Huck and Repatriation Commission
[2003] AATA 1036
•14 October 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1036
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/543
VETERANS' APPEALS DIVISION ) Re ROBERT HUCK Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms N Bell, Member Date14 October 2003
PlaceSydney
Decision The decision under review is affirmed. [Sgd] N Bell
Member
CATCHWORDS
VETERANS' AFFAIRS - allied veteran - permanent resident since 2001 - when became permanently incapacitated before or after acquiring permanent residence
Veterans' Entitlements Act 1986 sections 5C, 5G, 37
REASONS FOR DECISION
14 October 2003 Ms N Bell, Member 1. This is an application by Mr Robert Huck ("the Applicant") for review of a decision by the Repatriation Commission ("the Respondent") dated 26 February 2002 that the Applicant cannot meet the requirements for a service pension under the Veterans' Entitlements Act 1986 ("the Act").
2. At the hearing before the Tribunal the Applicant appeared on his own behalf and gave oral evidence to the Tribunal. The Respondent was represented by Ms Philippa Hook. The following documentary evidence was before the Tribunal:
Exhibit No
Description
Date
T1-37 pp1-140
Documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1
Handwritten letter by Mr Huck
Undated (received 15 October 2002)
A2
Letter Dr Paul Haber
2 April 2003
A3
Letter Robyn Drew, Occupational Therapy Department Royal Prince Alfred Hospital
9 September 2003
A4
Letter Dr Ross Hindmarsh
27 August 2003
A5
Letter Dr William A Bye
30 May 2003
R1
Respondent's Statement of Facts and Contentions
29 July 2003
R2
Medical Report Dr R Lewin
9 December 2002
R3
Medical Report Dr R Chase
24 June 2003
R4
Report Dr B S Keshava
6 June 2003
background
3. The Applicant served in the U.S. Armed Forces in Vietnam and is an “allied veteran” as defined in subsection 5C(1) the Act. It is not in disputed that he rendered “qualifying service” as defined in section 7A of the Act as an allied veteran.
4. It is also not in dispute that the Applicant came to Australia in 1988 and remained on a temporary visa until he was granted permanent residence status on 11 September 2001. He worked at various jobs in Australia, his last paid work being as a cleaner for CleanEvent. The Applicant was injured in that job in 1997 and did not return to work. Nor is it in dispute that the Applicant suffers from a number of medical conditions including post traumatic stress disorder and alcohol dependence.
5. Following a number of earlier rejected claims, the Applicant claimed a service pension on 10 October 2001.
issues and legislation
6. The qualifications for eligibility for invalidity service pension are set out in section 37 of the Act which provides:
"Eligibility for invalidity service pension
(1) Subject to subsection (6), a person is eligible for an invalidity service pension if the person:
(a) is a veteran; and
(b) has rendered qualifying service; and
(c) is permanently incapacitated for work in accordance with a determination under section 37AA.
Note 1: For veteran see subsection 5C(1).
Note 2: For qualifying service see section 7A.
Additional eligibility criterion for Commonwealth veterans, allied veterans and allied mariners
…
(3) Subject to subsection (3A), a person who is a veteran by reason only of being a Commonwealth veteran, an allied veteran or an allied mariner must, in addition to meeting the requirements of subsection (1), have been an Australian resident for a continuous period of at least 10 years.
(3A) Subsection (3) does not apply to:
(a) a refugee; or
(b) a former refugee.
(4) For the purpose of applying subsection (3), where:
(a) a veteran has been an Australian resident during more than one period; and
(b) the longer or longest of those periods is less than 10 years but is not less than 5 years; and
(c) the aggregate of those periods is more than 10 years;
in the application of subsection (3) to the veteran, the period of 10 years specified in that subsection is to be reduced by a period equal to the period by which the aggregate is more than 10 years.
(5) Subsection (3) does not apply to a veteran if:
(a) the veteran became permanently incapacitated for work while the veteran was an Australian resident; and
(b) the veteran's permanent incapacity for work was not brought about with a view to obtaining a service pension or a social security pension; and
(c) the veteran does not have an enforceable claim against any person, under any law or contract, for adequate compensation in respect of the permanent incapacity.
(6) If:
(a) a veteran lodges a proper claim for an invalidity service pension before meeting the eligibility requirements referred to in subsection (1); and
(b) the veteran ceases to be an Australian resident after lodging the claim and before the claim is determined;
the veteran is not eligible for invalidity service pension unless:
(c) the day on which the veteran met all the eligibility requirements; and
(d) the day from which invalidity service pension would, if the claim were granted, be payable;
are earlier than the day on which the veteran ceased to be an Australian resident.”
7. Permanent incapacity for work, as referred to in section 37(1)(c) of the Act, is defined in section 37AA by reference to a disallowable instrument. The relevant disallowable Instrument is the Veterans' Entitlements (Invalidity Service Pension - Permanent Incapacity for Work) Determination 1999. Paragraph 5 of that Determination is as follows:
"Circumstances of permanent Incapacity
(1) A person is permanently incapacitated for work for paragraph 37(1)(c) of the Act if the person:
(a) is permanently blind in both eyes; or
(b) is a veteran to whom section 24 of the Act applies; or
(c) satisfies subsection (2).
(2) A person satisfies this subsection if:
(a) the person has an impairment that, if it were an injury or disease for the Guide to the Assessment of Rates of Veterans' Pensions, would result in a combined impairment rating of 40 or more under Table 18.1 in that Guide; and
(b) solely because of the impairment, the person is permanently unable to do work for periods adding up to more than 8 hours per week; and
(c) the Commission is satisfied that the impairment is permanent."
8. "Australian resident", as referred to in section 37(3) of the Act, is defined in section 5G as follows:
"Australian residence definitions
(1) In this Act, unless the contrary intention appears:
Australian resident, has the meaning given by subsection (1AA).
holder, in relation to a visa, has the same meaning as the Migration Act 1958.
Permanent visa, special category visa and special purpose visa have the same meanings as in the Migration Act 1958.
(1AA) An Australian resident is a person who:
(a) resides in Australia; and
(b) is one of the following:
(i) an Australian citizen;
(ii) the holder of a permanent visa;
(iii) the holder of a special category visa who is likely to remain permanently in Australia;
(iv) the holder of a special purpose visa who is likely to remain permanently in Australia."
9. As an allied veteran the Applicant must not only have rendered qualifying service (about which there is no dispute in this application) and be permanently incapacitated for work, he must also, according to section 37(3) of the Act, have been an Australian resident for a continuous period of ten years.
10. The Respondent has conceded that the Applicant is permanently incapacitated. The Applicant has a combined impairment rating of 40 pursuant to the Guide to the Assessment of Rates of Veterans' Pensions (“the GARP”). He is further permanently unable to work for a period totalling more than eight hours per week and his impairment is permanent.
11. However, the definition of “Australian resident” in subsection 5G(1AA) of the Act requires that a person be an Australian citizen, the holder of a permanent visa, or the holder of a special category visa or a special purpose visa. The Applicant is not an Australian citizen, and there is no suggestion and no evidence that he has held a special purpose or special category visa. The Applicant only obtained permanent residence status on 11 September 2001. On this basis he does not meet the requirement in section 37(3) of the Act, in respect of allied veterans, of a continuous period of Australian residence of ten years.
12. However, section 37(5) of the Act provides that the additional requirement of ten years residency does not apply if a person became permanently incapacitated for work whilst an Australian resident.
13. The issue for the Tribunal to consider then is the time at which the Applicant became permanently incapacitated for work. If he became permanently incapacitated for work after 11 September 2001, he meets the requirements of the Act. If not, he must wait until he has been an Australian resident for ten years.
applicant's evidence
14. The Applicant told the Tribunal that he was very affected by the events in New York on 11 September 2001. He said that when he heard the news of the terrorist attack he “went to pieces" and drank a litre of bourbon. He said that before September 11 he was not drinking.
15. However, the Applicant said that he saw Dr Keshava in 1999, having been referred by the Vietnam Veterans' Association and having first seen a counsellor recommended by that Association. He said that he used to have nightmares, wake up in a cold sweat and "get out of line".. The Applicant said that he saw Dr Keshava regularly for a while.
16. The Applicant said that in the United States he had psychiatric treatment, including medication for nightmares. He also said that when, in 1997, he stopped work, he had been working as a casual cleaner for approximately 12 hours per week. The Applicant said he injured his leg on the job and decided to retire because he wanted to spend more quality time with his grand children. However, when pressed, the Applicant said that if he had had to work at that time he did not think he could have.
17. The Applicant said that he went to see Dr Keshava in 1999 as he was having nightmares, trying to remember names and having flashbacks about Vietnam. He said that he agrees with Dr Keshava's report (Exhibit R4) in that he was drinking six or seven beers and three or four litres of wine per day. He said that he was being supported by his de-facto spouse who also paid for his alcohol.
other evidence
18. Exhibit R2 is Dr Lewin's report dated 9 December 2002. Dr Lewin took an extensive history from the Applicant, which included, among other things, treatment whilst in the army in Japan and in the United States for several months for a psychiatric condition. That treatment included the use of sedating medication and anti-depressants. Dr Lewin also reported that the Applicant had three or four separate psychiatric hospitalisations in the period after his military discharge. Dr Lewin said:
"…
Mr Huck served in Vietnam over a 12 month period and was engaged in combat duties. Soon after leaving Vietnam he was treated for a psychiatric illness in hospital initially in Japan and later in the United States. He was discharged on the basis of his psychiatric condition and subsequently had three or perhaps four psychiatric admission in quick succession. He has had ongoing psychiatric treatment since that time.
It is clear that Mr Huck has developed a complex of psychiatric problems, which appear to relate directly to his military service. He has psychotic symptoms and he is evidently currently experiencing organic memory disturbance. There is a long history of excessive drinking and he developed physical hallmarks of alcoholism in 2001. Mr Huck gives a history of a range of clinical features of alcoholism (Alcohol Dependence Syndrome). The physical hallmarks that he described suggest that he has had a very severe drinking problem for at least five years and probably for more than ten years. He has had a history of disrupted work since he settled in Australia in 1988. It appears that he has not worked since 1996 or 1997."
19. Dr Lewin then went on to assess the Applicant under the GARP and gave him a rating of 31. He concluded as follows:
"Mr Huck has suffered from a complex of psychotic symptoms, anxiety and depressive symptoms and a persisting Alcohol Dependence Syndrome. It is my opinion that the Alcohol Dependence Syndrome and the anxiety and depressive problems are a direct result of his military service. The Alcohol Dependence Syndrome has been a permanent condition for longer than five years. I note in particular that he has physical hallmarks of alcohol dependence and that these physical hallmarks take a very long time (generally more than five years, often as long as ten years) to evolve.
On the basis of his alcoholism alone, Mr Huck has been unfit for any work for more than five years. Given the seriousness of his alcoholism he is unable to act in a responsible manner and is unlikely to be predictable in his work habits or reliable in his performance of his duties. It is my opinion that his impairment has been a permanent condition for at least five years and probably for a longer period. He has not been fit for work for this entire period (i.e. since prior to 1997). It is likely that the impairment for work has been a permanent condition for even longer than this."
20. Exhibit R4 is the report of Dr Keshava dated 6 June 2003. Dr Keshava refers to earlier reports in 1999 and 2001 and states as follows:
"He said that since he has heard the news of the September 11th attack on the World Trade Centre in New York, his condition has deteriorated rapidly. Apparently after hearing the news he drank a few bottles of bourbun [sic] and collapsed. He was drinking up to eight litres of wine a day and he went into liver failure. His nightmares and flashbacks have increased. He once fell out of his bed and broke his teeth. Recently he slipped and fell in the bathroom and he could not get out of the bathroom for nine hours until his wife found him lying in the bathroom.
He is currently on Endone 5mg nocte, Campral 1b.d, Losec 1 daily, Betamine 100mg 1 b.d and B complex tablet.
His condition has deteriorated and he has total lack of insight into his problems. He does not keep his appointments and his compliance with his medication is unpredictable. His blood pressure was 140/90 of Hg. His prognosis is poor. He is not fit for any gainful employment and he is totally and permanently incapacitated.
I have herewith enclosed a GARP impairment rating and I am of the opinion that the impairment rating was the same when I assessed him in June 1999 and he has been permanently incapacitated since June 1999."
21. The GARP impairment assessment dated 23 March 2003 enclosed by Dr Keshava gives a final rating of 48.
22. Exhibit R3 is the report of Dr Robin Chase, Occupational Physician, dated 24 June 2003. Dr Chase gives an impairment rating of 43 and states:
"Mr Huck however alleges that he made a full recovery from that condition (post-traumatic stress disorder), returned to full paid employment and did not drink heavily until the terrorist attacks on 11 September 2001. He subsequently alleges that he has only been permanently incapacitated from work since September 2001.
Supplied documentation, particularly reports from his own doctors, say otherwise. It is clear that the Post-Traumatic Stress Disorder started during his time in Vietnam, while alcohol abuse and alcoholic liver disease are chronic conditions that take many years to develop. It is conceivable that the terrorist attack of September 2001 resulted in a deterioration of Mr Huck's general physical state and perhaps induced an increase in his alcohol intake but this is belied by the histories obtained by Drs Law and Keshava documented in their reports listed in Appendix B. It is clear that Mr Huck has been permanently unable to work as a result of Post-Traumatic Stress Disorder and Alcohol Dependence, Alcohol Abuse and Alcoholic Liver Disease for some years. This permanent impairment very much predates 2001 and was at least present in 1999 and most probably dates back to well before that. It is impossible to say when Mr Huck's physical and psychological state deteriorated to the point that he could no longer function in paid employment but it most likely occurred some time in the early to mid 1990's, if not before. The only way to determine this would be to access his own treating doctor's reports, or work performance data from the US Department of Treasury, or personnel files from his employers in Australia."
23. Document T32 is the report of Dr Nelly Zwatrzka, Senior Medical Advisor of the Department of Veterans' Affairs dated 7 February 2002:
"This allied (American) Vietnam War veteran has lodged a claim for ISP on the basis of PTSD, Alcohol Dependence, Alcoholic Psychosis (Paranoia), Alcoholic Liver Disease and Cardiac Arrhythmia. The cardiac arrhythmia is of a serious kind --- paroxysmal ventricular tachycardia and has been only recently diagnosed. He is asymptomatic with this condition.
The psychological conditions have been present since the Vietnam conflict era. In a psychiatric report from October 1999, Dr Keshava (f37) notes the veteran has significant incapacity resulting from his alcohol Dependence and his mental illness. Dr Law's assessment in 2001, although brief, does not substantially differ from that of Dr Keshava's.
I have also reviewed GARP rating by DMO; I mostly agree with it, however, the veteran, even in the 1999 report exhibits a higher degree of Manifest Distress which would have been evident even to those that were not very familiar with the veteran. He would have been entitled to 10 points under Table 4.2. This would have resulted in a Combined Impairment Rating of at least 38 points (rounded up to 40 points. Even in 1999, the veteran was deemed unfit for any work above 8 hours per week. He was also unfit for retraining programs. Therefore, he was totally and permanently incapacitated for any type of work.”
24. Exhibit A4 is the report of Dr Ross Hindmarsh, the Applicant's general practitioner, dated 27 August 2003. Dr Hindmarsh reports:
"I am Robert Huck's general practitioner. In the past year he has been admitted to hospital three times with injuries sustained following alcohol binges. He has significant alcohol liver disease and suffers from post traumatic stress disorder and supraventricular tachycardia. He has limitation to his mobility due to soft tissue injury and fractured ribs. He is permanently incapacitated and will not work again.
Allergies - nil.
Past History
1969 1969 ARTERY DAMAGED LEFT LEG
1996 1996 ALCOHOL ADDICTION
27 June 1999 SUPRAVENTRICULAR TACHYCARDIA
15 May 2002 FRACTURE - NOSE
15 May 2002 LACERATIONS TO FACE
18 June 2002 ALCOHOL ADDICTION
1 August 2002 GOUT
3 August 2002 LIVER FAILURE
27 August 2002 KNEE PAIN - SUPRAPATELLAR BURSITIS (Left)
27 August 2002 REFLUX OESOPHAGITIS
4 October 2002 FOLIC ACID DEFICIENCY
13 December 2002 DENTAL EXTRACTIONS
22 January 2003 RIB FRACTURE"
consideration
25. The Tribunal accepts that the Applicant was deeply affected by the events of 11 September 2001 and that those events gave rise to a deterioration of his condition. However, the medical evidence before the Tribunal supports overwhelmingly the conclusion that the Applicant was permanently incapacitated for work prior to 11 September 2001.
26. It follows that the requirement for allied veterans, in section 37(3) of the Act, to have been an Australian resident for a continuous period of at least ten years, applies to the Applicant. As he became an Australian resident on 11 September 2001, he does not yet qualify as eligible to receive an invalidity service pension.
Decision
27. The decision under review is affirmed.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member
Signed: L Bonouvrie
AssociateDate/s of Hearing 10 September 2003
Date of Decision 14 October 2003
Solicitor for the Applicant Self-represented
Advocate for the Respondent Philippa Hook
3
0
0