Barry Tanzer and Repatriation Commission
[2012] AATA 420
•6 July 2012
[2012] AATA 420
Division VETERANS' APPEALS DIVISION File Number
2011/1779
Re
Barry Tanzer
APPLICANT
And
Repatriation Commission
RESPONDENT
Decision
Tribunal Deputy President P E Hack SC
Date 6 July 2012 Place Brisbane (heard in Townsville) The decision under review is affirmed.
............................[Sgd]................................
Deputy President P E Hack SC
Catchwords
VETERANS’ AFFAIRS – veterans’ entitlement – application for pension at special rate – post traumatic stress disorder - condition attributable to service – unable to undertake remunerative work – accepted condition alone did not prevent continuation of remunerative work - decision affirmed.
Legislation
Veterans’ Entitlement Act 1986 (Cth) s 24
Cases
Flentjar v Repatriation Commission (1997) 48 ALD 1
REASONS FOR DECISION
Deputy President P E Hack SC
6 July 2012
Introduction
The applicant, Mr Barry Tanzer, has been diagnosed with post-traumatic stress disorder. The respondent, the Repatriation Commission, accepts that that condition is attributable to Mr Tanzer's service in the Royal Australian Air Force. In these proceedings, Mr Tanzer seeks a review of the decision by the Commission that Mr Tanzer is not entitled to be paid a pension at the "special rate", that is the rate prescribed in section 24 of the Veterans’ Entitlement Act 1986 (Cth) (the VEA).
To qualify for a pension at the special rate an applicant must satisfy each of the paragraphs in s 24 of the VEA. Here, the Commission accepts that Mr Tanzer satisfies each of those paragraphs save and except paragraph (c). The Commission accepts that Mr Tanzer has a war-caused disease, namely post-traumatic stress disorder, and that that disease has rendered him totally and permanently incapacitated, that is his incapacity from that condition is of such a nature as to render him in capable of undertaking remunerative work for periods aggregating more than eight hours per week. Paragraph (c) is in these terms,
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;
Background
I do not understand what follows to be in dispute. Mr Tanzer was born in September 1944. He served in the Royal Australian Air Force between 1961 and 1967, performing essentially clerical roles. Following his discharge he commenced employment with the Department of Primary Industries as a stock inspector. He remained employed in that Department for some 32 years. He rose through the ranks in his employment and was the acting manager of his section in Rockhampton in 1995 and then, in 1998, was made the regional manager at Longreach. Additionally, he undertook undergraduate and subsequently postgraduate studies and obtained a Master of Business Administration in 1996. As he was promoted, he found his employment less satisfying because he was involved in more and more administration.
Mr Tanzer also found that he was afflicted by a skin disorder which he attributes to post-traumatic stress disorder. I should say immediately that there is no evidence, beyond Mr Tanzer's opinion, to support that proposition. He found that his skin became inflamed when he was working inland but that it subsided when he was working in coastal areas. He applied for a transfer to a coastal position but was not able to obtain one. In mid-2002 Mr Tanzer's employment with the Department of Primary Industries ceased. In a document prepared by Mr Tanzer in July 2004 he described the reason for having ceased work with the Department as "medical reasons – recurring rash on arms and shoulders – suspect due to stress".
Thereafter Mr Tanzer was briefly employed in the human resources field at an educational institution in September 2003 but left that employment when he found that he was unable to cope. Shortly after leaving that employment he was employed on a short-term contract for a mining company for a period of six weeks ending in late 2003. Mr Tanzer has not worked since that time.
In early 2004 Mr Tanzer was referred by his general practitioner to Dr Michael Likely, a consultant psychiatrist. He has been treated by Dr Likely ever since. Following an initial consultation in February 2004 Dr Likely diagnosed Mr Tanzer as suffering from chronic and severe major depressive disorder complicated by alcohol abuse. It is a feature of this case that that remained the diagnosis of Dr Likely until at least May 2008.
On 31 May 2004, and on the basis of Dr Likely’s then diagnosis, Mr Tanzer made a claim for a disability pension for the conditions of depressive disorder and alcohol abuse. The Commission rejected that claim and its decision was ultimately affirmed by the Tribunal on 20 February 2008[1]. It may be noted that the decision to reject the claim was based upon the absence of clinical onset of the conditions within the timeframe required for such claims.
[1] See Re Tanzer & Repatriation Commission [2008] AATA 133.
It is obvious, and Mr Tanzer accepts, that he has read widely about the causes of post-traumatic stress disorder. By May 2008 he was raising with Dr Likely the prospect that he was in fact suffering from post-traumatic stress disorder. In September 2008 Mr Tanzer was seen by another consultant psychiatrist, Dr John Rogers, for a second opinion. Dr Rogers diagnosed Mr Tanzer as suffering from post-traumatic stress disorder and major depressive episode, chronic with melancholic features.
Mr Tanzer first claimed for post-traumatic stress disorder in 2008. The Commission refused that claim in June 2009 however the Commission's decision was set aside by the Veterans’ Review Board on 7 December 2009 and a decision substituted that post-traumatic stress disorder was war-caused, with effect from 20 November 2008. Subsequently, in the decision made on 29 March 2010, the commission determined that Mr Tanzer was entitled to a disability pension at 70% of the General Rate, but did not satisfy the qualifications for pension at the Special Rate. That decision was affirmed by the Veterans Review Board on 23 February 2011. It is that part of the decision that decided that Mr Tanzer did not qualify for special rate pension which is the subject matter of these proceedings.
Consideration
The present controversy falls to be determined by reference to what are known as the Flentjar[2] questions. In that case the Full Court held that the questions that arise under section 24 (1) (c) of the VEA are,
(1)What was the relevant "remunerative work of the veteran was undertaking" within the meaning of s 24(1)(c) of the Act?
(2)Is the veteran, by reason of his service related incapacity, prevented from continuing to undertake that work?
(3)If the answer to question two is yes, is that incapacity the only factor that is preventing the veteran from continuing to undertake that work?
(4)If the answers to questions two and three are, in each case, yes, is the veteran 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?
[2] See Flentjar v Repatriation Commission (1997) 48 ALD 1, at 4-5.
The parties are agreed as to the range of remunerative work that needs to be considered. It is as a stock inspector, a manager, a human resources consultant, and a lecturer/ tutor/ marker or demonstrator in an academic field. And Mr Stoner, who appeared for the Commission, agreed that the second question should be answered favourably to Mr Tanzer. The contest then revolves around the answers to the third and fourth questions.
To consider whether Mr Tanzer's post-traumatic stress disorder is the only factor that is preventing him from continuing to undertake the remunerative work that has been identified it is necessary to go back and consider the medical evidence over the years.
As I have said, Dr Likely first saw Mr Tanzer in February 2004. His report of 25 February 2004 concludes as follows,
Mr Tanzer has been suffering from chronic and severe major depressive disorder complicated by alcohol abuse. His major depressive disorder appears to have arisen in the aftermath of his service in Thailand and has plagued him ever since.
He reached a similar view in his report dated 7 June 2004.
In February 2006 Dr Likely was still of the view that Mr Tanzer suffered from major depressive disorder. In his report of 6 February 2006 he expressed the "unequivocal opinion that by virtue of his major depressive disorder alone, Mr Tanzer should be recognised as being totally and permanently incapacitated from undertaking any type of remunerative employment." Dr Likely prepared a lengthy report of 4 October 2006, directed to the solicitors who then acted for Mr Tanzer in the earlier proceedings in the Tribunal. In that report he expressed the opinion that Mr Tanzer suffered from major depressive disorder and alcohol abuse (in remission). His report made explicit reference to "flashbacks" that Mr Tanzer had reported suffering from but he concluded that these did not constitute this associative flashbacks as such and that no further diagnostic conclusions could be drawn from his experience as a flashback; rather, he concluded, they represented a feature of his ongoing depressive illness.
In a subsequent report to those solicitors of 29 March 2007 Dr Likely noted that Mr Tanzer's major depressive disorder had constantly fulfilled all of the diagnostic criteria for a major depressive episode but he would amend his diagnosis to conclude that Mr Tanzer had been suffering from recurrent major depressive disorder.
The first written expression of Dr Likely’s opinion that Mr Tanzer suffers from post-traumatic stress disorder came in his report of 3 December 2008. The closest the report comes to explaining the change of diagnosis is in this passage,
It has become clear that in addition to his symptoms of depression, Mr Tanzer has been experiencing significant symptoms of anxiety. These coexist with his symptoms of depression and have previously been masked, in my opinion, by the severity of his depressive disorder. Nonetheless, Mr Tanzer has described to me over the last 18 months or so, as his depressive disorder has improved somewhat, significant symptoms of long-standing anxiety including re-experiencing phenomena regarding the traumata outlined in the attached report.
Dr Likely concluded,
In addition to the above symptoms, Mr Tanzer described chronic symptoms of difficulty sleeping, irritability, a proneness to angry outburst, and poor concentration all of which can mimic symptoms of major depression. However, as his depressive disorder has lifted somewhat, these symptoms have remained chronic, severe, and deeply entrenched leading me to believe that at all stages of my treatment of him, to Mr Tanzer's primary condition is post-traumatic stress disorder. It is my opinion therefore that Mr Tanzer suffers from post-traumatic stress disorder as a result of his service.
Dr Likely provided a further report to the Commission of 12 May 2009 in which he confirmed the diagnosis of post-traumatic stress disorder, major depressive disorder, and alcohol abuse (in remission). For the purposes of these proceedings Dr Likely provided to Mr Tanzer a further report of 1 March 2012 in which he noted that Mr Tanzer's major depressive disorder was now in remission. When asked to comment on the relative contributions of the various conditions to Mr Tanzer's capacity to undertake remunerative work he said,
I believe that Mr Tanzer's post-traumatic stress disorder alone is in and of itself severe enough to render him totally and permanently incapacitated from undertaking any form of remunerative employment. Even with remission of his major depressive disorder and alcohol abuse residual symptoms of post-traumatic stress disorder persist which preclude his engaging in any form of work. These include ongoing symptoms of avoidance, emotional numbing, inability to tolerate others and cognitive deficits with poor retention, concentration and short-term memory.
Reference should also be made to Dr Likely’s evidence in the hearing. He accepted that his report of 3 December 2008 does not demonstrate any analysis of the underlying change in his opinion and he accepted as well that he had no clinical notes that recorded the factual matters by which that change in opinion might be analysed. He said of the change of opinion that the clinical picture presented by Mr Tanzer changed over time such that he came to know Mr Tanzer's symptoms better. Whilst he remained of the view that at present Mr Tanzer's depressive disorder is in remission, he accepted that it was not possible to say that that condition and the condition of alcohol abuse did not contribute to Mr Tanzer's departure from the workforce in 2003.
Dr Rogers did not give evidence at the hearing but I have a short report of his dated 22 October 2008 in which he diagnoses conditions of post-traumatic stress disorder and major depressive episode, chronic with melancholic features. Dr Rogers expressed the opinion that the retirement of Mr Tanzer in 2002 "was substantially caused by his conditions as described above, likewise his inability to work subsequently."
The Commission relied upon the evidence of Dr Ricardo Caniato, a consultant psychiatrist, who saw Mr Tanzer in September 2011. Dr Caniato prepared a report dated 5 October 2011. Dr Caniato concluded that Mr Tanzer suffers from major depressive disorder and alcohol dependence with clinical onset in the early 1970’s. He considered that the anxiety symptoms described by Mr Tanzer were more likely to be related to his depression, alcohol use and possibly other stressors rather than to post-traumatic stress disorder. He was unable to make a diagnosis of post-traumatic stress disorder because he took the view that the events considered by Mr Tanzer to be the stressful events were not of sufficient severity to warrant a diagnosis under criterion A in the diagnostic guide and because he saw no evidence of a change in Mr Tanzer’s functioning.
Dr Caniato was of the opinion that Mr Tanzer's non-participation in any remunerative work since 2004 was due to a combination of his depression, alcohol use and increasing age.
It is unnecessary for present purposes to decide whether Dr Caniato or Dr Likely is correct in the question of the diagnosis of post-traumatic stress disorder. That condition has been accepted by the Commission and the Commission did not invite me to conclude that it no longer existed or that it had been wrongly diagnosed.
In considering the question whether Mr Tanzer's accepted condition of post-traumatic stress disorder is the only factor that is preventing him from continuing to undertake remunerative work i.e. whether that condition alone prevented him from continuing to undertake that work, the evidence in the material seems to me to be all the one way. Dr Likely, at the time after Mr Tanzer ceased work, diagnosed him with depressive disorder and continued with that diagnosis for some years afterwards. He considers that the condition still exists albeit that it is now in remission. However he is unable to say that the conditions of major depressive disorder and alcohol abuse did not contribute to Mr Tanzer's inability to work. It is not to the point that Dr Likely considers that the depressive disorder is the result of post-traumatic stress disorder. Post-traumatic stress disorder is, and depressive disorder is not, and accepted condition.
Dr Caniato was of the opinion that depression and alcohol abuse were the conditions that prevented Mr Tanzer from undertaking remunerative work. I have no hesitation in accepting his opinion which was presented logically and convincingly. And, were it necessary to express a view, I regard his conclusions as preferable to those of Dr Likely.
Moreover, it is to be remembered that Mr Tanzer ceased his long-term employment with the Department of Primary Industries for what he himself described as "medical reasons – recurring rash on arms and shoulders – suspect due to stress".
I am then satisfied that depressive disorder, at least, has had a material contribution to Mr Tanzer being unable to undertake the remunerative work throughout the assessment period. Thus I conclude that Mr Tanzer’s accepted condition alone did not prevent him from continuing to undertake remunerative work. On that basis I would affirm the decision under review.
Given that conclusion it is, strictly speaking, unnecessary for me to reach a concluded view on the final question which is whether Mr Tanzer was suffering a loss. I will, however, state my conclusions briefly. At the time of the application Mr Tanzer was one month short of his 65th birthday. He had, at that time, been out of the workforce for over five years. He had left long term employment for reasons unconnected with his accepted condition. In those circumstances I would, had it been necessary for me to do so, have concluded that Mr Tanzer was not suffering a loss of salary or wages that he would not be suffering had he been free of the incapacity of post-traumatic stress disorder.
It follows that the decision under review should be affirmed. I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC ...............................[Sgd]................................
Associate
Dated 6 July 2012
Date of hearing 13 June 2012 Applicant In person Advocate for the Respondent Mr J Stoner, Department of Veterans' Affairs
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