Miles and Repatriation Commission
[2006] AATA 843
•4 October 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 843
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/433
VETERANS' APPEALS DIVISION ) Re ALLAN MILES Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr EK Christie, Member Date4 October 2006
PlaceBrisbane
Decision The decision under review is set aside and in substitution thereto, the Tribunal decides that Mr Miles is entitled to pension payable at the Special Rate. The earliest date of effect is 1 January 2003.
...................[Sgd]...........................
Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – disability pension – whether applicant entitled to special rate – whether applicant totally and permanently incapacitated – whether applicant prevented from continuing to undertake remunerative work by reason of war-caused incapacity alone – whether accepted service-related conditions ‘substantial cause’ of inability to engage in remunerative work
Veterans’ Entitlements Act 1986 ss 19, 24, 120
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Flentjar v Repatriation Commission (1997) 48 ALD 1
Chambers v Repatriation Commission (1995) 129 ALR 219
Re Bos and Defence Forces Retirement and Death Benefits Authority (1977) 20 ALR 663; 1 ALD 31Forbes v Repatriation Commission (2000) 101 FCR 50
Hendy v Repatriation Commission [2002] FCA 602
Jackman v Repatriation Commission, Federal Court, 30 June 1997, 564/1997
Magill v Repatriation Commission [2002] FCA 744
Caswell v Powell Duffryn Associated Colleries (1939) 3 All ER 722REASONS FOR DECISION
4 October 2006 Dr EK Christie, Member 1. This is an application by Allan Miles for a review of the decision made by the Veterans’ Review Board (‘the VRB’) on 20 May 2005, that he was entitled to disability pension at 100% of the General Rate with effect from 1 January 2003.
2. At the hearing, Ms B Carter-Nicol of Counsel represented Mr Miles. The respondent was represented by Mr J Kelly, a Departmental Advocate.
3. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the ‘T’ documents) Exhibit R1 and the various documents tendered by the parties.
4. Oral evidence on behalf of the applicant was given by Mr Allan Miles himself, Dr P Nyst (treating GP for about 20 years) and Dr J Carter (consultant psychiatrist). The respondent called Dr J Sowby (occupational medicine specialist) and Dr W Kingswell (consultant psychiatrist).
FACTS
5. Allan Miles was born on 19 March 1941 and currently receives disability pension assessed at 100% of the General Rate. Mr Miles was discharged from the RAAF in June 1979 after twenty years service. He held the rank of a Warrant Officer.
6. During his service, Mr Miles rendered operational service in the Malaysia region from 17 August 1964 to 1 September 1965 and in South Vietnam from 18 November 1966 to 20 November 1967.
7.Mr Miles also rendered eligible defence from 7 December 1972 to 20 June 1979.
8.Mr Miles has the following conditions accepted as “service related”:
· Bilateral sensori-neural hearing loss with tinnitus
· Post traumatic stress disorder
· Alcohol dependence/abuse
· Osteoarthrosis both hips
· Osteoarthrosis both knees
9.Mr Miles has the following “non-accepted” conditions related to service:
· Diabetes mellitus (Type 2)
· Morbid obesity
10. Mr Miles suffers from the following conditions which have not been claimed as being due to service:
· Sleep apnoea
· Hypertension
· Bilateral oedema
· Osteoarthrosis both ankles
· Leg ulcers
· Shortness of breath
· Oesophageal reflux
· Prostatism
ISSUES TO BE DECIDED
11. The parties agreed at the commencement of the hearing that the issue for the Tribunal to decide was whether Mr Miles was entitled to pension at the Special Rate by consideration of the application of s 24(1)(b), s 24(1)(c) and s 24(2)(b) of the Veterans’ Entitlements Act 1986 to Mr Miles’ factual circumstances. The application of s 19 requires the Tribunal to determine the case in accordance with the “assessment period” i.e. from the date of the claim (1 April 2003) to the date of the decision of the Tribunal.
EXAMINATION OF EVIDENCE
(a) Behaviour and Performance in the Workplace – Allan Miles (Applicant)
12. Mr Miles described his past employment as a Departmental (Line) Manager in purchasing for the Holy Spirit Hospital. He said that his attitude to his staff was one of being on a “fairly short fuse” and that he would “explode a lot” if people did not perform. In addition, during stressful periods, such as a stock-take, he “was not a nice person to be near” when errors were detected.
13. He said that he had planned to continue working until he turned 65 but had to revise these plans over time. The ultimate turning point for him was the sale of the Holy Spirit Hospital from its religious order ownership to a private corporation in 2003. A few weeks before the sale he was “virtually told” that he would no longer be required. Following the sale he was informed that his duties had changed and his past position was no longer available to him.
14. After he had taken holidays in 2003, he considered his new employer’s attitude towards him, as well as his concern with the difficulty he had carrying out his line manager’s job “the way the job needed to be done”. Some of the factors that he considered included the difficulty he had in coping with missed deadlines, “crankiness with staff” and a behavioural problem of “not being a nice person to be around”. He ceased work on 24 February 2003 as a result of being made redundant.
(b) The “Alone Test” and Medical Conditions
· Allan Miles (Applicant)
15. Mr Miles gave the following responses with respect to his unclaimed medical conditions and his non-accepted medical conditions, on his capability of working:
(a)He had been diagnosed with hypertension in the early 1990’s. He continued to work with this condition until resigning in 2003.
(b)He had been diagnosed with Type II diabetes somewhere around “1998-2000”. He had managed this condition with exercise and medication. He continued working with this condition.
(c)He acknowledged hearing loss could be a problem but the impact on him was not always high.
(d)He had been diagnosed with sleep apnoea whilst still working at the Holy Spirit Hospital and had his sleep quality improved with the use of the CPAP machine to assist his breathing whilst sleeping.
(e)He acknowledged that the prostate condition could cause some incontinence problems. Nevertheless, he continued to work.
(f)He acknowledged the osteoarthrosis of the hips and both knees was painful, occasionally. However, because he had a “sedentary job”, he said that he “could muddle through it”.
· Dr P Nyst (Treating General Practitioner of Allan Miles)
16. Dr Nyst had been the treating General Practitioner for Mr Miles for some 20 years and had treated him for the following medical conditions – conditions that were not “accepted service-related conditions”:
·Morbid obesity
·Diabetes myelitis
·Sleep apnoea
·Arthritis
·Shortness of breath
·Hypertension
17. In Dr Nyst’s opinion none of the above non-accepted or unclaimed service-related medical conditions prevented Mr Miles undertaking paid employment, for the following reasons:
“Despite the above conditions, Mr Miles continues to work. He was employed as a full time permanent employee of the Holy Spirit hospital. To the best of my recollection, he was suffering all of the above conditions throughout many years. Indeed throughout all of these years, he continued to hold down a full time job; [and] at the time of ceasing work, he had over 100 sick days accrued. This means he was able to attend his work both regularly and required less than the prescribed allowance of sick leave that the community finds most workers are entitled to.” (Exhibit R1 T4, folio 109)
18. In his oral evidence, Dr Nyst stated that, notwithstanding that Mr Miles had diabetes, he never had any diabetic comas or falls and so doubted whether this condition had any effect on his ability to work. In addition, it was his opinion that sleep apnoea should not trouble an employer and that shortness of breath, or the medication prescribed for all of the conditions (in paragraph 16) would affect his workplace capability. In addition, he considered that the hypertension condition and its associated medication would not have caused any side effects that would prevent him from working.
19. Over the 20 years he had treated Mr Miles he had not noticed any appreciable changes in the nature of Mr Miles’ “non-accepted” medical conditions.
20. During cross-examination, Dr Nyst acknowledged that he had relied on the report of Dr J Carter (psychiatrist) that Mr Miles had been diagnosed with post traumatic stress disorder (PTSD) and the conclusions made in the report as to the effects of this condition on gaining employment.
· Dr J Sowby (Occupational Medicine Specialist)
21. Dr Sowby’s opinion was that, apart from Mr Miles’ psychiatric conditions, none of his other medical conditions would prevent him from working in his previous sedentary job, that he was performing when he left work in 2003. He acknowledged that the major issue, in this regard, was Mr Miles’ psychiatric conditions, the PTSD and/or anxiety disorder and the “fairly recent onset” of adjustment disorder. He said the illness of Mr Miles’ wife and mother were the most likely cause of the adjustment disorder at this time.
22. Dr Sowby was asked the following question during re-examination:
“…. To re-cap your evidence, doctor, I just want to get this straight in my mind, that his osteoarthritis of quite a number of joints, his oesophageal reflux, his obesity hypertension, the diabetes, the sleep apnoea, the hearing, the prostatism, throwing them all together, the effect of them all…. would play a role in his work capacity but wouldn’t prevent him. Is that correct?”
23.Dr Sowby agreed with this proposition.
· Dr W Kingswell (Psychiatrist)
24. Dr Kingswell disagreed with the diagnosis that Mr Miles had PTSD and he considered “arguable” that Mr Miles “had described a stressor of the nature intended by DSMIV – TR for that diagnosis” (Exhibit R3, p7). It was his opinion that the correct diagnosis was generalised anxiety disorder and that it had worsened recently as a result of a number of stressors. He concluded in his report that he was “not persuaded the psychiatric disorder of itself prevents Mr Miles from engaging in remunerative employment.” (exhibit R3).
25. In re-examination, Dr Kingswell concluded that the likelihood of Mr Miles going back to paid work after resigning in February 2003 was “essentially zero” because of a number of influences: health problems, advanced age, anxiety disorder and the stress associated with great personal loss due to his wife’s illness and subsequent death.
26. Dr Kingswell acknowledged that Mr Miles’ psychiatric disorder was a significant contributor preventing him from engaging in paid work, but there were also a number of other influences which could not be ignored.
27. In response to a Tribunal question, the extent that Mr Miles’ psychiatric disorder was a contributor to his ability to engage in paid work, Dr Kingswell stated:
“[Mr Miles] gave a history of being unable to adapt to a changing work form and that there were a number of contributors to that. He was drinking too much; he had a number of other health problems. But he was also an anxious man that had difficulty concentrating, difficulty reaching deadlines, and so I accepted from his history that his anxiety disorder was one of the contributors to his incapacity to work, but I didn’t think it was the sole contributor.”
28. When next asked to further clarify his evidence in terms of there being “other health problems” that made it difficult for Mr Miles to adapt to a changing workplace, Dr Kingswell stated:
“Well, his other health problems that he described were arthritis, and sleep apnoea. Sleep apnoea is going to be a very significant contributor to poor workplace performance in that it tends to be – the sufferer is depressed and also is very tired during the day. So I guess there’s some overlap in these disorders. An anxiety disorder is still going to contribute, I think, to his poor concentration and difficulty making decisions, and his inability to adapt to the changes in the workplace that he is confronted with.”
· Dr J Carter (Treating Psychiatrist of Alan Miles)
29. Dr Carter saw Alan Miles, from 10 January 2003 on 57 occasions for individual therapy and on 57 occasions for group therapy (Exhibit A1). Dr Carter had seen Mr Miles on three occasions from 10 January 2003 until the time he ceased work on 23 February 2003. Mr Miles had been referred to her by Dr Nyst on 30 December 2002.
30. Dr Carter’s first report (Exhibit R1, T4 Folio 31, 2 May 2003) diagnosed Mr Miles as having PTSD. In her oral evidence Dr Carter stated:
“I made the diagnosis of post traumatic stress disorder on his first appointment before he had been offered involuntary redundancy. And I thought that he was not coping very well and I made the diagnosis at that time. And I did see him, you know, immediately prior to his change of employment status and immediately after.”
31. Moreover, Dr Carter expressed the opinion that over the entire time she had known him, Mr Miles’ symptoms of PTSD had remained severe throughout and unchanged. He continues to suffer from severe PTSD as the symptoms remain.
32. In her second report (Exhibit R1, T4, Folio 111, 22 June 2004), Dr Carter stated that at the time Mr Miles’ employment ceased in February 2003 “he was becoming irritable at his work and was not performing very well and was isolating himself, and these were the symptoms of his post traumatic stress disorder”.
33. In addition, in this report, Dr Carter stated (at Folio 112)
“…. his symptoms of PTSD, which contributed to him not being kept on in the workforce, are still there…. He, like many veterans with PTSD, used much avoidant behaviour and irritable interactions with others to try to make them not ask him things.”.34. In her final report (Exhibit A1, 12 October 2005), Dr Carter stated that Mr Miles’ accepted psychiatric disabilities alone prevented him from undertaking paid work for more than eight hours per week. Her reasons for this opinion were:
“I believe they do, because issues like concentration, capacity to grasp new things, ability to control his temper when under pressure, ability to have an optimistic mood in the workforce, are still not with him. He would not be able to be employed because he is still quite withdrawn and irritable.”
35. It was also her opinion that Mr Miles’ accepted disabilities, alone, were the sole reason preventing him from undertaking paid employment.
36. When asked during cross-examination that there may be a contradiction in her evidence in describing Mr Miles as having a “placid easy-going nature” and her observations that he was “grumpy”, Dr Carter dismissed the proposition, stating:
“No and he is still like that. He is easy enough going, but if you push him into something and he is not quite ready for it, he explodes into grumpiness. And so, in between his outbursts of grumpiness and difficulty to get along with, he – you can get along with him. He is a likeable enough person…..and he gave a history, himself, of not functioning very well in the workplace, missing deadlines, going slow, and generally deteriorating in his capacity to fulfil his job.”
37. Dr Carter was asked during cross-examination whether she was aware that two to four assessment appraisals had been made of Mr Miles over the last few years he was employed at the Holy Spirit Hospital and that he had received a salary increase on each occasion. Dr Carter stated that she could not respond to the question without details on the form of assessment e.g. oral or written, as the outcome of the assessment was reflected in the format.
38. In relation to the loss of his wife and mother and the state of his psychiatric health, Dr Carter stated that Mr Miles had coped very well and expressed the opinion that there had not been any maladaptive adjustment to the bereavements.
39. In contrast to Dr Kingswelll who had only seen Mr Miles on one occasion, Dr Carter said that she had seen Mr Miles longitudinally from 2003-2006 and so was placed in a superior position in diagnosing the psychiatric conditions Mr Miles suffered i.e. to assess Mr Miles’ coping capacity and to get a sense of his character over time. Consequently, she stood by her diagnosis of PTSD, as this condition remained in the forefront; the symptoms of PTSD had remained unchanged over time.
40. In response to a question asked by the Tribunal, Dr Carter stated that stressors Mr Miles would have encountered in his working life at the Holy Spirit Hospital, such as pressure to meet deadlines or requests for more responsibility, could act as a “trigger” to change his behaviour from “placid” to a “grumpy” nature.
(c) Attempts to seek employment following redundancy
· Allan Miles (applicant)
41. In response to a Tribunal question whether he had made any attempts to look for work following his resignation from the Holy Spirit Hospital in 2003, taking into account his (a) accepted service-related conditions, and (b) his non-accepted service related/vocational medical conditions, Mr Miles gave the following responses:
(a)That he had followed up an advertisement in the local newspaper for a position at the local high school. He received materials in response to his inquiry but did not proceed with it, given that there were over 60 applicants;
(b)That he had discussed with his wife the possibility of undertaking taxi-cab work. However, he did not pursue that work because of concerns that his late wife had expressed over his personal safety in this type of work.
42. Mr Miles told the Tribunal that both his wife and mother had died in the past 18 months and that he had nursed his wife over the last year of her life. The Tribunal notes that the late Mrs Miles had been diagnosed with a “poor prognosis brain tumour” in April 2005.
43. The late Mrs Miles had also suffered a significant injury to her arm and knee after a fall in January 2005 and had required Mr Miles to care for her. In addition to his wife’s illness, he had some responsibility associated with his mother’s affairs and life, following a stroke and her admission to a nursing home (Exhibit R2, Dr Sowby’s report of 14 September 2005).
44. Mr Miles’ wife passed away on 2 December 2005.
STATUTORY REQUIREMENTS AND LEGAL PRINCIPLES
45. There is only one decision possible in this application for review: whether Mr Miles is entitled to disability pension at the Special Rate in accordance with the relevant provisions [ss. 24(1)(b), 24(1)(c) and 24(2)(b)] of the Veterans Entitlement Act 1986 [the “VE Act”].Accordingly, the question for the determination of the Tribunal is whether the decision under review is the correct one.
[See Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68]
46. In the Second Reading Speech of the Veterans’ Entitlements Bill 1985 relating to amendments which created the current Section 24, the then Minister for Veterans’ Affairs said:
“In addition the TPI rate pension can become payable only when a veteran is totally and permanently disabled by accepted disabilities and is thereby precluded from continuing to engage in remunerative work. If a person has had the usual span of the working life or, and we emphasise these words, has retired voluntarily or has left employment for reasons other than accepted disabilities, the TPI pension is not payable."
·Disability Pension at the Special Rate and Section 24 of the VE Act
47. Subsection 24(1)(b) of the VE Act requires the veteran’s incapacity from war‑caused injury or war‑caused disease, or both, to be 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.
48. With respect to the requirements of subsection 24(1)(c), Nicholson J referred to the decision of the Full Court of the Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1 at pages 4-5 where the Court said that the issues before the Tribunal were:
“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?”
49. The Full Federal Court in Chambers v Repatriation Commission (1995) 129 ALR 219 referred, with approval, to the following often-cited passage of Brennan J [as he then was] in Re Bos and Defence Forces Retirement and Death Benefits Authority (1977) 20 ALR 663; 1 ALD 31 at 233 and concluded that:
“…However, the adoption of Brennan J's analysis in Re Bos suggests strongly that all the individual's skills and qualifications, regardless of the means by which they have been acquired or developed, are to be taken into account in determining the opportunities for remunerative work available to that person.”
50. The question of a combination of war service conditions and non-war caused conditions and undertaking remunerative work, was considered by Nicholson J in Forbes v Repatriation Commission (2000) 101 FCR 50 at 57:
“As in the case of the present applicant, it is possible that the war-caused condition will be far and away the more dominant of the causes of the preventative effect where there is also present a non war-caused condition having such effect in combination. The result is that the presence of the latter will deny to a veteran qualification for the special rate of pension. Parliament has sought to ameliorate this position by the provisions in s 24(2)(b), to which reference has been made. To date, the applicant has been unable to qualify pursuant to that provision. Whether he can qualify pursuant to that provision in the future remains a question for consideration” [Tribunal emphasis].
51. In Hendy v Repatriation Commission [2002] FCA 602, Madgwick FCJ considered the question of a veteran engaging in remunerative work in relation to factors such as the veteran’s age, time out of the workforce and war service conditions. At paragraph 40 Madgwick made the following statement: - .
“It seems clear however that it is not in the intendment of the legislation that decision-makers might resort, under the rubric of labour market factors, to the mere consequences of a veteran’s service-related disability for the purpose of defeating the veteran’s claim. Among other things, if a service-related condition incapacitates a veteran for particular work, it will be more or less true in every case that, as time goes by, the veteran’s ability to re-enter the workforce will tend to be impaired on account of lack of recent experience of that work, absence from the workforce generally and, for older veterans, their increasing age. There would have been little point in providing for a work incapacity pension if the direct consequences of the incapacity could defeat the right to the pension”.
52. The above matters must be satisfied to the reasonable satisfaction of the Tribunal in accordance with the standard in subsection 120(4). That meant, as Tamberlin J noted in Jackman v Repatriation Commission, Federal Court, 30 June 1997, 564/1997 at 11:
“The AAT had to determine, to its reasonable satisfaction, whether the applicant’s war-caused disabilities were the only reason for him not being in remunerative employment. Burchett J in Cavell stated that this determination is not to be made upon ‘nice philosophical distinctions’, equally it is not to be made upon complex calculations of the probability that an intervening event may have occurred. The approach is to be guided by commonsense with an ‘eye to reality.”
CONSIDERATION OF THE ISSUES
53. There is no dispute in the evidence before the Tribunal that Mr Miles ceased work at the Holy Spirit Hospital on 23 February 2003. The factual basis for the involuntary redundancy would not preclude a finding that s 24 (1)(c) was satisfied if that decision to cease work could be attributed to Mr Miles’ accepted disabilities. That is, whether in the evidence before the Tribunal that the accepted condition of PTSD, by itself, or together with Mr Miles’ other accepted disabilities, alone, prevented him from continuing to undertake remunerative work: see Magill v Repatriation Commission [2002] FCA 744.
54. The first issue for the Tribunal to decide is the divergent opinion between Dr Kingswell and Dr Carter in relation to the diagnosis of “generalised anxiety disorder” and PTSD, respectively. The diagnosis would be complicated by the bereavement of Mr Miles’ wife and mother in 2005.
55. The Tribunal prefers the opinion of Dr Carter to Dr Kingswell, for the following reasons:
(a)Dr Carter saw Mr Miles three times before he ceased work (January-February 2003) and over time had seen him on 57 occasions;
(b)Dr Kingswell saw Mr Miles on one occasion only – 24 August 2005;
(c)Dr Carter diagnosed PTSD for Mr Miles at the first appointment i.e. before his redundancy;
(d)Over time (2003-2006), Dr Carter has seen Mr Miles, longitudinally, frequently. She has been in a position to monitor Mr Miles’ psychiatric state and to evaluate the effects of confounding factors such as bereavement, employment and other stressors identified in clinical histories taken over time. It is very significant that, in Dr Carter’s opinion, based on her history of consultations over 2003 – 2006, the symptoms of Mr Miles PTSD remains unchanged and the condition continues to be severe;
(e)In contrast, Dr Kingswell’s diagnosis of “generalised anxiety disorder” based on the one consultation, and reports provided, would have a number of confounding variables e.g. “his mother’s poor health and his wife’s terminal illness” which would influence the diagnosis. There is no reference in Dr Kingswell’s report as to how Mr Miles’ symptoms may have changed over time from 2003 – 2006. This is a direct result of the absence of any longitudinal history and monitoring.
56. Accordingly, the Tribunal is reasonably satisfied that Mr Miles’ psychiatric condition has been correctly diagnosed by Dr Carter as PTSD and that this condition remains severe and the symptoms unchanged as from the date of diagnosis (10 January 2003) to the present time.
57. The Tribunal does not accept the diagnosis of Dr Sowby (an occupational physician) that Mr Miles suffers from an “adjustment disorder” because (a) Dr Sowby’s diagnosis of his psychiatric condition is subjective – not objective; and (b) is not supported by other psychiatrists - Dr Carter and Dr Kingswell, as an appropriate diagnosis in the reports they have provided.
58. Next, the Tribunal considers whether the requirements of s 24(1)(c) have been satisfied according to the legal principles in Flentjar’s case and the standard in Jackman’s case.
59. The Tribunal concludes that the relevant remunerative work Mr Miles was undertaking from 1957 – 2003 (based on Attachment 1, Exhibit A1) could be described as clerical and administrative, stores and supply, managerial: see Chambers’s case.
60. Next, the Tribunal concludes that by reason of service related disease, Mr Miles is prevented from continuing to undertake that work.
61. The evidence of Dr Sowby acknowledged that the major issue affecting Mr Miles’ capacity to undertake paid work was his psychiatric conditions (paragraph 21). The Tribunal has already concluded that one psychiatric condition relevant, in this regard, is the accepted service-related condition of PTSD.
62. It is not in dispute that the accepted service related condition of alcohol dependence/abuse has been in remission since November 2003 (see Exhibit R3, Dr Kingswell). Dr Kingswell has not considered this psychiatric condition in relation to ability to undertake paid work. However, in her third report (Exhibit A1, 12 October 2005) Dr Carter expressed an opinion on alcohol/memory relationship in the practical work setting for Mr Miles prior to, and after, ceasing work:
“ [Mr Miles] felt his ability was not able either, because he found it harder to master new things. Because of his long periods of drinking, his short term memory was not as good as it had been before, and he wasn’t as meticulous in his organisation. He was missing deadlines prior to losing his job and generally that hadn’t improved even after he stopped work, and even after he gave up drinking alcohol.”
63. Whilst the respondent has submitted that assessment of work performance of Mr Miles at the Holy Spirit Hospital resulted in annual salary increases (see paragraph 37), the Tribunal accepts the evidence of Dr Carter that the format of assessment is significant (i.e. oral or written), given the behavioural problems associated with PTSD. Because there is no real evidence before the Tribunal as to the format and details of the assessment, the Tribunal concludes that the inference between work appraisal and salary increase and work performance is mere speculation or conjecture: see Caswell v Powell Duffryn Associated Colleries (1939) 3 All ER 722 at 733.
64. The behavioural problems for PTSD displayed by Mr Miles in the workplace were identified by Dr Carter as follows:
·Irritable reactions at work, not performing very well, withdrawn and isolated, much avoidant behaviour;
·Symptoms of PTSD remaining severe and unchanged from the time of initial diagnosis (10 January 2003 i.e. prior to ceasing work), following a referral by Dr Nyst on 30 December 2002, to the present time;
·Problems with concentration, capacity to grasp new things, inability to control temper under pressure;
·Response to stressors in the workplace at Holy Spirit Hospital e.g. pressure to meet deadlines, increased responsibility, acting as a “trigger to change his behaviour from a ‘placid’ to a ‘grumpy’ nature”.
65. Mr Miles’ evidence before the Tribunal in relation to periods of stress at work and his reactive behaviour in response, verifies the clinical observations made by Dr Carter.
66. In addition, Dr Carter’s evidence in relation to Mr Miles’ psychiatric condition of alcohol dependence/abuse particularly the problems of memory loss and organisational problems that persisted prior to and after being in remission from this condition.
67. The Tribunal gives little weight to the report of Dr Sowby as to the impacts of Mr Miles’ accepted service related disabilities and his ability to continue to undertake paid work. The two reports of Dr Carter (2 May 2003 and 28 June 2004) were not reviewed. Apart from a cursory reference to “reported chronic PTSD” (at Question 8) there is no objective consideration or evaluation of symptoms and workplace functioning which significantly limits the weight that may be given to his opinion in this regard.
68. Next, the Tribunal considers the “alone” test in relation to the accepted service-related psychiatric condition of PTSD, the accepted service-related injuries (i.e. other than the diseases of PTSD and alcohol dependence), non-accepted service related and unclaimed injuries and diseases (see paragraphs 9, 10).
69. With respect to (i) the accepted service-related injuries (other than the psychiatric conditions), as well as (ii) the non-accepted service related injuries and diseases; and (iii) the unclaimed injuries and diseases, the Tribunal concludes that these injuries and diseases do not prevent Mr Miles from continuing to undertake remunerative work for the following reasons:
(a)The Tribunal accepts, as objective, the opinion of Dr Nyst, the treating general practitioner of Mr Miles for some 20 years. Specifically, his opinion that apart from PTSD and alcohol/dependence/abuse, the injuries or diseases reviewed (see paragraph 16) did not prevent Mr Miles from undertaking paid employment. Notwithstanding these injuries and diseases existed over time, Mr Miles continued to work full-time, to work regularly and to not utilise his full sick leave allowance (paragraphs 16 – 18); and
(b)The opinion of Dr Nyst was supported by Dr Sowby. It was Dr Sowby’s opinion that the accepted service related conditions (other than the psychiatric conditions) non-accepted service-related conditions and unclaimed conditions would not prevent Mr Miles’ capacity to work (paragraph 22).
70. The Tribunal concludes that it is reasonably satisfied that the only medical condition preventing Mr Miles from undertaking paid employment in the clerical, administrative and supervisory/managerial field, was his PTSD alone for the following reasons:
(a)The consistency in the opinion evidence of Dr Nyst and Dr Sowby in relation to the accepted service related conditions (other than the psychiatric conditions), non-accepted service-related conditions and unclaimed conditions: and
(b)The Tribunal accepts the evidence of Dr Carter as objective opinion evidence in an area of knowledge in her area of expertise as a psychiatrist.
The Tribunal is reasonably satisfied, according to the principles of Jackman’s case that Mr Miles’ accepted service related psychiatric conditions are the only factors preventing Mr Miles from continuing to undertake remunerative work. Furthermore, the Tribunal concludes that these accepted disabilities, alone, prevent him from undertaking remunerative employment (a) for more than eight hours per week, and (b) for more than 20 hours per week.
71. In relation to the final issue in Flentjar, the Tribunal concludes that by reason of his accepted disabilities preventing him from continuing to undertake paid work Mr Miles is suffering a loss of salary, wages or earnings on his own account. In this regard, it is significant that his PTSD is a severe condition and that the symptoms have remained unchanged since diagnosis prior to ceasing work.
72. The Tribunal makes the observation that although it was submitted by the respondent that age is a factor preventing Mr Miles continuing to undertake paid work, the Tribunal concludes that the findings made on the factual circumstances, together with the observations made by Madgwick FCJ in Hendy’s case, rebuts such a proposition.
73. Given these findings there is no need for the Tribunal to consider the ameliorative provisions of s 24(2)(b).
74. For all of the above reasons, the decision under review is set aside and in substitution thereto the Tribunal decides that Mr Miles is entitled to disability pension payable at the Special Rate.
I certify that the 74 preceding paragraphs are a true copy of the reasons for the decision herein of Dr E K Christie, Member
Signed: .......................................................................................
M. Brazier, Legal Research OfficerDate of Hearing 15 June 2006, 15 August 2006
Date of Decision 4 October 2006
For the Applicant Ms B Carter-Nicol, of Counsel
Streeting Haney, Lawyers
For the Respondent Mr J Kelly, Departmental Advocate
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