McKay and Repatriation Commission
[2010] AATA 1067
•24 December 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 1067
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2453
VETERANS’ APPEALS DIVISION ) Re Andrew McKay Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Senior Member K S Levy RFD Date24 December 2010
PlaceBrisbane
Decision The decision under review is affirmed. ..................[Sgd]............................
Senior Member
CATCHWORDS
VETERANS AFFAIRS – Benefits and entitlements – Application for Special Rate of war caused Disability Pension – Relevant condition must be alone or arise predominantly - Decision under review affirmed.
Veteran’s Entitlements Act (1986) (Cth) ss 19, 24, 28
Cavell v Repatriation Commission (1988) 9 AAR 534
Chambers V Repatriation Commission (1995) 55 FCR 9
Clark v Ryan (1960) 103 CLR 486
Flentjar v Repatriation Commission [1997] FCA 1200
Forbes v Repatriation Commission (2000) 101 FCR 50
Jackman V Repatriation Commission, 30 June 1997, 521/1996
Repatriation Commission v Hendy (2002) 76 ALD 4
REASONS FOR DECISION
24 December 2010 Senior Member K S Levy RFD INTRODUCTION
1. The applicant Andrew McKay is currently in receipt of a war caused disability pension. He now seeks recognition of his early cessation of work as being related to his recognised condition of Alcohol Dependence, and as a consequence, payment at the Special Rate of pension.
2. He was originally paid at 60% of the General Rate. He applied for the Special Rate. The application was rejected by the Repatriation Commission on 29 August 2008, but that decision increased the rate of pension at the General Rate to 100%, with effect from 13 June 2008. He appealed that decision to the Veterans Review Board, which also rejected his claim by decision dated 30 March 2009.
3. He now seeks further review to this Tribunal. He was self represented, having been denied Legal Aid for these proceedings.
ISSUES
4. The issues for determination are:
(1)Whether the decision to pay pension to Mr McKay at 100% of the General Rate under the Veterans’ Entitlement Act 1986 (“the Act”) with effect from 13 June 2008 is the correct or preferable decision; or
(2)Whether Mr McKay is entitled to payment at the Special Rate of Pension.
EVIDENCE
5. Mr McKay gave evidence before the Tribunal. He relied on submissions of his former solicitor in his Applicant’s Statement of Facts and Contentions dated 22 April 2010. He also provided written submissions and read those to the Tribunal.
6. His evidence was that the Tribunal held in his favour in relation to the condition of Alcohol Dependence in April 2008. He analysed the report of the Repatriation Commission dated 29 August 2008 and disputed the findings based in particular, on the medical evidence, and what the Commission seemed to regard as being inconsistent statements of the applicant.
7. There has been much focus on the applicant’s familial tremor and its effect on his work as a self employed bookkeeper and the contribution of this condition to Mr McKay’s cessation of work. He responded by not denying the deterioration in this condition but says it is but one incident of his working life which affected him adversely. He denies however, that it had any effect on his decision to cease working.
8. The applicant stressed that his tremor did not necessarily affect the legibility of his handwriting. He referred to examples of a journal he had made and I called for and examined that journal.
MEDICAL EVIDENCE
9. Dr John Rogers, Consultant Psychiatrist also gave evidence. He has produced a number of reports and was cross examined on these reports. The chronology and summary of Dr Rogers’ and other medical reports are as follows:
Report by Dr Athey, Psychiatrist, 20 September 2004
10. The report by Dr Athey provides a detailed clinical history of Mr McKay. I note the applicant’s previous evidence of Dr Athey’s report to the Tribunal in 2008. In the transcript of the 2008 hearing before Senior Member Carstairs, Mr McKay told the Tribunal in his evidence that his one hour appointment covered his history until he was going to Vietnam but, as Mr McKay put it then “The clock ran out, so we never got to talk about Vietnam”. That does not seem to be a full account of Mr McKay’s discussions with Dr Athey. He obviously gave Dr Athey an account of a pre-army service traumatic experience involving an electric shock from a domestic appliance in his kitchen. Later, while in the Army, he described an apparent homosexual approach to him by a Sergeant after a mess function in Canberra; and a subsequent posting as a Mess Steward in Vung Tau. He told Dr Athey, “his only real action” in Vietnam was “a helicopter trip to distribute pamphlets”[1]. He acknowledged he was not seriously affected by his experience there. Even knowledge of incidents in which people he knew had been injured, including one person who was killed, did not seriously affect him. He began to drink and smoke heavily, and to gamble excessively while in Vietnam[2].
[1] Folio 30 exhibit 1
[2] Ibid
11. Dr Athey reported “Mr McKay considers his major problem is his ongoing tremor”[3]. He reported that he was becoming increasing forgetful. Dr Athey concluded the only psychiatric concern was that Mr McKay had significant anxiety which he regarded as “moderate in severity”[4] at that time. He noted also Mr McKay had a significant tremor which was exacerbated by his anxiety[5]. At the time, he diagnosed General Anxiety Disorder, with probable benign familial tremor.
Dr Reimer, Neurologist 2 November 2004
[3] Folio 31 exhibit 1
[4] Folio 34 exhibit 1
[5] Ibid
12. Dr Reimer diagnosed Mr McKay as having a benign essential tremor with no other obvious implications.
Reports by Dr John Rogers, Psychiatrist
13. Dr Rogers first reported on 8 September 2005. He has recorded Mr McKay as having involvement in reconnaissance work in Vietnam and experience with the underworld in Vung Tau. Mr McKay revealed increasing alcohol consumption and arousal and irritability as a result of his experience in Vietnam. Dr Rogers’ first report recorded his impression of the applicant as having anxious rumination and diagnosed Generalised Anxiety Disorder and Alcohol Dependence. He also recorded Mr McKay’s mother had severe alcoholism.
14. On 9 February 2006, Dr Rogers reported with greater specificity Mr McKay’s health concerns affecting his work. He said:
“These include high levels of irritability and anxiety, concentration and memory difficulties, as well as these symptoms compounding a benign essential tremor. The viability of his business has become increasingly problematic with a necessity to employ someone for the hands on computer work. His own functioning, regardless of this, has also declined significantly”[6].
[6] Folio 51 exhibit 1
15. He again diagnosed Generalised Anxiety Disorder and Alcohol Dependence.
16. In his report of 25 July 2008, Dr Rogers endeavours to clarify his diagnostic and treatment focus for Mr McKay, who he had been treating for approximately three years. He stated:
“This man’s treatment focus has throughout been principally on his alcohol dependence which continues at a high level on a daily basis. He has struggled with respect to treatment but still continues this high level including beer and four to six double whiskeys on a daily basis.
There are considerable overlaps between the symptoms of anxiety and someone suffering from chronic alcohol dependence. Increasingly it has been my view over the period of treatment that the preponderance of his symptoms relate to alcohol contribution…..
It is my view that he should now be regarded as totally and permanently incapacitated on the grounds of his accepted condition alone i.e. that of alcohol dependence. I see no prospect of this improving such as to the point that he would be able to resume work in any capacity either full or part-time. This is based on ongoing treatment since 2005 and relative lack of treatment response throughout this period”[7].
[7] Folio’s 100-101 exhibit 1
17. On 2 October 2009, Dr Rogers further reported on Mr McKay. His perspective then was as follows:
…he is rendered incapable of undertaking remunerative work for periods aggregating more than eight hours per week…[8]
[8] Exhibit 6
Report by Professor Peter Silburn 25 January 2010
18. Professor Silburn reported on the outcome of treatment for Mr McKay’s benign essential tremor and opines as to its etiology as follows:
“He is most pleased with the effect of the surgery, particularly as his tremor was escalating in severity but importantly, he did not find that the tremor did not stop his paid employment work over the years.
…I do not feel that the essential tremor itself is a war related injury, although it’s severity would be clearly exacerbated under periods of stress or that requiring treatment of his airway obstruction. Additionally, it has not affected his work in the past and therefore, certainly would not now.
… I do not feel this tremor is the result of alcohol abuse, however during the periods of alcohol consumption, it is not uncommon for the essential tremor to ease.
However, there is a clear marked rebound phenomena in that the tremor on cessation of the alcohol consumption, save overnight during sleeping, is exacerbated on waking in the morning ie: a significant rebound phenomena with a marked increase in tremor amplitude.
In essence, it would appear that his other health issues are the underlying basis for his inability to work”[9].
[9] Exhibit 2
CONSIDERATION
19. I have taken account of all the written and oral evidence and the statutory and case law relevant to this matter.
THE STATUTORY LAW
20. The application by Mr McKay is to be assessed against criteria set out in s 24 of the Act. Section 24(1)(aa), s 24(1)(aab) and 24 (1)(a)(i) are satisfied. The other provisions of relevance are:
s 24 (1)(b)the veteran is 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; and
s 24 (1)(c)the veteran is, 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; and
s 24(1)(d) section 25 does not apply to the veteran.
21. Section 25 does not apply in this case, therefore s 24(1)(d) is also satisfied. To resolve the issue in dispute, the main questions are whether Mr McKay can satisfy s 24(1)(b) and s 24(1)(c).
Is s 24(1)(b) satisfied?
22. The evidence is required to show that Mr McKay is totally and permanently incapacitated from war-caused disease alone, which makes him incapable of undertaking remunerative work for more than 8 hours per week.
23. For an assessment under s 24(1)(b) I must have regard to s 28. This requires that only the following matters must be taken into consideration:
Section 28(a) - the vocational trade and professional skills, qualification and experience of the veteran
24. Apart from his skills as a Mess Steward, Mr McKay has been a manager in a printing business and of more recent times, he has been a bookkeeper. I consider his only contemporary “vocational, trade or professional”[10] skill would be that of bookkeeping or administrative skills or associated managerial skills.
Section 28(b) - the kinds of work the applicant might reasonably undertake
[10] Chambers V Repatriation Commission (1995) 55 FCR 9, 23
25. Based on his contemporary occupational skills and experience, and taking account of his age and recent working environment, the kinds of work he might reasonably undertake are administrative, accounting related duties, or managerial work in a relatively small but low stress environment.
Section 28(c) - the degree to which the applicant’s physical or mental impairment, or both, has reduced his capacity to undertake the kinds of remunerative work referred to in s 28 (b)
26. The evidence submitted by the applicant shows he has a benign tremor which has improved recently following a surgical intervention. Professor Silburn says this is not war related but it affects his work. It is not the result of Alcohol Dependence but it may be worsened for a time after the effects of alcohol wear off. Professor Silburn is an expert witness and his evidence is uncontradicted. I accept his evidence.
27. One of the issues relevant to this case is whether the tremor may be seen to be a significant or contributory cause to Mr McKay’s cessation of work. This evidence is convoluted by a pattern of emerging assessment since 2004 and Mr McKay’s apparent reporting differentially over that period. Dr Athey’s impression in 2004 was Mr McKay considered his tremor “his major problem”[11]. He noted concern about the future and his possible difficulties in continuing his business.
[11] Folio 31 exhibit 1
28. In 2005, Dr Rogers noted an “obvious” essential tremor and also noted the contribution of this condition has become “problematic” but also said “worsening anxiety condition has also contributed”[12]. In 2006, he formed the view Mr McKay was then totally and permanently incapacitated and seemed to put a large emphasis on the tremor, also noting the anxiety, memory and concentration symptom cluster as being significant. By the report in 2008, Dr Rogers seemed to sharpen his focus on a major clinical issue, which he said was Alcohol Dependence. He explains that this should be seen as overlapping with the symptoms of Anxiety. The attachment to the report showed that Dr Rogers regarded the impact of the conditions as 95% Alcohol Dependence and 5% Anxiety. He confirmed his view in his 2009 report and further stated that Mr McKay’s accepted condition was wholly attributable to his inability to work for more than 8 hours per week.
[12] Exhibit 5
29. Dr Rogers is the treating psychiatrist and his longer and more gradual formulation of his diagnosis and the attributability of the accepted condition to Mr McKay’s inability to work is unchallenged.
30. Having considered the factors in s 28 and the medical evidence, I find that in regards to Mr McKay’s impairment from his accepted war-caused disabilities despite diagnoses of Generalised Anxiety Disorder and Benign Essential Tremor, it should be accepted that he has reduced capacity and can undertake the kinds of remunerative work found under s 28 above but cannot work for more than 8 hours per week.
Is s 24(1)(c) satisfied?
31. This subsection has two limbs:
(i)Whether the veteran has been prevented by his war caused disease alone, from continuing to undertake remunerative work – this is assessed by reference to s 24(2)(b); and if so,
(ii)Whether the veteran has suffered a loss of salary or wages as a result of a war-caused incapacity – this is assessed by reference to s 24(2)(a).
32. Determining these questions requires “proper, genuine and realistic consideration”[13] of all the evidence. It is a hypothetical assessment of what Mr McKay is likely to have done had he not had a war caused service disability and the assessment is to be undertaken as the facts existed during “the assessment period” (s 19(9)). This means the period commencing on the “application day” and ceasing on the day that the claim is determined. This hypothetical assessment also is concerned with whether the incapacity is the only condition (the “alone” test) which prevents the applicant from continuing to undertake remunerative work. This requires taking cognizance of any factor which contributes to the prevention of the applicant in undertaking remunerative work[14].
[13] Repatriation Commission v Hendy (2002) 76 ALD 47 [54]
[14] Ibid
33. The assessment is to be undertaken as specified by the Full Court of the Federal Court of Australia in Flentjar v Repatriation Commission[15] as follows:
1.What was the relevant “remunerative work that the veteran was undertaking”; within the meaning of s 24(1)(c) of the Act?
2.Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3.If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4.If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, 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?
[15] [1997] FCA 1200
34. For Question 1, the substantive remunerative work that has been undertaken by the applicant is that of a bookkeeper, or accounting, administrative type work requiring little manual or physical exertion[16].
[16] Above n 13
35. For Question 2 of the Flentjar formulation, the question is whether Mr McKay is prevented from continuing to undertake remunerative work because of his war‑caused injury or disease.
36. The assessment must be from the start of the assessment period, that is, from 28 September 2005 to the present. The reports of Dr Rogers are critical to this assessment as the psychiatric conditions are relevant to this application. In addition, the impact of the conditions – anxiety and benign familial tremor are also important.
37. The condition of benign essential tremor is not attributable to war service. There are some assertions that this condition has an impact on Mr McKay’s capacity to continue working. In Dr Rogers report of 8 September 2005, he diagnosed Alcohol Dependence and Generalised Anxiety Disorder and attributes the date of onset of the condition to the Vietnam Service. In his reports of 25 July 2008 and 2 October 2009, Dr Rogers opined that Mr McKay is prevented from undertaking remunerative work for more than 8 hours per week due to his accepted condition of Alcohol Dependence.
38. Even though there are non accepted conditions in existence also, the condition of Alcohol Dependence which is the only accepted war caused condition is, from the evidence presented, sufficient to answer Question 2 as “Yes”.
39. For Question 3 of Flentjar the scheme of analysis, this is an assessment of the “alone” test. That is, is the accepted condition the only factor contributing to the applicant’s cessation of work or preventing him from continuing to undertake remunerative work?
40. It seems logical to deal firstly with the “alone” test in its amplification in s 24(2)(b); that is, whether Mr McKay has been genuinely seeking to engage in remunerative work; and but for his incapacity, he would be continuing to engage in remunerative work; and that the incapacity is the substantial cause of his or her inability to obtain remunerative work.
41. In this case, as Mr McKay owned his own business rather than working for an employer, he should be regarded as not seeking to work for another but seeking to continue to run his book-keeping business. Wishing to continue to run his business must be prevented by his war caused disability alone.
42. “Alone” must be interpreted in the sense that the “incapacity is the substantial cause” or being unable to obtain remunerative work[17]. The Federal Court have said the “alone” test must not be viewed rigidly but must be applied with an “eye to reality”[18]. Where a non war-caused factor is present, that will not of itself prevent the claim succeeding, provided the war-caused condition is “….by far and away the most dominant of the causes…”[19]
[17] Section 24(2)(b) of the Veteran’s Entitlements Act 1986 (Cth)
[18] Jackman V Repatriation Commission, 30 June 1997, 521/1996 per Tamberlin J
[19] Forbes v Repatriation Commission (2000) 101 FCR 50 at 57
43. Mr McKay was 58 years of age at the start of the assessment period and is now 63 years of age. Age is not a factor which has been raised as relevant by either party, nor do I see it as relevant here. He has other service related conditions but these also do not seem to impinge upon any critical factor in Mr McKay’s decision to cease work. However, he also has Generalised Anxiety Disorder which is accepted for treatment only. This seems to be relevant as it overlaps with Alcohol Dependence but Dr Rogers has acknowledged this only contributes to 5% to the cause of Mr McKay’s inability to continue working.
44. The applicant says the condition of the benign essential tremor, also agreed by the respondent as relevant, was not a reason for his cessation of work. His business was sufficiently established that he was able to have a lengthy overseas holiday a few years ago and his staff successfully ran the business for him. However, his tremor was of significant concern some six or more years ago when he first saw Dr Athey and when he first saw Dr Rogers. But clearly, over the past four years or so, Dr Rogers has modified his view and now says that Mr McKay’s Alcohol Dependence is the main reason for his being totally and permanently incapacitated.
45. The respondent however, submitted after an insightful analysis of the legal requirements, that the accepted disabilities were not the only factors included. This is not amplified.
46. As was held in Cavell v Repatriation Commission[20], the ‘alone’ test must be assessed “with an eye to reality, and as a matter in respect of which common sense is the proper guide”[21].
[20] (1988) 9 AAR 534
[21] Ibid at 539
47. The medical evidence, has progressively been refined over the past six years and that of these co-morbid conditions, alcohol dependence seems to be the driving condition affecting the applicants life, at least in Dr Rogers’ opinion. Applying the ‘eye to reality’ or the common sense test, in this case, needs to recognise that there is significant inconsistency in the evidence of psychiatric conditions. The role of expert evidence is not to supplant any judicial or other decision making process or to result in a trial by expert. As was said in Davie v Magistrates of Edinburgh (1953) SC 34 at 40, “The parties have invoked the decision of a judicial tribunal, and not an oracular pronouncement by an expert”. Also, expert evidence will only be admissible if it can assist a trier of fact to make a more reliable decision[22]. But here, the evidence of Dr Rogers has a trend of inconsistency and is reduced in its utility or reliability in assisting the Tribunal. This can in part be attributable to the developing nature of the psychiatric evidence as portrayed to the doctor. In 2004, Dr Athey first saw Mr McKay and diagnosed Anxiety and emphasised the tremor. So did Dr Rogers in 2005, although Dr Rogers also diagnosed Alcohol Dependence. In 2006, General Anxiety Disorder was diagnosed and emphasised by Dr Rogers.
[22] Clark v Ryan (1960) 103 CLR 486 at 491
48. In relation to his 2008 report, Dr Rogers said in oral evidence at the tribunal, he was being asked to focus more on the work functioning of the applicant.
49. At the hearing, I asked Dr Rogers about the inconsistency between his earlier reports. He said his diagnosis was refined “with the benefit of hindsight”. His diagnosis in 2008 and 2009 revealed the contribution to incapacity as being 95% due to Alcohol Dependence and 5% to Generalised Anxiety Disorder. On the other hand, his report in 2005 and the report of Dr Athey in 2004 reported the applicant’s conditions which were of prominence then, at least as put by the applicant to them, was focussed on the hand tremor. The disability (or at least the emphasis of the condition) described by Mr McKay at that earlier time to the doctors, clearly changed over the period 2004 to 2008.
50. The reliability of Mr McKay’s evidence has also not been totally consistent in other respects. For example, in cross-examination, Mr McKay admitted his claim for pension on 28 November 2005, which was made with the diagnosis of Dr Karin Storm, was exaggerated and “untruthful” with respect to the primary condition being claimed of Benign Essential Tremor. However, that was the claim he had also portrayed to Dr Athey previously. In that claim, he said the “tremor had a profound effect and he has no control” in relation to his “fine motor skills”. He ceased work shortly after that. I note by way of chronology that the subsequent emphasis by the applicant, supported by Dr Rogers, shifts from Benign Essential Tremor to Alcohol Dependence becoming the most clinically significant condition. This is apparent in Dr Rogers’ next report, that is, the report of July 2008, shortly before the successful recognition of that condition by the Veteran’s Review Board on 29 August 2008. The theory of the applicant’s case has subsequently argued the real issue as being Alcohol Dependence and is now the main emphasis in his application for the special rate of pension.
51. The credibility of Mr McKay’s evidence is therefore somewhat diminished. Consequentially, so are the conclusions of Dr Rogers which are based on Mr McKay’s changing presentation to him. So, returning to the question of whether the war-caused injury “alone” contributed to cessation of work of the applicant, I am not persuaded that the standard of proof on the balance of probabilities has been satisfied. The tremor, which has been clearly of concern to the applicant (and has been pursued until this year when he had surgery), was obviously a driving factor in his claims around the time leading up to and the actual cessation of work. However, with ‘an eye to reality’ I cannot be satisfied it did not have a significant impact on the decision to cease work. For the purposes of s 24(1)(c) therefore, the “alone” test is not satisfied.
52. For Question 4 of the Flentjar scheme, this relates to the second limb of s 24(1)(c) of the Act which is concerned with a loss of salary or wages. Given the structure of that statutory provision it is now unnecessary to consider that question given the conclusion above to Question 3.
CONCLUSION
53. The evidence has not satisfied all of the statutory tests required to establish eligibility for the special rate of pension. The decision under review is therefore affirmed.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K S Levy RFD
Signed: .....................[Sgd]........................................................
Alex Seagar, Research AssociateDate/s of Hearing 8 September 2010
Date of final submissions 20 October 2010
Date of Decision 24 December 2010
Applicant was self-represented
Solicitor for the Respondent Terry Thrupp, departmental advocate
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