Nguyen and Repatriation Commission
[2004] AATA 632
•21 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 632
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/870
VETERANS’ APPEALS DIVISION ) Re NGOC THANH NGUYEN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms S M Bullock, Senior Member
Dr P D Lynch, MemberDate21 June 2004
PlaceSydney
Decision Having so decided, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is affirmed. ..............................................
Ms S M Bullock
Presiding Member
VETERANS’ AFFAIRS– Psychological injury – Invalidity Service Pension – Permanent Impairment – Whether Condition Stabilised or Treated
Veterans’ Entitlements Act 1986 ss 37, 37AA
McDonald v Director-General of Social Security (1984) 1 FCR 354
Dragojlovic v Director-General of Social Security (1984) 1 FCR 301
REASONS FOR DECISION
21 June 2004 Ms S M Bullock, Senior Member
Dr P D Lynch, Member1. Mr Ngoc Thanh Nguyen, the Applicant, is seeking a review by the Administrative Appeals Tribunal (“the Tribunal”) of a decision made by the Veterans’ Review Board (“the Board”) on 31 July 2002, that Mr Nguyen was not permanently incapacitated for work and therefore is not eligible for a grant of Invalidity Service Pension (“ISP”).
2. A Hearing was conducted in Sydney on 28 April 2004. Mr Nguyen provided evidence to the Tribunal with the assistance of an interpreter in the Vietnamese language. Dr A Dinnen and Dr Y Skinner, Consultant Psychiatrists, also provided evidence to the Tribunal. Mr Nguyen was represented by Mr C Colborne, of Counsel. The Respondent, the Repatriation Commission was represented by Miss R M Henderson of Counsel. Documents were lodged and taken into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“T Documents”, T1-44). A number of exhibits were taken into evidence and are contained in Schedule 1, attached to this decision.
issues
3. At issue in this matter is whether the Applicant is eligible for Invalidity Service Pension in accordance with section 37 of the Veterans’ Entitlements Act 1986. This requires the Tribunal to determine whether Mr Nguyen is a veteran who has rendered qualifying service and is permanently incapacitated for work in accordance with a determination under section 37AA of the Veterans’ Entitlements Act 1986. It is not in contention that Mr Nguyen is a veteran who has rendered qualifying service. The only issue is whether or not Mr Nguyen is permanently incapacitated for work.
legislative context
4. A decision in this matter requires the application of the relevant provisions of the Veterans’ Entitlements Act 1986 (“the Act”).
5. In determining whether the Applicant is permanently incapacitated for work for the purposes of section 37 of the Act, the Tribunal must have regard to the Veterans’ Entitlements (Invalidity Service Pension – Permanent Incapacity for Work) Determination 1999 (“the Determination”) made in accordance with section 37AA of the Act (T44, pg165). The Incapacity Determination sets out the circumstances in which a person will be permanently incapacitated for work for the purposes of subsection 37(1)(c) of the Act.
6.Subsection 37AA(1) of the Act provides that:
“
The Commission must, by written determination, specify the circumstances in which persons are permanently incapacitated for work for the purpose of paragraph 37(1)(c).”
7. Subsection 37AA(3) provides that a determination made under subsection 37AA(1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
8. Subsection 5(1) of the Determination requires the Tribunal to have regard to the following matters in determining whether the Applicant is permanently incapacitated for work:
“
(a)whether the applicant is blind in both eyes; or
(b)whether the applicant is a veteran to whom s27 of the Act applies; or
(c)whether the applicant satisfied subsection 5(2) of the determination.”
9. Subsection 5(2) of the Determination provides that the Applicant will be permanently incapacitated for work if:
“
(a)the impairment(s) suffered by the applicant would result in an impairment rating of 40 or more under Table 18.1 of the Guide to Assessment of Rates of Veterans’ Pensions; and
(b)solely because of the applicant’s impairment(s), he is permanently unable to do work for periods adding up to more than 8 hours per week; and
(c)the Tribunal is satisfied that the applicant’s impairment(s) is/are permanent.”
background
10. Mr Nguyen was born on 10 October 1948 in An Giang, South Vietnam and subsequently joined the Armed Forces of South Vietnam in or around January 1967 (T3, pg6).
11. In or around April 1975, the Applicant ceased to be a member of the South Vietnamese Armed Forces consequent upon the cessation of hostilities in the Vietnam War (T3, pg7)
12. From his statement (Exhibit A1), Mr Nguyen noted that after the fall of South Vietnam, he was placed in a “Re-Education Camp” where he was initially re-educated for six months and then was required to undertake hard labour. He stated that often he did not have enough food and reported being kicked and beaten with sticks and rifle butts. Following discharge from the Re-Education Camp, Mr Nguyen was involved as a labourer and pulling a rickshaw. In 1974, he was one of approximately 50 people on a boat which escaped from Vietnam, going to Malaysia. Mrs Nguyen remained in Vietnam. Mr Nguyen was in a Refugee Camp in Malaysia for approximately 12 months.
13. The Applicant arrived in Australia in September 1980 (T3, pg30), and subsequently became an Australian Citizen on 22 December 1983 (T7, pg55). When first in Australia, Mr Nguyen undertook a ten week English course at the East Hills Hostel. Mr Nguyen worked variously as a labourer or machine operator. His first job was at “Girlock Brakes” at Belmore as a machine operator and he was employed in this position for eight years.
14. In about 1989, Mrs Nguyen joined Mr Nguyen in Australia. Mr and Mrs Nguyen were married in Vietnam in 1970. Soon after her arrival in Australia, Mrs Nguyen became ill, underwent surgery and is now unable to have children. She has never worked in Australia.
15. On 21 June 1997, the Applicant applied under section 35B of the Act for a determination that he had rendered “qualifying service” within the meaning of the Act (T3, pg23).
16. On 1 October 1997, a delegate of the Respondent determined under section 35H of the Act that the Applicant (T4, pg, 36);
“
was a “veteran” within the meaning of section 5C of the Act; and
had rendered “qualifying service” within the meaning of section 7A of the Act.”
17. On 9 April 2002, the Applicant applied for a grant of an Invalidity Service Pension (“ISP”) in accordance with Division 4 of Part III of the Act (T7).
18. On 31 July 2002, a delegate of the Respondent decided that the Applicant was not permanently incapacitated for work within the meaning of subsection 37(1)(c) of the Act (T18) and was informed by letter dated 19 August 2002, that he was ineligible for a grant of ISP (T20). This decision was affirmed by a delegate of the Respondent on 15 May 2003, in accordance with section 57B of the Act (T42).
19. On 29 May 2003, the Applicant applied to the Tribunal for a review of the Primary Decision in accordance with subsection 175(2) of the Act (T1, pg1).
evidence of mr nguyen
20. Mr Nguyen provided the Tribunal with a Statement (Exhibit A1) and confirmed that its contents were truthful. Mr Nguyen also confirmed for the Tribunal that he was able to understand the Interpreter sufficiently. During the provision of his evidence, Mr Nguyen noted that his memory was “very bad”. An example he gave the Tribunal was that he will often go shopping and forget to take his wallet along with him, or will be searching for his house keys for some time, only to find that they are in his pocket.
21. Mr Nguyen told the Tribunal that his last place of employment was at the company, “Sebel”. He worked there as a Machine Operator for a period of 10 or 12 years. Mr Nguyen stated that he did not particularly enjoy the work at Sebel, but he needed the money. He described his role as consisting of operating a machine that trimmed moulded plastic chairs. Mr Nguyen worked the afternoon shift from 3pm until 11:30pm, five days per week. Mr Nguyen recalled that initially he would offer to work overtime, which consisted of working on Saturdays. He stopped doing this after just a few weeks. In relation to the comments made by Dr Y Skinner, Consultant Psychiatrist, in her report dated 17 March 2004 (Exhibit R1), that Mr Nguyen had worked overtime on Saturdays with Sebel for 20 years, Mr Nguyen stated that this was incorrect.
22. Mr Nguyen stated that as a Machine Operator, he had to turn a component of the trimming machine and that this work was very tiring, particularly whenever a new manager was employed, as Mr Nguyen would be expected to meet higher output levels. When asked to explain why he stopped working at Sebel, Mr Nguyen stated that he was retrenched. The Tribunal noted Mr Nguyen’s Statement that in about 2001 (Exhibit A1), he was experiencing pain in the right side of his neck, shoulder and right arm and was put on light duties. From a Full Summary of Mr Nguyen’s past medical history provided by Dr H Pope, General Practitioner (T7, pg88), and Bankstown Hospital Patient Discharge Form (T8, pg89), it was noted that Mr Nguyen was admitted to hospital on 11 January 2002 and discharged on 12 January 2002 being diagnosed with pleural effusion. Mr Nguyen recalled being in Bankstown Hospital for about two weeks. On 2 April 2002, Dr Pope noted Mr Nguyen had a pulmonary embolism, which Mr Nguyen referred to as “blood clot in my lungs” (T7, pg88). Mr Nguyen stated that for about six months after being discharged from Bankstown Hospital, he was still taking medication and receiving injections by a Nurse who would visit him at home. Mr Nguyen stated that he would have probably stayed with Sebel, but he would have been very weak. He added that he has never become stronger since his hospitalisation, as he is always tired. He stated that Sebel dismissed him while he was still ill, which was about two weeks after he was released from Bankstown Hospital.
23. Since ceasing employment with Sebel, Mr Nguyen told the Tribunal that he has received treatment for his right arm, by way of medication, physiotherapy and a “balm” that he rubs into the sore areas. Mr Nguyen also received an injection into the area near his right elbow about every three months from a General Practitioner. The injection significantly reduced pain for about two weeks, after which, the pain would begin to return. Overall, Mr Nguyen reported, the condition of his right arm since leaving Sebel was unchanged.
24. Since becoming unemployed, Mr Nguyen described feeling sad and worried about the pain he experiences in his right arm and his limited likelihood of gaining employment. Mr Nguyen stated that he did want to work because he did not want to be without any money when he “becomes old”. Mr Nguyen believed that the headaches that he now experiences, began shortly before ceasing employment with Sebel. He stated that he will experience a headache two or three times during a week, and that they usually developed after he has been “thinking a lot” and “worrying more”. Mr Nguyen described the effect of the headache upon him as limiting his ability to think clearly. To address the discomfort he experiences with the headaches, Mr Nguyen stated that he will dissolve two “Aspro Clear” tablets in a glass of water and drink it.
25. Mr Nguyen then proceeded to show the Tribunal the various types of medication he currently takes and described their purpose. Mr Nguyen stated that he takes “Tramal” for the pain in his shoulder and neck, which he experiences often. He takes Tramal daily, normally before going to sleep. If his right arm is particularly sore, Mr Nguyen will take another Tramal during the day, which will occur about once every week or two. “Lipitor”, Mr Nguyen stated, is for his high blood pressure [the Tribunal noted that this is an anti cholesterol medication]. “Zocor” tablets are for his cholesterol, he stated, and he takes one tablet every day. The “Prohibitor” medication, Mr Nguyen stated, is taken by him in the evening and he will take just one of these tablets. “Avanza”, Mr Nguyen believes was apparently prescribed by Dr S K Law, his treating Psychiatrist, about three months ago, when Mr Nguyen reported to Dr Law that he was having trouble sleeping. It was observed that the instructions on the packet of Avanza stated that Mr Nguyen is to take one tablet daily. Mr Nguyen was asked if he recalled being told this by Dr Law, to which he stated that he “did not remember him saying this”. Mr Nguyen stated that he took one Avanza tablet whenever he had trouble sleeping, which occurred about once every week or two. Mr Nguyen told the Tribunal that he sleeps for about two or three hours per night. The Tribunal was told by Mr Nguyen that his current General Practitioner, Dr Pham, spoke Vietnamese and a long time ago had prescribed a sleeping tablet that was not very strong. Generally, Mr Nguyen stated, he often forgets to take his medications, but his wife often reminds him, so he does manage to take it as prescribed. Dr Pham has been Mr Nguyen’s doctor for a few years now and Mr Nguyen last visited him one or two weeks prior to the Hearing.
26. Mr Nguyen was asked to comment on the suicidal thoughts he reported having in his Statement (Exhibit A1), noting that he did indeed experience suicidal thoughts, about twice a year. He told the Tribunal that he first experienced these thoughts when he was seriously ill and being given injections by a Nurse at his home. It was not clear to the Tribunal whether the injection related to pain in Mr Nguyen’s right elbow or was in relation to Mr Nguyen’s pulmonary embolism. Mr Nguyen confirmed that he no longer received those injections, but is still ill, although not as seriously. The last time Mr Nguyen can recall thinking about suicide was when “people came to my place and I was ill and they asked me to work”. He was unable to recall when this was in any precise manner, other than it was after he had left Sebel. Mr Nguyen was unsure as to what organisation these people may have been from, but remembers there being an interpreter present. Mr Nguyen stated that he did not think that the people were from “Centrelink” although he receives the “Newstart pension” and has been receiving this benefit since he ceased working for Sebel. Mr Nguyen did however recall a period of about seven months when this benefit was stopped.
27. Mr Nguyen told the Tribunal that he “does not have any interests”. He stated that he did not enjoy gardening and does not recall telling anyone that he did. In relation to mowing the lawn, Mr Nguyen stated that this was a task that was not enjoyable for him, but had to be done. He added that he did not really have a garden, “just grass”. When prompted, Mr Nguyen agreed that he sometimes enjoyed listening to Vietnamese music. With regard to reading, Mr Nguyen mentioned that he did not particularly enjoy reading and never has. On the day of the Hearing, he had a Vietnamese paper with him and told the Tribunal that it was an old newspaper that he brought with him as the train trip was long. Mr Nguyen stated that after reading for a while he would experience a headache, so he would “quickly glance” at the Vietnamese Newspaper during the course of the week, and noted that the paper was printed weekly.
28. Mr Nguyen told the Tribunal that he is associated with the members of the South Vietnamese Ex-Serviceman’s Association. He said he became involved with the Association so that he could meet other South Vietnamese Ex-Army personnel. Mr Nguyen stated that in the past, because of his employment commitments, he only had the time to catch up with the few men he is friends with from the Association, “now and then”. Mr Nguyen described that there are not usually activities or outings with Association members because everyone is usually too busy. Any meetings he attended, Mr Nguyen described, were usually just “general discussions”. One other activity that Mr Nguyen is involved in with this organisation is assisting packaging its “Ex-Army Personnel Bulletin”, into bags. The Bulletin is published every four months. The organisation does not have an official office, so Mr Nguyen travels to the Vietnam Veterans’ Association’s office in Granville. Mr Nguyen stated that sometimes he will visit the Vietnam Veterans’s office, as he did just last week, to see his advocate, Mr McCombe, about a letter he had received in relation to today’s Hearing. Mr Nguyen stated that he does not visit any other friends.
29. With respect to his consultations with his psychiatrist Dr Law, Mr Nguyen stated that these consultations usually take about 10-15 minutes. Mr Nguyen said that Dr Law asks “how is my health” and Mr Nguyen will describe his sleeplessness or his nightmares. He does not talk to Dr Law about his arm, Mr Nguyen stated. Mr Nguyen could not recall Dr Law giving him advice about his sleeplessness or relaxation techniques, and noted that Dr Law could not speak fluently in Vietnamese although he knows “a little”. Mr Nguyen stated that he did not tell Dr Law about his suicidal thoughts. When asked why he had included this information in his Statement (Exhibit A1), Mr Nguyen stated “I feel depressed about life, my family, my wife and my child’s death, now I’m worried I can’t speak English”. He confirmed that nobody had asked him specifically whether he had experienced such thoughts. So far this year, Mr Nguyen recalled visiting Dr Law on two occasions and thinks the last visit was about three or four months ago. Mr Nguyen does not recall Dr Law ever encouraging him to take his medication properly, nor does he remember Dr Law talking him through any relaxation exercises.
30. Mr Nguyen advised the Tribunal that he experienced the nightmares described about once a week, and sometimes once every fortnight. Mr Nguyen stated that his nightmares are about “War in Vietnam; dead people; blood; people carrying dead bodies to me; I was scared”.
31. It was Mr Nguyen’s evidence that he had not seen Dr Pope on many occasions, as he served the purpose of providing Mr Nguyen with a referral to a specialist for his arm. The referral was for Dr E Tam, Consultant Physician, who practised in Cabramatta. Mr Nguyen stated that he did not recall specifically asking for a referral, but that Dr Pope gave him one anyway. Mr Nguyen said that Dr Pope did not speak Vietnamese and that Dr Pham did.
32. Mr Nguyen stated that his English proficiency has not become worse since leaving Sebel. Mr Nguyen stated that he is able to “listen a little bit to English” and knows “normal sentences”. Over the last six months, Mr Nguyen stated that he regularly looks for employment in the Vietnamese Newspaper. The type of work he has looked for includes kitchen hand work and furniture making. Mr Nguyen stated that he has been unsuccessful because employers want more experience and sometimes he just “could not get the job”.
33. Mr Nguyen told the Tribunal that upon waking, he feels the pain in his neck and arms and gets up to boil a “heat pad” which he applies to the sore areas. He then will go to the bathroom and then walk around the house wondering about what to do. If he is very tired, Mr Nguyen stated that he will sometimes have a 30 minute sleep during the day. He will sit down and turn on the television and then turn it off after a short while as he cannot understand it. Mr Nguyen remembers that there used to be a Vietnamese television program on SBS, but this was cancelled some months ago. Mr Nguyen advised that he does not read books, but will spend about 15 minutes reading the Vietnamese Newspaper. If he tries to read any longer, Mr Nguyen stated that he will usually develop a headache. He will listen to the radio “now and then” as there is a Vietnamese program that is broadcast two or three times a week for about an hour. Mr Nguyen advised that he will go shopping about two or three times a week for food. He will sometimes drive, but also walks sometimes as he lives close to the shopping centre. Mr Nguyen will most often be accompanied by his wife. Mr Nguyen stated that he and his wife will prepare meals together, although sometimes they “just eat dry food”.
34. When asked to describe the relationship he has with his wife, Mr Nguyen stated that his wife is not in the best of health and has not been since having an operation. Mr Nguyen stated that he will help Mrs Nguyen with the housework whenever he can. Mr Nguyen told the Tribunal that he largely takes the responsibility of mowing the lawn, but that his wife will sometimes help. He stated that they are “like best friends” and that “there is nobody else”.
35. Overall, Mr Nguyen stated that he has felt “depressed and upset” since finishing his work with Sebel. In relation to his current situation, Mr Nguyen told the Tribunal that he arrived in Australia 24 years ago. He had been able to work continuously, he noted, for approximately 22 years. Mr Nguyen stated that he never did want to receive any benefits in the past. Now, because of his arm and his health in general, he confirmed that he is unable to work. Mr Nguyen then stated “that’s why I’m sad about it”. Mr Nguyen finished by saying he would like to have a light duty job that he could do.
evidence of dr a dinnen, consultant psychiatrist
36. Dr Dinnen, provided oral evidence. The Tribunal also had the benefit of a report from Dr Dinnen dated 3 September 2003 (Exhibit A2). Dr Dinnen reported that he saw Mr Nguyen on 28 August 2003 for approximately an hour and a quarter, and was assisted by an interpreter after the first half an hour of the interview. Dr Dinnen is of the opinion that Mr Nguyen suffers from major depression. Dr Dinnen noted that there are some features of post traumatic stress disorder present. Dr Dinnen added that given Mr Nguyen’s adverse life circumstances, it would be “very unlikely that he would escape major psychiatric disturbance as a consequence of these life experiences” (Exhibit A2, pg5). Dr Dinnen is of the opinion that Mr Nguyen’s psychiatric condition would limit his ability to work in its own right. Dr Dinnen concluded his report by stating that a large part of Mr Nguyen’s reaction may well be due to the health problems in recent years.
37. Dr Dinnen opined that the obvious clinical finding regarding Mr Nguyen, was that of major depression and not of post traumatic stress disorder. Dr Dinnen stated that part of his reasoning is that the symptoms of post traumatic stress disorder are not easy to illicit. Dr Dinnen is of the opinion that Mr Nguyen is “past a post traumatic stress disorder illness” and the illness to be emphasised is the depression. While Mr Nguyen’s life experience may suggest post traumatic stress disorder and there may still be some element of that condition present, it is not as obvious because of the overlying depressive illness. Dr Dinnen opined that it was never apparent that Mr Nguyen’s cognitive impairment had a physiological basis to it, in so far as he has had difficulty with his memory and with concentrating. It was Dr Dinnen’s further comment that such symptoms are usually associated with depression.
38. Dr Dinnen stated that it is his role as a psychiatrist, to look for a range of symptoms which can be elicited. Dr Dinnen was asked whether he found it difficult to illicit such symptoms from Mr Nguyen, to which he replied “the whole interview was difficult”. Dr Dinnen told the Tribunal that Mr Nguyen presented with a depressed demeanour and he seemed exhausted and unhappy.
39. Dr Dinnen was asked to explain to the Tribunal why he spent so much time focusing on Mr Nguyen’s war service and other events that occurred before 1980, rather than gleaning more of a history related directly to his recent unemployment. Dr Dinnen replied that he did not believe that he had a “myopic or limited scope of vision when I diagnosed his condition.” Mr Nguyen demonstrated all the features of a depressive illness, Dr Dinnen opined. He made the remark that Mr Nguyen avoided many issues and gave only limited answers, that he showed a lack of interest and impairment in memory, or a lack of concentration.
40. A hypothesis was put to Dr Dinnen that it was possible that Mr Nguyen’s concentration problems were the source of his poor memory. Dr Dinnen replied that this was a “good psychological hypothesis”, but he was not in a position to say with any amount of certainty whether this could be the case. Dr Dinnen considered that Mr Nguyen’s illness to be chronic and that it was quite evident that Mr Nguyen’s condition has been causing significant impairment for five or six years. It was apparent to Dr Dinnen that Mr Nguyen had not presented with any variation or disturbance to the condition over the last few years.
41. In relation to the consultation with Mr Nguyen, Dr Dinnen commented that his notes were not “as full as they normally would be”. Dr Dinnen stated that Mr Nguyen’s English was adequate for evaluation and that a lot of the interview was repetitive, requiring Dr Dinnen to challenge Mr Nguyen to be more fulsome in answering a number of questions. An example given by Dr Dinnen was Mr Nguyen’s response to the question “tell me about your War service”, to which Mr Nguyen replied “blood; death; corpses; that’s all you saw” (Exhibit A2, pg3). Dr Dinnen opined that in his experience, he has found it common for patients to be unwilling to revisit a painful experience that they have had. Dr Dinnen then added that it was also possible to see Mr Nguyen’s problems by taking note of the type of information he left out, Dr Dinnen added that Mr Nguyen was “well defended”. Dr Dinnen then referred the Tribunal to page five of his report (Exhibit A2), and stated that the “bare bones” of Mr Nguyen’s story suggested major psychological trauma. One would not experience what Mr Nguyen had experienced without there being some psychological disturbances, Dr Dinnen opined. Dr Dinnen stated that people suffering post traumatic stress disorder and depression, “they just don’t want to talk about things”.
42. Addressing Mr Nguyen’s capacity for work, Dr Dinnen commented that he was presented with ample evidence that Mr Nguyen suffers a variety of problems. Dr Dinnen added that Mr Nguyen’s awareness of his ailments adds to his depression. Dr Dinnen considered Mr Nguyen to be unemployable, when taking into account his lack of interest; poor memory and his general feelings of hopelessness and helplessness. Dr Dinnen stated that it would be a difficult task to persuade Mr Nguyen to work. Dr Dinnen also noted that with Mr Nguyen’s significant physical health problems, his mood was likely to fluctuate for that reason alone.
43. Dr Dinnen was then asked to comment on Mr Nguyen’s dosage of Avanza, as prescribed by Dr Law. Dr Dinnen stated that Avanza was one of the “Selective Serotonin Reuptake Inhibitor”, (“SSRI”) drugs or “combination drugs”. He stated that it was not a drug he prescribed often, but a likely dosage would be that of one tablet daily. Mr Nguyen’s consumption of one tablet per week, would be unlikely to cause a response, if treating major depression, Dr Dinnen commented. Dr Dinnen added that he was of the opinion that Mr Nguyen knew it was prescribed in relation to his depression as he told Dr Dinnen that “sometimes I sleeping, see people dying”, and that this was what Mr Nguyen understood as to why he was prescribed Avanza. When asked to discuss what approach to therapy Dr Dinnen would recommend, he opined that Mr Nguyen, like 30 per cent of all depressive illness cases, are resistant to taking any type of therapy, and noted that Mr Nguyen had never received any type of psychoanalytical therapy.
44. Dr Dinnen found it difficult to say whether Dr Law’s treatment of Mr Nguyen was sufficient, just as he could not be certain that Mr Nguyen would turn up to a further scheduled consultation with himself. Dr Dinnen added that he had doubts about the effectiveness that any medication he could prescribe Mr Nguyen would have. On this point, Dr Dinnen concluded that the circumstances that surround Mr Nguyen determine the effect of the illness suffered. Dr Dinnen stated that one had to look at a person’s surrounding environment. Mr Nguyen had a chronic illness and Dr Dinnen stated that he could not say whether he would be able to provide better treatment. Hypothetically speaking however, Dr Dinnen added that he would not say that Mr Nguyen had not received the type of treatment that he, himself would have recommended.
45. Dr Dinnen told the Tribunal that he would recommend Avanza, one tablet daily for a period of three to six months. He noted that it could be hard to encourage Mr Nguyen to cooperate. Dr Dinnen added that he would not expect the medication to make any real difference to Mr Nguyen’s overall demeanour and reported some causes for this included Mr Nguyen’s limited education; deprived childhood; joining the Army at such a young age and employment in unskilled occupations. All these factors would increase the difficulty of obtaining a history from Mr Nguyen, notwithstanding the inherent difficulties given that he is suffering from depression.
46. When commenting on the reported diagnoses of Mr Nguyen’s condition made by Dr G J George and Dr Y Skinner, Consultant Psychiatrists, Dr Dinnen stated that their conclusions were not “out in left field”. Dr Dinnen noted evidence of a mood disorder in Dr Skinner’s report when she noted that Mr Nguyen had trouble sleeping; that he was forgetful; unemployable and that he wished he could be healthy. Dr Dinnen added that there was a need to find some explanation for such a description. Dr Dinnen commented that today’s diagnostic focus is more about depth than origin, and that clinicians work within such a framework but that it was unsatisfactory to an extent.
47. When asked to discuss the episodic cycle of depression, Dr Dinnen stated that it could occur cyclically over months or even years. He could not comment on the statistical frequency in relation to recovery, but Dr Dinnen opined that those with favourable life circumstances may improve after three months, and that ongoing treatment may still be required by these people. For a major depressive episode, a six to twelve month recovery period may apply to many patients.
48. Dr Dinnen was referred to his assessment of 41 points from Chapter 4 of the “Guide to the Assessment of Rates of Veterans’ Pensions” (“the Guide”) and that attributed a ranking of five to Mr Nguyen in relation to Table 4.4, Occupation. Dr Dinnen stated that when giving that rating, he tried to divorce himself from Mr Nguyen’s physical problems and considering only his psychiatric condition. Furthermore, given Mr Nguyen’s evidence to the Tribunal of his wish and attempts to find work, a rating of 5 for Table 4.4 as still appropriate.
49. Dr Dinnen commented that Mr Nguyen’s memory is a problem, as well as Mr Nguyen experiencing intrusive thoughts, such as his recurring nightmares. Dr Dinnen emphasised that although Mr Nguyen reported having nightmares just once a week or fortnightly, Mr Nguyen’s Vietnam experiences occurred more than 35 years ago. This frequency, such a long time after the traumatic events, was indicative of an ongoing illness. Dr Dinnen qualified this comment by stating that many people seldom suffer from nightmares three to six months after an incident and thus Mr Nguyen’s frequency of nightmares was significant.
50. When told about Mr Nguyen’s social involvement with the Veterans’ Association, Dr Dinnen commented that it was not axiomatic that a person with a depressive illness would not be able to engage in social activities.
51. Dr Dinnen was asked by the Tribunal to account for the various criteria as set out in the “Diagnostic and Statistical Manual of Mental Disorders”, Fourth Edition, as published by the American Psychiatric Association (“DSM-IV”) in order to arrive at a diagnosis of major depression, requiring the existence of five (or more) symptoms out of a list of nine. Dr Dinnen stated that Mr Nguyen exhibits symptoms of the first criterion, being that of “depressed mood most of the day, nearly every day”. With regard to Criterion 2, being a “markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day”, Dr Dinnen stated that there was evidence of this. Dr Dinnen opined that it was possible to infer that Mr Nguyen had experienced “significant weight loss or weight gain” as described in Criterion 3. Criterion 4 was believed to be evident, Dr Dinnen stated, that being “insomnia or hypersomnia nearly every day”. “Fatigue or loss of energy nearly every day” was also evident, being Criterion 5. Dr Dinnen stated that symptoms of “diminished ability to think or concentrate, or indecisiveness, nearly every day (either by subjective account or as observed by others)”, being Criterion 6, were also evident. Finally by inference, Dr Dinnen considered Mr Nguyen to be experiencing “feelings of worthlessness or excessive or inappropriate guilt (which may be delusional) nearly every day (not merely self-reproach or guilt about being sick)”, (Criterion 7, to be apparent.
evidence of dr y skinner, consultant psychiatrist
52. Dr Skinner provided oral evidence and the Tribunal also had the benefit of a report from Dr Skinner dated 17 March 2004 (Exhibit R1). In her report, Dr Skinner did not find Mr Nguyen to be suffering from any psychiatric disorder and opined that he was simply finding it difficult to adjust to his unemployment and medical problems. Dr Skinner also noted that Mr Nguyen did not meet the criteria for adjustment disorder or post traumatic stress disorder. Furthermore, Dr Skinner was of the opinion that Mr Nguyen was not suffering from any psychiatric condition that would cause incapacity for work and that he would be capable of working for more than eight hours per week, if a suitable position could be found for him. Dr Skinner reported that, in her opinion, Mr Nguyen’s degree of incapacity has not changed in any material way since 31 July 2002. Dr Skinner told the Tribunal that she saw Mr Nguyen on 3 February 2004 and that the consultation lasted for two hours and that there was an interpreter present. Dr Skinner added that, in her opinion, there was no difficulty in gleaning a history from Mr Nguyen.
53. At Hearing, Dr Skinner, was asked to comment on Dr Dinnen’s conclusion that Mr Nguyen suffered from major depression and in relation to Criteria 1, 2, 4, 6 and 8 of DSM-IV regarding major depression, these criteria were satisfied. Dr Skinner stated that in relation to Criterion 1, Mr Nguyen displayed a mood that lifted, in that he felt better when he had been listening to music. In response to Criterion 2, Dr Skinner noted that there were a number of activities that Mr Nguyen did enjoy and had recorded the following activities as examples: gardening; planting things and watching them grow; reading the newspaper and shopping. When told of Mr Nguyen’s evidence to the Tribunal that he did not garden and did not enjoy reading, Dr Skinner stated that this was different to the history, she had been provided by Mr Nguyen. In relation to the fourth criterion, Dr Skinner stated that Mr Nguyen did not report to her that he experienced a disturbed sleep pattern. He had told Dr Skinner that he slept during the day and woke up at night. Dr Skinner commented that this description was more characteristic of people who are living a retired lifestyle. Dr Skinner conceded that under Criterion 6, Mr Nguyen reported loss of energy. With regard to Criterion 8, Dr Skinner did not find any decreased ability to cooperate present. In Dr Skinner’s opinion, Mr Nguyen provided her with a coherent history without losing track of what he was doing. She added that the activities Mr Nguyen involved himself in also require a certain level of concentration, for example, he is able to drive a car.
54. Dr Skinner conceded that Mr Nguyen did not tell her how long he slept at night or during the day. Dr Skinner noted that as she understood it, Mr Nguyen’s present complaints were that of worry; nightmares; no energy; not feeling well and being forgetful. Dr Skinner stated that she accepted Mr Nguyen’s history and admitted that the symptoms described were depressive symptoms but, did not amount to a depressive illness, in her opinion.
55. In relation to Dr Dinnen’s belief that depression hides symptoms of underlying disorders, Dr Skinner commented that if a person had a very severe depression, then that would be the obvious diagnosis. She added that it was possible for anxiety symptoms, for example, to be masked. Dr Skinner stated that by treating the depression, the anxiety may be revealed but that the overlying condition would need to be severe to have a masking effect.
56. Dr Skinner was asked whether the DSM-IV diagnostic criteria reflected her own understanding of major depression. She noted that DSM-IV is one form of classification, but not the only one. Dr Skinner opined that one should keep the DSM-IV Criteria in mind, but it was also important to have a theoretical guideline. Dr Skinner added that there are a number of symptoms and signs present that go across different diagnostic classifications.
57. In relation to Dr Law’s reports and the treatment he prescribed, Dr Skinner noted that prescribing 50mg of “Deptran” was a low dose of antidepressant medication and that 150mg is the usual minimum therapeutic dose prescribed. Dr Skinner added that she sometimes prescribes this medication herself. Dr Skinner suggested that she would probably also prescribe Mr Nguyen a tranquiliser, to help him sleep. “Efexor”, Dr Skinner commented, is a newer type of antidepressant, but that 75mg was a low dose and she would probably recommend between 150mg and 225mg. With regard to Avanza, Mr Nguyen had advised Dr Skinner that he took this medication occasionally because he felt that he became sedated by it. A recommended course of treatment suggested by Dr Skinner would be to perhaps prescribe 75mg of Efexor and gradually increase it to 225mg. Consultation would probably need to be weekly so as to track Mr Nguyen’s progress and monitor whether he was taking the medication appropriately. If Mr Nguyen showed signs of improvement, the number of consultations would be reduced. Mr Nguyen could also be referred to a Vietnamese speaking Psychiatrist. In addition, Dr Skinner would refer Mr Nguyen to a multicultural centre. When asked to comment on the possible diagnosis of post traumatic stress disorder, Dr Skinner stated that there was no problem with prescribing antidepressant medication for anxiety as this medication tends to have an anti-anxiety effect. If the antidepressant medication was not working however, a medication that had a particular effect on anxiety could be prescribed. Dr Skinner added, however, that she was presented with no indicators from Mr Nguyen that he suffered from anxiety or post traumatic stress disorder.
58. When asked how “close” Mr Nguyen was to a diagnosis of depression, Dr Skinner stated that she would be prepared to say that he was mildly depressed, but that it did not amount to a diagnosable disorder. Dr Skinner stated that some minor life changes would probably assist Mr Nguyen and that nobody had treated him for a major depression as yet. Dr Skinner stated that Mr Nguyen did not present with a sufficient number of symptoms to enable a clinical diagnosis of mild depression to be made.
59. Dr Skinner noted that Mr Nguyen was able to smile and engage and relate to her in a way that depressed people often do not. Dr Skinner stated that she did not explore Mr Nguyen’s reading habits to any great extent as Mr Nguyen had told her that he tried to keep up-to-date with things by reading the news.
60. Dr Skinner stated that although Mr Nguyen had had a sad life, some people do quite well in spite of their traumatic lives and that Mr Nguyen did not report having an unhappy childhood.
evidence of dr s k law, consultant psychiatrist
61. The Tribunal had the benefit of a number of reports from Dr Law, Mr Nguyen’s treating psychiatrist. Dr Law first examined Mr Nguyen on 28 May 1998. On 13 July 1998, Dr Law diagnosed Mr Nguyen as having post traumatic stress disorder and an impairment rating under Chapter 4 of the Guide of 38 points. On 20 July 1998, Dr Law confirmed his diagnosis of post traumatic stress disorder as a result of Mr Nguyen’s past adverse military and re-education experiences. Dr Law prescribed “Deptran, 50mg nocte” and advised Mr Nguyen of “non-drug ways of relaxation”. On 31 January 2000, Dr Law further reported that Mr Nguyen was still suffering from moderately severe symptoms of post traumatic stress disorder and prescribed “Deptran, 25mg nocte” and “Neulactil 1.25mg nocte” (an antipsychotic agent) used for severe anxiety and tension states) (Exhibit R3). Dr Law again advised Mr Nguyen of drug free ways to relax. A report dated 17 July 2000 was in similar terms. On 31 August 2001, Dr Law reported that Mr Nguyen was still suffering some symptoms of chronic post traumatic stress disorder and that his neck and right shoulder pain had probably made him more depressed. Dr Law counselled Mr Nguyen and prescribed “Efexor XR 75mg nocte”, an antidepressant. On 3 April 2002, Dr Law reported in similar terms to his previous report, acknowledging that Mr Nguyen’s various physical problems undermine his mental resilience and that the course of the persistence of symptoms of post traumatic stress disorder and adverse effects of various physical problems, meant that Mr Nguyen was unable to work. In his report dated 18 March 2003 (T33), Dr Law reported in similar terms, continuing the medication “Efexor XR 75mg and Neulactil 10mg nocte”.
62. Dr Law reported that Mr Nguyen was suffering from headaches, broken sleep, forgetfulness and neck pain and was tiring easily. He was upset because he was found to be suffering from diabetes myelitis. Dr Law encouraged Mr Nguyen to persevere with his medication and reminded him of drug free ways to relax. Dr Law noted that Mr Nguyen presented as dejected and worried and held a bleak view of his future, job prospects and his health in general. The multiple pain symptoms and disabilities undermined Mr Nguyen’s mental resilience, Dr Law reiterated. An impairment rating of 41 points from Chapter 4 of the Guide was considered appropriate by Dr Law.
evidence of dr m burns, occupational physician
63. Dr Burns provided a report dated 17 September 2000 (Exhibit R2), Dr Burns having examined Mr Nguyen on that same day. Dr Burns noted Mr Nguyen’s physical conditions as:
“
·Diabetes,
·Hypertension,
·Pulmonary Embolism,
·Cervical Spondylosis,
·Right Rotator Cuff Injury
·Bilateral Lateral Epicondylitis
·Gastroesophageal Reflux Disease”
64. Dr Burns assessed Mr Nguyen’s combined physical impairment as 25 points using the relevant Tables from the Guide.
65. Dr Burns concluded that Mr Nguyen could perform unskilled bench assembly work or packaging work or light cleaning for at least eight hours per week.
evidence of dr e tam, consultant physician
66. The Tribunal had the benefit of a report from Dr Tam dated 17 October 2002 (T23). Dr Tam noted that Mr Nguyen was continuing to complain of pain to the right shoulder and a restricted range of movement, at that time, abduction to 120 degrees. There was continuing pain in the neck and both shoulder girdles with tenderness demonstrated at both sides of the neck posteriorly and in the shoulder elevators. There was tenderness at the interscapular muscles. Mr Nguyen has chronic fibromialga which is difficult to further improve. He was advised to continue physiotherapy at Bankstown Hospital and practise neck and shoulder exercises. Mr Nguyen was prescribed “Mobic” 15mg and “Tramal” 50mg for pain.
evidence of dr g j george, consultant psychiatrist, health services australia
67. Dr George examined Mr Nguyen on 11 July 2002 with the assistance of an interpreter in the Vietnamese language. He reported on Mr Nguyen on 17 July 2002 (T15).
68. Dr George opined that Mr Nguyen presented with elements of post traumatic stress disorder but not sufficient to justify an ongoing diagnosis. Dr George noted that Mr Nguyen has a number of significant physical problems including a pulmonary embolism. From a psychiatric viewpoint, Dr George saw no reason why Mr Nguyen could not engage in at least part-time work and from a physical view point, Mr Nguyen’s exercise tolerance may also limit his work on a full-time basis.
consideration and findings
69. The Tribunal has reached a decision in this matter, taking into account the oral and documentary evidence, the legislation and the case law.
70. One of the difficulties in this matter has been the quality of Mr Nguyen’s evidence provided through the assistance of an interpreter in the Vietnamese language. We are satisfied that Mr Nguyen tried his best to provide evidence, but his answers to some questions concerned the Tribunal. There were two possibilities in relation to this, either Mr Nguyen was unable to fully comprehend the translated questions being put to him or had no ability to recall answers relevant to the questions. The other possibilities considered by the Tribunal was that the quality of the interpretation was not sufficient as to allow Mr Nguyen to properly answer questions put to him. Mr Nguyen was specifically asked did he understand the questions being interpreted and he answered in the affirmative. On balance, we concluded that the interpreter was adequate, so any discrepancies were most likely to have been Mr Nguyen’s capacity to understand the questions put to him or recall relevant details.
71. It is not disputed and we find that pursuant to subsection 37(1)(a) of the Act, Mr Nguyen is a veteran and has, as is required by subsection 37(1)(b) of the Act, rendered qualifying service. At issue is whether or not pursuant to subsection 37(1)(c) of the Act, Mr Nguyen is permanently incapacitated for work and in accordance with the Determination under section 37AA of the Act, we have to consider specifically Clause 5. Clause 5 requires, as relevant to Mr Nguyen, that he has a combined impairment rating of 40 or more points from the Guide and that it is solely because of the impairment that he is unable to do work for periods of up to eight hours per week and that his impairment is permanent.
72. We find that Mr Nguyen’s physical disabilities, as assessed by Dr Burns at 25 points from the relevant chapters of the Guide is correct, noting that this is not disputed by the parties.
73. The Tribunal must next determine if Mr Nguyen has a psychiatric condition and if so, what is the correct diagnosis of that condition and is it permanent and causing him permanent incapacity for work to the level of eight hours per week. In relation to the issue of permanent incapacity for work, we note that McDonald v Director-General of Social Security (1984) 1 FCR 354, the Full Federal Court in the context of Social Security legislation determined that the requirement that a person be “permanently incapacitated for work” is satisfied where it is demonstrated that a person suffers an incapacity which is more likely than not to persist for the foreseeable future. Furthermore, in Dragojlovic v Director-General of Social Security (1984) 1 FCR 301, it was noted that a disability which can be relieved by treatment which is reasonably available, is not permanent.
74. In relation to any psychiatric condition suffered by Mr Nguyen, we note that Dr Law opined that Mr Nguyen is suffering from a moderately severe post traumatic stress disorder. Dr Dinnen opined that Mr Nguyen is suffering from major depression. Dr Skinner at hearing conceded that Mr Nguyen may have some mild depression but was more of the view that there was no psychiatric condition present. Dr George’s view is that while there are symptoms present of post traumatic stress disorder, these were not the level which would allow a diagnosis of post traumatic stress disorder to be made.
75. Considering the Diagnostic Criteria for major depression from DSM-IV, on the evidence available to us, Mr Nguyen experienced a depressed mood nearly everyday for most of the day, in that he was feeling sad and unhappy (Criteria 1). Mr Nguyen has insomnia nearly everyday and thus satisfies Criteria 4. Mr Nguyen also had a markedly diminished interest in almost all activities nearly every day as reported by Dr Dinnen and Dr Law and Mr Nguyen. While the Tribunal notes Mr Nguyen occasionally reads the newspaper and once every four months attends the Vietnamese Veterans’ Association, this level of activity does not dissuade the Tribunal from accepting on balance that Mr Nguyen meets Criteria 2 of the Diagnostic Criteria. Mr Nguyen suffers a loss of energy and fatigue nearly every day and accordingly satisfies Criteria 6. He has a diminished ability to think or concentrate (Criterion 8), as evidenced by forgetfulness in terms of his history, his self-care including taking his medication. Thus, we consider that Mr Nguyen meets at least five of the Criteria for major depression in Criteria A. Furthermore, Mr Nguyen satisfies Criteria B, C, D and E. We consider that notwithstanding that Mr Nguyen meets the diagnostic criteria from DSM-IV for major depression, while there are some symptoms present of post traumatic stress disorder, we do not consider that all of the diagnostic criteria are present, for example, in the re-experiencing criteria and the criteria concerning avoidance stimuli.
76. Accordingly, we find that the correct diagnosis for Mr Nguyen’s psychiatric condition is major depression as opined by Dr Dinnen. We also note Dr Skinner’s evidence that there is mild depression present, although Dr Skinner qualified this comment by stating that the present symptoms would not amount to a clinical diagnosis.
77. Another critical issue in this matter is whether or not the impairment suffered by Mr Nguyen is permanent. We find that the physical impairments are permanent and note that this was opined by Dr Burns and not disputed by the parties. That is, those conditions are being treated, stabilised and likely to continue for the foreseeable future.
78. It is our view however, that the condition of major depression is not fully stabilised nor treated. In this regard, Dr Law is attempting to treat Mr Nguyen but having the benefit of the very considered and respectful opinions of Dr Dinnen and Dr Skinner, we are of the view that Mr Nguyen at this time is being treated sub-optimally. On the opinions of Dr Skinner and Dr Dinnen, the level of medication provided by Dr Law is low and before making a determination as to the assessment of the degree of impairment and indeed whether the condition is permanent or not, Mr Nguyen would need to be treated at higher levels of medication with regular monitoring and with an interpreter or, if that were not possible, referral either to a Vietnamese speaking psychiatrist or to a multicultural centre catering to Mr Nguyen’s cultural needs. It is also clear on Mr Nguyen’s own evidence, that he is not taking the medication to the level prescribed by Dr Law, let alone higher doses as recommended by Dr Dinnen and Dr Skinner.
79. Accordingly, on all of the evidence and for the reasons expressed above, we are not satisfied that at this time, until optimal treatment modalities have been attempted, that the condition of major depression is fully treated and stabilised. It may well be that Mr Nguyen will be resistant to regular treatment, but until this is at least attempted, we cannot be reasonably satisfied that Mr Nguyen is permanently incapacitated for work nor that his condition of major depression is permanent. In all of these circumstances, we are not satisfied at this time that Mr Nguyen is qualified to receive an Invalidity Service Pension. Having so decided, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is affirmed.
I certify that the 79 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member and Dr P D Lynch, Member
Signed: Linda Blue.........................................................
AssociateDate of Hearing 28 April 2004
Date of Decision 21 June 2004
Counsel for the Applicant Mr C Colborne
Advocate for the Applicant Mr T McCombe, Vietnam Veterans’ Association
Counsel for the Respondent Miss R M HendersonSolicitor for the Respondent Mr J Rule, Senior Legal Adviser, Department of Veterans’ Affairs
schedule 1
list of exhibits
Exhibit
Date
Description
A1
22 April 2004
Statement by Mr Nguyen
A2
3 September 2003
Report by Dr A Dinnen, Consultant Psychiatrist
A3
Various
Bundle of Documents Identified by Applicant, pages 1-48
R1
17 March 2004
Report of Dr Y Skinner, Consultant Psychiatrist
R2
17 September 2003
Report of Dr M Burns, Occupational Physician
R3
14 July 2003 and 27 May 2003
Clinical notes of Dr S K Law, Consultant Psychiatrist
R4
From 12 December 1997
Clinical notes of Dr Pham, General Practitioner, pages 2-57
0
3
0