Mannion and Repatriation Commission

[2001] AATA 149

DECISION AND REASONS FOR DECISION [2001] AATA 149

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q1998/250

VETERANS' APPEALS  DIVISION       )          
           Re      RAYMOND MANNION     
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mr K L Beddoe (Senior Member) 

Date28 February 2001 

PlaceBrisbane

Decision      The Tribunal sets aside the decision under review and in substitution decides that section 24 of the Veterans' Entitlements Act 1986 applies with effect from 15 January 1997.    
  (Sgd) K L Beddoe
  Senior Member

Decision No: 149/2001

CATCHWORDS
VETERANS' ENTITLEMENT – special rate of pension – whether "alone" test satisfied.

Veterans' Entitlements Act 1986 s 24(1)(a)

REASONS FOR DECISION

28 February 2001              Mr K L Beddoe (Senior Member)

1. The applicant claimed disability pension in relation to Chronic Post Traumatic Stress Disorder.  That claim was accepted by a determination of the respondent notified on 4 March 1997 [T12].  Pension was assessed at 60% of the General Rate with effect from 15 October 1996.  The respondent subsequently notified a section 31 decision, on review, which increased the assessment of pension to 100% of the General Rate with effect from 15 October 1996.

2. The applicant sought review at the Veterans' Review Board.  On 25 February 1998 that Board decided to set aside the respondent's section 31 decision and substituted a decision whereby pension was assessed at 90% of the General Rate [T2].

3. The applicant now seeks review of that decision.

4. At the hearing Mr Harding appeared for the applicant and Mr Williams represented the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and further documents were tendered and marked as exhibits.  Oral evidence was given by the applicant, his spouse, Ms Bendall, psychologist, Dr Kimbell, a consultant psychiatrist and Dr Mulholland, also a consultant psychiatrist.

5. The applicant has accepted disabilities for the purposes of the Veterans' Entitlements Act 1986 ("the Act") being:

(a)Sensorineural Deafness

(b)Post Traumatic Stress Disorder ("Post-Traumatic Stress Disorder")

Non accepted conditions are:

(c)Degenerative changes Lumbar Spine

(d)Osteoarthritis Both Hips.

As noted above the applicant was assessed to disability pension at 100% (from 15/10/1996) but this was subsequently reduced to 90% on review by the Veterans' Review Board.
In any event the applicant complied with section 24(1)(a) from the date of claim (15/1/1997).
Exhibit B is an undated statement signed by the applicant in which he describes traumatic events which occurred while he was in the Mater Misericordiae Private Hospital in June/July 1992 for a hip replacement operation.  Because the staff in the hospital included a person or persons of Vietnamese heritage, the applicant says he suffered "flash backs".
The statement shows a high level of dissatisfaction with the time in hospital, an episode with a nursing sister of Vietnamese heritage apparently being the trigger for the applicant having the claimed flashbacks.  The need for the operation arose out of a work related accident and degenerative condition of his hips.
After service in Vietnam the applicant was actively employed until February 1992.  In his oral evidence he set out the details of his employment history.
Exhibit A is a further statement by the applicant dated 16 June 1999 which describes the accident in the course of his employment in February 1992.  On the applicant's telling of the incident it seems reasonable to conclude that the applicant was so upset with himself, because he forgot an invoice book, that he was an accident waiting to happen.  As noted above a consequence of that accident was the operation for hip replacement surgery and the hospital episodes.
In his oral evidence the applicant sought to show that he had a history of incidents where he became argumentative and upset with customers in the course of his employment.  The hospital episode finally made him reclusive and shy of relationships with other people.  According to his wife's evidence (Exhibit D) he also became very paranoid after the hospital incident resulting in locking of gates and reliance on firearms.
He said he would still be employed except for his emotional and hearing loss problems.  He said that his hip was settled and although there is some pain it is no longer a problem.  He said his employment was still available to him but he could not resume it because he was too uptight and upset, with episodes of violence, to be able to go back to work even though, on the applicant's evidence the work is still available to him.  As it is he says he confines himself to his home and undertakes activities such as gardening, playing the guitar and walking the dog.  I accept that the applicant was a frank and truthful witness.
The applicant's spouse gave evidence.  She said that the applicant's emotional outlook changed after he returned from Vietnam.  He had used a lot of alcohol after returning from Vietnam.  She also said that the applicant was quick tempered before he had the accident in his employment.  She said she observed a lot of paranoid behaviour after the accident at work.  She said there is a lock on the front gate, the applicant stays home and works on the garden or his car.  The applicant had been using alcohol to excess but this had moderated and the applicant has been much better since he has been seeing Ms Bendell, a registered psychologist.  She confirmed that the applicant's condition was worse after he had the accident at work.  She also confirmed that the applicant takes regular medication for Post-Traumatic Stress Disorder.
The Medical Evidence

1. Document T3 is a copy of a medical report by Dr Canavan dated 2 August 1993 and addressed to the Department of Veterans' Affairs.  Dr Canavan reported severe degenerative joint disease of the right hip exacerbated by the accident at work.  She also found mild to moderate degenerative changes in the left hip.  In relation to the applicant's statement to Dr Canavan that he suffered low back pain, Dr Canavan reported that X-rays from the past revealed severe degenerative joint disease and L4/5 disc space narrowing.

2. Document T4 is a copy of a standard form medical report dated 23 June 1994 by Dr Canavan to the Department of Social Security.  While it appears that the report was never lodged with the Department of Social Security, I note that Dr Canavan diagnosed the same conditions for the purposes of that report and goes on to say that the applicant was not fit for work with a long term prognosis that he "cannot perform manual work".  It is clear from the Medical Certificate that Dr Canavan said the applicant could not work because of the hip and spine conditions.

3. Document T6 is a copy of a report by Dr Lee, orthopaedic surgeon, dated 7 March 1995.  He diagnosed osteoarthritis of right hip treated by total hip arthroplasty.  The applicant reported no significant hip symptoms but noticed the right leg to be somewhat longer than the left following the operation.  He also diagnosed mild osteoarthritis of the left hip with suggested diagnosis of fibrous dysplasia which was first noticed in October 1967.

4. Dr Lee also diagnosed moderately severe lumbar spondylosis with intervertebral disc space narrowing at the L4/5 and L5/S1 levels and other features of multi-level degenerative changes.  Dr Lee could not find a significant traumatic event and attributed the back condition to degenerative changes and not trauma related.

5. Ms Bendall, a registered psychologist, first saw the applicant on 31 October 1996 and made a report [T7] to the Vietnam Veterans' Counselling Service dated 3 December 1996.  Ms Bendall found symptoms of Post-Traumatic Stress Disorder and also noted chronic back pain and sciatic pain.

6. In a further report dated 20 October 1997 [T16] addressed to Everyman's Welfare Service, Ms Bendall expressed the view that the applicant had decompensated because his application for a "TPI pension" had been disallowed.  In particular she noted:

   "Where he had been able to manage his chronic pain without anti-inflammatory and analgesic medication, over the past six months, he has been forced to resume taking such medication.  Through the use of a pain diary, he has been able to identify stress as being the major aggravant to increasing pain levels."

The report also noted the worsening of the PTSD condition initiated by the incidents in hospital in 1992 and exacerbated by ceasing to use alcohol in late 1996.  In a report dated 29 September 1997 to the Vietnam Veterans' Counselling Service [T16] Ms Bendall notes abstinence from alcohol and analgesics "over the past seven months". 

1. In her oral evidence Ms Bendall generally confirmed the content of her written reports.  She said that the applicant's orthopaedic problems had reflected on the applicant's psychological well-being.  She also said that Post-Traumatic Stress Disorder can lead to muscle tension and pain.  She said his history about the events at the Mater Hospital had been consistent – she was shown the clinical notes from the hospital but was unable to assist the Tribunal as to apparent inconsistencies.

2. Ms Bendall was not cross-examined by the respondent.

3. The applicant also relies on the evidence of Dr Kimbell, a consultant psychiatrist.  Document T10 is a report to the Department of Veterans' Affairs by Dr Kimbell dated 26 February 1997.  That report diagnosed chronic Post-Traumatic Stress Disorder.  Dr Kimbell reported that the applicant was unable to work and leisure activities were extremely restricted.

4. Exhibit F includes a further report dated 26 May 1999 addressed to the applicant's solicitors in which Dr Kimbell reports that the applicant's PTSD alone would render him incapable of undertaking relevant remunerative employment "for an aggregate of eight hours or fewer a week".

5. In his oral evidence Dr Kimbell said there had been a period of decompensation following the operation at the Mater Hospital with the PTSD becoming overt and chronic.  He also said that the applicant's anxiety and depression was at the severe end of the spectrum with the operation being the most likely trigger for the continuing condition.

6. Exhibit 3 is a bundle of copy documents taken from a WorkCover Queensland file obtained and tendered by the respondent.  An Orthopaedic Assessment Tribunal appointed under the Workers' Compensation Act found partial incapacity for work resulting from injury on 26 February 1992.  The Tribunal determined that the incapacity was permanent and that the applicant had suffered a permanent partial disability resulting from the injury.  That determination was dated 21 June 1993.  Weekly benefits for the period 27 February 1992 to 25 June 1993 were paid and other benefits including disability settlements were paid.

7. Exhibit 3 includes a copy of a report by Dr McMeniman, Orthopaedic Surgeon, dated 29 March 1993 who reported that the applicant was still not fit to return to his previous work but fit for alternative work.  The report was clearly based on orthopaedic issues relating to the hips and back.

8. An earlier report by Dr McMeniman dated 8 April 1992 (Exhibit 3) details a history of degenerative arthritis, right hip, following an accident in 1989.

9. Document T16 is a copy of a report to Dr Canavan by Dr Winstanley, Orthopaedic Surgeon, dated 29 January 1998.  It includes the following:

   "This patient has had an excellent result from a total hip replacement.  The leg length discrepancy has been managed with heel raise on the other side.  In this situation, I feel that his hip would not prevent him from performing work activity.  Prior to his hip replacement, he was involved in sales activity and he would be quite fit to return to this.  The only occupation which he would be limited to would be heavy labouring type activity."

1. The respondent called Dr Mulholland, Consultant Psychiatrist, to give evidence.  Exhibit 2 includes copies of reports by Dr Mulholland dated 23 September 1999, 14 December 1999, 18 April 2000 and 23 May 2000.

2. In the report dated 23 September 1999 Dr Mulholland sets out the history related by the applicant which is generally in accordance with the applicant's evidence to this Tribunal.  Dr Mulholland was of the opinion that:

   (a)the basic psychiatric diagnosis was PTSD and chronic dysthymic disorder;

   (b)the applicant was not capable of remunerative work because of his emotional state;

   (c)his emotional state possibly contributed to the 1992 accident;

   (d)post operative confusion may have exacerbated the PTSD or there may have been an overall exacerbation of the PTSD at the time of the operation.

3. Dr Mulholland was supplied with the clinical notes of the Mater Private Hospital.  He reported on his consideration of these notes in a report dated 14 December 1999 to the Department of Veterans' Affairs which includes the following:

   "You have supplied me with copy of the Mater Private Hospital notes which refer to his admission for right total hip replacement because of osteoarthritis of his right hip.  The notes cover the period 22 June 1992 to 2 July 1992.  Surgery was on 23 June 1992.  The hospital notes include extensive nursing notes as well as physiotherapy notes and references to attendances by Dr McMenimen (sic).  These notes do not indicate any complications at all.  In particular there is no mention of any form of psychological complication.  It seems inconceivable to me that there would have been anything like the amount of difficulties that he described to me as per Section 11 of my report and that there be no mention of anything about this in the hospital file.
   In the circumstances it would appear as though at best Mr Mannion is sorely mistaken and is an unreliable historian."

1. Dr Mulholland then qualified his earlier opinion on the basis that he was no longer satisfied as to the history given to him.  In his oral evidence he expressed the opinion that the applicant may have been suffering from post operative confusional state while in the Mater Hospital.  He confirmed his opinion that the applicant suffers PTSD which had probably come on gradually over many years but he did not attribute the worsening of PTSD to the hospital episode.  If there had been a serious decompensation while the applicant was in hospital it could be expected to be recorded in the hospital records.  There is nothing of that nature so recorded.
   Consideration

2. Because of Dr Mulholland's evidence I have taken time to consider carefully the applicant's evidence in the Tribunal. 

3. There is limited corroboration of the applicant's evidence but I am satisfied and find, based on the reports of Dr McMeniman in Exhibit 3 that the orthopaedic problems resulting in a hip replacement settled at least to the extent that those problems no longer prevented the applicant from engaging in remunerative work.

4. I accept Dr Mulholland's opinion that there has been a gradual worsening of the PTSD rather than exacerbation caused by the hip replacement operation and events claimed to have occurred while the applicant was in hospital.

5. In the result I have come to the conclusion that notwithstanding Dr Mulholland's qualified opinion I should accept the opinion of Dr Kimbell, the treating psychiatrist on the basis that he best understands the applicant's condition and he is unshaken in his opinion that the PTSD alone renders the applicant incapable of engaging in remunerative employment (Exhibit F).

6. I am satisfied that the applicant ceased work because of the PTSD and nothing else.  I am also satisfied that because the applicant cannot engage in remunerative employment he is suffering a loss of income caused by the applicant's incapacity for work due to PTSD.

7. There is evidence to suggest that the applicant is capable of working limited hours per week exceeding eight hours per week.  Dr Kimbell contradicts this view in his report of 26 May 1999, a view consistent with his oral evidence to the Tribunal.

8. In the result I am satisfied that the applicant, who is 58 years of age and who is in receipt of a disability pension at 90% of the General Rate is:

   (a)totally and permanently incapacitated for remunerative work due to his PTSD alone;

   (b)the applicant has been prevented by the PTSD from undertaking remunerative work, whether the remunerative work that the applicant was undertaking until 1992 or remunerative work generally and he is no longer seeking remunerative work because of PTSD; and

   (c)the applicant has suffered a loss of remuneration because he is prevented from undertaking remunerative work by the PTSD alone.

9. Being satisfied that section 24 of the Veterans' Entitlements Act 1986 has been satisfied I will set aside the decision under review and decide that the said section 24 applies with effect from 15 January 1997.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Mr KL Beddoe (Senior Member)

Signed:         .....................................................................................
  Associate

Date/s of Hearing   1 September 2000
Date of Decision   28 February 2001
Applicant   Mr Harding, Solicitor
Respondent   Mr Williams, Advocate