Mackey and Repatriation Commission
[2008] AATA 81
•31 January 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 81
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/533
VETERANS APPEALS DIVISION ) Re MICHAEL MACKEY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member P McDermott RFD Date31 January 2008
PlaceBrisbane
Decision I affirm the decision under review.
................[Sgd]..............................
Senior Member
CATCHWORDS
VETERANS’ APPEALS – Veterans’ entitlements – disability pension – application for special rate of pension – applicant’s war caused injury or disease not the cause alone, of his being unable to work – decision under review affirmed.
Veterans’ Entitlements Act 1986 ss 19(5C)(a), 19(9), 24A, 24(1)(a), 24(1)(b), 24(1)(c)
Jebb v Repatriation Commission (1988) 80 ALR 329 at 333
Shi v Migration Agents Registration Authority [2007] FCAFC 59 at [37]Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5, (1997) 80 ALR 329 at 333
Repatriation Commission v Hendy (2002) 76 ALD 47 at 54, FCAFC 424
Repatriation Commission v Van Heteran (2003) 75 ALD 703 at 708
Cavell v Repatriation Commission (1988) 9 AAR 534 at 539
REASONS FOR DECISION
31 January 2008 Senior Member P McDermott RFD INTRODUCTION
1. Mr Michael Mackey, a veteran, has sought review of a decision made by the Repatriation Commission (the Commission), and affirmed by the Veterans’ Review Board, that he was not eligible to be paid a pension at the special rate. I am required to consider whether the veteran meets the eligibility criteria for the payment of an “earnings-related” rate of pension at the special rate under the Veterans’ Entitlements Act 1986 (the Act).
BACKGROUND
2. In 1964 Mr Mackey joined the Royal Australian Navy. He initially trained as a communications officer. He also trained as a diver.
3. Mr Mr Mackey served on H.M.A.S. Duchess for about 12 months which service included two trips to Vietnam. He was in Vietnamese waters for one week on each trip. His duties included the inspection of the hull of his ship (H.M.A.S. Duchess) to ensure that it was free from mines. He found that diving work to be very stressful. That work was also made difficult by the fact that he had to work in the monsoon season. He spent only two weeks undertaking that diving work but frightened by the work. He also served in the Malacca Straits. He would drink very heavily during this time.
4. Mr Mackey returned to Australia in 1966. In 1967 he was injured in a motor vehicle accident after becoming very intoxicated at a wedding. He was in a coma for 8 days and suffered memory loss and a considerable weakness of his right side. This accident soon led to his medical discharge from the Navy in 1967.
5. The period of service of Mr Mackey in the Royal Australian Navy was from April 1964 until November 1967. After his discharge Mr Mackey was employed from 1967 until 1992. He has not been in employment since he ceased work as an insurance agent in April 1992. He has been assessed as eligible for payment of pension at 90% of the general rate. He has the accepted disabilities of post traumatic stress disorder and bilateral sensorineural hearing loss with tinnitus.
ISSUES AND LEGISLATION
6. Section 19(5C)(a) of the Act requires that the rate of pension to be determined during the “assessment period”. That term is defined in s19(9) of the Act to mean, in relation to a claim or application relating to a pension, the period starting on the application day and ending when the claim or application is determined.
7. The application day in this case was 1 February 2005 and the assessment period runs from that day.
8. An “earnings-related” rate of pension may be granted to a veteran provided that the applicant meets the requirements of s 24 of the Act. I will mention some relevant provisions from that section.
9. The veteran must be under sixty-five years of age at the date of the claim: s 24(1)(a). This requirement is satisfied in this case.
10. The degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, must be determined under section 21A to be at least 70% or has been so determined by a determination that is in force: see s 24(1)(a)(i). This requirement is met as Mr Mackey is in receipt of a pension at 90% of the general rate.
11. There is also a requirement that the veteran must be totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week: see s 24(1)(b). This is not in issue as the Commission concedes that due to the effects of post traumatic stress disorder Mr Mackey is prevented from undertaking that work.
12. In addition to satisfying the requirement of s 24(1) (a) and s 24 (1) (b) of the Act, the veteran must also, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity: see s 24(1)(c).
13. In this case it is common ground that Mr Mackey meets the requirements of s 24(1)(a) and (b) of the Act. However, the Commission contends that Mr Mackey does not satisfy s 24(1) (c) of the Act which is often referred to as the “alone” test.
14. Counsel for the applicant has properly remarked that this application concerns the “discrete issue” of “whether the applicant satisfies the requirements of section 24(1)(c) of the Act”.[1]
[1] Closing submissions, p 1
MEDICAL CONDITIONS OF VETERAN
15. Three medical witnesses gave evidence on the medical conditions of the veteran: Dr Peter Mulholland, consultant psychiatrist; Dr Robert Andersen, psychiatrist; and Dr Lucille Douglas, psychologist. Mr Mackey also gave evidence on these conditions.
16. It is fair to say that that the written reports of Dr Mulholland and Dr Andersen revealed a difference of opinion as to the appropriate diagnoses of the psychiatric condition of the veteran.
17. Dr Mulholland in his report of 13 February 2007 has concluded[2] that:
“the clinical picture at this time is consistent with this man being co-morbid for:-
·chronic post traumatic stress disorder
·chronic dysthymic (depressive) disorder; [and]
·chronic alcohol abuse”.
[2] ex. R3, report of 13 February 2007, para. 16.1
18. Dr Mulholland in his report expressed the opinion that the “negative interplay between chronic excessive intake of alcohol and PTSD and depression in that they all interact with each other to make each other worse”.[3] Dr Mulholland considers that the veteran “is not capable of doing any paid work due to ongoing psychiatric illness and whilst he continues to drink alcohol that is likely to be a permanent state of affairs”.[4]
[3] ex. R3, report of 13 February 2007, para. 16.2
[4] ex. R3, report of 13 February 2007, para. 16.5
19. Dr Andersen in his report of 4 March 2004 remarked: “I understand that Mr Mackey has his condition of Post Traumatic Stress Disorder accepted as being related to service and I would agree with this assessment. He also has Alcohol Abuse and Dependence which I believe is also related to his Vietnam service”. Dr Andersen added: “Considering the veteran’s skills, qualifications and experience and the kind of work he might reasonably undertake he does not have the capacity for work up to 8 hours/week. He has not worked for the past 12 years on account of his emotional problems related to his Vietnam service. I am aware of any other condition which affects of any other condition which affects his ability to work”.[5]
[5] T4, fol. 41
20. Dr Andersen in his report of 16 February 2005 remarked of the veteran: “I have been treating this man for Post Traumatic Stress Disorder which, I understand from your letter, is an accepted condition by the Department of Veterans’ Affairs as being related to his Post Traumatic Stress Disorder alone, up to 8 hours per week. I am not aware of any other condition which affects his ability to work”.[6]
[6] T4, fol. 41
21. Dr Andersen in his report of 18 July 2005, commented upon the report of Dr Keshava which diagnosed the veteran as having chronic anxiety state with depression and alcohol dependence. Dr Andersen opined: “Mr Mackey’s depressive symptoms can be conceptualised either as secondary to Post Traumatic Stress Disorder or an integral part of that condition and part of his emotional distress which is mentioned in the diagnostic criteria for Post Traumatic Stress Disorder”.[7].
[7] T4, fol. 76
22. I must consider as to whether a depressive disorder is an appropriate diagnosis of the veteran’s condition or whether any depressive condition is properly regarded as part of the post traumatic stress disorder.
23. I consider that Dr Mulholland is correct in his diagnosis that the veteran does have a distinct chronic depressive condition. I consider that Dr Mulholland has fairly and comprehensively reported on the condition of the veteran. Dr Mulholland came to his conclusion on the basis of his history and his presentation. Under cross-examination Dr Mulholland stated that the veteran “gives a perfect history of depression, and he’s a person who – and at interview certainly looked very depressed”. Under cross-examination Dr Mulholland was fair in recognising that some symptoms were indicative of post traumatic stress disorder as well as a depressive illness. Dr Mulholland mentioned that the veteran has chronic insomnia and he thought that the “number one cause” of depression is insomnia, but he also recognised that both post traumatic stress disorder and the excessive consumption of alcohol were contributing factors to insomnia. Dr Mulholland recognised that the most likely cause of impaired memory and concentration in psychiatric patients is depression, although he recognised that alcohol and post traumatic stress disorder can be a factor. Dr Mulholland thought that impaired memory and concentration is almost universal with depression.
24. I should also mention that the opinion of Dr Mulholland that the veteran has a depressive illness is also shared by Dr Andersen, the treating psychiatrist, who was called by the veteran. In cross-examination Dr Andersen had agreed that the veteran does at times meet the DSM-IV criteria for “a major depressive disorder” as well as “dysthymic disorder”. Dr Andersen stated that the veteran is often not showing the signs of depression to any great degree when the veteran is on an anti-depressant.
25. The opinion of Dr Mulholland that the veteran has a depressive disorder is consistent with the opinion of other practitioners who have reported on the veteran. In 1995 Dr N Street reported: “The severity of his current depressive symptoms is incompatible with employment at this stage”.[8]. There is also specialist opinion that supports the opinion of Dr Mulholland. In 1999 Dr Pickering, psychiatrist, opined that the veteran “suffers from chronic anxiety state with depression”.[9] Dr Lucille Douglas, psychologist, has commented on the depressive symptoms of Mr Mackey [ex. R2, p.9].
[8] T4, fol. 124
[9] T4, fol. 27
26. One issue that I have examined is whether the veteran is suffering from an organic personality change. This issue appears to have first been raised in 1999 by Dr John Pickering, consultant psychiatrist, who provided a report which was admitted into evidence.[10] In his report dated 12 February 1999 Dr Pickering opined that the veteran was suffering from an organic personality change as a direct consequence of the February 1997 motor vehicle accident. Dr Pickering then considered that in “terms of causation” “the brain damage sustained in the motor vehicle accident in 1967 and the tension of his naval service as being responsible for the Post-Traumatic Stress Disorder”.[11]
[10] T4, fols. 29-32
[11] T4, fol. 31
27. I do not consider that there is evidence that the veteran has organic personality change. On 22 September 2005 Dr E De Leacy, consultant psychiatrist, opined: “I agree that Dr Anderson’s statement that the organic personality change is quite speculative and that any personality features seem in this individual could be part and parcel of post traumatic stress disorder. I would expect far more cognitive dysfunction to be present in a case of organic personality disorder”.[12] On 21 December 2006 Dr John Cameron, consultant neurologist, reported: “I suspect any organic personality disorder arising out of his severe head injury and chronic alcohol abuse over the years would amount to no more than 10% of his total problem” [ex. R1, p. 6].
[12] T4, fol. 85
28. On 13 February 2007 Dr Mulholland also concluded that the veteran does not have an organic personality disorder.[13] Dr Mulholland had also remarked that “the reports of Dr Lucille Douglas and neurologist Dr John Cameron and the MRI scan are not convincingly consistent with the notion of his having had an organic personality disorder or such a condition”.[14]
[13] ex. R3, report of 13 February 2007, para. 16.3
[14] ex. R3, report of 13 February 2007, para. 14.1
29. It is also important to mention that Dr Lucille Douglas, psychologist, considers that Mr Mackey has a current overall level of intellectual functioning that she estimates to fall within the “High Average range”[15]
[15] ex. R2, p. 6
30. In assessing whether there is evidence of organic personality disorder, the specialists have considered whether the veteran manifested any behavioural features. On 22 September 2005 Dr E De Leacy, consultant psychiatrist, in reporting on the veteran, remarked that “there were no organic or neurological features in his presentation”.[16] On 13 February 2007 Dr Mulholland had also commented that no neurocognitive impairments were noted at the interview of the veteran who appeared to have a normal memory, attention and concentration.[17]
[16] T4, fol. 83
[17] ex. R3, report of 13 February 2007, para. 15.15
31. I also find that the veteran suffers from chronic alcohol abuse. Dr Mulholland refers to this condition in his report which Dr Andersen refers to as “Alcohol Abuse and Dependence”. I must consider that this condition would have affected the ability of the veteran to work.
32. Dr Mulholland in giving evidence stated that the alcohol condition of the veteran “waxes and wanes”. It is apparent that Mr Mackay has not always consumed alcohol. In 1999 Mr Mackey had claimed to have stopped drinking “18 months ago”: he gave this information to Dr Keshava[18]. In September 2005, Mr Mackey advised Dr E De Leacy that he drank 6-12 stubbies a night and tends to become intoxicated every night.[19]. The veteran in giving evidence has stated that until November 2006 he had been “drinking fairly heavily”. Until then he had been drinking between six and eight light stubbies of beer on a slow day and ten to twelve light stubbies on a “heavier” day. He stated that he had reduced his consumption of alcohol to about “six or eight” in about October or November 2006.
[18] T4, fol 26
[19] T4, fol. 80
33. I, however, do not accept that Mr Mackey has been at all accurate in stating that his consumption of alcohol had in fact decreased in October or November 2006. In order to be fair to the applicant I thought that it was appropriate to make an observation during the hearing that the evidence that he gave was “different from the statement he made to Dr Mulholland in February this year”. However, no explanation of this discrepancy has been forthcoming.
34. I made the observation at the hearing because at an interview on 6 February 2007 the veteran had informed Dr Mulholland that he was then consuming alcohol at a high level. To ensure that there was no ambiguity I asked Dr Mulholland to re-read his notes so that there was no doubt as to what the veteran actually said to Dr Mulholland. Dr Mulholland did this as well as indicating what information he added himself.
35. The notes that Dr Mulholland had taken at the interview on 6 February 2007 records the following: “Drinks beer daily – six to 12 stubbies of light or mid-strength”. Mr Mackey had then stated that he had been drinking medium strength beer for 50 per cent of the time. Dr Mulholland had converted the consumption as reported by the veteran to between five and 15 standard drinks. The report of Dr Mulholland mentions “6-12 stubbies of light or midstrength (50/50 frequency) per day – i.e. intake perhaps ranges between 5-15 standard drinks per day”.[20]
[20] ex. R3, report of 13 February 2007, para. 9.3
36. The veteran stated in evidence that it was twelve months since he had consumed full content beer. The veteran had stated in evidence that he had regularly consumed wine on a regular basis when he resided at the Tanawha caravan park from 2002 until 2004. He would share two casks of wine with other residents of the caravan park. He had not drunk wine since he left the caravan park.
37. Dr Mulholland has stated that if the veteran is drinking heavily, this is likely to aggravate his existing post traumatic stress disorder and is likely to further aggravate or cause depression. I consider that the alcohol abuse condition of Mr Mackey has affected the ability of the veteran to work. Dr Mulholland in his evidence stated, the previous reported consumption of alcohol “would have complicated PTSD features, would have complicated depression, of itself would have likely to have made him feel angry and irritable and hard to get on with and contributed to memory and tension problems”. Dr Mulholland has opined in his report that Mr Mackey “is not capable of doing any paid work due to ongoing psychiatric illness and whilst he continues to drink alcohol that is likely to be a permanent state of affairs”.[21]
[21] ex. R3, report of 13 February 2007, para. 16.5
38. Dr Mulholland, in cross-examination, clearly rejected the notion that the veteran was currently drinking at a “manageable rate”. Dr Mulholland regarded the consumption of 12 stubbies of light beer as a “binge”. Dr Anderson, his own treating psychiatrist, has stated that the drinking “would have impaired his ability to even get out of bed in the mornings and to face up to a work situation”.
39. Dr Anderson has, however, commented that the psychological assessments done by Dr Lucille Douglas indicate that the veteran is functioning at a relatively high level intellectually. Dr Anderson stated that “it’s very hard to say definitely that he is impaired because of the alcohol dependence to any great degree”.
CONSIDERATION OF THE ISSUES
This is an instance where the Tribunal regards the administrative decision-making process as a “continuum” and the Tribunal’s function is a part of that “continuum” so that the Tribunal considers the entitlement of the applicant during the whole assessment period. See Jebb v Repatriation Commission (1988) 80 ALR 329 at 333, cited by Downes J in Shi v Migration Agents Registration Authority [2007] FCAFC 59 at [37]. Branson J in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5, (1997) 80 ALR 329 at 333 has identified the questions which must be determined in order to consider whether s 24(1)(c) of the Act applies in a particular instance.
40. The first Flentjar question that I must consider is what was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act. The Federal Court of Australia has held that I am required to have regard to what has been referred to as “the substantial remunerative work that the veteran has undertaken in the past”: see Repatriation Commission v Hendy (2002) 76 ALD 47 at 54.
41. In Repatriation Commission v Van Heteran (2003) 75 ALD 703 at 708, Finn J explained that I must have regard to the “type of work which the veteran previously undertook but which because of war-caused incapacity alone he or she can no longer undertake” His Honour emphasised: “It is that remunerative work and not remunerative work at large with which s 24(1)(c) is concerned”. This approach highlights the statutory requirement in 24(1)(c) that there must be an identification of the “remunerative work that the veteran was undertaking”.
42. Mr Mackey has had a variety of work including labouring, sales, stores work and customer service. The last ten years of his employment has been in the insurance industry. From 1982 until 1989 he was an agent for AMP. He stated that he left that employment to move to Tasmania. In Tasmania he set up his own agency with Colonial Mutual. In Tasmania he worked for Colonial Mutual until 1992. Having regard to the remarks of Finn J. in Repatriation Commission v Van Heteran (2003) 75 ALD 703 at 708, I consider that the “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act can be properly categorised as clerical or administrative work.
43. I also accept the submission that was advanced on behalf of the veteran that work as an insurance agent would also be a relevant type of remunerative work for the purposes of s 24(1)(c) of the Act. In accepting that submission I do not want my remarks to be construed as confining the nature of the remunerative work to only just insurance work.
44. I appreciate that the veteran has, in the past, held labouring and storeman positions. However, these positions were held when he was a young man and within a few years of his discharge from the navy.[22] The veteran did such work for short periods in 1969-1970.[23] Having regard to the remarks of Finn J. in Repatriation Commission v Van Heteran (2003) 75 ALD 703 at 708, I do not accept the submission that was advanced on behalf of the veteran that labouring is a relevant type of remunerative work that is envisaged by s 24(1)(c) of the Act. In my opinion, this is not a case where the veteran “might reasonably undertake” labouring or storemen work having regard to his skills, qualifications and experience.[24]
[22] see exhibit A1
[23] Dr Mulholland in his report of 13 February 2007 (at para. 13.4) has comprehensively set out the extensive work history of the veteran. In 1969 the veteran was engaged in apple picking and a tiler’s labourer. In 1969-70 he was a storeman (exhibit R3).
[24] See s 28
45. The second Flentjar question that I must consider is whether the veteran is by reason of his war-caused injury or war-caused disease prevented from continuing to undertake that remunerative work. This second Flentjar question is a judicial formulation of the second limb of s 24(1)(b) of the Act which refers to the veteran being “incapable undertaking remunerative work for periods aggregating more than 8 hours per week”.
46. I have examined the evidence of the psychiatric condition of the veteran. The psychiatrists have diagnosed Mr Baker as suffering from post traumatic stress disorder which is an accepted war-caused condition. There is evidence from Dr Anderson[25] and Dr De Leacy[26] that this condition, of itself, prevents Mr Baker from working 8 hours per week. The respondent has conceded that his post traumatic stress disorder condition, which is an accepted condition, prevents the veteran from continuing to undertake the remunerative work that is envisaged by s 24(1)(b) of the Act. My answer to the second Flentjar question is accordingly: “Yes”.
[25] T4, fol. 69
[26] T4, fol. 85
47. I must next consider the third Flentjar question which is whether the war-caused injury or war-caused disease is the only factor which prevents the veteran from continuing to undertake that work. This third Flentjar question is a judicial formulation of the first limb of s 24(1)(c) of the Act. I appreciate that this is a question which I should answer “with an eye to reality”: see Cavell v Repatriation Commission (1988) 9 AAR 534 at 539.
48. Dr Mulholland in his report of 13 February 2007 has concluded that the veteran is co-morbid with chronic post traumatic stress disorder, chronic dysthymic (depressive) disorder and chronic alcohol abuse. Dr Mulholland has reported on what he considered to be as the “negative interplay between chronic excessive intake of alcohol and PTSD and depression in that they all interact with each other to make each other worse”.[27]
[27] Report of 13 February 2007 (at para. 16.2).
49. On behalf of the veteran it was contended that the depressive condition was a sequelae of the post traumatic stress disorder. This approach is understandable in view of the opinion that was given in 1996 by Dr Tony Smith, A.G.H.S.[28] Medical Officer. Dr Tony Smith then reported: “It is clear that Mr Mackey is suffering from major depressive symptoms, possibly as part of the spectrum of a post traumatic stress disorder”.[29] However, I have accepted the specialist medical opinion of Dr Mulholland that the veteran does have a distinct depressive disorder.
[28] Australian Government Health Service.
[29] T4, fol. 122
50. Dr Mulholland has given his opinion that the depressive condition of the veteran is a significant condition. Dr Mulholland stood by his opinion during cross-examination when he commented that the “depression appears to be so broad based and pervasive”. During cross-examination Dr Mulholland was closely questioned by counsel for the veteran as to whether the depressive condition of Mr Mackey could be regarded as a sequelae of the post traumatic stress disorder. Dr Mulholland commented during cross-examination that the “emotional distress which I think is partly a PTSD issue and partly that’s a depression issue and partly that’s complicated by alcohol”.
51. I accept the specialist medical opinion that the alcohol condition of Mr Mackey is a significant condition which prevents the veteran from continuing to undertake remunerative work. I have already mentioned that Dr Mulholland has opined in his report that Mr Mackey “is not capable of doing any paid work due to ongoing psychiatric illness and whilst he continues to drink alcohol that is likely to be a permanent state of affairs”.[30] I would also add that on 22 September 2005 Dr E De Leacy, consultant psychiatrist, in discussing the psychiatric condition of the veteran, opined: “I would apportion 2/3 to post traumatic stress disorder and 1/3 to alcohol dependence”.[31].
[30] ex. R3, report of 13 February 2007, para. 16.5
[31] T4, fol. 85
52. I give a negative answer to the third Flentjar question.
53. In Flentjar v Repatriation Commission (1997) 48 ALD 1 at 5, Branson J (with whom Beaumont and Merkel JJ agreed) that the fourth question should be answered if “[i]f the answers to questions 2 and 3 are in each case, yes”.
54. As I have given a negative answer to the third Flentjar question; it is not necessary for me to consider the fourth Flentjar question which is whether the veteran by reason of being prevented from continuing to undertake that work is suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity. This fourth Flentjar question is a judicial formulation of the second limb of s 24(1)(c) of the Act.
55. I make the closing comment that the advocate for the Commission has quite properly commented that Mr Mackey “has been let down by the system”. I think that it is entirely appropriate for the Commission to provide whatever assistance may be required by this veteran.
56. I affirm the decision under review.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott RFD
Signed: ........................[Sgd].......................................................
Ms E Young, Research AssociateDate/s of Hearing 21 June 2007, 3 October 2007
Date of Decision 31 January 2008
Counsel for the Applicant Ms Frizell
Solicitor for the Applicant Cockburn Legal & Consulting
Respondent Mr J Kelly, departmental advocate
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