Palm and Repatriation Commission
[2010] AATA 932
•22 November 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 932
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/4895
VETERANS' APPEALS DIVISION ) Re KENNETH DEAN PALM Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member K Bean Date22 November 2010
PlaceAdelaide
Decision The tribunal sets aside the decision under review and decides in substitution therefor that the applicant is entitled to a pension at the special rate provided for in s 24 of the Veterans’ Entitlements Act 1986 (Cth) with effect from 29 November 2008.
..............................................
K BEAN
(Senior Member)
CATCHWORDS
VETERANS’ AFFAIRS – Disability pension – Rate of pension payable – Special rate – Veteran ceased work and is prevented from working due to war-caused conditions alone – Decision under review set aside.
Veterans’ Entitlements Act 1986 ss 19(9), 24
Repatriation Commission v Hendy (2002) 76 ALD 447
REASONS FOR DECISION
22 November 2010 Senior Member K Bean introduction
1. The applicant, Mr Palm, served in the Royal Australian Army for 2 years between 1967 and 1969 and is now suffering from a number of medical conditions which have been accepted as being “war-caused”, including post-traumatic stress disorder (PTSD).
2. Notwithstanding the effects of his Army service, Mr Palm remained in the workforce following his discharge from the Army and in fact worked for Flinders Ports Pty Ltd (Flinders Ports) at Port Lincoln in South Australia for 37 years. He resigned from Flinders Ports on medical advice in November 2008 and since that time has been in receipt of a veterans’ disability pension paid at 100 percent of the general rate. However, immediately prior to resigning from his employment, Mr Palm applied for payment of disability pension at the special rate on the basis that he was now prevented from working due solely to his war-caused disabilities.
3. Having been unsuccessful before the Repatriation Commission and the Veterans’ Review Board (the VRB), Mr Palm has now applied to this tribunal for review of the decision of the Repatriation Commission, affirmed by the VRB, that he was not entitled to be paid the disability pension at the special rate.
legislation and issues
4. In order to establish that he is entitled to be paid disability pension at the special rate, Mr Palm must show that he satisfied all of the requirements of s 24 of the Veterans’ Entitlements Act 1986 (the VE Act) at some point during the assessment period. For the purposes of this matter, the assessment period is the period between when Mr Palm lodged his application, on 5 November 2008[1], and the date of this tribunal’s decision[2] .
[1] T4/19
[2] VE Act, s 19(9)
5. Section 24 of the VE Act relevantly provides as follows:
“24 Special rate of pension
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d) section 25 does not apply to the veteran.
(2) For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
…”
6. The respondent does not dispute that Mr Palm satisfies ss 24(1)(aa), 24(1)(aab), 24(1)(a) and 24(1)(d). However, the respondent contends that he does not satisfy ss 24(1)(b) or 24(1)(c).
7. The issues for my determination therefore are:
(a)whether, during the assessment period, Mr Palm’s accepted disabilities alone rendered him incapable of undertaking remunerative work for more than 8 hours per week; and
(b)whether, during the assessment period, he was prevented by his accepted disabilities, alone, from continuing to undertake the remunerative work he was undertaking.
did mr palm’s accepted disabilities, alone, render him incapable of working more than 8 hours per week?
8. There was no dispute between the parties that Mr Palm last worked in November 2008 when he resigned from his employment with Flinders Ports. He had worked for Flinders Ports from 1971 until his resignation in November 2008 and there was also no dispute that the “remunerative work” that he was undertaking for the purposes of s 24 was as a carpenter and leading hand.
9. There was also no dispute that the conditions suffered by Mr Palm which were accepted as being war-caused were:
·PTSD;
·bilateral sensorineural hearing loss;
·hypertension; and
·ischaemic heart disease.
10. In relation to the application of s 24(1)(b), Mr Crowe for the respondent also did not dispute that Mr Palm’s PTSD condition was a factor in him ceasing work in November 2008. However Mr Crowe pointed out that in reports dated 27 October 2006 and 27 March 2007, Dr Ewer, psychiatrist, had stated that he considered Mr Palm could work more than 20 hours per week[3]. Mr Crowe submitted that there was no subsequent psychiatric evidence to suggest that Mr Palm’s incapacity due to PTSD had increased later, and therefore it had not been established on the evidence that Mr Palm’s PTSD condition prevented him from working more than 8 hours per week.
[3] T2/11, T3/18
11. Whilst Mr Crowe’s contention as to the absence of more recent psychiatric evidence is correct however, there is a significant body of other material before the tribunal relating to the extent to which Mr Palm was incapacitated by his PTSD condition at the time he ceased work and subsequently.
Evidence as to Mr Palm’s degree of incapacity at the time he ceased work
12. In his evidence, Mr Palm said that in the period leading up to his cessation of work in November 2008, he was becoming increasingly frustrated with casual employees and also arguing with his supervisors and “getting worked up”. He said other employees were noticing this and that he was coming home very frustrated, emotionally affected and very “down”. He said this led to him consulting his general practitioner, Dr Pretorius, in October 2008, when Dr Pretorius certified him unfit to work for 5 weeks and also prescribed him some medication for his PTSD. He said he subsequently saw another GP, Dr Carlier, as Dr Pretorius was away. When he saw Dr Carlier, Dr Carlier asked him to take a test and once he had done so, advised him that he should cease work. Mr Palm said he had not wanted to finish work as he was only 63, but took his doctor’s advice. He did not return to work at that time, but took the letter provided by Dr Carlier to his supervisor. He was advised by his employer that he had a lot of time owing and that he should “serve” that time out before his employment was terminated, which he did. In the event, the time owing to him was exhausted on 28 November 2008, when his employment was formally terminated.
13. Mr Palm’s evidence accords with the contemporaneous documentation, which includes a medical certificate signed by Dr Pretorius dated 3 October 2008 and certifying that Mr Palm would be unfit for work from that date until 9 November 2008 due to “post-traumatic stress disorder”[4]. The materials also include a letter from Dr Carlier dated 3 November 2008 stating:
“I recommend that Kenneth have early retirement (as soon as possible) for health reasons related to war service.”
[4] T7/38
14. The material also includes a subsequent letter written by Dr Carlier dated 10 March 2009 in which he stated:
“Ken can no longer work for 2 reasons:
1.Post-traumatic stress disorder for which he has counselling from VVCS monthly and takes the following medication … Has recurring anxiety attacks triggered by chest pains and news reports causing flashbacks that wake him at night. In November the DASS score was extreme for anxiety (28), depression (28) and stress (30).
2.Ischaemic heart disease: had angioplasty with 3 stents in 2007. Still gets symptoms at times requiring going to Accident & Emergency but not admitted. …”[5]
[5] T11/27
15. Dr Pretorius has also provided two subsequent more detailed reports dated 12 October 2009[6] and 12 January 2010[7]. In his report of 12 October 2009, Dr Pretorius noted Dr Ewer’s opinion that Mr Palm would be able to continue for working more than 20 hours a week. He also stated however that when he saw Mr Palm on 3 October 2008 there was “a significant escalation of his post-traumatic stress disorder symptoms”. He said that when he saw Mr Palm again on 17 October 2008, he was still struggling with the side effects of some medication which had been prescribed for his PTSD condition “with his dreams being extremely vivid and there was still marked anxiety and night sweats”. As Dr Pretorius was leaving on holidays, he accordingly asked his colleague, Dr Carlier, to see Mr Palm on 3 November 2008. Dr Pretorius noted that Dr Carlier had found Mr Palm’s depression anxiety stress scale or “DASS” score was still extremely high notwithstanding the medication he was then taking. Dr Carlier had therefore arranged counselling through the Vietnam Veterans’ Counselling Service and increased Mr Palm’s medication. He had also written a letter to Mr Palm’s employer indicating that Mr Palm was not fit to continue duties. Dr Pretorius said that he reviewed Mr Palm again on 25 November 2008 and found that “he was still struggling a lot with coping with the demands of work due to his PTSD symptoms”. Dr Pretorius appears not to have appreciated at that time that Mr Palm had not been at work since 3 October 2008.
[6] Exhibit 3
[7] Exhibit 5
16. In his further report of 12 January 2010, Dr Pretorius said:
“As recently as 27/10/09 Mr Palm was still experiencing vivid nightmares and flashbacks regarding his war time service. These have eased to some extent in comparison to what they were when he first presented a year prior and while he was still working. The frequency of these symptoms has decreased. His anxiety and the extent to which he reacts has significantly improved, however he still fits the criteria of chronic PTSD. …”
Dr Pretorius continued later in this report:
“The PTSD influenced his ability to concentrate (having had several nights with lack of sleep), he had increased anxiety and the further pressures of work made it very hard to cope with his day-to-day activities. …”
17. Dr Pretorius also gave oral evidence at the hearing. In relation to whether Mr Palm was unable to work more than 8 hours per week, he said that in his opinion Mr Palm was not able to work more than 8 hours per week, primarily due to his PTSD condition. However, he indicated that Mr Palm’s ischaemic heart disease also contributed to this level of incapacity as it made it difficult for him to carry out any physical work. He also stated that Mr Palm’s PTSD condition had improved recently, partly because he was not working and this had diminished his overall level of stress.
18. Also tendered into evidence before the tribunal was a report of Ms Susan Straub, psychologist, dated 15 January 2010[8]. In that report she indicated that she first saw Mr Palm in November 2008, and between then and December 2009 he had consulted her on approximately 13 occasions. She said that at her first consultation with Mr Palm she administered the short form of the DASS test and that Mr Palm’s scores indicated that over at least the past week he had been suffering a moderate level of depression, extremely severe anxiety and severe strain/stress. He reported recently having attended the Accident and Emergency Department at the Port Lincoln Hospital with chest pains which were diagnosed as related to anxiety. Ms Straub stated:
“Mr Palm’s anxiety had been increasing together with his also increasing frustration in the workplace, for example with the work ethic of casually employed co-workers and decision-making processes of the Authority. He described to me ongoing panic attacks that he had been experiencing both at night and during the day. Those at night woke him from sleep and were flashbacks, or a reliving of an event, related to his war serve. He experienced such physical symptoms as rapid heartbeat, hot flushing and sweating. He would get out of bed and then return, sometimes able to sleep and sometimes unable. During the day he was experiencing panic attacks without any apparent trigger. He was managing the attacks by using relaxation techniques. Before his strain from workplace stressors had increased his PTSD/anxiety to such an extent, he had been woken at night with hot flushes and sweating often associated with war time dreams, and had occasionally experienced hot flushes during the day.”
Ms Straub also stated in her report:
“It appears that for most of his working life, he has been able to manage the depressive symptoms of PTSD with social support, that is, the support of his wife, family, friends, paid employment and voluntary work, for example at the Yacht Club. Similarly, he seems to have managed PTSD/anxiety by using behavioural means, including relaxation techniques, and has not had recourse to illicit drugs or the excessive us of prescription drugs or alcohol.
However, with the onset of his other disabilities, his depression, anxiety and strain/stress increase to the extent that during 2008, he began to withdraw socially. For example, he told me that he had withdrawn from any responsibility at the Yacht Club and that he preferred to mix socially only with family and close friends.”
[8] Exhibit 4
19. In relation to how his PTSD symptoms affected his ability to work, Ms Straub stated:
“Loss of interest and energy are dominant symptoms of depression such that Mr Palm would have found difficulty in initiating activity, for example, beginning a task and maintaining concentration once started. Concentration difficulties also affect memory and response times, for example, Mr Palm told me he has noticed memory-lapses. Attempts to combat these effects of low energy in the workplace are likely to increase anxiety and strain/stress, and in turn, his blood pressure and heart condition.
Irritability is another symptom of depression as well as of anxiety and strain/stress affects relationships with others. Mr Palm has had difficulty coping with frustration, for example, when working with casually employed personnel who do not share his work ethic. On their own, loss of energy and irritability would restrict Mr Palm to tasks over which he had autonomy, that is, at liberty to pace himself and work only as long as he felt no psychological strain. At Mr Palm’s levels of depression, anxiety and strain/stress arising from his accepted disabilities, he should not be required to work to a deadline, depending on others or beyond his physical or emotional capacity. …
It would seem that Mr Palm’s accepted disabilities have brought his treating doctor and him to the conclusion that he should retire completely from paid employment. …
Given the restrictions, which in my opinion he should have in any workplace, his most feasible option was the one he has chosen. That is, he is incapacitated from undertaking paid work for periods of more than 8 hours per week due to his accepted disabilities.”
20. This evidence and that of Mr Palm is also consistent with a short statement from Mr Palm’s supervisor at Flinders Ports dated 20 January 2010 in which he said that he had been Mr Palm’s supervisor for more than 10 years and stated:
“I noticed in the months prior to him ceasing work, in particular the last 6 to 7 months, he was often frustrated with workers under his control.
As his supervisor I was also aware of Dean increasingly questioning and arguing about jobs and how they should be done with both me and other supervisors.”
Analysis
21. Whilst all of this evidence is largely consistent however, the evidence of a psychologist or general practitioner would not generally outweigh the opinion of a psychiatrist. The question therefore arises of the extent to which the evidence recounted above can be reconciled with Dr Ewer’s opinion, expressed in March 2007, that Mr Palm at that stage was able to work 20 hours per week.
22. In relation to that issue, in my view it is possible to reconcile this evidence when regard is had to the time when Dr Ewer formed his opinion and what appears to have been a subsequent deterioration in Mr Palm’s condition.
23. From his two reports, Dr Ewer appears to have had little hesitation in concluding that Mr Palm suffered from PTSD. He also recorded that Mr Palm was reporting “persistent psychiatric symptoms causing him considerable distress”. Dr Ewer noted:
“He is particularly distressed by his intrusive recollections, flashbacks, nightmares and irritability. He has difficulty obtaining relief from his distress, despite a high level of support and reassurance from his wife.”[9]
[9] T3/16
24. Dr Ewer also considered that Mr Palm had difficulty coping with many every day situations and that he was suffering symptoms which were interfering with his ability to function in the workplace, including irritability, difficulties interacting with people and reduced ability to cope with pressure[10]. He accordingly recommended that Mr Palm attend a psychiatrist for psychotherapy and commence certain medications. He also considered at that time that Mr Palm would benefit from seeing a psychologist or attending the Vietnam Veterans’ Counselling Service.
[10] T3/17
25. Dr Ewer also noted that in relation to his hypertension and ischaemic heart disease that Mr Palm had had a stent inserted in November 2006 due to angina, that he had felt “down” at around the time he had his stent inserted and that Mr Palm’s wife, Mrs Palm, had reported that “he’s paranoid about what is causing his chest pain. His very cautious with what he does”.[11]
[11] T3/6
26. It is significant in my view that Dr Ewer considered that Mr Palm’s PTSD symptoms were interfering with his ability to work and to function in other areas of his life. It is also significant in my view that Dr Ewer’s last assessment of Mr Palm was in March 2007, at a time when he was working and when he himself appears to have considered that he could continue working.
27. On the evidence however, it appears that Mr Palm’s PTSD symptoms subsequently increased, particularly during 2008, to the point where his general practitioners considered he was no longer fit to work. It is unclear precisely what precipitated this deterioration in Mr Palm’s condition, although he referred in his evidence to changes in the workplace including the increased use of casual employees. It also appears that after his heart attack and insertion of a stent in November 2006, Mr Palm’s level of anxiety related to his ischaemic heart disease may have increased, contributing to an overall deterioration in his psychological state and a worsening of his PTSD symptoms.
28. It is somewhat surprising given the reported severity of Mr Palm’s condition that he does not appear to have received ongoing treatment by a psychiatrist and nor has he undergone any recent assessment by a psychiatrist. Certainly this would have assisted in assessing the precise degree of his current incapacity and the extent to which that can be attributed to his accepted conditions. The fact that this has not occurred may be attributable in part to the fact that Mr Palm lives in Port Lincoln.
29. In any event, having regard to the evidence referred to above, I am satisfied that after Dr Ewer saw Mr Palm in March 2007, his PTSD condition significantly worsened and the symptoms of the condition became significantly more troubling to Mr Palm. I am also satisfied that although Dr Ewer considered him fit to work 20 hours per week in March 2007, by October 2008, his PTSD condition was sufficiently debilitating to prevent him from being able to work for more than 8 hours per week. I am also satisfied that Mr Palm has continued to suffer from that level of incapacity by reason of his PTSD condition, throughout the assessment period. It follows that I am satisfied that s 24(1)(b) was satisfied throughout the assessment period.
does mr palm satisfy the “alone” test?
30. That leaves the question of whether Mr Palm satisfies the provisions of s 24(1)(c), which requires that he is prevented from continuing to undertake the remunerative work he was previously undertaking by reason of his war-caused disabilities “alone”.
31. In relation to this issue, although he initially relied upon a number of non-accepted conditions suffered by Mr Palm, by the conclusion of the hearing, Mr Crowe for the respondent relied on only two factors which he said prevented Mr Palm from satisfying the alone test, namely his age and a back condition.
Evidence in relation to the “alone” test
32. In relation to his age, Mr Palm’s evidence was that he had intended to continue working past the age at which he retired, that is 63. Under cross-examination, he was also questioned in relation to others in his workplace doing similar work and he said he was by no means the oldest person in the workplace at the time he retired. He said the oldest person carrying out duties similar to his was 74.
33. As to his back condition, he said that he had had a back injury in the 1980s, but this had resolved. Whilst he had had regular chiropractic treatment since then, he said this was more for maintenance rather than in response to acute symptoms. He said that around the time he ceased work his back was “fine”. He said that he had consulted chiropractors regularly since the 1990s for a mixture of musculo-skeletal problems.
34. In his oral evidence, Dr Pretorius also stated that Mr Palm had not consulted him at any time in relation to his back and that he had no records of any complaint in relation to Mr Palm’s back.
35. Mr Palm’s chiropractor, Ms Colleen Forbes, provided a short report dated 19 May 2010 in which she said she had been treating him for approximately 5 years and the “nature of his symptoms have included neck, upper back and lower back stiffness and soreness that varied in intensity”[12]. She also stated that his symptoms up until 28 November 2008 were in the spine and that prior to him ceasing work “I was maintaining his spinal dysfunction”. She also stated that according to her records none of Mr Palm’s symptoms were restricting his capacity to work.
[12] Exhibit 6
36. Ms Forbes also gave oral evidence at the hearing and her notes were admitted into evidence. She said that according to her records Mr Palm had been receiving chiropractic treatment since 1993. She acknowledged that her notes contained a record of low back pain on 12 December 2005, however she said she had treated this and it had largely resolved, although she had recommended that Mr Palm continue to attend on approximately a monthly basis for general prevention and “maintenance”. She said that was a standard recommendation she would make in relation to an average person. She also said that she considered Mr Palm’s back to be in average condition for his age. Her notes recorded further episodes of back pain after 2005, but these were relatively short lived and responded well to treatment. She also treated him for other musculo-skeletal issues. Consistently with her written report, she said she had never given Mr Palm time off work due to his back problems and was not aware of him having had time off work due to his back.
Analysis
37. The “alone test” laid down in s 24(1)(c) is notoriously difficult to meet. The test will not be satisfied where any factor other than a veteran’s accepted disabilities plays a part in their inability to work and as the Full Court of the Federal Court stated in Repatriation Commission v Hendy (2002) 76 ALD 447 at [54]:
“The decision-maker is required to take into account any factor that plays a part or contributes to a veteran being prevented from continuing to engage in remunerative work.”
38. In the circumstances of this matter, it is clear on the evidence that the dominant reason for Mr Palm ceasing work was his PTSD condition, perhaps with some contribution from his accepted condition of ischaemic heart disease. The only issue is whether there has also been a minor contribution to his inability to work made by either has age or his back condition, or both.
39. In relation to Mr Palm’s age, there is little before me to suggest that this has contributed to his inability to work during the assessment period. He was 63 when he ceased work and is now 65 years old. He gave evidence that he had intended to continue to work and that there was another employee at his workplace carrying out similar duties at the age of 74. In light of this evidence, I am not satisfied that Mr Palm’s age has contributed to his inability to work during the assessment period.
40. As to Mr Palm’s back condition, there is no doubt that he suffered a back injury in the 1980s and his back also troubled him, at least for short periods of time, from 2005 onwards. Having regard to the evidence and notes of Ms Forbes however, I am satisfied that on the majority of occasions when Mr Palm sought treatment from her, this did not relate specifically to his back condition but related to other complaints or was for the purpose of general maintenance and prevention. I am not satisfied on the evidence that Mr Palm suffered from a significant back condition at the time he ceased work or at any time subsequently during the assessment period. Accordingly, I am also not satisfied that Mr Palm’s back condition contributed to his inability to work during the assessment period.
41. There was no suggestion on the evidence in this matter that Mr Palm had ceased to engage in remunerative work for reasons other than his war-caused disabilities, or that he was prevented from engaging in remunerative work for any other reason[13]. It therefore follows that Mr Palm has satisfied the “alone” test since he ceased employment with Flinders Ports on 28 November 2008.
[13] VE Act, s 24(2)(a)
conclusion
42. I have concluded that as he satisfies the criteria laid down by s 24 of the VE Act, Mr Palm is entitled to be paid the disability pension at the special rate. In my view, he first met all of the requirements of s 24, including the requirement that he be suffering a loss of earnings he would not otherwise be suffering, on 29 November 2008, the day after he ceased employment with Flinders Ports[14]. I therefore consider that Mr Palm should be paid disability pension at the special rate from 29 November 2008.
[14] T9/40
decision
43. The tribunal sets aside the decision under review and decides in substitution therefor that the applicant is entitled to a pension at the special rate provided for in s 24 of the Veterans’ Entitlements Act 1986 (Cth), with effect from 29 November 2008.
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean
Signed: ...........J Coulthard...........................................
AssociateDates of Hearing 9 and 22 September 2010
Date of Decision 22 November 2010
Counsel for the Applicant Mr N Floreani
Solicitor for the Applicant Tindall Gask BentleyAdvocate for the Respondent Mr A Crowe
DVA
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