Huynh and Repatriation Commission
[2003] AATA 166
•20 February 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 166
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/87
VETERANS' APPEALS DIVISION ) Re HUU HAO HUYNH Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr M.E.C Thorpe, Member Date20 February 2003
PlaceSydney
Decision The decision under review is affirmed. [SGD] Member
CATCHWORDS
VETERANS’ AFFAIRS – Invalidity service pension – permanent incapacity for work – assessment of impairment under Chapter 4 of GARP – decision affirmed
Legislation
Veterans’ Entitlements Act 1986 – ss. 37, 37AA, 120(4)
Veterans’ Entitlements (Invalidity Service Pension – Permanent Incapacity for Work) Determination 1999 – Clause 5
Guide to the Assessment of Rates of Veterans’ Pensions – Chapter 4Case Law
Repatriation Commission v Smith (1987) 15 FCR 327
Van Long Nguy and Repatriation Commission (unreported, AAT, 20 March 2002, No N2001/513)
Pham and Repatriation Commission [2002] AATA 1279REASONS FOR DECISION
20 February 2003 Dr M.E.C Thorpe, Member 1. The decision under review before the Administrative Appeals Tribunal (“the Tribunal”) was the decision of the Repatriation Commission (“the Respondent”) dated 19 June 2001 as affirmed by a delegate of the Repatriation Commission on 15 December 2001 to find that Mr Huu Hao Huynh (“the Applicant”), was not permanently incapacitated for work within the meaning of section 37AA of the Veterans’ Entitlements Act 1986, and that he was therefor ineligible for invalidity service pension.
2. On 5 December 2000 a delegate of the Repatriation Commission decided that Mr Huynh was a veteran and has eligible service and entitlements under the Act for invalidity service pension, provided he meets the tests.
3. The Applicant was represented at the Hearing by Mr T McCombe of the Vietnam Veterans’ Association, and the Respondent by Ms R Henderson of counsel. The Tribunal was assisted by Mr Lim Ambrose, an interpreter in the Vietnamese language.
LEGISLATION
4. The relevant legislation in this matter was the Veterans’ Entitlements Act 1986 (“the Act”), in particular sections 37, 37AA and 120(4). Sections 37(1) and 37AA state:
SECTION 37
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
…
SECTION 37AA
Commission must determine circumstances in which persons are
permanently incapacitated for work
(1) The Commission must, by written determination, specify the circumstances in which persons are permanently incapacitated for work for the purposes of paragraph 37(1)(c).
Variation or revocation
(2) The Commission may, by written determination, vary or revoke a determination under subsection (1).
Disallowable instrument
(3) A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
5. The relevant instrument in this matter was the Veterans’ Entitlements (Invalidity Service Pension – Permanent Incapacity for Work) Determination 1999. Clause 5 gives the circumstances regarding permanent incapacity and states as follows:
5Circumstances 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.
ISSUE BEFORE THE TRIBUNAL
6. The issue before the Tribunal was:
· whether Mr Huynh is permanently incapacitated for work within the terms of section 37AA of the Act; and if so,
· whether he is therefor eligible for the invalidity service pension.
EVIDENCE BEFORE THE TRIBUNAL
7. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, (“the T-documents”) as Exhibit TD1 and the following other documents.
Exhibit
Description
Date
A1
Report of Dr Law
22 March 2002
A2
Report of Dr Dinnen
18 September 2002
R1
Report of Dr Burns
6 May 2002
R2
Report of Dr George
15 May 2002
R3
Dr Dao – notes/reports; including reports of
Dr Naidu
and Dr BarinR4
Bundle of documents from Centrelink
Mr Huu Hao Huynh - the Applicant
8. Mr Huynh was born in An Xuyen, South Vietnam on 6 February 1949. He told the Tribunal that he had served in the South Vietnamese Army in the Regional Forces as a forward guide for the unit from 1969. (The Tribunal noted that date of enlistment in the Claim for Qualifying Service (T3/9) was 12 May 1968). He said that he had been a “fighting man” and that he had participated in ambushes and some famous battles. His unit had been ambushed by the “other side”. He was on patrols and military operations and there had been more than one ambush.
9. Mr Huynh told the Tribunal that he was injured in active action when he stepped on a mine. He said he was back from a great battle and on his way to his barracks. He crossed a small bridge, which was mined and it exploded. He injured his right leg and lost consciousness. He cannot remember what happened after that. When he came to he was in a military hospital. He stayed there for a few weeks. He was given a crutch to walk with and then sent back to his unit.
10. Mr Huynh was discharged from the Army in 1975 when the Communists took over the country. Mr Huynh said that before he joined the Army in Vietnam he was a student. He told the Tribunal that on post discharge he had to report to the new authority and was sent to a concentration camp for re-education for about three months.
11. Mr Huynh said that in the camp he was forced labour and was ill-treated. He was malnourished as there was very little to eat. After his release he was sent home. He couldn’t find work because of his military background. He could travel a little bit buying and selling goods on his bicycle. He told the Tribunal he did that for a short time only as he was in poor health. He had pain in his legs. When asked by Ms Henderson, for the Respondent, why Dr Burns, an occupational physician, had been told he worked for a period of almost ten years buying and selling old wares, he answered, “maybe I rode my bike a little bit around, but because of the pain in my legs I couldn’t travel a very long distance.” Mr Huynh questioned how he could have done that for ten years. His friends advised him to escape the country. He escaped from Vietnam in 1986 on a small boat with other people and travelled to Indonesia where he stayed in Galang Camp for one year. He was then accepted into Australia as a refugee migrant in February 1987. Mr Huynh was granted Australian citizenship on 13 November 1989.
12. Mr Huynh was married on 23 October 1973 and separated from his wife on 14 May 1997. He and his wife divorced on 29 August 1997. He has a daughter who was born one month prior to the communistic takeover in 1975. His wife and daughter did not accompany him when he came to Australia in 1987. They came to Australia in about 1992. His wife returned to Vietnam after two months. His daughter stayed with him because he was very sick at that time with very high blood pressure. He had no other relatives in Australia.
13. Mr Huynh said that he now lived at Kemps Creek and shared with two friends in rental accommodation. He has always lived in share accommodation since coming to Australia. He said he hated moving house and usually stayed for a long time. He said he got on quite well with his housemates. They have separate lives. He watched television, read Vietnamese newspapers and listened to Vietnamese radio programs. He rarely went out. Sometimes he went to the library. He told the Tribunal he went there to read Vietnamese newspapers and because, in hot weather it was much cooler there with the air-conditioning. He said he enjoyed reading the “big characters”.. He did not drink alcohol because of his high blood pressure and diabetes. His daughter had recently moved out because she had a boyfriend and now lived at Greenfield Park. Mr Huynh told the Tribunal that he got on very well with his daughter.
14. Mr Huynh told the Tribunal that when he first came to Australia he found work in a furniture factory. He couldn’t remember when he started work there. The person who introduced him to the job was a friend of the owner of the house that he lived in. After three or four months he couldn’t stand it anymore so he left. He said his health condition didn’t allow him to work so he stopped. After the furniture job he couldn’t find work because of his poor English and because he didn’t have transport. He found it very hard to find a job after the furniture work. He said he could only understand very basic English. He said he was on social security benefits, and started claiming Newstart Allowance in May 1997. Someone from Centrelink Job Network assisted him by filling in his forms. Last year Centrelink requested Mr Huynh attend an English course. Mr Huynh had attended two English courses when he arrived in Australia and last year he attended a course three days a week.
15. When asked by Ms Henderson if he had worked for Viscount Caravans at Liverpool he said he could not remember. Centrelink documents (R4 at pp164/168) showed that Mr Huynh worked at Viscount Caravans as a process worker from 18 July 1988 to 17 October 1988 and that his reason for stopping work was “the job was too heavy for me.” Ms Henderson also asked Mr Huynh if he had worked for three years until 1997 for a company that installed greenhouses. Mr Huynh remembered working as a general hand but could not recall for how long he worked there. According to the Centrelink documents (R4 at p150) Mr Huynh worked for Greenhouse Installation Company at Hornsby for three years from 1 January 1994 to 2 March 1997 as a “labour/hand worker.” His reasons for stopping work were that “I don’t had job for me because I’m casual.”
16. Mr Huynh remembered, when asked by Ms Henderson, that he had worked in Darwin. He told the Tribunal that he went there with some of his friends and worked for Mr Ho on a farm in Palmerston. Mr Ho was growing basil to supply to Vietnamese and Chinese restaurants. Mr Ho, in a letter dated 1 October 1997, (R4 at p120) certified that Mr Huynh had worked for him from 2 July 1997 to 30 September 1997. Mr Ho wrote: “Because the season so he temporary stop to work. If next season I need him again, I will call him back.” Mr Huynh said he did odd jobs to help Mr Ho, which was the only thing he could do. Mr Huynh said he actually got fired from the job because he was not very good at it.
17. When asked by Ms Henderson why he had told the Tribunal that he had not done any work since the furniture business, Mr Huynh replied “Due to my troubled memory, my poor memory, my amnesia, sometimes I remember things, sometimes I forget them…”.. Mr Huynh recalled travelling back to Vietnam on occasions. He said that a relative, who stayed in Vietnam, sent him money for his aeroplane tickets.
18. Mr Huynh told the Tribunal that he got his driver’s licence about three to four years after arriving in Australia. He initially owned a Mazda 323 sedan that only cost him a few hundred dollars to buy. The money, he said, had been borrowed from three or four friends. His current car was a Toyota Hi-Ace van. He said he had had an accident so it was out of use. The van had belonged to a friend of his, who had “donated” it to him. He said he rarely drove the van as he didn’t feel very comfortable driving it.
19. Ms Henderson asked Mr Huynh about his friend Mr Huu Thanh Pham. He said that Mr Thanh was a good friend to him and that he “comes to my place to help me with travel.” Mr Thanh, on 31 January 2001, (T45) wrote in a Statutory Declaration that:
“I would like to certify that myself and my family have known Mr H.H. Huynh for over 10 years in Sydney, Australia.
We also often meet each other in almost our families’ festives and Vietnamese community activities.
We are close friends and in good relationship.”
Mr Huynh said that sometimes, but not many times he would get together with Mr Thanh in Vietnamese community activities. He told the Tribunal that he hated a crowd and didn’t want to be in a crowd. He noticed that after a few years after being in Australia he found it too noisy and he got headaches.
20. Mr Huynh said that he was receiving medical treatment from Dr Law, a Consultant Psychiatrist, and saw him whenever he ran out of medication and needed a prescription. He was previously seeing Dr Law once a month and this had decreased to once every three months. He said Dr Law spoke English and he used his secretary to interpret. He talked to Dr Law about his conditions. Dr Law gave him a booklet in Vietnamese relating to depression. He said that Dr Law had told him not to take life too seriously and not to have too much stress. Mr Huynh could not remember exactly when he was given the booklet. He thought it was about two or three months ago when he ran out of his medication. He said Dr Law gave him sleeping pills because he “cannot get to sleep at night and I have bad dreams at night, frequent bad dreams at night. In my dreams I usually see killing scenes, bombs, people killing each other related to the war.” Mr Huynh said it was a long time ago that he started to take sleeping pills and that he took a pill almost every night or whenever he couldn’t get to sleep. He previously took one tablet and this had increased to two tablets.
21. Mr Huynh said he took a lot of medication. He told the Tribunal he had high cholesterol. The Tribunal was shown his medication labels. Mr Huynh was prescribed Norvasc - hypertension; Avapro HCT - hypertension; Diaformin - diabetes; Diamicron - diabetes; Lipitor - cholesterol; Deptran - depression.
22. Mr Huynh said that he saw Dr Pope a long time ago and could not remember when he last saw him. He said he usually saw Dr Dao. Dr Dao spoke to him in Vietnamese. He could not remember when he first saw Dr Dao. Dr Dao usually treated him and sent him to specialists. Mr Huynh could not remember seeing Dr Naidu for his diabetes and could not remember which doctor sent him to Dr Law.
MEDICAL EVIDENCE
23.Medical reports were available from:
· Dr Binh Khiem Dao (Exhibit R3) - treating doctor’s notes / reports, including specialist medical reports from Dr. Vernon Naidu, Endocrinologist and Dr Edward Barin, Cardiologist.
· Dr S.K. Law, Treating Psychiatrist, 17 July 2000, (T7/50), 5 February 2001, (T7 /51-53) including medical impairment rating and (Exhibit A1), 22 March 2002.
· Dr Anthony Dinnen, Psychiatrist (Exhibit A2), 18 September 2002.
· Dr D.J. George, Psychiatrist, (T9/57-61), 29 April 2001; (Exhibit R2), 15 May 2002.
· Dr Mark Burns, Occupational Physician (Exhibit R1), 6 May 2002.
· Dr Chi Hoang, (Exhibit R4, pp28-42), Mr. Huynh’s file documents from Centrelink, 25 January 2001.
· Dr Dinnen and Dr George gave oral evidence before the Tribunal.
24. It is not in dispute that the applicant suffered from post-traumatic stress disorder (PTSD). The other medical conditions also not in dispute are summarised by his General Practitioner Dr Binh Khiem Dao in his letter of 5 September 2002,
TO WHOM IT MAY CONCERN:
Mr. Huynh has suffered from
1. Hypertension due to renal artery stenosis
2. Hypercholesterolaemia
3. Diabetes well controlled.
These medical diagnoses are not in dispute and are supported by the accompanying specialist medical reports from Dr Vernon Naidu - 9 January 2001,10 April 2001 and Dr Edward Barin - 8 November 2000. The Applicant also suffered from spondylosis.
25. Mr McCombe for the Applicant presented the case that the Applicant suffered from a number of disabilities - physical disabilities. The physical disabilities alone do not make him unemployable but the psychiatric disabilities of PTSD, which he had been diagnosed as suffering from, did make him unemployable and the Tribunal received reports from his treating psychiatrist and Dr Dinnen to support the claim.
Dr Law – Psychiatrist
26. Dr Law originally saw Mr Huynh on 14 July 2000 following referral from Dr Harold Pope. From the evidence it was not clear why it was Dr Pope who provided the referral rather than his usual general practitioner Dr Binh Khiem Dao. In his report of 17 July 2000 (T7/50) Dr Law wrote that Mr. Huynh “came to Australia in 1987, and he had never worked in this country. He also wrote that his wife and daughter had left him around 1993, and he’s now living on his own”. Dr Law’s opinion was:
“Mr Huynh has been suffering post-traumatic stress disorder, as a result of his past adverse military and re-education experiences. His symptoms were probably brought out by ongoing stresses of adjusting to life in a country with a new culture and language.”
He counselled him and prescribed Deptran 50 milligrams (mg) nocte. In his history Dr Law reports that Mr Huynh said “in the past several years he had suffered from insomnia and spells of headaches. In the past five years the symptoms had worsened a lot. He also felt depressed and irritable and he suffered from bad dreams of some past war-time scenes. He screamed from his sleep at night at times. His concentration was very impaired.”
27. In a further letter to Dr Pope, 5 February 2001, Dr Law reported the symptoms remained the same. In addition to his psychological problems (tension headaches, impaired concentration, broken sleep, forgetfulness, fatigability (sic) and spells of anxiety and depression) he had suffered a lot from a lot of back pain, also some right lower limb pain and numbness of many fingers in both hands. He concluded Mr Huynh “has been suffering from post-traumatic stress disorder (PTSD). The symptoms of his PTSD have become very significant and disabling in the past five years. He is now most probably permanently incapacitated for work, because of his PTSD since his arrival in Australia.”
28. Dr Law gave a GARP assessment of 46:
Table 4.1Subjective Distress 15 Much of the time Mr Huynh is affected by headache , insomnia, poor concentration, forgetfulness, fatigability, spells of depression and anxiety. He finds it difficult to distract himself from the distress despite high levels of support.
Table 4.2Manifest Distress 10 His facade and expressed words clearly convey to even strangers that he is significantly distressed.
Table 4.3Functional effects 1 Has to take extra care in guarding himself against risks to life. eg watching for oncoming traffic before crossing a busy road.
Table 4.4 Occupation: 8 totally unable to work
Table 4.5 Domestic situation: 8 Wife and children have left him several years ago. He’s living on his own. He’s been irritable before with his family.
Table 4.6 Social interaction: 3 Substantially reduced level of social interaction
Table 4.7 Leisure activities: 5 No hobbies. Unmotivated to develop any
leisure activities.
Table 4.8 Current therapy: 5 Limited therapeutic response despitesupportive counselling and use of psychotropic medications.
29. In a further report to Dr Pope, 22 March 2002, (Exhibit A1), Dr Law indicated that he had seen Mr Huynh on a further seven occasions subsequent to 5 February 2001. Dr Law concluded “Mr Huynh is still suffering from moderately severe symptoms of his PTSD.” He counselled him again and asked him to persevere in taking Deptran 100 mg nocte. He confirmed Mr Huynh to be totally and permanently incapacitated for work and confirmed his previous GARP assessment of him dated 5 February 2001, that yielded a total score of 46.
Dr Dinnen
30. Dr Dinnen’s report of 18 September 2002, (Exhibit A2) was before the Tribunal and Dr Dinnen gave oral testimony. Dr Dinnen’s opinion was the diagnosis was that of post-traumatic stress disorder. The major destruction of his personal and family life, his non existent marriage, and the extent to which he relied on the support of his only daughter, attested to the ravishes which have been wrought by the war.
31. Dr Dinnen had interviewed Mr Huynh both alone and with Mr Huynh’s daughter as both a source of information and as an interpreter. He asked what were the problems that he talked to Dr Law about and Mr Huynh replied “No sleep. My leg. My back. My hands very pain”(sic). Dr Dinnen ascertained that the Applicant had not worked since he came to Australia. (par 6 p2 of his report). Also Dr Dinnen on interview of his daughter, Mimi (My Huynh aged 27), reported that she had never known him to work (par 5 p3 of his report). He saw no reason to discount the GARP assessment of Dr Law.
32. Earlier Dr Dinnen had commented “the depth of difficulty with communication, where English is not the first language, in my experience is an excellent and reliable pointer to the presence of psychiatric illness and taken in context with other information. In this case I believe his communication difficulties are attributable to his chronic psychiatric disorder.”
33. In re-examination, Mr McCombe asked Dr Dinnen if Mr Huynh’s evidence to the Tribunal was that he had four periods of work since he had been in Australia varying from two months to three months and one period of two years would change his opinion. Dr Dinnen:
“Yes, it – it does change things a bit. It doesn’t change the diagnosis. I still the diagnose is that of chronic post traumatic stress disorder and I would – and it does have some bearing on veracity. If I asked him if he’d ever worked since he came to Australia and his daughter had said he’d never worked since he came to Australia and it turns out he has worked, then I’m not as comfortable with relying on the history that I obtained as I would be otherwise.”
When asked by Mr McCombe would you change your opinion on it? Dr Dinnen answered “No” (p42 Transcript).
34. At the Hearing where evidence had become available that Mr Huynh had undertaken work on at least three occasions since coming to Australia, Dr Dinnen was asked if this information would affect his GARP assessment. His initial response was that under Occupation (Table 4.4) the previous assessment of 8 would become either 3 or 5 impairment rating “depending on what information you would then obtain about what happened to him while he was working”.. Following an opportunity to review his assessment Dr Dinnen settled at 5 for Occupation but increased Manifest distress (Table 4.2) from 10 to 15 and maintained an overall GARP assessment of 46.
Dr George – Psychiatrist
35. In his report of 29 April 2001 (T9/61) Dr George opined that whilst Mr. Huynh “has residual symptoms of Post-Traumatic Disorder related to his Vietnam War experience, this would not preclude him from part-time work or full time work in the future.” When his diagnosis was tested by the Tribunal, Dr George considered Mr Huynh had residual elements of post traumatic stress but not sufficient to carry a diagnosis. Dr George referred during the Hearing to his notes in his second report (Exhibit R2) “Once again, on this occasion I found Mr Huynh to have no evidence of ongoing psychiatric disorder.” In his earlier report Dr George had written “that from 1977 onwards he has not done very much work. He said he did work as a general hand in a furniture shop for a short time, but generally, he said he had been supporting himself on “welfare” since arrival.”
36. In his report of 15 May 2002 Dr George pointed out that nearly all of his symptoms (tension headache, impaired concentration, broken sleep, forgetfulness, fatigue and periods of anxiety and depression) could be related to uncontrolled diabetes.
37. In evidence, Dr George opined that poor blood pressure control, the recent death of his father and the subsequent trip to Vietnam for his funeral, and uncontrolled diabetes could have contributed to the subjective distress of Mr Huynh on 5 February 2001, when Dr Law made his assessment. When tested by Mr McCombe about his expertise in diabetes, Dr George indicated he had done six months training with an Endocrinologist who was a diabetic specialist. In evidence, he considered that “Dr Law wasn’t really cognisant of Mr Huynh’s poor diabetic control and his uncontrolled hypertension, and I think he could easily draw the wrong conclusions.”
Dr George’s Medical Impairment under GARP was 11 points.
38. Dr George indicated his difficulty with GARP – “So you’ve got a very big discrepancy in GARP findings. The problem with GARP - is that it is highly subjective, and unless you’re actually prepared to really do a thorough system review of all the symptoms that are actually presented by patients, you are going to draw the wrong conclusions and I think Dr Law has done that.”
39. Dr George, when questioned about Table 4.2 of GARP (Manifest Distress) stressed the importance of interaction with the interpreter by the Applicant. “I think it very important to have a competent interpreter when you’re actually doing these examinations because otherwise, again, you’ve got another factor which can mean that you draw wrong conclusions. If you don’t have a somebody that perhaps is trained as an interpreter, they can put their interpretations onto what’s said or they can do a – they can actually add or detract things from interpretations. So I think Dr Dinnen had that problem in the sense that he didn’t have an interpreter as well.”
Dr Burns – Occupational Physician
40. Dr Burns in his report of 6 May 2002 gave a work history after leaving the re-education camp, of Mr Huynh going around on his bicycle buying and selling wares (an old fashioned tinker) and that he continued this work for a period of almost ten years. Also that Mr Huynh obtained work in a factory as a process worker and cleaner for five to six months after arriving in Australia before developing dizziness. He was investigated and found to have hypertension. Whilst his hypertension was being treated he resigned from work, that he has not worked since that time and that he has been on Newstart Allowance since 1987. Dr Burns GARP assessment was 33 and this included:
Disability Table(s) Impairment
1. Diabetes mellitus 12.1.1 5
2. Hypertension 9.1.1, 5.4 Nil +5
3. Post Traumatic Stress Disorder 4.1 – 4.8 21
4. Lumbar Spondylosis 3.3.1 Nil
33
Dr Burns referred to the specialist medical reports concerning diabetes and hypertension.
Diabetes Mellitus
41. Dr Naidu, Endocrinologist had investigated this. In his letter to Dr Binh Khiem Dao on 9 January 2001, he indicated that overall diabetes control has now improved and that he continue his current diabetes treatment, which is Diamicron 80 mg daily and Diaformin 500 mg b.d. In a further letter dated 10 April 2001, he reported diabetic control as satisfactory, as indicated by glycated haemoglobin level of 7.2 per cent, decreased from level of 14.4 per cent in November last year. He noted that Mr Huynh had a weight problem. He reduced the dose of Diaformin to 40 mg a day and recommenced Diaformin 500 mg b.d. which Mr Huynh had stopped taking.
Hypertension
42. Dr Edward Barin, Cardiologist, in his letter to Dr Dao dated 8 November 2000 reported that a renal CT angiogram showed that he had a duplex arterial system on the left with a stenosis of his left accessory renal artery. He was not certain if this contributed to his elevated blood pressure readings. He ceased the Avapro and increased the Norvasc to 10 mg daily. On that date Mr Huynh’s blood pressure reading was 140/95. Dr Barin also added Lipitor 20 mg daily for his hyperlipidaemia. Dr Burns in his report of 6 May 2002 “ He is currently taking Lasix, Norvasc and Avapro. He has his blood pressure checked every couple of weeks. His family doctor is happy with his current readings.” Dr Binh Khiem Dao’s clinical notes indicated elevated blood pressure readings over a number of years with a note on 25 April 1999, “ MUST TAKE Antihypertensives”. Perusal of Dr Dao’s clinical notes indicated moderately well controlled hypertension over a number of years.
Dr Chi Hoang
43. Contained in the file documents from Centrelink (pp 29-41), dated 25 January 2001 was a Whole Person Assessment by Dr Chi Hoang Medical Adviser, Health Services Australia. Dr Hoang reported “He came to Australia from Vietnam in 1987. He only worked for a few months as a general hand in a furniture shop until he was no longer needed. He has been unemployed for the last 13 years.” Dr Hoang had as the medical problems:
Non- Insulin dependent diabetes
High blood pressure
Generalised aches and pains
Anxiety / depression
His conclusion was ”In my opinion, Mr. Huynh is fit for full time work in jobs with limited lifting. He could suitably work as a driver/courier, or as a shop assistant.”
Anxiety / depression was the psychiatric diagnosis provided by Dr Law at that time. Subsequently in his certificate of 5 April 2001 Dr Law’s diagnosis was post traumatic stress disorder.Dr G Goralewski
44. Several references were made during the Hearing to a report dated 13 February 2001 from Dr G Goralewski Delegate to the Secretary to the Department of Family and Community Services. This report (pp 10-15) of Centrelink documents (Exhibit R4) gave a total impairment rating of 0 points, stated that the client is now fit for any kind of full time or part time employment avoiding heavy lifting and that no more medical certificates were to be accepted for the same condition.
SUBMISSIONS
45. The Tribunal had to take into account all the evidence, submissions, case law and legislation to make the correct and preferable decision regarding Mr Huynh’s claimed invalidity to assess whether he was eligible for the invalidity service pension pursuant to section 37AA of the Act.
46. The Tribunal noted that Mr Huynh had been a Vietnamese national, served in the Army in his former homeland, been granted Australian citizenship in 1989, and that he now had entitlements under the Act for invalidity service pension provided he could satisfy the requisite tests.
Applicant’s submissions
47. Mr McCombe submitted that the Tribunal should put great credence on Dr Law’s medical opinions. Mr McCombe referred to Dr Law’s report (Exhibit A1) and submitted that there was a list of seven dates whereby Dr Law had previously seen the Applicant and his report, which was up to March of 2002, was written after the eighth consultation. He submitted that Dr Dinnen had also supported what Dr Law had stated in his report.
48. As to the discrepancy in the evidence, the history given by Mr Huynh and the evidence given at the Hearing, Mr McCombe submitted that Dr Dinnen had taken that into account and had issued a new assessment. Mr McCombe submitted that Dr Dinnen had come to the same conclusion as Dr Law, in that he was unemployable at the time. Dr Dinnen had rated Mr Huynh at 44 impairment points in the GARP assessment. Dr Law’s assessment had rated Mr Huynh at 46 impairment points. Mr McCombe said that because some of the history given to Dr Law may have been incorrect, it didn’t mean that the whole conclusion of Dr Law’s report was incorrect.
49. Mr McCombe said that “Because some of the history given to Dr Law may not be – might be incorrect, doesn’t mean that the whole conclusion of Dr Law’s is incorrect. He states that the Applicant hasn’t worked since he’s been in Australia but my submission is that overall – even though he has reduced impairment ratings, that he’ll still be over the 40 impairment points anyway”.
50. Mr McCombe submitted that there were still the other physical disabilities of spondylosis, diabetes and hypertension. Mr McCombe referred to Dr Burns’ report (Exhibit R1), where he was given a diabetes impairment of 5 points and a hypertension impairment of 5 points. Mr McCombe submitted that the total was well over the 40 points required to satisfy the Act. Mr McCombe told the Tribunal that he relied on the oral decision of Senior Member Allen in Van Long Nguy and Repatriation Commission (unreported, AAT, 20 March 2002, N2001/513) and the decision of the Tribunal in Pham and Repatriation Commission [2002] AATA 1279. Mr McCombe submitted that both these decisions referred to and gave credence to Dr Law’s report.
51. Mr McCombe said the evidence was strong that he cannot work, both because of his physical and psychological condition. This would not preclude him from working for up to eight hours a week.
Respondent’s submissions
52. Ms Henderson submitted that the Centrelink documents (Exhibit R4) supplied the factual data for this matter. Ms Henderson referred to the Centrelink documents (Exhibit R4) that provided some chronology of Mr Huynh’s marriage in Vietnam on 23 October 1973 and his divorce on 29 August 1997 in Australia. His daughter was born in 1975. He arrived in Australia on 12 February 1987. His wife and daughter came to Australia in 1992 and his wife left and returned to Vietnam two months later but his daughter had remained. Ms Henderson had put to the Applicant that there were indications in the Social Security material that he had been employed at various stages since arriving in Australia.
She indicated the following references for these employments:
“Viscount Caravans at page 164. Last worked 17 October 1988. In job for three months as a process worker
Greenhouse Installation Company at page 150. Two dates were given January 1994 to March 1997 and 30 June 1994 to 30 June 1996.
Mr Ho of Palmerston (Exhibit R4) at page 123. Work place: Darwin Job: weeder How long at the job: Two months.”
Ms Henderson indicated that Mr Huynh, in giving his history to a number of medical practitioners, had referred to short term jobs which he held not long after coming to Australia and which he abandoned, never to work again. “It’s plain from the Centrelink document that those claims cannot stand and the applicant has actually agreed that he performed the jobs I’ve just been describing to the Tribunal.” (Trans p55).
53. The Respondent’s submission was that “it’s impossible to draw a conclusion about the Applicant's veracity under the circumstances. The denial of having worked in Australia turns up repeatedly “- Dr George at T9/58 and Dr Burns in page 3 of his report. Dr Dinnen was told the Applicant had never worked since he came to Australia and that that was obtained from the Applicant’s daughter. Dr Law, whom Mr McCombe asked to prefer over all other medical practitioners, was similarly under the misapprehension that this patient was totally unable to work. Dr Law was prepared at page 50, to attribute the appearance of the patient’s symptoms to: ‘the ongoing stresses of adjusting to life in a country with a new culture and language.’
54. Ms Henderson referred to Dr Law’s first report of 17 July 2000, (T7/50), of an account of being repeatedly mentally tortured in the re-education camp, whereas the Applicant’s evidence to the Tribunal was that it was forced labour and he was malnourished. He said nothing about mental and physical torture. Dr Dinnen, Dr Burns and Dr George did not obtain any history of being beaten but had obtained a history of hard (heavy) labour.
55. Ms Henderson’s submission was that Dr Law’s work history and family history taken from the Applicant were wrong. The work history, that he had never worked in this country was quite false. His history that his wife and daughter left him around 1993 was wrong too as his wife left him after two months in 1992 and his daughter had stayed with him ever since.
56. The Respondent referred to the Applicant making social contacts within Australia that have proved helpful and supportive of him. She referred to his current motor vehicle being a “virtual gift from a friend”. Ms Henderson also referred to his ownership of another motor vehicle. Ms Henderson said that friends accompanied him when he went to Darwin for work and that friends were involved in lending him money. Mr Thanh’s document (T7/45) indicated a close friendship with the Applicant.
57. The Respondent’s submission was that Dr Dao was the Applicant’s treating General Practitioner. Dr Dao spoke Vietnamese. There was no suggestion in his papers of any referral to a psychiatrist and no suggestion of any complaints of psychiatric illness or psychiatric symptoms.
58. Ms Henderson instanced situations where she considered Dr Law to have a different history to other doctors. She referred to Table 4.1 of the GARP assessment where, (T7/52), a list of symptoms afforded by Dr Law as part of the Applicant’s psychiatric impairment, Dr George had interpreted were due to hypertension and diabetes out of control.
59. Ms Henderson proposed that the fundamental histories upon which all of the documentation was founded was mistaken (Trans p57, para 3). Dr Law had reported Mr Huynh coming to Australia in “87 and never worked in this country.” That was wrong according to the Respondent. Dr Law’s assessment at Table 4.4: totally unable to work was unsupported and assessment at Table 4.5: domestic situation was based on the incorrect history. Dr Law’s account was that his wife and daughter left him around 1993, when in fact his wife left after two months in 1992 and his daughter remained in Australia and continued to live with her father. She considered that Dr Law had gained little insight into his patient, and in particular, his patient had not been frank with him. Ms Henderson said that Dr Law had not understood the patient’s work history, nor had he understood his social situation both in regard to his family and friend’s. For those reasons she considered his GARP assessment was vastly overrated. She considered Dr Law to have had the factual matrix so fundamentally wrong that one had to doubt the accuracy of all the conclusions that had been drawn.
Mr McCombe
60. In reply, Mr McCombe said Mr Huynh had four jobs, three of which were full time since his arrival in Australia. The three full time jobs totalled a full eight months out of 16 years. The two year job he had was part-time so any reasonable person would probably state that if he was asked “has he been employed since he’s been – you know, since he arrived from overseas, he’d most probably say no”.
61. Concerning the life risks that were in GARP, one of the problems with PTSD was concentration. Mr McCombe said that if a patient had “poor concentration he should be advised to be careful about how he moves around”. That is, to be careful when crossing the road and doing things.
62. Mr McCombe questioned “nitpicking” with the differences between hard labour and forced labour. He questioned that if someone was malnourished or starved would it not be torture?
THE TRIBUNAL’S DELIBERATIONS
63. The task before the Tribunal was to determine if Mr Huynh was permanently incapacitated for work within the terms of section 37AA of the Act and if so, was he eligible for the invalidity service pension. The relevant instrument was the Veterans’ Entitlements (Invalidity Service Pension – Permanent Incapacity for Work) Determination 1999. In coming to its decision, the Tribunal must be satisfied pursuant to sub-section 4 of section 120 of the Act, that is,
…
Standard of proof
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
…
As pointed out by Beaumont J in Repatriation Commission v Smith (1987) 15 FCR 327 at 335,
“Even if the Tribunal is not bound by the traditional evidentiary principles, s 120(4) constitutes a clear direction to the Tribunal that it must be reasonably satisfied before it makes any decision. In my opinion, this could only have been intended to introduce the standard of proof required in civil litigation.”
The term “reasonable satisfaction “ equates to the civil standard of proof, that is to say, proof on the balance of probabilities.
64. The Applicant’s submission was that the Tribunal should rely on the medical opinions of Dr Law the Applicant’s treating Psychiatrist, Dr Dinnen and Dr Pope the Applicant’s General Practitioner. The Tribunal noted that Dr Pope provided the referral to Dr Law. In evidence Mr Huynh told the Tribunal that he saw Dr Pope a long time ago and could not remember when he last saw him. There is a letter on file (T14) from Dr Pope, undated but stamped as received on 24 July 2001, to Department of Veterans Affairs requesting review of his claim. The Tribunal accepted that Mr Huynh may have two General Practitioners - Dr Pope for his claim and Dr Dao as a treating General Practitioner. Even so, the Tribunal considered it unusual that Dr. Dao who spoke Vietnamese and had seen the Applicant on many occasions had made no reference to any psychiatric problems.
65. The Tribunal was satisfied to accept that his diabetes and hypertension were under good control as indicated by Dr Burns, and to accept an impairment rating of 5 for hypertension, 5 for diabetes mellitus and the lumbar spondylosis a 0 impairment rating.
66. None of these conditions alone or together prevent him from working. The question for the Tribunal was the effect of the PTSD on his ability to work. If appropriate, Dr Burns’ impairment rating for the diabetes and hypertension could be combined with a PTSD impairment rating.
67. The differences in interpreting skills used to obtain a medical history were a concern for the Tribunal. During the proceedings the Tribunal had the advantage of a skilled Vietnamese interpreter. Different doctors used varying means of obtaining a history. Dr Law apparently used his secretary as interpreter; Dr Dinnen interviewed the Applicant alone and then with his daughter who spoke English and Vietnamese, as the interpreter; Dr George used a Vietnamese interpreter. The Tribunal had no knowledge of the interpreter services available when the Applicant attended Centrelink.
68. Two earlier cases before the AAT that dealt with invalidity service pensions referred to difficulties with obtaining a correct medical history using different interpreters. Senior Member Allen in Van Long Nguy and Repatriation Commission (supra) said, “it would seem to us any difficulties with history may be a misconstruction from differences of interpretation”. Senior Member Ettinger in Hoang Pham and Repatriation Commission (supra) was aware of the different interpreting skills and difficulties in obtaining a full history but that the Tribunal did not need to rely on differences in interpreting skills to come to a decision. There was sufficient suitable medical information and the evidence of the Applicant himself which guided the Tribunal in making its decision.
69. The present case was not just a question of weighing up the different opinions. There were communication problems in this case that impinge on the information available to the doctor and hence influence his opinion. The Tribunal noted Dr Dinnen’s opinion that attributed the Applicant’s communication problems to his chronic psychiatric disorder.
70. Injured in Action - Mr Huynh told the Tribunal that he stepped on a mine as he crossed a small bridge, lost consciousness, came to in a military hospital where he stayed for a few weeks (Tr. page 28). He told Dr Law that he had sustained shrapnel wound injuries to the right upper limb in active combat (T7/50). He told Dr Dinnen that a “Bomb came underground”.. It injured his right leg. He was on crutches for two weeks (Exhibit A2). He also told Dr Dinnen that he was granted a wounded medal. His own evidence to the Tribunal was his injury was due to an ambush by the enemy. The importance of this to the Tribunal, apart from any psychiatric interpretation, was to instance the inconsistencies (communication problems) in the account of the injury. Inconsistencies were also present in Mr Huynh’s account of the reeducation camp (T7/50).
71. Work history - There were considerable differences in the work history accounts by different doctors. Dr Law and Dr Dinnen have no history of the Applicant having never worked since coming to Australia. The Applicant’s own history, through an interpreter at the Hearing was that he had only one job for three months in Australia. It was during cross-examination by Ms Henderson that the Applicant said that he had remembered working as a general hand for a company that installed greenhouses and travelling to Darwin to work on Mr Ho’s farm.
72. The evidence was that the Applicant had worked on at least four occasions since coming to Australia and was currently on Newstart Allowance. A serious concern to the Tribunal was that Mr Huynh’s daughter said she had never known him to work.
73. Ms Henderson in submissions considered that Dr Law did not appear to have all the facts before him to provide a complete and accurate history. In addition to the incorrect work history there was an incorrect family history and this was unusual in that he was the treating psychiatrist and had seen him on a number of occasions.
74. Dr Dinnen was ambushed by an incorrect history. The incorrect work history obtained was completely understandable when the daughter privileged as an interpreter provided information that was wrong. The Tribunal took Dr Dinnen’s comment “where communication difficulties are attributable to chronic psychiatric disorder” in context, when there is uncertainty about the information provided.
75. The Respondent’s doctors also obtained different histories. Dr George and Dr Burns both considered Mr Huynh fit for work for more than eight hours a week. The Tribunal noted Dr George’s opinion that many of the Applicant’s symptoms could be attributed to poor control of his diabetes and blood pressure. This seemed at variance with other reports on file, in particular the clinical notes of Dr Dao.
76. Centrelink documents provided the Tribunal with the account of the Applicant’s work history on which the Tribunal relied. Centrelink also recently assessed the Applicant as fit for full time work with some lifting restrictions. This assessment was done with the full knowledge of Dr Law’s opinion. Mr Huynh remained on Newstart Allowance. The Tribunal was not however bound by any assessment by Centrelink.
77. A major problem in this matter had been communication problems associated with obtaining a correct history. The Tribunal, Dr Burns and Dr George had professional interpreters and still had difficulties obtaining a correct history. Dr Law used his secretary as the interpreter and Dr Dinnen the Applicant’s daughter. The source of misinformation or lack of information available to the doctors presented as a quandary to this Tribunal. Similar problems appear to have arisen in Nguy (supra) and Pham (supra) where the decisions were found in favour of the applicant. As in Nguy and Pham, the Tribunal did not rely on differences in interpreting skills to come to its decision. There was sufficient suitable medical information and the evidence of the Applicant himself, which guided the Tribunal in making its decision.
78. The issue before the Tribunal was whether Mr Huynh was permanently incapacitated for work within the terms of section 37AA of the Act. In coming to its decision the Tribunal must be satisfied pursuant to sub-section 4 of section 120 of Act, namely that it must decide the matter to its reasonable satisfaction.
79. The Tribunal was not reasonably satisfied that Mr Huynh was unable to work for periods adding up to more than eight hours per week. There was evidence from Dr George and Dr Burns that he was able to work more than for eight hours. Centrelink considers him fit for full time work. The treating general practitioner Dr Dao made no reference to psychiatric problems. The treating Specialist Dr Law considered the Applicant permanently unable to work. Dr Law did not have the advantage of a full and correct work history and also Dr Dinnen was in the same situation. The Tribunal cannot be reasonably satisfied that Dr Law and Dr Dinnen had a sufficient history to properly assess Hr Huynh as not being able to work for more than eight hours a week.
80. We are therefor not reasonably satisfied that the Applicant is incapable of working more than eight hours per week. Consequently, he is not permanently incapacitated for work as that term is defined in the Veterans’ Entitlements (Invalidity Service Pension – Permanent Incapacity for Work) Determination 1999 and the decision under review is affirmed.
I certify that the 80 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M.E.C Thorpe, Member
Signed: .......................................................................................
AssociateDate of Hearing 30 January 2003
Date of Decision 20 February 2003
Advocate for the Applicant Mr T McCombe
Counsel for the Respondent Ms R Henderson
Solicitor for the Respondent Australian Government Solicitor
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