DOUGLAS MEPHAM and REPATRIATION COMMISSION
[2010] AATA 478
•28 June 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 478
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/5080
VETERANS' APPEALS DIVISION ) Re DOUGLAS MEPHAM Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member A K Britton
Dr J D Campbell, MemberDate 28 June 2010
PlaceSydney
Decision The decision under review is affirmed.
..................[SGD]...............................
Senior Member A K Britton
CATCHWORDS
VETERANS’ ENTITLEMENTS – special rate pension – “alone” test – whether veteran was prevented by war-caused injuries, alone, from continuing remunerative work –– evaluation of date pension becomes payable – decision under review affirmed.
Veterans’ Entitlements Act 1986 (Cth), ss 19(5C), 23, 24
ASIC v Rich (2005) 190 FLR 242
Banovich v Repatriation Commission (1986) 69 ALR 395
Flentjar v Repatriation Commission (1997) 48 ALD 1
Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 7) [2003] FCA 893
Leane v Repatriation Commission [2004] FCAFC 83
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Hendy (2002) 76 ALD 47REASONS FOR DECISION
28 June 2010 Senior Member A K Britton
Dr J D Campbell, Member1. Veteran, Mr Douglas Mepham, served in the Royal Australian Air Force for 22 years. He spent just under 12 months on “active service” in Vietnam. He contends that multiple war–caused conditions now render him totally and permanently incapacitated for work, and on that basis he satisfies the requirements for a special rate pension under s 24 of the Veterans’ Entitlements Act 1986 (Cth) (the Act). In respect of pension eligibility, the most significant of these conditions are Post Traumatic Stress Disorder (PTSD) with associated major depression and alcohol dependence.
2. Mr Mepham has applied to the Administrative Appeals Tribunal for review of the decision made by the Veteran’s Review Board (VRB) affirming the decision made by the Repatriation Commission (the Commission) to increase his pension to 100% of the general rate and not to the “special rate”, as claimed.
3. Mr Mepham claims an entitlement to the pension at the special rate, or, in the alternative, the intermediate rate (see ss 24 and 23 of the Act respectively). The Commission opposes Mr Mepham’s claim of entitlement to a special rate pension. It contends he neither ceased work nor was prevented from continuing to work on account of any war-caused condition and therefore does not satisfy the criteria for either the special or the intermediate rate pension.
Criteria for eligibility for pension at the special rate
4. Section 24 of the Act sets out several criteria that must be satisfied before a pension is payable at the “special rate”. It is agreed that all but that specified in ss 24(1)(b) and 24(1)(c) are satisfied. They provide:
(1) This section applies to a veteran if:
...
(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...
5. Section 24(2)(a) provides that for the purposes of the second limb of s 24(1)(c), the so-called “loss test”, a veteran 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; …
6. In Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5 Branson J (with whom Beaumont and Merkel JJ agreed) described the issues raised by s 24(1)(c) as being:
(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?
7. Whether Mr Mepham satisfies the criteria prescribed by s 24 must be assessed in relation to the “assessment period”, which runs from the date on which his claim was received, 10 June 2003, to the date his claim is ultimately determined: s 19(5C) of the Act. If he satisfies all s 24 criteria at any time during that period, he will have an entitlement to the special rate pension from that time, notwithstanding that at some subsequent time he does not satisfy all criteria: Leane v Repatriation Commission [2004] FCAFC 83 at [31].
Background
8. Mr Mepham joined the Royal Australian Air Force in 1964 and resigned in 1986. He spent 12 months in Vietnam on active service. While in the Air Force, he trained and worked as an engineer. On resigning from the Air Force in 1986, he worked as an aircraft planner for a couple of years before going on to work as a handyman.
9. In 1993, Mr Mepham and his wife purchased a 3500 acre property in Inverell with the intention of running cattle and sheep. According to Mr Mepham, the farm was never a success and he increasingly devoted less time to the venture. He testified that in 2002, for a combination of reasons, including lack of motivation and his deteriorating health, his wife took over responsibility for the running of the farm. He claimed that from then on, he did no work on the farm, including in any management role. In the early 2000’s, Mr Mepham’s physical health deteriorated and he experienced back, knee and other problems.
10. In 1996, Mr Mepham took on a job as a school bus driver to supplement the family income. He was employed on a casual basis and filled in when the regular driver was called away on other work. He worked about five hours a day split over a morning and afternoon shift. He estimated that he drove about 120 kilometres each shift, with up to 95 children on the bus.
11. Mr Mepham resigned from that position in September 2004. He testified that he stopped bus driving because he was afraid “someone was going to be bashed or killed”. He described the children as having become increasingly “hard to handle” over the years. On his account, he got to the stage where he had “had enough” and was “fed up” with their “out of control attitudes and disrespect”. The trigger for the resignation was an altercation with the company owner over Mr Mepham’s refusal to allow what he described as a particularly unruly child to travel on the bus. The owner overruled that decision and directed Mr Mepham to accept the child as a passenger. Mr Mepham felt aggrieved as he believed the child’s behaviour to be unacceptable and that decisive action was needed. When the owner refused to support Mr Mepham’s decision, he felt he could not continue to work with the company and resigned. In the course of his employment, no performance issues were raised with Mr Mepham and nor, to his knowledge, were any complaints made about him by either fellow employees or members of the public.
12. In January 2005, Mr Mepham’s application for renewal of his commercial driver’s licence was refused when, on testing, he was found to be unsteady on his feet. A diagnosis of vestibular dysfunction which included symptoms of dizziness, was subsequently made. In these proceedings, Mr Mepham claimed that he had not been experiencing dizziness or been unsteady on his feet prior to his resignation.
13. Mr Mepham claims that he has not worked since resigning from the bus company. On his account, he approached an employment agency in 2005 on the advice of a DVA advocate with a view to finding alternative employment. He was told he was unemployable.
Medical evidence
14. Medical opinion is divided about both the severity of Mr Mepham’s war-caused psychiatric conditions — PTSD with associated major depression and alcohol dependence — and the extent to which, either separately or in combination, they have made him unfit for employment. Psychiatrists, Drs Altman, Wade and Tucker, are of the opinion that because of these conditions he is unfit for any work. The psychiatrist, Dr Roberts, who assessed Mr Mepham last year, is of the opinion that he does not suffer from PTSD, but asserts that if he does, his symptoms are mild and have not impacted on his capacity for employment.
15. Since 2007, Mr Mepham has been under the care of a psychiatrist, Dr Pearce Tucker, whom he continues to see on a regular basis. From the beginning of 2006 until his referral to Dr Tucker, Mr Mepham had also been receiving counselling from psychologist, Ms Jane Clark. He has been taking the anti-depressant, Lovan, 20 mg, since October 2004. The dosage has remained unchanged during this period.
16. To put the medical evidence in context, it is useful to examine in chronological order, the histories taken and the opinion reached by those practitioners who have assessed Mr Mepham and whose reports are before us.
17. In a medical impairment assessment report completed in June 2003 at the request of the Department of Veteran Affairs (the Department), Mr Mepham’s treating doctor, Dr Mark Harding wrote:
That Mr Mepham had not consulted him or any doctor in respect of the claimed conditions of PTSD, Depression and Alcohol Dependence (“the condition”)
That the subjective distress caused by the condition could be described as “loss of socialisation/frustration” and thought that it caused “occasional symptoms causing minor distress”
That the “manifest symptoms” of Mr Mepham’s condition were “nil observed/reported”
That he perceived Mr Mepham’s distress to be “nil, minimal or rare”
That the manifest features of the condition as described by others, was “nil”
That the condition was having no or minimal effect on most aspects of Mr Mepham’s activities of daily living, work and ordinary family life
That the condition has led to a minor reduction in Mr Mepham’s social interaction and minimal or no interference with his work
That the condition had led to some loss of interest in activities previously enjoyed
That no treatment had been sought nor recommended
18. Two months later, Mr Mepham was assessed by psychiatrist, Dr Inglis Synott at the request of the Department. In a report dated 27 August 2003, Dr Synott recorded that over the last five to ten years, Mr Mepham had had restless nights; was becoming more isolated and increasingly angry; was “quick to argue” and “generally tense”. Dr Synott recorded that Mr Mepham told him he came to see him on the recommendation of his father-in-law and had not raised these problems with his doctor — “I have been holding it back all these years not seeing a doctor…I thought I could handle myself”. Dr Synott concluded that a mental state examination showed no evidence of a current disorder; that insufficient information was at hand to make a diagnosis of a specific psychiatric disorder; and that Mr Mepham’s history did not indicate that he drank excessively.
19. In 2004, shortly after his resignation from the bus company, Mr Mepham was assessed by Dr Graham Altman. Dr Altman reached a different conclusion to that reached by Dr Synott. In a report submitted to the Veteran’s Review Board dated 1 November 2004, Dr Altman opined that Mr Mepham was suffering from very severe chronic PTSD with associated Major Depression and Alcohol Dependence. He was also of the opinion that because of these disorders, he was totally and permanently unfit to work. He took a history of Mr Mepham “not coping at work … [being unable to] handle it any more … [being] aggressive to myself and the other people around me”.
20. Dr Altman concluded that Mr Mepham presented with a number of significant depressive symptoms indicative of Major Depression — low mood, sleep disturbance and diurnal variation in mood, diminished energy, low libido, impaired concentration, low confidence and motivation. Dr Altman thought that anti-depressant medication was warranted.
21. In 2005 Mr Mepham was referred by the Commission to psychiatrist, Dr WD Wade, who, like Dr Altman, made a diagnosis of severe PTSD and chronic Major Depression and Alcohol Dependence. He took a similar history to that recorded by Dr Altman of Mr Mepham “boiling inside himself”, of little things upsetting him, of turning to alcohol, and of significant avoidance behavior. He agreed with Dr Altman that Mr Mepham “could not work” for himself or for other people.
22. Dr Wade was of the opinion that the need for more intensive and extensive treatment was “obvious”. When seen by Dr Wade in December 2005, Mr Mepham had been taking anti-depressant medication for just over a year.
23. In an “ability to work” report prepared in August 2006 at the request of the Department, GP Dr Harding wrote that Mr Mepham stopped work as a farmer in 2002. In his opinion, Mr Mepham was prevented from working because of his osteoarthritis, PTSD and vesticulopathy, and was physically and emotionally incapable of work.
24. As noted, Mr Mepham has been seeing Dr Tucker since September 2007. Copies of progress reports prepared by Dr Tucker and addressed to Mr Mepham’s GP were tendered in these proceedings, covering the period September 2007 to January 2009. In addition, Dr Tucker prepared a number for these proceedings and those before the VRB. He also gave oral evidence.
25. According to Dr Tucker, Mr Mepham‘s PTSD is a life-long condition. He thought that it was about the same or perhaps a little worse than when he started treating Mr Mepham. According to Dr Tucker, the only positive note was Mr Mepham’s recent reduction in alcohol intake. He thought Mr Mepham’s problems with stress, sustaining concentration and irritability, combined with the effects of alcohol would have made it extremely difficult for him to sustain work as a bus driver. He had “no doubt” that Mr Mepham was forced to stop work because of his PTSD alone.
26. In cross-examination, Dr Tucker agreed with the proposition that the prescribed dosage of Mr Mepham’s anti-depressant medication — which had remained unchanged for over six years — was relatively low. He explained that medication was just “one part” of Mr Mepham’s treatment and that he was also receiving counselling, leading a “reduced lifestyle” and limiting his alcohol intake. He claimed that Mr Mepham was concerned that “over-sedation” might leave him unable to respond if a problem occurred in the isolated location in which he lived.
27. When questioned about the apparent inconsistency between his opinion that Mr Mepham could not work and his “almost complete work history” from the early 1970’s to 2004, Dr Tucker said it was not uncommon for veterans to have symptoms which did not attain clinical significance for many years but which became more pronounced with advancing age. He explained that PTSD was a chronic illness whose symptoms generally increase with age and this, in his opinion, would explain Mr Mepham’s ability to remain in employment “of sorts” for a number of years.
28. According to Dr Tucker, on speaking with Mrs Mepham on a number of occasions he had gained a clearer clinical picture. He thought she “deserved a medal” for sticking with her husband. Dr Tucker recorded her description of “putting up” with her husband’s disorganisation, irritability, absences and need for solitude.
29. Psychiatrist Dr John Roberts and occupational physician Dr Robyn Chase are the only practitioners who have recently assessed Mr Mepham and concluded that his accepted psychiatric conditions do not render him unfit for work.
30. Dr Chase was of the opinion that Mr Mepham’s incapacity for work was predominately physical and not psychiatric in origin. In his view, Mr Mepham had been functioning at a “good level” up until the early 2000’s and his psychological condition only started to deteriorate when his physical health started to decline. In his opinion, Mr Mepham’s accepted psychiatric conditions did not prevent him working 20 hours a week as a bus driver. When asked how he reconciled that opinion with that given in his report dated 3 August 2009 — in which he provided an assessment under the GARP [Guide to the Assessment of Rates of Veterans' Pensions (GARP), Fifth Edition] — of Mr Mepham being “unable to work or may still be working but with marked loss of time and/or loss of productivity at work”, he explained that the categories under GARP are arbitrary, and he had made a generous assessment to give Mr Mepham the “benefit of the doubt”.
31. Psychiatrist Dr Roberts assessed Mr Mepham on behalf of the Commission and prepared a written report dated 28 July 2009. He also gave oral evidence. He was of the view that Mr Mepham probably did not suffer from PTSD, but if he did it was of the “mildest nature”. He thought Mr Mepham’s description of symptomology — flashbacks “all the time”, a decline in concentration, low self esteem, feelings of worthlessness, being tired, having a “suicidal attitude ” — to be “extreme to the point where it is inconsistent with a diagnosis of PTSD”. Dr Roberts thought Mr Mepham’s presentation at interview to be “entirely unremarkable” and that there was nothing in his mood, affect, thoughts or cognition that showed any sign of abnormality. He thought Mr Mepham’s claim of not having any personal, family or marital problems to be inconsistent with the constellation of physical and psychiatric disabilities he described.
32. According to Dr Roberts, even the most severe form of PTSD does not prevent a person from working. He agreed however that incapacity for employment could be attributable to co-morbid conditions depending, of course, on their nature. Dr Roberts disagreed with the opinion given by Drs Altman and Tucker that the reason Mr Mepham stopped bus driving was because of his PTSD. He pointed out that that conclusion was at odds with that arrived at by Mr Mepham’s GP in June 2003. While Dr Roberts was prepared to concede that some people do not discuss social or personal problems with their doctor, he thought it likely that a GP of long-standing such as Dr Harding would be aware of any significant psychiatric illness or alcohol problems, especially where it impacted on other family members.
33. Dr Roberts also thought that Mr Mepham’s presentation at assessment was not consistent with Major Depression. In his view, Mr Mepham’s mental state at interview was within “normal limits”. He stated that a person with a major depression would display a major depressed affect for example, slowness of thought and movement. He observed no sign of either during interview.
Drinking history
34. Mr Mepham testified that from the time of service in Vietnam until a recent health scare, he drank alcohol “every night”, amounting to up to 12 stubbies of full strength beer daily with reduced consumption in winter. He told Dr Synott in August 2003 that he consumed two cartons of beer a week, up to 12 cans in a sitting but drank nothing at all on some nights. A year later he told Dr Altman that he drank six to ten beers a day and had been doing so since his time in Vietnam.
35. In January 2009, Mr Mepham was advised that the results of liver function testing revealed significant damage. He claims he significantly reduced his alcohol intake after receiving that news.
36. Dr Roberts was of the view that Mr Mepham had overstated his level of alcohol intake. He noted the results of testing in January 2009 revealed liver damage at the top of the normal range. He thought these results were inconsistent with Mr Mepham’s claim of having drank “substantially to excess” over an extended period. Dr Tucker was of the opinion that the test used was unreliable.
Weight to be given to Dr Tucker’s evidence
37. The Commission contends that Dr Tucker’s evidence ought to be given little or no weight because his testimony revealed that he was not an independent witness. In addition, the Commission contends that Dr Tucker’s opinion was based on an incomplete employment history and is therefore unreliable.
38. Independent witness: The Commission argues that the heading to the report prepared by Dr Tucker and addressed to the Department of Veteran Affairs dated 3 March 2009 — “Draft — KCI lawyers [Mr Mepham’s lawyers] (for comment)” — together with his closing comments in the report dated 12 March 2008 — “Hope the claim succeeds” — indicates that he did not give objective evidence. The Commission referred to the Practice Note “Expert Witnesses in Proceedings in the Federal Court of Australia” May 2008 which among other things stated:
All experts need to be aware that if they participate to a significant degree in the process of formulating and preparing the case of a party, they may find it difficult to maintain objectivity.
39. In cross-examination, Dr Tucker explained that the heading in the 3 March 2009 report was intended to elicit comment from Mr Mepham’s solicitors on the form, not the substance, of that report. He said that in the veteran’s jurisdiction, the guidelines about the type of report required had become increasingly complex, and he commonly sought advice on the form of report required from the Department, solicitors and others. In respect of the second report, he did not agree with the proposition that the comment —“Hope the claim succeeds” — indicated that he did not appreciate that his role was not as an advocate for his patient. Instead, he characterised this as an indication of his concern that the matter be resolved as soon as possible, as its prolongation was adding to Mr Mepham’s distress.
40. The starting point in considering expert evidence in proceedings in the Administrative Appeals Tribunal is the rule that "the Tribunal is not bound by the rules of evidence, but may inform itself on any matter in such manner as it thinks appropriate": s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth).
41. While the rules of evidence do not apply, they nonetheless guide the approach to be employed by the Tribunal in dealing with expert evidence. It goes without saying that an expert witness has a duty to provide fair and impartial assistance to the Tribunal, and that their ultimate duty is to the Tribunal, not the party who retained them. It does not follow, as the Commission suggests, that an expert who asks for assistance from a party about the form of a report has “crossed the line” and taken on the role as an advocate for a party. The Federal Court Guideline to which the Commission relies (see [38] above) is not contained in the current Federal Court guidelines (see “Expert Witnesses in Proceedings in the Federal Court of Australia”, 25 September 2009). In any event, the guideline merely expresses a cautionary note that if experts are to participate to a significant degree in the preparation of the case, their objectivity might be compromised. In Australia, there is no bar to lawyers assisting experts in drafting the form of an expert report. Lindgren J in Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 7) [2003] FCA 893 at [19] explicitly endorsed this practice — “not, of course, in relation to the substance of the reports (in particular, in arriving at the opinions to be expressed); but in relation to their form, in order to ensure that the legal tests of admissibility are addressed.”
42. That Dr Tucker provided a draft copy of the first report to Mr Mepham’s solicitors for comment does not necessarily indicate that he participated in the preparation of the case, as the Commission appears to suggest.
43. In respect of the second report, we agree that the comment made by Dr Tucker suggests a degree of therapeutic bias, and raises the possibility that he does not fully appreciate that in the role of expert witness his primary responsibility is to the Tribunal not his patient. However, the fact that an expert is biased or not independent is not a bar to admissibility but may affect the weight given to the expert opinion: ASIC v Rich (2005) 190 FLR 242 at [334]. In determining the weight to be given to Dr Tucker’s evidence we have had regard to his evidence as a whole and among other things, the soundness of the reasoning process upon which his opinion is based.
44. Incomplete history: More troubling in our view is the fact that the opinion given by Dr Tucker about Mr Mepham’s fitness for work around the time of his resignation was apparently based on a number of factual assumptions not supported by the evidence. Dr Tucker failed to set out in any of his reports the factual assumptions employed to reach his opinion regarding Mr Mepham’s capacity for employment. It was apparent from his oral evidence that he had an incomplete understanding of Mr Mepham’s employment history. Most notably, he was unaware of the trigger to the resignation, the hours worked by Mr Mepham, and the length of time he had worked as a bus driver. In our view, these could not be regarded as peripheral matters, and the effect is to diminish the weight that can be given to his opinion about Mr Mepham’s functional capacity throughout the relevant period.
Is section 24(1)(c) satisfied?
45. Critical to Mr Mepham’s case is the contention that he had stopped all farming work before he resigned as a bus driver. While there is some evidence to indicate otherwise, for present purposes we will assume rather than decide that, as claimed, Mr Mepham had stopped working as a farmer before resigning from the bus company in 2004.
46. As properly conceded by Mr Mepham, his physical incapacity for employment was not caused by his war-caused conditions alone, but was also contributed to by — among other things — the L2 crush fracture which he sustained in 2002. Accordingly, to satisfy s 24(1)(c), he must establish that his incapacity was psychiatric and not physical in nature.
47. It is agreed that the earliest date Mr Mepham could qualify for a special rate pension is 29 September 2004 — when he resigned from the bus company — because he suffered no “loss” within the meaning of s 24(1)(c) before that date. It is also agreed that he could not satisfy the provision once he lost his bus driver’s license in January 2005, as it is plain that this was a factor which prevented him from continuing to work. It follows that to succeed in his claim, Mr Mepham must satisfy all criteria for a special rate pension at some time during the period, 29 September 2004 to 15 January 2005. For convenience, we will refer to this as the “relevant period”.
(i) “remunerative work” Mr Mepham was undertaking
48. As a first step in deciding whether s 24(1)(c) is satisfied, it is necessary to identify the “remunerative work” that Mr Mepham was undertaking. This requires us to assess what he “probably would have done if he had had none of his service disabilities”: Repatriation Commission v Smith (1987) 15 FCR 327 at 337 per Beaumont J. The phrase “remunerative work that the veteran was undertaking” in s 24(1)(c) is a reference to the type of work which [Mr Mepham] previously undertook and not to any particular job”: Banovich v Repatriation Commission (1986) 69 ALR 395 at 402; Repatriation Commission v Hendy (2002) 76 ALD 47 at [36]).
49. Mr Mepham contends that for the purpose of s 24(1)(c) the relevant remunerative work was “bus driving”. The Commission contends that this approach is too narrow and that it should include any commercial driving. For present purposes, we will assume, without deciding, that the relevant remunerative work for the purposes of s 24(1)(c) is “bus driving”.
(ii) was Mr Mepham by reason of his war-caused psychiatric conditions prevented from continuing to undertake driving work?
50. Mr Mepham claims that he was prevented from continuing to work as a driver throughout the relevant period by reason of his accepted psychiatric conditions alone. The Commission disagrees. The resolution of this issue requires us to determine the nature of the incapacity arising from those conditions and the extent to which, if any, they prevented him from undertaking remunerative work throughout the relevant period.
51. As there are few contemporary records to assist us in this determination, those that are available, namely the reports prepared by Drs Harding, Synott and Altman, demand careful examination.
52. Fifteen months before he resigned from the bus company, his GP was of the opinion that Mr Mepham’s claimed — but as yet undiagnosed — psychiatric conditions had minimal or no impact on his activities of daily living, work and family life. Dr Synott, who assessed Mr Mepham shortly afterwards, took a history of Mr Mepham being irritable and angry, holding things back, not being able to concentrate, and being quick to argue with people, but concluded that there was no evidence of a current disorder and insufficient information to make a diagnosis of a specific psychiatric disorder. Dr Altman, the first practitioner to diagnose Mr Mepham as suffering from PTSD, depression and alcohol abuse, took a history of a damaged and impaired man — a very different picture to that painted by the GP 15 months earlier.
53. From what is before us, it not possible to account for the apparent discrepancies in the histories taken. However, it seems to us improbable that a GP of longstanding who, like Dr Harding, had been seeing his patient on a regular basis would not notice the constellation of disabling symptoms recorded by Dr Altman. While possible that the explanation for this apparent inconsistency lies in a marked decline in Mr Mepham’s mental health throughout the period, June 2003 to October 2004, the evidence in our view does not support that finding.
54. The weight of medical evidence is that Mr Mepham is now unfit for driving work on account of, among other things, his war caused psychiatric conditions. He has been under the care of a psychiatrist for the past three years and is being treated with anti-depressant medication. The more difficult question is whether it prevented him from continuing to undertake driving work six years ago.
55. Dr Altman’s opinion about Mr Mepham’s fitness for work is powerful evidence that he was unfit for work throughout the relevant period. He had the advantage of assessing Mr Mepham about a month after his resignation. However, he was given, or took an incomplete history of the circumstances surrounding Mr Mepham’s resignation and made no mention of the altercation with the owner which triggered Mr Mepham’s decision to resign. His opinion appears to be based in part at least on the assumption that Mr Mepham “gave it away” because he was unable to cope and felt unsafe on account of loss of concentration. It is not possible to say whether he would have reached a different opinion had he known of the circumstances surrounding Mr Mepham’s resignation.
56. Dr Altman’s opinion is, of course, consistent with that reached by Dr Wade, who assessed Mr Mepham fourteen months later, except in that Dr Wade did not offer an opinion about when Mr Mepham became unfit for work. Like Dr Altman, he also took, or was given, an incomplete employment history.
57. Having carefully considered the evidence, we could not be reasonably satisfied that Mr Mepham was prevented from working as a driver — an occupation it will be recalled he was very experienced in — throughout the relevant period by reason of his psychiatric war-caused conditions.
58. First, the claim which Mr Mepham made in these proceedings and to the doctors who assessed him — that towards the end of his employment as a bus driver he was struggling and unable to cope — is not supported by his work history. Mr Mepham’s driving record was unblemished, and there is no evidence of absenteeism, performance issues or of any complaints being made about him by passengers or work colleagues. It is important to recall that the type of work Mr Mepham had been performing — driving close to 100 school children over long distances — could hardly be described as low-stress work.
59. Second, he did not seek treatment or even mention his condition to his GP — except in the context of a pension claim and a request for a referral for assessment — until after his resignation. While not determinative, this is not suggestive of a person whose symptoms were especially severe. The explanation advanced on behalf of Mr Mepham — that this merely indicates that he was unaware of the nature of his condition, or simply thought it was “just him” — is implausible given that 15 months prior to his resignation, he had made a pension claim in respect of “Anxiety state/PTSD/alcohol abuse”.
60. Third, apart from the history he gave to Dr Altman, there is not a scintilla of evidence to support Mr Mepham’s claim that as at October 2004 he suffered the severe and disabling symptoms recorded by Dr Altman. While it is trite to say that symptoms of a psychological condition are not always readily observable by others, it would be expected that if Mr Mepham was as irascible and “aggressive to others” as he reported to Dr Altman, there would be some evidence to support that contention.
61. Fourth, the expert opinion that Mr Mepham was unfit for work during the relevant period was based on an incomplete employment history. None of the doctors who were of the opinion that Mr Mepham was unfit for work throughout the relevant period were apparently aware of the circumstances surrounding his resignation; namely the disagreement with the owner over the management of the troublesome child. Moreover, all have apparently accepted Mr Mepham’s self-report of not being able to cope for some time, a claim which as noted, is entirely unsupported by independent evidence.
62. Fifth, Mr Mepham’s action in seeking to have his bus license renewed in January 2005 is inconsistent with his apparent belief, reported to Dr Altman, that he was no longer safe to drive because of impaired concentration.
63. Sixth, the circumstances surrounding Mr Mepham’s resignation are not, as he urges us to accept, suggestive of a person with no insight or impulse control. This was not a case of a person who resigned over a trifling incident. The owner’s decision not to take any action in respect of the aberrant child placed Mr Mepham in an untenable position. His decision to resign in those circumstances could not be characterised as irrational or impulsive.
64. For these reasons, we cannot be satisfied that Mr Mepham was prevented from continuing to undertake driving work by reason of his war-caused psychiatric conditions. Given this finding it is unnecessary to consider the third and fourth steps in Flentjar.
65. Accordingly, as the eligibility requirements for a special or intermediate rate pension are not met, the decision of the Commission must be affirmed.
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton and Dr J D Campbell, Member.
Signed: ..................[SGD]..........................................................
Associate to Senior Member BrittonDates of Hearing: 1, 30 April 2010
Date of Decision: 28 June 2010
Counsel for the Applicant: Mr C Colborne
Counsel for the Respondent: Mr G Purcell
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