Garry Smith and Repatriation Commission

[2015] AATA 448

[2015] AATA 448  

Division	Veterans' Appeals Division
File Number	2013/0914
Re	Garry Smith
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	25 June 2015
Place	Sydney

The decision under review is affirmed.

..............................[sgd]..........................................

Senior Member Bernard J McCabe

CATCHWORDS

VETERANS’ AND MILITARY COMPENSATION – application for intermediate rate of pension – accepted psychiatric and cardiac conditions – assessment of veteran’s capacity to work more than 20 hours per week – medical evidence does not support finding that war-caused conditions alone prevent continuance of remunerative work – decision under review affirmed.

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) ss 23; 28

REASONS FOR DECISION

Senior Member Bernard J McCabe

25 June 2015

1. Garry Smith is seeking a service pension paid at the intermediate rate pursuant to s 23 of the Veterans’ Entitlements Act 1986 (“the Act”). He has a number of accepted conditions, including ischaemic heart disease (he had a heart attack in 2004) and post-traumatic stress disorder (PTSD). He says those conditions have impacted on the amount of work he can do, and on the nature of that work. But the Commission disagrees. It says
   Mr Smith does not satisfy the criteria in s 23 of the Act.

2. The Commission is right, for reasons that I will explain.

   The applicant’s work history

3. Mr Smith commenced work with the Australian Taxation Office in 1964 after he left school. In his oral evidence, he said he quickly enjoyed preferment and began to advance through the ranks. He learned in 1965 that he was to be called up for national service.
   He said he commenced service in the Army on 28 September 1966 (transcript at p 11). He rendered operational service in Vietnam from May 1967 to May 1968.

4. The applicant was discharged from the Army in September 1968. He returned to civilian life and his work at the Australian Tax Office. He encountered difficulties in the workplace which he now attributes to his service-related PTSD condition in particular, but I do not need to reach a concluded view about that. He undertook studies in the valuation of real estate and transferred to the Commonwealth Valuers’ service as a trainee valuer in 1971. (The service was administered by the Australian Taxation Office, so his transfer did not take him outside the organisation.) Mr Smith remained with that employer until 1979 when he resigned to start his own valuation business.

5. The business was short-lived because economic circumstances were becoming increasingly difficult. Mr Smith said he supplemented his income during this period with various labouring jobs and a lawn-mowing run. He finally accepted full-time employment as a valuer with the State Rail Authority in 1981: transcript at p 20.
   Shortly thereafter, he accepted an appointment as a teacher in the New South Wales TAFE system. He taught courses on real estate and valuation. He did that work on a
   full-time basis until 1991; he continued teaching part time until 1995. After he ceased full-time work with TAFE, he set about re-establishing his own valuation business.
   He said the business slowly improved: he did whatever work was available. But once he managed to be nominated to a panel of valuers for one of the major lenders in 1996,
   his valuation business began to prosper. He said he began to specialise in valuation work that required a fast turnaround, and work that was more complex and which would often require him to give evidence in court. That was challenging work, he said: the complexity; the pressure to perform quickly; and the prospect of having to defend the work in court was stressful.

6. The valuation work was not the only string to the applicant’s bow. While he was working at TAFE, in around 1987, Mr Smith commenced a pool maintenance business which he operated on the side. The work did not generate a great deal of income: during the
   start-up phase, Mr Smith said the tenders initially only provided enough income to cover expenses and pay pocket money to his sons in return for undertaking tasks like mowing: transcript at p 21. Over time, however, the applicant said he was doing 12-15 hours per week in the pool maintenance business during the warmer months, although that included some voluntary work (see the applicant’s statement, reproduced as exhibit 2).
   It was physically demanding work, although the applicant was a physically active man. That business continued until 2004, when the applicant had a heart attack. He said he was no longer able to do the heavy lifting that was required as part of the job, so he had to give up the business: transcript at p 21.

7. The applicant’s heart attack in 2004 changed many things, he explained. He was off work for about 6-8 weeks after the heart attack while he recuperated. There was no shortage of work available upon his return: his valuation practice appears to have been very successful and his services were much in demand. But he said he began to experience fatigue, and his confidence was destroyed (transcript at p 24). He said he no longer felt able to do complex or demanding work like valuations in family law or planning and environment cases, or valuations of easements or properties that were being resumed by the government. He also said he was unable to provide the quick turnaround required by the firm which referred him work from the Commonwealth Bank (see exhibit 2).
   He said he was particularly reluctant to do work where he might have to explain and defend himself in court: transcript at pp 23-24. As he explained in his statement
   (exhibit 2): “Anything demanding in a technical or time-constraint way I had to refer to other valuers because I simply couldn’t manage this type of work.”

8. Mr Smith said he accepted less – and less demanding – work between 2004 and 2011. Whereas he explained in his oral evidence that he had been working between 40-60 hours per week on valuations prior to 2004 (transcript at p 23), he said he was able to do less than half of that work after his heart attack: transcript at p 25. He said he no longer had the physical or mental stamina to cope with the same level of work as before: transcript at p 26.In his statement (exhibit 2), he said he would become tired and need a sleep in the afternoon when he worked; he also referred to a heart flutter that he experienced when he was under stress. He continued to accept referrals of a less demanding kind from a valuation firm called Hartnett Guy until that organisation went out of business in 2011, although he said even that work dwindled over time: exhibit 2; see also transcript
   at pp 80-81.

9. In cross-examination, the applicant said he did between 12-20 hours per week from about 2006 onwards. He said he did not recall the precise hours he would have worked, although he agreed it was possible he occasionally did more than 20 hours in a week: transcript at pp 81, 82. He effectively ceased work as a valuer in 2011 after his major source of referrals disappeared.

   The medical evidence

10. The applicant says he was told his heart capacity was significantly reduced following the heart attack. He said he had been advised 35 percent of the heart muscle had been damaged (transcript at p 24). It is unclear where that figure comes from.

11. The starting point of my analysis is the opinion of Dr Mou, the applicant’s treating cardiologist, who opined in a report  dated 1 September 2011 (exhibit 7 at p 29):

    I would feel [Mr Smith] should be able to cope with a normal working week providing there is no physical exertion in his working environment. On the other hand, stressful working environment is best avoid [sic] in his situation given his history of both ischaemic heart disease as well as post traumatic stress disorder.

12. Dr Baz, an occupational physician, was called on behalf of the applicant. She opined in her report that, since August 2006, Mr Smith was unable to work more than 20 hours per week as a consequence of his accepted heart and psychiatric conditions: exhibit 3 at p 6. In her oral evidence, she explained the heart condition remained an obstacle because of the applicant’s limited exercise tolerance and the potential impact of stress:
    transcript at p 41. She acknowledged the cardiologist’s notes suggested he was pleased with Mr Smith’s recovery, but Dr Baz said Mr Smith was still likely to experience cardiac arrhythmia when he exerted himself. She said he was likely to feel discomfort when engaged in more than moderate physical activity, and that he might experience the same unsettling symptoms if engaged in stressful activities like giving evidence or performing valuations under pressure: transcript at pp 43-44. She also suggested some of the applicant’s medications for his heart condition might have had side effects of making him tired: transcript at p 45. (She did not suggest the applicant’s medication for PTSD had the same effect: transcript at p 48.)

13. Dr Baz said the PTSD was also an obstacle. She took a different history to Dr Chase with respect to the applicant’s domestic situation and social interaction, and found a more significant impairment under the GARP scale as a consequence. She also considered the PTSD was not in partial remission because the applicant continued to report symptoms: transcript at p 48.

14. In cross-examination, Dr Baz conceded it was difficult to be precise as to the number of hours a person was able to work, but she held fast to her view that Mr Smith was unable to work effectively for more than 20 hours each week: transcript at pp 64, 65-66.

15. The respondent called Dr Chase, an occupational physician, and Dr Smith, a consultant psychiatrist, to give evidence at the hearing. I note Dr Smith doubted whether the applicant met the diagnostic criteria for PTSD: exhibit 5 at p 9; transcript at pp 103-104. But Dr Altman’s diagnosis to that effect has already been accepted, and it was not put in issue in these proceedings. Dr Smith went on to opine the applicant’s psychiatric health was not an obstacle to full-time work in a job that did not involve physical exertion. Indeed, in his oral evidence, he recounted a history provided by the applicant to the effect that Mr Smith was able to work as a valuer, but the work had simply dried up:
    transcript at pp 103-105; exhibit 5 at pp 3 and 12. He said the applicant’s PTSD – such as it was – did not create any obstacle to working in a sedentary role. Dr Smith formed the view that the aggression and irritability exhibited on previous occasions in the workforce was more likely attributable to, for example, alcohol abuse: transcript at p 112-113.
    He said his observations of the applicant were not unusual: most people with PTSD can work (transcript at pp 105-106, 108).  In the course of cross-examination, Dr Smith added he did not think the applicant suffered from any sort of neurosis connected with his cardiac condition: transcript at pp 121-122.

16. Dr Smith was asked detailed questions about his assessment of the applicant’s capacity for work during the course of cross-examination. He justified his conclusion that the applicant was not significantly incapacitated by symptoms associated with PTSD by reference to the history he took. In particular he gave the applicant lower ratings than
    Dr Altman’s report dated 7 April 2008 in respect of manifest distress, functional impact on occupation and impact on domestic situation on the GARP scale relating to emotional and behavioural issues: transcript at pp 119-121. (Interestingly, Dr Altman gave the applicant a more modest score in his earlier report dated 9 March 2007.) I am unable to fault the reasoning in Dr Smith’s evidence given the history he recounted, although I note he was only purporting to deal with the impact of the psychiatric issues and did not have regard to the impact of the applicant’s ischaemic heart disease.

17. Dr Chase is an occupational physician. He undertook a more wide-ranging assessment of the applicant’s impairments under GARP in his report (exhibit 4). He noted a more significant functional loss from the applicant’s PTSD than that suggested by Dr Smith. Even so, Dr Chase did not record the PTSD condition impacting on the applicant’s social interaction or domestic situation. Dr Chase said the applicant’s symptoms were in partial remission when he was examined for the purposes of the report: transcript at pp 98-99. He also said the heart condition had a limited impact on the applicant’s functioning, albeit that the condition precluded manual work. Overall, Dr Chase “thought it likely that he’d be able to work fulltime in – in jobs for which he had experience and qualifications”: transcript at p 89. Dr Chase doubted that any tiredness was the product of the cardiac condition. While he accepted there might be scarring as a consequence of the heart attack in 2004, the records of stress tests in the notes of Dr Mou, the treating cardiologist, did not support a finding that the heart function was compromised to that extent: transcript at p 92, 93. He also doubted whether the tiredness reported by the applicant could be attributable to the PTSD; he thought tiredness might be associated with a mood disorder, or perhaps advancing age, although he could not discount the possibility of functional impact resulting from a poorly-understood interaction between the PTSD and the heart condition: transcript at pp 95-96.

18. I prefer the evidence of Dr Smith with respect to the impact of the applicant’s psychiatric condition. He is the expert in the relevant discipline, whereas Dr Baz and Dr Chase are occupational physicians who properly agreed they would defer to a psychiatrist’s assessment of a patient’s psychiatric symptoms. Dr Smith’s evidence suggests it is unsound to attribute any significant impairment to the applicant’s psychiatric condition, and he expressly rejected the possibility of a cardiac neurosis contributing to the applicant’s impairment over time – although he left open the possibility that some aspects of the applicant’s difficulties in the workplace might be attributable to alcohol consumption. His evidence was presented clearly and demonstrated careful consideration of the applicant’s history.

19. Dr Smith’s analysis of the applicant’s psychiatric symptoms stands in contrast to the more speculative view offered by Dr Baz (and to some extent Dr Chase, at least during the course of cross-examination) who suggested significant impairment resulted from the uncertain interaction between the PTSD and the aftermath of the cardiac condition. While there may ultimately be something to this view, it lacks the sort of precision and rigour that would justify me accepting it over the view of a consultant psychiatrist. The fact the consultant psychiatrist appears to have taken a different view to the applicant’s treating psychiatrist, who was not called to give evidence, does not change my view. The notes provided by Dr Altman are not especially recent, and Dr Smith considered them in the course of giving an independent report.

20. I am satisfied the psychiatric symptoms had a limited effect on the applicant’s ability to undertake work that was not physically demanding. Given the preference I have expressed for the views of Dr Smith, it is apparent I do not accept the applicant was unable to do the sort of work that a valuer could do, and which he was previously doing – albeit I accept the evidence of Dr Chase (consistent with the view of Dr Mou) that the applicant may indeed have preferred to minimise the stress associated with his work for a range of reasons after 2004.

    The legislation

21. Section 23 of the Act sets out the criteria that must be satisfied before an applicant can be said to be entitled to the intermediate rate of pension. A number of the requirements in s 23 are satisfied. The sticking point, according to the respondent, lies in sub-sections 23(1)(b) and (c).

22. Section 23(1)(b) provides:

    the veteran's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently….

23. The expression “part-time” is defined in s 23(2) to mean either 20 hours per week, or half the number of hours usually worked where the veteran was doing that sort of work.

    
    

    For present purposes, a figure of 20 hours seems reasonable – both because that is the default position, and because 40 hours a week is likely to be the ordinary number of hours worked by a valuer (albeit I accept the applicant gave evidence that, prior to 2004, he habitually worked many more hours than that each week).

24. The preponderance of the medical evidence establishes the applicant is able to undertake remunerative work for more than 20 hours per week, albeit that the work must not be physically demanding – which necessarily means he cannot do all of the sort of work that he was previously doing, most obviously his pool repair and maintenance business. I note the remunerative work referred to in s 23(1)(b) is not limited to the sort of remunerative work the applicant was previously undertaking. Section 28 confirms I must have regard to:

    (a) the vocational, trade and professional skills, qualifications and experience of the veteran;

    (b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and

    (c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).

25. Mr Smith is a qualified valuer. He has lectured in the subject and has extensive experience in undertaking a wide range of valuation activities. The preponderance of the medical evidence suggests he is not prevented, by reason of his accepted heart and psychiatric conditions, from doing the activities of a valuer for more than 20 hours per week.

    CONCLUSION

26. The applicant is unable to satisfy the requirement in s 23(1)(b) of the Act. It follows that he does not qualify for a pension paid at the intermediate rate. The decision under review must therefore be affirmed.

I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

............................[sgd]............................................

Associate

Dated 25 June 2015

Dates of hearing	12 & 13 February 2015
Date final submissions received	13 March 2015
Counsel for the Applicant	Ms C Mudge
Solicitors for the Applicant	Legal Aid New South Wales
Advocate for the Respondent	Mr T O'Reilly