Hopkins and Repatriation Commission
[2003] AATA 1104
•4 November 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1104
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/577
VETERANS' APPEALS DIVISION ) Re DAVID JAMES HOPKINS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member K L Beddoe Date4 November 2003
PlaceBrisbane
Decision The Tribunal decides:
(a) the decision under review is set aside;
(b) the applicant satisfies the terms of section 24 of the Veterans’ Entitlements Act 1986; and
(c) the date of effect of this decision is 23 November 2002.
(Sgd) Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – assessment - rate of pension – whether applicant entitled to pension payable at the special rate – whether applicant is totally and permanently incapacitated – whether the applicant’s war-caused disabilities alone prevent him from undertaking remunerative work
Veterans’ Entitlements Act 1986 ss 24, 28
REASONS FOR DECISION
4 November 2003 Senior Member K L Beddoe 1. The applicant veteran seeks review of the respondent’s decision to, in effect, refuse payment of disability pension at the special rate and assess pension at 100% of the general rate. That decision was subsequently affirmed by the Veterans’ Review Board.
2. Paragraphs 24(1)(b) and 24(1)(c) of the Veterans’ Entitlements Act 1986 (“the Act”) are in issue before the Tribunal.
3. Paragraph 24(1)(b) applies where the veteran is totally and permanently incapacitated; that is, the applicant’s incapacity from his accepted disabilities is of such a nature as, of itself alone, to render the applicant incapable of undertaking remunerative work for periods aggregating more than eight hours per week.
4. Paragraph 24(1)(c) will be satisfied where those accepted disabilities, alone, have prevented the applicant from continuing to undertake remunerative work that the applicant was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his own account that the applicant would not be suffering if he were free of the incapacitating accepted disabilities.
5. The effect of paragraph 24(1)(c) is ameliorated in its effect by sub-section 24(2).
6. In determining whether the applicant is incapable of undertaking remunerative work the Tribunal is required to only have regard to the matters set out in section 28 of the Act.
7. At the hearing Mr Anderson appeared for the applicant and Mr Smith represented the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the “T“ documents and further documents were tendered and marked as exhibits. Oral evidence was given by:
(a)the applicant;
(b)the applicant’s wife;
(c)Neville Holland Muller;
(d)Dr Hargreaves (consultant psychiatrist)
(e)Dr Fine (orthopaedic surgeon)
(f)Dr Tan (general practitioner)
8. I make the following findings of fact.
9. The applicant was born on 2 January 1946 and is presently 57 years of age.
10. The applicant’s employment history may be summarised as follows:
1961 – 1966Station Master
1967 – 1968National service including operational service in South Vietnam
1969 – 1971Baker
1971 – 1974Chef
1974 – 1975Bread Vendor
1975 – 2000 Salesman
11. The applicant’s accepted disabilities are:
(a)Anxiety depression
(b)Post Traumatic Stress Disorder
(c)Bilateral Sensorineural Hearing Loss with Tinnitus
12. The applicant’s last remunerative employment was as a sales representative with Aquilla Imports Pty Ltd. He had worked there for over two years when he resigned on 17 August 2000. In his letter of resignation he said, in part:
“I have found that my medical problems have been making it very difficult for me to work.” (T4/2)
13. The employer acknowledged periods of ill-health with prolonged absences from his duties, and referred to strong advice of his doctor, in a letter acknowledging the resignation (T4/3). That letter was dated 24 August 2000.
14. In a further letter dated 28 March 2002 the employer said:
“Unfortunately Dave found it increasingly difficult to fulfil his work obligations due to an ongoing medical condition, Post Dramatic (sic) Stress Syndrome. Hence, on the advice of his Doctor, Dave resigned from his position with the company on 17 August 2000.” (T4/95)
15. Both of the employer’s letters were signed by “L La Schiazza”, a director of the company. However the applicant called Neville Muller to give evidence. Mr Muller was and is the Staff Manager employed by Aquilla Imports Pty Ltd. In oral evidence Mr Muller said that the applicant had taken time off from work because he was suffering double vision and a consequence had been that the company required the applicant to produce a medical certificate.
16. In his oral evidence Mr Muller said:
“…I could see that he was suffering, number one, from his knee, which he had a problem with his knee, and it was very hard for him to get in and out of the company vehicles.” (Transcript 24);
and
“David was a very nervy sort of person. I noticed – well, I did notice that David used to rub his fingers through his hair a fair bit, which to me showed sings of nervousness.” (Transcript 25-26)
And in cross-examination by Mr Smith, Mr Muller is recorded as saying:
“He wasn’t prevented from doing his duties, no, but he was under sufference with the other duty, I should imagine, because of getting in and out of the vehicle, as I stated.” (Transcript 26).
17. That evidence conflicts with some aspects of the applicant’s evidence.
18. The applicant said he had difficulties with his right knee for 10 years up to 2001. He had a knee replacement operation in 2001. He said that before the operation the knee condition did not prevent him doing things at work.
19. The applicant denied he had a problem with his right hip and with emphysema reported by Dr Tan and also denied that his other non-accepted medical conditions caused him any difficulty at work.
20. The applicant reported an incident of diplopia while attending a Lions Club conference in Perth and which had caused him to be off work for three weeks (leave and sick leave). Also his employer had required a medical certificate that he was fit to drive a car before he could return to work. The applicant said the condition resolved completely over seven weeks but in oral evidence was equivocal as to whether it had resolved.
21. The applicant sets out in Exhibit A reasons why he was dissatisfied with his employment at Aquilla Imports when compared to his previous employment by Peters Ice Cream. That dissatisfaction included dissatisfaction with his immediate supervisor, Mr Muller, and directors of the company. In the result he became anxious about his ability to perform his job because, it seems, the directors did not conduct the affairs of the company in a way that satisfied the applicant. The applicant said he found the Management style stressful. That, it seems, resulted in difficulties with personal relationships at work and also away from work.
22. Except for the two weeks of leave (included in the three weeks absence) caused by the diplopia incident at the Lions conference in Perth, the applicant did not take any leave from his employment due to illness of himself.
23. The applicant agreed that after ceasing employment he had applied for a service pension (T4/18-20). On that application the applicant listed the following symptoms “that are permanently preventing you from working”:
(a)Post Traumatic Stress Disorder;
(b)Depression;
(c)Hearing; and
(d)Double Vision
24. Exhibit B is a statement by the applicant’s wife which corroborates parts of the applicant’s evidence. In her oral evidence Mrs Hopkins affirmed Exhibit B and acknowledged that she had completed part of the claim for service pension at folio 21.
25. She acknowledged the applicant had problems with sleep apnoea, which was successfully controlled, stress, hypertension and osteoarthritis of the right hip. She also acknowledged that the applicant had suffered pain in his right knee for ten years resulting in him walking with an obvious limp. This had resolved with the knee operation in 2001.
26. She acknowledged a diagnosis of emphysema but said there were no symptoms and also acknowledged long term asthma without adverse effect.
The Medical Evidence
27. The application for service pension included a pro-forma report by Dr Tan, the applicant’s general practitioner. Dr Tan diagnosed:
(a)Post Traumatic Stress Disorder;
(b)Conduction Deficit Middle Ear; and
(c)Major Depression
28. However, in relation to the “capacity to work” questionnaire Dr Tan reported, amongst other conditions, the following:
(a)High blood pressure;
(b)Slight paresis diplopia;
(c)Weak right leg extension at hip and flexion at hip;
(d)Walks with limp on right side;
(e)“Patient had weakness generalised and a few funny turns when his diplopia started while on a trip to Perth over a stressful period attending a conference.”
(f)Severe osteoarthritis of the right hip and knee with marked weakness in right leg with “agony” if standing for more than half an hour.
29. In a further report dated 12 January 2001 Dr Tan noted that the diplopia condition had resolved so that the applicant had full visual fields on direct confrontation. He included the following comment:
“However his being ruled as unfit to work was as dependent on his suffering from PTSD and Depression as it was partially due to his diplopia and inability to drive long distances.” (T4/59)
30. In a further report dated 4 May 2001 Dr Tan noted that the applicant had right total knee replacement on 19 March 2001 (T4/59).
31. All of this was put into context by Dr Tan’s report of 8 February 2002 (T4/81-3) where he summarises the applicant’s medical history from October 1998. On examination in October 1998 Dr Tan concluded that the applicant had:
(a)Arthritis (osteoarthritis) of the right knee and hip;
(b)Grossly overweight (obesity);
(c)Hypertension;
(d)Snorer, probably having sleep apnoea;
(e)Known Asthma
(f)Right lung base disease, emphysema.
32. There was history of treatment for knee pain with mild relief.
33. In January 2001 the applicant was referred to Dr Fine for continuing knee pain. Dr Tan described the symptoms as severe, debilitating and caused pain on standing or walking over the past two years as they had been in the previous five years.
34. Dr Tan was called to give oral evidence by the respondent. He confirmed the written reports in general. He confirmed that the applicant was put on significant medication to cure the diplopia after the applicant had been certified as fit to drive a motor vehicle. The last time Dr Tan prescribed medication for diplopia was 31 October 2001 which is over 12 months after the applicant claimed the condition had been cured.
35. Dr Tan also said in effect that the knee operation had been successful in that the operation had resolved the symptoms in the right knee “in the main”.
36. Dr Tan was also of the opinion that there was a possible link between PTSD as a causative factor and diplopia. He also considered that PTSD and depression can cause weight gain.
37. In a short report dated 14 August 2000 and addressed to the Department of Veterans’ Affairs, Dr Hargreaves, Consultant Psychiatrist, diagnosed PTSD which was chronic and service related. Dr Hargreaves said the condition was permanent “and is preventing him from continuing to work”. The applicant was said to be not capable of working more than 8 hours per week (T4/1).
38. Dr Hargreaves made a more detailed report to the department dated 21 November 2000 (T4/39-40). Dr Hargreaves had seen the applicant on eight occasions between October 1999 and November 2000. He said there had been little improvement over that period. He said the applicant continued to complain of intermittently depressed moods, anxiety, insomnia, difficulties coping at work, intermittent nightmares about Vietnam events, difficulty with concentration, forgetfulness, energy problems, anger episodes, and difficulty tolerating other people especially in the work situation. He also described diplopia for which the applicant was said to be seeing a neurologist. Dr Hargreaves reported “It hasn’t fully resolved”. He had also referred the applicant to a respiratory physician to investigate possible obstructive sleep apnoea syndrome based on the applicant’s complaints of excessive tiredness.
39. Dr Hargreaves described practical difficulties with driving, interacting with clients, his place of work and keeping up with paper work and sales targets due to PTSD.
40. Exhibit C is two further reports by Dr Hargreaves dated respectively 27 November 2002 and 6 December 2002 and addressed to the applicant’s solicitor. Dr Hargreaves reported that he first saw the applicant in September 1996. He noted a psychiatric history dating back to 1969 soon after the applicant’s return from South Vietnam.
41. The report of 27 November 2002 sets out a generalised history which becomes argumentative, in places, in support of the applicant’s present application. Dr Hargreaves discounts the impact of the non-accepted disabilities on the applicant’s decision to cease employment which he says was due to service related disabilities alone and the other conditions were not a factor in that decision.
42. Dr Hargreaves noted that the applicant had undergone additional stress, after cessation of work, in that his father was in hospital for six months and his mother was living with the applicant (and his wife) together with daily trips to hospital. Dr Hargreaves does not explain why he considered this state of affairs to cause the applicant to undergo additional stress.
43. In his oral evidence he said, in the course of examination in chief:
“QAnd upon initial consultation, what was your conclusion?
AI felt that he had, even at that stage, a chronic post traumatic stress disorder.
QAnd how was that affecting Mr Hopkins at that stage?
AHe was – he was showing quite a chronic array of symptoms, including anxiety chronic symptoms. He had fairly poor stress tolerance, and he was having quite unstable moods. He was looking at phases of depression, so associated with that was feelings of hopelessness, of loss of interest and pressure and things. He was having some problem at work, in particular some stress relating to work or inability to handle that work stressors, and he was having some problems with body odour, which we felt were probably anxiety related. He was overweight and had what he felt was an …excessive appetite which he now thought might be a stress related thing. He said that he had an array of post traumatic stress disorder symptoms, including re-experiencing and remembering of rather stressful incidents that occurred in his time in Vietnam. He had rather prominent problems with vigilance, problem with startle response, irritability, and quite a lot of avoidance of things that might remind him of Vietnam.
QWas that his condition when you first saw him?
AWell, either – yes, I’m just reading through notes that I originally sent to Dr Murray – Richardson, it is, his GP. That was dated October ’96.
QAre you continuing to treat Mr Hopkins today?
AYes.
QAnd over the roughly seven years that you’ve been seeing him, can you describe the progress of his illness?
AWell, it’s been a fairly progressive – sorry, I should say, a fairly persistent condition. I would say that he looked happier and brighter since he’s not been working. I think that, while he was still working, he was getting periodic stress problems, which I think were holding – was holding back his progress quite a bit. So he’s been a little better since he’s stopped work, but he still really has quite a lot of chronic symptoms. So there’s been definite improvement in some areas, but not – not in many other areas. Sleep disturbance is still a problem, for instance, and chronic tiredness, and he’s still prone to re-experiencing rather nasty and unpleasant memories.
QDo you – what’s your diagnosis of Mr Hopkins today?
AWell, I would still diagnose him as having a chronic post traumatic stress disorder.”
44. Asked about the applicant’s diplopia Dr Hargreaves said, in effect, that he did not know enough about the condition as to whether stress is a cause.
45. In cross-examination Dr Hargreaves was unable to explain why he had only seen the applicant on two occasions during the period of nine months before he resigned his employment on 17 August 2000 (22 May 2000 and 17 July 2000). Dr Hargreaves also saw the applicant three days before the resignation and eleven days after the resignation. He was also unable to assist the Tribunal in relation to the applicant’s capacity for employment.
46. Document T4 includes copies of two reports by Dr Staples, Neurologist, addressed to Dr Tan and Dr Grant (SMO) and dated 30 May 2000 and 27 March 2001 (T4/92-3). Exhibit D is a copy of a further short report dated 8 October 2002 addressed to the applicant’s solicitor. Dr Staples treated the applicant for vertical diplopia which became symptomatic while the applicant was practising and delivering a speech at a Lions Convention in Perth.
47. Dr Staples describes a background history of obesity, hypertension, mild diabetes, asthma, osteoarthritis right knee and a depressive illness. He diagnosed a complex diplopia which he was unable to sort out and thought that it may be “just a stress problem” with the possibility of early occular myasthenia.
48. In the report dated 11 October 2001 to Dr Grant at the Department of Veterans’ Affairs, Dr Staples said he had seen the applicant once. There was no clear diagnosis. He referred to the possibility of an ischaemic event which he raised again in Exhibit D where he ruled out a diagnosis of ocular myasthenia.
49. Dr Nave, Orthopaedic Surgeon, made two reports to Dr Tan dated 22 September 1999 and 11 October 1999 (T4/84-5). Dr Nave was not called to give evidence. Dr Nave described a history in relation to the applicant’s right knee going back to an arthroscopy “at Princess Alexandra Hospital eight or nine years ago” showing marked osteoarthritis in the medial compartment and also small tears of the posterior horns of both menisci (these were trimmed).
50. Dr Nave said the applicant was willing to try Synvisc injections with short lived efficacy with a knee replacement “sometime in the not too distant future”.
51. There is a copy of a further report by Dr Nave to Dr Tan dated 24 January 2000 at T4/86. That report includes the following:
“(the applicant) considers that the Synvisc injections have improved the knee, particularly in relation to comfort at night. The problem is that he has to get around a lot in his job, such that, during the day, the knee continues to cause trouble. His left knee is not too bad unless he does a lot of walking. He says he lives on Aspirin and Panadol at this stage.”
52. Dr Tan, Orthopaedic Surgeon, performed a right total knee replacement for the applicant on 19 March 2001 (T4/88). In a report to Dr Tan dated 5 May 2001, Dr Fine noted some right calf pain and ankle swelling after six weeks (T4/89). In a further report dated 14 July 2001, Dr Fine said that both “clinically and radiologically everything is very satisfactory with the knee” (T4/90).
53. Dr Fine made a more detailed report to Dr Grant dated 22 October 2001 (T4/91). He reported that the had first seen the applicant on 16 February 2001 when he was referred complaining of deteriorating chronic right knee pain. The pain was reported as significantly restricting the applicant’s daily activities and was also waking him at night. On examination Dr Fine had found advanced osteoarthritis of the right knee, especially in the medial compartment where there was bone on bone contact between the femur and tibia (because the articular cartilage was worn out. There were also osteoarthritic changes in the lateral compartment at patellfemoral joint.
54. In his report to Dr Grant, Dr Fine said he expected the applicant to obtain a good functional result from his total knee replacement. That proved to be the case, on review, as set out in Dr Fine’s short report to the applicant’s solicitor dated 23 November 2002 (Exhibit E).
55. In his oral evidence Dr Fine confirmed his written reports. In particular he said that in terms of functionality he considered the applicant capable of performing work of a sales representative. He expected the applicant to get good function out of the knee replacement for 10 to 20 years after the surgery.
Consideration
56. I am satisfied, on the balance of probabilities that when the applicant resigned his employment he did so because of four medical conditions namely:
(a)Anxiety Depression
(b)Post Traumatic Stress Disorder (“PTSD”)
(c)Diplopia
(d)Osteoarthritis Right Knee.
Conditions (a) and (b) are accepted disabilities whereas (c) and (d) are not.
57. On the basis of the evidence of Dr Hargreaves, the treating psychiatrist, I am satisfied that the applicant can no longer work eight hours per week in remunerative work because of the anxiety depression and PTSD. In so far as reference was made to asthma and sleep apnoea, I am satisfied these conditions are controlled and of no consequence in terms of whether the applicant can undertake remunerative work.
58. In relation to osteoarthritis right knee and diplopia, I am satisfied that these conditions have been treated successfully so that the applicant is no longer prevented from undertaking remunerative work by those diagnosed conditions.
59. The suggestion that the applicant also suffers from osteoarthritis of the right hip is equivocal but on the basis of Dr Fines’ evidence any condition, if it exists, would not inhibit proper functioning of the right leg.
60. For those reasons and taking section 28 of the Act into account, I am satisfied that the applicant is now totally and permanently incapacitated by the accepted disabilities alone albeit that non accepted disabilities made a material contribution to the applicant ceasing employment.
61. In my view the applicant now satisfies the test in paragraph 24(1)(b).
62. In relation to paragraph 24(1)(c) I am satisfied that the relevant remunerative work that the applicant was undertaking was that of a salesman. I am not satisfied that his much earlier employment as a chef is at all relevant.
63. Because the applicant’s conditions of osteoarthritis right knee and diplopia have now been treated successfully so that those conditions no longer prevent the applicant undertaking remunerative work, and because I do not accept that the asthma and sleep apnoea were ever relevant to preventing the applicant undertaking remunerative work, I must consider the accepted conditions of anxiety depression and PTSD.
64. On the basis of the evidence of Dr Hargreaves, which I accept, I am satisfied that it is more likely than not that those accepted conditions are the only reason for the applicant being prevented from continuing to undertake remunerative work as a salesman.
65. In that regard I am satisfied that there are now no other factors preventing the applicant undertaking that work.
66. I am also satisfied that it is more likely than not that the applicant is suffering a loss of salary that he would not be suffering if he were free of the accepted disabilities.
67. It follows, in my view, that paragraph 24(1)(c) will be satisfied provided that sub-section 24(2) does not operate to deny satisfaction of paragraph 24(1)(c).
68. In Exhibit E (dated 23 November 2002), Dr Fine reported that the applicant’s right knee would not prevent him from returning to his previous occupation as a sales representative.
69. The last time Dr Tan prescribed medication for diplopia was 31 October 2001. I am satisfied that it is reasonable to infer that the diplopia ceased to be an issue during the ensuing twelve months.
70. The application in this matter is dated 31 August 2000. If I was required to decide this matter at that date I could not be satisfied that section 24 of the Act has been satisfied.
71. However, I am satisfied that section 24 operates with effect from 23 November 2002 when Dr Fine stated that the right knee would not prevent the applicant returning to his occupation as a sales representative.
72. The decision under review will be set aside and a decision substituted that the applicant satisfies the terms of section 24 of the Act effective from 23 November 2002.
I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K L Beddoe
Signed: Sarah Oliver
AssociateDate of Hearing 23 April 2003
Date of Decision 4 November 2003
Counsel for the Applicant Mr R J Anderson
Solicitor for the Applicant Terence O’Connor Solicitor
For the Respondent Mr M Smith, Departmental Advocate
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