Nguyen and Repatriation Commission

[2003] AATA 1305

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1305

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/1732

VETERANS' AFFAIRS  DIVISION		)
Re		THANH NHAN NGUYEN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date19 December 2003

PlaceSydney

Decision The decision under review is set aside and, in substitution therefor, the Tribunal decides that Mr Nguyen is entitled to an Invalidity Service Pension.  The matter is remitted to the Repatriation Commission to determine the correct rate of pension that is payable in accordance with these reasons.

...............................................

Mr S. Webb, Member 

CATCHWORDS

VETERANS' ENTITLEMENTS - invalidity service pension - qualifying service in allied forces - Vietnam - permanent impairment - post traumatic stress disorder, major depression - impairment rating of 40 points or more - permanently unable to work more than 8 hours per week solely because of the impairment – decision under review set aside

Veterans’ Entitlements Act 1986 ss. 37, 37AA, 37C, 120

Veterans’ Entitlements (Invalidity Service Pension – Permanent Incapacity for Work) Determination 1999

Guide to the Assessment of Rates of Veterans’ Pensions

Repatriation Commission v Smith (1987) 15 FCR 327

Bowman v Repatriation Commission (1981) 34 ALR 556

McDonald v Director General of Social Security (1984) 1 FCR 354

REASONS FOR DECISION

19 December 2003 Mr S. Webb, Member        

1.      Mr Nguyen is an allied veteran.  His claim for an Invalidity Service Pension dated 10 September 2001 (T14) was rejected by the Repatriation Commission on 14 March 2002 (T8).  By Mr Nguyen’s request the decision was reviewed and subsequently affirmed on 30 October 2002 (T2).  Mr Nguyen was dissatisfied with that decision and applied for review by this Tribunal on 18 November 2002 (T1).

issue

2.      The issue for determination is whether Mr Nguyen is permanently incapacitated for work.

legal principles

3.      Mr Nguyen’s claim is under the Veterans’ Entitlements Act 1986 (“the Act”). 

4.      For his claim to succeed the Tribunal must be reasonably satisfied that Mr Nguyen has qualifying service and is permanently incapacitated for work (s.37).  The reasonable satisfaction standard of proof applies (s.120(4)) (see Repatriation Commission v Smith (1987) 15 FCR 327).

5.      The question of qualifying service is not in dispute, being the subject of a previous determination by the Repatriation Commission dated 7 August 2001 (T25, f183-186).  The circumstances in which a person is permanently incapacitated for work are set out in the Veterans’ Entitlements (Invalidity Service Pension – Permanent Incapacity for Work) Determination 1999 (“the Determination”) pursuant to s.37AA.

6.      The test of incapacity for work has been considered by previous courts and tribunals (see Bowman v Repatriation Commission (1981) 34 ALR 556 at 564-565). The term ‘incapacity for work’ pertains to the effect of impairment on the saleability of a person’s labour on the open labour market. The measure of a person’s incapacity for work is their ability to earn on the open labour market.

7. In Mr Nguyen’s case he must satisfy the Tribunal pursuant to s.5(2) of the Determination that:

(a)he suffers from an impairment warranting a rating of 40 or more points under the Guide to the Assessment of Rates of Veterans’ Pensions (“GARP”); and, if so

(b)he is permanently prevented from working for more than 8 hours per week solely by that impairment; and, if so

(c)his impairment is permanent.

8.      The work that is contemplated is not limited to work that the veteran was previously engaged in or his or her normal occupation, but is work that is suitable to be undertaken by the veteran.  His physical and mental health, skills, training, qualifications and the state of the labour market are relevant factors.  The test of permanent incapacity is whether it is more likely than not that it will persist in the foreseeable future (see McDonald v Director General of Social Security (1984) 1 FCR 354 at 360).

9.      ‘Impairment’ means a medical impairment comprising the loss of or disturbance to any body part or system and the resultant functional loss.  Functional loss is “measured by reference to an individual’s performance efficiency compared with that of an average, healthy person of the same age and sex, in a set of vital functions” (GARP, p5). 

evidence

10.     Mr Nguyen gave oral evidence at the hearing in this matter and was represented by Mr C. Colbourne, counsel.  Miss R. Henderson, counsel, represented the Repatriation Commission.  The Tribunal was assisted by an interpreter in the Vietnamese language.  Dr G. George, Consultant Psychiatrist, Dr A. Dinnen, Consultant Psychiatrist and Mr T. Nguyen, Bi-cultural Counsellor, gave oral evidence.  Exhibits that were taken into evidence are listed in Schedule 1.

factual context

11.     The following findings are drawn from the evidence.

12.     Mr Nguyen (date of birth: 19 December 1946) is an allied veteran who served in the South Vietnamese Army 21^st Battalion Rangers.  He was conscripted in 1972 and saw active combat.  He was wounded on at least one occasion, sustaining a gunshot wound to his foot in consequence of which he was hospitalised for approximately two months before returning to active service.  Following the fall of Saigon, he was interned in a re-education camp for 15 days and subsequently returned to his pre-war occupation farming and fishing.  He had problems with the Government and his paddy fields were confiscated.  He attempted to escape from communist Vietnam with his wife and four children, but was caught and imprisoned, during which time he was beaten and questioned about other would-be escapees.  Mr Nguyen and his family successfully escaped to the Philippines where they resided in a refugee camp.  After approximately one year Mr Nguyen migrated to Australia on 13 May 1987, sponsored by a younger sibling.  He was joined by his wife and four children in December 1990. 

13.     Mr Nguyen obtained work in a foundry in the Padstow area making statues.  He was made redundant approximately one year later.  He attempted to complete an English language course but was unable to complete the course because he “had headaches and had to stop”..  He remained unemployed until he was placed into a rehabilitation program mowing lawns for between two and ten hours per week.  Mr Nguyen ceased this employment because he “developed back pain after lifting a mower” and because he suffered “bouts of dizziness and headaches”.  Subsequently, Mr Nguyen was referred by Centrelink into work, weeding for two hours per week.

14.     Mr Nguyen is in receipt of a Disability Support Pension. 

15.     Mr Nguyen’s marriage broke down “about six years ago” whereupon he moved into public housing accommodation.  For a time his daughter, Hong Nguyen, lived with him in that accommodation but moved out when she married.  His other children continued to live with their mother.

summary findings

16.     Mr Nguyen suffers from post traumatic stress disorder and depression and suffers from an emotional and behavioural impairment as a result.

17. Mr Nguyen’s impairment warrants a rating of 46 points under the GARP. His impairment alone permanently prevents him from working more than 8 hours per week and is permanent.

decision

18. Mr Nguyen is permanently incapacitated for work in accordance with the Determination under s.37AA of the Act and is entitled to be paid an Invalidity Service Pension. The decision under review must be set aside and the matter remitted to the Repatriation Commission to determine the correct rate of the pension that is payable.

reasons for decision

19.     Making this decision I carefully considered all of the evidence, the submissions of the parties, the relevant caselaw and legislation.

20.     Mr Nguyen’s credit as a witness was not challenged.  However, I accept that his memory is deficient in consequence of which he has difficulty recalling dates and placing events in time.  It follows that his uncorroborated evidence must be treated with caution.

impairment

21.     I am satisfied that Mr Nguyen suffers from post traumatic stress disorder (“PTSD”) and depression in consequence of which he suffers from an emotional and behavioural impairment.  I accept the diagnostic evidence of Dr Dinnen (Ex A1, p6), Dr Law (Ex R4, pp4-6) and Mr Nguyen (Ex A2, p2).  I note that Dr George gave evidence of his opinion that Mr Nguyen had previously suffered from PTSD the symptoms of which had diminished over time.  Dr George stated that he would “take a punt” that major depression was the current cause of Mr Nguyen’s primary symptoms.

garp rating

22. I am satisfied that Mr Nguyen’s impairment warrants a rating of 46 points under the Chapter 4 Functional Impairment Tables of GARP. I have taken into account the Emotional and Behavioural Medical Impairment Worksheets that were completed by Dr Dinnen, Dr Law and Dr George. Dr Burns reported assessments under relevant tables of GARP but did not provide detailed comments in relation to these assessments. For this reason, I place less weight on Dr Burns’ assessment ratings.

23.     I am satisfied that a rating of 15 points is appropriate under Table 4.1 concerning ‘Subjective Distress’.  This is consistent with the ratings of Dr Dinnen and Dr Law, which I accept.  I do not accept the ratings of Dr George (10 points) and Dr Burns (6 points) as they are not consistent with the evidence.  Mr Nguyen gave evidence, which I accept, that he has experienced persistent insomnia, forgetfulness, poor concentration, irritability and agitation, headaches, dizziness and nightmares over a long period of time.  Dr Law’s clinical notes suggest a history of at least seven years of such symptoms.  Dr Dinnen was of the opinion that the symptoms of PTSD and depression have been persistent over a long period and cause Mr Nguyen considerable distress, observing that he suffers from “chronic debilitating psychiatric illness” (Ex A1, p6).  I accept Dr Dinnen’s opinion and am satisfied that Mr Nguyen’s symptoms are persistent, being of an enduring and constantly repeated character.  Mr Nguyen’s distress is apparent in reports of his dysphoric feelings in the medical reports of Dr Dinnen, Dr Law and Dr George.  I accept that the strength and enduring nature of these feelings of unhappiness, agitation and anger cause Mr Nguyen considerable distress.

24.     I am satisfied that a rating of 10 points is appropriate under Table 4.2 concerning ‘Manifest Distress’.  This is consistent with the rating of Dr Law, Mr Nguyen’s treating psychiatrist, which I accept.  I do not accept the ratings of Dr Dinnen (15 points), Dr George (6 points) and Dr Burns (6 points).  I accept Mr Nguyen’s “loss of interest, irritability and anger, and restlessness” (Ex A2, p2) and his “lack of ability to communicate” (evidence of Dr Dinnen) are overt manifestations of distress with which he is pre-occupied.  While his lack of ability to communicate is constant, it cannot be said that his loss of interest, irritability, anger and restlessness share that characteristic.  Such characteristics are, however, obvious manifestations of distress.  This being the case, I am satisfied that Mr Nguyen’s distress and his pre-occupation with his condition would be obvious to casual observers and persons who are unfamiliar with him. 

25.     I note that cultural factors may influence the opinion of casual observers and inexperienced medical practitioners concerning the behaviour of a person from a different cultural background.  I make no findings in that regard in this case.

26.     In the Repatriation Commission’s submission, evidence that Mr Nguyen attended family parties on a visit to Vietnam and proposed marriage to a woman within one week of meeting her indicates that he is able to function without manifest distress and with minimal impediment in social interactions.  I do not agree.  There is insufficient evidence before me to support such a conclusion.  On the evidence it is apparent that Mr Nguyen is socially isolated, traumatised and depressed.  He is a man who has been unable to learn English, at least in part, as a consequence of his difficulty concentrating and remembering from day to day.  It is perhaps unsurprising that he may reach out to form a bond with another person within his own culture where language is not a problem.  What is striking is the haste with which Mr Nguyen proposed marriage to the person involved, of whom there is no evidence before me.  On balance, Mr Nguyen’s actions are more akin to those of a lonely and distressed man with an unwell mind rather than the actions of a man who is able to interact in social situations without significant impediment or manifest distress.

27.     I am satisfied that a rating of 1 point is appropriate under Table 4.3 concerning ‘Functional Effects’.  This is consistent with the assessment of Dr Law.  The preponderance of the evidence indicates that Mr Nguyen is able to function reasonably well in most everyday situations with only minor interference.  I accept Dr Law’s opinion that interference exists in matters of personal safety in relation to Mr Nguyen’s forgetfulness, for example in relation to locking doors.  I also accept Dr George’s opinion that Mr Nguyen’s somatic symptoms of headache and dizziness may interfere with his functioning in some situations, but conclude on the evidence before me that such interference is ‘minor’ rather than ‘moderate’. 

28.     In the Repatriation Commission’s submission such a ‘minor’ loss of function would not prevent Mr Nguyen from mowing lawns or weeding for more than 8 hours per week.  I do not accept that submission.  Mr Nguyen’s capacity for work is not measured against Table 4.3 in isolation, but must be assessed on all the evidence.  The ‘Functional Effects’ table provides a measure of his ability to function in a non-specific environment, considering factors such as personal hygiene and safety, preparation and consumption of food, orientation in his local environment and the use of public transport.

29.     With regard to Table 4.4 concerning ‘Occupation’, I am satisfied that a rating of 8 points is appropriate.  This is consistent with the ratings of Dr Dinnen and Dr Law, which I accept.  Dr George’s assessment of 1 point is not consistent with the evidence and I do not accept it.  Nor do I accept Dr Burns’ assessment of 5 points, which is given without adequate explanation.  The evidence is that Mr Nguyen is not employed and has not been in open employment since 1988.  It is true that he was employed mowing lawns two hours per day and subsequently was employed weeding two hours per week in rehabilitation programs.  I am not satisfied that such supported employment indicates he is able to function in employment on the open labour market.

30.     I am satisfied that a rating of 8 points is appropriate under Table 4.5 concerning ‘Domestic Situation’..  This is consistent with the ratings of Dr Dinnen and Dr Law.  The fact is Mr Nguyen’s marriage broke down six years ago, resulting in divorce, and he is estranged from at least two of his children.  The weight of the evidence indicates that his marriage breakdown is attributable, at least in part, to Mr Nguyen’s irritability, agitation and other manifestations of his PTSD and depression.  In terms of Mr Nguyen’s contact with family members, his evidence, which I accept, was that he has limited contact with his estranged eldest son’s children who live with his ex-wife, he has some contact with his eldest daughter’s child and he does not know the gender of his latest grandchild by his estranged youngest daughter.  He has little contact with his youngest son who lives with his ex-wife, seeing him only “three or four times each year”.  On this evidence I do not accept Dr George’s rating of zero points and Dr Burns rating of 5 points.  Evidence that Mr Nguyen may be able to relate with his family in Vietnam when visiting that country does not disturb my conclusion, as that contact is infrequent and largely removed from his daily circumstances.

31.     With regard to Table 4.6 concerning ‘Social Interaction’, I am satisfied that a rating of 5 points is appropriate.  This is consistent with Dr Dinnen’s assessment, which I accept.  Mr Nguyen lives alone and has two friends that he sees once every two or three months.  He has other friends that he sees once every year or two.  He is not in employment and has minimal social contact.  Dr Burns recorded that “[p]reviously he reports having a number of good friends and acquaintances but now has only one friend” (Ex R1, p2).  I do not accept Dr George’s rating of nil points.  While I accept that Mr Nguyen enjoys the contact he has with his friends and family, that contact represents minimal interaction and interpersonal relationships and does not indicate that Mr Nguyen’s emotional and behavioural impairment has ‘minimal or no effect on ordinary social contacts’.  I am persuaded by Mr Nguyen’s evidence concerning his communication difficulties and social isolation and the opinions of Dr Dinnen that the reduction in his social interaction is ‘substantial’ rather than ‘significant’, as assessed by Dr Burns.  The evidence of his difficulty maintaining family relationships and appropriate communication within those relationships, as reported by Dr Dinnen, is compelling evidence of the extent of his functional loss in relation to social interaction.

32.     I accept that Mr Nguyen has lost interest in most recreational pursuits, warranting a rating of 5 points under Table 4.7 concerning ‘Leisure Activities’..  This is consistent with Dr Dinnen’s assessment of functional loss.  That Mr Nguyen has a small garden in which he grows some flowers and chillies, and has some fish in a tank that he feeds daily, does not persuade me that a lower rating is warranted.  Mr Nguyen was previously engaged in farming and fishing.  It is hardly surprising that these interests persist in his current circumstances.  His recreational pursuits include watching television, even though he cannot understand the English language programs he watches, and reading a Vietnamese language newspaper, even though he has difficulty recalling items from one day to the next.  These are minimal recreations in isolation that highlight Mr Nguyen’s difficulties concentrating and remembering.  His ability to understand complex activities is far from clear.  I had the benefit of observing Mr Nguyen giving evidence.  His difficulty understanding simple questions that were put to him with the assistance of an interpreter was quite apparent.  There is little evidence before me concerning Mr Nguyen’s previous leisure activities and pursuits.  That is perhaps unsurprising given his circumstances since 1972.  The comparison that is to be made is with an average person in good health of the same age and gender as Mr Nguyen.  With that in mind, I am satisfied that a rating of 5 points is justified.

33.     With regard to Table 4.8 concerning ‘Current Therapy’, I am satisfied that a rating of 3 points is warranted.  This is consistent with the assessments of Dr Dinnen, Dr George and Dr Burns.  Mr Nguyen continues under the care of his general practitioner and a psychiatrist, taking prescribed medications to manage his insomnia, headaches, depression and other symptoms.

34. This being the case Mr Nguyen’s impairment warrants a rating of 46 points under GARP.

capacity for work

35.     Considering all the evidence, I am satisfied on the balance of probabilities that Mr Nguyen’s emotional and behavioural impairment prevent him from engaging in work for more than 8 hours per week.  I am compelled to this conclusion by the evidence of Mr Nguyen’s treating psychiatrist, Dr Law and the evidence of Dr George and Dr Dinnen.  Dr Law’s and Dr Dinnen’s evidence is that Mr Nguyen’s impairment alone prevents him from working more than 8 hours per week.  Dr George stated that “I do not believe that his symptoms of post traumatic stress disorder have been of sufficient severity to prevent him from, at least, some part time work” (Ex R2, p5).  It is apparent that Dr George is of the opinion that Mr Nguyen may be suffering from the effects of major depression and that depression is the major cause of his incapacity for work.  The test to be applied does not require a person to be unable to perform any work whatsoever and contemplates capacity to work up to 8 hours per week.  I interpret Dr George’s evidence to indicate that Mr Nguyen may have capacity to work up to 8 hours per week, as he has in rehabilitation programs over the past two years, but his PTSD and depression would prevent him working at a higher level.

36.     I do not accept Dr Burns evidence that Mr Nguyen is “capable of working at least 20 hours per week if suitable work were available” (Ex R1, p3).  Dr Burns’ assessment is contrary to the weight of the medical evidence and I am not persuaded by it. 

37.     In the Repatriation Commission’s submission, Mr Nguyen’s capacity to work more than 8 hours per week is demonstrated by his ability to work full time in the foundry at Padstow and his ability to work up to 10 hours per week lawn mowing. I am not persuaded by this submission.  Mr Nguyen worked at the foundry in Padstow in the year after his arrival in Australia in 1987 and was one of two workers made redundant in or about 1988.  The reason Mr Nguyen gave for his redundancy was a “cut back in staffing”..   Why Mr Nguyen was selected for redundancy out of 40 workers is an open question on the evidence.  It may be that he was selected for redundancy because his psychiatric condition was at that time, having an adverse effect on his productivity in that workplace.  However, I have no evidence that was the case.  Nevertheless, I am not satisfied that his ability to function in full time work for almost one year 15 years ago, whatever the reason for his termination, provides a reasonable indication of his current capacity for work.  With regard to Mr Nguyen’s cessation of his lawn-mowing job, his evidence was that he ceased because he was suffering from a back problem as well as headaches and dizziness and was unable to continue.  I accept that his headaches are symptomatic of his PTSD and depression and accept that his PTSD and depression may exacerbate difficulties arising from somatic complaints of dizziness and back-pain.  Accordingly, I do not accept the Repatriation Commission’s contention that Mr Nguyen’s stated reasons for leaving these positions were unrelated to his claimed impairment.

38.     I accept Mr Nguyen’s submission that his employment mowing lawns was part of a rehabilitation program that was not consistent with employment on the open market.  While Mr Nguyen’s participation in up to 10 hours per week of assisted employment indicates that he has some capacity for work, I am not satisfied that such employment demonstrates that he has capacity to work more than 8 hours per week on the open labour market.  It is relevant to note that there is conflicting evidence concerning the hours Mr Nguyen worked mowing lawns in the rehabilitation program.  Dr Burns reported that he worked 8 hours per week in this occupation (Ex R1, p3), Dr Dinnen referred to 7 hours per week and Mr Nguyen gave evidence that he worked up to 2 hours per day or 10 hours per week. 

permanent impairment

39.     I am satisfied that Mr Nguyen’s impairment is permanent consistent with the conclusions of Dr Dao, Dr Law and Dr Dinnen.  The test of permanent impairment is whether the impairment is more likely than not to continue for the foreseeable future (McDonald v Repatriation Commission (above)).  This is different than the test of permanent disability under the Social Security Act 1991, whereby a disability is considered to be permanent if it is likely to persist for more than two years.  Centrelink records concerning the grant of a Disability Support Pension to Mr Nguyen must be distinguished therefore. 

40.     In the Repatriation Commission’s submission Mr Nguyen’s condition cannot be accepted as permanent because he has not received proper treatment for depression, having only been treated with sub-therapeutic doses of medication.  I do not agree.  The conditions from which Mr Nguyen suffers are PTSD and depression.  I accept Dr Dinnen’s evidence concerning treatment methodologies in cases of persistent PTSD intermixed with depression.  That is, treatment is largely palliative.  Dr Dinnen’s evidence was that  “there is no easy treatment for painful trauma in the past”, what is required is “a supportive ongoing framework” with elements of counselling and medication.  I am not persuaded by Dr George’s opinion that Dr Law’s treatment of Mr Nguyen is inadequate.  I accept that the doses of medications prescribed by Dr Law may be lower than would be expected to treat major depression but I also accept that such doses may have therapeutic value in the alleviation of symptoms such as anxiety and insomnia.

41.     The fact is Mr Nguyen has been in psychiatric treatment since 1997 and underwent extensive trauma counselling from December 1999 until August 2002, following referral by the Commonwealth Rehabilitation Service (Ex A2, p1).  His treatment is ongoing and is comprised of regular tri-monthly consultations with Dr Law and prescribed medications.  Accepting the evidence of Dr Dinnen and Dr Law, I am satisfied that Mr Nguyen has received reasonable medical treatment for his PTSD and depression and that the impairment arising from those conditions is more likely than not to continue for the foreseeable future.

conclusion

42. I am reasonably satisfied on the balance of probabilities that Mr Nguyen suffers from a permanent emotional and behavioural impairment that warrants a rating of 46 points under GARP and prevents him from working more than 8 hours per week. This being the case, Mr Nguyen is entitled to an Invalidity Service Pension and the decision under review must be set aside.

43.     I note in passing that Mr Nguyen is not entitled to be paid an Invalidity Service Pension if he is receiving a Disability Support Pension (s.37C).

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member

Signed:         A. Krilis
  Associate

Date of Decision  19 December 2003
Date of Hearing  10 December 2003
Solicitor for the Applicant  Mr A. Halsted
Counsel for the Applicant  Mr C. Colbourne
Solicitor for the Respondent  Ms S. Kirby
Counsel for the Respondent  Miss R. Henderson

Schedule 1

Exhibit	Document	Date
A1	Report of Dr Dinnen	1 July 2003
A2	Report of Mr Nguyen	2 September 2003
R1	Report of Dr Mark Burns	2 July 2003
R2	Report of Dr Graham George	21 May 2003
R3	Clinical notes of Dr Dau
R4	Clinical notes of Dr Law
R5	Print out from Centrelink	24 June 2003