not payable.
We have already decided above that Mr Greenwood is not, by reason of incapacity from his war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that he was undertaking, which was administrative. However for the sake of completeness, we consider the Flentjar questions in relation to section 24(1)(c).
As to the relevant remunerative work, we are mindful that pursuant to the Act, that means any remunerative activity.
In Repatriation Commission v Hendy [2002] FCAFC 424, the Full Court said that the task of the Tribunal was:
… to assess what the veteran probably would have done, if he had none of his service disabilities during the assessment period. The requirement to consider ‘remunerative work that the veteran was undertaking’ does not mean a particular job with a particular employer but the substantive remunerative work that the veteran had undertaken in the past. … The Tribunal was not bound to limit its consideration to the last employment that the veteran actually undertook.
The Court in Chambers v Repatriation Commission (1995) 129 ALR 219, stated that:
A person’s skills are not confined to those acquired in formal training or by virtue of experience in particular employment. They include innate aptitude for tasks and abilities acquired or developed independently of employment or training.
….
The word is not confined to qualifications obtained as the result of formal training or work experience. Again, a person’s experience is not necessarily restricted to that acquired in employment or formal training.
The Applicant also referred us to Repatriation v Connell [2011] FCAFC 116 in which the Full Court held at [28] that:
… in the context of the beneficial nature of the Act … ‘remunerative work’ should not receive a restrictive interpretation. There is no valid reason to confine the expression to work of a particular type. ‘Remunerative work that the veteran was undertaking’ should not be confined to the actual type of work involved but should also be referable to its nature and quality. A person who works as a painter on a full time basis but who, due to incapacity , can now only do that work on an intermittent or part-time basis is not continuing to perform the same remunerative work. The restricted nature of the work gives it an entirely different character. …
The submission of the Applicant in regard to Connell was that Mr Greenwood, notwithstanding his favourable performance assessments, was, due to his (yet to be diagnosed PTSD and resultant argumentative behaviour), transferred from a management position to a basic lowly job. That was where he ended up in the Blue Mountains in his last job before redundancy. The submission on behalf of Mr Greenwood with which we do not agree, was that the work he was doing was, because of the demotions not his usual remunerative work.
Dr Rosenthal was asked to outline the usual types of employment the veteran has undertaken, and whether he was capable of being able to continue in that type of employment. He replied that:
The last job was more administrative and supervisory, although there was still a lot of walking involved and some climbing of ladders. He was unable to continue in that type of employment because of his medical conditions which are affecting his standing, walking and upper and lower limb function.
We have noted above the employment for which Mr Greenwood is suited, which is the work he was doing immediately prior to his redundancy in 2002, and was administrative rather than physical. Following his back surgery in 1999, for that non-accepted disability, he worked with restrictions on lifting, climbing and other physical activity. We are satisfied that the restrictions on Mr Greenwood’s work were due to a combination of accepted (his feet and legs) and non-accepted disabilities (his back), and hence not due to accepted disabilities alone.
We are satisfied from Mr Greenwood’s evidence that he would have worked to age 65, and the opinions of the medical practitioners discussed above, that even with the diagnosis of PTSD with which Mr Greenwood has been attributed since leaving Sydney Water, he would be able to do the administrative tasks in the last job he was doing at Sydney Water.
We are satisfied that Mr Greenwood is, not by reason of incapacity from his war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that he was undertaking. Accordingly we do not need to consider whether he has suffered a loss of earnings (Flentjar, question 4).
However, if that were necessary, we refer also to sections 24(2)(a) and (b) of the Act. As Mr Greenwood left work before the age of 65, he could be entitled to the ameliorating provisions provided in section 24(2)(b) of the Act. That would apply if he had genuinely sought remunerative work, and was substantially prevented from obtaining employment due to his accepted conditions alone. In that regard Mr Greenwood told us he had been looking for work after leaving Sydney Water, but that once he told a prospective employer of his war-caused disabilities, he was not offered any positions. He provided little evidence associated with his efforts, i.e. no dates or correspondence. He also said that Dr Reinhardt advised him to cease looking for work in 2004, after he was diagnosed with PTSD.
We were mindful of the Full Court in Leane v Repatriation Commission [2004] FCAFC 83 which held that in order to qualify, the Applicant must have been sincerely or genuinely seeking remunerative work. We consider Mr Greenwood’s disclosures of his disabilities may have indicated his limitations to potential employers, and cast doubt on how genuine his applications were. We do not have sufficient evidence of Mr Greenwood genuinely seeking employment to be satisfied that he did so within the terms of the legislation.
We are satisfied from the evidence noted in the paragraphs above that Mr Greenwood ceased to engage in remunerative work for reasons other than incapacity from war-caused injury or disease alone. He does not satisfy the tests in section 24(1)(c) of the Act.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 84 (eighty four) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member and Dr M Couch, Member.
......[sgd].............................................................
Associate
Dated 17 May 2013
Dates of hearing 11 & 12 March 2013 Advocate for the Applicant Mr G Isolani Solicitors for the Applicant KCI Lawyers Advocate for the Respondent Mr T O'Reilly Solicitors for the Respondent Department of Veteran's Affairs Advocacy Section
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