Nguyen and Repatriation Commission
[2003] AATA 553
•13 June 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 553
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/495
VETERANS' APPEALS DIVISION ) Re Thang Binh Nguyen Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Ms S M Bullock, Senior Member
Dr P D Lynch, MemberDate13 June 2003
PlaceSydney
Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is set aside and in substitution therefor, the Tribunal decides that:
1. Mr Nguyen is permanently incapacitated for work within the terms of section 37AA of the Veterans’ Entitlements Act 1986 (“the Act”).
2. Pursuant to section 37 of the Act, Mr Nguyen is eligible for an Invalidity Service Pension with effect on and from 13 July 2001.
...............................................
Ms S M Bullock
Presiding Member
CATCHWORDS
VETERANS’ AFFAIRS – Invalidity Service Pension – Eligibility – Permanent Incapacity for Work
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 7A, 37, 37AA, 119, 120
Veterans’ Entitlement (Invalidity Service Pension - Permanent Incapacity for Work) Determination 1999 Clause 5
AUTHORITIES
Repatriation Commission v Smith (1987) 15 FCR 327
Re Van Long Nguy and Repatriation Commission (unreported, AAT, 20 March 2002, No N2001/513)
Re Pham and Repatriation Commission [2002] AATA 1279
National Mutual Life Association of Australia Ltd v Campbell (2000) 99 FCR 562
National Mutual Life Association of Australasia Ltd v Campbell [1999] FCA 1717
REASONS FOR DECISION
13 June 2003 Ms S M Bullock, Senior Member
Dr P D Lynch, Member1. This is an application for review to the Administrative Appeals Tribunal (“the Tribunal”) from a decision of the Repatriation Commission (“the Commission”) dated 2 October 2001 (T2) that found that Mr Nguyen was not eligible for payment of an Invalidity Service Pension, as affirmed on review under section 57A of the Veterans’ Entitlements Act 1986 by a Delegate of the Commission on 15 February 2002 (T26).
2. A Hearing was held before the Tribunal on 3 March 2003. The Applicant, Mr Thang Binh Nguyen, was represented by Mr T McCombe of the Vietnam Veterans’ Association of New South Wales. The Respondent, the Commission, was represented by Miss R Henderson of Counsel. Mr Nguyen provided oral evidence to the Tribunal through a Vietnamese interpreter, Mr P Ho, as did Mr Nguyen’s wife, Thuy Kim Thi Dang (referred to as Ms Thuy). Expert evidence was provided by Dr A Dinnen, Consultant Psychiatrist, Dr M Burns, Occupational Physician and Dr G J George, Consultant Psychiatrist, gave telephone evidence. Following the Hearing, the Tribunal directed pursuant to subsection 33(2A) of the Administrative Appeals Tribunal Act 1975, that the Applicant and the Respondent were to provide written submissions to the Tribunal. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“T Documents”, T1-T26) and the following exhibits, including the written submissions provided by both parties following the hearing:
Exhibit Number
Description
Date
A1
Report of Dr A Dinnen, Consultant Psychiatrist
27 September 2002
A2
Report of Dr S K Law, Consultant Psychiatrist
10 January 2003
A3
Translating and Interpreting Service Request for On-Site Interpreting form, completed for appointment with Dr A Dinnen on 23 September 2002
29 August 2002
A4
Applicants’ Written Submissions
24 March 2003
A5
Applicant’s Further Submissions in Reply
21 April 2003
R1
Report of Dr M Burns, Occupational Physician
25 July 2002
R2
Report of Dr G J George, Consultant Psychiatrist with attachment
22 July 2002
R3
Clinical Notes and Reports of Dr T M Nguyen, General Practitioner
Various
R4
Set of documents provided by Phillip Goldman & Co, Solicitors and Attorneys
Various
R5
Respondent’s Written Submissions
14 April 2003
LEGISLATION
3. A decision in this matter requires consideration of the provisions of the Veterans’ Entitlements Act 1986 (“the Act”).
4. The eligibility criteria for Invalidity Service Pension are found in section 37 of the Act, which states, as relevant:
“37 Eligibility for invalidity service pension
(1)Subject to subsection (6), a person is eligible for an invalidity service pension if the person:
(a) is a veteran; and
(b) has rendered qualifying service; and
(c)is permanently incapacitated for work in accordance with a determination under section 37AA.
Note 1: For veteran see subsection 5C(1).
Note 2: For qualifying service see section 7A.
....”
5. Under section 37AA of the Act, the Commission must determine the circumstances in which persons are permanently incapacitated for work. Section 37AA states, as relevant:
“37AA Commission must determine circumstances in which persons are
permanently incapacitated for work(1)The Commission must, by written determination, specify the circumstances in which persons are permanently incapacitated for work for the purposes of paragraph 37(1)(c).
Variation or revocation
(2)The Commission may, by written determination, vary or revoke a determination under subsection (1).
Disallowable instrument
(3)A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
...”
6. The relevant disallowable instrument under section 37AA of the Act is the Veterans’ Entitlements (Invalidity Service Pension-Permanent Incapacity for Work) Determination 1999 (“the Determination”). Clause 5 of the Determination states:
“Circumstances of permanent incapacity
(1)A person is permanently incapacitated for work for paragraph 37(1)(c) of the Act if the person:
(a) is permanently blind in both eyes; or
(b) is a veteran to whom section 24 of the Act applies; or
(c) satisfies subsection (2).
(2) A person satisfies this subsection if:
(a)the person has an impairment that, if it were an injury or disease for the Guide to the Assessment of Rates of Veterans’ Pensions, would result in a combined impairment rating of 40 or more under Table 18.1 in that Guide, and
(b)solely because of the impairment, the person is permanently unable to do work for periods adding up to more than 8 hours per week; and
(c)the Commission is satisfied that the impairment is permanent.
...”
7. Section 119 of the Act is a general provision in relation to pensions, which deals with decision-makers not being bound by technicalities and specifically, subsection 119(1)(h) deals with any difficulties a veteran might have because of the passage of time, the availability of witnesses and including an absence or deficiency in relevant official records.
8. Under subsection 120(4) of the Act, a decision in relation to Mr Nguyen’s Invalidity Service Pension must be made to the Tribunal’s reasonable satisfaction. Subsection 120(4) states:
“120 Standard of Proof
...
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
...”
ISSUES
9. The issue in this matter is whether Mr Nguyen is eligible for an Invalidity Service Pension and, specifically, whether Mr Nguyen is permanently incapacitated for work in accordance with the following criteria:
· Whether the Applicant has injuries or diseases (“the disability”) that result in a combined impairment rating of 40 points or more using the Guide to the Assessment of the Rates of Veterans’ Pensions; and
· Whether the disability results in an incapacity that is permanent; and
· Whether the incapacity from the disability alone, permanently prevents the Applicant from undertaking work for periods aggregating more than eight hours per week.
10. It is not disputed that Mr Nguyen is a veteran under subsection 37(1)(a) of the Act. It is also not disputed that Mr Nguyen was found eligible for qualifying service, and therefore meets the eligibility criterion provided under subsection 37(1)(b) of the Act.
EVIDENCE OF MR THANG BINH NGUYEN
11. Mr Nguyen told the Tribunal that his date of birth was 24 August 1954. In relation to his education, Mr Nguyen stated that he reached equivalent of Year Seven or Eight at school. Mr Nguyen worked as an Aluminium Smelting Officer before joining the Army in 1972 when he was approximately 18 or 19 years old. Mr Nguyen stated that he was a para-trooper in the Army in Vietnam and that whilst in the Army he suffered an injury to his leg and was admitted to hospital for approximately one week. After hospital he returned to the Armed Forces.
12. Mr Nguyen also stated on one occasion that when he was in the Army in Vietnam, a battle was being fought next to his base. There was bombardment and shelling into the base. He was a “Storeman” and his duties also included being a guard, stationed outside the storehouse. Mr Nguyen stated that apart from guarding the ammunition store, he also was on a roster at the out post, where he worked as a guard checking military vehicles, checking their paperwork and when the vehicles left. Mr Nguyen undertook these duties for the whole time he was in the Army.
13. Mr Nguyen was later asked about him telling doctors that he was a paratrooper. He stated that he was a paratrooper in Vietnam and had to jump out of a plane numerous times. Mr Nguyen confirmed that he has never jumped into a battlefield or front line. Mr Nguyen stated that parachute jumping did not worry him, because he eventually got used to it.
14. Mr Nguyen told the Tribunal that on 30 April 1975, South Vietnam fell into the hands of the Communist Army and Mr Nguyen had no way to return home. Mr Nguyen stated that in 1975 he was put into a re-education camp. There, the authorities tried to brain-wash him into the Communist thinking. Mr Nguyen stated that it was similar to propaganda, but they did not beat him or physically hurt him. Although Mr Nguyen agreed that he had told Dr Dinnen that he was in a re-education camp for three years, Mr Nguyen agreed that he was only there for two years.
15. Mr Nguyen stated that he was arrested in 1986 and charged with planning anti-revolutionary action and plotting against the government. Mr Nguyen stated that he was held prisoner, he was beaten up, abused and interrogated, to force him to tell the authorities who else was involved in anti-revolutionary activities. Mr Nguyen stated that the interrogation occurred when he was arrested and continued when he was in prison.. Mr Nguyen stated that the interrogation continued until they were satisfied that Mr Nguyen did not have any information. Mr Nguyen stated that following his release, he was required to report to government officials on a weekly basis. This was something that was very difficult for him to do. Mr Nguyen believed that he had told Dr Law about his imprisonment.
16. Mr Nguyen stated that he left Vietnam by boat at the end of 1989 and arrived in Indonesia where he stayed for approximately three years. Mr Nguyen later provided evidence that in 1990 he was on a boat that was overcrowded and that there was a problem with the steering wheel. The boat took in water and was sinking, Mr Nguyen stated. They were floating aimlessly for ten days, but were eventually rescued by a Dutch vessel. Mr Nguyen stated that prior to that boat trip, he had tried to escape from Vietnam but had been unsuccessful. Mr Nguyen stated that he had spoken to Dr Law about his escape from Vietnam, but could not remember when he mentioned this to him.
17. Mr Nguyen stated that he arrived in Australia in 1992. His first wife remains in Vietnam and his two sons from this marriage now live in Australia, arriving in 1996. Mr Nguyen stated that one son lives at home, and one does not live with Mr Nguyen. Mr Nguyen’s daughter from his second marriage also lives at home with him. Mr Nguyen stated that he had brothers and sisters in Vietnam. Miss Henderson asked why he sometimes has stated that he had ten brothers and sisters in Vietnam. Mr Nguyen stated that he does not have ten brothers and sisters, he had eight but two of his brothers and sisters died in the Armed Forces, so he has six siblings left.
18. In relation to the period 1975-1986, Mr Nguyen was asked how he supported himself during this period. Mr Nguyen told the Tribunal that he worked in the field of aluminium-smelting. This was a family business, which involved buying scrap aluminium, melting it and making it into articles such as wash basins. Mr Nguyen stated that this business was sufficient for the family to earn a living, but they were not rich. Mr Nguyen stated that he did not believe he told Dr Dinnen that his family was well off, although that was a long time ago and he could not recall exactly what he said to Dr Dinnen. He reiterated that his family was not well off, but earned sufficient from the business to get by.
19. Mr Nguyen confirmed that during the war in Vietnam, young men were being called up to the Army at age 18 years. Mr Nguyen stated that he volunteered for the Army and confirmed that he did not lie about his age to the authorities when he joined the Army. Mr Nguyen was referred to Dr Dinnen’s report where Dr Dinnen recorded, “....the family were rich enough to pay the authorities to have a false birth certificate so that he could avoid going into the Army” (Exhibit A1, p4). Mr Nguyen stated that that information was not correct, because when he lived in Vietnam he used true and genuine documents. Mr Nguyen recalled there was an interpreter, Miss Kim Chi, present when he saw Dr Dinnen, but he did not know who arranged for her services. Mr Nguyen was asked by Miss Henderson whether he asked Miss Chi, to help him tell his story to Dr Dinnen and, whether he asked her to help him make up things that happened in Vietnam.. Mr Nguyen strenuously denied that he asked Miss Chi to help him make up things. Mr Nguyen could not recall whether he asked Miss Chi to help him tell his story to Dr Dinnen. Mr Nguyen was asked whether he told Dr Dinnen that the family business was confiscated in 1975, and he confirmed that he did tell Dr Dinnen this. Mr Nguyen also wanted to make it clear to the Tribunal that in 1978 the Vietnamese Government imposed heavy taxes on capitalists with the intention of taking over businesses.
20. Mr Nguyen stated that following his arrival in Australia, he commenced working at a factory, where he continued working for more than one year. Mr Nguyen stated that in 1996 he had an accident whilst working at the factory. Mr Nguyen stated that he had been standing facing a pallet and the fork lift struck him from behind. Mr Nguyen did not see the fork lift coming. He agreed with a description put to him by Miss Henderson that he heard a sound of the forklift, then a big bang, and did not remember anything afterwards.
21. Following the accident at work, Mr Nguyen stated that he only occasionally went to work and was given duties including pressing the plastic handle of shopping bags. Mr Nguyen also used a sorting machine, but with the machines surrounding him, the noise caused him headaches. Mr Nguyen stated that his backache also became worse with sitting for a long time. Mr Nguyen stated that he also has backaches at home. Mr Nguyen was trialed back at work on three hours per day, initially two hours per week, then three hours per week, he stated. Mr Nguyen would work one hour and then had a 15 minute break. Mr Nguyen stated that he took many sick days at this time. Eventually, Mr Nguyen was sacked from work because he did not have sufficient capacity to perform any duties.
22. Mr Nguyen stated that he received worker’s compensation payments and then his worker’s compensation case was finalised in November or December 2000. Mr Nguyen stated that he used the money from his worker’s compensation settlement on the deposit for his house, where he still currently resides. Mr Nguyen has been receiving Centrelink benefits from June 2000 and is presently still receiving benefits. Mr Nguyen stated that for the monthly mortgage repayments, he had to borrow from his wife’s younger siblings and his children and he is reliant on their contribution. Mr Nguyen stated that he did not recall whether he told the bank, from whom he borrowed money for the mortgage, that he had no money to make the monthly payments, as this was a long time ago. Mr Nguyen stated that he purchased the house for $180,000.00, that he put up a deposit of $50,000 from the lump sum compensation payments, and borrowed $130,000.00 from the bank.
23. Mr Nguyen described his problems with his health. He stated that he has headaches, he suffers from numbness around his eyebrow, down to his left cheek and jaw. Mr Nguyen stated that his jaw had been dislocated sometime before. Mr Nguyen stated that he has back pain when he stands for a long time or sits, or has to walk.. Mr Nguyen stated that he also has numbness in the right and left leg, which is also present in the right and left foot and on the left leg there is numbness in the thigh area. In relation to his headaches, Mr Nguyen stated this affects his mental health, because when he has headaches, he becomes irritable, upset and angry. He stated that he experiences headaches very often, every day, approximately once per day, and this especially occurs if he is subjected to loud noises.
24. In relation to dreams about the fork lift truck, Mr Nguyen stated that he did not have dreams immediately following the accident, but later, following his discharge from hospital, he started having nightmares. These dreams still persist now, he stated. Mr Nguyen stated that as well as dreaming about being hit by a fork lift he also has dreams about being on the boat leaving Vietnam which was about to sink. Mr Nguyen also dreams about the aeroplane crashing into the tower in New York, about war and people being killed. Mr Nguyen stated that following the aeroplanes crashing into the Twin Towers in New York approximately two years ago, he could not sleep peacefully that night and his wife was very concerned about his behaviour.
25. In relation to his sleeping habits, Mr Nguyen stated that he cannot fall asleep until late in the night, about 11pm or 12pm. Mr Nguyen also has more pain during winter and in the hot weather, so sleeps less at these times. Mr Nguyen stated that if he falls asleep, he will sleep for approximately three to four hours. Mr Nguyen did not remember whether he told Dr Burns that he sleeps between 3am and 11am because this was a long time ago. He only knows that it is hard for him to get to sleep and that he takes medication so that he can sleep better. Mr Nguyen stated that some days when he is really tired, he might be able to sleep well, but at other times, even with medication, he will drift in and out of sleep. Mr Nguyen stated that he arises very early at about 5am or 6am, watches the television or has a drink to clear his mind. His wife gets up at about 4.30am, to prepare food for the children to take to work. Mr Nguyen stated that his wife is not currently in paid employment, and that she stopped working quite a few years ago, after he was hit with the fork lift. Mr Nguyen agreed that he had told Dr Burns that his wife works hard. Mr Nguyen told the Tribunal that at the present time his wife attends a course, five days a week through Centrelink. She has attended several such courses, and this course runs for one year.
26. Mr Nguyen stated that Dr Tien Manh Nguyen has been his local doctor for five years. In relation to visits to Dr Nguyen, Mr Nguyen stated that he did visit him about the pain he was experiencing following the accident. He also told Dr Nguyen about the pain in the left side of his face, his back and his legs. Mr Nguyen stated that he visited Dr Nguyen many times in the days following the accident. Mr Nguyen stated that he did continue to see Dr Nguyen after his worker’s compensation case was finalised. Mr Nguyen agreed that he saw Dr Nguyen for coughs and colds, and when he had a rash. Mr Nguyen did not agree with the Respondent’s proposition that he did not have to see his doctor about his back and legs. Miss Henderson put to Mr Nguyen that he saw Dr Nguyen about pain in September 2000 and did not see Dr Nguyen again until December 2002. Mr Nguyen did not agree, and stated that it was more often than that, but that during that period he did not see Dr Nguyen, but was seeing his physiotherapist, Dr Huynh Tai, and undergoing treatment with the physiotherapist.
27. Mr Nguyen stated that he has also been seeing a psychiatrist, Dr S K Law, for approximately three years. Mr Nguyen was referred to Dr Law by both Dr Nguyen and a physiotherapist. Mr Nguyen could not recall exactly what year he commenced seeing Dr Law. Mr Nguyen explained that when he consults Dr Law, the Secretary of the Clinic speaks Vietnamese and interprets for him in the interviews. Dr Law advises him to “keep cool”, be patient and try to keep himself under control to keep harmony within the family.
28. Mr Nguyen brought lists of his medication with him to the Tribunal, including medication prescribed by Dr Law and Dr Nguyen. The lists were read out for the Tribunal. The medication prescribed by Dr Law was listed as: Neulactil, 10 mgs; Panadeine Forte, 500mgs; Catapres, 100mgs; Efexor XR, 100mgs; Prothiaden, 75 mgs; and Norvasc, 10mgs. The medication prescribed by Dr Nguyen was listed as: Voltaren Rapid, 50 mgs; Celebrex, 200mgs; Panadeine Forte; Mobic, 15mgs; Feldene, 20mgs; Digesic, 50mgs and Norvasc, 10mgs.
29. Miss Henderson put to Mr Nguyen that he does not take his medication very often, or indeed regularly. Mr Nguyen stated that he does take his pills for blood pressure, but agreed that his doctor has had to remind him to regularly take this and other medication. Mr Nguyen stated that he used to take his medication spasmodically but now he takes it regularly. In relation to Panadeine Forte, Mr Nguyen stated that he only takes this medication when he has a lot of pain because his doctor advised him not to take them too often. In relation to sleeping pills, Mr Nguyen stated that it depends on whether he is too hot or too cold, but when it is a reasonable day he does not need to take them. Mr Nguyen stated that he does not take sleeping pills regularly, only when he needs to.
30. Miss Henderson referred Mr Nguyen to his last visit to Dr George, a Health Services Australia Consultant Psychiatrist in Parramatta, which took place in 2002. Mr Nguyen with some difficulty did recall this and recalled that there was an interpreter present, but could not recall whether the interpreter was female. Miss Henderson put to Mr Nguyen that at this interview, Mr Nguyen told the Interpreter: “I am pretending, I want you to help me tell my story to Dr George”. Mr Nguyen did not agree and stated that this did not happen.
31. Mr Nguyen was referred to comments by Dr George in his report of 22 July 2002 (Exhibit R2) about how much better Mr Nguyen now was, and was asked whether he feels his condition has changed in the last two years. Mr Nguyen stated that he may be just the same, but as he is getting older he feels that he is getting worse. In relation to whether Mr Nguyen would like to go to work, he stated that he would prefer to go to work, but his condition limits his ability to do this. Mr Nguyen stated that if he went to work he would earn more money and life would be easier. Furthermore in his current situation his friends and family abandon him.
32. In relation to how Mr Nguyen occupies his time, Mr Nguyen stated that he stays at home. He tries to help out at home by washing the dishes, pottering around the house and sweeping the floor if it is dirty. Mr Nguyen also reads to pass the time. Mr Nguyen stated that he sometimes walks to the nearby shopping centre, a distance of 500 metres from his house.
33. Mr Nguyen does not generally go out at night, he told the Tribunal, but occasionally when he is bored, his children may give him some money and he may go and have a few beers. Mr Nguyen stated that this occurred every week, once or twice a week, in order to pass the time and “kill the boredom”.. Mr Nguyen was asked whether he sometimes attends the Returned Services League (RSL) Club. Mr Nguyen stated that this would only be once in a “blue moon”, perhaps when his brother-in-law would accompany him, when he feels bored. He stated that he would have one or two beers. Mr Nguyen stated that the RSL Club is approximately one kilometre away, and that he could walk there but he would have to sit down. Mr Nguyen stated that he does try to keep his walking up and he tries to exercise each day. In relation to his drinking, Mr Nguyen stated that he drinks beer at home sometimes. His children may buy him a carton of beer, usually stubbies of “VB”, because they see that he is bored at home. He will then drink three or four beers from the carton every day, and one carton lasts him a week. In relation to his alcohol consumption, Mr Nguyen told the Tribunal that he tends to drink beer to help him forget about the situation he is in, but that presently he has no money, so he does not do this as much.
34. In relation to his visits to the pub, Mr Nguyen was asked whether he goes because there is company. Mr Nguyen stated that occasionally his younger sibling-in-law takes him. However usually he sits by himself and drinks on his own. He stated that now that he does not have any money, none of his friends want to socialise with him any longer.
35. Mr Nguyen was asked about his relationship with his wife and family, stating that there is friction between himself, his wife and family. He becomes upset and irritable easily. There are arguments on a daily basis. For example, when his children come home from work, they slam the door and then Mr Nguyen screams at them. Also, if Mr Nguyen asks his children to wash the dishes and they do not do it, he yells at them again. Mr Nguyen stated that if his daughter asks if she can go out, and then arrives home late that is when problems also start. Mr Nguyen stated that invariably his wife takes sides and he yells at both of them. Mr Nguyen stated that it has not come to the point where his marriage may end, but the harmony within the family is no longer there and he is saddened by this.
EVIDENCE OF THUY KIM THI DANG
36. Ms Thuy, Mr Nguyen’s wife, stated that she married Mr Nguyen in January 1995. Ms Thuy stated that Mr Nguyen always tries to pick a fight with her or her children and he raises his voice a great deal. He is angry. This makes her feel very sad, she stated and her husband is very hard to be around. She does not consider her husband’s behaviour to be “normal”.. Ms Thuy stated that it was only after the accident in 1996 when Mr Nguyen became unwell that he became like this. Ms Thuy later qualified this by saying that before the accident, it only happened infrequently, and after the accident it became much worse. Ms Thuy stated that since his work accident, Mr Nguyen sometimes chases her to hit her.
37. Ms Thuy stated that before the accident Mr Nguyen would occasionally have nightmares. Mr Nguyen told Ms Thuy that he had nightmares about things that happened during the war in Vietnam. Since the accident in 1996, the nightmares have become much worse.
38. Ms Thuy told the Tribunal that she knew that Mr Nguyen was consulting Dr Law because she went with him to the appointments. In relation to whether Dr Law helped her husband, Ms Thuy stated that whenever he took his medication it would help. However, when he took his medication, her husband would complain about having headaches. Ms Thuy stated that Mr Nguyen did take his medication regularly because she plans his medications and reminds him to take it. Ms Thuy noted that her husband is not well and his memory is poor.
39. In relation to Mr Nguyen’s children from his previous marriage, Ms Thuy stated that they came to Australia in 1996, a few months after the accident. Ms Thuy stated that she and Mr Nguyen had prepared the documents for his children to come to Australia prior to the work accident.
EVIDENCE OF DR A DINNEN, CONSULTANT PSYCHIATRIST
40. Dr Dinnen examined Mr Nguyen on 23 September 2002 and provided a report dated 27 September 2002 (Exhibit A1).
41. In his report, Dr Dinnen noted that the interview that he had with Mr Nguyen was more than adequate to satisfy him that Mr Nguyen does suffer from chronic post traumatic stress disorder. Dr Dinnen noted that although not all of the obvious features of the condition are evident, this is not surprising, as the condition can be expressed in a number of ways. Dr Dinnen noted that one of the most common coping strategies for patients suffering from post traumatic stress disorder is the use of denial and avoidance and the failure of a patient to report ongoing thoughts and memories of traumatic events, does not exclude them from suffering from an ongoing psychiatric disorder as a consequence of traumatic exposure (Exhibit A1).
42. Dr Dinnen noted in his report, in relation to the issues of stressors, that each of the following traumatic events would be enough to cause psychiatric illness: to have lost the family fortune; to serve in the paratroopers for three years in the thick of the war; to be one of a few survivors of a ship capsize; to be a political prisoner for three years and subject to torture; to escape from Vietnam, leaving behind family who are prosected because of his escape; to lose two brothers in the war; to lose a marriage in the way it happened to Mr Nguyen; to spend two and a half years in a refugee camp and finally, to have the fork lift accident with the serious injuries which he sustained (Exhibit A1, p7). Dr Dinnen undertook an assessment under Chapter 4 of the “Guide to the Assessment of Rates of Veterans’ Pensions” (“the Guide”) and rated Mr Nguyen’s post traumatic stress disorder at 48 points (Exhibit A1, p6).
43. At hearing Dr Dinnen stated that he found that Mr Nguyen had a whole range of traumatic experiences, and that his psychiatric illness was due to an underlying post traumatic stress disorder. Dr Dinnen was directed to the list of medications Mr Nguyen had produced from Dr Law. Dr Dinnen stated that the medication was also indicative of treatment for chronic post traumatic stress disorder.
44. Dr Dinnen noted in relation to Mr Nguyen’s ability to communicate, that an ability to learn language depends on concentration and motivation. Specifically in relation to Mr Nguyen, Dr Dinnen believed that because of his psychiatric illness, Mr Nguyen’s mind does not process any new words. Dr Dinnen opined that Mr Nguyen had difficulty in communication beyond that of a migrant in a new land. Dr Dinnen felt that there were restrictions even with the use of an interpreter in Mr Nguyen’s case. Dr Dinnen found that Mr Nguyen was resistant and reluctant to give information, however, the interpreter was very skilled, so Mr Nguyen gave enough information for Dr Dinnen to form an opinion. Despite Dr Dinnen’s confidence in the interpreter’s skill, he was still not confident about the information provided by Mr Nguyen through the interpreter. Dr Dinnen stated that he never makes an assumption that an interpreter is accurate. The difficulty with interpreters compounds the difficulties in forming an opinion about a psychiatric condition as Dr Dinnen is not easily able to challenge a patient’s words and what those words mean, particularly given that the information is second hand.
45. It was put to Dr Dinnen that the evidence given to the Tribunal was that Mr Nguyen was trained as a paratrooper. Dr Dinnen stated that it was very difficult to obtain information from Mr Nguyen, but that Mr Nguyen had told Dr Dinnen he was in the Special Forces. Dr Dinnen was referred to his report, where Dr Dinnen noted that Mr Nguyen had another terrifying memory when Saigon fell in 1975, and he tried to escape in a boat which capsized, Mr Nguyen being one of the few survivors. It was pointed out to Dr Dinnen that Mr Nguyen told the Tribunal that this did not happen. Dr Dinnen responded that he believes that Mr Nguyen has a significant impairment of memory and concentration, compounded by a difficulty getting information.
46. Dr Dinnen opined that the fact that Dr George provided a different account following three interviews with Mr Nguyen, highlighted the difficulty in reaching a definitive opinion about Mr Nguyen.
47. In relation to the re-education camp, Dr Dinnen stated that the interpreter initially corrected him in relation to this history. In relation to the family being rich enough to pay for a false birth certificate, it was pointed out to Dr Dinnen that Mr Nguyen told the Tribunal that he volunteered for the Army and denied providing a false birth certificate. Dr Dinnen responded that he believed that the interpreter was accurately interpreting the information, and delay in entry to the Army was the account he received at the time of his interview. However, Dr Dinnen added that another Tribunal may get another version of events. In relation to the wealth of the family, Dr Dinnen stated that “relatively wealthy” is only by Vietnamese standards in his view.
48. Dr Dinnen stated that psychiatrists are accustomed to the fact that people have difficulties with emotionally charged material. Dr Dinnen agreed that inconsistency can be an indication that people are making up stories. However, Dr Dinnen further noted that it is commonly seen in therapy that more of a story comes out or that story improves over time. Dr Dinnen explained that the process of psychiatric examination involves more information being freed up. Dr Dinnen stated that the more someone talks about traumatic events the more information comes to mind. Dr Dinnen further noted that people recover memories.
49. In relation to the children, Dr Dinnen noted that teenage children coming from Vietnam to be with Mr Nguyen and his new wife may or may not have added stressors.
EVIDENCE OF DR G J GEORGE, CONSULTANT PSYCHIATRIST, HEALTH SERVICES AUSTRALIA
50. Dr George examined Mr Nguyen on three occasions and prepared reports in relation to each of these occasions, dated 18 February 2001, 12 September 2001 and 22 July 2002 (T7, T19 and Exhibit R2). Dr George noted that he had also been given a copy of a short report by Dr Pope correcting various factual errors which were said to appear in one of his reports and that he subsequently created a short report commenting on those corrections, dated 6 February 2002 (T24).
51. In his report of 18 February 2001, Dr George opined that he did not believe that Mr Nguyen suffered from any psychiatric condition such as post traumatic stress disorder either as a result of his service in Vietnam or as a result of his industrial accident (T7). Mr Nguyen was thus considered by Dr George not to be qualified for a Disability Pension.
52. In Dr George’s report of 12 September 2001 (T19), he noted that Mr Nguyen, his wife and a Vietnamese interpreter were present at the interview on 6 September 2001. Dr George reported that Mr Nguyen’s wife stated at the interview that Mr Nguyen’s mental state has changed considerably since the industrial accident and since then he has been unable to work. Dr George was of the view that in this sense Mr Nguyen could be seen as suffering a Dysthymic Disorder. Dr George noted that from a psychiatric viewpoint, Mr Nguyen is capable of at least part-time work, but perhaps not full-time work. Dr George further stated that there appeared to be some element of either evasiveness or malingering in Mr Nguyen’s presentation.
53. In Dr George’s last report of 22 July 2002 (Exhibit R2), Dr George noted that he was impressed with the change that had occurred in Mr Nguyen from the time he was initially assessed in 2001 to his assessment in 2002. He opined that this had occurred undoubtedly because of the input of medical personnel over time. Dr George stated that on this occasion he did not see Mr Nguyen as suffering an ongoing post traumatic stress disorder. Dr George noted that he did not deny that Mr Nguyen probably had symptoms of post traumatic stress disorder in the past. Dr George noted that his psychiatric diagnosis was that there was no ongoing psychiatric illness at this stage. Dr George acknowledged the difference in his opinion from that of Dr Law, but concluded that he could not state that Mr Nguyen has a debilitating condition which would prevent him from future employment.
54. At hearing, Dr George stated that since examining Mr Nguyen and writing those reports, he had had an opportunity to look at Dr Nguyen’s Clinical Notes in relation to the Applicant. In relation to these notes, Dr George noted that from 1996, around the time when Mr Nguyen had the industrial accident, through to approximately 2002, Mr Nguyen saw his General Practitioner, Dr Nguyen, up to 127 times. Dr George noted that during that time, Mr Nguyen saw Dr Nguyen for a range of different disorders, including: his facial fractures; complaints of headaches; pain in the face; tinnitus; blood pressure measurement, pharyngitis and throat infections. Such consultations were described by Dr George as normal presentations of patients attending a General Practitioner. Dr George noted that although Dr Nguyen saw Mr Nguyen on many, many occasions over a four or five year period, he believed that there was only one notation of Mr Nguyen suffering from some anxiety and depression. This appeared to be related to Mr Nguyen’s industrial accident. Dr George further noted that not once did Mr Nguyen mention any problems associated with post traumatic stress disorder. Dr George acknowledged that although the clinical notes contained complaints such as insomnia and headaches, the insomnia appeared to be related to back pain as a result of his industrial accident. Dr George could not find any notation to suggest that Mr Nguyen was complaining of insomnia associated with severe nightmares or flashbacks or any other phenomena, such as avoidance phenomena, which would be associated with post traumatic stress disorder.
55. Dr George stated that it was a reasonable observation that Mr Nguyen may be raising his complaints about his psychological condition with Dr Law and not his General Practitioner. Dr George also acknowledged that doctors often commit information about a patient to memory. Dr Nguyen was seeing Mr Nguyen so frequently that he may have just made a note in his memory about the psychiatric difficulties as opposed to writing it down. Dr George agreed that Dr Nguyen would have received reports from Dr Law in relation to Mr Nguyen.
56. Dr George was referred to a range of nightmares that Mr Nguyen had described, including: occasional nightmares related to war experiences in Vietnam; leaving Vietnam on a boat as a refugee; nightmares of Mr Nguyen lying in the factory; nightmares of being trapped in various situations; frequent nightmares of seeing a fork lift coming in his direction and waking up and screaming; dreaming of being involved in car crashes and of escaping from Vietnam; bad dreams of past military war time scenes and experiences; and, his work injury. Dr George agreed that nightmares were one of the symptoms that are recognised in post traumatic stress disorder. Dr George also noted that the dreams could be, but do not necessarily have to be, of the particular traumatising event. Dr George stated, however, that he did not believe dreams could be taken in isolation as a criterion for saying a person has post traumatic stress disorder. Dr George stated that from his experience seeing a lot of people with symptoms suggestive of chronic post traumatic stress disorder, the issue that strikes him is the frequency of the dreams and the fact that when the person wakes up they are severely distressed. Dr George noted that he was not particularly impressed by Mr Nguyen’s description of the dreams that he had or the frequency that he had them. Dr George further noted in relation to dreams that if someone has some insomnia or is not sleeping particularly well, it is quite likely that they can wake up during a rapid eye movement sleep when dreaming occurs. When that happens, Dr George noted, a dream will be remembered. Dr George stated that this can often happen to people later in life or if they are not sleeping well, and also if someone is waking up from pain due to jaw, back, or leg pain.
57. Miss Henderson noted that in the various examinations Dr George had made of Mr Nguyen he has recorded quite different views of his mental state, and in Dr George’s last report he was extremely impressed by the way in which Mr Nguyen had altered. In relation to his third report of 8 July 2002, Dr George confirmed that there was a dramatic change in Mr Nguyen. Dr George noted that on 15 February 2001, Dr George had found Mr Nguyen to be "evasive", looking down, having very little eye contact and answering “I do not remember” to many questions. Dr George stated that the conclusion could be drawn from these differences that on the first occasion Mr Nguyen could have been severely depressed and despondent and not responding or possibly he could have been evasive. On the second occasion Dr George thought perhaps Mr Nguyen’s treatment had changed due to antidepressant medication or the passage of time. In relation to whether this was a permanent change, Dr George stated that he did not know. He reiterated however, that the difference was very marked.
58. Dr George referred to Dr Pope’s criticism of Dr George’s original report where he reported that Mr Nguyen obviously looked down because he felt he was being interrogated by an authority figure. Dr George noted that if that had been a persistent problem with Mr Nguyen, it would be expected that that behaviour the third time he saw him as well, but it was completely different. Dr George noted that Dr Pope suggested that in South Vietnamese culture it would be considered aggressive by an authority figure to look you in the eye. Dr George stated that he has been examining South Vietnamese war veterans for more than two years and he would see an average of two veterans every week except for when he was on holidays. Dr George stated that it was making an assumption to suggest that he was acting like an authority figure or that Mr Nguyen was in an environment where he perceived Dr George was an authority figure. Dr George noted that on the day those criticisms were made of Dr George’s interview with Mr Nguyen, his wife was present and a female interpreter was also present and his wife helped to provide some of the information in respect to history. Dr George conceded that there is always the possibility that he was perceived as an authority figure, but it is unlikely when you compare the first interview with the third occasion.
59. Dr George did not believe that the generalisation could be made that a treating psychiatrist is the best person to assess the Applicant. Dr George stated that it depends on what occurs between the patient and the doctor. Dr George noted that Mr Nguyen saw Dr Law every two to three months for about 15 to 20 minutes at a time, and that Mr Nguyen described his consultations and therapy with Dr Law as being a renewal of his prescriptions and that Dr Law spoke to him about getting out more and socialising and acted in a supportive way. Dr George stated that if somebody has severe post traumatic stress disorder the treatment is usually far more intensive. However, Dr George noted that at the same time Dr Law did sensibly treat him with an appropriate amount of antidepressants over time.
60. Dr George stated that many psychiatrists would actually challenge the concept of chronic post traumatic stress disorder. Dr George stated that it has to be asked why somebody can function well for 20 years and then suddenly they do not function. Dr George noted that often it is because there is a co-morbid condition such as depression, and in Dr George’s experience when people develop a serious or major depression, it can occur when people become retrenched or unemployed. In that context, these people have insomnia, which is part of a depressive disorder, and part of the insomnia is associated then with the recurrence of dreams or nightmares. Dr George noted that it is possible that Mr Nguyen could have had a serious depression, and he believed this to be the co-morbid condition in Mr Nguyen’s case. Dr George in this regard noted that when Dr Law saw Mr Nguyen on the first occasion in 1997, he believed that he had anxiety and depression but he started to make the diagnosis of post traumatic stress disorder on later consultations. Dr George noted that Dr Law initially thought Mr Nguyen had anxiety and depression as a secondary phenomena to his industrial accident in 1996. Dr George stated that in this age group and context, he believed major depression is the principal diagnosis. Dr George noted that there is a diagnosis of delayed onset post traumatic stress disorder detailed in DSM-IV, but stated that he did not know how well validated that concept is. Dr George stated that it is possible that a co-morbid condition could bring out symptoms of post traumatic stress disorder that were experienced previously, but he believed it was a difficult concept.
61. Commenting on Dr Law’s latest report, dated 10 January 2003, Dr George stated that obviously Mr Nguyen has relapsed from when he last saw him because he was completely different on his last examination. Dr George further stated in relation to Dr Law’s report that to treat a major depression, it is important to take a full list of symptoms. Dr George noted that if someone has a major depression then they not only have insomnia, they usually have very poor appetite, often lose weight because their appetite is poor, there is a lack of enjoyment of normal activities, problems with attention, concentration and short term memory and the mood state is a persistently depressed. Dr George stated that to focus only on insomnia and headaches as a sign of depression or post traumatic stress disorder, is very limited and it certainly does not meet the criteria for major depression or post traumatic stress disorder.
62. Dr George noted that in terms of treating depression, if somebody does not respond very well to 150 milligrams of Efexor XR, the dose could be increased as the therapeutic dose of Efexor XR ranges between 150 milligrams to 375 milligrams. Dr George noted that there are other strategies that are used with people if they do not respond to an antidepressant, including changing the antidepressant which has a different bio-chemical effect, or adding a mood stabiliser in the form of Lithium or an anti-convulsant such as Epilim which is now used as a mood stabiliser. Dr George noted you can also introduce cognitive behavioural treatment, aimed at reducing a patient’s anxiety and correcting negative cognitions. Dr George concluded that one can not say that Mr Nguyen is depressed and is permanently disabled, when the treatment is only 150 milligrams of Efexor XR, as this treatment is totally incomplete. This treatment regime, Dr George noted, has not exhausted normal therapeutic options used to treat a depressive disorder and in particular a regime of treatment for somebody whom you might term as having a resistant depression has not been embarked upon.
63. In relation to the list of medications provided to the Tribunal by Mr Nguyen, Dr George noted that Dr Law may be treating Mr Nguyen with two antidepressants. Dr George stated that one is an tricyclic antidepressant Prothiaden, which he is probably taking at night to help him sleep and the Efexor XR is another antidepressant. Dr George noted that it is not common to mix two antidepressants like that, and there may be some danger in that approach. It was pointed out that Mr Nguyen may not be taking both those antidepressants because Dr Law in his report said he prescribed Efexor XR and Neulactil. Dr George noted that that is more likely. Dr George noted that if Dr Law is really concerned that Mr Nguyen is permanently disabled, the normal response would be to increase Efexor XR.
64. Dr George stated that at least one or two doctors have noted that Mr Nguyen has not been compliant with medication over time, including Dr Burns’ evidence of Mr Nguyen not taking various of his prescribed medications. Furthermore, Mr Nguyen’s credibility has been questioned in view of the varying histories that he has presented at different times. It was pointed out to Dr George that in oral evidence from Mr Nguyen’s wife, she stated that Mr Nguyen was compliant with medication and that she supervised his medication because his memory was poor. Dr George noted that he tested Mr Nguyen’s memory and found it to be “pretty well spot on”, but could not comment on whether there was any significance in Ms Thuy stating that she had to supervise his medication. Dr George did not discuss this issue with her.
EVIDENCEOF DR S K LAW, CONSULTANT PSYCHIATRIST
65. The Tribunal had available to it a number of reports from Dr Law dated: 22 December 2000 (T5; T14); 10 July 2001 (T15); 10 January 2003 (Exhibit A2).
66. Dr Law has treated Mr Nguyen since September 1997 (T5) and has diagnosed post traumatic stress disorder arising out of: military service in Vietnam; re-education camp; shrapnel wound to the left foot from an exploding land mine; being tortured by the Vietcong; and, a serious work accident in Australia in 1996. Dr Law reported that Mr Nguyen suffered from the symptoms of poor sleep habits, tension headaches, feelings of anxiety and depression and bad dreams of past military war-time experiences (T14). Dr Law opined that Mr Nguyen is totally and permanently incapacitated for work (T14, T15). On 10 July 2001, Dr Law completed an Emotional and Behavioural Medical Impairment Worksheet from Chapter 4 of the Guide and concluded that Mr Nguyen had an impairment of 43 points in relation to post traumatic stress disorder (T15, pp72,73).
67. In his report dated 10 January 2003, Dr Law confirmed the diagnosis of post traumatic stress disorder with moderately severe symptoms of bad dreams, forgetfulness, fluctuating levels of insomnia and headache. Mr Nguyen was obviously anxious and dejected, reported taking his medication regularly and had a bleak view of his future, both career-wise and health-wise. Dr Law reiterated his view that Mr Nguyen is still unable to enter the workforce because of the persistence of his post traumatic stress disorder symptoms and the symptoms had worsened since the industrial accident in 1996. Dr Law confirmed his opinion that Mr Nguyen was totally and permanently incapacitated for work.
EVIDENCE OF DR M BURNS, OCCUPATIONAL PHYSICIAN
68. Dr Burns examined Mr Nguyen on 24 July 2002 and provided a report to the Tribunal dated 25 July 2002 (Exhibit R1).
69. In his report, Dr Burns noted that in relation to lumbar spondylosis, that Mr Nguyen reported constant low back pain, which developed after the accident at work in 1996. Dr Burns noted X-rays of Mr Nguyen’s back in 1996 revealed lumbar spondylosis. Mr Nguyen reported no recent treatment but was taking Celebrex. Dr Burns noted that the Celebrex tablets Mr Nguyen brought to the interview, Mr Nguyen had only used 15 tablets in seven weeks, and Dr Burns assumed from this that Mr Nguyen was only using the medication intermittently.
70. In relation to other injuries sustained in the industrial accident, Dr Burns noted that the facial fractures healed reasonably well, but Mr Nguyen continued to have problems with the left temporomandibular joint, and had surgery on this joint in 1998. Mr Nguyen reported some difficulty in eating. Dr Burns noted that his main problem appears to be headaches which occur on a regular basis and noted that a recent CT scan was normal. Dr Burns noted that Mr Nguyen bought Panadeine Forte to his interview, which he stated he was taking for headaches. Dr Burns noted that Mr Nguyen had only taken four tablets in the last six weeks, and therefore that Dr Burns assumed that the severe headaches do not occur on a regular basis. Dr Burns noted in relation to the fracture of the right foot, that Mr Nguyen continues to have pain on activity and weight-bearing, which is an intermittent problem and Mr Nguyen is not receiving treatment for this.
71. In relation to his psychological problems, Dr Burns noted the diagnosis of post traumatic stress disorder by Dr Law and the diagnosis of dysthymic disorder by Dr George. Dr Burns noted in relation to treatment that Mr Nguyen has been seeing Dr Law monthly for a number of years, with each consultation lasting 15-20 minutes. Dr Burns noted that from Dr Law’s reports it appears that on occasions he has not gone for up to three or four months. Dr Burns noted the latest prescription was for Efexor and Neulactil.. Dr Burns checked the tablets brought in by Mr Nguyen and noted that he had not taken any Efexor since 10 July 2002 and had taken 25 Neulactil in seven weeks. Dr Burns noted that Mr Nguyen appears to be taking Neulactil regularly, but is not taking Efexor on a regular basis.
72. In relation to his examination of Mr Nguyen, Dr Burns noted in his report that Mr Nguyen walked with an exaggerated limp. Dr Burns reported that examination of his back revealed less than 20 degrees of flexion and less than 10 degrees of extension. However, this was inconsistent with the rest of his examination where Mr Nguyen was able to bend over and take his shoes and socks off. Dr Burns noted straight leg raising was 70 degrees bilaterally, there was a negative sciatic stretch test, and power, tone, sensation and reflexes were normal in both lower limbs. Examination of his face revealed some crepitus in the left temporomandibular joint and Dr Burns noted that Mr Nguyen could open his mouth almost fully. Dr Burns noted that there was a normal range of movement of the cervical spine. There was scarring over the right forefoot, but no tenderness on palpation.
73. In relation to an assessment under the Guide, Dr Burns noted in his report that he prefers Dr George’s assessment in terms of psychiatric problems, and that Mr Nguyen does not give a significant history of post traumatic stress disorder following his Vietnam Service, but appears to have developed psychological problems following the industrial accident. Dr Burns assessed Mr Nguyen’s psychological problems as 16 points impairment rating from Chapter 4 of the Guide. In relation to lumbar spondylosis, Dr Burns assessed this as 10 points due to a 25 per cent loss of range of motion. In relation to his right foot fracture, this was assessed at 5 points from Table 3.2.2 of the Guide. Mr Nguyen’s musculoskeletal problems were assessed as a further 2 points due to pain. Dr Burns found no assessment for Mr Nguyen’s temporomandibular joint dysfunction as he is able to eat normally. Dr Burns reported that this gave a combined impairment rating of 29 points, which would be rounded up to 30 points.
74. Dr Burns opined that Mr Nguyen would be physically capable of returning to work on light duties. Dr Burns reported that Mr Nguyen would not be able to do prolonged or heavy lifting but would be able to undertake light sedentary work. Dr Burns noted that Dr George believed that from a psychiatric viewpoint, Mr Nguyen would be able to return to some form of work. Dr Burns therefore concluded that Mr Nguyen would be capable of working at least 30 hours per week in light duties that do not require heavy lifting or prolonged standing or bending, and that Dr Burns does not believe that Mr Nguyen is totally or permanently incapacitated for work (Exhibit R1, p5).
75. At hearing it was put to Dr Burns that he recorded that Mr Nguyen suffered from headaches, but did not include that in his assessment. Dr Burns stated that headaches are quite difficult to assess. Dr Burns stated that not all employment has noise, but all employment has some stress. Dr Burns was referred to a letter from Dr Teychenne (Exhibit R3, p47) which refers to post-traumatic migraine headaches. Dr Burns noted that he had not read that report. Dr Burns noted that to do an assessment under the Guide he would need more information on migraine headaches. Dr Burns noted that he does not know what the “post-trauma” refers to, and that this could be associated with the head injury. Dr Burns confirmed that none of the medications on the list provided by Mr Nguyen to the Tribunal were for migraine.
76. In relation to Dr Dinnen’s view about poor language skills as part of psychiatric illness, Dr Burns noted that he does not necessarily believe that the number of years someone has been in Australia is relevant to learning a language. However, Dr Burns noted that poor language skills do limit Mr Nguyen’s capacity to look for further employment.
APPLICANT’S SUBMISSIONS
77. Mr McCombe, for the Applicant, provided written submissions dated 24 March 2003 (Exhibit A4), and further written submissions dated 21 April 2003 (Exhibit A5). Mr McCombe’s submissions made reference to the Transcript of the hearing and his Transcript references have been included.
78. Mr McCombe submitted that the Tribunal had been provided with sufficient evidence to grant Mr Thang Binh Nguyen an Invalidity Service Pension. Mr McCombe submitted that the required onus of proof the Tribunal must consider is the balance of probabilities, referring to the Federal Court decision of Repatriation Commission v Smith (1987) 15 FCR 327. Under section 37 of the Act, Mr Nguyen must have a combined impairment rating of 40 or more using the Guide, Mr McCombe submitted, and must be permanently unable to do work for period adding up to eight hours per week.
79. On the Applicant’s evidence, Mr McCombe submitted that six severe stressors could be identified from Mr Nguyen’s evidence, and these could be described as (Exhibit A4):
“Served with a combat unit and was wounded by shrapnel from an enemy artillery shell
He witnessed the killing of innocent civilians
Two of his brothers were killed whilst in the army
Served two years in goal and whilst there was treated badly and beaten up, interrogated and abused.
During the trip by boat from Vietnam the boat took on water and nearly sunk.
Severely injured in a workplace accident”
80. Mr McCombe noted the Respondent’s submissions, which attack the Applicant’s credibility on the grounds that the history supplied by him at various interviews is inconsistent. Mr McCombe submitted that some inconsistency would be expected given the fact that interviews were conducted over a period of years and they involved the use of interpreters. Mr McCombe noted that the variances in the language are minor and are to be expected where various interpreters have been used, with various skills in the use of English language. Mr McCombe submitted that it is reasonable to expect variances from interview to interview. Furthermore, the Tribunal had an interpreter to assist them at hearing, so there was an opportunity to clarify any inconsistencies.
81. In relation to Mr Nguyen’s Army service, Mr McCombe agreed that an inconsistency existed, and that the histories are explained in different terminology. Mr McCombe noted that it is clear that Mr Nguyen served as a paratrooper. Mr McCombe noted the evidence of Mr Nguyen at hearing that he trained as a paratrooper and was posted to a paratroopers battalion (Transcript, p10,41,42). Further, Mr McCombe submitted that Dr Law’s comments that Mr Nguyen served in military service around 1972 to 1975 and was exposed to many life-risking situations, are in general terms, and that other sources confirm that Mr Nguyen served in the paratroopers. Mr McCombe submitted that the differences, as highlighted in the Respondent’s submissions, are minor and of no consequence.
82. In relation to the cause of his war-caused injury, Mr McCombe noted that Dr Law had stated that Mr Nguyen was wounded in the left foot by a landmine, however the Applicant clarified in his evidence to the Tribunal that artillery shelling wounded him and he spent a week in hospital (Transcript p10,11). This was the same history provide to Dr Dinnen, Mr McCombe noted. Mr McCombe submitted that again the differences are minor and of no consequence.
83. In relation to Mr Nguyen’s enlistment, Mr McCombe conceded there were differences to Mr Nguyen’s evidence and the history reported by Dr Dinnen. However, Mr McCombe submitted that Mr Nguyen clarified the history in his oral evidence to the Tribunal and that the manner of enlistment is insignificant to the overall picture of Mr Nguyen’s service and workplace accident.
84. In relation to his immediate post-war history, Mr McCombe submitted that the Respondent in their submissions quoted Dr George incorrectly. Mr Nguyen told Dr George that he spent one week in a re-education camp and was in prison between 1986 and 1988 because he was involved in a campaign against the government (Exhibit R2, p2, 3). Mr McCombe noted that Dr Pope stated that Mr Nguyen was in confinement of 20 months, and that it was obvious that Dr Pope was confused between the two periods of confinement. Dr Dinnen stated that he was in a re-education camp for three years (Exhibit A1), was a political prisoner for three years and was tortured. Dr Burns reported that Mr Nguyen was gaoled for two years for counter-revolutionary activities. Under cross-examination, Mr Nguyen clarified that he spent two years in prison and clarified the difference between the time in a re-education camp and the time spent in prison. During the period in prison, Mr Nguyen was beaten and interrogated (Transcript, p22, 23). Mr McCombe again submitted that these inconsistencies were minor and of no consequence. Furthermore, in relation to Mr Nguyen’s post re-education camp history, Mr McCombe submitted that there was no inconsistency with the statements put forward by the Respondent, and that this is a case where different phrases and words are used to describe this period.
85. In relation to Mr Nguyen’s family status, Mr McCombe noted that this is a discussion on the degrees of how poor the family was, and that “rich” and “poor” are relative terms. Mr McCombe noted that being rich by Vietnamese standards could well have meant that they were less poor than most. Mr McCombe submitted that this has little relevance to the overall picture. In relation to Mr Nguyen’s sleep patterns, Mr McCombe submitted that Mr Nguyen’s sleep patterns vary from night to night. Furthermore, the interviews of Mr Nguyen were conducted over a period of twelve months and it would be normal for there to be a variance in the dreams experienced by Mr Nguyen during that period. In relation to both Mr Nguyen’s social activities and his dreams, nightmares and past sleep patterns, Mr McCombe submitted that the inconsistencies are minor and of no consequence.
86. Mr McCombe noted in relation to the evidence from Mr Nguyen’s wife, Dang Thi Kim Thuy, that Ms Thuy told the Tribunal of difficulties within the marriage, and how Ms Nguyen’s behaviour had changed towards her and the children after the accident at work. Ms Thuy stated that occasionally before the accident Mr Nguyen would have nightmares about something that happened during the war. Mr McCombe submitted that Ms Thuy told the Tribunal that in relation to medication and due to his poor memory, Mr Nguyen took his medication regularly because she planned this and reminded him to take it.
87. Mr McCombe referred to two reports from Dr Tien Manh Nguyen in relation to the employability of Mr Nguyen. Mr McCombe noted that Dr Nguyen had been Mr Nguyen’s General Practitioner since 1995 and he also referred Mr Nguyen to Dr Law, Psychiatrist (Exhibit R3). Mr McCombe noted that in a report by Dr Nguyen dated 9 November 2000 (Exhibit R3), Dr Nguyen stated that Mr Nguyen went back to selected duties on 1 June 1999, performing only light duties for a few hours a day, two days per week and yet still complained of back and leg pain and headaches caused by the noise. He subsequently took frequent sick leave and stayed off work. Dr Nguyen reported that Mr Nguyen was dismissed on 8 June 2000 and that he presently still complains of headaches and pain in his back and left leg, requiring a walking stick to assist him in his walking. Dr Nguyen stated that given that “more than four years have passed since his work accident and there are still significant symptoms, the prognosis in his case is rather guarded in my opinion”.
88. Mr McCombe also referred to Dr Nguyen’s report dated 19 October 2001 (Exhibit R3), in which Dr Nguyen noted that Mr Nguyen had an accident in 1996, causing multiple fractures and a long period of extensive treatment and rehabilitation. Dr Nguyen also noted that Mr Nguyen suffers from post traumatic stress disorder and is currently seeing Dr Law regarding that condition. Dr Nguyen reported that Mr Nguyen “still has considerable pain from the work accident and his working capacity is severely compromised on a permanent basis”.
89. Mr McCombe noted that Dr Law is Mr Nguyen’s treating psychiatrist and has been treating Mr Nguyen since 1997. Mr McCombe noted that Dr Law provided a number of reports to Dr Nguyen and has diagnosed Mr Nguyen with post traumatic stress disorder. Mr McCombe noted Dr Law’s conclusions in his latest report (Exhibit A2) that Mr Nguyen is still suffering from moderately severe post traumatic stress disorder causally related to his past war time experiences in Vietnam and that such symptoms have worsened since his work accident in 1996. Dr Law stated that Mr Nguyen is “still unable to re-enter the work force owing to the persistence of his various PTSD symptoms. Indeed, he is now totally and permanently incapacitated for work.”
90. Mr McCombe submitted that the Tribunal should give preference to Dr Law’s opinions given that he is the treating psychiatrist and has the advantage over a forensic psychiatrist in providing an effective diagnosis and assessment. Mr McCombe noted that Dr Law has had more than 30 consultations with Mr Nguyen and that Mr Nguyen is still attending Dr Law for treatment. In relation to the Respondent’s submission that no detailed report was obtained by Dr Law, and he was not called to give evidence, Mr McCombe submitted that the Applicant is not in receipt of legal aid and that limited funding is provided for his representation by the Vietnam Veterans’ Association. Mr McCombe submitted that the Applicant does not have the funds necessary to pay Dr Law for a detailed report or for him to attend the Tribunal. Mr McCombe further submitted that the Respondent has the resources and the right to call Dr Law and the question should be asked why the Respondent did not call or subpoena Dr Law. Mr McCombe contended that there were sufficient details in Dr Law’s reports to assist the Tribunal (Exhibit A5).
91. Mr McCombe referred to the Full Court of the Federal Court decision in National Mutual Life Association of Australia Ltd v Campbell (2000) 99 FCR 562, where the Full Court considered the principle of the treating specialist opinion being given preference over other specialists. The Full Court stated:
“In any event this is not a case in which the Tribunal merely preferred one body of evidence over another. The cause of the claimed incapacity was such that in the Tribunal’s view the treating doctor was in a position of advantage over the forensic psychiatrists. In the Tribunal’s view, insufficient weight was given to the opinion of the treating psychiatrist in a situation where effective diagnosis and assessment could only be achieved over a period of time, once the patient’s trust had been gained”
92. Mr McCombe submitted that Dr Dinnen’s conclusions in relation to Mr Nguyen was that he suffers from post traumatic stress disorder and that Mr Nguyen is severely disturbed. Mr McCombe noted that Dr Dinnen’s view was that Mr Nguyen had variable impairment of memory and concentration, expresses depressive and nihilistic thought, and has a history of sustained trauma experience extending back over many years. Dr Dinnen assessed Mr Nguyen under the Guide as having 48 points under Table 4, and concluded that Mr Nguyen could not and should not work as much as eight hours per week, Mr McCombe noted. In relation to the Respondent’s claims that Dr Dinnen’s report is based on a history that the Applicant has disavowed in evidence, Mr McCombe stated that this is not correct. Mr McCombe noted that the summary of the history contained in Dr Dinnen’s report (Exhibit A1, page 5) compared with the Applicant’s evidence, made it clear that Dr Dinnen extracted a history similar to that given in evidence by the Applicant. In this respect Mr McCombe provided a Table incorporating the Applicant’s evidence and Dr Dinnen’s summary of the evidence, as follows:
Applicant’s Evidence
Dr Dinnen’s Summary (Exhibit A1)
Trained and served in paratrooper unit
Served as a paratrooper (p7)
Ship nearly sunk (Transcript, p1)
Ship capsized (p7)
Political prisoner and tortured (Transcript, pp 11,12,21 and 22)
Political prisoner and tortured (p7)
Brothers died whilst serving Army (Transcript, p13)
Lost two brothers in a war (p7)
Three years in refugee camp (Transcript, p12)
Two and a half years in refugee camp (p7)
Wounded by artillery shell (Transcript, pp 10,11)
Wounded by artillery shell (p2)
Fork lift accident at work
Fork lift accident and serious injury (p7)
93. Mr McCombe noted that the Respondent claims that Mr Nguyen’s visits to Dr Nguyen tapered off after his worker’s compensation case. Mr McCombe noted that the Respondent failed to mention that Mr Nguyen was receiving treatment during this period from Mr Huynh Tai, a physiotherapist (Transcript, p38).
94. In relation to Dr George’s opinions and conclusions in his reports, Mr McCombe submitted that these are diametrically opposed to those of Dr Law and Dr Dinnen. Mr McCombe noted that at hearing the Tribunal read the most recent report of Dr Law to Dr George. Dr George opined that Mr Nguyen must have relapsed since he last saw him, and that this might be due to Mr Nguyen failing to take his medication. Mr McCombe submitted that Dr George’s opinion in relation to the medication is not supported by the evidence given by Ms Thuy, who stated that Mr Nguyen now does take his medication regularly and that she assists him with planning and reminding him to take his medication (Transcript, p49). Mr McCombe reiterated that Dr Law’s opinion as treating psychiatrist should be preferred to that of Dr George, and that furthermore Dr Dinnen supports Dr Law’s conclusions.
95. Mr McCombe noted that Dr Burns concluded in his report (Exhibit R1) that Mr Nguyen was not capable of work involving prolonged or heavy lifting, but would be capable of light sedentary work. Mr McCombe further noted that Dr Burns agreed that Mr Nguyen’s poor language skills made it more difficult for him to find employment (Transcript, p70). Mr McCombe submitted that Dr Burns relies on the reports of Dr George in assessing Mr Nguyen’s psychiatric problems and, Mr McCombe reiterated that the Applicant would put forward that Dr Law’s views should be preferred. Mr McCombe confirmed that the Applicant agreed with Dr Burns’ assessment of Mr Nguyen’s physical problems, but does not agree with his psychological assessment.
96. Mr McCombe submitted that the Guide assessment that should be accepted by the Tribunal is as follows: post traumatic stress disorder, 48 points; lumbar spondylosis, 10 points; fracture right foot 5+2; and left temporomandibular dysfunction: giving a combined rating of 55.
97. Mr McCombe contended that the evidence before the Tribunal by Dr Nguyen, Dr Law, Dr Dinnen and the evidence regarding Mr Nguyen’s physical problems by Dr Burns is sufficient to accept that Mr Nguyen qualifies under the Veterans’ Entitlements Act 1986 for an Invalidity Service Pension. Mr McCombe submitted that Mr Nguyen was functioning well in the workplace before the accident at work, following which he started to suffer from severe symptoms of post traumatic stress disorder and the physical problems of lumbar spondylosis, headaches, fracture right foot and left temporomandibular joint dysfunction. Mr McCombe emphasised that the work place accident was the catalyst for Mr Nguyen’s problems and that it were not for the accident Mr Nguyen would still be in the workforce. Mr McCombe concluded that Mr Nguyen’s physical and mental disabilities, combined with his poor education and lack of English skills made him unemployable.
RESPONDENT’S SUBMISSIONS
98. Miss Henderson, for the Respondent, provided written submissions to the Tribunal dated 14 April 2003 (Exhibit R5). Miss Henderson also referred to the Transcript of the hearing and Miss Henderson’s Transcript references have been included.
99. The Respondent submitted that the Tribunal must decide whether the Applicant is eligible for an Invalidity Service Pension under the Act, and that relevantly, the Tribunal must decide whether the Applicant is permanently incapacitated for work on the basis that:
· He has an impairment rating of 40 or more under the Guide
· Solely because of the impairment, he is permanently unable to do work for periods adding up to more than eight hours per week
· The Tribunal is satisfied that the impairment is permanent
100. In relation to the Mr Nguyen’s credibility, the Respondent contended that the Applicant is not a reliable historian and pointed out that there are serious contradictions and inconsistencies in the histories which the Applicant has given in relation to: his army service; the cause of his war-time injury; his enlistment; his immediate post-war history; his post re-education camp history; his family’s status; his current sleep patterns; his social activities; and, his dreams, nightmares and past sleep patterns.
101. In relation to his Army service, the Respondent submitted that various different histories had been given by Mr Nguyen. In Dr Law’s report of 22 December 2000 it is recorded that Mr Nguyen served in military service around 1972 to 1975 and was exposed to many life-risking situations. In Dr Teychenne’s report of 3 August 2001, it is recorded that Mr Nguyen cannot recall what he did during the Vietnam war. Dr George has reported in his report dated 18 February 2001 (at p3) that Mr Nguyen was a “gunner’s helper” during the Vietnam War and because of his “youth and enthusiasm” his war experiences did not have any great effect on him as far as he was concerned. On 12 September 2001 (at p2) Dr George reported that Mr Nguyen was a paratrooper and believed he could have been a paratrooper for “a few years”. In Dr Dinnen’s report dated 27 September 2002, it was reported that Mr Nguyen was a paratrooper, he was in action as a paratrooper on a number of occasions, his battalion was a big combat force of several hundred men, they were special forces, and that he has bad memories of those days. The Respondent noted that at hearing, Mr Nguyen told the Tribunal that he was a guard positioned outside the ammunition store room (Transcript, p28), that he was also a guard at the gate of an outpost (Transcript, p29) and that those were the duties he did for the whole of his time in the Army (Transcript, p29).
102. The Respondent noted that in relation to the cause of Mr Nguyen’s war-time injury it is recorded in Dr Nguyen’s clinical notes in a document prepared by Dr Law on 22 December 2000, that Mr Nguyen once sustained a shrapnel injury to his left foot in a landmine explosion. It is also recorded by Dr Dinnen in relation to this injury that his left foot had been struck by shrapnel when he was subjected to shelling from the enemy.
103. In relation to his enlistment into the Vietnamese Army, the Respondent noted that Dr Dinnen recorded in his report of 27 September 2002 that Mr Nguyen’s family was rich enough to pay the authorities to have a false birth certificate so he could avoid going into the Army, however that eventually caught up with him. The Respondent noted that at hearing Mr Nguyen told the Tribunal that he volunteered to join the Army at age 18 and that he did not lie to the authorities in Vietnam about his age (Transcript, p23).
104. In relation to his immediate post-war history, the Respondent noted that Dr George recorded on 12 September 2001 (at p2) that when the war ended in 1975, Mr Nguyen was placed in a re-education camp for “a few years”.. On 5 December 2001 (T22), Dr Pope noted that he was placed in a re-education camp for 20 months, not a few years. Dr George noted that Mr Nguyen was placed in a re-education camp for one week on 22 July 2002 (at p2). The Respondent noted that Dr Dinnen on 27 September 2002 recorded that another terrifying memory of Mr Nguyen’s was when Saigon fell and he tried to escape in a boat. The boat capsized and very few survivors escaped the sinking. Dr Dinnen reported that Mr Nguyen still has nightmares about that and he was hiding until 1986, when he was arrested and placed in a re-education camp for three years. At hearing, Mr Nguyen stated that he did not attempt to escape in 1975, and that he never had such a thought in his mind (Transcript, p20, line 10).
105. In relation to what Miss Henderson described as Mr Nguyen’s post re-education camp history, Miss Henderson noted that Dr George recorded on 18 February 2001 (at p3) that Mr Nguyen was back to re-making aluminium pots and he did this up until he escaped from Vietnam. Dr George then recorded on 12 September 2001 (at p2) that after the war he stayed home with his mother, who looked after him and that he did not work between when he was released from the re-education camp and when he came to Australia via Malaysia in 1990. Mr Nguyen told Dr Burns who reported on 25 July 2002 (at p3) that after leaving the re-education camp he undertook factory work until 1986 when he was gaoled for two years for counter-revolutionary activity.
106. In relation to his family’s status, Miss Henderson noted that Dr George reported that his family was quite poor on 18 February 2001 (at p3). Dr Dinnen reported that the family was rich by Vietnamese standards, that his parents had an aluminium smelting business and that the business was confiscated after the fall of South Vietnam. At hearing Mr Nguyen told the Tribunal that his family was not rich, just sufficient to earn a living (Transcript, p22, line 30). He stated that when he left Vietnam his family still owned and ran a business. (Transcript, p23, line 2). Mr Nguyen also told the Tribunal that in 1978 the Communists imposed heavy taxes on capitalists (Transcript, p25, line10) and that approximately two years after he left, his family was no longer in business (Transcript, p25, line 17).
107. Miss Henderson noted in relation to Mr Nguyen’s sleeping patterns that Dr George reported on 12 September 2001 (at p3), that he has difficulty sleeping sometimes and can wake with nightmares of being trapped in various situations. Dr George reported on 25 July 2002 (at p2), that Mr Nguyen went to bed about 11pm, but did not fall asleep until 2am or 3am, and he would wake around 11am. Dr Dinnen reported on 27 September 2002 that Mr Nguyen sleeps no more than three hours at night, he is awake until 3am and unable to get back to sleep.
108. In relation to his social activities, Miss Henderson noted that Dr George reported on 12 September 2001 (at p4) that Mr Nguyen would either drink alone or go to the club to meet friends. Dr Pope noted on 5 December 2001 that Mr Nguyen did not go to the pub or club to drink, he only drank at home when his son would obtain beer for him, that he did not go out much and did not go to the pub or out with friends. Dr Burn reported on 25 July 2002 (at p2) that Mr Nguyen attends the club fairly frequently. At hearing Mr Nguyen reported that he might go to the pub occasionally when he is bored, if he has some money (Transcript, p19, line 4).
109. In relation to Mr Nguyen’s dreams nightmares and past sleep patterns, Miss Henderson noted that on 17 September 1997 (Exhibit R3), Dr Law reported that following the work incident Mr Nguyen suffered from insomnia and frequent nightmares. Mr Nguyen told Dr Law he saw a fork lift coming in his direction, woke up and screamed. Dr Law reported on 7 September 1998 (Exhibit R3) that Mr Nguyen still complained of frequent nightmares. Mr Nguyen told Dr Law at this time he dreamed of being involved in car crashes and of escaping from Vietnam. Dr Law reported on 22 December 2000 that in the past Mr Nguyen occasionally had bad dreams of past military time scenes. On 18 February 2001 (at p2), Dr George reported that prior to 1996, Mr Nguyen slept well and ate well, and did not suffer from any sleep disturbance. Dr George noted that since 1996, Mr Nguyen’s nightmares related to his war experience in Vietnam and leaving Vietnam on a boat as a refugee and that these were quite rare and occurred once a month. Miss Henderson referred to a report of Dr Law dated 8 July 2002, where he reported that Mr Nguyen still suffered from bad dreams of the fork lift injury and past combat experiences in Vietnam. On 25 July 2002 (at p2), Dr Burns reported that Mr Nguyen told him he had some minor dreams after his service in Vietnam but these faded away many years ago. Dr Burns noted that he dreams once or twice a week, mainly about the accident; very occasionally he dreams about his service in the Army. Most recently on 10 January 2003, Dr Law reported that on 6 September 2002, Mr Nguyen reported that he was suffering bad dreams of seeing planes crashing into the mountains.
110. Miss Henderson submitted that at hearing when Mr Nguyen was challenged before the Tribunal about improbable or contradictory claims, Mr Nguyen replied with answers to the effect of “it was a long time ago, I don’t recall” (Transcript: p20, line 16; p23, line 21; p24, line 1; p26, line 16; p30, line 15; p39, line 31). Furthermore, Miss Henderson referred to the Clinical Records of Dr Tien Manh Nguyen (Exhibit R3) and submitted that the Applicant attended Dr Nguyen frequently to complain of symptoms in his back and leg after an industrial accident in 1996, but that visits for these problems tapered off to a negligible level after his worker’s compensation case was settled in 2000. Accordingly, Miss Henderson noted that the Applicant’s claims about his past experiences and current situation should be approached with caution.
111. In relation to the medical evidence before the Tribunal, Miss Henderson noted the Applicant’s submissions that the opinion of Dr Law should be preferred because he is the treating specialist, referring in support of that principal to National Mutual Life Association of Australia Ltd v Campbell (2000) (supra). Miss Henderson contended that the Full Court of the Federal Court decision in National Mutual life Association of Australia Ltd v Campbell (2000) (supra) was not authority for that principle. Miss Henderson submitted that at the first instance, Heerey J, and the Full Court on appeal indicated that it was open to the Tribunal (in that case, the Superannuation Complaints Tribunal) to prefer the opinion of a treating doctor. Miss Henderson, in this regard referred to the Full Court decision at National Mutual life Association of Australia Ltd v Campbell (2000) (supra) (paragraph 34) and to the comments of Heerey J in National Mutual life Association of Australasia Ltd v Campbell [1999] FCA 1717, at paragraph 17 where he stated:
“....what happened here was that the Tribunal decided that it was unfair, in the sense of being unjust, to reach a determination adverse to the respondent by in effect rejecting the opinion of his treating psychiatrist who had much more familiarity with him than did the forensic psychiatrist retained by the Insurer. In so doing the Tribunal in my opinion did not exceed its functions under the Act. To illustrate the point by a hypothetical example discussed in argument, if a trustee had rejected a claim by preferring a general practitioner of twelve months’ experience against the opinions of five professors from the Royal Melbourne Hospital, the Tribunal might understandably conclude that the decision was unfair in the sense of being unjust. This issue in the present case was of course much more finely balanced, but it nevertheless remained a question for the Tribunal itself to decide.”
112. Miss Henderson referred also to two Tribunal decisions in the matter of RePham and Repatriation Commission [2002] AATA 1279 and Re Van Long Nguy and Repatriation Commission (unreported, AAT, 20 March 2002, No N2001/513). Miss Henderson contended that neither of these cases were authority for the proposition, as espoused by the Applicant, that the treating psychiatrist’s opinions are to be preferred. Miss Henderson submitted that in Re Van Long Nguy and Repatriation Commission (supra), the Tribunal attached weight to the fact that the Applicant and the treating psychiatrist were both Cantonese-speaking. In Re Pham and Repatriation Commission (supra) Miss Henderson submitted that the Tribunal erred in assuming that the psychiatrist and patient were of the same ethnic origin.
113. Referring to Dr Law’s reports, Miss Henderson submitted that these reports are, as the Applicant concedes, brief outlines to the referring doctors. Miss Henderson noted that it was impossible from these reports to determine what history Dr Law had relied upon. Furthermore, no explanation had been given by the Applicant for the failure to tender a detailed report by Dr Law, or for failing to call Dr Law to provide evidence. The Respondent submitted that in this case, the Tribunal could not be satisfied that the meagre comments of Dr Law support a reliable diagnosis of the Applicant’s condition.
114. In relation to Dr Dinnen’s report, this is largely based on a series of claims which the Applicant has totally disavowed, Miss Henderson submitted. Miss Henderson noted that Dr Dinnen told the Tribunal that another Tribunal might get an entirely different history from Mr Nguyen in a month’s time (Transcript, p55, line 22). Miss Henderson submitted that the Tribunal should decline to place weight on Dr Dinnen’s psychiatric diagnosis given the discredited history provided to Dr Dinnen.
115. Miss Henderson submitted that Dr George had provided the Tribunal with a full account of his examination and the reasoning process, which supports his conclusions. Miss Henderson further submitted that the Tribunal should, in all the circumstances prefer the views of Dr George. Miss Henderson noted that, on his third examination of the Applicant on 22 July 2002, Dr George, also drawing on the benefit of two previous examinations, found a dramatic change in the Applicant’s state and concluded that the Applicant was not then suffering from symptoms of a psychiatric disorder. In Dr George’s oral evidence to the Tribunal, he commented on the likelihood that the Applicant had, in the past, developed co-morbid conditions of post traumatic stress disorder and depression. Miss Henderson submitted that Dr George adverted to the high incidence of depression in persons of Mr Nguyen’s age group (Transcript, p78, line 34) and confirmed that at the time of his third examination, the symptoms of a psychiatric condition had disappeared. In relation to Dr Law’s report of 10 January 2003, Dr George concluded that Mr Nguyen had relapsed, indicating either non-compliance with medication (Transcript, p84, line 3) or that more aggressive treatment was warranted (Transcript, p84, line 25).
116. Miss Henderson submitted that the Tribunal is not bound to conclude that Mr Nguyen is compliant with his medication, merely because the Applicant’s wife says she is supervising him (Transcript, p49, line 10), and contended that Ms Thuy is mistaken. Miss Henderson referred to Dr Burns, who determined following examination of the Applicant on 24 July 2002, that the Applicant was using Celebrex intermittently, that he was not taking Panadeine Forte on a regular basis, that he had not taken any Efexor dispensed by his chemist a fortnight before, and that Neulactil was the only medication Mr Nguyen was taking on a regular basis.
117. Miss Henderson submitted that Dr Burns, who conducted the only recent physical examination of Mr Nguyen, is of the view that Mr Nguyen remains fit for light physical work for at least 30 hours per week. Miss Henderson submitted that Dr Burns observed a further inconsistency in the course of his examination, that Mr Nguyen restricted his back flexion and extension during the formal examination, then made inconsistent movements to take his shoes off. Dr Burns nonetheless adhered to an estimate of 25 per cent loss of range of motion.
118. Miss Henderson summarised the Respondent’s submissions, that the Tribunal would not be satisfied that the Applicant meets the required rating under the Guide of 40, nor that his impairment prevents him working for periods aggregating more than eight hours a week. Given Mr Nguyen’s past history of an excellent recovery from psychiatric symptoms, Miss Henderson submitted that the Tribunal would not be satisfied that the level of impairment which Dr Law reported on 10 January 2003, is permanent in the sense that it will not respond to medication. Miss Henderson concluded that the decision under review should therefore be affirmed.
FINDINGS
119. The Tribunal has reached a decision in this matter, taking into account the oral and documentary evidence, the legislation and case law.
120. As is noted in the Respondent’s Statement of Facts and Contentions, Mr Nguyen was determined by the Respondent on 9 September 1997, to have rendered qualifying service for the purposes of the Act. There is no dispute and the Tribunal so finds that Mr Nguyen is a veteran for the purposes of the Act and has rendered qualifying service. The issue is whether or not Mr Nguyen meets the requirements of section 37(1)(c) of the Act as qualified by section 37AA of the Act and the Veterans’ Entitlements (Invalidity Service Pension - Permanent Incapacity for Work) Determination 1999 Clause 5.
121. It has been noted by the parties that there are inconsistencies in evidence provided by Mr Nguyen including to various doctors and to the Tribunal. The Tribunal notes in particular the following inconsistencies which also prompt the following questions:
· The type of military service Mr Nguyen undertook. Was Mr Nguyen a paratrooper or a general storeman ?
· Did Mr Nguyen try to leave Vietnam by boat in 1975 or 1989/1990 or both?
· Did Mr Nguyen’s family arrange for him to have his birth documentation falsified so he would not have to join the Army?
· Did Mr Nguyen suffer symptoms of post traumatic stress disorder prior to his industrial accident and does he continue to suffer symptoms such as nightmares and poor sleep patterns?
· The Tribunal also notes inconsistencies in Mr Nguyen’s re-education camp history.
122. The Tribunal must determine whether or not these inconsistencies in the evidence and Mr Nguyen’s undoubted status as an unreliable historian are reflective of a person of little or no credit. Such a determination is central to any assessment of permanent impairment. If Mr Nguyen cannot be believed, then his reporting of his symptoms to various doctors and to the Tribunal is diminished and in the Tribunal’s view, no reliable assessment would be able to be made.
123. A determination of Mr Nguyen’s credibility must, the Tribunal considers, be made taking into account all of Mr Nguyen’s circumstances and their contextual framework. In this regard, the Tribunal notes the obvious that Mr Nguyen’s first language is not English. In fact, Mr Nguyen’s English appears to be very poor, a surprising finding, as noted by Dr Dinnen, considering the length of time Mr Nguyen has lived in Australia. When Mr Nguyen has been examined by a doctor or provided evidence to the Tribunal, it is with assistance of an interpreter. The various interpreters have either been trained and skilled or have been family members or a doctor’s staff member, such as a secretary. The Tribunal was ably assisted by a trained and skilled interpreter, yet also experienced for itself the difficulties with the interpretive process and the opportunity for genuine confusion arising out of this process. As was noted in Re Van Long Nguy and Repatriation Commission (supra), “...it would seem to us any difficulties with history may be a misconstruction from differences of interpretation”.. The difficulties in obtaining a reliable history because of the different levels of interpreting skills of an interpreter was also noted in Re Pham and Repatriation Commission (supra).
124. It is the Tribunal’s view that account must also be taken of the impact of the symptoms of Mr Nguyen’s disabilities, particularly any psychiatric disability. Dr George in oral evidence, acknowledged, following appraisal of Dr Law’s most recent report dated 10 January 2003 (Exhibit A2), that Mr Nguyen possibly had a relapse of his psychiatric condition, which he also acknowledged could be a depression secondary to post traumatic stress disorder. Dr George also opined that Mr Nguyen had a dysthymic disorder..
125. Dr Law, the treating psychiatrist and Dr Dinnen opined that Mr Nguyen does suffer from post traumatic stress disorder. Dr Dinnen noted that “It is passing ludicrous to suggest that this man is not suffering the psychological consequences of major traumatic experience” (Exhibit A1, p7). The Tribunal notes the discussion in National Mutual Life Association of Australia Ltd v Campbell (2000) (supra) and National Mutual Life Association of Australasia Ltd v Campbell [1999] (supra) of the principles concerning the reliance decision-makers should place on treating doctors as contrasted with forensic experts. It is a truism that each case must be judged on its individual circumstances and merits. In Mr Nguyen’s case, Dr Law has treated Mr Nguyen since 1997 and while his reports are not always in the format of a medico-legal report, they are still adequate, in the Tribunal’s view, to convey information about Mr Nguyen’s psychiatric illness. Dr Law, Dr Dinnen and Dr Nguyen (General Practitioner) are of the opinion that Mr Nguyen suffers from post traumatic stress disorder. The Tribunal is also satisfied with the evidence of Mr Nguyen’s wife Ms Thuy, that Mr Nguyen is now regularly taking his medication and that failure to take medication is not the cause of any relapse or worsening of Mr Nguyen’s psychiatric condition.
126. Accordingly, the Tribunal is reasonably satisfied that Mr Nguyen does suffer from the psychiatric condition of post traumatic stress disorder. The Tribunal is also reasonably satisfied that the discrepancies in the history understood by various doctors to have been provided by Mr Nguyen is reflective of the difficulties in the interpreting process when skilled, trained interpreters are not used and even on occasion, when skilled interpreters are used. In combination with the aforementioned difficulties are the inherent problems associated with the symptomatology of post traumatic stress disorder including poor concentration and memory and difficulty with the processing of information as discussed in the reports of Dr Law and Dr Dinnen. Thus the Tribunal can account for discrepancies such as the confusion between prison and re-education camp and the problematic voyage from Vietnam in either 1975 or 1989/1990 or the relative wealth of Mr Nguyen’s family. Some other inconsistencies are not readily explicable. On balance however, considering all of the material and particularly the difficulty with the interpretive process and its interaction with the symptoms of Mr Nguyen’s psychiatric condition, the Tribunal is reasonably satisfied and so finds that Mr Nguyen’s credibility remains intact and he suffers a psychiatric condition of post traumatic stress disorder. The Tribunal is confirmed in this view, when it refers to section 119 of the Act.
127. Turning to the assessment of Mr Nguyen’s disabilities, the Tribunal finds it convenient to set out the various assessments available to the Tribunal.
Dr Burns Dr Dinnen Dr Law Dr George
Dysthymic Disorder 16 (Ch 4) - - No rating provided
Post Traumatic Stress Disorder - 48 (Ch 4) 43 (Ch 4) -
Lumbar Spondylosis 10 (Table 3.1.1)
Fracture Right Foot 5+2 (Tables 3.2.2&3.4.1) - - -
Left Temporomandibular Joint 0 (Table 6.1.1)
Dysfunction
Combined Impairment Rating 29 - - -128. The Tribunal notes that there is agreement between the parties that the correct assessment from the Guide for Mr Nguyen’s physical conditions are those proposed by Dr Burns of 10 points for lumbar spondylosis; 5 + 2 points for fracture of the right foot and a nil rating for left temporomandibular joint dysfunction. The Tribunal has carefully examined these ratings against the evidence and agrees that 10 points from Table 3.1.1 of the Guide is appropriate for lumbar spondylosis, which reflects that Mr Nguyen has a loss of about one-quarter the normal range of movement. In relation to the fracture of Mr Nguyen’s right foot, the Tribunal considers that the appropriate rating is 5 points from Table 3.2.2 to reflect that Mr Nguyen has intermittent pain from weight-bearing and a further 2 points from Table 3.4.1 of the Guide to reflect resting joint pain in the right foot that is mild but often present at rest. In relation to Mr Nguyen’s facial joint problem, the Tribunal considers a nil rating from Table 6.1.1 of the Guide is appropriate to reflect that Mr Nguyen may have some difficulty swallowing or chewing but only causing a minor or occasional restriction of diet.
129. Turning to the assessment of post traumatic stress disorder from Chapter 4 of the Guide, the Tribunal considers the following ratings are appropriate:
Subjective Distress Table 4.1: 15 points to reflect persistent symptoms such as poor sleep, anxiety, depression, nightmares and poor concentration.
Manifest Distress Table 4.2: 10 points to reflect obvious distress and pre-occupation with the symptoms evident to casual observers, including symptoms of irritability, bursts of anger and vocalisation during nightmares.
Functional Effects Table 4.3: 1 point to reflect minor interference in some everyday activities for example, taking care with Mr Nguyen’s personal safety at home or crossing a road.
Occupation Table 4.4: 8 points to reflect that Mr Nguyen cannot work because of the impact of post traumatic stress disorder.
Domestic Situation Table 4.5: 3 points to reflect frequent conflict with family members.
Social Interaction Table 4.6: 3 points to reflect a significant reduction in social interaction, in that Mr Nguyen drinks mainly alone at the club or hotel and has had a reduction in the number of his friends.
Leisure Activities Table 4.7: 5 points to reflect the loss of interest in most recreational pursuits including going to a club or hotel.
Current Therapy Table 4.8: 5 points to reflect the need for ongoing intensive specialist psychiatric treatment including medication and counselling.
The rating from Chapter 4 is:
15 + 10 + 8 + 5 + 5 = 43 points.
130. The Combined Impairment Rating from Scale 18.1 is 53 points, which is rounded to 55 points under Chapter 18 of the Guide. Thus, considering all the evidence and applying the provisions of sections 37 and 37AA of the Act and the Veterans’ Entitlements (Invalidity Service Pension-Permanent Incapacity for Work) Determination 1999, the Tribunal finds that Mr Nguyen has a combined impairment rating of 40 or more [53] from Scale 18.1 of the Guide. The Tribunal accepts the opinions of Dr Law, Dr Dinnen and Dr Nguyen that Mr Nguyen is unable to work for periods of more than eight hours per week because of his post traumatic stress disorder and physical disabilities as opined by Dr Nguyen (T6). Mr Nguyen tried to work following the 1996 fork lift accident undertaking lighter duties in a different section, but could not continue. On all the evidence, given the level of impairment particularly related to his psychiatric condition, the Tribunal is confirmed in its view that Mr Nguyen is unable to work more than eight hours per week.
131. The Tribunal is reasonably satisfied, particularly noting the expert medical opinion, that Mr Nguyen’s physical disabilities are permanent. In relation to Mr Nguyen’s post traumatic stress disorder, he has been receiving treatment from Dr Law since 1997. While Dr George noted an improvement in his last report, the Tribunal notes Dr Law’s report of 10 January 2003 that Mr Nguyen continues to suffer moderately severe symptoms of his post traumatic stress disorder with a worsening since the 1996 fork lift accident. Dr Law opined that Mr Nguyen was totally and permanently incapacitated for work. The Tribunal does not accept that in recent times Mr Nguyen was not taking his medication or that the dose was sub- therapeutic, thus rejecting Miss Henderson's submission that Mr Nguyen's post traumatic stress disorder was not stabilised and hence not permanent.
132. In all of the circumstances and for the reasons expressed above, the Tribunal finds that Mr Nguyen meets the legislative criteria for an Invalidity Service Pension. Accordingly, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is set aside and in substitution therefor, the Tribunal finds that Mr Nguyen is permanently incapacitated for work within the terms of section 37AA of the Act. Mr Nguyen is eligible for an Invalidity Service Pension on and from 13 July 2001.
I certify that the preceding 132 paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member and Dr PD Lynch, Member
Signed: ......................................................................................
AssociateDate of Hearing 3 March 2003
Date of Decision 13 June 2003Representative for the Applicant Mr T McCombe, Advocate, Vietnam Veterans’ Association of NSW
Counsel for the Respondent Miss R Henderson
Solicitor for the Respondent Ms S Kirby, Australian Government Solicitor
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