Lonergan and Repatriation Commission (Veterans’ entitlements)
Lonergan and Repatriation Commission (Veterans’ entitlements) [2015] AATA 747 (24 September 2015)
Division
VETERANS' APPEALS DIVISION
File Number(s)
2014/2018, 2014/2019
Re
Allan Lonergan
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal The Hon. Brian Tamberlin QC, Deputy President
Date 24 September 2015 Place Sydney The decisions under review are affirmed.
....................................[sgd]....................................
The Hon. Brian Tamberlin QC, Deputy President
CATCHWORDS
VETERANS’ ENTITLEMENTS – ischaemic heart disease – whether applicant has been diagnosed with ischaemic heart disease – whether condition war caused - whether applicant is entitled to pension at the special rate – alone test – decisions under review affirmed
LEGISLATION
Veterans Entitlements Act 1986, ss 24, 120
SECONDARY MATERIALS
Statement of Principles for Ischaemic Heart Disease, Instrument No. 89 of 2007
REASONS FOR DECISION
The Hon. Brian Tamberlin QC, Deputy President
24 September 2015
There are two applications for review presently before me, both applications relate to a decision made by the Veterans Review Board (VRB) on 11 February 2014. The VRB determined that the applicant’s claim for ischaemic heart disease (IHD) should be refused on the ground that it was not war-caused, and refused the applicant’s application for the grant of a pension at the “Special rate”, finding that the applicant should continue to receive the pension at 80% of the General rate.
BACKGROUND
The applicant served in the Australian Army from 19 April 1967 to 18 April 1969 and in the Royal Australian Navy from 25 April 1972 to 24 April 1992. His eligible war service included operational service from 20 December 1967 to 28 November 1968. He also rendered further defence service from 7 December 1972 to 24 April 1992.
ISSUES
There are two main issues before me in this matter. Firstly, whether the applicant has been diagnosed with Ischaemic Heart Disease, and if so whether it is war-caused. Secondly I must decide whether the applicant is entitled to pension at the special rate.
ISCHAEMIC HEART DISEASE
The applicant relies on his operational service with the consequence that ss 120(1) and 120(3) of the Veterans Entitlements Act 1986 (the Act) apply. Accordingly, the Tribunal is required to decide that his IHD was war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. The Tribunal must be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis to connect that condition with the circumstances of the particular service in question. The Tribunal is also required to assess any hypotheses by reference to any Statements of Principles issued by the Repatriation Medical Authority or any relevant determinations or declarations under the Act.
It is agreed by the parties that the relevant Statement of Principles for IHD to be applied in this case is Instrument No. 89 of 2007 (the SOP). At the Hearing of the matter, the applicant indicated that they were relying on Factor 6 of the SOP Factor 6(g)(iii) which requires:
6(g)(iii) smoking at least 20 pack years of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of ischaemic heart disease; or…
The reference to “clinical onset” refers to the first appearance of the signs and symptoms of the disease sufficient to have enabled diagnosis at that time. The condition must exist at the time of the assessment. For a factor to be raised by the material before the Tribunal the material must point to every essential element of the factor. If an essential element is not raised or pointed to by the material before the decision maker then the hypothesis is not raised by the material. Where a factor is met, the hypothesis must be found to be reasonable in the sense that it must be more than a mere possibility; must be consistent with known facts, and not fanciful, or unreal or tenuous or remote.
The reference to “pack year” refers to method to calculate consumption. One pack year of cigarettes is defined in the SOP as being equal to consuming twenty tailor made cigarettes per day for a period of one calendar year, or 7300 cigarettes.
Applicant’s Evidence
The applicant gave evidence that he suffers from accepted conditions of post-traumatic stress disorder, sensorineural hearing loss, tinnitus, alcohol abuse and depression.
The applicant contends that as a result of his accepted conditions, his personal relationships have been extremely affected. In a statement dated 24 September 2014 the applicant gave evidence that he rarely leaves the house, seldom visits friends or has visitors, that he finds it difficult to engage with people and he has no close friends.
The applicant also stated that he has sleep problems, gets anxious, aggressive and frustrated, is irritable and he has feelings of hopelessness from time to time. He is short tempered and cannot sleep and suffers from nightmares with some flashbacks and intrusive thoughts about experiences in Vietnam during his operational service. He suffers from loss of energy and is not interested in participating in activities.
His last employment, which commenced in 1994, was as a tunnel controller for the Sydney Harbour Tunnel. He left this position in 2013 at the age of 66 years. It was a position with high responsibilities, which included overall responsibility for the safe transit of vehicles using the tunnel and for personnel on shift work, together with responsibility for outside contractors who may be on the site clearing breakdowns and accidents. Prior to retirement he found he was losing concentration, becoming intolerant, having difficulties with colleagues and not sleeping well between shifts. He said he was suffering from nightmares and flashbacks and intrusive thoughts which contributed to his interrupted sleep patterns causing fatigue, distress and anxiety. He claims that he is totally and permanently incapacitated due to his accepted conditions alone, and was prevented from continuing in employment and that he has suffered a substantial loss of earnings.
Respondent’s Case on Ischaemic Heart Disease
The respondent’s case is that there is no diagnosis of IHD available in this matter and relies on the report of Professor O’Rourke of 15 October 2014. The respondent contends that this report should be preferred to the evidence as to the existence and diagnosis of IHD advanced by the applicant. Professor O’Rourke interviewed and examined the applicant in his office on 7 October 2014 and examined the relevant documentation.
Professor O’Rourke formed the view that the applicant had minor coronary artery disease and that this was not responsible for his symptoms of breathlessness or his ability to perform to the level of exercise which he had undertaken on tests without any abnormality, save for a minor electrocardiographic change in the absence of any other evidence of ischaemia. He considered that the applicant did not qualify for a diagnosis of IHD, which he defined using the definition in the SOP as a “cardiac disability characterised by insufficient blood flow to the muscle tissue of the heart due to atherosclerosis, thrombosis or vasospasm of the coronary arteries”.
He noted that the tests for impaired cardiac blood flow, as reported by Dr Bernard on 1 June 2012, described a good exercise capacity without chest pain and with no scintigraphic evidence of significantly reversible myocardial ischaemia. The electrocardiographic changes were mild. Professor O’Rourke noted that Dr Nelson, whose evidence was relied on by the applicant, was reluctant to commit to a diagnosis of significant coronary heart disease and observed that this was not limiting the applicant at a high level of stress. Professor O’Rourke also noted the observation of Dr Nelson that it was a possibility that some of the applicant’s breathlessness could be cardiac-caused, but did not consider that Dr Nelson’s report could support a diagnosis of IHD as concluded by Dr Kumaran. He also concluded that the clinical onset of the applicant’s minor coronary disease was indeterminate, that the severity was relatively mild and that with the continuation of his present habits and treatment it was unlikely to limit his activity over the next 10 to 15 years.
Professor O’Rourke did not consider that the indication of breathlessness referred to in 2002 provided any basis for a diagnosis of IHD in the applicant.
He also said that the applicant could not account to him for differences in smoking habits at different times as recorded in the T documents. He considered on the material before him that the smoking history was less than 15–20 pack years and that it appeared to finish in 1982. However there was some evidence from the applicant that he smoked some cigars and pouch tobacco up to 1992 when he finally quit smoking completely. Professor O’Rourke did not consider that the applicant satisfies the factor he seeks to rely on in the SOP. He observed that it was an error to equate IHD with coronary artery disease of a minor degree. The degree of coronary disease on the relevant angiogram, in his opinion, was likely to be seen in the majority of the male population at the age of the applicant, and there was no evidence of any impaired coronary blood flow. Accordingly he concluded there was no medical impairment arising from the applicant’s claimed cardiac condition
In the alternative and independently the respondent contends that there is insufficient evidence to demonstrate that the applicant satisfies any relevant factor in the SOP. In particular the respondent says that the available evidence does not satisfy any smoking requirements in factor 6(g), with the consequence that there is no reasonable hypothesis established on the material before the Tribunal, and it says that the decision under review should be affirmed regarding IHD.
Applicant’s case on ischaemic heart disease
The applicant relies on a medical report by Professor Nestel of 8 January 2015. This report was prepared on the papers using documents provided to him. He expressed the view that the development of post-traumatic stress disorder increased the risk of IHD. He noted that the applicant’s war service had been accepted and that reports which identified his symptoms as distress, nightmares, flashbacks, intrusive thoughts, personality changes, altered behaviours and responses to war-related issues.
Professor Nestel considered that the increasing shortness of breath experienced by the applicant from 2002 onwards was a recognised symptom of possible IHD, even in the absence of angina. He referred to an angiogram which showed problems of at least two major arteries and a calcium level which was consistent. He noted that reversible changes were minor and were seen only in the apex of the heart. He thought it was probable that the electrocardiogram reflected IHD. He also noted a number of matters which he said were contrary to the conclusions of Professor O‘Rourke. Professor Nestel also relied on documents from Dr Nelson, an attending cardiologist, the results of an echocardiogram, a report by Dr Bernard in relation to a Sestamibi investigation and also psychiatric reports by Dr Dinnen and Dr Keshava.
I prefer the evidence of Professor O’Rourke and the medical records he relies on to that of Professor Nestel because he not only worked on the papers, but actually interviewed and examined the applicant in person at the clinic and he made a comprehensive investigation and report whereas Professor Nestel did not have the opportunity of seeing the applicant. I do not think that the weight of the evidence of Professor O’Rourke was diminished in any way in cross-examination, and accordingly I conclude that the applicant has not established that a diagnosis of war-caused IHD is available in this case.
Smoking History
The applicant has made a number of statements in relation to his smoking history, dating back to the time before his conscription in 1967. During the hearing before me in this Tribunal he stated that when he was conscripted in 1967 he smoked about five or six cigarettes a day and that during 1967, before being posted to an infantry battalion to go to Vietnam, the smoking increased to about 20 a day. He says this was due to a fear of the unknown. Whilst he was in Vietnam in operational service his rate of smoking increased to about 25 cigarettes per day (See Transcript pages 26–27). He stopped smoking cigarettes in 1982 when he took up cigars and a pipe, therefor he also used pouch tobacco. He ceased smoking altogether in 1992.
Conclusion
On the basis of this evidence, I am not satisfied that the applicant satisfies the requirements of the factor in the Statement of Principles on which he seeks to rely.
In addition, even if contrary to my conclusion reached above, the medical evidence supported a diagnosis IHD in this case, the clinical onset did not occur before 2012 and this is another reason the why factor is not satisfied.
SPECIAL RATE
Section 24 of the Act provides for pension payment at a special rate where the conditions spelt out in subsection (1) are satisfied. Subsection (1)(b) requires that the applicant’s incapacity from the war-caused injury or disease should be 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. In relation to the applicant’s claim in respect of depression, s 24(2A) applies. This is because in contrast to his other accepted conditions, the applicant’s depression was found to be an accepted condition with effect from 11 November 2013, which was after the applicant had turned 65. The effect of s 24(2A) is that the legislation requires that as a result of a war-caused disease alone the applicant is prevented from continuing the remunerative work that he was last undertaking before he made the claim.
The applicant claims that he has satisfied the legislative criteria with respect to having an impairment that, when assessed in accordance with the relevant principles, would entitle him to an assessment at the special rate of pension. The applicant contends that he was prevented from continuing the kind of work he had been undertaking and has experienced a loss of salary and earnings in accordance with the cited authorities. He says that he ceased to engage in any remunerative work and that he is prevented from engaging in further remunerative work for periods of more than eight hours per week due to war caused disabilities.
The applicant relies on a report of Dr Dinnen, a psychiatrist, dated 13 October 2014 and oral evidence given by Dr Dinnen at the Hearing in this matter. Dr Dinnen notes that the diagnosis of post-traumatic stress disorder and associated depressive disorder were not diagnosed until 2010, but considers the condition was present from the time of return from Vietnam at the end of 1968. He does not consider that the applicant can continue in employment because of the deterioration in his chronic psychiatric illness, although there has been some improvement since he ceased work, it does not mean that he can return to employment because his condition would worsen if he was subjected to the normal stress of day-to-day working life. He agrees with Dr Keshava, that he could not perform any remunerative work for more than eight hours a week, and he further expresses the view that the applicant’s accepted psychiatric conditions alone are responsible for his incapacity, and that the condition was present prior to his ceasing employment.
Dr Keshava provided two psychiatric reports, of 25 June 2010 and 3 November 2011 respectively, which confirmed that the applicant’s condition had deteriorated and that the applicant he was not coping with his job. There is also a handwritten letter from Dr Keshava on 13 June 2013 stating that the patient suffers from war-caused post-traumatic stress disorder with depression and alcohol abuse. Dr Keshava noted that his condition had markedly deteriorated over the past six months, that he was not coping with his job and had been advised to stop working. He expressed the opinion that the applicant was not fit to undertake any gainful employment and is totally and permanently incapacitated.
Evidence was led for the respondent from Dr Roberts, whose practice is in the fields of schizophrenia, depression and psychiatry. He furnished a report of 14 November 2014 in relation to the applicant (exhibit E). He noted that the applicant had accepted conditions of post-traumatic stress disorder, depressive disorder and alcohol abuse. He examined the past medical and psychiatric history of the applicant and the psychiatric symptomatology. He noted the working history and personal and family background of the applicant. He also considered the opinions of other experts and material. Dr Roberts said in cross-examination:
“I have accepted that Mr Lonergan has a diagnosis of PTSD which would inevitably mean that he would experience the symptoms of PTSD. I was asked to assess whether his accepted disabilities impact upon his work capacity and in assessing the consequences of the PTSD I came to the conclusion that they are, while present, demonstrably by the way he interacts and talks and speak and presents himself not significant – they are not of significance. I can’t see why he couldn’t work on the basis of his psychiatric condition.” (Transcript page 128)
Dr Roberts concluded that the limiting factor described by the applicant appeared to relate to his exertional capacity, and that his cardiac status needed to be addressed in terms of its impact on his capacity to work. He did not consider that the accepted disabilities would prevent him from working, but rather that his cardiac status could do so having regard to his symptoms and complaints. He thought the evidence strongly suggested that there was a treatable condition which would not have resulted in an inability to work. He also says that on the applicant’s account he does not accept that any disability from IHD could be a factor that would impact upon the applicant’s employment capacity.
The respondent also relied on evidence from Dr Chase, an occupational physician, who took a detailed occupational medical and social history from the applicant, and also carried out an assessment for incapacity arising from accepted disabilities under The Guide for the Assessment of Rates of Veterans Pensions (the Guide) 5th edition having regard to all his accepted conditions.
Dr Chase noted that the applicant had worked in electronic warfare for many years and later in intelligence, reaching the rank of a warrant officer which was a very high level administrative position. After he left the Navy he worked as a supervisor on the M4 motorway and as an Assistant Tunnel Controller of the Sydney Harbour Tunnel from 1994 until his resignation in 2013, a period of 19 years. Dr Chase considered that it was probably reasonable that the applicant did not return to that role because of the stress associated with shift work, and the very high level of responsibility managing a large number of vehicles with frequent breakdowns and other problems that may arise.
Dr Chase concluded that the applicant was able to work full time with some restrictions due to post-traumatic stress, but that these restrictions did not preclude return to work and that he was capable of seeking remunerative employment. He considered that the applicant had very significant residual work capacity, although it would be better if he did not return to shift work. Dr Chase noted he was not prevented from being able to undertake retraining into a very broad range of other administrative work. He considered the applicant to be active and fit as measured on the stress test. He noted that the applicant went on walks daily, rode his bike and often went to the gym, engaging in a wide range of physical activities. There was no evidence of any complaint from his employer as to any inability in performing work satisfactorily. The reason he ceased work was as a result of the note from Dr Keshava. He had some issues at work with one or two employees but these were not significant.
Conclusion
Having regard to the evidence of the applicant, his capability and fitness, the tasks which he has performed since his war service, and taking into account the supporting documentation in the T documents, I prefer the evidence of the respondent and in particular that of Dr Chase in preference to that of Dr Dinnen and Dr Keshava.
I am not satisfied on the material before me that the applicant has met the requirements of ss 24(1)(b). In addition, the evidence is not sufficient to satisfy the “alone” test set out in s (1)(c), having regard to the evidence of Dr Keshava in his reports that depression was one of the conditions which rendered him totally and permanently incapacitated for work. Furthermore, I am not satisfied that the applicant satisfies the requirements of s 24(2A). The applicant was capable of continuing to carry out the work which he had been carrying on in the motorway and it was only the note from Dr Keshava and some difficulties in relation to some of his co-workers which led to him ceasing to work.
DECISION
The decisions under review are affirmed.
I certify that the preceding 35 (thirty -five) paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlin QC, Deputy President ..................................[sgd]......................................
Associate
Dated 24 September 2015
Date(s) of hearing 15 - 16 July, 19 August 2015 Date final submissions received 26 August 2015 Counsel for the Applicant Ms C Mudge Solicitors for the Applicant KCI Lawyers Solicitors for the Respondent Mr T O'Reilly, Department of Veterans' Affairs
Lonergan and Repatriation Commission (Veterans’ entitlements) [2015] AATA 747
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