Murphy and Repatriation Commission
[2004] AATA 1349
•17 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1349
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/64
VETERANS' APPEALS DIVISION ) Re TERENCE JOHN MURPHY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen Date17 December 2004
PlaceSydney
Decision The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision namely
1. That the Applicant is entitled to pension for the war-caused disease of alcohol abuse/dependence as and from 21 November 2000.
2. Pension is to be paid for incapacity occasioned by all war-caused injuries and diseases at the following rates, namely:
(i) as and from 21 November 2000 to 27 March 2001 inclusive at 70 per cent of the General Rate of pension;
(ii) as and from 28 March 2001 at the Special Rate pursuant
to s 24 Veterans Entitlements Act 1986 ( VEA).
................(Sgd) M D Allen.................
Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS: Respondent accepted Applicant’s claim for alcohol dependence and increased pension to 50% of General Rate – Applicant seeks increase of pension to 80% of General Rate and Special Rate – whether Applicant’s loss of remunerative work is related to service related incapacities – evidence of Applicant’s progress in rehabilitation - any return to work by Applicant would cause him to decompensate – decision under review set aside.
Veterans' Entitlements Act 1986 s 24, s 28, ss 120(4) and (6)
McGill v Repatriation Commission [2002] FCA 744
Cavell v Repatriation Commission (1988) 9 AAR 534
Repatriation Commission v Smith (1987) 15 FCR 327
REASONS FOR DECISION
17 December 2004 Senior Member M D Allen 1. By application made the 15th day of January 2004 the Applicant sought review of a decision by the Respondent made the 14th day of May 2001 that accepted a claim for alcohol dependence or alcohol abuse and increased the disability pension payable to the Applicant to 50 per cent of the General Rate of pension.
2. In these proceedings the Applicant contended that as at the effective date of acceptance of the condition of alcohol abuse/dependence namely the 14th November 2000 he was entitled to pension at 80 per cent of the General Rate and that as and from the 28th March 2001 being the day after he ceased work, he was entitled to pension at the Special Rate as provided by s 24 Veterans’ Entitlements Act 1986.
3. A major difficulty in this matter is that the reports relating to any degree of incapacity obtained for these proceedings must discuss the Applicant not as he currently appears but are required to relate back to the Applicant’s condition as at November 2000 and March 2001.
4. Two initial comments can be made regarding the fact that the Applicant has been examined after ceasing work. The first is that psychiatrists Drs Darcy, Dinnen and Sagar all agree that the Applicant’s psychiatric state is fragile and that to require him to return to work would cause him to decompensate and secondly, I do not regard paragraph 24A(1)(c) VEA to require a veteran receiving a Special Rate pension to continually test him or herself in the workforce in order to justify continuing payment of pension at the Special Rate.
5. Subsection 24(1) VEA provides that a veteran who was under 65 years of age as at the application day and who is in receipt of a General Rate pension at 70 per cent of the General Rate or more is entitled to pension at the Special Rate if:
(i) the Veteran‘s war-caused injuries or diseases incapacitated him from working more than eight hours a week;
(ii) the Veteran was prevented by incapacity caused by war-caused injury or disease alone from continuing to undertake remunerative work that he had previously undertaken;
(iii) the Veteran was suffering a loss of salary wages or earnings on his own account because of being unable to undertake that work; and
(iv) the Veteran had not ceased to engage in remunerative work for reasons other than war-caused incapacity alone.
6. Crucial to the entitlement for the Special Rate pension is the so called “alone” test. Of this requirement Burchett J in Cavell v Repatriation Commission (1988) 9 AAR 534 at 539 said that the true task of the Tribunal was:
“to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide.”
7. So far as the standard of proof is concerned in this matter, ss 120(4) VEA provides that I am to decide this matter to my reasonable satisfaction. As pointed out in Repatriation Commission v Smith (1987)15 FCR 327, this equates to the civil standard of proof ie proof on the balance of probabilities. Subsection 120(6) VEA provides neither party to this review bears any onus of proof.
8. The evidence before me is that the Applicant was conscripted for National Service and served in South Vietnam in an engineer unit. As a result of that service the Applicant has recognised as war-caused diseases miliaria rubra, bilateral sensorineural hearing loss, post traumatic stress disorder and alcohol dependence or alcohol abuse.
9. Following his return from South Vietnam the Applicant was drinking heavily and his father stated that his son “had come back a drunkard”. At the time of going to South Vietnam the Applicant was married and on his return his married state helped his assimilation although for some twelve months thereafter it was difficult for him to settle down.
10. On return to Australia from South Vietnam the Applicant found “everything was different” and he no longer socialised to the extent he did previously. For nine months he worked for a firm renovating petrol stations in country areas of New South Wales. He was then employed in the building industry in Newcastle. He left this employer to go into partnership with another workmate as builders. This partnership lasted for two to three years.
11. After dissolution of the partnership with his former workmate, the Applicant formed a partnership with his wife and engaged in what he termed “cottage work”. During this period, which was for about 15 years, the Applicant enjoyed work as he was largely left to his own devices. The partnership also engaged in some speculative building activity ie building a house and then putting it on the market for sale, but this was not greatly successful. The Applicant in reports to examining medical practitioners has stated that he never went bankrupt and was able to educate his children.
12. During the mid 1990’s, the Applicant was approached by a firm that carried out repair work for insurance companies. He was engaged by this firm on a sub contractual basis being paid an hourly rate. The work involved his being given a project by the head contractor to carry out repairs after an insurance claim had been made by a building owner.
13. At first, the Applicant coped with this work. He had to liaise between the building owner(s) and the insurance company in the person of a loss assessor. Some building owners were a pleasure to work with whereas others got upset and angry.
14. The relationship between the Applicant and the head contractor was, in the Applicant’s opinion, great for the first couple of years. He then began to get stressed and noticed that he was dropping down the “pecking order” of builders employed by the company.
15. Increasingly, the Applicant felt that he was being “short” with people and there were disputes about building owners wanting more repairs and renovations than the damage required so that the completed structure would be better than it was before being damaged.
16. Dr Dinnen, Psychiatrist, in his report of 14 May 2004 took a history of the Applicant that:
“He said ‘no matter what I did wasn’t good enough for the clients’. He was often involved in arguments and found it difficult to contain his irritability and anger. He was arguing too much with clients. He was upsetting their clients and losing them business.”
17. Because of the stress associated with the insurance work the Applicant decided to change jobs and he obtained a position as a foreman in a factory that made roof trusses. Although this job was less remunerative than his previous subcontracting work, the Applicant thought that it would enable him to “settle down” that is to say, become more calm in himself.
18. Unfortunately for the Applicant, he found that he had, as he put it, “jumped from the frying pan into the fire”. The work was different from what he had done in the whole of his life before and involved supervising young, unskilled factory workers, maintaining production schedules and it was the first time the Applicant had ever worked inside a shed. At that time and prior thereto he was drinking excessively, permanently uptight, not sleeping and was just not coping.
19. Psychiatrist Dr Darcy in his Clinical Notes states for date 15 March 2001:
”Feels he is getting to end of career as a builder but has started a new job which he hopes may last a year or so with another building firm.”
To me this note corroborates the submission on behalf of the Applicant that the move to the truss manufacturing company was an effort by the Applicant to prolong his working life which was becoming more and more stressful because of his PTSD.
20. Finally, on 27 March 2001 the Applicant determined that he had had enough and retired from the workforce. At that time he said he was aggressive, shunning company, drinking to excess in an effort to relax, waking early and spent time thinking about his life and Vietnam.
21. Since giving up work, the Applicant has improved. He is relating to his wife better, is exercising regularly and attending a Veterans’ lifestyle/gym class. He says that now he is more at ease with himself although that took 12 months to come about after ceasing work. He is drinking less alcohol. Furthermore, he has taken up golf again after abandoning it in the mid 1970’s as he was then no longer enjoying it.
22. Dr Darcy is the Applicant’s treating psychiatrist. The Applicant first attended Dr Darcy in 1999 on referral from his general practitioner. In a report dated 28 September 1999 to the Department of Veterans’ Affairs, Dr Darcy made a diagnosis of PTSD noting inter alia:
“He said his wife would say he was damaged by the war. ‘I won’t go places, bloody well can’t. I don’t like crowds. We can’t go to restaurants because of the other people there. I can’t go to shopping centres. My children would say I’m impatient, irritable, moody. They think I drink excessively, but I get on all right with them.’”
23.In a later report dated 13 March 2001 Dr Darcy stated:
“It is true that he does use alcohol excessively and his drinking, he says, escalated greatly during his time in Vietnam. Part of this seems to be because of the ready availability of alcohol during those times, as well as the increased emotional arousal he felt and the lack of a family presence to try to modify his use of alcohol.
When he came back to Australia, his family noticed and commented to him on his heavy use of alcohol.”
Later Dr Darcy in a report dated 27 August 2001 noted:
“I have seen him on five occasions now, most recently on 21 August 2001. He is not doing too badly at present. He is sleeping a lot better, resuming a few of his social activities and now is playing a little golf. His mood is better and he is getting along better with his family… he has thought several times about whether to try to resume his work… In his job, the clients were often intrusive and had little funds and frequently would try to argue for extra things to be done at the insurance company’s expense. This perhaps understandable behaviour on their part would cause extreme tension in him, resentment and then anger. He had great difficulty coping with this anger and would frequently react in a hostile way. When he thinks about it now, he remembers these interpersonal strains which he feels will inevitably occur in the future. He feels certain that he can’t cope with it and he would regress to the state he suffered prior to commencing his treatment.
I believe he is correct in his assessment and I have advised him that in my opinion he cannot resume work without it damaging his health again and reducing his quality of life. I believe he is totally incapacitated for work at present and would damage his health if he were to resume work.
I consider that this is largely contributed to by his war caused Post Traumatic Stress Disorder...”
24. Exhibit A2 in these proceedings is a further report from Dr Darcy dated 27 April 2004. In that report he states:
“I saw this 59 year old man and his wife on 22 April 2004. It was certainly easier to obtain a clear picture of Mr Murphy’s functioning at about March 2001 by talking to them both and it was even more obvious how Mr Murphy was reticent to tell the full extent of his feelings and difficulties in coping. I have also re-read my file on Mr Murphy. Some of the things that came out of this reappraisal are as follows:…
…My notes show that he was able to calm down and drink less and relate to his family better after he left work. It was a big strain removed from him. My undated answers to a questionnaire sent to me by Department of Veterans Affairs after I had only seen him once (on 23 September 1999) stated, ‘He carries on (at work) despite his emotional discomfort and feelings of impotence.’
…My recollection is that I pointed out to him that work was damaging to him and would delay his recovery from his post traumatic stress disorder, of which his heavy reliance on alcohol was a part…
I will attach my present GARP indicating what he was like at March 2001 based on all of the information available to me at present.”
The GARP assessment by Dr Darcy for the Applicant as at March 2001 gives a final rating of 43. Dr Darcy notes that this rating is on all the information now available to him.
25. Dr Dinnen, Psychiatrist, saw the Applicant on 14 May 2004. In addition to the history relating to the Applicant’s work for the insurance companies Dr Dinnen recorded:
“I directed the discussion back to the circumstances under which he had left the job at Easter 2001. He said he actually came home before Easter. The firm he worked for was building wall frames and trusses in a factory. He couldn’t cope working with others. He had never done factory work before. He said he rang his wife and told her he had finished. ‘I wasn’t coping. I was drinking excessively’. He told the boss as he left that he would not be coming back. ‘I could see all I was doing was tearing myself apart’. He said his symptoms at the time were ‘getting up as high as they had ever been’.”
26. In preparing his report Dr Dinnen had the advantage of questioning the Applicant’s wife and concludes by stating:
“It is obvious from the documentation and from the patient’s account that his symptoms have improved since he ceased work. This is predictable, common, and often causes some difficulty in assessing impairment. I have seen many patients who are coping on the surface reasonably well, but who, I have had no doubt, would rapidly decompensate and become very ill if they were to return to the stressful environment of the work place. My opinion in this regard is very much in accord with that of Dr Darcy and Dr Sagar. I am certain that the patient’s condition would deteriorate markedly if he were to attempt or were able to achieve a return to the work force…”
27. Cross examined Dr Dinnen stated that although it was evident that the Applicant had a good relationship with his wife and family it was also evident that there was still some discord. Previously, in examination in chief, Dr Dinnen had referred to the difficulty of a treating specialist attempting to provide an assessment of impairment in that there is a tendency to underestimate disability.
28. Dr Sagar is a Consultant Psychiatrist with Health Services Australia. Dr Sagar saw the Applicant on 28 August 2002 at the request of the Respondent.
29. I have placed great weight on the report of Dr Sagar as he did not see the Applicant for the purposes of these proceedings but with regard to a qualification for a Disability Service Pension. On 23 January 2003 a delegate of the Respondent was concerned to point out that Health Services Australia were “specialists in medical assessment”.
30. Dr Sagar diagnosed the Applicant as suffering from alcohol dependence and PTSD. He then said:
“He has been unable to cope with his job due to arguments and irritability which might have been the onset of a depressive illness at the time (and associated with his PTSD). Since he has left his job he has begun to cope better. I don’t think it is possible to have had this improvement without him having left his job. I suspect that underneath all his rationalisations and improvements there is possibly a fragility which could be easily exposed.”
I note that this was also the opinion of Dr Dinnen. Dr Sagar continued:
“Mr Murphy, although doing quite well currently, is probably fragile underneath. His improvement is what all psychiatrists hope for in their PTSD patients but I would still tend to think that he cannot work full time again (because of the fragility). His chances of maintaining a regular part-time job are also slim. The most he could contribute would be 8 hours or less but any difficulties there could result in a return to heavier alcohol intake.”
31. Dr Champion, Psychiatrist, examined the Applicant at the request of the Respondent on 13 May 2004. He did not have the advantage of interviewing the Applicant’s wife. Were this matter to be determined on the question of liability then there would be much to say for Dr Champion’s opinions that the Applicant does not suffer from PTSD. Although Dr Champion opines that the Applicant’s alcohol abuse/dependence is not related to service, this ignores the clear evidence that the Applicant had alcohol readily available to him in South Vietnam and that his manifold increase in consumption was, on his return to Australia, noted and commented upon by his family. In these circumstances it would seem clear that whatever the genetic basis for addiction might be, service in South Vietnam made a material contribution to the cause of the disease. Furthermore, Dr Champion seems not to have had regard to what DSMIV regards as a severe stressor eg. observing casualties. The Applicant has previously stated that he did observe casualties at 1 Australian Field Hospital Vung Tau.
32. I am not at all convinced that Dr Champion’s belief in the non existence of PTSD and that alcoholism is purely genetically based has not influenced his assessment of the degree of the Applicant’s incapacity. As stated, he did not have the advantage of interviewing the Applicant’s wife and his report refers to current status whereas the crucial periods for assessment are at November 2000 and March 2001.
33. Dr Chase, a specialist in occupational medicine has no qualifications in psychiatry so I place little weight on his assessment of psychiatric incapacity. Again, Dr Chase’s assessments suffer from being contemporaneous and he acknowledged with regard to one assessment namely re Table 4.8 he was wrong where he said no regular treatment was sought. Given the psychiatric opinions of Drs Darcy, Dinnen and Sagar I reject Dr Chase’s conclusion that the Applicant could return to work.
34. What the Dr Chase’s report does confirm is that the Applicant’s other ailments apart from psychiatric conditions eg his right eye condition did not and would not prevent him from working.
35. Dr Mark Burns is also an occupational physician and like Dr Chase has no qualifications in psychiatry. He has however attempted a Lifestyle Assessment of the Applicant as at 2001 to which he gives a rating of 4.
36. Dr Darcy is the Applicant’s treating psychiatrist and in his report of 27 April 2004 gives a retrospective assessment based in part on his Clinical Notes. Those Clinical Notes are in evidence and support Dr Darcy’s assessment. I am therefore content to find as a fact that the Applicant has an impairment assessment of 43 in relation to his psychiatric illnesses.
37. Dr Chase gave the Applicant a current Lifestyle rating of 2 compared to Dr Burns’ rating of 3. Having regard to the evidence, I would assess the Applicant’s lifestyle rating as at November 2000 as:
Table
22.1 Moderately affected personal and social relationships 3
22.2 Minimal restrictions of mobility Nil
22.3Unable to take part in formally favoured recreational pursuits, leisure and community activities (eg gave up golf, didn’t go to restaurants) 4
22.4 Able to sustain usual domestic activities Nil
22.5 Able to engage in usual employment as at November 2000 Nil
7 divided by 4 = 1.75 = 2
Adding Tables 22.1, 22.2, and 22.3 together with the sum of Nil for both of 22.4 and 22.5 a total figure is seven which divided by four equals 1.75 rounded out to the nearest whole figure being 2.
38. The Applicant had an impairment rating of 4 points for his hearing loss (see Veterans' Review Board decision at page 6) thus psychiatric impairment plus hearing impairment is according to Table 18.1 a figure of 45. On Table 23.1 45 impairment with a lifestyle of 2 gives a pension of 70 per cent of the General Rate.
39. As at March 2001, the Applicant found he could no longer remain in employment. Apart from the fact that the figures for Table 22.5 would increase to 5 the question of pension at the Special Rate must be considered.
40. The Respondent argued that it was not incapacity from war-caused injury or disease alone that caused the Applicant to cease work but that he had found that he was no longer getting as much work as he had from insurance companies and was beginning to dislike dealing with insurance claimants in any event and he had then sought and obtained employment in a job, namely that of a factory foreman, in which he had no prior training or experience and simply could not cope.
41. Referring to McGill v Repatriation Commission [2002] FCA 744 at paragraph 34, the Respondent submitted that there was other remunerative work that the Applicant was at all times capable of undertaking, giving his trade skills, qualifications and experience (cf s 28 VEA).
42. However, as the Applicant’s counsel pointed out, the real question is why did the Applicant cease work when he did. I agree that in March 2001 the Applicant made no attempt to find alternative employment and Dr Champion refers to a loss of motivation to work. In my opinion, when one has regard to the reports of Drs Darcy, Dinnen and Sagar, it is clear that because of his psychiatric state the Applicant was no longer capable of working. As pointed out by those doctors, were the Applicant to return to employment he would again decompensate.
43. During submissions, there was some discussion regarding the work the Applicant could do. I have no doubt that in Newcastle as in Sydney, there is a dearth of tradesmen willing to undertake small domestic repairs and renovations and that the Applicant given his training and experience, could commence a viable business in this area. But this would of necessity involve him dealing with customers and the inevitable stress.
44. I note that the Applicant did contemplate a return to the workforce but was dissuaded from this course by his treating psychiatrist.
45. I find that as at March 2001, the Applicant was incapable of undertaking remunerative work because of war-caused incapacity alone. That status continues because whereas he has made good progress in rehabilitation as a result of ceasing work, should he again attempt work he would revert to his former state.
46. As at 28 March 2001, the Applicant was entitled to pension at the Special Rate and continues to be so entitled.
47. The decision under review will be set aside and the Tribunal substitutes in lieu thereof its decision namely:
That the Applicant is entitled to pension for the war-caused disease of alcohol abuse/dependence as and from 21 November 2000.
And that pension is to be paid for incapacity occasioned by all war-caused injuries and diseases at the following rates namely:
(i)as and from 21 November 2000 to 27 March 2001 inclusive at 70 per cent of the General Rate ;
(ii)as and from 28 March 2001 at the Special Rate pursuant to s 24 VEA.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Signed: (E.Pope)
.....................................................................................Associate
Date of Hearing 7 and 8 December 2004
Date of Decision 17 December 2004
Counsel for the Applicant Mr M Vincent
Solicitor for the Applicant Legal Aid Commission
Counsel for the Respondent Ms J Jagot
Solicitor for the Respondent Australian Government Solicitor
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